Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-17818 January 25, 1967
TIRSO T. REYES, as guardian of the minors Azucena Flordelis and Tirso, Jr.,
all surnamed Reyes y Barretto, plaintiffs-appellants,
vs.
LUCIA MILAGROS BARRETTO-DATU, defendant-appellee.
Recto Law Office for plaintiff-appealant.
Deogracias T. Reyes and Associates for defendant-appellee.
REYES, J.B.L., J.:
Direct appeal from a judgment of the Court of First Instance of Bulacan, in its
Civil Case No. 1084, dismissing the complaint of appellant Tirso T. Reyes and
ordering the same to deliver to the defendant-appellee, Lucia Milagros Barretto-
Datu, the properties receivea by his deceasea wife under the terms of the will of
the late Bibiano Barretto, consisting of lots in Manila, Rizal, Pampanga and
Bulacan, valued at more than P200,000.
The decision appealed from sets the antecedents of the case to be as follows:
"This is an action to recover one-half share in the fishpond, located in
the barrio of San Roque, Hagonoy, Bulacan, covered by Transfer
Certificate of Title No. T-13734 of the Land Records of this Province,
being the share of plaintiff's wards as minor heirs of the deceased Salud
Barretto, widow of plaintiff Tirso Reyes, guardian of said minors."
It appears that Bibiano Barretto was married to Maria Gerardo. During their
lifetime they acquired a vast estate, consisting of real properties in Manila,
Pampanga, and Bulacan, covered by Transfer Certificates of Title Nos. 41423,
22443, 8858, 32989, 31046, 27285, 6277, 6500, 2057, 6501, 2991, 57403 and
12507/T-337.
When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left
his share of these properties in a will Salud Barretto, mother of plaintiff's wards,
and Lucia Milagros Barretto and a small portion as legacies to his two sisters
Rosa Barretto and Felisa Barretto and his nephew an nieces The usufruct o
the fishpon situate i barrio Sa Roque Hagonoy, Bulacan, above-mentioned,
however, was reserved for his widow, Maria Gerardo I the meantime Maria
Gerardo was appointe administratrix. By virtue thereof, she prepared a project
of partition, which was signed by her in her own behalf and as guardian of the
minor Milagros Barretto. Said project of partition was approved by the Court of
First Instance of Manila on November 22, 1939. The distribution of the estate
and the delivery of the shares of the heirs followed forthwith. As a consequence,
Salud Barretto took immediate possession of her share and secured the
cancellation of the original certificates of title and the issuance of new titles in
her own name.
Everything went well since then. Nobody was heard to complain of any
irregularity in the distribution of the said estate until the widow, Maria Gerardo
died on March 5, 1948. Upon her death, it was discovered that she had executed
two wills, in the first of which, she instituted Salud and Milagros, both surnamed
Barretto, as her heirs; and, in the second, she revoked the same and left all her
properties in favor of Milagros Barretto alone. Thus, the later will was allowed
and the first rejected. In rejecting the first will presented by Tirso Reyes, as
guardian of the children of Salud Barretto, the lower court held that Salud was
not the daughter of the decedent Maria Gerardo by her husband Bibiano
Barretto. This ruling was appealed to the Supreme Court, which affirmed the
same.
1

Having thus lost this fight for a share in the estate of Maria Gerardo, as a
legitimate heir of Maria Gerardo, plaintiff now falls back upon the remnant of
the estate of the deceased Bibiano Barretto, which was given in usufruct to his
widow Maria Gerardo. Hence, this action for the recovery of one-half portion,
thereof.
This action afforded the defendant an opportunity to set up her right of
ownership, not only of the fishpond under litigation, but of all the other
properties willed and delivered to Salud Barretto, for being a spurious heir, and
not entitled to any share in the estate of Bibiano Barretto, thereby directly
attacking the validity, not only of the project of partition, but of the decision of
the court based thereon as well.
The defendant contends that the Project of Partition from which Salud acquired
the fishpond in question is void ab initio and Salud Barretto did not acquire any
valid title thereto, and that the court did not acquire any jurisdiction of the
person of the defendant, who was then a minor.'
Finding for the defendant (now appellee), Milagros Barretto, the lower court
declared the project of partition submitted in the proceedings for the settlement
of the estate of Bibiano Barretto (Civil Case No. 49629 of the Court of First
Instance of Manila) to be null and void ab initio (not merely voidable) because
the distributee, Salud Barretto, predecessor of plaintiffs (now appellants), was
not a daughter of the spouses Bibiano Barretto and Maria Gerardo. The nullity
of the project of partition was decreed on the basis of Article 1081 of the Civil
Code of 1889 (then in force) providing as follows: .
A partition in which a person was believed to be an heir, without being
so, has been included, shall be null and void.
The court a quo further rejected the contention advanced by plaintiffs that since
Bibiano Barretto was free to dispose of one-third (1/3) of his estate under the
old Civil Code, his will was valid in favor of Salud Barretto (nee Lim Boco) to the
extent, at least, of such free part. And it concluded that, as defendant Milagros
was the only true heir of Bibiano Barretto, she was entitled to recover from
Salud, and from the latter's children and successors, all the Properties received
by her from Bibiano's estate, in view of the provisions of Article 1456 of the new
Civil Code of the Philippines establishing that property acquired by fraud or
mistake is held by its acquirer in implied trust for the real owner. Hence, as
stated at the beginning of this opinion, the Court a quo not only dismissed the
plaintiffs' complaint but ordered them to return the properties received under
the project of partition previously mentioned as prayed for in defendant
Milagros Barretto's counterclaim. However, it denied defendant's prayer for
damages. Hence, this appeal interposed by both plaintiffs and defendant.
Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code
has been misapplied to the present case by the court below. The reason is
obvious: Salud Barretto admittedly had been instituted heir in the late Bibiano
Barretto's last will and testament together with defendant Milagros; hence, the
partition had between them could not be one such had with a party who was
believed to be an heir without really being one, and was not null and void under
said article. The legal precept (Article 1081) does not speak of children, or
descendants, but of heirs (without distinction between forced, voluntary or
intestate ones), and the fact that Salud happened not to be a daughter of the
testator does not preclude her being one of the heirs expressly named in his
testament; for Bibiano Barretto was at liberty to assign the free portion of his
estate to whomsoever he chose. While the share () assigned to Salud
impinged on the legitime of Milagros, Salud did not for that reason cease to be a
testamentary heir of Bibiano Barretto.
Nor does the fact that Milagros was allotted in her father's will a share smaller
than her legitime invalidate the institution of Salud as heir, since there was here
no preterition, or total ommission of a forced heir. For this reason, Neri vs.
Akutin, 72 Phil. 322, invoked by appellee, is not at all applicable, that case
involving an instance of preterition or omission of children of the testator's
former marriage.
Appellee contends that the partition in question was void as a compromise on
the civil status of Salud in violation of Article 1814 of the old Civil Code. This
view is erroneous, since a compromise presupposes the settlement of a
controversy through mutual concessions of the parties (Civil Code of 1889,
Article 1809; Civil Code of the Philippines, Art. 2028); and the condition of Salud
as daughter of the testator Bibiano Barretto, while untrue, was at no time
disputed during the settlement of the estate of the testator. There can be no
compromise over issues not in dispute. And while a compromise over civil
status is prohibited, the law nowhere forbids a settlement by the parties over
the share that should correspond to a claimant to the estate.
