[ G. R. No.

L-4963, January 29, 1953 ]

MARIA USON, PLAINTIFF AND APPELLEE, VS. MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA, DOMINADOR NEBREDA, AND FAUSTINO NEBREDA, JR., DEFENDANTS AND APPELLANTS.
This is an action for the recovery of the ownership and possession of five (5) parcels of land situated in the municipality of Labrador, Province of Pangasinan, filed by Maria Uson against Maria del Rosario and her four children named Concepcion, Conrado, Dominador and Faustino, surnamed Nebreda, who are all of minor age, before the Court of First Instance of Pangasinan. Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands involved in this litigation. Faustino Nebreda left no other heir except his widow Maria Uson. However, plaintiff claims that when Faustino Nebreda died in 1945, his common-law wife Maria del Rosario took possession illegally of said lands thus depriving her of their possession and enjoyment. Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and her husband, the late Faustino Nebreda, executed a public document whereby they agreed to separate as husband and wife and, in consideration of their separation, Maria Uson was given a parcel of land by way of alimony and in return she renounced her right to inherit any other property that may be left by her husband upon his death (Exhibit 1). After trial, at which both parties presented their respective evidence, the court rendered decision ordering the defendants to restore to the plaintiff the ownership and possession of the lands in dispute without special pronouncement as to costs. Defendants interposed the present appeal. There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda, former owner of the five parcels of lands litigated in the present case. There is likewise no dispute that Maria del Rosario, one of the defendants-appellants, was merely a common-law wife of the late Faustino Nebreda with whom she had four illegitimate children, her now co-defendants. It likewise appears that Faustino Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With this background, it is evident that when Faustino Nebreda died in 1945 the five parcels of land he was seized of at the time passed from the moment of his death to his only heir, his widow Maria Uson (Article 657, old Civil Code). As this Court aptly said, "The property belongs to the heirs at the moment of the death of the ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that moment, therefore, the rights of inheritance of Maria Uson over the lands in question became vested. The claim of the defendants that Maria Uson had relinquished her right over the lands in question because she expressly renounced to inherit any future property that her husband may acquire and leave upon his death in the deed of separation they had entered into on February 21, 1931, cannot be entertained for the simple reason that future inheritance cannot be the subject of a contract nor can it be renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and Ynchausti Steamship Co., 41 Phil., 531). But defendants contend that, while it is true that the four minor defendants are illegitimate children of the late Faustino Nebreda and under the old Civil Code are not entitled to any successional rights, however, under the new Civil Code which became in force in June, 1950, they are given the status and rights of natural children and are entitled to the successional rights which the law accords to the latter (Article 2264 and article 287, new Civil Code), and because these successional rights were declared for the first time in the new code, they shall be given retroactive effect even though the event which gave rise to them may have occurred under the prior legislation (Article 2253, new Civil Code). There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are declared

for the first time shall have retroactive effect even though the event which gave rise to them may have occurred under the former legislation, but this is so only when the new rights do not prejudice any vested or acquired right of the same origin. Thus, said article provides that "if a right should be declared for the first time in this Code, it shall be effective at once, even though the act or event which gives rise thereto may have been done or may have occurred under the prior legislation, provided said new right does not prejudice or impair any vested or acquired right, of the same origin." As already stated in the early part of this decision, the right of ownership of Maria Uson over the lands in question became vested in 1945 upon the death of her late husband and this is so because of the imperative provision of the law which commands that the rights to succession are transmitted from the moment of death (Article 657, old Civil Code). The new right recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to the, impairment of the vested right of Maria Uson over the lands in dispute. As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of pity or compassion, agreed to assign the lands in question to the minor children for the reason that they were acquired while the deceased was living with their mother and Maria Uson wanted to assuage somewhat the wrong she has done to them, this much can be said; apart from the fact that this claim is disputed, we are of the opinion that said assignment, if any, partakes of the nature of a donation of real property, inasmuch as it involves no material consideration, and in order that it may be valid it shall be made in a public document and must be accepted either in the same document or in a separate one (Article 633, old Civil Code). Inasmuch as this essential formality has not been followed, it results that the alleged assignment or donation has no valid effect. Wherefore, the decision appealed from is affirmed, without costs.

[ G.R. No. L-3890, January 23, 1952 ]

IGNACIA LAO, IN HER CAPACITY AS CO-SPECIAL ADMINISTRATRIX OF THE ESTATE OF ALBINA DE LOS SANTOS, AND DOMINGO LAO, PLAINTIFFSAPPELLANTS, VS. FRANCISCO DEE AND MARIA LAO, DEFENDANTS-APPELLEES.
Ignacia Lao, in her capacity as special administratrix of the estate of the late Albina de los Santos, as well as heir of said deceased, and Domingo Lao, also as heir of the deceased, filed a complaint for the annulment of an order of the Court of First Instance of Manila dated January 28, 1949, rendered in the testate proceedings of the deceased, approving the sale of certain real property in favor of Francisco Dee, and for the annulment of the sale itself. The complaint was filed against Francisco Dee as vendee and Maria Lao, a co-special administratrix of the estate, also an heir, in her individual capacity. The order of the probate court is sought to be annulled on the following grounds: the court overlooked the fact that a special administrator has no power to sell real property; the court approved the tale in the belief that Ignacia Lao had given her consent to the sale, when in fact she was Induced to sign the deed of sale by Maria Lao and her attorney through misrepresentation that the deed of sale was a mere petition for the approval of the proposed sale; the court did not know that the vendee Francisco Dee was not a Filipino citizen, or that Ignacia Lao executed the deed of sale on the alleged misrepresentation that Francisco Dee was a Filipino citizen. Both Francisco Dee and Maria Lao filed separately a motion to dismiss. The lower court granted the motions to dismiss and ordered the dismissal of the complaint, with costs against the plaintiffs. From this order the plaintiffs appealed to this Court. Appellants have assigned seven errors as committed by the lower court, but we will only discuss some which we believe are decisive of the present appeal. The first error assigned refers to the lifting of the order of default entered against defendant Francisco Dee. It appears that, because of his failure to file his answer, or put in a responsive pleading within the reglementary period, on motion of the plaintiffs, Francisco Dee was declared in default. He filed a motion to lift the order of the court, attaching thereto affidavits of merits to prove that his failure to answer, or file a motion to extend the time to plead to the complaint within the reglementary period, was due to mistake or excusable negligence which ordinary prudence could not have guarded against, and that Francisco Dee has a meritorious defense against the complaint. They attempted to show that, prior to the expiration of the reglementary period, Francisco Dee filed a lengthy motion to dismiss, which directly challenged the right of the plaintiffs to institute the action, and that, during that period of time, a case for ejectment between the same parties was pending in the municipal court wherein many incidents had arisen which heavily occupied and absorbed the time and attention of Dee's counsel. The motion was heard and argued, and, thereafter, the court lifted the order, allowing Francisco Dee to file a responsive pleading. This is now assigned as error by appellants. It is our ruling that motions of this nature are addressed to the sound discretion of the court, and unless abuse of discretion Is shown, the order of the court should be left undisturbed. Here there is no such showing. It is true that instead of filing a responsive pleading, Dee filed a motion to dismiss; but this may be allowed under Rule 8, Section 1, of the Rules of Court, if one has good grounds to do so. The dismissal of this case proves that Dee's move was justified. This error is, therefore, without merit. One of the grounds on which the lower court predicated its order of dismissal is that Ignacia Lao has no legal capacity to sue as special administratrix of the estate of Albina de los Santos, she having ceased to be such administratrix by order of the probate court dated July 6, 1949, which accepted her resignation filed almost two years ago. Appellants now assign this as error.

