Republic SUPREME Manila EN BANC

of

the

Philippines COURT

G.R. No. L-7188 August 9, 1954 In re: Will and Testament of the deceased REVEREND SANCHO ABADIA. SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-appellees, vs. MIGUEL ABADIA, ET AL., oppositorsappellants. Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G. Advincula for appellants. C. de la Victoria for appellees. MONTEMAYOR, J.: On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a document purporting to be his Last Will and Testament now marked Exhibit "A". Resident of the City of Cebu, he died on January 14, 1943, in the municipality of Aloguinsan, Cebu, where he was an evacuee. He left properties estimated at P8,000 in value. On October 2, 1946, one Andres Enriquez, one of the legatees in Exhibit "A", filed a petition for its probate in the Court of First Instance of Cebu. Some cousins and nephews who would inherit the estate of the deceased if he left no will, filed opposition. During the hearing one of the attesting witnesses, the other two being dead, testified without contradiction that in his presence and in the presence of his co-witnesses, Father Sancho wrote out in longhand Exhibit "A" in Spanish which the testator spoke and understood; that he (testator) signed on he left hand margin of the front page of each of the three folios or sheets of which the document is composed, and numbered the same with Arabic numerals, and finally signed his name at the end of his writing at the last page, all this, in the presence of the three attesting witnesses after telling that it was his last will and that the said three witnesses signed their names on the last page after the attestation clause in his presence and in the presence of each other. The oppositors did not submit any evidence. The learned trial court found and declared Exhibit "A" to be a holographic will; that it was in

the handwriting of the testator and that although at the time it was executed and at the time of the testator's death, holographic wills were not permitted by law still, because at the time of the hearing and when the case was to be decided the new Civil Code was already in force, which Code permitted the execution of holographic wills, under a liberal view, and to carry out the intention of the testator which according to the trial court is the controlling factor and may override any defect in form, said trial court by order dated January 24, 1952, admitted to probate Exhibit "A", as the Last Will and Testament of Father Sancho Abadia. The oppositors are appealing from that decision; and because only questions of law are involved in the appeal, the case was certified to us by the Court of Appeals. The new Civil Code (Republic Act No. 386) under article 810 thereof provides that a person may execute a holographic will which must be entirely written, dated and signed by the testator himself and need not be witnessed. It is a fact, however, that at the time that Exhibit "A" was executed in 1923 and at the time that Father Abadia died in 1943, holographic wills were not permitted, and the law at the time imposed certain requirements for the execution of wills, such as numbering correlatively each page (not folio or sheet) in letters and signing on the left hand margin by the testator and by the three attesting witnesses, requirements which were not complied with in Exhibit "A" because the back pages of the first two folios of the will were not signed by any one, not even by the testator and were not numbered, and as to the three front pages, they were signed only by the testator. Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41 Phil., 875, 879, referring to the failure of the testator and his witnesses to sign on the left hand margin of every page, said: . . . . This defect is radical and totally vitiates the testament. It is not enough that the signatures guaranteeing authenticity should appear upon two folios or leaves; three pages having been written on, the authenticity of all three of them should be guaranteed by the signature of the alleged testatrix and her witnesses.

And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same requirement, this Court declared: From an examination of the document in question, it appears that the left margins of the six pages of the document are signed only by Ventura Prieto. The noncompliance with section 2 of Act No. 2645 by the attesting witnesses who omitted to sign with the testator at the left margin of each of the five pages of the document alleged to be the will of Ventura Prieto, is a fatal defect that constitutes an obstacle to its probate. What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new Civil Code which not allows holographic wills, like Exhibit "A" which provisions were invoked by the appellee-petitioner and applied by the lower court? But article 795 of this same new Civil Code expressly provides: "The validity of a will as to its form depends upon the observance of the law in force at the time it is made." The above provision is but an expression or statement of the weight of authority to the affect that the validity of a will is to be judged not by the law enforce at the time of the testator's death or at the time the supposed will is presented in court for probate or when the petition is decided by the court but at the time the instrument was executed. One reason in support of the rule is that although the will operates upon and after the death of the testator, the wishes of the testator about the disposition of his estate among his heirs and among the legatees is given solemn expression at the time the will is executed, and in reality, the legacy or bequest then becomes a completed act. This ruling has been laid down by this court in the case of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should be followed. Of course, there is the view that the intention of the testator should be the ruling and controlling factor and that all adequate remedies and interpretations should be resorted to in order to carry out said intention, and that when statutes passed after the execution of the will and after the death of the testator lessen the formalities required by law for the execution of wills, said subsequent statutes should be applied so as to validate wills defectively executed according to the law in force at the time of execution. However, we should not forget that from the day of the death of the testator, if he leaves a will,

the title of the legatees and devisees under it becomes a vested right, protected under the due process clause of the constitution against a subsequent change in the statute adding new legal requirements of execution of wills which would invalidate such a will. By parity of reasoning, when one executes a will which is invalid for failure to observe and follow the legal requirements at the time of its execution then upon his death he should be regarded and declared as having died intestate, and his heirs will then inherit by intestate succession, and no subsequent law with more liberal requirements or which dispenses with such requirements as to execution should be allowed to validate a defective will and thereby divest the heirs of their vested rights in the estate by intestate succession. The general rule is that the Legislature can not validate void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193). In view of the foregoing, the order appealed from is reversed, and Exhibit "A" is denied probate. With costs. Republic SUPREME Manila EN BANC G.R. No. L-5064 February 27, 1953 of the Philippines COURT

BIENVENIDO A. IBARLE, plaintiff-appellant, vs. ESPERANZA M. PO, defendant-appellant. Quirico del Mar for appellant. Daniel P. Tumulak and Conchita F. Miel appellee. TUASON, J.: This action commenced in the Court of First Instance of Cebu to annul a deed of sale conveying to the defendant, in consideration of P1,700, 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. Winstanley and Catalina Navarro were husband and wife, the former having died on June 6, 1946 leaving heir the surviving spouse and some minor children; 2nd. hat 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, 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 the 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 ale 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 plaintitff 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. Paras, C.J., Feria, Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ.,concur. Republic SUPREME Manila of the Philippines COURT

FIRST DIVISION G.R. No. 147145 January 31, 2005

TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONGNOBLE, petitioner, vs.

ALIPIO ABAJA ABELLAR, respondents. DECISION CARPIO, J.: The Case

and

NOEL

as SP No. 071 (312-8669), for the probate of the last will and testament of Toray. Caponong, Joel Abada, et al., and Levi Tronco, et al. opposed the petition on the same grounds they cited in SP No. 070 (313-8668). On 20 September 1968, Caponong filed a petition7 before the RTC-Kabankalan, docketed as SP No. 069 (309), praying for the issuance in his name of letters of administration of the intestate estate of Abada and Toray. In an Order dated 14 August 1981, the RTCKabankalan admitted to probate the will of Toray. Since the oppositors did not file any motion for reconsideration, the order allowing the probate of Torays will became final and executory.8 In an order dated 23 November 1990, the RTCKabankalan designated Belinda CaponongNoble ("Caponong-Noble") Special Administratrix of the estate of Abada and Toray.9 Caponong-Noble moved for the dismissal of the petition for probate of the will of Abada. The RTC-Kabankalan denied the motion in an Order dated 20 August 1991.10 Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S. Layumas discovered that in an Order dated 16 March 1992, former Presiding Judge Edgardo Catilo had already submitted the case for decision. Thus, the RTC-Kabankalan rendered a Resolution dated 22 June 1994, as follows: There having been sufficient notice to the heirs as required by law; that there is substantial compliance with the formalities of a Will as the law directs and that the petitioner through his testimony and the deposition of Felix Gallinero was able to establish the regularity of the execution of the said Will and further, there being no evidence of bad faith and fraud, or substitution of the said Will, the Last Will and Testament of Alipio Abada dated June 4, 1932 is admitted and allowed probate. As prayed for by counsel, Noel Abbellar11 is appointed administrator of the estate of Paula Toray who shall discharge his duties as such after letters of administration shall have been issued in his favor and after taking his oath and filing a bond in the amount of Ten Thousand (P10,000.00) Pesos.

Before the Court is a petition for review1 assailing the Decision2 of the Court of Appeals of 12 January 2001 in CA-G.R. CV No. 47644. The Court of Appeals sustained the Resolution3 of the Regional Trial Court of Kabankalan, Negros Occidental, Branch 61 ("RTC-Kabankalan"), admitting to probate the last will and testament of Alipio Abada ("Abada"). The Antecedent Facts Abada died sometime in May 1940.4 His widow Paula Toray ("Toray") died sometime in September 1943. Both died without legitimate children. On 13 September 1968, Alipio C. Abaja ("Alipio") filed with the then Court of First Instance of Negros Occidental (now RTCKabankalan) a petition,5 docketed as SP No. 070 (313-8668), for the probate of the last will and testament ("will") of Abada. Abada allegedly named as his testamentary heirs his natural children Eulogio Abaja ("Eulogio") and Rosario Cordova. Alipio is the son of Eulogio. Nicanor Caponong ("Caponong") opposed the petition on the ground that Abada left no will when he died in 1940. Caponong further alleged that the will, if Abada really executed it, should be disallowed for the following reasons: (1) it was not executed and attested as required by law; (2) it was not intended as the last will of the testator; and (3) it was procured by undue and improper pressure and influence on the part of the beneficiaries. Citing the same grounds invoked by Caponong, the alleged intestate heirs of Abada, namely, Joel, Julian, Paz, Evangeline, Geronimo, Humberto, Teodora and Elena Abada ("Joel Abada, et al."), and Levi, Leandro, Antonio, Florian, Hernani and Carmela Tronco ("Levi Tronco, et al."), also opposed the petition. The oppositors are the nephews, nieces and grandchildren of Abada and Toray. On 13 September 1968, Alipio filed another petition6 before the RTC-Kabankalan, docketed

Mrs. Belinda C. Noble, the present administratrix of the estate of Alipio Abada shall continue discharging her duties as such until further orders from this Court. SO ORDERED.12

The Ruling of the Court The Court of Appeals did not err in sustaining the RTC-Kabankalan in admitting to probate the will of Abada. The Applicable Law

The RTC-Kabankalan ruled on the only issue raised by the oppositors in their motions to dismiss the petition for probate, that is, whether the will of Abada has an attestation clause as required by law. The RTC-Kabankalan further held that the failure of the oppositors to raise any other matter forecloses all other issues. Not satisfied with the Resolution, CaponongNoble filed a notice of appeal. In a Decision promulgated on 12 January 2001, the Court of Appeals affirmed the Resolution of the RTC-Kabankalan. The appellate court found that the RTC-Kabankalan properly admitted to probate the will of Abada. Hence, the present recourse by CaponongNoble. The Issues The petition raises the following issues: 1. What laws apply to the probate of the last will of Abada; 2. Whether the will of Abada requires acknowledgment before a notary public;13 3. Whether the will must expressly state that it is written in a language or dialect known to the testator; 4. Whether the will of Abada has an attestation clause, and if so, whether the attestation clause complies with the requirements of the applicable laws; 5. Whether Caponong-Noble is precluded from raising the issue of whether the will of Abada is written in a language known to Abada; 6. Whether evidence aliunde may be resorted to in the probate of the will of Abada.

Abada executed his will on 4 June 1932. The laws in force at that time are the Civil Code of 1889 or the Old Civil Code, and Act No. 190 or the Code of Civil Procedure14 which governed the execution of wills before the enactment of the New Civil Code. The matter in dispute in the present case is the attestation clause in the will of Abada. Section 618 of the Code of Civil Procedure, as amended by Act No. 2645,15 governs the form of the attestation clause of Abadas will.16Section 618 of the Code of Civil Procedure, as amended, provides: SEC. 618. Requisites of will. No will, except as provided in the preceding section,17 shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be written in the language or dialect known by the testator and signed by him, or by the testators name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, on the left margin, and said pages shall be numbered correlatively in letters placed on the upper part of each sheet. The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other. Requisites of a Will under the Code of Civil Procedure Under Section 618 of the Code of Civil Procedure, the requisites of a will are the following:

(1) The will must be written in the language or dialect known by the testator; (2) The will must be signed by the testator, or by the testators name written by some other person in his presence, and by his express direction; (3) The will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of each other; (4) The testator or the person requested by him to write his name and the instrumental witnesses of the will must sign each and every page of the will on the left margin; (5) The pages of the will must be numbered correlatively in letters placed on the upper part of each sheet; (6) The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page of the will, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the witnesses witnessed and signed the will and all pages of the will in the presence of the testator and of each other. Caponong-Noble asserts that the will of Abada does not indicate that it is written in a language or dialect known to the testator. Further, she maintains that the will is not acknowledged before a notary public. She cites in particular Articles 804 and 805 of the Old Civil Code, thus: Art. 804. Every will must be in writing and executed in [a] language or dialect known to the testator. Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. xxx18 Caponong-Noble actually cited Articles 804 and 806 of the New Civil Code.19 Article 804 of the Old Civil Code is about the rights and obligations of administrators of the property of an absentee, while Article 806 of the Old Civil Code defines a legitime.

Articles 804 and 806 of the New Civil Code are new provisions. Article 804 of the New Civil Code is taken from Section 618 of the Code of Civil Procedure.20 Article 806 of the New Civil Code is taken from Article 685 of the Old Civil Code21 which provides: Art. 685. The notary and two of the witnesses who authenticate the will must be acquainted with the testator, or, should they not know him, he shall be identified by two witnesses who are acquainted with him and are known to the notary and to the attesting witnesses. The notary and the witnesses shall also endeavor to assure themselves that the testator has, in their judgment, the legal capacity required to make a will. Witnesses authenticating a will without the attendance of a notary, in cases falling under Articles 700 and 701, are also required to know the testator. However, the Code of Civil Procedure22 repealed Article 685 of the Old Civil Code. Under the Code of Civil Procedure, the intervention of a notary is not necessary in the execution of any will.23 Therefore, Abadas will does not require acknowledgment before a notary public.
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Caponong-Noble points out that nowhere in the will can one discern that Abada knew the Spanish language. She alleges that such defect is fatal and must result in the disallowance of the will. On this issue, the Court of Appeals held that the matter was not raised in the motion to dismiss, and that it is now too late to raise the issue on appeal. We agree with CaponongNoble that the doctrine of estoppel does not apply in probate proceedings.24 In addition, the language used in the will is part of the requisites under Section 618 of the Code of Civil Procedure and the Court deems it proper to pass upon this issue. Nevertheless, Caponong-Nobles contention must still fail. There is no statutory requirement to state in the will itself that the testator knew the language or dialect used in the will.25 This is a matter that a party may establish by proof aliunde.26 Caponong-Noble further argues that Alipio, in his testimony, has failed, among others, to show that Abada knew or understood the contents of the will and the Spanish language used in the will. However, Alipio testified that Abada used to gather Spanishspeaking people in their place. In these

gatherings, Abada and his companions would talk in the Spanish language.27 This sufficiently proves that Abada speaks the Spanish language. The Attestation Clause of Abadas Will A scrutiny of Abadas will shows that it has an attestation clause. The attestation clause of Abadas will reads: Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y testamento en presencia de nosotros, habiendo tambien el testador firmado en nuestra presencia en el margen izquierdo de todas y cada una de las hojas del mismo. Y en testimonio de ello, cada uno de nosotros lo firmamos en presencia de nosotros y del testador al pie de este documento y en el margen izquierdo de todas y cada una de las dos hojas de que esta compuesto el mismo, las cuales estan paginadas correlativamente con las letras "UNO" y "DOS en la parte superior de la carrilla.28 Caponong-Noble proceeds to point out several defects in the attestation clause. CaponongNoble alleges that the attestation clause fails to state the number of pages on which the will is written. The allegation has no merit. The phrase "en el margen izquierdo de todas y cada una de las dos hojas de que esta compuesto el mismo" which means "in the left margin of each and every one of the two pages consisting of the same" shows that the will consists of two pages. The pages are numbered correlatively with the letters "ONE" and "TWO" as can be gleaned from the phrase "las cuales estan paginadas correlativamente con las letras "UNO" y "DOS." Caponong-Noble further alleges that the attestation clause fails to state expressly that the testator signed the will and its every page in the presence of three witnesses. She then faults the Court of Appeals for applying to the present case the rule on substantial compliance found in Article 809 of the New Civil Code.29 The first sentence of the attestation clause reads: "Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y testamento en presencia de nosotros, habiendo tambien el testador firmado en nuestra presencia en el margen izquierdo de todas y

cada una de las hojas del mismo." The English translation is: "Subscribed and professed by the testator Alipio Abada as his last will and testament in our presence, the testator having also signed it in our presence on the left margin of each and every one of the pages of the same." The attestation clause clearly states that Abada signed the will and its every page in the presence of the witnesses. However, Caponong-Noble is correct in saying that the attestation clause does not indicate the number of witnesses. On this point, the Court agrees with the appellate court in applying the rule on substantial compliance in determining the number of witnesses. While the attestation clause does not state the number of witnesses, a close inspection of the will shows that three witnesses signed it. This Court has applied the rule on substantial compliance even before the effectivity of the New Civil Code. InDichoso de Ticson v. De Gorostiza,30 the Court recognized that there are two divergent tendencies in the law on wills, one being based on strict construction and the other on liberal construction. In Dichoso, the Court noted thatAbangan v. Abangan,31 the basic case on the liberal construction, is cited with approval in later decisions of the Court. In Adeva vda. De Leynez v. Leynez,32 the petitioner, arguing for liberal construction of applicable laws, enumerated a long line of cases to support her argument while the respondent, contending that the rule on strict construction should apply, also cited a long series of cases to support his view. The Court, after examining the cases invoked by the parties, held: x x x It is, of course, not possible to lay down a general rule, rigid and inflexible, which would be applicable to all cases. More than anything else, the facts and circumstances of record are to be considered in the application of any given rule. If the surrounding circumstances point to a regular execution of the will, and the instrument appears to have been executed substantially in accordance with the requirements of the law, the inclination should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards its admission to probate, although the document may suffer from some imperfection of language, or other non-essential defect. x x x. An attestation clause is made for the purpose of preserving, in permanent form, a record of the

facts attending the execution of the will, so that in case of failure of the memory of the subscribing witnesses, or other casualty, they may still be proved. (Thompson on Wills, 2d ed., sec. 132.) A will, therefore, should not be rejected where its attestation clause serves the purpose of the law. x x x 33
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deduced that the attestation clause fulfills what the law expects of it.35 The last part of the attestation clause states "en testimonio de ello, cada uno de nosotros lo firmamos en presencia de nosotros y del testador." In English, this means "in its witness, every one of us also signed in our presence and of the testator." This clearly shows that the attesting witnesses witnessed the signing of the will of the testator, and that each witness signed the will in the presence of one another and of the testator. WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12 January 2001 in CA-G.R. CV No. 47644. SO ORDERED. Republic SUPREME Manila EN BANC G.R. No. L-22595 November 1, 1927 of the Philippines COURT