At any rate, independently of a project of partition which, as its own name
implies, is merely a proposal for distribution of the estate, that the court may
accept or reject, it is the court alone that makes the distribution of the estate
and determines the persons entitled thereto and the parts to which each is
entitled (Camia vs. Reyes, 63 Phil. 629, 643; Act 190, Section 750; Rule 90, Rules
of 1940; Rule 91, Revised Rules of Court), and it is that judicial decree of
distribution, once final, that vests title in the distributees. If the decree was
erroneous or not in conformity with law or the testament, the same should have
been corrected by opportune appeal; but once it had become final, its binding
effect is like that of any other judgment in rem, unless properly set aside for lack
of jurisdiction or fraud.
It is thus apparent that where a court has validly issued a decree of distribution
of the estate, and the same has become final, the validity or invalidity of the
project of partition becomes irrelevant.
It is, however, argued for the appellee that since the court's distribution of the
estate of the late Bibiano Barretto was predicated on the project of partition
executed by Salud Barretto and the widow, Maria Gerardo (who signed for
herself and as guardian of the minor Milagros Barretto), and since no evidence
was taken of the filiation of the heirs, nor were any findings of fact or law made,
the decree of distribution can have no greater validity than that of the basic
partition, and must stand or fall with it, being in the nature of a judgment by
consent, based on a compromise. Saminiada vs. Mata, 92 Phil. 426, is invoked in
support of the proposition. That case is authority for the proposition that a
judgment by compromise may be set aside on the ground of mistake or fraud,
upon petition filed in due time, where petition for "relief was filed before the
compromise agreement a proceeding, was consummated" (cas. cit. at p. 436). In
the case before us, however, the agreement of partition was not only ratified by
the court's decree of distribution, but actually consummated, so much so that
the titles in the name of the deceased were cancelled, and new certificates
issued in favor of the heirs, long before the decree was attacked. Hence,
Saminiada vs. Mata does not apply.
Moreover, the defendant-appellee's argument would be plausible if it were
shown that the sole basis for the decree of distribution was the project of
partition. But, in fact, even without it, the distribution could stand, since it was
in conformity with the probated will of Bibiano Barretto, against the provisions
whereof no objection had been made. In fact it was the court's duty to do so. Act
190, section 640, in force in 1939, provided: .
SEC. 640. Estate, How Administered. When a will is thus allowed, the
court shall grant letters testamentary, or letters of administration with
the will annexed, and such letters testamentary or of administration,
shall extend to all the estate of the testator in the Philippine Islands.
Such estate, after the payment of just debts and expenses of
administration, shall be disposed of according to such will, so far as such
will may operate upon it; and the residue, if any, shall be disposed of as
is provided by law in cases of estates in these Islands belonging to
persons who are inhabitants of another state or country. (Emphasis
supplied)
That defendant Milagros Barretto was a minor at the time the probate court
distributed the estate of her father in 1939 does not imply that the said court
was without jurisdiction to enter the decree of distribution. Passing upon a like
issue, this Court ruled in Ramos vs. Ortuzar, 89 Phil. Reports, pp. 741 and 742:
If we are to assume that Richard Hill and Marvin Hill did not formally
intervene, still they would be concluded by the result of the
proceedings, not only as to their civil status but as the distribution of
the estate as well. As this Court has held in Manolo vs. Paredes, 47 Phil.
938, "The proceeding for probate is one in rem (40 Cyc., 1265) and the
court acquires jurisdiction over all persons interested, through the
publication of the notice prescribed by section 630 C.P.C.; and any
order that any be entered therein is binding against all of them." (See
also in re Estate of Johnson, 39 Phil. 156.) "A final order of distribution
of the estate of a deceased person vests the title to the land of the estate
in the distributees". (Santos vs. Roman Catholic Bishop of Nueva
Caceres, 45 Phil. 895.) There is no reason why, by analogy, these
salutary doctrines should not apply to intestate proceedings.
The only instance that we can think of in which a party interested in a
probate proceeding may have a final liquidation set aside is when he is
left out by reason of circumstances beyond his control or through
mistake or inadvertence not imputable to negligence. Even then, the
better practice to secure relief is reopening of the same case by proper
motion within the reglementary period, instead of an independent
action the effect of which, if successful, would be, as in the instant case,
for another court or judge to throw out a decision or order already final
and executed and reshuffle properties long ago distributed and
disposed of.
It is well to observe, at this juncture, as this Court expressly declared in Reyes vs.
Barretto Datu, 94 Phil. 446 (Am'd Rec. Appeal, pp. 156, 157), that:
... It is argued that Lucia Milagros Barretto was a minor when she
signed the partition, and that Maria Gerardo was not her judicially
appointed guardian. The claim is not true. Maria Gerardo signed as
guardian of the minor. (Secs. 3 and 5, Rule 97, Rules of Court.) The mere
statement in the project of partion that the guardianship proceedings of
the minor Lucia Milagros Barretto are pending in the court, does not
mean that the guardian had not yet been appointed; it meant that the
guardianship proceedings had not yet been terminated, and as a
guardianship proceedings begin with the appointment of a guardian,
Maria Gerardo must have been already appointed when she signed the
project of partition. There is, therefore, no irregularity or defect or
error in the project of partition, apparent on the record of the testate
proceedings, which shows that Maria Gerardo had no power or
authority to sign the project of partition as guardian of the minor Lucia
Milagros Barretto, and, consequently, no ground for the contention that
the order approving the project of partition is absolutely null and void
and may be attacked collaterally in these proceedings.
So that it is now incontestable that appellee Milagros Barretto was not only
made a party by publication but actually appeared and participated in the
proceedings through her guardian: she, therefore, can not escape the
jurisdiction of the Manila Court of First Instance which settled her father's
estate.
Defendant-appellee further pleads that as her mother and guardian (Maria
Gerardo) could not have ignored that the distributee Salud was not her child,
the act of said widow in agreeing to the oft-cited partition and distribution was
a fraud on appellees rights and entitles her to relief. In the first place, there is no
evidence that when the estate of Bibiano Barretto was judicially settled and
distributed appellants' predecessor, Salud Lim Boco Barretto to, knew that she
was not Bibiano's child: so that if fraud was committed, it was the widow, Maria
Gerardo, who was solely responsible, and neither Salud nor her minor children,
appellants herein, can be held liable therefor. In the second placegranting that
there was such fraud, relief therefrom can only be obtained within 4 years from
its discovery, and the record shows that this period had elapsed long ago.
Because at the time of the distribution Milagros Barretto was only 16 years old
(Exhibit 24), she became of age five years later, in 1944. On that year, her cause
of action accrued to contest on the ground of fraud the court decree distributing
her father's estate and the four-year period of limitation started to run, to
expire in 1948 (Section 43, Act. 190). In fact, conceding that Milagros only
became aware of the true facts in 1946 (Appellee's Brief, p. 27), her action still
became extinct in 1950. Clearly, therefore, the action was already barred when
in August 31, 1956 she filed her counterclaim in this case contesting the decree
of distribution of Bibiano Barretto's estate.
In order to evade the statute of limitations, Milagros Barretto introduced
evidence that appellant Tirso Reyes had induced her to delay filing action by
verbally promising to reconvey the properties received by his deceased wife,
Salud. There is no reliable evidence of the alleged promise, which rests
exclusively on the oral assertions of Milagros herself and her counsel. In fact, the
trial court made no mention of such promise in the decision under appeal. Even
more: granting arguendo that the promise was made, the same can not bind the
wards, the minor children of Salud, who are the real parties in interest. An
abdicative waiver of rights by a guardian, being an act of disposition, and not of
administration, can not bind his wards, being null and void as to them unless
duly authorized by the proper court (Ledesma Hermanos vs. Castro, 55 Phil.