The fact that Ignacia Lao tendered her resignation as administratrix on August 6, 1947 and that her resignation was approved by the court on July 6, 1949, relieving her as administratrix, is not disputed. Not having the character of administratrix on August 4, 1949, when she filed this action, she had no legal capacity to sue. And although she subsequently appealed from the order of the court accepting her resignation, this did not cure her incapacity because the appeal was later dismissed by the Supreme Court. This error, therefore, has become moot. Another ground on which the lower court based its order of dismissal is that Ignacia Lao and Domingo Lao were suing as heirs of the deceased Albina de los Santos to recover the title and possession of a property which formed part of the estate which, according to the court, they have no right to do unless such property has been assigned to them as their share In the Inheritance. This is also assigned as error. Again we find no error in this respect. Section 8, Rule 88, of the Rules of Court, bars the filing of an action by an heir to recover the title or possession of lands belonging to the estate until there is an order of the probate court assigning said lands to such heir. In other words, there oust be first a partition of the estate, and delivery of the latter to the heir. The reasons for this rule are aptly stated by former Chief Justice Moran as follows: "An executor or administrator who assumes the trust, takes possession of the property left by the decedent for the purpose of paying debts. While his debts are undetermined and unpaid, no residue may be settled for distribution among the heirs and devisees. Consequently, before distribution is made or before any residue is known, the heirs, or devisees have no cause of action against the executor or administrator for recovery of the property left by the deceased." (II Moran, Comments on the Rules of Court, p. 416). Here, there has been so far no partition of the estate. Precisely the property was sold as a preliminary step to partition. The sale was made by express authority of the court on the strength of the petition of the heirs themselves. Including the now appellant Ignacia Lao. The sale was made by the two administratrices of the estate. The terms of the sale were more than what the heirs expected. The authority was to sell the property for P250,000, and yet Francisco Dee paid P260,000. The heirs, therefore, have no reason to complain. In any event, under the rule, only the two administratrices of the estate can Impugn the validity of the sale, and we doubt if this can be done, for the court would not sanction the undoing of what it has been accomplished through its own express authority. This is not, therefore, a case which comes under the exception of the rule that "when the executor or administrator is unwilling or fails or refuses to act, in which event the heirs may act in his place" (Pascual v. Pascual, Vol. I, Off. Gaz., No. 6 [1942] p. 342). Let us now come to the crucial error assigned by appellants, which refers to the conclusion of the lower court that the cause of action of the complaint based on the alleged ground of fraud employed on Ignacia Lao is already barred by a prior judgment for the reason that the same extrinsic fraud had already been passed upon by the probate court and the Supreme Court. For an enlightened discussion of this error there is need to make a brief narration of the background which led the court to conclude that the cause of action based on the alleged extrinsic fraud is already barred by a prior judgment. The record shows that on May 28, 1948, the administratrices of the estate of Albina de los Santos, Maria Lao and Ignacia Lao, with the express conformity of the other heirs Antonio and Alexandra Lao, filed a motion to sell the property in question. This was opposed by the heir Domingo Lao. This opposition notwithstanding, the court issued an order authorizing the sale for not less than P250,000. On July 22, 1948, Domingo Lao filed a motion for reconsideration. This motion was denied. Domingo Lao filed another motion for reconsideration. This motion was also denied. From these orders no appeal was interposed. On January 28, 1949, Maria Lao, a co-administratrix, informed the court that the property was sold to Francisco Dee for P260,000, and prayed that the sale be approved. By order of January 28, 1949, the sale was approved.