We rule to apply the liberal construction in the probate of Abadas will. Abadas will clearly shows four signatures: that of Abada and of three other persons. It is reasonable to conclude that there are three witnesses to the will. The question on the number of the witnesses is answered by an examination of the will itself and without the need for presentation of evidence aliunde. The Court explained the extent and limits of the rule on liberal construction, thus: [T]he so-called liberal rule does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision.They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself. They only permit a probe into the will, an exploration within its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results.34 (Emphasis supplied)
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Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee, vs. ANDRE BRIMO, opponent-appellant. Ross, Lawrence and Selph for appellant. Camus and Delgado for appellee.

The phrase "en presencia de nosotros" or "in our presence" coupled with the signatures appearing on the will itself and after the attestation clause could only mean that: (1) Abada subscribed to and professed before the three witnesses that the document was his last will, and (2) Abada signed the will and the left margin of each page of the will in the presence of these three witnesses. Finally, Caponong-Noble alleges that the attestation clause does not expressly state the circumstances that the witnesses witnessed and signed the will and all its pages in the presence of the testator and of each other. This Court has ruled: Precision of language in the drafting of an attestation clause is desirable. However, it is not imperative that a parrot-like copy of the words of the statute be made. It is sufficient if from the language employed it can reasonably be

ROMUALDEZ, J.: The partition of the estate left by the deceased Joseph G. Brimo is in question in this case. The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of the deceased, opposed it. The court, however, approved it. The errors which the oppositor-appellant assigns are: (1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the denial of the motion for reconsideration of the order approving the

partition; (4) the approval of the purchase made by the Pietro Lana of the deceased's business and the deed of transfer of said business; and (5) the declaration that the Turkish laws are impertinent to this cause, and the failure not to postpone the approval of the scheme of partition and the delivery of the deceased's business to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws. The appellant's opposition is based on the fact that the partition in question puts into effect the provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish nationality, for which reason they are void as being in violation or article 10 of the Civil Code which, among other things, provides the following: Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person whose succession is in question, whatever may be the nature of the property or the country in which it may be situated. But the fact is that the oppositor did not prove that said testimentary dispositions are not in accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.) It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he desires to be given an opportunity to present evidence on this point; so much so that he assigns as an error of the court in not having deferred the approval of the scheme of partition until the receipt of certain testimony requested regarding the Turkish laws on the matter. The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is discretionary with the trial court, and, taking into consideration that the oppositor was granted ample opportunity to introduce competent evidence, we find no abuse of discretion on the part of the court in this particular. There is, therefore, no evidence

in the record that the national law of the testator Joseph G. Brimo was violated in the testamentary dispositions in question which, not being contrary to our laws in force, must be complied with and executed.
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Therefore, the approval of the scheme of partition in this respect was not erroneous. In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee, inasmuch as he is one of the persons designated as such in will, it must be taken into consideration that such exclusion is based on the last part of the second clause of the will, which says: Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having been conferred upon me by conquest and not by free choice, nor by nationality and, on the other hand, having resided for a considerable length of time in the Philippine Islands where I succeeded in acquiring all of the property that I now possess, it is my wish that the distribution of my property and everything in connection with this, my will, be made and disposed of in accordance with the laws in force in the Philippine islands, requesting all of my relatives to respect this wish, otherwise, I annul and cancel beforehand whatever disposition found in this will favorable to the person or persons who fail to comply with this request. The institution of legatees in this will is conditional, and the condition is that the instituted legatees must respect the testator's will to distribute his property, not in accordance with the laws of his nationality, but in accordance with the laws of the Philippines. If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the herein oppositor who, by his attitude in these proceedings has not respected the will of the testator, as expressed, is prevented from receiving his legacy. The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil Code provides the following:

Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide. And said condition is contrary to law because it expressly ignores the testator's national law when, according to article 10 of the civil Code above quoted, such national law of the testator is the one to govern his testamentary dispositions. Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution of legatees in said will is unconditional and consequently valid and effective even as to the herein oppositor. It results from all this that the second clause of the will regarding the law which shall govern it, and to the condition imposed upon the legatees, is null and void, being contrary to law. All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing that said clauses are contrary to the testator's national law. Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees, and the scheme of partition submitted by the judicial administrator is approved in all other respects, without any pronouncement as to costs. So ordered. Republic SUPREME Manila EN BANC G.R. No. L-23678 June 6, 1967 of the Philippines COURT

vs. EDWARD A. BELLIS, ET AL., heirs-appellees. Vicente R. Macasaet and Jose D. Villena for oppositors appellants. Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al. Quijano and Arroyo for heirs-appellees W. S. Bellis, et al. J. R. Balonkita for appellee People's Bank & Trust Company. Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman. BENGZON, J.P., J.: This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein.
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The facts of the case are as follows: Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis. On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.
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TESTATE ESTATE OF AMOS G. BELLIS, deceased. PEOPLE'S BANK and TRUST COMPANY, executor. MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,

Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will was admitted to probate in the

Court of First Instance of Manila on September 15, 1958. The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it released from time to time according as the lower court approved and allowed the various motions or petitions filed by the latter three requesting partial advances on account of their respective legacies. On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition, the executor pursuant to the "Twelfth" clause of the testator's Last Will and Testament divided the residuary estate into seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages. On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the ground that they were deprived of their legitimes as illegitimate children and, therefore, compulsory heirs of the deceased. Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry receipt submitted on April 27, 1964 by the executor.1 After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an order overruling the oppositions and approving the executor's final account, report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not provide for legitimes.

Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply Texas law or Philippine law. In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death.2 So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here involved are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be presumed different from ours.3Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code. Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that ART. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may he the nature of the property and regardless of

the country wherein said property may be found. ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent. Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely, Congressdeleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate succession. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent. It is therefore evident that whatever public policy or good customs may be involved in our System of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones. Appellants would also point out that the decedent executed two wills one to govern his Texas estate and the other his Philippine estate arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that

his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code states said national law should govern. The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis. Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So ordered. Republic SUPREME Manila EN BANC G.R. No. L-16749 January 31, 1963 of the Philippines COURT

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED. ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased, Executor and Heir-appellees, vs. HELEN CHRISTENSEN GARCIA, oppositorappellant. M. R. Sotelo for executor and heir-appellees. Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant. LABRADOR, J.: This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N. Cusi, Jr., presiding, in Special Proceeding No. 622 of said court, dated September 14, 1949, approving among things the final accounts of the executor, directing the executor to reimburse Maria Lucy Christensen the amount of P3,600 paid by her to Helen Christensen Garcia as her legacy, and declaring Maria Lucy Christensen entitled to the residue of the property to be enjoyed during her lifetime, and in case of death without issue, one-half of said

residue to be payable to Mrs. Carrie Louise C. Borton, etc., in accordance with the provisions of the will of the testator Edward E. Christensen. The will was executed in Manila on March 5, 1951 and contains the following provisions: 3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years ago, and who is now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A. 4. I further declare that I now have no living ascendants, and no descendants except my above named daughter, MARIA LUCY CHRISTENSEN DANEY. xxx xxx xxx

possessed at my death and which may have come to me from any source whatsoever, during her lifetime: .... It is in accordance with the above-quoted provisions that the executor in his final account and project of partition ratified the payment of only P3,600 to Helen Christensen Garcia and proposed that the residue of the estate be transferred to his daughter, Maria Lucy Christensen. Opposition to the approval of the project of partition was filed by Helen Christensen Garcia, insofar as it deprives her (Helen) of her legitime as an acknowledged natural child, she having been declared by Us in G.R. Nos. L-11483-84 an acknowledged natural child of the deceased Edward E. Christensen. The legal grounds of opposition are (a) that the distribution should be governed by the laws of the Philippines, and (b) that said order of distribution is contrary thereto insofar as it denies to Helen Christensen, one of two acknowledged natural children, one-half of the estate in full ownership. In amplification of the above grounds it was alleged that the law that should govern the estate of the deceased Christensen should not be the internal law of California alone, but the entire law thereof because several foreign elements are involved, that the forum is the Philippines and even if the case were decided in California, Section 946 of the California Civil Code, which requires that the domicile of the decedent should apply, should be applicable. It was also alleged that Maria Helen Christensen having been declared an acknowledged natural child of the decedent, she is deemed for all purposes legitimate from the time of her birth. The court below ruled that as Edward E. Christensen was a citizen of the United States and of the State of California at the time of his death, the successional rights and intrinsic validity of the provisions in his will are to be governed by the law of California, in accordance with which a testator has the right to dispose of his property in the way he desires, because the right of absolute dominion over his property is sacred and inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d 952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179, Record on Appeal). Oppositor Maria Helen Christensen, through counsel, filed various motions for reconsideration, but these were denied. Hence, this appeal.

7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was baptized Christensen, is not in any way related to me, nor has she been at any time adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency the same to be deposited in trust for the said Maria Helen Christensen with the Davao Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the principal thereof as well as any interest which may have accrued thereon, is exhausted.. xxx xxx xxx

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as aforesaid at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my property and estate, real, personal and/or mixed, of whatsoever kind or character, and wheresoever situated, of which I may be

The most important assignments of error are as follows: I THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE SUPREME COURT THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF EDWARD E. CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE IN THE INHERITANCE. II THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES CALLING FOR THE APPLICATION OF INTERNAL LAW. III THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL LAW, PARTICULARLY UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE TESTAMENTARY DISPOSITION OF THE DISTRIBUTION OF THE ESTATE OF THE DECEASED EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES. IV THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF DISTRIBUTION SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS. V THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN FULL OWNERSHIP. There is no question that Edward E. Christensen was a citizen of the United States and of the State of California at the time of his death. But there is also no question that at the time of his death he was domiciled in the Philippines, as witness the following facts admitted by the executor himself in appellee's brief:

In the proceedings for admission of the will to probate, the facts of record show that the deceased Edward E. Christensen was born on November 29, 1875 in New York City, N.Y., U.S.A.; his first arrival in the Philippines, as an appointed school teacher, was on July 1, 1901, on board the U.S. Army Transport "Sheridan" with Port of Embarkation as the City of San Francisco, in the State of California, U.S.A. He stayed in the Philippines until 1904. In December, 1904, Mr. Christensen returned to the United States and stayed there for the following nine years until 1913, during which time he resided in, and was teaching school in Sacramento, California. Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in 1928, he again departed the Philippines for the United States and came back here the following year, 1929. Some nine years later, in 1938, he again returned to his own country, and came back to the Philippines the following year, 1939. Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts.
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Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces in the Philippines during World War II. Upon liberation, in April 1945, he left for the United States but returned to the Philippines in December, 1945. Appellees Collective Exhibits "6", CFI Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l", "MM-2-Daney" and p. 473, t.s.n., July 21, 1953.) In April, 1951, Edward E. Christensen returned once more to California shortly after the making of his last will and testament (now in question herein) which he executed at his lawyers' offices in Manila on March 5, 1951. He died at

the St. Luke's Hospital in the City of Manila on April 30, 1953. (pp. 2-3) In arriving at the conclusion that the domicile of the deceased is the Philippines, we are persuaded by the fact that he was born in New York, migrated to California and resided there for nine years, and since he came to the Philippines in 1913 he returned to California very rarely and only for short visits (perhaps to relatives), and considering that he appears never to have owned or acquired a home or properties in that state, which would indicate that he would ultimately abandon the Philippines and make home in the State of California. Sec. 16. Residence is a term used with many shades of meaning from mere temporary presence to the most permanent abode. Generally, however, it is used to denote something more than mere physical presence. (Goodrich on Conflict of Laws, p. 29) As to his citizenship, however, We find that the citizenship that he acquired in California when he resided in Sacramento, California from 1904 to 1913, was never lost by his stay in the Philippines, for the latter was a territory of the United States (not a state) until 1946 and the deceased appears to have considered himself as a citizen of California by the fact that when he executed his will in 1951 he declared that he was a citizen of that State; so that he appears never to have intended to abandon his California citizenship by acquiring another. This conclusion is in accordance with the following principle expounded by Goodrich in his Conflict of Laws. The terms "'residence" and "domicile" might well be taken to mean the same thing, a place of permanent abode. But domicile, as has been shown, has acquired a technical meaning. Thus one may be domiciled in a place where he has never been. And he may reside in a place where he has no domicile. The man with two homes, between which he divides his time, certainly resides in each one, while living in it. But if he went on business which would require his presence for several weeks or months, he might properly be said to have sufficient connection with the place to be called a resident. It is clear, however, that, if he treated his settlement as continuing only for the particular

business in hand, not giving up his former "home," he could not be a domiciled New Yorker. Acquisition of a domicile of choice requires the exercise of intention as well as physical presence. "Residence simply requires bodily presence of an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile." Residence, however, is a term used with many shades of meaning, from the merest temporary presence to the most permanent abode, and it is not safe to insist that any one use et the only proper one. (Goodrich, p. 29) The law that governs the validity of his testamentary dispositions is defined in Article 16 of the Civil Code of the Philippines, which is as follows: ART. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country where said property may be found. The application of this article in the case at bar requires the determination of the meaning of the term "national law" is used therein. There is no single American law governing the validity of testamentary provisions in the United States, each state of the Union having its own private law applicable to its citizens only and in force only within the state. The "national law" indicated in Article 16 of the Civil Code above quoted can not, therefore, possibly mean or apply to any general American law. So it can refer to no other than the private law of the State of California. The next question is: What is the law in California governing the disposition of personal property? The decision of the court below, sustains the contention of the executor-appellee

that under the California Probate Code, a testator may dispose of his property by will in the form and manner he desires, citing the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant invokes the provisions of Article 946 of the Civil Code of California, which is as follows: If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile. The existence of this provision is alleged in appellant's opposition and is not denied. We have checked it in the California Civil Code and it is there. Appellee, on the other hand, relies on the case cited in the decision and testified to by a witness. (Only the case of Kaufman is correctly cited.) It is argued on executor's behalf that as the deceased Christensen was a citizen of the State of California, the internal law thereof, which is that given in the abovecited case, should govern the determination of the validity of the testamentary provisions of Christensen's will, such law being in force in the State of California of which Christensen was a citizen. Appellant, on the other hand, insists that Article 946 should be applicable, and in accordance therewith and following the doctrine of therenvoi, the question of the validity of the testamentary provision in question should be referred back to the law of the decedent's domicile, which is the Philippines. The theory of doctrine of renvoi has been defined by various authors, thus: The problem has been stated in this way: "When the Conflict of Laws rule of the forum refers a jural matter to a foreign law for decision, is the reference to the purely internal rules of law of the foreign system; i.e., to the totality of the foreign law minus its Conflict of Laws rules?" On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi, that is, applied the Conflict of Laws rule of Illinois which referred the matter back to Michigan law. But once having determined the the Conflict of Laws principle is the rule looked to, it is difficult to see why the reference back should not have been to Michigan Conflict of Laws. This would