136, 142).
In resume, we hold (1) that the partition had between Salud and Milagros
Barretto in the proceedings for the settlement of the estate of Bibiano Barretto
duly approved by the Court of First Instance of Manila in 1939, in its Civil Case
No. 49629, is not void for being contrary to either Article 1081 or 1814 of the,
Civil Code of 1889; (2) that Milagros Barretto's action to contest said partition
and decree of distribution is barred by the statute of limitations; and (3) that
her claim that plaintiff-appellant guardian is a possessor in bad faith and should
account for the fruits received from the properties inherited by Salud Barretto
(nee Lim Boco) is legally untenable. It follows that the plaintiffs' action for
partition of the fishpond described in the complaint should have been given due
course.
Wherefore, the decision of the Court of First Instance of Bulacan now under
appeal is reversed and set aside in so far as it orders plaintiff-appellant to
reconvey to appellee Milagros Barretto Datu the properties enumeracted in said
decision, and the same is affirmed in so far as it denies any right of said appellee
to accounting. Let the records be returned to the court of origin, with
instructions to proceed with the action for partition of the fishpond (Lot No. 4,
Plan Psu-4709), covered by TCT No. T-13734 of the Office of the Register of
Deeds of Bulacan, and for the accounting of the fruits thereof, as prayed for in
the complaint No costs.
Concepcion, C.J., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and
Castro, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-24365 June 30, 1966
IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E.
CHRISTENSEN, deceased.
ADOLFO C. AZNAR, executor and appellee,
vs.
MARIA LUCY CHRISTENSEN DUNCAN, oppositor and appellant.
MARIA HELEN CHRISTENSEN, oppositor and appellee.
J. Salonga and L. M. Abellera for oppositor and appellee.
Carlos Dominguez, Jr. for executor-appellee.
M. R. Sotelo for appellant.
MAKALINTAL, J.:
Edward E. Christensen, a citizen of California with domicile in the Philippines,
died leaving a will executed on March 5, 1951. The will was admitted to probate
by the Court of First Instance of Davao in its decision of February 28, 1954. In
that same decision the court declared that Maria Helen Christensen Garcia
(hereinafter referred to as Helen Garcia) was a natural child of the deceased.
The declaration was appealed to this Court, and was affirmed in its decision of
February 14, 1958 (G.R. No. L-11484).
In another incident relative to the partition of the deceased's estate, the trial
court approved the project submitted by the executor in accordance with the
provisions of the will, which said court found to be valid under the law of
California. Helen Garcia appealed from the order of approval, and this Court, on
January 31, 1963, reversed the same on the ground that the validity of the
provisions of the will should be governed by Philippine law, and returned the
case to the lower court with instructions that the partition be made as provided
by said law (G.R. No. L-16749).
On October 29, 1964, the Court of First Instance of Davao issued an order
approving the project of partition submitted by the executor, dated June 30,
1964, wherein the properties of the estate were divided equally between Maria
Lucy Christensen Duncan (named in the will as Maria Lucy Christensen Daney,
and hereinafter referred to as merely Lucy Duncan), whom the testator had
expressly recognized in his will as his daughter (natural) and Helen Garcia, who
had been judicially declared as such after his death. The said order was based
on the proposition that since Helen Garcia had been preterited in the will the
institution of Lucy Duncan as heir was annulled, and hence the properties
passed to both of them as if the deceased had died intestate, saving only the
legacies left in favor of certain other persons, which legacies have been duly
approved by the lower court and distributed to the legatees.
The case is once more before us on appeal, this time by Lucy Duncan, on the sole
question of whether the estate, after deducting the legacies, should pertain to
her and to Helen Garcia in equal shares, or whether the inheritance of Lucy
Duncan as instituted heir should be merely reduced to the extent necessary to
cover the legitime of Helen Garcia, equivalent to 1/4 of the entire estate.
The will of Edward E. Christensen contains, among others, the following clauses
which are pertinent to the issue in this case:
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, 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.
x x x x x x x x x
7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now
married to Eduardo Garcia, about eighteen years of age and who,
notwithstanding the fact that she was baptized Christensen, is not in
any way related to me, nor has she been at any time adopted by me, and
who, from all information I have now resides in Egpit, Digos, Davao,
Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS
(P3,600.00), Philippine Currency, the same to be deposited in trust for
the said Maria Helen Christensen with the Davao Branch of the
Philippine National Bank, and paid to her at the rate of One Hundred
Pesos (P100.00), Philippine Currency per month until the principal
thereof as well as any interest which may have accrued thereon, is
exhausted.
x x x x x x x x x
12. I hereby give, devise and bequeath, unto my well-beloved daughter,
the said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney) now
residing, as aforesaid, at No. 665 Rodger Young Village, Los Angeles,
California, U.S.A., all the income from the rest, remainder, and residue
of my property and estate, real, personal and/or mixed, of whatsoever
kind or character, and wheresoever situated, of which I may be
possessed at my death and which may have come to me from any
source whatsoever, during her lifetime; Provided, however, that should
the said MARIA LUCY CHRISTENSEN DANEY at anytime prior to her
decease having living issue, then and in that event, the life interest
herein given shall terminate, and if so terminated, then I give, devise,
and bequeath to my daughter, the said MARIA LUCY CHRISTENSEN
DANEY the rest, remainder and residue of my property with the same
force and effect as if I had originally so given, devised and bequeathed it
to her; and provided, further, that should the said MARIA LUCY
CHRISTENSEN DANEY die without living issue, then, and in that event, I
give, devise and bequeath all the rest, remainder and residue of my
property one-half (1/2) to my well-beloved sister, Mrs. CARRIE LOUISE
C. BORTON, now residing at No. 2124, Twentieth Street, Bakersfield,
California, U.S.A., and one-half (1/2) to the children of my deceased
brother, JOSEPH C. CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of
Los Angeles, California, U.S.A., and Joseph Raymond Christensen, of
Manhattan Beach, California, U.S.A., share and share alike, the share of
any of the three above named who may predecease me, to go in equal
parts to the descendants of the deceased; and, provided further, that
should my sister Mrs. Carol Louise C. Borton die before my own
decease, then, and in that event, the share of my estate devised to her
herein I give, devise and bequeath to her children, Elizabeth Borton de
Trevio, of Mexico City Mexico; Barbara Borton Philips, of Bakersfield,
California, U.S.A., and Richard Borton, of Bakersfield, California, U.S.A.,
or to the heirs of any of them who may die before my own decease,
share and share alike.
The trial court ruled, and appellee now maintains, that there has been
preterition of Helen Garcia, a compulsory heir in the direct line, resulting in the
annulment of the institution of heir pursuant to Article 854 of the Civil Code,
which provides:
ART. 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall annul
the institution of heir; but the devises and legacies shall be valid insofar
as they are not inofficious.
On the other hand, appellant contends that this is not a case of preterition, but is
governed by Article 906 of the Civil Code, which says: "Any compulsory heir to
whom the testator has left by any title less than the legitime belonging to him
may demand that the same be fully satisfied." Appellant also suggests that
considering the provisions of the will whereby the testator expressly denied his
relationship with Helen Garcia, but left to her a legacy nevertheless although
less than the amount of her legitime, she was in effect defectively disinherited
within the meaning of Article 918, which reads:
ART. 918. Disinheritance without a specification of the cause, or for a
cause the truth of which, if contradicted, is not proved, or which is not
one of those set forth in this Code, shall annul the institution of heirs
insofar as it may prejudice the person disinherited; but the devices and
legacies and other testamentary dispositions shall be valid to such
extent as will not impair the legitimate.