On January 31, 1949, Domingo Lao filed an urgent petition for revocation of the approval of the deed of sale, to which the vendee objected. On February 23, 1949, the court denied the petition as entirely without merit. On February 28, 1949, Domingo Lao filed another motion for reconsideration through a new counsel. This time, the motion was opposed not only by the vendee, but by his co-heirs Maria Lao and Alejandra Lao. On March 10, 1949, the court again denied the motion for reconsideration. On March 26, 1949, Domingo Lao filed a petition for certiorari in the Supreme Court praying for the annulment of the order of approval of the sale in favor of Francisco Dee, as well as for the annulment of the deed of sale. On April 18, 1949, the Supreme Court dismissed the petition for lack of merit. On May 3, 1949. Domingo Lao filed a motion for reconsideration alleging for the first time that Ignacia Lao was the victim of fraud and misrepresentation by her co-administratrix Maria Lao and her attorney. He also claimed that Ignacia Lao was likewise the victim of fraud on the part of the vendee, Francisco Dee, as regards his Filipino citizenship. The Supreme Court denied the motion for reconsideration. On May 20, 1949, Domingo Lao filed another motion for reconsideration disputing the validity of the sale on the ground that a special administrator does not have power to sell real property belonging to the estate. By resolution of June 23, 1949, this motion was also denied. On June 27, 1949, Domingo Lao, Antonio Lao and Ignacia Lao filed a motion in the probate proceedings for the annulment of the same order based on the same ground of extrinsic fraud. To this motion Francisco Dee filed an opposition, aid on July 2, 1949, the court issued an omnibus order denying the motion for lack of merit. A motion for reconsideration was filed by petitioner, and was again opposed by Francisco Dee, and on July 20, 1949, the court denied the motion stating that "no further petition or motion with respect to this matter will be entertained". No appeal was interposed to these orders of the probate court. As may be seen, the order of the court approving the deed of sale in favor of Francisco Dee was issued on January 28, 1949. This is the order which was assailed by Domingo Lao in several motions he filed in the probate court and in a petition for certiorari he filed in the Supreme Court. As may be noticed, Domingo Lao made no less than six attempts to obtain the revocation of said order in the probate court, alleging varied grounds, some of which are the same as those on which the present action is based, and made similar attempts to obtain the same relief in the Supreme Court, but all proved futile, inasmuch as both the probate court and the Supreme Court found flimsy the grounds on which the motions were based. It should be particularly noted that when the alleged fraud was raised for the first time before the Supreme Court, Domingo Lao attached to his motion for reconsideration no less than six exhibits in an attempt to substantiate the fraud allegedly employed on Ignacia Lao, one of them being an affidavit of Ignacia Lao herself, and the other an affidavit of another heir Antonio Lao. But in spite of those exhibits, the Supreme Court found the claim not meritorious. It should also be mentioned that when Domingo Lao made another attempt to annul the order approving the sale in the probate court, after his several attempts to secure the same purpose in the Supreme Court had failed, he was Joined by his co-heirs Antonio Lao and Ignacia Lao, and attached to their motion for annulment the same exhibits they submitted to the Supreme Court. This time they made a serious attempt to prove their charges of fraud. But again they failed to convince the court, as shown by the fact that it denied the motion with the admonition that "no further petition or motion with respect to this matter will be entertained". The court apparently did not believe the charges of fraud and must have found them to be mere alibi to harass the other heirs and the vendee and frustrate the sale. This is reflected in the following passages of the order of the probate court: "The order of January 29, 1949 was assailed in a petition for certiorari (L-2891) filed In the Supreme Oourt in March or April, 1949. The ground now invoiced there have been taken into consideration by the Supreme Court in summarily dismissing the petition. Prior to the filing of the petition for certiorari, petitioner Domingo Lao moved for a reconsideration of the order of January 29, 1949 but no mention of fraud was made In his motion although the alleged fraud already existed

at that time (February 28, 1949, date of the filing of the motion for reconsideration) as maybe inferred from the dates mentioned in Exhibits "E" and "F" of the motion now under consideration. The denial of the petition for certiorari is conclusive upon the validity of the order of this Court of January 29, 1949, approving the sale. The grounds now invoked have been considered by the Supreme Court in denying the petition. The alleged fraud already existed at the time the motion for reconsideration was filed by Domingo Lao on February 28, 1949 and can no longer be entertained now especially after it has been invoked in the petition for certiorari". It, therefore, appears that the questions now involved in this case had been passed upon once by the Supreme Court and once by the probate court and were both decided against the pretense of the herein appellants. While it may be contended that the resolution of the Supreme Court denying the annulment of the order approving the sale on the ground of extrinsic fraud does not constitute res judicata because it has no jurisdiction to pass on that question, the issue therein being merely excess of Jurisdiction, or abuse of discretion, however, it cannot be denied that the omnibus order of the probate court dated July 2, 1949, has a decisive effect. The probate court had jurisdiction to act on that matter. The question was raised by the same appellants herein, who were Joined by their co-heir Antonio Lao, and the same was opposed by the same parties who now stand as appellees. The movants presented evidence to substantiate their charges of fraud. The decision was adverse to them. The order became final for lack of appeal. That order, therefore, has now the effect of res judicata, there being identity of parties and of subject matter. That order bars the present action. Having reached the foregoing conclusion, we do not deem it necessary to discuss the other errors assigned by the appellants. Wherefore, the decision appealed from is hereby affirmed, with costs against the appellants.

[ G.R. No. L-8437, November 28, 1956 ]

ESTATE OP K. H. HBMADY, DECEASED, VS. LUZON SURETY CO., INC. CLAIMANT AND APPELLANT.
Appeal by Luzon Surety Co., Inc., from an order of the Court of First Instance of Rizal, presided by Judge Hermogenes Caluag, dismissing its claim against the Estate of K. H. Hemady (Special roceeding No. Q-293) for failure to state a cause of action. The Luzon Surety Co. had filed a claim against the Estate based on twenty different indemnity agreements, or counter bonds, each subscribed by a distinct principal and by the deceased K. H. Hemady, a surety solidary guarantor) in all of them, in consideration of the Luzon Surety Co.'s of having guaranteed, the various principals in favor of different creditors. The twenty counterbonds, or indemnity agreements, all contained the following stipulations: "Premiums.As consideration for this suretyship, the undersigned jointly and severally, agree to pay the COMPANY the sum of _________________(P_____________) pesos, Philippines ' Currency, in advance as premium there of for every _______________ months or fractions thereof, this ___________ or any renewal or substitution thereof is in effect. Indemnity.The undersigned, jointly and severally, agree at all times to indemnify the company and keep it indemnified and hold and save it harmless from and against any and all damages, losses, coats, stamps, taxes, penalties, charges, and expenses of whatsoever kind and nature which the company shall or may, at any time sustain or incur in consequence of having become surety upon this bond or any extension, renewal, substitution or alteration thereof made at the instance of the undersigned or any of them or any order executed on behalf of the undersigned or any of them; and to pay, reimburse and make good to the company, its successors and assigns, all sums and amount of money which it or its representatives shall pay or cause to be paid, or become liable to pay, on account of the undersigned or any of them, of whatsoever kind and nature, including 15% of the amount involved in the litigation or other matters growing out of or connected therewith for counsel or attorney's fees, but in no case less than P25. It is hereby further agreed that in case of extension or renewal of this ___________we equally bind ourselves for the payment thereof under the same terms and conditions as above mentioned without the necessity of executing another indemnity agreement for the purpose and that we hereby equally waive our right to be notified of any renewal or extension of this____________ which may be granted under this indemnity agreement. Interest on amount paid by the Company.Any and all sums of money so paid by the company shall bear interest at the rate of 12% per annum which interest, if not paid, will be accummulated and added to the capital quarterly order to earn, the same interests as the capital and the total sum thereof, the capital and interest, shall be paid to the Company as soon as the Company shall have become liable therefore, whether it shall have paid out such sums of money or any part thereof or not. Waiver.It is hereby agreed upon by and between the undersigned that any question which may arise between them by reason of this document and which has to be submitted for decision to Courts of Justice shall be brought before the Court of competent jurisdiction in the City of Manila, waiving for this purpose any other venue. Our right to be notified of the acceptance and approval of this indemnity agreement is hereby likewise waived. Our Liability Hereunder.It shall not be necessary for the Company to bring suit .against the principal upon his default, or to exhaust the property of the principal, but the liability hereunder of the undersigned indemnitor shall be jointly and severally, a primary one, the same as that of the principal, and shall be exigible immediately upon the occurrence of such default." (Rec. App. pp. 98-102.)