have resulted in the "endless chain of references" which has so often been criticized be legal writers. The opponents of the renvoi would have looked merely to the internal law of Illinois, thus rejecting the renvoi or the reference back. Yet there seems no compelling logical reason why the original reference should be the internal law rather than to the Conflict of Laws rule. It is true that such a solution avoids going on a merry-go-round, but those who have accepted the renvoi theory avoid this inextricabilis circulas by getting off at the second reference and at that point applying internal law. Perhaps the opponents of the renvoi are a bit more consistent for they look always to internal law as the rule of reference. Strangely enough, both the advocates for and the objectors to the renvoi plead that greater uniformity will result from adoption of their respective views. And still more strange is the fact that the only way to achieve uniformity in this choiceof-law problem is if in the dispute the two states whose laws form the legal basis of the litigation disagree as to whether the renvoi should be accepted. If both reject, or both accept the doctrine, the result of the litigation will vary with the choice of the forum. In the case stated above, had the Michigan court rejected the renvoi, judgment would have been against the woman; if the suit had been brought in the Illinois courts, and they too rejected the renvoi, judgment would be for the woman. The same result would happen, though the courts would switch with respect to which would hold liability, if both courts accepted the renvoi. The Restatement accepts the renvoi theory in two instances: where the title to land is in question, and where the validity of a decree of divorce is challenged. In these cases the Conflict of Laws rule of the situs of the land, or the domicile of the parties in the divorce case, is applied by the forum, but any further reference goes only to the internal law. Thus, a person's title to land, recognized by the situs, will be recognized by every court; and every divorce, valid by the domicile of the

parties, will be valid everywhere. (Goodrich, Conflict of Laws, Sec. 7, pp. 13-14.) X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable property in Massachusetts, England, and France. The question arises as to how this property is to be distributed among X's next of kin. Assume (1) that this question arises in a Massachusetts court. There the rule of the conflict of laws as to intestate succession to movables calls for an application of the law of the deceased's last domicile. Since by hypothesis X's last domicile was France, the natural thing for the Massachusetts court to do would be to turn to French statute of distributions, or whatever corresponds thereto in French law, and decree a distribution accordingly. An examination of French law, however, would show that if a French court were called upon to determine how this property should be distributed, it would refer the distribution to the national law of the deceased, thus applying the Massachusetts statute of distributions. So on the surface of things the Massachusetts court has open to it alternative course of action: (a) either to apply the French law is to intestate succession, or (b) to resolve itself into a French court and apply the Massachusetts statute of distributions, on the assumption that this is what a French court would do. If it accepts the so-called renvoidoctrine, it will follow the latter course, thus applying its own law. This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of the forum refers to a foreign law, the conflict-of-laws rule of which, in turn, refers the matter back again to the law of the forum. This is renvoi in the narrower sense. The German term for this judicial process is 'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-571.) After a decision has been arrived at that a foreign law is to be resorted to as governing a particular case, the further question may arise: Are the rules as to the conflict of laws contained in such

foreign law also to be resorted to? This is a question which, while it has been considered by the courts in but a few instances, has been the subject of frequent discussion by textwriters and essayists; and the doctrine involved has been descriptively designated by them as the "Renvoyer" to send back, or the "Ruchversweisung", or the "Weiterverweisung", since an affirmative answer to the question postulated and the operation of the adoption of the foreign law in toto would in many cases result in returning the main controversy to be decided according to the law of the forum. ... (16 C.J.S. 872.) Another theory, known as the "doctrine of renvoi", has been advanced. The theory of the doctrine of renvoiis that the court of the forum, in determining the question before it, must take into account the whole law of the other jurisdiction, but also its rules as to conflict of laws, and then apply the law to the actual question which the rules of the other jurisdiction prescribe. This may be the law of the forum. The doctrine of therenvoi has generally been repudiated by the American authorities. (2 Am. Jur. 296) The scope of the theory of renvoi has also been defined and the reasons for its application in a country explained by Prof. Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531. The pertinent parts of the article are quoted herein below: The recognition of the renvoi theory implies that the rules of the conflict of laws are to be understood as incorporating not only the ordinary or internal law of the foreign state or country, but its rules of the conflict of laws as well. According to this theory 'the law of a country' means the whole of its law. xxx xxx xxx

Von Bar presented his views at the meeting of the Institute of International Law, at Neuchatel, in 1900, in the form of the following theses:

(1) Every court shall observe the law of its country as regards the application of foreign laws. (2) Provided that no express provision to the contrary exists, the court shall respect: (a) The provisions of a foreign law which disclaims the right to bind its nationals abroad as regards their personal statute, and desires that said personal statute shall be determined by the law of the domicile, or even by the law of the place where the act in question occurred. (b) The decision of two or more foreign systems of law, provided it be certain that one of them is necessarily competent, which agree in attributing the determination of a question to the same system of law. xxx xxx xxx

law that the domiciliary law should govern in most matters or rights which follow the person of the owner. When a man dies leaving personal property in one or more states, and leaves a will directing the manner of distribution of the property, the law of the state where he was domiciled at the time of his death will be looked to in deciding legal questions about the will, almost as completely as the law of situs is consulted in questions about the devise of land. It is logical that, since the domiciliary rules control devolution of the personal estate in case of intestate succession, the same rules should determine the validity of an attempted testamentary dispostion of the property. Here, also, it is not that the domiciliary has effect beyond the borders of the domiciliary state. The rules of the domicile are recognized as controlling by the Conflict of Laws rules at the situs property, and the reason for the recognition as in the case of intestate succession, is the general convenience of the doctrine. The New York court has said on the point: 'The general principle that a dispostiton of a personal property, valid at the domicile of the owner, is valid anywhere, is one of the universal application. It had its origin in that international comity which was one of the first fruits of civilization, and it this age, when business intercourse and the process of accumulating property take but little notice of boundary lines, the practical wisdom and justice of the rule is more apparent than ever. (Goodrich, Conflict of Laws, Sec. 164, pp. 442443.) Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as the national law is the internal law of California. But as above explained the laws of California have prescribed two sets of laws for its citizens, one for residents therein and another for those domiciled in other jurisdictions. Reason demands that We should enforce the California internal law prescribed for its citizens residing therein, and enforce the conflict of laws rules for the citizens domiciled abroad. If we must enforce the law of California as in comity we are bound to go, as so declared in Article 16 of our Civil Code, then we must enforce the law of California in accordance with the express

If, for example, the English law directs its judge to distribute the personal estate of an Englishman who has died domiciled in Belgium in accordance with the law of his domicile, he must first inquire whether the law of Belgium would distribute personal property upon death in accordance with the law of domicile, and if he finds that the Belgian law would make the distribution in accordance with the law of nationality that is the English law he must accept this reference back to his own law. We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule applied in In re Kaufman, Supra, its internal law. If the law on succession and the conflict of laws rules of California are to be enforced jointly, each in its own intended and appropriate sphere, the principle cited In re Kaufman should apply to citizens living in the State, but Article 946 should apply to such of its citizens as are not domiciled in California but in other jurisdictions. The rule laid down of resorting to the law of the domicile in the determination of matters with foreign element involved is in accord with the general principle of American

mandate thereof and as above explained, i.e., apply the internal law for residents therein, and its conflict-of-laws rule for those domiciled abroad. It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place where the property is situated" in Sec. 946 of the California Civil Code refers to Article 16 of the Civil Code of the Philippines and that the law to the contrary in the Philippines is the provision in said Article 16 that the national law of the deceased should govern. This contention can not be sustained. As explained in the various authorities cited above the national law mentioned in Article 16 of our Civil Code is the law on conflict of laws in the California Civil Code, i.e., Article 946, which authorizes the reference or return of the question to the law of the testator's domicile. The conflict of laws rule in California, Article 946, Civil Code, precisely refers back the case, when a decedent is not domiciled in California, to the law of his domicile, the Philippines in the case at bar. The court of the domicile can not and should not refer the case back to California; such action would leave the issue incapable of determination because the case will then be like a football, tossed back and forth between the two states, between the country of which the decedent was a citizen and the country of his domicile. The Philippine court must apply its own law as directed in the conflict of laws rule of the state of the decedent, if the question has to be decided, especially as the application of the internal law of California provides no legitime for children while the Philippine law, Arts. 887(4) and 894, Civil Code of the Philippines, makes natural children legally acknowledged forced heirs of the parent recognizing them. The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105; Miciano vs. Brimo, 50 Phil. 867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs. Government, 59 Phil. 293.) cited by appellees to support the decision can not possibly apply in the case at bar, for two important reasons, i.e., the subject in each case does not appear to be a citizen of a state in the United States but with domicile in the Philippines, and it does not appear in each case that there exists in the state of which the subject is a citizen, a law similar to or identical with Art. 946 of the California Civil Code. We therefore find that as the domicile of the deceased Christensen, a citizen of California, is

the Philippines, the validity of the provisions of his will depriving his acknowledged natural child, the appellant, should be governed by the Philippine Law, the domicile, pursuant to Art. 946 of the Civil Code of California, not by the internal law of California.. WHEREFORE, the decision appealed from is hereby reversed and the case returned to the lower court with instructions that the partition be made as the Philippine law on succession provides. Judgment reversed, with costs against appellees. Republic SUPREME Manila of the Philippines COURT

FIRST DIVISION G.R. No. L-54919 May 30, 1984 POLLY CAYETANO, petitioner, vs. HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court of First Instance of Manila and NENITA CAMPOS PAGUIA, respondents. Ermelo P. Guzman for petitioner. Armando Z. Gonzales for private respondent.

GUTIERREZ, JR., J.: This is a petition for review on certiorari, seeking to annul the order of the respondent judge of the Court of First Instance of Manila, Branch XXXVIII, which admitted to and allowed the probate of the last will and testament of Adoracion C. Campos, after an ex-parte presentation of evidence by herein private respondent. On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos.

Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased, Adoracion Campos, which was allegedly executed in the United States and for her appointment as administratrix of the estate of the deceased testatrix. In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last wig and testament on July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as executor; that after the testatrix death, her last will and testament was presented, probated, allowed, and registered with the Registry of Wins at the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after Dr. Barzaga had declined and waived his appointment as executor in favor of the former, is also a resident of Philadelphia, U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix to administer and eventually distribute the properties of the estate located in the Philippines. On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging among other things, that he has every reason to believe that the will in question is a forgery; that the intrinsic provisions of the will are null and void; and that even if pertinent American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they would work injustice and injury to him. On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights or Interests) stating that he "has been able to verify the veracity thereof (of the will) and now confirms the same to be truly the probated will of his daughter Adoracion." Hence, an ex-partepresentation of evidence for the reprobate of the questioned will was made. On January 10, 1979, the respondent judge issued an order, to wit: At the hearing, it has been satisfactorily established that

Adoracion C. Campos, in her lifetime, was a citizen of the United States of America with a permanent residence at 4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D) that when alive, Adoracion C. Campos executed a Last Will and Testament in the county of Philadelphia, Pennsylvania, U.S.A., according to the laws thereat (Exhibits E-3 to E-3-b) that while in temporary sojourn in the Philippines, Adoracion C. Campos died in the City of Manila (Exhibit C) leaving property both in the Philippines and in the United States of America; that the Last Will and Testament of the late Adoracion C. Campos was admitted and granted probate by the Orphan's Court Division of the Court of Common Pleas, the probate court of the Commonwealth of Pennsylvania, County of Philadelphia, U.S.A., and letters of administration were issued in favor of Clement J. McLaughlin all in accordance with the laws of the said foreign country on procedure and allowance of wills (Exhibits E to E-10); and that the petitioner is not suffering from any disqualification which would render her unfit as administratrix of the estate in the Philippines of the late Adoracion C. Campos. WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby admitted to and allowed probate in the Philippines, and Nenita Campos Paguia is hereby appointed Administratrix of the estate of said decedent; let Letters of Administration with the Will annexed issue in favor of said Administratrix upon her filing of a bond in the amount of P5,000.00 conditioned under the provisions of Section I, Rule 81 of the Rules of Court. Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal of

his opposition, acknowledging the same to be his voluntary act and deed. On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the will be set aside on the ground that the withdrawal of his opposition to the same was secured through fraudulent means. According to him, the "Motion to Dismiss Opposition" was inserted among the papers which he signed in connection with two Deeds of Conditional Sales which he executed with the Construction and Development Corporation of the Philippines (CDCP). He also alleged that the lawyer who filed the withdrawal of the opposition was not his counsel-of-record in the special proceedings case. The petition for relief was set for hearing but the petitioner failed to appear. He made several motions for postponement until the hearing was set on May 29, 1980. On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside the Order of January 10, 1979, and/or dismiss the case for lack of jurisdiction. In this motion, the notice of hearing provided: Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in the morning for submission for reconsideration and resolution of the Honorable Court. Until this Motion is resolved, may I also request for the future setting of the case for hearing on the Oppositor's motion to set aside previously filed. The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was called for hearing on this date, the counsel for petitioner tried to argue his motion to vacate instead of adducing evidence in support of the petition for relief. Thus, the respondent judge issued an order dismissing the petition for relief for failure to present evidence in support thereof. Petitioner filed a motion for reconsideration but the same was denied. In the same order, respondent judge also denied the motion to vacate for lack of merit. Hence, this petition. Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which,

incidentally has been questioned by the respondent, his children and forced heirs as, on its face, patently null and void, and a fabrication, appointing Polly Cayetano as the executrix of his last will and testament. Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant case which was granted by the court on September 13, 1982. A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos merged upon his death with the rights of the respondent and her sisters, only remaining children and forced heirs was denied on September 12, 1983. Petitioner Cayetano persists with the allegations that the respondent judge acted without or in excess of his jurisdiction when: 1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic) upon the filing of the Motion to Dismiss opposition with waiver of rights or interests against the estate of deceased Adoracion C. Campos, thus, paving the way for the hearing ex-parte of the petition for the probate of decedent will. 2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or authenticated instrument), or by way of a petition presented to the court but by way of a motion presented prior to an order for the distribution of the estate-the law especially providing that repudiation of an inheritance must be presented, within 30 days after it has issued an order for the distribution of the estate in accordance with the rules of Court. 3) He ruled that the right of a forced heir to his legitime can be divested by a decree admitting a will to probate in which no provision is made for the forced heir in complete disregard of Law of Succession

4) He denied petitioner's petition for Relief on the ground that no evidence was adduced to support the Petition for Relief when no Notice nor hearing was set to afford petitioner to prove the merit of his petition a denial of the due process and a grave abuse of discretion amounting to lack of jurisdiction. 5) He acquired no jurisdiction over the testate case, the fact that the Testator at the time of death was a usual resident of Dasmarias, Cavite, consequently Cavite Court of First Instance has exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No. L-7792, July 1955). The first two issues raised by the petitioner are anchored on the allegation that the respondent judge acted with grave abuse of discretion when he allowed the withdrawal of the petitioner's opposition to the reprobate of the will. We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced to support petitioner's contention that the motion to withdraw was secured through fraudulent means and that Atty. Franco Loyola was not his counsel of record. The records show that after the firing of the contested motion, the petitioner at a later date, filed a manifestation wherein he confirmed that the Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and had been substituted by Atty. Franco Loyola who in turn filed the motion. The present petitioner cannot, therefore, maintain that the old man's attorney of record was Atty. Lagrosa at the time of filing the motion. Since the withdrawal was in order, the respondent judge acted correctly in hearing the probate of the will ex-parte, there being no other opposition to the same. The third issue raised deals with the validity of the provisions of the will. As a general rule, the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the

court has declared that the will has been duly authenticated. However, where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue. (Maninang vs. Court of Appeals, 114 SCRA 478). In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of Adoracion's will, Hermogenes C. Campos was divested of his legitime which was reserved by the law for him. This contention is without merit. Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have denied its reprobate outright, the private respondents have sufficiently established that Adoracion was, at the time of her death, an American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively provide: Art. 16 par. (2). xxx xxx xxx However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent. the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Although the parties admit that the Pennsylvania law does not provide for legitimes and that all the estate

may be given away by the testatrix to a complete stranger, the petitioner argues that such law should not apply because it would be contrary to the sound and established public policy and would run counter to the specific provisions of Philippine Law. It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article 16(2) and 1039 of the Civil Code, the national law of the decedent must apply. This was squarely applied in the case ofBellis v. Bellis (20 SCRA 358) wherein we ruled: It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones. xxx xxx xxx The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and under the law of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine Law on legitimes cannot be applied to the testacy of Amos G. Bellis. As regards the alleged absence of notice of hearing for the petition for relief, the records wig bear the fact that what was repeatedly scheduled for hearing on separate dates until June 19, 1980 was the petitioner's petition for relief and not his motion to vacate the order of January 10, 1979. There is no reason why the petitioner should have been led to believe otherwise. The court even admonished the petitioner's failing to adduce evidence when his petition for relief was repeatedly set for hearing. There was no denial of due process. The fact that he requested "for the future setting of the case for hearing . . ." did not mean that at the

next hearing, the motion to vacate would be heard and given preference in lieu of the petition for relief. Furthermore, such request should be embodied in a motion and not in a mere notice of hearing. Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it is provided that: SECTION 1. Where estate of deceased persons settled. If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resided at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of First Instance of Manila where she had an estate since it was alleged and proven that Adoracion at the time of her death was a citizen and permanent resident of Pennsylvania, United States of America and not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his opponent and after failing to obtain such relief, repudiate or question that same jurisdiction. (See Saulog

Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R. No. 63 284, April 4, 1984). WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit. SO ORDERED.

raised in connection with the settlement of the estate of the deceased husband. Hadji Abdula Malang, a Muslim, contracted marriage with Aida (Kenanday) Limba. They begot three sons named Hadji Mohammad Ulyssis, Hadji Ismael Malindatu and Datulna, and a daughter named Lawanbai. Hadji Abdula Malang was engaged in farming, tilling the land that was Aidas dowry (mahr or majar). Thereafter, he bought a parcel of land in Sousa, Cotabato. Hadji Abdula and Aida already had two children when he married for the second time another Muslim named Jubaida Kado in Kalumamis, Talayan, Maguindanao. No child was born out of Hadji Abdulas second marriage. When Aida, the first wife, was pregnant with their fourth child, Hadji Abdula divorced her. In 1965, Hadji Abdula married another Muslim, Nayo H. Omar but they were childless. Thereafter, Hadji Abdula contracted marriage with Hadji Mabai (Mabay) H. Adziz in Kalumamis, Talayan, Maguindanao and soon they had a daughter named Fatima (Kueng). Hadji Abdula and Hadji Mabai stayed in that place to farm while Hadji Abdula engaged in the business of buying and selling of rice, corn and other agricultural products. Not long after, Hadji Abdula married three other Muslim women named Saaga, Mayumbai and Sabai but he eventually divorced them. Hadji Abdula then migrated to Tambunan where, in 1972, he married petitioner Neng Kagui

EN BANC

[G.R. No. 2000]

119064. August

22,

NENG KAGUI KADIGUIA MALANG, petitioner, vs. HON. COROCOY MOSON, Presiding Judge of 5th Sharia District Court, Cotabato City, HADJI MOHAMMAD ULYSSIS MALANG, HADJI ISMAEL MALINDATU MALANG, FATIMA MALANG, DATULNA MALANG, LAWANBAI MALANG, JUBAIDA KADO MALANG, NAYO OMAL MALANG and MABAY GANAP MALANG, respondents. DECISION
GONZAGA-REYES, J.:

Presented for resolution in this special civil action of certiorari is the issue of whether or not the regime of conjugal partnership of gains governed the property relationship of two Muslims who contracted marriage prior to the effectivity of the Code of Muslim Personal Laws of the Philippines (hereafter, P.D. 1083 or Muslim Code). The question is

Kadiguia Malang, his fourth wife, excluding the wives he had divorced. They established residence in Cotabato City but they were childless. For a living, they relied on farming and on the business of buying and selling of agricultural products. Hadji Abdula acquired vast tracts of land in Sousa and Talumanis, Cotabato City, some of which were cultivated by tenants. He deposited money in such banks as United Coconut Planters Bank, Metrobank and Philippine Commercial and Industrial Bank. On December 18, 1993, while he was living with petitioner in Cotabato City, Hadji Abdula died without leaving a will. On January 21, 1994, petitioner filed with the Sharia District Court in Cotabato City a petition for the settlement of his estate with a prayer that letters of administration be issued in the name of her niece, Tarhata Lauban. Petitioner claimed in that petition that she was the wife of Hadji Abdula; that his other legal heirs are his three children named Teng Abdula, Keto Abdula and Kueng Malang, and that he left seven (7) parcels of land, five (5) of which are titled in Hadji Abdulas name married to Neng P. Malang, and a pick-up jeepney. On February 7, 1994, the Sharia District Court ordered the publication of the petition.[1] After such [2] publication or on March 16, 1994, Hadji Mohammad Ulyssis Malang (Hadji Mohammad, for brevity), the eldest son of Hadji Abdula, filed his opposition to the petition. He alleged among other matters that his fathers

surviving heirs are as follows: (a) Jubaida Malang, surviving spouse; (b) Nayo Malang, surviving spouse; (c) Mabay Malang, surviving spouse; (d) petitioner Neng Malang, surviving spouse; (e) oppositor Hadji Mohammad Ulyssis Malang who is also known as Teng Abdula, son; (f) Hadji Ismael Malindatu Malang, also known as Keto Abdula, son, (g) Fatima Malang, also known as Kueng Malang, daughter; (h) Datulna Malang, son, and (i) Lawanbai Malang, daughter. Oppositor Hadji Mohammad Ulyssis Malang alleged that since he and his brother, Hadji Ismael Malindatu Malang, had helped their father in his business, then they were more competent to be administrators of his estate.[3] On March 30, 1994, Jubaida Malang, Ismael Malindatu Malang, Nayo Malang, Fatima Malang, Mabay Malang, Datulna Malang and Lawanbai Malang filed an opposition to the petition, adopting as their own the written opposition of Hadji Mohammad.[4] On April 7, 1994, the Sharia District Court issued an Order appointing Hadji Mohammad administrator of his fathers properties outside Cotabato City. The same order named petitioner and Hadji Ismael Malindatu Malang as joint administrators of the estate in Cotabato City. Each administrator was required to post a bond in the amount of [5] P100,000.00. On April 13, 1994, letters of administration were issued to Hadji Mohammad after he had posted the required bond. He took

his oath on the same day.[6] The following day, Hadji Ismael and petitioner likewise filed their respective bonds and hence, they were allowed to take their oath as administrators.[7] On April 25, 1994 and May 3, 1994, petitioner filed two motions informing the court that Hadji Abdula had outstanding deposits with nine (9) major banks.[8] Petitioner prayed that the managers of each of those banks be ordered to submit a bank statement of the outstanding deposit of Hadji Abdula.[9] The Sharia District Court having granted the [10] motions, Assistant Vice President Rockman O. Sampuha of United Coconut Planters Bank informed the court that as of April 24, 1994, the outstanding deposit of Hadji Abdula amounted to one million five hundred twenty thousand four hundred pesos and forty-eight centavos [11] (P1,520,400.48). The Senior Manager of the Cotabato branch of Metrobank also certified that as of December 18, 1993, Hadji Abdula Malang or Malindatu Malang had on savings deposit the balance of three hundred seventy-eight thousand four hundred ninety-three pesos and 32/100 centavos [12] (P378,493.32). PCIB likewise issued a certification that Hadji Abdula had a balance of eight hundred fifty pesos (P850.00) in his current account as of August 11, 1994.[13] During the pendency of the case, petitioner suffered a congestive heart failure that required immediate medical treatment. On May 5, 1994, she filed a motion praying that on

account of her ailment, she be allowed to withdraw from UCPB the amount of three hundred thousand pesos (P300,000.00) that shall constitute her advance share in the estate of Hadji Abdula.[14] After due hearing, the Sharia District Court allowed petitioner to withdraw the sum of two hundred fifty thousand pesos (P250,000.00).[15] On May 12, 1994, the Sharia District Court required petitioner and Hadji Ismael as joint administrators to submit an inventory and appraisal of all properties of Hadji Abdula.[16] In compliance therewith, Hadji Ismael submitted an inventory showing that in Cotabato City, Hadji Abdula had seven (7) residential lots with assessed value ranging from P5,020.00 to P25,800.00, an agricultural land with assessed value of P860.00, three (3) onestorey residential buildings, and one (1) two-storey residential [17] building. All these properties were declared for taxation purposes in Hadji Abdulas name. For her part, petitioner submitted an inventory showing that Hadji Abdula married to Neng Malang had seven (7) residential lots with a total assessed value of P243,840.00 in Cotabato City, an Isuzu pick-up jeepney valued at P30,000.00 and bank deposits.[18] In the Memorandum that she filed with the Sharia District Court, petitioner asserted that all the properties located in Cotabato City, including the vehicle and bank deposits, were conjugal properties in accordance with Article 160 of the Civil Code and Article 116 of the

Family Code while properties located outside of Cotabato City were exclusive properties of the [19] decedent. On the other hand, the oppositors contended in their own Memorandum that all the properties left by Hadji Abdula were his exclusive properties for various reasons. First, Hadji Abdula had no conjugal partnership with petitioner because his having contracted eight (8) marriages with different Muslim women was in violation of the Civil Code that provided for a monogamous marriage; a conjugal partnership presupposes a valid civil marriage, not a bigamous marriage or a common-law relationship. Second, the decedent adopted a complete separation of property regime in his marital relations; while his wives Jubaida Kado, Nayo Hadji Omal and Mab ay Ganap Hadji Adzis contributed to the decedents properties, there is no evidence that petitioner had contributed funds for the acquisition of such properties. Third, the presumption that properties acquired during the marriage are conjugal properties is inapplicable because at the time he acquired the properties, the decedent was married to four (4) women. Fourth, the properties are not conjugal in nature notwithstanding that some of these properties were titled in the name of the decedent married to Neng Malang because such description is not conclusive of the conjugal nature of the property. Furthermore, because petitioner admitted in her verified petition that the properties belonged to the estate of decedent,

she was estopped from claiming, after formal offer of evidence, that the properties were conjugal in nature just because some of the properties were titled in Hadji Abdulas name married to Neng Malang. Fifth, if it is true that the properties were conjugal properties, then these should have been registered in the names of both petitioner and the decedent.[20] In its Order of September 26, 1994, the Sharia District Court presided by Judge Corocoy D. Moson held that there was no conjugal partnership of gains between petitioner and the decedent primarily because the latter married eight times. The Civil Code provision on conjugal partnership cannot be applied if there is more than one wife because conjugal partnership presupposes a valid civil marriage, not a plural marriage or a commonlaw relationship. The court further found that the decedent was the chief, if not the sole, breadwinner of his families and that petitioner did not contribute to the properties unlike the other wives named Jubaida, Nayo and Mabay. The description married to Neng Malang in the titles to the real properties is no more than that -- the description of the relationship between petitioner and the decedent. Such description is insufficient to prove that the properties belong to the conjugal partnership of gains. The court stated: In the instant case, decedent had four (4) wives at the time he acquired the properties in question. To sustain the contention of the

petitioner that the properties are her conjugal property with the decedent is doing violence to the provisions of the Civil Code. Be it noted that at the time of the marriage of the petitioner with the decedent, there were already three (3) existing marriages. Assuming for the moment that petitioner and the decedent had agreed that the property regime between them will be governed by the regime of conjugal partnership property, that agreement is null and void for it is against the law, public policy, public order, good moral(s) and customs. Under Islamic law, the regime of property relationship is complete separation of property, in the absence of any stipulation to the contrary in the marriage settlements or any other contract (Article 38, P.D. 1083). There being no evidence of such contrary stipulation or contract, this Court concludes as it had begun, that the properties in question, both real and personal, are not conjugal, but rather, exclusive property of the decedent.[21] Thus, the Sharia District Court held that the Islamic law should be applied in the distribution of the estate of Hadji Abdula and accordingly disposed of the case as follows: WHEREFORE, premises considered, the Court orders the following:
1) That the estate shall pay the corresponding estate tax, reimburse the funeral expenses in the amount of P50,000.00, and the judicial expenses in the amount of P2,040.80;

2) That the net estate, consisting of real and personal properties, located in Talayan, Maguindanao and in Cotabato City, is hereby ordered to be distributed and adjudicated as follows:

a) Jubaida Kado Malang ------------------------ 2/64 of the estate b) Nayo Omar Malang ------------- 2/64 - do c) Mabai Aziz Malang -------------- 2/64 - do ----------------------

d) Neng Kagui Kadiguia Malang ------------------ 2/64 - do e) Mohammad Ulyssis Malang------------------------14/64 - do f) Ismael Malindatu Malang--------------------------14/64 - do g) Datulna Malang ------------- 14/64 - do h) Lawanbai Malang ----------------------- 7/64 ------------- do -

i) Fatima (Kueng) Malang ------------------------ 7/64 - do Total----------------------- 64/64

3) That the amount of P250,000.00 given to Neng Kagui Kadiguia Malang by way of advance be charged against her share and if her share is not sufficient, to return the excess; and 4) That the heirs are hereby ordered to submit to this court their Project of Partition for approval, not later than three (3) months from receipt of this order.

SO ORDERED. On October 4, 1994, petitioner filed a motion for the reconsideration of that Order. The oppositors objected to that motion. On January 10, 1995, the Sharia District Court denied petitioners motion for [22] reconsideration. Unsatisfied, petitioner filed a notice of [23] appeal. However, on January 19, 1995, she filed a manifestation withdrawing the notice of appeal on the strength of the following provisions of P.D. No. 1083: Art. 145. Finality of Decisions The decisions of the Sharia District Courts whether on appeal from the Sharia Circuit Court or not shall be final. Nothing herein contained shall affect the original and appellate jurisdiction of the Supreme Court as provided in the Constitution. Petitioner accordingly informed the court that she would be filing an original action of certiorari with the Supreme Court.[24] On March 1, 1995, petitioner filed the instant petition for certiorari with preliminary injunction and/or restraining order. She contends that the Sharia District Court gravely erred in: (a) ruling that when she married Hadji Abdula Malang, the latter had three existing marriages with Jubaida Kado Malang, Nayo Omar Malang and Mabay Ganap Malang and therefore the properties acquired during her marriage could not be considered conjugal, and (b) holding that said properties are not conjugal because under Islamic Law, the regime of relationship is complete

separation of property, in the absence of stipulation to the contrary in the marriage settlement or any other contract.[25] As petitioner sees it, the law applicable on issues of marriage and property regime is the New Civil Code, under which all property of the marriage is presumed to belong to the conjugal partnership. The Sharia Court, meanwhile, viewed the Civil Code provisions on conjugal partnership as incompatible with plural marriage, which is permitted under Muslim law, and held the applicable property regime to be complete separation of property under P.D. 1083. Owing to the complexity of the issue presented, and the fact that the case is one of first impression --- this is a singular situation where the issue on what law governs the property regime of a Muslim marriage celebrated prior to the passage of the Muslim Code has been elevated from a Sharia court for the Courts resolution --- the Court decided to solicit the opinions of two amici curiae, Justice Ricardo C. [26] Puno and former Congressman Michael O. Mastura[27]. The Court extends its warmest thanks to the amici curiae for their valuable inputs in their written [28] memoranda and in the hearing of June 27, 2000. Resolution of the instant case is made more difficult by the fact that very few of the pertinent dates of birth, death, marriage and divorce are established by the record. This is because, traditionally, Muslims do not register acts, events or judicial

decrees affecting civil status.[29] It also explains why the evidence in the instant case consisted substantially of oral testimonies. What is not disputed is that: Hadji Abdula contracted a total of eight marriages, counting the three which terminated in divorce; all eight marriages were celebrated during the effectivity of the Civil Code and before the enactment of the Muslim Code; Hadji Abdula divorced four wives --- namely, Aida, Saaga, Mayumbai and Sabai --- all divorces of which took place before the enactment of the Muslim Code; and, Hadji Abdula died on December 18, 1993, after the Muslim Code and Family Code took effect, survived by four wives (Jubaida, Nayo, Mabay and Neng) and five children, four of whom he begot with Aida and one with Mabay. It is also clear that the following laws were in force, at some point or other, during the marriages of Hadji Abdula: the Civil Code, which took effect on August 30, 1950; Republic Act No. 394 (R.A. 394), authorizing Muslim divorces, which was effective from June 18, 1949 to June 13, 1969; the Muslim Code, which took effect February 4, 1977; and the Family Code, effective August 3, 1988. Proceeding upon the foregoing, the Court has concluded that the record of the case is simply inadequate for purposes of arriving at a fair and complete resolution of the petition. To our mind, any attempt at this point to dispense with the basic issue given the scantiness of the evidence before us could result in grave injustice to the parties in this

case, as well as cast profound implications on Muslim families similarly or analogously situated to the parties herein. Justice and accountability dictate a remand; trial must reopen in order to supply the factual gaps or, in Congressman Masturas words, missing links, that would be the bases for judgment and accordingly, allow respondent court to resolve the instant case. In ordering thus, however, we take it as an imperative on our part to set out certain guidelines in the interpretation and application of pertinent laws to facilitate the task of respondent court. It will also be recalled that the main issue presented by the petition -- concerning the property regime applicable to two Muslims married prior to the effectivity of the Muslim Code --- was interposed in relation to the settlement of the estate of the deceased husband. Settlement of estates of Muslims whose civil acts predate the enactment of the Muslim Code may easily result in the application of the Civil Code and other personal laws, thus convincing the Court that it is but propitious to go beyond the issue squarely presented and identify such collateral issues as are required to be resolved in a settlement of estate case. As amicus curiae Congressman Mastura puts it, the Court does not often come by a case as the one herein, and jurisprudence will be greatly enriched by a discussion of the watershed of collateral issues that this case presents.[30] The Court has identified the following collateral issues, which we hereby present in question form: (1)