Thus, according to appellant, under both Article 906 and 918, Helen Garcia is
entitled only to her legitime, and not to a share of the estate equal that of Lucy
Duncan as if the succession were intestate.
Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article
906 of Article 815. Commenting on Article 815, Manresa explains:
Como dice Goyena, en el caso de pretericion puede presumirse
ignorancia o falta de memoria en el testador; en el de dejar algo al
heredero forzoso no. Este no se encuentra plivado totalmente de su
legitima: ha recibido por cualquir titulo una porcion de los bienes
hereditarios, porcion que no alcanza a completar la legitima, pero que
influeye poderosamente en el animo del legislador para decidirle a
adoptar una solucion bien diferente de la sealada para el caso de
pretericion.
El testador no ha olvidado por completo al heredero forzoso; le ha
dejado bienes; pero haciendo un calculo equivocado, ha repartido en
favor de extraos o en favor de otros legitimarios por via de legado
donacion o mejora mayor cantidad de la que la ley de consentia
disponer. El heredero forzoso no puede perder su legitima, pero
tampoco puede pedir mas que la misma. De aqui su derecho a reclamar
solamente lo que le falta; al complemento de la porcion que
forzosamente la corresponde.
... Dejar el testador por cualquier titulo, equivale a disponer en
testamento por titulo de herencia legado o mejora, y en favor de
legitimarios, de alguna cantidad o porcion de bienes menos que la
legitima o igual a la misma. Tal sentido, que es el mas proprio en al
articulo 815, no pugna tampoco con la doctrina de la ley. Cuando en el
testamento se deja algo al heredero forzoso, la pretericion es incompleta:
es mas formularia que real. Cuando en el testamento nada se deja el
legitimario, hay verdadera pretericion. (6 Manresa, 7th Ed., 1951, p.
437.)
On the difference between preterition of a compulsory heir and the right to ask
for completion of his legitime, Sanchez Roman says:
La desheredacion, como expresa, es siempre voluntaria; la pretericion
puede serlo pero se presume involuntaria la omision en que consiste en
cuanto olvida o no atiende el testador en su testamento a la satisfaccion
del derecho a la legitima del heredero forzoso preterido, prescindiendo
absoluta y totalmente de el y no mencionandole en ninguna de sus
disposiciones testamentarias, o no instituyendole en parte alguna de la
herencia, ni por titulo de heredero ni por el de legatar o aunque le
mencionara o nombrara sin dejarle mas o menos bienes. Si le dejara
algunos, por pocos que sean e insuficientes para cubrir su legitima, ya no
seria caso de pretericion, sino de complemento de aquella. El primer
supuesto o de pretericion se regula por el articulo 814, y produce
accion de nulidad de la institucion de heredero; y el segundo, o de
complemento de legitima por el 815 y solo original la accion ad
suplementum, para completar la legitima. (Sanchez Roman, Tomo VI,
Vol. 2, p. 1131.)
Manresa defines preterition as the omission of the heir in the will, either by not
naming him at all or, while mentioning him as father, son, etc., by not instituting
him as heir without disinheriting him expressly, nor assigning to him some part
of the properties. Manresa continues:
Se necesita pues (a) Que la omision se refiera a un heredero forzoso;
(b) Que la omision sea completa; que el heredero forzoso nada reciba
en el testamento.1wph1.t
x x x x x x x x x
B. Que la omision sea completa Esta condicion se deduce del mismo
Articulo 814 y resulta con evidencia al relacionar este articulo con el
815. El heredero forzoso a quien el testador deja algo por cualquier
titulo en su testamento, no se halla propiamente omitido pues se le
nombra y se le reconoce participacion en los bienes hereditarios.
Podria discutirse en el Articulo 814 si era o no necesario que se
reconociese el derecho del heredero como tal heredero, pero el articulo
815 desvanece esta duda. Aquel se ocupa de privacion completa o total,
tacita este, de la privacion parcial. Los efectos deben ser y son, como
veremos completamente distintos (6 Manresa, p. 428.)
La privacion de la legitima puede ser total o parcial.
Privar totalmente de la legitima es negarla en absoluto al legitimario,
despojarle de ella por completo. A este caso se refiere el articulo 814.
Privar parcialmente de la legitima, es menguarla o reducirla dejar al
legitimario una porcion, menor que la que le corresponde. A este caso
se refiere el articulo 815. El 813 sienta, pues, una regla general, y las
consecuencias del que brantamiento de esta regla se determina en los
articulos 814 y 815. (6 Manresa p. 418.)
Again Sanchez Roman:
QUE LA OMISSION SEA TOTAL. Aunque el articulo 814 no consigna de
modo expreso esta circunstancia de que la pretericion o falta de
mencion e institucion o disposicion testamentaria a su favor, sea total,
completa y absoluta, asi se deduce de no hacer distincion o salvedad
alguna empleandola en terminos generales; pero sirve a confirmarlo de
un modo indudable el siguiente articulo 815, al decir que el heredero
forzoso a quien el testador haya dejado por cualquier titulo, menos de
la legitima que la corresponda, podria pedir el complemento de la
misma, lo cual ya no son el caso ni los efectos de la pretericion, que anula
la institucion, sino simplemente los del suplemento necesario para cubrir
su legitima. (Sanchez Roman Tomo VI, Vol. 2.0 p. 1133.)
The question may be posed: In order that the right of a forced heir may be
limited only to the completion of his legitime (instead of the annulment of the
institution of heirs) is it necessary that what has been left to him in the will "by
any title," as by legacy, be granted to him in his capacity as heir, that is, a titulo
de heredero? In other words, should he be recognized or referred to in the will
as heir? This question is pertinent because in the will of the deceased Edward E.
Christensen Helen Garcia is not mentioned as an heir indeed her status as
such is denied but is given a legacy of P3,600.00.
While the classical view, pursuant to the Roman law, gave an affirmative answer
to the question, according to both Manresa (6 Manresa 7th 3rd. 436) and
Sanchez Roman (Tomo VI, Vol. 2.0 p. 937), that view was changed by Article
645 of the "Proyecto de Codigo de 1851," later on copied in Article 906 of our
own Code. Sanchez Roman, in the citation given above, comments as follows:
RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. Se inspira el
Codigo en esta materia en la doctrina clasica del Derecho romano y
patrio (2); pero con alguna racional modificacion. Concedian aquellos
precedentes legales al heredero forzoso, a quien no se le dejaba por
titulo de tal el completo de su legitima, la accion para invalidar la
institucion hecha en el testamento y reclamar y obtener aquella
mediante el ejercicio de la querella de inoficioso, y aun cuando resultara
favorecido como donotario, por otro titulo que no fuera el de heredero,
sino al honor de que se le privaba no dandole este caracter, y solo cuando
era instituido heredero en parte o cantidad inferior a lo que le
correspondiera por legitima, era cuando bastaba el ejercicio de la accion
ad suplementum para completarla, sin necesidad de anular las otras
instituciones de heredero o demas disposiciones contenidas en el
testamento.