The Luzon Surety Co., prayed for allowance, as a contingent claim, of the value of the twenty bonds it had executed in consideration of the counterbonds, and further asked for judgment for the unpaid premiums and documentary stamps affixed to the bonds, with 12 per cent interest thereon Before answer was filed, and upon motion of the administratrix of Hemady's estate, the lower court, by order of September 23, 1953, dismissed the claims of Luzon Surety Co., on two grounds: (1) that the premiums due and cost of documentary stamps were not contemplated under the indemnity agreements to be a part of the undertaking of the guarantor (Hemady), since they were not liabilities incurred after the execution of the counter-bonds; and (2) that "whatever losses may occur after Hemady's death, .are not chargeable to his estate, because upon his death he ceased to be guarantor." Taking up the latter point first, since it is the one more far reaching in effects, the reasoning of the court below ran as follows: "The administratrix further contends that upon the death of Hemady, his liability as a guarantor terminated, and therefore, in the absence of a showing that a loss or damage was suffered, the claim cannot be considered contingent. This Court believes that there is merit in this contention and finds support in Article 2046 of the new Civil Code. It should be noted that a new requirement has been added for a person to qualify as a guarantor, that is: integrity. As correctly pointed out by the Administratrix, integrity is something purely personal and is not transmissible. Upon the death of Hemady, his integrity was not transmitted to his estate or successors. Whatever loss therefore, may occur after Hemady's death, are not chargeable to his estate because upon his death he ceased to be a guarantor. Another clear and strong indication that the surety company has exclusively relied on the personality, character, honesty and integrity of the now deceased K. H. Hemady, was the fact that in the printed form of the indemnity agreement there is a paragraph entitled 'Security by way of first mortgage, which was expressly waived and renounced by the security company. The security company has not demanded from K. H. Hemady to comply with this requirement of giving security by way of firat mortgage. In the supporting papers of the claim presented by Luzon Surety Company, no real property was mentioned in the list of properties mortgaged which appears at the back of the indemnity agreement." (Rec. App., pp. 407408). We find this reasoning untenable. Under the present Civil Code (Article 1311), as well as under the Civil Code of 1889 (Article 1257), the rule is that:"Contracts take effect only as between the parties, their assigns and heirs, except in the case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law." While in our successional system the responsibility of the heirs for the debts of their decedent cannot exceed the value of the inheritance they receive from him, the principle remains intact that these heirs succeed not only to the rights of the deceased but also to his obligations. Articles 774 and 776 of the New Civil Code (and Articles 659 and 661 of the preceding one) expressely so provide, thereby confirming Article 1311 already qouted. "Art. 774.Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law." "Art. 776,The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death." In Mojica vs. Fernandez, 9 Phil. 403, this Supreme Court ruled:

"Under the Civil Code the heirs, by virtue of the rights of succession are subrogated to all the rights and obligations of the deceased (Article 661) and can not be regarded as third parties with respect to a contract to which the deceased was a party, touching the estate of the deceased (Barrios vs. Dolor, 2 Phil. 44). "The principle on which these decisions rest is not affected by the provisions of the new Code of Civil Procedure, and, in accordance with that principle, the heirs of a deceased person cannot be held to be "third persons" in relation to any contracts touching the real estate of their decedent which comes in to their hands by right of inheritance; they take such property subject to all the obligations resting thereon in the hands of him from whom they derive their rights." (See also Galasinao vs. Austria, 51 Off. Gaz. (No. 6) p. 2874 and de Guzman vs. Salak, 91 Phil., 265). The binding effect of contracts upon the heirs of the deceased party is not altered by the provision in our Rules of Court that money debts of a deceased must be liquidated and paid from his estate before the residue is distributed among said heirs (Rule 89). The reason is that whatever payment is thus made from the estate is ultimately a payment by the heirs and distributees, since the amount of the paid claim in fact diminishes or reduces the shares that the heirs would have been entitled to receive. Under our law, therefore, the general rule is that a party's contractual rights and obligations are transmissible to the successors. The rule is a consequence of the progressive "depersonalization" of patrimonial rights and duties that, as observed by Victorio Polacco, has characterized the history of these institutions? From the Roman concept of a relation from person to person, the obligation has evolved into a relation from patrimony to patrimony, with the persons occupying only a representative position;, barring those rare cases where the obligation is strictly personal, i.e., is contracted intuitu personae, in consideration of its performance by a specific person and by no other. The transition is marked by the disappearance of the imprisonment for debt. Of the three exceptions fixed by Article 1311, the nature of the obligation of the surety or guarantor does not warrant the conclusion that his peculiar individual qualities are contemplated as a principal inducement for the contract. What did the creditor Luzon Surety Co. expect of K. H. Hemady when it accepted the latter as surety in the counterbonds? Nothing but the reimbursement of the moneys that the Luzon Surety Co. might have to disburse on account of the obligations of the principal debtors. This reimbursement is a payment of a sum of money, resulting from an obligation to give; and to the Luzon Surety Co., it was indifferent that the reimbursement should be made by Hemady himself or by some one else in his behalf, so long as the money was paid to it. The second exception of Article 1311, p. 1, is intransmissibility by stipulation of the parties. Being exceptional and contrary to the general rule, this intransmissibility should not be easily implied, but must be expressly established, or at the very least, clearly inferable from the provisions of the contract itself, and the text of the agreements sued upon nowhere indicate that they are non-transferable. "(b) Intransmisibilidad por pacto.Lo general es la transmisibilidad de darechos y obligaciones; le excepcion, la intransmisibilidad. Mientras nada se diga en contrario impera el principio de la transmision, como elemento natural a toda relacion juridical salvo las personalisimas. Asi, para la no transmision, es menester el pacto expreso, porque si no, lo convenido ehtre partes trasciende a sus herederos. Siendo estos los continuadores de la personalidad del causante, sobre ellos recaen los efectos de los vinculos juridicos creados por sus antecesores, y para evitarld, si asi se quiere, es indispensable convention terminante en tal sentido. Por su esencia, el derecho y la obligacion tienden a ir mas alia de las personas que les dieron vida, y a ejercer presion sobre los sucesores de esa persona; cuando