What law governs the validity of a Muslim marriage celebrated under Muslim rites before the effectivity of the Muslim Code? (2) Are multiple marriages celebrated before the effectivity of the Muslim Code valid? (3) How do the Courts pronouncements in People vs. Subano, 73 Phil. 692 (1942), and People vs. Dumpo, 62 Phil. 246 (1935), affect Muslim marriages celebrated before the effectivity of the Muslim Code? (4) What laws govern the property relationship of Muslim multiple marriages celebrated before the Muslim Code? (5) What law governs the succession to the estate of a Muslim who died after the Muslim Code and the Family Code took effect? (6) What laws apply to the dissolution of property regimes in the cases of multiple marriages entered into before the Muslim Code but dissolved (by the husbands death) after the effectivity of the Muslim Code? and (7) Are Muslim divorces effected before the enactment of the Muslim Code valid? The succeeding guidelines, which derive mainly from the Compliance of amicus curiae Justice Puno, are hereby laid down by the Court for the reference of respondent court, and for the direction of the bench and bar:
First Collateral Issue: The Law(s) Governing Validity of Muslim Marriages Celebrated Before the Muslim Code

Code[31] recognized the right of Muslims to contract marriage in accordance with their customs and rites, by providing that --Marriages between Mohammedans or pagans who live in the nonChristian provinces may be performed in accordance with their customs, rites or practices. No marriage license or formal requisites shall be necessary. Nor shall the persons solemnizing these marriages be obliged to comply with article 92. However, thirty years after the approval of this Code, all marriages performed between Muslims or other non-Christians shall be solemnized in accordance with the provisions of this Code. But the President of the Philippines, upon recommendation of the Commissioner of National Integration, may at any time before the expiration of said period, by proclamation, make any of said provisions applicable to the Muslims and non-Christian inhabitants of any of the non-Christian provinces. Notably, before the expiration of the thirty-year period after which Muslims are enjoined to solemnize their marriages in accordance with the Civil Code, P.D. 1083 or the Muslim Code was passed into law. The enactment of the Muslim Code on February 4, 1977 rendered nugatory the second paragraph of Article 78 of the Civil Code which provides that marriages between Muslims thirty years after the approval of the Civil Code shall be solemnized in accordance with said Code.

The time frame in which all eight marriages of Hadji Abdula were celebrated was during the effectivit y of the Civil Code which, accordingly, governs the marriages. Article 78 of the Civil

Second and Third Collateral Issues: The Validity of Muslim Multiple Marriages Celebrated Before the Muslim Code; The Effect of People vs.

that took place before the Muslim Codes enactment. Admittedly, an apparent antagonism arises when we consider that what the provisions of the Civil Code contemplate and nurture is a monogamous marriage. Bigamous or polygamous marriages are considered void and inexistent from the time of their performance.[37] The Family Code which superseded the Civil Code provisions on marriage emphasizes that a subsequent marriage celebrated before the registration of the judgment declaring a prior marriage void shall likewise be void.[38] These provisions illustrate that the marital relation perceived by the Civil Code is one that is monogamous, and that subsequent marriages entered into by a person with others while the first one is subsisting is by no means countenanced. Thus, when the validity of Muslim plural marriages celebrated before the enactment of the Muslim Code was touched upon in two criminal cases, the Court applied the perspective in the Civil Code that only one valid marriage can exist at any given time. In People vs. Subano, supra, the Court convicted the accused of homicide, not parricide, since --(f)rom the testimony of Ebol Subano, father of the deceased, it appears that the defendant has three wives and that the deceased was the last in point of time. Although the practice of polygamy is approved by custom among these non-Christians,

Subano and People vs. Dumpo

Prior to the enactment of P.D. 1083, there was no law in this jurisdiction which sanctioned multiple marriages.[32] It is also not to be disputed that the only law in force governing marriage relations between Muslims and non-Muslims alike was the Civil Code of 1950. The Muslim Code, which is the first comprehensive codification[33] of Muslim personal laws,[34] also provides in respect of acts that transpired prior to its enactment: Art. 186. Effect of code on past acts. --- (1) Acts executed prior to the effectivity of this Code shall be governed by the laws in force at the time of their execution, and nothing herein except as otherwise specifically provided, shall affect their validity or legality or operate to extinguish any right acquired or liability incurred thereby. The foregoing provisions are consistent with the principle that all laws operate prospectively, unless the contrary appears or is clearly, plainly and unequivocably expressed or necessarily implied;[35] accordingly, every case of doubt will be resolved against the retroactive opertion of laws.[36] Article 186 aforecited enunciates the general rule of the Muslim Code to have its provisions applied prospectively, and implicitly upholds the force and effect of a preexisting body of law, specifically, the Civil Code --- in respect of civil acts

polygamy, however, is not sanctioned by the Marriage Law[39], which merely recognizes tribal marriage rituals. The deceased, under our law, is not thus the lawful wife of the defendant and this precludes conviction for the crime of parricide. In People vs. Dumpo, supra, Mora Dumpo was prosecuted for bigamy when, legally married to Moro Hassan, she allegedly contracted a second marriage with Moro Sabdapal. The Court acquitted her on the ground that it was not duly proved that the alleged second marriage had all the essential requisites to make it valid were it not for the subsistence of the first marriage. As it appears that the consent of the brides father is an indispensable requisite to the validity of a Muslim marriage, and as Mora Dumpos father categorically affirmed that he did not give his consent to her union with Moro Sabdapal, the Court held that such union could not be a marriage otherwise valid were it not for the existence of the first one, and resolved to acquit her of the charge of bigamy. The ruling in Dumpo indicates that, had it been proven as a fact that the second marriage contained all the essential requisites to make it valid, a conviction for bigamy would have prospered.[40]
Fourth Collateral Issue: Law(s) Governing Property Relations of Muslim Marriages Celebrated Before the Muslim Code

This is the main issue presented by the instant petition. In keeping with our holding that the validity of the marriages in the instant case is determined by the Civil Code, we hold that it is the same Code that determines and governs the property relations of the marriages in this case, for the reason that at the time of the celebration of the marriages in question the Civil Code was the only law on marriage relations, including property relations between spouses, whether Muslim or nonMuslim. Inasmuch as the Family Code makes substantial amendments to the Civil Code provisions on property relations, some of its provisions are also material, particularly to property acquired from and after August 3, 1988. Which law would govern depends upon: (1) when the marriages took place; (2) whether the parties lived together as husband and wife; and (3) when and how the subject properties were acquired. Following are the pertinent provisions of the Civil Code: Art. 119. The future spouses may in the marriage settlements agree upon absolute or relative community of property, or upon complete separation of property, or upon any other regime. In the absence of marriage settlements, or when the same are void, the system of relative community or conjugal partnership of gains as established in this Code shall govern the property relations between husband and wife.

Art. 135. All property brought by the wife to the marriage, as well as all property she acquires during the marriage, in accordance with article 148, is paraphernal. Art. 136. The ownership of property. wife the retains the paraphernal

Art. 142. By means of the conjugal partnership of gains the husband and wife place in a common fund the fruits of their separate property and the income from their work or industry, and divide equally, upon the dissolution of the marriage or of the partnership, the net gains or benefits obtained indiscriminately by either spouse during the marriage. Art. 143. All property of the conjugal partnership of gains is owned in common by the husband and wife. The Civil Code also provides in Article 144: When a man and a woman live together as husband and wife, but they are not married, or their marriage is void from the beginning, the property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by the rules on coownership. In a long line of cases, this Court has interpreted the co-ownership provided in Article 144 of the Civil Code to require that the man and woman living together as husband and wife without the benefit of marriage or under a void marriage must not in any way be incapacitated

to marry.[41] Situating these rulings to the instant case, therefore, the coownership contemplated in Article 144 of the Civil Code cannot apply to Hadji Abdulas marriages celebrated subsequent to a valid and legally existing marriage, since from the point of view of the Civil Code Hadji Abdula is not capacitated to marry. However, the wives in such marriages are not precluded from proving that property acquired during their cohabitation with Hadji Abdula is their exclusive property, respectively.[42] Absent such proof, however, the presumption is that property acquired during the subsistence of a valid marriage --and in the Civil Code, there can only be one validly existing marriage at any given time --- is conjugal property of such subsisting [43] marriage. With the effectivity of the Family Code on August 3, 1988, the following provisions of the said Code are pertinent: Art. 147. When a man and a woman who are capacitated to marry each other live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be

owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition of the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the formers efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of the cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default or of waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and

presumption shall apply to joint deposits of money and evidences of credit. If one of the parties is validly married to another, his or her share in the coownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner provided in the last paragraph of the preceding Article. The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith. It will be noted that while the Civil Code merely requires that the parties live together as husband and wife the Family Code in Article 147 specifies that they live exclusively with each other as husband and wife. Also, in contrast to Article 144 of the Civil Code as interpreted by jurisprudence, Article 148 of the Family Code allows for coownership in cases of cohabitation where, for instance, one party has a pre-existing valid marriage, provided that the parties prove their actual joint contribution of money, property, or industry and only to the extent of their proportionate interest therein. The rulings in Juaniza vs. Jose, 89 SCRA 306, Camporodendo vs. Garcia, 102 Phil. 1055, and related cases are embodied in the second paragraph of Article 148, which declares that the share of the party validly married to another shall accrue to the property regime of such existing marriage.

Fifth and Sixth Collateral Issues: Law(s) on Succession and Dissolution of Property Regimes

This physical impossibility may be caused:

(1) By the impotence of the husband; (2) By the fact that the husband and wife were living separately, in such a way that access was not possible; (3) By the serious illness of the husband.

Hadji Abdula died intestate on December 16, 1993. Thus, it is the Muslim Code which should determine the identification of the heirs in the order of intestate succession and the respective shares of the heirs. Meanwhile, the status and capacity to succeed on the part of the individual parties who entered into each and every marriage ceremony will depend upon the law in force at the time of the performance of the marriage rite. The status and capacity to succeed of the children will depend upon the law in force at the time of conception or birth of the child. If the child was conceived or born during the period covered by the governance of the Civil Code, the Civil Code provisions on the determination of the legitimacy or illegitimacy of the child would appear to be in point. Thus, the Civil Code provides: Art. 255. Children born after one hundred and eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate. Against this presumption no evidence shall be admitted other than that of the physical impossibility of the husbands having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child.

Art. 256. The child shall be presumed legitimate, although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. If the child was conceived or born during the period covered by the governance of the Muslim Code, i.e., from February 4, 1977 up to the death of Hadji Abdula on December 18, 1993, the Muslim Code determines the legitimacy or illegitimacy of the child. Under the Muslim Code: Art. 58. Legitimacy, how established. --- Legitimacy of filiation is established by the evidence of valid marriage between the father and the mother at the time of the conception of the child. Art. 59. Legitimate children. --(1) Children conceived in lawful wedlock shall be presumed to be legitimate. Whoever claims illegitimacy of or impugns such filiation must prove his allegation. (2) Children born after six months following the consummation of marriage or within two years after the dissolution of the marriage shall be presumed to be

legitimate. Against this presumption no evidence shall be admitted other than that of physical impossibility of access between the parents at or about the time of the conception of the child.

Art. 60. Children of subsequent marriage. --- Should the marriage be dissolved and the wife contracts another marriage after the expiration of her idda, the child born within six months from the dissolution of the prior marriage shall be presumed to have been conceived during the former marriage, and if born thereafter, during the latter. Art. 61. Pregnancy after dissolution. --- If, after the dissolution of marriage, the wife believes that she is pregnant by her former husband, she shall, within thirty days from the time she became aware of her pregnancy, notify the former husband or his heirs of that fact. The husband or his heirs may ask the court to take measures to prevent a simulation of birth. Upon determination of status and capacity to succeed based on the foregoing provisions, the provisions on legal succession in the Muslim Code will apply. Under Article 110 of the said Code, the sharers to an inheritance include:
(a) The husband, the wife; (b) The father, the mother, the grandfather, the grandmother; (c) The daughter and the sons daughter in the direct line; (d) The full sister, the consanguine sister, the uterine sister and the uterine brother.

When the wife survives with a legitimate child or a child of the decedents son, she is entitled to one-eighth of the hereditary estate; in the absence of such descendants, she shall inherit one-fourth of the estate.[44] The respective shares of the other sharers, as set out in Article 110 abovecited, are provided for in Articles 113 to 122 of P.D. 1083.
Seventh Collateral Issue: Muslim Divorces Before the Effectivity of the Muslim Code

R.A. 394 authorized absolute divorce among Muslims residing in non-Christian provinces, in accordance with Muslim custom, for a period of 20 years from June 18, 1949 (the date of approval of R.A. 394) to June 13, 1969.[45] Thus, a Muslim divorce under R.A. 394 is valid if it took place from June 18, 1949 to June 13, 1969. From the seven collateral issues that we discussed, we identify four corollary issues as to further situate the points of controversy in the instant case for the guidance of the lower court. Thus: 1. Which of the several marriages was validly and legally existing at the time of the opening of the succession of Hadji Abdula when he died in 1993? The validly and legally existing marriage would be that marriage which was celebrated at a time when there was no other subsisting marriage standing undissolved by a valid divorce or by death. This is because all of the marriages were celebrated during the governance of the Civil Code, under

the rules of which only one marriage can exist at any given time. Whether or not the marriage was validly dissolved by a Muslim divorce depends upon the time frame and the applicable law. A Muslim divorce under R.A. No. 394 is valid if it took place from June 18, 1949 to June 13, 1969, and void if it took place from June 14, 1969. [46] 2. There being a dispute between the petitioner and the oppositors as regards the heirship of the children begotten from different marriages, who among the surviving children are legitimate and who are illegitimate? The children conceived and born of a validly existing marriage as determined by the first corollary issue are legitimate. The fact and time of conception or birth may be determined by proof or presumption depending upon the time frame and the applicable law. 3. What properties constituted the estate of Hadji Abdula at the time of his death on December 18, 1993? The estate of Hadji Abdula consists of the following: a. Properties acquired during the existence of a valid marriage as determined by the first corollary issue are conjugal properties and should be liquidated and divided between the spouses under the Muslim Code, this being the law in force at the time of Hadji Abdulas death. b. Properties acquired under the conditions prescribed in Article 144 of the Civil Code during the period August 30, 1950 to August 2, 1988 are conjugal properties and should

be liquidated and divided between the spouses under the Muslim Code. However, the wives other than the lawful wife as determined under the first corollary issue may submit their respective evidence to prove that any of such property is theirs exclusively. c. Properties acquired under the conditions set out in Articles 147 and 148 of the Family Code during the period from and after August 3, 1988 are governed by the rules on coownership. d. Properties acquired under conditions not covered by the preceding paragraphs and obtained from the exclusive efforts or assets of Hadji Abdula are his exclusive properties. 4. Who are the legal heirs of Hadji Abdula, and what are their shares in intestacy? The following are Hadji Abdulas legal heirs: (a) the lawful wife, as determined under the first corollary issue, and (2) the children, as determined under the second corollary issue. The Muslim Code, which was already in force at the time of Hadji Abdulas death, will govern the determination of their respective shares. As we have indicated early on, the evidence in this case is inadequate to resolve in its entirety the main, collateral and corollary issues herein presented and a remand to the lower court is in order. Accordingly, evidence should be received to supply the following proofs: (1) the exact dates of the marriages performed in accordance with Muslim rites or practices; (2) the

exact dates of the dissolutions of the marriages terminated by death or by divorce in accordance with Muslim rites and practices, thus indicating which marriage resulted in a conjugal partnership under the criteria prescribed by the first, second, and third collateral issues and the first corollary issue; (3) the exact periods of actual cohabitation (common life under a common roof) of each of the marriages during which time the parties lived together; (4) the identification of specific properties acquired during each of the periods of cohabitation referred to in paragraph 3 above, and the manner and source of acquisition, indicating joint or individual effort, thus showing the asset as owned separately, conjugally or in co-ownership; and (5) the identities of the children (legitimate or illegitimate) begotten from the several unions, the dates of their respective conceptions or births in relation to paragraphs 1 and 2 above, thereby indicating their status as lawful heirs. Amicus curiae Congressman Mastura agrees that since the marriage of petitioner to decedent took place in 1972 the Civil Code is the law applicable on the issue of marriage settlement,[47] but espouses that customs or established practices among Muslims in Mindanao must also be applied with the force of law to the instant case.[48] Congressman Masturas disquisition has proven extremely helpful in impressing upon us the background in which Islamic law and the Muslim Code need to be interpreted, particularly the interconnectedness of law and religion for Muslims[49] and the

impracticability of a strict application of the Civil Code to plural marriages recognized under Muslim [50] law. Regrettably, the Court is dutybound to resolve the instant case applying such laws and rights as are in existence at the time the pertinent civil acts took place. Corollarily, we are unable to supplant governing law with customs, albeit how widely observed. In the same manner, we cannot supply a perceived hiatus in P.D. 1083 concerning the distribution of property between divorced spouses upon one of the spouses death.51 WHEREFORE, the decision dated September 26, 1994 of the Fifth Sharia District Court of Cotabato City in Special Proceeding No. 94-40 is SET ASIDE, and the instant petition is REMANDED for the reception of additional evidence and the resolution of the issues of the case based on the guidelines set out in this Decision. SO ORDERED.