El Articulo 851 se aparta de este criterio estricto y se ajusta a la unica
necesidad que le inspira cual es la de que se complete la legitima del
heredero forzoso, a quien por cualquier titulo se haya dejado menos de
lo que le corresponda, y se le otorga tan solo el derecho de pedir el
complemento de la misma sin necesidad de que se anulen las
disposiciones testamentarias, que se reduciran en lo que sean
inoficiosas conforme al articulo 817, cuya interpretacion y sentido
tienen ya en su apoyo la sancion de la jurisprudencia (3); siendo
condicion precisa que lo que se hubiere dejado de menos de la legitima
al heredero forzoso, lo haya sido en el testamento, o sea por disposicion
del testador, segun lo revela el texto del articulo, "el heredero forzoso a
quien el testador haya dejado, etc., esto es por titulo de legado o
donacion mortis causa en el testamento y, no fuera de al. (Sanchez
Roman, Tomo VI, Vol. 2.0 p. 937.)
Manresa cites particularly three decisions of the Supreme Court of Spain dated
January 16, 1895, May 25, 1917, and April 23, 1932, respectively. In each one of
those cases the testator left to one who was a forced heir a legacy worth less
than the legitime, but without referring to the legatee as an heir or even as a
relative, and willed the rest of the estate to other persons. It was held that
Article 815 applied, and the heir could not ask that the institution of heirs be
annulled entirely, but only that the legitime be completed. (6 Manresa, pp. 438,
441.)
The foregoing solution is indeed more in consonance with the expressed wishes
of the testator in the present case as may be gathered very clearly from the
provisions of his will. He refused to acknowledge Helen Garcia as his natural
daughter, and limited her share to a legacy of P3,600.00. The fact that she was
subsequently declared judicially to possess such status is no reason to assume
that had the judicial declaration come during his lifetime his subjective attitude
towards her would have undergone any change and that he would have willed
his estate equally to her and to Lucy Duncan, who alone was expressly
recognized by him.
The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is cited by
appellees in support of their theory of preterition. That decision is not here
applicable, because it referred to a will where "the testator left all his property
by universal title to the children by his second marriage, and (that) without
expressly disinheriting the children by his first marriage, he left nothing to them
or, at least, some of them." In the case at bar the testator did not entirely omit
oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00.
The estate of the deceased Christensen upon his death consisted of 399 shares
of stocks in the Christensen Plantation Company and a certain amount in cash.
One-fourth (1/4) of said estate descended to Helen Garcia as her legitime. Since
she became the owner of her share as of the moment of the death of the
decedent (Arts. 774, 777, Civil Code), she is entitled to a corresponding portion
of all the fruits or increments thereof subsequently accruing. These include the
stock dividends on the corporate holdings. The contention of Lucy Duncan that
all such dividends pertain to her according to the terms of the will cannot be
sustained, for it would in effect impair the right of ownership of Helen Garcia
with respect to her legitime.
One point deserves to be here mentioned, although no reference to it has been
made in the brief for oppositor-appellant. It is the institution of substitute heirs
to the estate bequeathed to Lucy Duncan in the event she should die without
living issue. This substitution results in effect from the fact that under
paragraph 12 of the will she is entitled only to the income from said estate,
unless prior to her decease she should have living issue, in which event she
would inherit in full ownership; otherwise the property will go to the other
relatives of the testator named in the will. Without deciding this, point, since it
is not one of the issues raised before us, we might call attention to the
limitations imposed by law upon this kind of substitution, particularly that
which says that it can never burden the legitime (Art. 864 Civil Code), which
means that the legitime must descend to the heir concerned in fee simple.
Wherefore, the order of the trial court dated October 29, 1964, approving the
project of partition as submitted by the executor-appellee, is hereby set aside;
and the case is remanded with instructions to partition the hereditary estate
anew as indicated in this decision, that is, by giving to oppositor-appellee Maria
Helen Christensen Garcia no more than the portion corresponding to her as
legitime, equivalent to one-fourth (1/4) of the hereditary estate, after deducting
all debts and charges, which shall not include those imposed in the will of the
decedent, in accordance with Article 908 of the Civil Code. Costs against
appellees in this instance.
Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, J.P. Bengzon, Zaldivar and
Sanchez, JJ., concur.
R E S O L U T I O N
July 30, 1967
MAKALINTAL, J.:
Oppositor-appellant has filed an ex-parte petition dated July 11, 1966, making
reference to an alleged oversight and asking for the corresponding correction,
in the last paragraph before the dispositive part of our decision, which reads as
follows:
One point deserves to be here mentioned, although no reference to it has been
made in the brief for oppositor-appellant. It is the institution of substituted heirs
to the estate bequeathed to Lucy Duncan in the event she should die without
living issue. This substitution results in effect from the fact that under
paragraph 12 of the will she is entitled only to the income from said estate,
unless prior to her decease she should have living issue, in which event she
would inherit in full ownership; otherwise the property will go to the other
relatives of the testator named in the will. Without deciding this point, since it is
not one of the issues raised before us, we might call attention to the limitations
imposed by law upon this kind of substitution, particularly that which says that
it can never burden the legitime (Art. 864, Civil Code), which means that the
legitime must descend to the heir concerned in fee simple. (Decision, June 30,
1966, pages 14-15; emphasis ours).
Oppositor-appellant points out that the matter of substitution of heirs was
taken up and discussed in her brief particularly in pages 28 and 32 thereof. This
is indeed quite true, but the reference to and discussion of the rights of the
substitute heirs (called American heirs in the brief) appears to be merely for the
purpose of refuting the theory advanced by appellees and not for the purpose of
having the rights of said heirs defined in so far as, under the terms of the will,
they may affect the legitime of oppositor-appellant. This point of course was not
and could hardly have been squarely raised as an issue inasmuch as the
substitute heirs are not parties in this case. We have nevertheless called
attention "to the limitations imposed by law upon this kind of substitution,"
because in the brief for oppositor-appellant, at page 45, she makes the
conclusion "that the Last Will and Testament of Edward E. Christensen are valid
under Philippine Law and must be given full force and effect;" and to give them
full force and effect would precisely affect the legitime of oppositor-appellant.
Wherefore, the last paragraph before the dispositive part of our decision quoted
above is amended by eliminating the following phrase in the first sentence:
"although no reference to it has been made in the brief for oppositor-appellant."
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Bengzon, J.P., Zaldivar and Sanchez,
JJ., concur.
Regala and Castro, JJ., took no part.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division),
VIRGINIA A. FERNANDEZ and ROSA DIONGSON, respondents.

PARAS, J.:
This is a petition for review on certiorari of the decision * of respondent. Court
of Appeals in AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p.
108) ordering the dismissal of the petition in Special Proceedings No, 591 ACEB
and its Resolution issued on October 23, 1985 (Rollo, p. 72) denying
respondents' (petitioners herein) motion for reconsideration.
The dispositive portion of the questioned decision reads as follows:
WHEREFORE, the petition is hereby granted and respondent
Regional Trial Court of the Seventh Judicial Region, Branch XIII
(Cebu City), is hereby ordered to dismiss the petition in Special
Proceedings No. 591 ACEB No special pronouncement is made
as to costs.