no se quiera esto, se impone una eetipulacion limitativa expresamente de la transmisibilidad o de cuyos tirminos claramente se deduzca la concresion a del concreto a las mismas personas que lo otorgon." (Scaevola, Oodigo Civil, Tomo XX, p. 541-542) (Italics supplied.) Because under the law (Article 1311), a person who enters into a contract is deemed to have contracted for himself and hid heirs and assigns, it is unnecessary for him to expressly stipulate to that effect; hence, his failure to do so, is no sign that he intended his bargain to terminate upon his death. Similarly, that the Luzon Surety Co,. did not require bondsman Hemady to execute a mortgage indicates nothing more than the company's faith and confidence in the financial stability of the surety, but not that his obligation was strictly personal. The third exception to the transmissibility of obligations under Article 1311 exists when they are "not transmissible by operation of law". The provision makes reference to those cases where the law expresses that the rights or obligations are extinguished by death, as is the case in legal support (Article 300), parental authority (Article 327), usufruct (Article 603), contracts for a piece of work (Article 1726), partnership (Article 1830 and agency (Article 1919). By contract, the articles of the Civil Code that regulate guaranty or suretyship (Articles 2047 to 2084) contain no provision that the guaranty is extinguished upon the death of the guarantor or the surety. The lower court sought to infer such a limitation from Art. 2056, to the effect that "one who is obliged to furnish a guarantor must present a person who possesses integrity, capacity to bind himself, and sufficient property to answer for the obligation, which he guarantees. It will be noted, however, that the law requires these qualities to be present only at the time of the perfection of the contract of guaranty. It is self-evident that once the contract has become perfected and binding, the supervening incapacity of the guarantor would not operate to exonerate him of the eventual liability he has contracted; and if that be true of his capacity to bind himself, it should also be true of his integrity, which is a quality mentioned in the article alongside the capacity. The foregoing concept is confirmed by the next Article 2057, that runs as follows: "ART. 2057.If the guarantor should be convicted in first instance of a crime involving dishonesty or should become insolvent, the creditor may demand another who has all the qualifications required in the preceding article. The case is excepted where the creditor has required and stipulated that a specified person should be guarantor." From this article it should be immediately apparent that the supervening dishonesty of the guarantor (that is to say, the disappearance of his integrity after he has become bound) does not terminate the contract but merely entitles the creditor to demand a replacement of the guarantor. But the step remains optional in the creditor: it is his right, not his duty; he may waive it if he chooses, and hold the guarantor to his bargain. Hence Article. 2057 of the present Civil Code is incompatible with the trial court's stand that the requirement of integrity in the guarantor or surety makes the latter's undertaking strictly personal, so linked to his individual ity that the guaranty automatically terminates upon his death. The contracts of suretyship entered into by K. H. Hemady in favor of Luzon Surety Co. not being rendered intransmissible due to the nature of the undertaking, nor by the stipulations of the contracts themselves, nor by provision of law, his eventual liability thereunder necessarily passed upon his death to his heirs. The conT tracts, therefore, give rise to contingent claims provable against his estate under section 5, Rule 87 (2 Moran, 1952 ed., p. 437; Gaskell & Co. vs. Tan Sit, 43 Phil. 810, 814). "The most common example of the continent claim is that which arises when a person is bound as surety or guarantor for a principal who is insolvent or dead. Under the ordinary contract of suretyship the surety has no claim whatever against his principal until he himself pays something by way of satisfaction upon the obligation which is secured. When he does this, there instantly arises in favor of the surety the right to compel the principal to exonerate the surety. But until the surety has contributed something to the payment of the debt, . or has

performed the secured obligation in whole or in part, he has no right of action against anybodyno claim that could be reduced to judgment. (May vs. Vann, 15 Pla., 553; Gibson vs. Mithell, 16 Pla., 519; Maxey vs. Carter, 10 Yarg. [Tenn.J, 531 Reeves vs. Pulliam, 7 Baxt. [Tenn.], 119; Ernst vs. Nou, 63 Wis., 134.)" For defendant administratrix it is averred that the above doctrine refers to a case where the surety files claims against the estate of the principal debtor; and it is urged that .the rule does not apply to the case before us, where the late Hemady was a surety, not principal debtor. The argument evinces a superficial view of the relations between parties. If under the Gaskell ruling, the Luzon Surety Co., as guarantor, could file a contingent claim against the estate of the principal debtors if the latter should die, there is absolutely no reason why it could not file such a claim against the estate of Hemady, since Hemady is a solidary co-debtor of his principals. What the Luzon Surety Co. may claim from the estate of a principal debtor it may equally claim from the estate of Hemady, since, in view of the existing solidarity, the latter does not even enjoy the benefit of exhaustion of the assets of the principal debtor. The foregoing ruling is of course without prejudice to the remedies of the administratrix against the principal debtors under Articles 2071 and 2067 of the New Civil Code. Our conclusion is that the solidary guarantor's liability is not extinguished by his death, and that in such event, the Luzon Surety Co., had the right to file against the estate a contingent claim for reimbursement. It becomes unnecessary now to discuss the estate's liability for premiums and stamp taxes, because irrespective of the solution to this question, the Luzon Surety's claim did state a cause of action, and its dismissal was erroneous. Wherefore, the order appealed from is reversed, and the records are ordered remanded to the court of origin, with instructions to proceed in accordance with law. Costs against the Administratrix-Appellee. So ordered.