FIRST DIVISION

[G.R. No. 124371. November 23, 2000]

PAULA T. LLORENTE, petitioner, vs. COURT OF APPEALS and ALICIA F. LLORENTE, respondents. DECISION
PARDO, J.:

The Case The case raises a conflict of laws issue. What is before us is an appeal from the decision of the Court of Appeals[1] modifying that of the Regional Trial Court, Camarines Sur, Branch 35, Iriga City[2] declaring respondent Alicia F. Llorente (herinafter referred to as Alicia), as co-owners of whatever property she and the deceased Lorenzo N. Llorente (hereinafter referred to as Lorenzo) may have acquired during the twenty-five (25) years that they lived together as husband and wife.

relationship with his brother, Ceferino Llorente.[8] On December 4, 1945, Paula gave birth to a boy registered in the Office of the Registrar of Nabua as Crisologo Llorente, with the certificate stating that the child was not legitimate and the line for the fathers name was left blank.[9] Lorenzo refused to forgive Paula and live with her. In fact, on February 2, 1946, the couple drew a written agreement to the effect that (1) all the family allowances allotted by the United States Navy as part of Lorenzos salary and all other obligations for Paulas daily maintenance and support would be suspended; (2) they would dissolve their marital union in accordance with judicial proceedings; (3) they would make a separate agreement regarding their conjugal property acquired during their marital life; and (4) Lorenzo would not prosecute Paula for her adulterous act since she voluntarily admitted her fault and agreed to separate from Lorenzo peacefully. The agreement was signed by both Lorenzo and Paula and was witnessed by Paulas father and stepmother. The agreement was notarized by Notary Public Pedro Osabel.[10] Lorenzo returned to the United States and on November 16, 1951 filed for divorce with the Superior Court of the State of California in and for the County of San Diego. Paula was represented by counsel, John Riley, and actively participated in the proceedings. On November 27, 1951, the Superior Court of the State of California, for the County of San Diego found all factual allegations to be true and issued an interlocutory judgment of divorce.[11] On December 4, 1952, the divorce decree became final.[12] In the meantime, Lorenzo returned to the Philippines. On January married Alicia 16, 1958, Lorenzo F. Llorente in

The Facts The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy from March 10, 1927 to September 30, 1957.[3] On February 22, 1937, Lorenzo and petitioner Paula Llorente (hereinafter referred to as Paula) were married before a parish priest, Roman Catholic Church, in Nabua, Camarines Sur.[4] Before the outbreak of the Pacific War, Lorenzo departed for the United States and Paula stayed in the conjugal home in barrio Antipolo, Nabua, Camarines Sur.[5] On November 30, 1943, Lorenzo was admitted to United States citizenship and Certificate of Naturalization No. 5579816 was issued in his favor by the United States District Court, Southern District of New York.[6] Upon the liberation of the Philippines by the American Forces in 1945, Lorenzo was granted an accrued leave by the U. S. Navy, to visit his wife and he visited the Philippines.[7] He discovered that his wife Paula was pregnant and was living in and having an adulterous

Manila.[13] Apparently, Alicia had no knowledge of the first marriage even if they resided in the same town as Paula, who did not oppose the marriage or cohabitation.[14] From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife.[15] Their twenty-five (25) year union produced three children, Raul, Luz and Beverly, all surnamed Llorente.[16] On March 13, 1981, Lorenzo executed a Last Will and Testament. The will was notarized by Notary Public Salvador M. Occiano, duly signed by Lorenzo with attesting witnesses Francisco Hugo, Francisco Neibres and Tito Trajano. In the will, Lorenzo bequeathed all his property to Alicia and their three children, to wit:

F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, my real properties located in Quezon City Philippines, and covered by Transfer Certificate of Title No. 188652; and my lands in Antipolo, Rizal, Philippines, covered by Transfer Certificate of Title Nos. 124196 and 165188, both of the Registry of Deeds of the province of Rizal, Philippines; (4) That their respective shares in the above-mentioned properties, whether real or personal properties, shall not be disposed of, ceded, sold and conveyed to any other persons, but could only be sold, ceded, conveyed and disposed of by and among themselves; (5) I designate my wife ALICIA R. FORTUNO to be the sole executor of this my Last Will and Testament, and in her default or incapacity of the latter to act, any of my children in the order of age, if of age; (6) I hereby direct that the executor named herein or her lawful substitute should served (sic) without bond; (7) I hereby revoke any and all my other wills, codicils, or testamentary dispositions heretofore executed, signed, or published, by me; (8) It is my final wish and desire that if I die, no relatives of mine in any degree in the Llorentes Side should ever bother and disturb in any manner whatsoever my wife Alicia R. Fortunato and my children with respect to any real or personal properties I gave and bequeathed respectively to each one of them by

(1) I give and bequeath to my wife ALICIA R. FORTUNO exclusively my residential house and lot, located at San Francisco, Nabua, Camarines Sur, Philippines, including ALL the personal properties and other movables or belongings that may be found or existing therein; (2) I give and bequeath exclusively to my wife Alicia R. Fortuno and to my children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, all my real properties whatsoever and wheresoever located, specifically my real properties located at Barangay AroAldao, Nabua, Camarines Sur; Barangay Paloyon, Nabua, Camarines Sur; Barangay Baras, Sitio Puga, Nabua, Camarines Sur; and Barangay Paloyon, Sitio Nalilidong, Nabua, Camarines Sur; (3) I likewise give and bequeath exclusively unto my wife Alicia R. Fortuno and unto my children, Raul

virtue of this Testament.

[17]

Last

Will

and

On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines Sur, a petition for the probate and allowance of his last will and testament wherein Lorenzo moved that Alicia be appointed Special Administratrix of his estate.[18] On January 18, 1984, the trial court denied the motion for the reason that the testator Lorenzo was still alive.[19] On January 24, 1984, finding that the will was duly executed, the trial court admitted the will to probate.[20] On June 11, 1985, before the proceedings could be terminated, Lorenzo died.[21] On September 4, 1985, Paula filed with the same court a petition[22] for letters of administration over Lorenzos estate in her favor. Paula contended (1) that she was Lorenzos surviving spouse, (2) that the various property were acquired during their marriage, (3) that Lorenzos will disposed of all his property in favor of Alicia and her children, encroaching on her legitime and 1/2 share in the conjugal property.[23] On December 13, 1985, Alicia filed in the testate proceeding (Sp. Proc. No. IR755), a petition for the issuance of letters testamentary.[24] On October 14, 1985, without terminating the testate proceedings, the trial court gave due course to Paulas petition in Sp. Proc. No. IR-888.[25] On November 6, 13 and 20, 1985, the order was published in the newspaper Bicol Star.[26] On May 18, 1987, the Regional Trial Court issued a joint decision, thus:

decree granted to the late Lorenzo Llorente is void and inapplicable in the Philippines, therefore the marriage he contracted with Alicia Fortunato on January 16, 1958 at Manila is likewise void. This being so the petition of Alicia F. Llorente for the issuance of letters testamentary is denied. Likewise, she is not entitled to receive any share from the estate even if the will especially said so her relationship with Lorenzo having gained the status of paramour which is under Art. 739 (1). On the other hand, the court finds the petition of Paula Titular Llorente, meritorious, and so declares the intrinsic disposition of the will of Lorenzo Llorente dated March 13, 1981 as void and declares her entitled as conjugal partner and entitled to one-half of their conjugal properties, and as primary compulsory heir, Paula T. Llorente is also entitled to one-third of the estate and then one-third should go to the illegitimate children, Raul, Luz and Beverly, all surname (sic) Llorente, for them to partition in equal shares and also entitled to the remaining free portion in equal shares. Petitioner, Paula Llorente is appointed legal administrator of the estate of the deceased, Lorenzo Llorente. As such let the corresponding letters of administration issue in her favor upon her filing a bond in the amount (sic) of P100,000.00 conditioned for her to make a return to the court within three (3) months a true and complete inventory of all goods, chattels, rights, and credits, and estate which

Wherefore, considering that this court has so found that the divorce

shall at any time come to her possession or to the possession of any other person for her, and from the proceeds to pay and discharge all debts, legacies and charges on the same, or such dividends thereon as shall be decreed or required by this court; to render a true and just account of her administration to the court within one (1) year, and at any other time when required by the court and to perform all orders of this court by her to be performed. On the other matters prayed for in respective petitions for want of evidence could not be granted. SO ORDERED.
[27]

properties she and the deceased may have acquired during the twenty-five (25) years of cohabitation. SO ORDERED.
[32]

On August 25, 1995, petitioner filed with the Court of Appeals a motion for reconsideration of the decision.[33] On March 21, 1996, the Court of Appeals,[34] denied the motion for lack of merit. Hence, this petition.[35]

The Issue Stripping the petition of its legalese and sorting through the various [36] arguments raised, the issue is simple. Who are entitled to inherit from the late Lorenzo N. Llorente? We do not agree with the decision of the Court of Appeals. We remand the case to the trial court for ruling on the intrinsic validity of the will of the deceased.

In time, Alicia filed with the trial court a motion for reconsideration of the aforequoted decision.[28] On September 14, 1987, the trial court denied Alicias motion for reconsideration but modified its earlier decision, stating that Raul and Luz Llorente are not children legitimate or otherwise of Lorenzo since they were not legally adopted by him.[29] Amending its decision of May 18, 1987, the trial court declared Beverly Llorente as the only illegitimate child of Lorenzo, entitling her to one-third (1/3) of the estate and onethird (1/3) of the free portion of the estate.[30] On September 28, 1987, respondent appealed to the Court of Appeals.[31] On July 31, 1995, the Court of Appeals promulgated its decision, affirming with modification the decision of the trial court in this wise:

The Applicable Law The fact that the late Lorenzo N. Llorente became an American citizen long before and at the time of: (1) his divorce from Paula; (2) marriage to Alicia; (3) execution of his will; and (4) death, is duly established, admitted and undisputed. Thus, as a rule, issues arising from these incidents are necessarily governed by foreign law. The Civil Code clearly provides:

WHEREFORE, the decision appealed from is hereby AFFIRMED with the MODIFICATION that Alicia is declared as co-owner of whatever

Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens

of the Philippines, even though living abroad. Art. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary succession, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions,shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (emphasis ours)
True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them. Like any other fact, they must be alleged and proved.[37] While the substance of the foreign law was pleaded, the Court of Appeals did not admit the foreign law. The Court of Appeals and the trial court called to the fore the renvoi doctrine, where the case was referred back to the law of the decedents domicile, in this case, Philippine law. We note that while the trial court stated that the law of New York was not sufficiently proven, in the same breath it made the categorical, albeit equally unproven statement that American law follows the domiciliary theory hence, Philippine law applies when determining the validity of Lorenzos will.[38] First, there is no such thing as one American law. The "national law" indicated in Article 16 of the Civil Code cannot possibly apply to general American law. There is no such law

governing the validity of testamentary provisions in the United States. Each State of the union has its own law applicable to its citizens and in force only within the State. It can therefore refer to no other than the law of the State of which the decedent was a resident.[39] Second, there is no showing that the application of the renvoi doctrine is called for or required by New York State law. The trial court held that the will was intrinsically invalid since it contained dispositions in favor of Alice, who in the trial courts opinion was a mere paramour. The trial court threw the will out, leaving Alice, and her two children, Raul and Luz, with nothing. The Court of Appeals also disregarded the will. It declared Alice entitled to one half (1/2) of whatever property she and Lorenzo acquired during their cohabitation, applying Article 144 of the Civil Code of the Philippines. The hasty application of Philippine law and the complete disregard of the will, already probated as duly executed in accordance with the formalities of Philippine law, is fatal, especially in light of the factual and legal circumstances here obtaining.

Validity of the Foreign Divorce In Van Dorn v. Romillo, Jr.[40] we held that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces, the same being considered contrary to our concept of public policy and morality. In the same case, the Court ruled that aliens may obtain divorces abroad, provided they are valid according to their national law. Citing this landmark case, the Court held in Quita v. Court of Appeals,[41] that once proven that respondent was no

longer a Filipino citizen when he obtained the divorce from petitioner, the ruling in Van Dorn would become applicable and petitioner could very well lose her right to inherit from him. In Pilapil v. Ibay-Somera, we recognized the divorce obtained by the respondent in his country, the Federal Republic of Germany. There, we stated that divorce and its legal effects may be recognized in the Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on the status of persons.
[42]

frustrate his wishes, since he was a foreigner, not covered by our laws on family rights and duties, status, condition and legal capacity.[44] Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues best proved by foreign law which must be pleaded and proved. Whether the will was executed in accordance with the formalities required is answered by referring to Philippine law. In fact, the will was duly probated. As a guide however, the trial court should note that whatever public policy or good customs may be involved in our system of legitimes, Congress did not intend to extend the same to the succession of foreign nationals. Congress specifically left the amount of successional rights to the decedent's national law.[45] Having thus ruled, we find it unnecessary to pass upon the other issues raised.

For failing to apply these doctrines, the decision of the Court of Appeals must be reversed.[43] We hold that the divorce obtained by Lorenzo H. Llorente from his first wife Paula was valid and recognized in this jurisdiction as a matter of comity. Now, the effects of this divorce (as to the succession to the estate of the decedent) are matters best left to the determination of the trial court.