The antecedents of the case, based on the summary of the Intermediate
Appellate Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court
of Cebu City Branch XIII, a petition for the probate of the will of the late Nemesio
Acain and for the issuance to the same petitioner of letters testamentary,
docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29), on the premise
that Nemesio Acain died leaving a will in which petitioner and his brothers
Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura
were instituted as heirs. The will allegedly executed by Nemesio Acain on
February 17, 1960 was written in Bisaya (Rollo, p. 27) with a translation in
English (Rollo, p. 31) submi'tted by petitioner without objection raised by
private respondents. The will contained provisions on burial rites, payment of
debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as the
executor of the testament. On the disposition of the testator's property, the will
provided:
THIRD: All my shares that I may receive from our properties.
house, lands and money which I earned jointly with my wife
Rosa Diongson shall all be given by me to my brother
SEGUNDO ACAIN Filipino, widower, of legal age and presently
residing at 357-C Sanciangko Street, Cebu City. In case my
brother Segundo Acain pre-deceased me, all the money
properties, lands, houses there in Bantayan and here in Cebu
City which constitute my share shall be given to me to his
children, namely: Anita, Constantino, Concepcion, Quirina,
laura, Flores, Antonio and Jose, all surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo
who are claiming to be heirs, with Constantino as the petitioner in Special
Proceedings No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the
oppositors (respondents herein Virginia A. Fernandez, a legally adopted
daughter of tile deceased and the latter's widow Rosa Diongson Vda. de Acain
filed a motion to dismiss on the following grounds for the petitioner has no legal
capacity to institute these proceedings; (2) he is merely a universal heir and (3)
the widow and the adopted daughter have been pretirited. (Rollo, p. 158). Said
motion was denied by the trial judge.
After the denial of their subsequent motion for reconsideration in the lower
court, respondents filed with the Supreme Court a petition for certiorari and
prohibition with preliminary injunction which was subsequently referred to the
Intermediate Appellate Court by Resolution of the Court dated March 11, 1985
(Memorandum for Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents' petition
and ordered the trial court to dismiss the petition for the probate of the will of
Nemesio Acain in Special Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed this present
petition for the review of respondent Court's decision on December 18, 1985
(Rollo, p. 6). Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition (Rollo,
p. 153). Respondents' Memorandum was filed on September 22, 1986 (Rollo, p.
157); the Memorandum for petitioner was filed on September 29, 1986 (Rollo,
p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p. 4):
(A) The petition filed in AC-G.R. No. 05744 for certiorari and
prohibition with preliminary injunction is not the proper
remedy under the premises;
(B) The authority of the probate courts is limited only to
inquiring into the extrinsic validity of the will sought to be
probated and it cannot pass upon the intrinsic validity thereof
before it is admitted to probate;
(C) The will of Nemesio Acain is valid and must therefore, be
admitted to probate. The preterition mentioned in Article 854
of the New Civil Code refers to preterition of "compulsory heirs
in the direct line," and does not apply to private respondents
who are not compulsory heirs in the direct line; their omission
shall not annul the institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says
will be the law;
(E) There may be nothing in Article 854 of the New Civil Code,
that suggests that mere institution of a universal heir in the
will would give the heir so instituted a share in the inheritance
but there is a definite distinct intention of the testator in the
case at bar, explicitly expressed in his will. This is what matters
and should be in violable.
(F) As an instituted heir, petitioner has the legal interest and
standing to file the petition in Sp. Proc. No. 591 ACEB for
probate of the will of Nemesio Acain and
(G) Article 854 of the New Civil Code is a bill of attainder. It is
therefore unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have been
pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time
of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devisees and
legacies shall be valid insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator,
the institution shall he effectual, without prejudice to the right
of representation.
Preterition consists in the omission in the testator's will of the forced heirs or
anyone of them either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly disinherited
(Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114
SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil
Code may not apply as she does not ascend or descend from the testator,
although she is a compulsory heir. Stated otherwise, even if the surviving
spouse is a compulsory heir, there is no preterition even if she is omitted from
the inheritance, for she is not in the direct line. (Art. 854, Civil code) however,
the same thing cannot be said of the other respondent Virginia A. Fernandez,
whose legal adoption by the testator has not been questioned by petitioner
(.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603,
known as the Child and Youth Welfare Code, adoption gives to the adopted
person the same rights and duties as if he were a legitimate child of the adopter
and makes the adopted person a legal heir of the adopter. It cannot be denied
that she has totally omitted and preterited in the will of the testator and that
both adopted child and the widow were deprived of at least their legitime.
Neither can it be denied that they were not expressly disinherited. Hence, this is
a clear case of preterition of the legally adopted child.
Pretention annuls the institution of an heir and annulment throws open to
intestate succession the entire inheritance including "la porcion libre (que) no
hubiese dispuesto en virtual de legado mejora o donacion" Maniesa as cited in
Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). The
only provisions which do not result in intestacy are the legacies and devises
made in the will for they should stand valid and respected, except insofar as the
legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters to
the entire inheritance of the testator results in totally abrogating the will
because the nullification of such institution of universal heirs-without any other
testamentary disposition in the will-amounts to a declaration that nothing at all
was written. Carefully worded and in clear terms, Article 854 of the Civil Code
offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No
legacies nor devises having been provided in the will the whole property of the
deceased has been left by universal title to petitioner and his brothers and
sisters. The effect of annulling the "Institution of heirs will be, necessarily, the
opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that
proper legacies and devises must, as already stated above, be respected.
We now deal with another matter. In order that a person may be allowed to
intervene in a probate proceeding he must have an interest iii the estate, or in
the will, or in the property to be affected by it either as executor or as a claimant
of the estate and an interested party is one who would be benefited by the
estate such as an heir or one who has a claim against the estate like a creditor
(Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed
executor, neither a devisee or a legatee there being no mention in the
testamentary disposition of any gift of an individual item of personal or real
property he is called upon to receive (Article 782, Civil Code). At the outset, he
appears to have an interest in the will as an heir, defined under Article 782 of
the Civil Code as a person called to the succession either by the provision of a
will or by operation of law. However, intestacy having resulted from the
preterition of respondent adopted child and the universal institution of heirs,
petitioner is in effect not an heir of the testator. He has no legal standing to
petition for the probate of the will left by the deceased and Special Proceedings
No. 591 A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the
questioned order is an oppressive exercise of j judicial authority (People v.
Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573
[1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista
v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of
certiorari and prohibition are not available where the petitioner has the remedy
of appeal or some other plain, speedy and adequate remedy in the course of law
(DD Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]).
They are, however, proper remedies to correct a grave abuse of discretion of the
trial court in not dismissing a case where the dismissal is founded on valid
grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by
respondent Court, the general rule is that the probate court's authority is
limited only to the extrinsic validity of the will, the due execution thereof, the
testator'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. Said
court at this stage of the proceedings is not called upon to rule on the intrinsic
validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449
[1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA
478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v.
Court of Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional
circumstances, the probate court is not powerless to do what the situation
constrains it to do and pass upon certain provisions of the will (Nepomuceno v.
Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate
moved to dismiss on the ground of absolute preteriton The probate court acting
on the motion held that the will in question was a complete nullity and
dismissed the petition without costs. On appeal the Supreme Court upheld the
decision of the probate court, induced by practical considerations. The Court
said:
We pause to reflect. If the case were to be remanded for
probate of the will, nothing will be gained. On the contrary, this
litigation will be protracted. And for aught that appears in the
record, in the event of probate or if the court rejects the will,
probability exists that the case will come up once again before
us on the same issue of the intrinsic validity or nullity of the
will. Result: waste of time, effort, expense, plus added anxiety.
These are the practical considerations that induce us to a belief
that we might as well meet head-on the issue of the validity of
the provisions of the will in question. After all there exists a
justiciable controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the
petition by the surviving spouse was grounded on petitioner's lack of legal
capacity to institute the proceedings which was fully substantiated by the
evidence during the hearing held in connection with said motion. The Court
upheld the probate court's order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss
the petition deals with the validity of the provisions of the will. Respondent
Judge allowed the probate of the will. The Court held that as on its face the will
appeared to have preterited the petitioner the respondent judge should have
denied its probate outright. Where circumstances demand that intrinsic validity
of testamentary provisions be passed upon even before the extrinsic validity of
the will is resolved, the probate court should meet the issue. (Nepomuceno v.