[ G. R. No. L-5064, February 26, 1953 ]

BIENVENIDO A. IBARLE, PLAINTIFF AND APPELLANT, VS. ESPERANZA, M. PO, DEFENDANT AND APPELLEE.
This action was commenced in the Court of First Instance of Cebu to annul a deed of sale conveying to the defendant, in consideration of Pl,700, one undivided half of a parcel of land which previously had been sold, along with the other half, by the same vendor to the plaintiff's grantors. Judgment was against the plaintiff. The case was submitted for decision upon an agreed statement of facts, the pertinent parts of which are thus summarized in the appealed decision: "1st.That Leonard J. Winstantley and Catalina Navarro were husband and wife, the former having died on June 6, 1946 leaving as heir the surviving spouse and some minor children; "2nd.That upon the death of L. J. Winstanley, he left a parcel of land described under Transfer Certificate of title No. 2391 of the Registry of Deeds of the Province of Cebu; "3rd.That the above mentioned property was a conjugal property; "4th.That on April 15, 1946, the surviving spouse Catalina Navarro Vda. de Winstanley sold the entire parcel of land to the spouses Maria Canoy and Roberto Canoy, alleging among other things, that she needed money for the support of her children; "5th.That on May 24, 1947, the spouses Maria Canoy and Roberto Canoy sold the same parcel of land to the plaintiff in this case named Bienvenido A. Ebarle; "6th.That the two deeds of sale referred to above were not registered and have never been registered up to date; "7th.That on January 17, 1948 surviving spouse Catalina Navarro Vda. de Winstanley, after her appointment as guardian of her children by this court (Special Proceeding No. 212-R) sold one-half of the land mentioned above to Esperanza M. Po, defendant in the instant case, which portion belongs to the children of the above named spouses." As stated by the trial Judge, the sole question for determination is the validity of the sale to Esperanza M. Po, the last purchaser. This question in turn depends upon the validity of the prior sale to Maria Canoy and Roberto Canoy. Article 657 of the old Civil Code provides: "The rights to the succession of a person are transmitted from the moment of his death." In a slightly different language, this article is incorporated in the new Civil Code as article 777. Manresa, commending on article 657 of the Civil Code of Spain, says: "The moment of death is the determining factor when the heirs acquire a definite right to the inheritance, whether such right be pure or contingent. It is immaterial whether a short or long period of time lapses between the death of the predecessor and the entry into possession of the property of the inheritance because the right is always deemed to be retroactive from the moment of death." (5 Manresa, 317.) The above provision and comment make it clear that when Catalina Navarro Vda. de Winstanley sold the entire parcel to the Canoy spouses, one-half of it already belonged to the seller's children. No formal or judicial declaration being needed to confirm the children's title, it follows that the first sale was null and void in so far as it included the children's share. On.the other hand, the sale to the defendant having been made by authority of the competent court was undeniably legal and effective. The fact that it has not been recorded is of no consequence. If registration were necessary, still the non-registration would not avail.the plaintiff because it was due to no other cause than his own opposition. The decision will be affirmed subject to the reservation, made in said decision, of the right of the plaintiff and/or the Canoy spouses to bring such action against Catalina Navarro Vda. de Winstanley as may be appropriate for such damages as they may have incurred by reason of the voiding of the sale in their favor.

[ G.R. No. 10474, March 29, 1916 ]

FRANCISCO OSORIO Y GARCIA, PLAINTIFF AND APPELLEE, VS. SOLEDAD OSORIO AND VICENTE FERNANDEZ, DEFENDANTS AND APPELLANTS.
An appeal by bill of exceptions, raised by counsel for defendants from the judgment of September 10, 1914, in which the Court of First Instance of Cavite held that plaintiff, Francisco Osorio y Garcia, is a natural, recognized son of Francisco Osorio y Reyes and ordered that the defendant spouses recognize plaintiff as a natural son of Francisco Osorio y Reyes, duly entitled to share in the latter's estate in the proportion determined by law, and to the enjoyment of such other rights as are inherent in his said status of natural, recognized son; with the costs against defendants. On January 29, 1914, counsel for Francisco Osorio y Garcia filed a written complaint in the Court of First Instance of Cavite, in which he alleged that plaintiff is a natural son of one Francisco Osorio y Reyes who died in 1896; that said Francisco Osorio y Garcia has been in continuous possession of the status of natural son of said Osorio y Reyes, as proven by direct acts of the latter and of his family; that the defendant Soledad Osorio is the lawful daughter and lawful heir of said Francisco Osorio y Reyes and is married to Vicente T. Fernandez, for which reason the latter was included as defendant; and that said Francisco Osorio y Reyes left at his death real and personal property, specified and described in the fourth paragraph of the complaint and now in the possession of Soledad Osorio. Said counsel petitioned that as plaintiff was a minor Joaquin Luciano be appointed by the court as his curator ad litem; that the defendant Soledad Osorio be ordered to recognize plaintiff as a natural son of said Francisco Osorio y Reyes, deceased, and as entitled to share in his father's estate; and, furthermore, that said defendant be ordered to furnish subsistence to plaintiff in such amount as the court might deem proper to fix. The demurrer interposed by counsel for defendants to the aforementioned complaint having been overruled, the latter answered denying each and all the facts therein contained, and in special defense alleged that Francisco Osorio y Reyes during his lifetime did not perform any act tending to show his intention to recognize plaintiff, Francisco Osorio, as his natural son; that in no public document, will, or instrument whatever unquestionably executed by Francisco Osorio y Reyes, had the latter recognized plaintiff as his natural son, wherefore the defendant Soledad Osorio is not obliged to recognize him as such. Said counsel therefore prayed the court to render judgment absolving defendants from the complaint, with the costs against plaintiff. After the hearing and the introduction of evidence by both parties, the judgment aforementioned was rendered, to which defendants excepted and by written motion moved for a reopening of the case and a new trial. This motion was overruled and, the proper bill of exceptions having been filed, the same was approved and forwarded to, the clerk of this court. This case deals with the claim of the minor Francisco Osorio y Garcia to be recognized as a natural son of Francisco Osorio y Reyes, and we have to determine whether plaintiff has enjoyed the status of natural son who was duly recognized by his father during the latter's lifetime. There is no question of investigating plaintiff's paternity, and we are confined to deciding whether his father Osorio y Reves did by his acts lead his relatives and other persons not of his kin to believe that he recognized plaintiff as his natural son. The fact is not to be gainsaid that after Francisco Osorio y Reyes, the father of the defendant Soledad Osorio, became a widower, he maintained intimate relations with ConsolaciOn Garcia y Morillo, an unmarried woman, from which relations the boy Francisco Abdon Osorio y Garcia was born; therefore, pursuant to article 119 of the Civil Code and the provisions of General Orders No. 68 of the year 1899, the child begotten by said