Validity of the Will The Civil Code provides:

The Fallo WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G. R. SP No. 17446 promulgated on July 31, 1995 is SET ASIDE. In lieu thereof, the Court REVERSES the decision of the Regional Trial Court and RECOGNIZES as VALID the decree of divorce granted in favor of the deceased Lorenzo N. Llorente by the Superior Court of the State of California in and for the County of San Diego, made final on December 4, 1952. Further, the Court REMANDS the cases to the court of origin for determination of the intrinsic validity of Lorenzo N. Llorentes will and determination of the parties successional rights allowing proof of foreign law with instructions that the trial court shall

Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. (underscoring ours)
The clear intent of Lorenzo to bequeath his property to his second wife and children by her is glaringly shown in the will he executed. We do not wish to

proceed with all deliberate dispatch to settle the estate of the deceased within the framework of the Rules of Court. No costs. SO ORDERED.
Republic SUPREME Manila EN BANC G.R. Nos. L-3087 and L-3088 1954 July 31, of the Philippines COURT

In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY, petitionerappellant, vs. In re: Intestate Estate of the deceased JOSE B. SUNTAY, FEDERICO C. SUNTAY, administratorappellee. Claro M. Recto for Sison and Aruego for appellee. PADILLA, J.: This is an appeal from a decree of the Court of First Instance of Bulacan disallowing the alleged will and testament executed in Manila on November 1929, and the alleged last will and testament executed in Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay. The value of the estate left by the deceased is more than P50,000. On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in the city of Amoy, Fookien province, Republic of China, leaving real and personal properties in the Philippines and a house in Amoy, Fookien province, China, and children by the first marriage had with the late Manuela T. Cruz namely, Apolonio, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano, and Jose, Jr. and a child named Silvino by the second marriage had with Maria Natividad Lim Billian who survived him. Intestate proceedings were instituted in the Court of First Instance of Bulacan (special proceedings No. 4892) and after hearing letters of administration were issued to Apolonio Suntay. After the latter's death Federico C. Suntay was appointed appellant.

administrator of the estate. On 15 October 1934 the surviving widow filed a petition in the Court of First Instance of Bulacan for the probate of a last will and testament claimed to have been executed and signed in the Philippines on November 1929 by the late Jose B. Suntay. This petition was denied because of the loss of said will after the filing of the petition and before the hearing thereof and of the insufficiency of the evidence to establish the loss of the said will. An appeal was taken from said order denying the probate of the will and this Court held the evidence before the probate court sufficient to prove the loss of the will and remanded the case to the Court of First Instance of Bulacan for the further proceedings (63 Phil., 793). In spite of the fact that a commission from the probate court was issued on 24 April 1937 for the taking of the deposition of Go Toh, an attesting witness to the will, on 7 February 1938 the probate court denied a motion for continuance of the hearing sent by cablegram from China by the surviving widow and dismissed the petition. In the meantime the Pacific War supervened. After liberation, claiming that he had found among the files, records and documents of his late father a will and testament in Chinese characters executed and signed by the deceased on 4 January 1931 and that the same was filed, recorded and probated in the Amoy district court, Province of Fookien, China, Silvino Suntay filed a petition in the intestate proceedings praying for the probate of the will executed in the Philippines on November 1929 (Exhibit B) or of the will executed in Amoy, Fookien, China, on 4 January 1931 (Exhibit N). There is no merit in the contention that the petitioner Silvino Suntay and his mother Maria Natividad Lim Billian are estopped from asking for the probate of the lost will or of the foreign will because of the transfer or assignment of their share right, title and interest in the estate of the late Jose B. Suntay to Jose G. Gutierrez and the spouses Ricardo Gutierrez and Victoria Goo and the subsequent assignment thereof by the assignees to Francisco Pascual and by the latter to Federico C. Suntay, for the validity and legality of such assignments cannot be threshed out in this proceedings which is concerned only with the probate of the will and testament executed in the Philippines on November 1929 or of the foreign will allegedly executed in Amoy on 4 January 1931 and claimed to have been probated in the municipal district court of Amoy, Fookien province, Republic of China.

As to prescription, the dismissal of the petition for probate of the will on 7 February 1938 was no bar to the filing of this petition on 18 June 1947, or before the expiration of ten years. As to the lost will, section 6, Rule 77, provides: No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded. The witnesses who testified to the provisions of the lost will are Go Toh, an attesting witness, Anastacio Teodoro and Ana Suntay. Manuel Lopez, who was an attesting witness to the lost will, was dead at the time of the hearing of this alternative petition. In his deposition Go Toh testifies that he was one of the witnesses to the lost will consisting of twenty-three sheets signed by Jose B. Suntay at the bottom of the will and each and every page thereof in the presence of Alberto Barretto, Manuel Lopez and himself and underneath the testator's signature the attesting witnesses signed and each of them signed the attestation clause and each and every page of the will in the presence of the testator and of the other witnesses (answers to the 31st, 41st, 42nd, 49th, 50th, 55th and 63rd interrogatories, Exhibit D-1), but did not take part in the drafting thereof (answer to the 11th interrogatory, Id.); that he knew the contents of the will written in Spanish although he knew very little of that language (answers to the 22nd and 23rd interrogatories and to X-2 crossinterrogatory, Id.) and all he knows about the contends of the lost will was revealed to him by Jose B. Suntay at the time it was executed (answers to the 25th interrogatory and to X-4 and X-8 cross-interrogatories, Id.); that Jose B. Suntay told him that the contents thereof are the same as those of the draft (Exhibit B) (answers to the 33rd interrogatory and to X-8 crossinterrogatory, Id.) which he saw in the office of Alberto Barretto in November 1929 when the

will was signed (answers to the 69th, 72nd, and 74th interrogatories, Id); that Alberto Barretto handed the draft and said to Jose B. Suntay: "You had better see if you want any correction" (answers to the 81st, 82nd and 83rd interrogatories, Id.); that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed and executed" (answers to the 91st interrogatory, and to X-18 crossinterrogatory, Id.); that Mrs. Suntay had the draft of the will (Exhibit B) translated into Chinese and he read the translation (answers to the 67th interrogatory, Id.); that he did not read the will and did not compare it (check it up) with the draft (Exhibit B) (answers to X-6 and X-20 cross-interrogatories, Id.). Ana Suntay testifies that sometime in September 1934 in the house of her brother Apolonio Suntay she learned that her father left a will "because of the arrival of my brother Manuel Suntay, who was bringing along with him certain document and he told us or he was telling us that it was the will of our father Jose B. Suntay which was taken from Go Toh. ..." (p. 524, t. s. n., hearing of 24 February 1948); that she saw her brother Apolonio Suntay read the document in her presence and of Manuel and learned of the adjudication made in the will by her father of his estate, to wit: one-third to his children, one-third to Silvino and his mother and the other third to Silvino, Apolonio, Concepcion and Jose, Jr. (pp. 526-8, 530-1, 542, t. s. n. Id.); that "after Apolonio read that portion, then he turned over the document to Manuel, and he went away," (p. 528, t. s. n., Id.). On crossexamination, she testifies that she read the part of the will on adjudication to know what was the share of each heir (pp. 530, 544, t. s. n., Id.) and on redirect she testifies that she saw the signature of her father, Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.). Anastacio Teodoro testifies that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948), before the last postponement of the hearing granted by the Court, Go Toh arrived at his law office in the De los Reyes Building and left an envelope wrapped in red handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947); that he checked up the signatures on the envelope Exhibit A with those on the will placed in the envelope (p. 33, t. s. n., Id.); that the will was exactly the same as the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.). If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro And returned

by the latter to the former because they could not agree on the amount of fees, the former coming to the latter's office straight from the boat (p. 315, t. s. n., hearing of 19 January 1948) that brought him to the Philippines from Amoy, and that delivery took place in November 1934 (p. 273, t. s. n., Id.), then the testimony of Ana Suntay that she saw and heard her brother Apolonio Suntay read the will sometime in September 1934 (p. 524, t. s. n., hearing of 24 February 1948), must not be true. Although Ana Suntay would be a good witness because she was testifying against her own interest, still the fact remains that she did not read the whole will but only the adjudication (pp. 526-8, 530-1, 542, t. s. n., Id.) and saw only the signature, of her father and of the witnesses Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n.,Id.). But her testimony on crossexamination that she read the part of the will on adjudication is inconsistent with her testimony in chief that after Apolonio had read that part of the will he turned over or handed the document to Manuel who went away (p. 528, t. s. n., Id.). If it is true that Go Toh saw the draft Exhibit B in the office of Alberto Barretto in November 1929 when the will was signed, then the part of his testimony that Alberto Barretto handed the draft to Jose B. Suntay to whom he said: "You had better see if you want any correction" and that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed and executed" cannot be true, for it was not the time for correcting the draft of the will, because it must have been corrected before and all corrections and additions written in lead pencil must have been inserted and copied in the final draft of the will which was signed on that occasion. The bringing in for the draft (Exhibit B) on that occasion is just to fit it within the framework of the appellant's theory. At any rate, all of Go Toh's testimony by deposition on the provisions of the alleged lost will is hearsay, because he came to know or he learned to them from information given him by Jose B. Suntay and from reading the translation of the draft (Exhibit B) into Chinese. Much stress is laid upon the testimony of Federico C. Suntay who testifies that he read the supposed will or the alleged will of his father and that the share of the surviving widow, according to the will, is two-thirds of the estate (p. 229, t. s. n., hearing of 24 October 1947). But this witness testified to oppose the appointment of a co-administrator of the estate,

for the reason that he had acquired the interest of the surviving widow not only in the estate of her deceased husband but also in the conjugal property (pp. 148, 205, 228, 229, 231, t. s. n., Id.) Whether he read the original will or just the copy thereof (Exhibit B) is not clear. For him the important point was that he had acquired all the share, participation and interest of the surviving widow and of the only child by the second marriage in the estate of his deceased father. Be that as it may, his testimony that under the will the surviving widow would take two-thirds of the estate of the late Jose B. Suntay is at variance with Exhibit B and the testimony of Anastacio Teodoro. According to the latter, the third for strict legitime is for the ten children; the third for betterment is for Silvino, Apolonio, Concepcion and Jose Jr.; and the third for free disposal is for the surviving widow and her child Silvino. Hence, granting that there was a will duly executed by Jose B. Suntay placed in the envelope (Exhibit A) and that it was in existence at the time of, and not revoked before, his death, still the testimony of Anastacio Teodoro alone falls short of the legal requirement that the provisions of the lost will must be "clearly and distinctly proved by at least two credible witnesses." Credible witnesses mean competent witnesses and those who testify to facts from or upon hearsay are neither competent nor credible witnesses. On the other hand, Alberto Barretto testifies that in the early part of 1929 he prepared or drew up two mills for Jose B. Suntay at the latter's request, the rough draft of the first will was in his own handwriting, given to Manuel Lopez for the final draft or typing and returned to him; that after checking up the final with the rough draft he tore it and returned the final draft to Manuel Lopez; that this draft was in favor of all the children and the widow (pp. 392-4, 449, t. s. n., hearing of 21 February 1948); that two months later Jose B. Suntay and Manuel Lopez called on him and the former asked him to draw up another will favoring more his wife and child Silvino; that he had the rough draft of the second will typed (pp. 395, 449 t. s. n., Id.) and gave it to Manuel Lopez (p. 396, t. s. n., Id.); that he did not sign as witness the second will of Jose B. Suntay copied from the typewritten draft [Exhibit B] (p. 420, t. s. n., Id.); that the handwritten insertions or additions in lead pencil to Exhibit B are not his (pp. 415-7 435-6, 457, t. s. n., Id.); that the final draft of the first will made up of four or five pages (p. 400, t. s. n., Id.) was

signed and executed, two or three months after Suntay and Lopez had called on him (pp. 397-8, 403, 449, t. s. n., Id.) in his office at the Cebu Portland Cement in the China Banking Building on Dasmarias street by Jose B. Suntay, Manuel Lopez and a Chinaman who had all come from Hagonoy (p. 398, t. s. n., Id.); that on that occasion they brought an envelope (Exhibit A) where the following words were written: "Testamento de Jose B. Suntay" (pp. 399, 404, t. s. n., Id.); that after the signing of the will it was placed inside the envelope (Exhibit A) together with an inventory of the properties of Jose B. Suntay and the envelope was sealed by the signatures of the testator and the attesting witnesses (pp. 398, 401, 441, 443, 461, t. s. n., Id.); that he again saw the envelope (Exhibit A) in his house one Saturday in the later part of August 1934, brought by Go Toh and it was then in perfect condition (pp. 405-6, 411, 440-2, t. s. n., Id.); that on the following Monday Go Toh went to his law office bringing along with him the envelope (Exhibit A) in the same condition; that he told Go Toh that he would charge P25,000 as fee for probating the will (pp. 406, 440-2, Id.); that Go Toh did not leave the envelope (Exhibit A) either in his house or in his law office (p. 407, t. s. n., Id.); that Go Toh said he wanted to keep it and on no occasion did Go Toh leave it to him (pp. 409, 410, t. s. n., Id.). The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert in connection with the complaint for estafa filed against Manuel Suntay for the alleged snatching of the envelope (Exhibit A), corroborates the testimony of Alberto Barretto to the effect that only one will was signed by Jose B. Suntay at his office in which he (Alberto Barretto), Manuel Lopez and Go Toh took part as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh testified before the same assistant fiscal that he did not leave the will in the hands of Anastacio Teodoro (p. 26, t. s. n., Exhibit 6). He said, quoting his own words, "Because I can not give him this envelope even though the contract (on fees) was signed. I have to bring that document to court or to anywhere else myself." (p. 27, t. s. n., Exhibit 6). As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on the point in Rule 78. Section 1 of the rule provides: Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines.

Section 2 provides: When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines, by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance. Section 3 provides: If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a certificate of its allowance, signed by the Judge, and attested by the seal of the courts, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will shall have the same effect as if originally proved and allowed in such court. The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law of China on procedure in the probate or allowance of wills must also be proved. The legal requirements for the execution of a valid will in China in 1931 should also be established by competent evidence. There is no proof on these points. The unverified answers to the questions propounded by counsel for the appellant to the Consul General of the Republic of China set forth in Exhibits R-1 and R-2, objected to by counsel for the appellee, are inadmissible, because apart from the fact that the office of Consul General does not qualify and make the person who holds it an expert on the Chinese law on procedure in probate matters, if the same be admitted, the adverse party would be deprived of his right to confront and cross-examine the witness. Consuls are appointed to attend to trade matters. Moreover, it appears that all the proceedings had in the municipal district court of Amoy were for the purpose of taking the testimony of two attesting witnesses to the will and that the order of the municipal district court of Amoy does not purport to probate the will. In the absence of proof that the municipal district court of Amoy is a probate court and on the Chinese law of procedure in probate matters, it may be presumed that the proceedings in the matter of probating or allowing a will in the Chinese courts are the a deposition or to a perpetuation of testimony, and even if it were so

it does not measure same as those provided for in our laws on the subject. It is a proceedings in rem and for the validity of such proceedings personal notice or by publication or both to all interested parties must be made. The interested parties in the case were known to reside in the Philippines. The evidence shows that no such notice was received by the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing of 24 February 1948). The proceedings had in the municipal district court of Amoy, China, may be likened toe or come up to the standard of such proceedings in the Philippines for lack of notice to all interested parties and the proceedings were held at the back of such interested parties. The order of the municipal district court of Amoy, China, which reads as follows: ORDER: SEE BELOW The above minutes were satisfactorily confirmed by the interrogated parties, who declare that there are no errors, after said minutes were loudly read and announced actually in the court. Done and subscribed on the Nineteenth day of the English month of the 35th year of the Republic of China in the Civil Section of the Municipal District Court of Amoy, China. HUANG Clerk of Court CHIANG Judge KUANG TENG CHENG HWA

referred to therein cannot be allowed, filed and recorded by a competent court of this country. The decree appealed from is affirmed, without pronouncement as to costs. Pablo, Bengzon, A. Reyes, Labrador and Concepcion, JJ., concur. SUPREME Manila SECOND DIVISION G.R. No. 145370 March 4, 2004 COURT

MARIETTA B. ANCHETA, petitioner, vs. RODOLFO S. ANCHETA, respondent. DECISION CALLEJO, SR., J.: This is a petition for review on certiorari of the Resolution1 of the Court of Appeals in CA-G.R. SP No. 59550 which dismissed the petitioners petition under Rule 47 of the 1997 Rules of Civil Procedure to annul the Order2 of the Regional Trial Court of Naic, Cavite, Branch 15 in Special Proceedings No. NC-662 nullifying the marriage of the petitioner and the respondent Rodolfo S. Ancheta, and of the resolution of the appellate court denying the motion for reconsideration of the said resolution. This case arose from the following facts: After their marriage on March 5, 1959, the petitioner and the respondent resided in Muntinlupa, Metro Manila. They had eight children during their coverture, whose names and dates of births are as follows: a. ANA MARIE B . ANCHETA born October 6, 1959 b. RODOLFO B. ANCHETA, JR. born March 7, 1961 c. VENANCIO MARIANO B. ANCHETA born May 18, 1962 d. GERARDO B. ANCHETA born April 8, 1963

(Exhibit N-13, p. 89 Folder of Exhibits.). does not purport to probate or allow the will which was the subject of the proceedings. In view thereof, the will and the alleged probate thereof cannot be said to have been done in accordance with the accepted basic and fundamental concepts and principles followed in the probate and allowance of wills. Consequently, the authenticated transcript of proceedings held in the municipal district court of Amoy, China, cannot be deemed and accepted as proceedings leading to the probate or allowance of a will and, therefore, the will

e. KATHRINA B. ANCHETA born October 29, 1965 f. ANTONIO B. ANCHETA born March 6, 1967 g. NATASHA MARTINA B. ANCHETA born August 2, 1968 h. FRITZIE YOLANDA B. ANCHETA born November 19, 19703 On December 6, 1992, the respondent left the conjugal home and abandoned the petitioner and their children. On January 25, 1994, petitioner Marietta Ancheta filed a petition with the Regional Trial Court of Makati, Branch 40, against the respondent for the dissolution of their conjugal partnership and judicial separation of property with a plea for support and support pendente lite. The case was docketed as Sp. Proc. No. M-3735. At that time, the petitioner was renting a house at No. 72 CRM Avenue cor. CRM Corazon, BF Homes, Almanza, Las Pias, Metro Manila.4 On April 20, 1994, the parties executed a Compromise Agreement5 where some of the conjugal properties were adjudicated to the petitioner and her eight children, including the following: b. A parcel of land (adjoining the two lots covered by TCT Nos. 120082 and TCT No. 120083-Cavite) located at Bancal, Carmona, Cavite, registered in the name of the family Ancheta. Biofood Corporation under TCT No. 310882, together with the resort Munting Paraiso, Training Center, four-storey building, pavilion, swimming pool and all improvements. All of the shares of stocks of Ancheta Biofoods Corporation were distributed one-third (1/3) to the petitioner and the eight children one-twelfth (1/12) each.6 The court rendered judgment based on the said compromise agreement. Conformably thereto, the respondent vacated, on June 1, 1994, the resort Munting Paraiso and all the buildings and improvements thereon. The petitioner, with the knowledge of the respondent, thenceforth resided in the said property. In the meantime, the respondent intended to marry again. On June 5, 1995, he filed a petition with the Regional Trial Court of Naic, Cavite, Branch 15, for the declaration of nullity of his

marriage with the petitioner on the ground of psychological incapacity. The case was docketed as Sp. Proc. No. NC-662. Although the respondent knew that the petitioner was already residing at the resort Munting Paraiso in Bancal, Carmona, Cavite, he, nevertheless, alleged in his petition that the petitioner was residing at No. 72 CRM Avenue corner CRM Corazon, BF Homes, Almanza, Las Pias, Metro Manila, "where she may be served with summons."7 The clerk of court issued summons to the petitioner at the address stated in the petition.8 The sheriff served the summons and a copy of the petition by substituted service on June 6, 1995 on the petitioners son, Venancio Mariano B. Ancheta III, at his residence in Bancal, Carmona, Cavite.9 On June 21, 1995, Sheriff Jose R. Salvadora, Jr. submitted a Return of Service to the court stating that the summons and a copy of the petition were served on the petitioner through her son Venancio Mariano B. Ancheta III on June 6, 1995: RETURN OF SERVICE This is to certify that the summons together with the copy of the complaint and its annexes was received by the herein defendant thru his son Venancio M.B. Ancheta [III] as evidenced by the signature appearing on the summons. Service was made on June 6, 1995. June 21, 1995, Naic, Cavite. (Sgd.) JOSE Sheriff10 R. SALVADORA, JR.