Court of Appeals, supra; Nuguid v. Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the petition in
Sp. Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the
following grounds: (1) petitioner has no legal capacity to institute the
proceedings; (2) he is merely a universal heir; and (3) the widow and the
adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial
court in an order dated January 21, 1985 for the reason that "the grounds for
the motion to dismiss are matters properly to be resolved after a hearing on the
issues in the course of the trial on the merits of the case (Rollo, p. 32). A
subsequent motion for reconsideration was denied by the trial court on
February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the will and allowed
the case to progress when on its face the will appears to be intrinsically void as
petitioner and his brothers and sisters were instituted as universal heirs
coupled with the obvious fact that one of the private respondents had been
preterited would have been an exercise in futility. It would have meant a waste
of time, effort, expense, plus added futility. The trial court could have denied its
probate outright or could have passed upon the intrinsic validity of the
testamentary provisions before the extrinsic validity of the will was resolved
(Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of
certiorari and prohibition were properly availed of by private respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable, the
defendants had the right to resort to the more speedy, and adequate remedies
of certiorari and prohibition to correct a grave abuse of discretion, amounting to
lack of jurisdiction, committed by the trial court in not dismissing the case, (Vda.
de Bacang v. Court of Appeals, supra) and even assuming the existence of the
remedy of appeal, the Court harkens to the rule that in the broader interests of
justice, a petition for certiorari may be entertained, particularly where appeal
would not afford speedy and adequate relief. (Maninang Court of Appeals,
supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the
questioned decision of respondent Court of Appeals promulgated on August 30,
1985 and its Resolution dated October 23, 1985 are hereby AFFIRMED.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento and Cortes, JJ., concur.


Separate Opinions

MELENCIO-HERRERA, J., concurring:
I concur in the result on the basic proposition that preterition in this case was
by mistake or inadvertence.
To my mind, an important distinction has to be made as to whether the
omission of a forced heir in the will of a testator is by mistake or inadvertence,
or voluntary or intentional. If by mistake or inadvertence, there is true
preterirton and total intestacy results. The reason for this is the "inability to
determine how the testator would have distributed his estate if none of the
heirs had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and
R.C. Puno, Vol. III, p. 54).
The requisites of preterition are:
1. The heir omitted is a forced heir (in the direct line);
2. The ommission is by mistake or thru an oversight.
3. The omission is complete so that the forced heir received
nothing in the will. (111 Padilla, Civil Code Annotated, 1973
Edition, pp. 224-225) (Parenthetical addendum supplied).
On the other hand, if the omission is intentional, the effect would be a defective
disinheritance covered by Article 918 of the Civil Code in which case the
institution of heir is not wholly void but only insofar as it prejudices the legitime
of the person disinherited. Stated otherwise. the nullity is partial unlike in true
preterition where the nullity is total.
Pretention is presumed to be only an involuntary omission;
that is, that if the testator had known of the existence of the
compulsory heir at the time of the execution of the will, he
would have instituted such heir. On the other hand, if the
testator attempts to disinherit a compulsory heir, the
presumption of the law is that he wants such heir to receive as
little as possible from his estate. (III Tolentino, Civil Code, 1973
Edition, pp. 174-175).
In the case at bar, there seems to have been mistake or in advertence in the
omission of the adopted daughter, hence, my concurrence in the result that total
intestacy ensued.


Separate Opinions
MELENCIO-HERRERA, J., concurring:
I concur in the result on the basic proposition that preterition in this case was
by mistake or inadvertence.
To my mind, an important distinction has to be made as to whether the
omission of a forced heir in the will of a testator is by mistake or inadvertence,
or voluntary or intentional. If by mistake or inadvertence, there is true
preterirton and total intestacy results. The reason for this is the "inability to
determine how the testator would have distributed his estate if none of the
heirs had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and
R.C. Puno, Vol. III, p. 54).
The requisites of preterition are:
1. The heir omitted is a forced heir (in the direct line);
2. The ommission is by mistake or thru an oversight.
3. The omission is complete so that the forced heir received
nothing in the will. (111 Padilla, Civil Code Annotated, 1973
Edition, pp. 224-225) (Parenthetical addendum supplied).
On the other hand, if the omission is intentional, the effect would be a defective
disinheritance covered by Article 918 of the Civil Code in which case the
institution of heir is not wholly void but only insofar as it prejudices the legitime
of the person disinherited. Stated otherwise. the nullity is partial unlike in true
preterition where the nullity is total.
Pretention is presumed to be only an involuntary omission;
that is, that if the testator had known of the existence of the
compulsory heir at the time of the execution of the will, he
would have instituted such heir. On the other hand, if the
testator attempts to disinherit a compulsory heir, the
presumption of the law is that he wants such heir to receive as
little as possible from his estate. (III Tolentino, Civil Code, 1973
Edition, pp. 174-175).
In the case at bar, there seems to have been mistake or in advertence in the
omission of the adopted daughter, hence, my concurrence in the result that total
intestacy ensued.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-39247 June 27, 1975
In the Matter of the Petition to Approve the Will of Leodegaria Julian.
FELIX BALANAY, JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao,
Branch VI; AVELINA B. ANTONIO and DELIA B. LANABAN, respondents.
Roberto M. Sarenas for petitioner.
Jose B. Guyo for private respondents.

AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari from the order of the Court of First
Instance of Davao dated February 28, 1974, declaring illegal and void the will of
his mother, Leodegaria Julian, converting the testate proceeding into an
intestate proceeding and ordering the issuance of the corresponding notice to
creditors (Special Case No. 1808). The antecedents of the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in
Davao City at the age of sixty-seven. She was survived by her husband, Felix
Balanay, Sr., and by their six legitimate children named Felix Balanay, Jr.,
Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban
and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973
for the probate of his mother's notarial will dated September 5, 1970 which is
written in English. In that will Leodegaria Julian declared (a) that she was the
owner of the "southern half of nine conjugal lots (par. II); (b) that she was the
absolute owner of two parcels of land which she inherited from her father (par.
III), and (c) that it was her desire that her properties should not be divided
among her heirs during her husband's lifetime and that their legitimes should
be satisfied out of the fruits of her properties (Par. IV).
Then, in paragraph V of the will she stated that after her husband's death (he
was eighty-two years old in 1973) her paraphernal lands and all the conjugal
lands (which she described as "my properties") should be divided and
distributed in the manner set forth in that part of her will. She devised and
partitioned the conjugal lands as if they were all owned by her. She disposed of
in the will her husband's one half share of the conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the
grounds of lack of testamentary capacity, undue influence, preterition of the
husband and alleged improper partition of the conjugal estate. The oppositors
claimed that Felix Balanay, Jr. should collate certain properties which he had
received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of
Felix Balanay, Sr. dated April 18, 1973 wherein he withdrew his opposition to
the probate of the will and affirmed that he was interested in its probate. On the
same date Felix Balanay, Sr. signed an instrument captioned "Conformation (sic)
of Division and Renunciation of Hereditary Rights" wherein he manifested that
out of respect for his wife's will he "waived and renounced' his hereditary rights
in her estate in favor of their six children. In that same instrument he confirmed
the agreement, which he and his wife had perfected before her death, that their
conjugal properties would be partitioned in the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit
and "conformation" of Felix Balanay, Sr. were void. The lower court in its order
of June 18, 1973 "denied" the opposition and reset for hearing the probate of
the will. It gave effect to the affidavit and conformity of Felix Balanay, Sr. In an
order dated August 28, 1973 it appointed its branch clerk of court as special
administrator of the decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower court's order of June
18, 1973 on the grounds (a) that the testatrix illegally claimed that she was the
owner of the southern half of the conjugal lots and (b) that she could not
partition the conjugal estate by allocating portions of the nine lots to her
children. Felix Balanay, Jr., through his counsel, Hermenegildo Cabreros,
opposed that motion. The lower court denied it in its order of October 15, 1973.