widower, Osorio, and the spinster, Consolacion Garcia, should be reputed to be their natural son and, therefore, as capable of being legitimized or recognized by his parents (art. 119, Civ. Code). It is also an unquestionable fact, as evidenced by the baptismal certificate Exhibit A, issued and attested by the former acting parish priest of the pueblo of Cavite, Father Cecilio Damian, and admitted in evidence at the trial, that on August 13, 1893, the presbyter Pedro Manalac baptized in the parish of Cavite a boy born 15 days before, named Francisco Abdon, the natural son of Francisco Osorio y Reyes, a widower, and Maria Consolacion Garcia y Morillo, a spinster, the filiation of the baptized child appearing in a document found in the files of said parish and signed by said priest and two witnesses. Tomasa Osorio, a sister of plaintiff's father, corroborated the fact that the latter, her brother, while living, supported plaintiff and plaintiff's mother; that she and her parents respectively considered plaintiff to be their nephew and grandson; that witness considered plaintiff's mother to be her sister-in-law; and that plaintiff, after the death of his father Francisco Osorio y Reyes, lived in the house of his paternal grandparents and the latter had supported him and provided him with all the necessities of life. Plaintiff's own grandfather, Antonio Osorio, recognized him as such natural, recognized son of Francisco Osorio y Reyes, and, to make his filiation more manifest, bequeathed a part of his property to him, making the following provision in his will, probated as case No, 456 of the Court of First Instance of Cavite: "I also leave to my grandson, Francisco Osorio y Garcia, a natural son of my son Francisco Osorio, deceased, the property * * * (described in the will, Exhibit B.)" The acts performed by Francisco Osorio are unimpeachable proof that, from the time of his birth, he always considered plaintiff to be his natural son. Plaintiff's natural filiation has been confirmed by his grandfather and by a daughter of his grandfather, a sister of Francisco, his natural father. In a decision rendered by the supreme court of Spain on June 23, 1902, it was said that: "Recognition of the child as a natural child must be made if he has been in continuous possession of his filiation, proven by the attendance of his father at his baptism, in the certificate in which his name and that of his mother appear, though the document contains errors, and by his father's statement to various friends that the boy was his natural son, and by his father's always having attended to the care, education and support of his son." So that the plaintiff, Francisco Osorio y Garcia, according to the facts proven in this case and the law on the subject, is entitled to have his half sister Soledad Osorio, a legitimate daughter of the father of both of them, recognize him as being the natural, recognized son of Francisco Osorio y Reyes and as entitled to the rights granted him by law in respect to his deceased father's estate, all of which is in possession of the defendant spouses (agreement, p. 19 of the record). As for the rest, in view of the fact that appellants took no exception to the order overruling their motion for a new trial, an omission which makes it impossible for this court to review the evidence adduced by the parties, therefore, and conformably to the weight given by the lower court to the evidence, it is by all means proper to affirm the judgment appealed from, and, deeming the errors thereto assigned to have been refuted, we should for the foregoing reasons, affirm, as we do hereby affirm the said judgment, with the costs against appellants. So ordered.

G.R. No. L-21993

June 21, 1966

ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL., petitioners, vs. HON. JUAN DE BORJA, as Judge of the Court of First Instance of Bulacan, Branch III, ANATOLIA PANGILINAN and ADELAIDA JACALAN, respondents. Petitioners Angela, Maria, Abelardo and Antonio, surnamed Rodriguez, petition this Court for a writ of certiorari and prohibition to the Court of First Instance of Bulacan, for its refusal to grant their motion to dismiss its Special Proceeding No. 1331, which said Court is alleged to have taken cognizance of without jurisdiction. The facts and issues are succinctly narrated in the order of the respondent court, dated June 13, 1963 (Petition, Annex 0), in this wise: It is alleged in the motion to dismiss filed by Angela, Maria, Abelardo and Antonio Rodriguez, through counsel, that this Court "has no jurisdiction to try the above-entitled case in view of the pendency of another action for the settlement of the estate of the deceased Rev. Fr. Celestino Rodriguez in the Court of First Instance of Rizal, namely, Sp. Proceedings No. 3907 entitled 'In the matter of the Intestate Estate of the deceased Rev. Fr. Celestino Rodriguez which was filed ahead of the instant case". The records show that Fr. Celestino Rodriguez died on February 12, 1963 in the City of Manila; that on March 4, 1963, Apolonia Pangilinan and Adelaida Jacalan delivered to the Clerk of Court of Bulacan a purported last will and testament of Fr. Rodriguez; that on March 8, 1963, Maria Rodriguez and Angela Rodriguez, through counsel filed a petition for leave of court to allow them to examine the alleged will; that on March 11, 1963 before the Court could act on the petition, the same was withdrawn; that on March 12, 1963, aforementioned petitioners filed before the Court of First Instance of Rizal a petition for the settlement of the intestate estate of Fr. Rodriguez alleging, among other things, that Fr. Rodriguez was a resident of Paraaque, Rizal, and died without leaving a will and praying that Maria Rodriguez be appointed as Special Administratrix of the estate; and that on March 12, 1963 Apolonia Pangilinan and Adelaida Jacalan filed a petition in this Court for the probation of the will delivered by them on March 4, 1963. It was stipulated by the parties that Fr. Rodriguez was born in Paraaque, Rizal; that he was Parish priest of the Catholic Church of Hagonoy, Bulacan, from the year 1930 up to the time of his death in 1963; that he was buried in Paraaque, and that he left real properties in Rizal, Cavite, Quezon City and Bulacan. The movants contend that since the intestate proceedings in the Court of First Instance of Rizal was filed at 8:00 A.M. on March 12, 1963 while the petition for probate was filed in the Court of First Instance of Bulacan at 11:00 A.M. on the same date, the latter Court has no jurisdiction to entertain the petition for probate, citing as authority in support thereof the case of Ongsingco Vda. de Borja vs. Tan and De Borja, G.R. No. 7792, July 27, 1955. The petitioners Pangilinan and Jacalan, on the other hand, take the stand that the Court of First Instance of Bulacan acquired jurisdiction over the case upon delivery by them of the will to the Clerk of Court on March 4, 1963, and that the case in this Court therefore has precedence over the case filed in Rizal on March 12, 1963. The Court of First Instance, as previously stated denied the motion to dismiss on the ground that a difference of a few hours did not entitle one proceeding to preference over the other; that, as early as March 7, movants were aware of the existence of the purported will of Father Rodriguez, deposited in the Court of Bulacan, since they filed a petition to examine the same, and that movants clearly filed the intestate proceedings in Rizal "for no other purpose than to prevent this Court (of Bulacan) from exercising jurisdiction over the probate proceedings". Reconsideration having been denied, movants, now petitioners, came to this Court, relying principally on Rule 73, section 1 of the Rules of Court, and invoking our ruling in Ongsingco vs. Tan and De Borja, L-7792, July 27, 1955. SECTION 1. Where estate of deceased persons settled. If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise

jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, as far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. We find this recourse to be untenable. The jurisdiction of the Court of First Instance of Bulacan became vested upon the delivery thereto of the will of the late Father Rodriguez on March 4, 1963, even if no petition for its allowance was filed until later, because upon the will being deposited the court could, motu proprio, have taken steps to fix the time and place for proving the will, and issued the corresponding notices conformably to what is prescribed by section 3, Rule 76, of the Revised Rules of Court (Section 3, Rule 77, of the old Rules): SEC. 3. Court to appoint time for proving will. Notice thereof to be published. When a will is delivered to, or a petition for the allowance of a will is filed in, the Court having jurisdiction, such Court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published three (3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province. But no newspaper publication shall be made where the petition for probate has been filed by the testator himself. The use of the disjunctive in the words "when a will is delivered to OR a petition for the allowance of a will is filed" plainly indicates that the court may act upon the mere deposit therein of a decedent's testament, even if no petition for its allowance is as yet filed. Where the petition for probate is made after the deposit of the will, the petition is deemed to relate back to the time when the will was delivered. Since the testament of Fr. Rodriguez was submitted and delivered to the Court of Bulacan on March 4, while petitioners initiated intestate proceedings in the Court of First Instance of Rizal only on March 12, eight days later, the precedence and exclusive jurisdiction of the Bulacan court is incontestable.
1wph1.t

But, petitioners object, section 3 of revised Rule 76 (old Rule 77) speaks of a will being delivered to "the Court having jurisdiction," and in the case at bar the Bulacan court did not have it because the decedent was domiciled in Rizal province. We can not disregard Fr. Rodriguez's 33 years of residence as parish priest in Hagonoy, Bulacan (1930-1963); but even if we do so, and consider that he retained throughout some animus revertendi to the place of his birth in Paraaque, Rizal, that detail would not imply that the Bulacan court lacked jurisdiction. As ruled in previous decisions, the power to settle decedents' estates is conferred by law upon all courts of first instance, and the domicile of the testator only affects the venue but not the jurisdiction of the Court (In re Kaw Singco, 74 Phil. 239; Reyes vs. Diaz, 73 Phil. 484; Bernabe vs. Vergara, 73 Phil. 676). Neither party denies that the late Fr. Rodriguez is deceased, or that he left personal property in Hagonoy, province of Bulacan (t.s.n. p. 46, hearing of June 11, 1963, Annex "H", Petition, Rec., p. 48). That is sufficient in the case before us. In the Kaw Singco case (ante) this Court ruled that: "... If we consider such question of residence as one affecting the jurisdiction of the trial court over the subject-matter, the effect shall be that the whole proceedings including all decisions on the different incidents which have arisen in court will have to be annulled and the same case will have to be commenced anew before another court of the same rank in another province. That this is of mischievous effect in the prompt administration of justice is too obvious to require comment. (Cf. Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206, December 31, 1942). Furthermore, section 600 of Act No. 190, providing that the estate of a deceased person shall be settled in the province where he had last resided, could not have been intended as defining the jurisdiction of the probate court over the subject matter, because such legal provision is contained in a law of procedure dealing merely with procedural matters, and, as we have said time and again, procedure is one thing and jurisdiction over the subject matter is another. (Attorney General vs. Manila Railroad Company, 20 Phil. 523.) The law of jurisdiction Act No. 136, Section 56, No. 5 confers upon Courts of First Instance jurisdiction over all probate cases independently of the place of residence of the deceased.1 Since, however, there are many Courts of First Instance in the Philippines, the Law of Procedure, Act No. 190, section 600, fixes the venue or the place where each case shall be brought. Thus, the place of residence of the deceased is not an element of jurisdiction over the subject matter but merely of venue. And it is upon this ground that in the new Rules of Court the province where the estate of a deceased person shall be settled is properly called "venue" (Rule 75, section 1.) Motion for reconsideration is denied.

The estate proceedings having been initiated in the Bulacan Court of First Instance ahead of any other, that court is entitled to assume jurisdiction to the exclusion of all other courts, even if it were a case of wrong venue by express provisions of Rule 73 (old Rule 75) of the Rules of Court, since the same enjoins that: The Court first taking cognizance of the settlement of the estate of a decedent shall exercise jurisdiction to the exclusion of all other courts. (Sec. 1) This disposition presupposes that two or more courts have been asked to take cognizance of the settlement of the estate. Of them only one could be of proper venue, yet the rule grants precedence to that Court whose jurisdiction is first invoked, without taking venue into account. There are two other reasons that militate against the success of petitioners. One is that their commencing intestate proceedings in Rizal, after they learned of the delivery of the decedent's will to the Court of Bulacan, was in bad faith, patently done with a view to divesting the latter court of the precedence awarded it by the Rules. Certainly the order of priority established in Rule 73 (old Rule 75) was not designed to convert the settlement of decedent's estates into a race between applicants, with the administration of the properties as the price for the fleetest. The other reason is that, in our system of civil law, intestate succession is only subsidiary or subordinate to the testate, since intestacy only takes place in the absence of a valid operative will. Says Article 960 of the Civil Code of the Philippines: ART. 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property in which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil. 307, "only after final decision as to the nullity of testate succession could an intestate succession be instituted in the form of pre-established action". The institution of intestacy proceedings in Rizal may not thus proceed while the probate of the purported will of Father Rodriguez is pending. We rule that the Bulacan Court of First Instance was entitled to priority in the settlement of the estate in question, and that in refusing to dismiss the probate. proceedings, said court did not commit any abuse of discretion. It is the proceedings in the Rizal Court that should be discontinued. Wherefore, the writ of certiorari applied for is denied. Costs against petitioners Rodriguez.