The petitioner failed to file an answer to the petition. On June 22, 1995, the respondent filed an "Ex-Parte Motion to Declare Defendant as in Default" setting it for hearing on June 27, 1995 at 8:30 a.m. During the hearing on the said date, there was no appearance for the petitioner. The public prosecutor appeared for the State and offered no objection to the motion of the respondent who appeared with counsel. The trial court granted the motion and declared the petitioner in default, and allowed the respondent to adduce evidence ex-parte. The respondent testified in his behalf and adduced documentary evidence. On July 7, 1995, the trial court issued an Order granting the petition and declaring the marriage of the parties void ab initio.11 The clerk of court issued a Certificate

of Finality of the Order of the court on July 16, 1996.12 On February 14, 1998, Valentines Day, the respondent and Teresita H. Rodil were married in civil rights before the municipal mayor of Indang, Cavite.13 On July 7, 2000, the petitioner filed a verified petition against the respondent with the Court of Appeals under Rule 47 of the Rules of Court, as amended, for the annulment of the order of the RTC of Cavite in Special Proceedings No. NC662. The case was docketed as CA-G.R. SP No. 59550. The petitioner alleged, inter alia, that the respondent committed gross misrepresentations by making it appear in his petition in Sp. Proc. No. NC-662 that she was a resident of No. 72 CRM Avenue cor. CRM Corazon, BF Homes, Almanza, Las Pias, Metro Manila, when in truth and in fact, the respondent knew very well that she was residing at Munting Paraiso, Bancal, Carmona, Cavite. According to the petitioner, the respondent did so to deprive her of her right to be heard in the said case, and ultimately secure a favorable judgment without any opposition thereto. The petitioner also alleged that the respondent caused the service of the petition and summons on her by substituted service through her married son, Venancio Mariano B. Ancheta III, a resident of Bancal, Carmona, Cavite, where the respondent was a resident. Furthermore, Venancio M.B. Ancheta III failed to deliver to her the copy of the petition and summons. Thus, according to the petitioner, the order of the trial court in favor of the respondent was null and void (1) for lack of jurisdiction over her person; and (2) due to the extrinsic fraud perpetrated by the respondent. She further contended that there was no factual basis for the trial courts finding that she was suffering from psychological incapacity. Finally, the petitioner averred that she learned of the Order of the RTC only on January 11, 2000. Appended to the petition, inter alia, were the affidavits of the petitioner and of Venancio M.B. Ancheta III. The petitioner prayed that, after due proceedings, judgment be rendered in her favor, thus: WHEREFORE, petitioner respectfully prays this Honorable Court to render Judgment granting the Petition.

1. Declaring null and void the Order dated June 7, 1995 (of the Regional Trial Court, Branch 14, Naic, Cavite). 2. Ordering respondent to pay petitioner a. P1,000,000.00 damages; b. P500,000.00 damages; as as moral

exemplary

c. P200,000.00 as attorneys fees plus P7,500.00 per diem for every hearing; d. P100,000.00 expenses; e. Costs of suit.14 On July 13, 2000, the CA issued a Resolution dismissing the petition on the following ground: We cannot give due course to the present petition in default or in the absence of any clear and specific averment by petitioner that the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of petitioner. Neither is there any averment or allegation that the present petition is based only on the grounds of extrinsic fraud and lack of jurisdiction. Nor yet that, on the assumption that extrinsic fraud can be a valid ground therefor, that it was not availed of, or could not have been availed of, in a motion for new trial, or petition for relief.15 The petitioner filed a motion for the reconsideration of the said resolution, appending thereto an amended petition in which she alleged, inter alia, that: 4. This petition is based purely on the grounds of extrinsic fraud and lack of jurisdiction. 5. This petition has not prescribed; it was filed within the four-year period after discovery of the extrinsic fraud. 6. The ground of extrinsic fraud has not been availed of, or could not have been availed of in a motion for new trial or petition for relief. as litigation

7. The ground of lack of jurisdiction is not barred by laches and/or estoppel. 8. The ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies were no longer available through no fault of petitioner; neither has she ever availed of the said remedies. This petition is the only available remedy to her.16 The petitioner also alleged therein that the order of the trial court nullifying her and the respondents marriage was null and void for the court a quos failure to order the public prosecutor to conduct an investigation on whether there was collusion between the parties, and to order the Solicitor General to appear for the State. On September 27, 2000, the CA issued a Resolution denying the said motion. The petitioner filed a petition for review on certiorari with this Court alleging that the CA erred as follows: 1. In failing to take into consideration the kind of Order which was sought to be annulled. 2. In finding that the Petition was procedurally flawed. 3. In not finding that the Petition substantially complied with the requirements of the Rules of Court. 4. In failing to comply with Section 5, Rule 47, Rules of Court. 5. In not even considering/resolving Petitioners Motion to Admit the Amended Petition; and in not admitting the Amended Petition. 6. In failing to apply the Rules of Procedure with liberality.17 The petition is meritorious. An original action in the Court of Appeals under Rule 47 of the Rules of Court, as amended, to annul a judgment or final order or resolution in civil actions of the RTC may be based on two grounds: (a) extrinsic fraud; or (b) lack of

jurisdiction. If based on extrinsic fraud, the remedy is subject to a condition precedent, namely, the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner.18 The petitioner must allege in the petition that the ordinary remedies of new trial, appeal, petition for relief from judgment, under Rule 38 of the Rules of Court are no longer available through no fault of hers; otherwise, the petition will be dismissed. If the petitioner fails to avail of the remedies of new trial, appeal or relief from judgment through her own fault or negligence before filing her petition with the Court of Appeals, she cannot resort to the remedy under Rule 47 of the Rules; otherwise, she would benefit from her inaction or negligence.19 It is not enough to allege in the petition that the said remedies were no longer available through no fault of her own. The petitioner must also explain and justify her failure to avail of such remedies. The safeguard was incorporated in the rule precisely to avoid abuse of the remedy.20 Access to the courts is guaranteed. But there must be limits thereto. Once a litigants rights have been adjudicated in a valid final judgment of a competent court, he should not be granted an unbridled license to sue anew. The prevailing party should not be vexed by subsequent suits.21 In this case, the petitioner failed to allege in her petition in the CA that the ordinary remedies of new trial, appeal, and petition for relief, were no longer available through no fault of her own. She merely alleged therein that she received the assailed order of the trial court on January 11, 2000. The petitioners amended petition did not cure the fatal defect in her original petition, because although she admitted therein that she did not avail of the remedies of new trial, appeal or petition for relief from judgment, she did not explain why she failed to do so. We, however, rule that the Court of Appeals erred in dismissing the original petition and denying admission of the amended petition. This is so because apparently, the Court of Appeals failed to take note from the material allegations of the petition, that the petition was based not only on extrinsic fraud but also on lack of jurisdiction over the person of the petitioner, on her claim that the summons and the copy of the complaint in Sp. Proc. No. NC662 were not served on her. While the original petition and amended petition did not state a

cause of action for the nullification of the assailed order on the ground of extrinsic fraud, we rule, however, that it states a sufficient cause of action for the nullification of the assailed order on the ground of lack of jurisdiction of the RTC over the person of the petitioner, notwithstanding the absence of any allegation therein that the ordinary remedy of new trial or reconsideration, or appeal are no longer available through no fault of the petitioner. In a case where a petition for the annulment of a judgment or final order of the RTC filed under Rule 47 of the Rules of Court is grounded on lack of jurisdiction over the person of the defendant/respondent or over the nature or subject of the action, the petitioner need not allege in the petition that the ordinary remedy of new trial or reconsideration of the final order or judgment or appeal therefrom are no longer available through no fault of her own. This is so because a judgment rendered or final order issued by the RTC without jurisdiction is null and void and may be assailed any time either collaterally or in a direct action or by resisting such judgment or final order in any action or proceeding whenever it is invoked,22 unless barred by laches.23 In this case, the original petition and the amended petition in the Court of Appeals, in light of the material averments therein, were based not only on extrinsic fraud, but also on lack of jurisdiction of the trial court over the person of the petitioner because of the failure of the sheriff to serve on her the summons and a copy of the complaint. She claimed that the summons and complaint were served on her son, Venancio Mariano B. Ancheta III, who, however, failed to give her the said summons and complaint. Even a cursory reading of the material averments of the original petition and its annexes will show that it is, prima facie meritorious; hence, it should have been given due course by the Court of Appeals. In Paramount Insurance Corporation v. Japzon,24 we held that jurisdiction is acquired by a trial court over the person of the defendant either by his voluntary appearance in court and his submission to its authority or by service of summons. The service of summons and the complaint on the defendant is to inform him that a case has been filed against him and, thus, enable him to defend himself. He is, thus, put on

guard as to the demands of the plaintiff or the petitioner. Without such service in the absence of a valid waiver renders the judgment of the court null and void.25 Jurisdiction cannot be acquired by the court on the person of the defendant even if he knows of the case against him unless he is validly served with summons.26 Summons and complaint may be served on the defendant either by handing a copy thereof to him in person, or, if he refuses to receive and sign for it, by tendering it to her.27 However, if there is impossibility of prompt service of the summons personally on the defendant despite diligent efforts to find him, service of the summons may be effected by substituted service as provided in Section 7, Rule 14 of the said Rules: SEC. 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendants residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies of defendants office or regular place of business with some competent person in charge thereof.28 In Miranda v. Court of Appeals,29 we held that the modes of service should be strictly followed in order that the court may acquire jurisdiction over the person of the defendant. Thus, it is only when a defendant cannot be served personally within a reasonable time that substituted service may be made by stating the efforts made to find him and personally serve on him the summons and complaint and the fact that such effort failed.30 This statement should be made in the proof of service to be accomplished and filed in court by the sheriff. This is necessary because substituted service is a derogation of the usual method of service. It has been held that substituted service of summons is a method extraordinary in character; hence, may be used only as prescribed and in the circumstances categorized by statutes.31 As gleaned from the petition and the amended petition in the CA and the annexes thereof, the summons in Sp. Proc. No. NC-662 was issued on June 6, 1995.32 On the same day, the summons was served on and received by Venancio Mariano B. Ancheta III,33 the petitioners son. When the return of summons was submitted to the court by the sheriff on June 21, 1995, no statement was made on the

impossibility of locating the defendant therein within a reasonable time, or that any effort was made by the sheriff to locate the defendant. There was no mention therein that Venancio Mariano Ancheta III was residing at No. 72 CRM Avenue cor. CRM Corazon, BF Homes, Almanza, Las Pias, where the petitioner (defendant therein) was allegedly residing. It turned out that Venancio Mariano B. Ancheta III had been residing at Bancal, Carmona, Cavite, and that his father merely showed him the summons and the complaint and was made to affix his signature on the face of the summons; he was not furnished with a copy of the said summons and complaint. 4. From the time my father started staying at Munting Paraiso, Bancal, Carmona, Cavite, I have been residing on the adjoining land consisting of two (2) lots later apportioned to my father as his share of the conjugal partnership. Since then, I have been residing therein up to the present. 5. On June 6, 1995, at Bancal, Carmona, Cavite (at my residence situated on my fathers lot), my father came to see me and then asked me to sign and I did sign papers which he (my father) and the Sheriff did not allow me to read. Apparently, these papers are for the Summons to my mother in the case for annulment of marriage filed by my father against her. I was not given any copy of the Summons and/or copy of the complaint/petition.34 We, thus, rule that the Court of Appeals acted arbitrarily in dismissing the original petition of the petitioner and the amended petition for annulment of the assailed order grounded on lack of jurisdiction over the person of the petitioner. The action in Rule 47 of the Rules of Court does not involve the merits of the final order of the trial court. However, we cannot but express alarm at what transpired in the court a quo as shown by the records. The records show that for the petitioners failure to file an answer to the complaint, the trial court granted the motion of the respondent herein to declare her in default. The public prosecutor condoned the acts of the trial court when he interposed no objection to the motion of the respondent. The trial court forthwith received the evidence of the respondent ex-parte and rendered judgment

against the petitioner without a whimper of protest from the public prosecutor. The actuations of the trial court and the public prosecutor are in defiance of Article 48 of the Family Code, which reads: Article 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment.35 The trial court and the public prosecutor also ignored Rule 18, Section 6 of the 1985 Rules of Court (now Rule 9, Section 3[e] of the 1997 Rules of Civil Procedure) which provides: Sec. 6. No defaults in actions for annulment of marriage or for legal separation. If the defendant in an action for annulment of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exits, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated.36 In the case of Republic v. Court of Appeals,37 this Court laid down the guidelines in the interpretation and application of Art. 48 of the Family Code, one of which concerns the role of the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State: (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095.38

This Court in the case of Malcampo-Sin v. Sin39 reiterated its pronouncement in Republic v. Court of Appeals,40regarding the role of the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State.41 The trial court, abetted by the ineptitude, if not sheer negligence of the public prosecutor, waylaid the Rules of Court and the Family Code, as well as the rulings of this Court. The task of protecting marriage as an inviolable social institution requires vigilant and zealous participation and not mere pro-forma compliance. The protection of marriage as a sacred institution requires not just the defense of a true and genuine union but the exposure of an invalid one as well.42 A grant of annulment of marriage or legal separation by default is fraught with the danger of collusion. Hence, in all cases for annulment, declaration of nullity of marriage and legal separation, the prosecuting attorney or fiscal is ordered to appear on behalf of the State for the purpose of preventing any collusion between the parties and to take care that their evidence is not fabricated or suppressed. If the defendant-spouse fails to answer the complaint, the court cannot declare him or her in default but instead, should order the prosecuting attorney to determine if collusion exists between the parties. The prosecuting attorney or fiscal may oppose the application for legal separation or annulment through the presentation of his own evidence, if in his opinion, the proof adduced is dubious and fabricated. Our constitution is committed to the policy of strengthening the family as a basic social institution. Our family law is based on the policy that marriage is not a mere contract, but a social institution in which the State is vitally interested. The State can find no stronger anchor than on good, solid and happy families. The break-up of families weakens our social and moral fabric; hence, their preservation is not the concern of the family members alone.43Whether or not a marriage should continue to exist or a family should stay together must not depend on the whims and caprices of only one party, who claims that the other suffers psychological imbalance, incapacitating such party to fulfill his or her marital duties and obligations. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Resolutions of the Court of Appeals dated July 13, 2000 and September 27, 2000 in CA-G.R. SP No. 59550

are hereby SET ASIDE and REVERSED. Let the records of CA-G.R. SP No. 59550 be remanded to the Court of Appeals for further proceedings conformably with the Decision of this Court and Rule 47 of the Rules of Court, as amended. SO ORDERED.