In the meanwhile, another lawyer appeared in the case. David O. Montaa, Sr.,
claiming to be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record
was Atty. Cabreros), filed a motion dated September 25, 1973 for "leave of court
to withdraw probate of alleged will of Leodegaria Julian and requesting
authority to proceed by intestate estate proceeding." In that motion Montaa
claimed to be the lawyer not only of the petitioner but also of Felix Balanay, Sr.,
Beatriz B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon.
Montaa in his motion assailed the provision of the will which partitioned the
conjugal assets or allegedly effected a compromise of future legitimes. He
prayed that the probate of the will be withdrawn and that the proceeding be
converted into an intestate proceeding. In another motion of the same date he
asked that the corresponding notice to creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their
comments dated October 15, 1973 manifested their conformity with the motion
for the issuance of a notice to creditors. They prayed that the will be declared
void for being contrary to law and that an intestacy be declared.
The lower court, acting on the motions of Atty. Montaa, assumed that the
issuance of a notice to creditors was in order since the parties had agreed on
that point. It adopted the view of Attys. Montaa and Guyo that the will was
void. So, in its order of February 28, 1974 it dismissed the petition for the
probate, converted the testate proceeding into an intestate proceeding, ordered
the issuance of a notice to creditors and set the intestate proceeding for hearing
on April 1 and 2, 1974. The lower court did not abrogate its prior orders of June
18 and October 15, 1973. The notice to creditors was issued on April 1, 1974
and published on May 2, 9 and 16 in the Davao Star in spite of petitioner's
motion of April 17, 1974 that its publication be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified
motion dated April 15, 1974, asked for the reconsideration of the lower court's
order of February 28, 1974 on the ground that Atty. Montaa had no authority
to withdraw the petition for the allowance of the will. Attached to the motion
was a copy of a letter dated March 27, 1974 addressed to Atty. Montaa and
signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia
B. Pabaonon, wherein they terminated Montaa's services and informed him
that his withdrawal of the petition for the probate of the will was without their
consent and was contrary to their repeated reminder to him that their mother's
will was "very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban opposed the motion for
reconsideration. The lower court denied the motion in its order of June 29,
1974. It clarified that it declared the will void on the basis of its own
independent assessment of its provisions and not because of Atty. Montaa's
arguments.
The basic issue is whether the probate court erred in passing upon the intrinsic
validity of the will, before ruling on its allowance or formal validity, and in
declaring it void.
We are of the opinion that in view of certain unusual provisions of the will,
which are of dubious legality, and because of the motion to withdraw the
petition for probate (which the lower court assumed to have been filed with the
petitioner's authorization), the trial court acted correctly in passing upon the
will's intrinsic validity even before its formal validity had been established. The
probate of a will might become an idle ceremony if on its face it appears to be
intrinsically void. 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 (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with
Sumilang vs. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho vs.
Udan, L-19996, April 30, 1965, 13 SCRA 693).1wph1.t
But the probate court erred in declaring, in its order of February 28, 1974 that
the will was void and in converting the testate proceeding into an intestate
proceeding notwithstanding the fact that in its order of June 18, 1973 , it gave
effect to the surviving husband's conformity to the will and to his renunciation
of his hereditary rights which presumably included his one-half share of the
conjugal estate.
The rule is that "the invalidity of one of several dispositions contained in a will
does not result in the invalidity of the other dispositions, unless it is to be
presumed that the testator would not have made such other dispositions if the
first invalid disposition had not been made" (Art. 792, Civil Code). "Where some
of the provisions of a will are valid and others invalid, the valid parts will be
upheld if they can be separated from the invalid without defeating the intention
of the testator or interfering with the general testamentary scheme, or doing
injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern half of the conjugal
lands is contrary to law because, although she was a coowner thereof, her share
was inchoate and proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs.
Rafferty and Concepcion, 38 Phil. 414). But That illegal declaration does not
nullify the entire will. It may be disregarded.
The provision of the will that the properties of the testatrix should not be
divided among her heirs during her husband's lifetime but should be kept intact
and that the legitimes should be paid in cash is contrary to article 1080 of the
Civil Code which reads:
ART. 1080. Should a person make a partition of his estate by an
act inter vivos, or by will, such partition shall be respected,
insofar as it does not prejudice the legitime of the compulsory
heirs.
A parent who, in the interest of his or her family, to keep any
agricultural, industrial, or manufacturing enterprise intact,
may avail himself of the right granted him in this article, by
ordering that the legitime of the other children to whom the
property is not assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal estate among her
six children (her husband had renounced his hereditary rights and his one-half
conjugal share). She did not assign the whole estate to one or more children as
envisaged in article 1080. Hence, she had no right to require that the legitimes
be paid in cash. On the other hand, her estate may remain undivided only for a
period of twenty years. So, the provision that the estate should not be divided
during her husband's lifetime would at most be effective only for twenty years
from the date of her death unless there are compelling reasons for terminating
the coownership (Art. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half
share of the conjugal partnership (Arts. 179[1] and 1041, Civil Code) but insofar
as said renunciation partakes of a donation of his hereditary rights and his one-
half share in the conjugal estate (Art. 1060[1] Civil Code), it should be subject to
the limitations prescribed in articles 750 and 752 of the Civil Code. A portion of
the estate should be adjudicated to the widower for his support and
maintenance. Or at least his legitime should be respected.
Subject to the foregoing observations and the rules on collation, the will is
intrinsically valid and the partition therein may be given effect if it does not
prejudice the creditors and impair the legitimes. The distribution and partition
would become effective upon the death of Felix Balanay, Sr. In the meantime,
the net income should be equitably divided among the children and the
surviving spouse.
It should be stressed that by reason of the surviving husband's conformity to his
wife's will and his renunciation of his hereditary rights, his one-half conjugal
share became a part of his deceased wife's estate. His conformity had the effect
of validating the partition made in paragraph V of the will without prejudice, of
course, to the rights of the creditors and the legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired after the making
of a will shall only pass thereby, as if the testator had it at the time of making the
will, should it expressly appear by the will that such was his intention". Under
article 930 of the Civil Code "the legacy or devise of a thing belonging to another
person is void, if the testator erroneously believed that the thing pertained to
him. But if the thing bequeathed, though not belonging to the testator when he
made the will, afterwards becomes his, by whatever title, the disposition shall
take effect."
In the instant case there is no doubt that the testatrix and her husband intended
to partition the conjugal estate in the manner set forth in paragraph V of her
will. It is true that she could dispose of by will only her half of the conjugal
estate (Art. 170, Civil Code) but since the husband, after the dissolution of the
conjugal partnership, had assented to her testamentary partition of the conjugal
estate, such partition has become valid, assuming that the will may be probated.
The instant case is different from the Nuguid case, supra, where the testatrix
instituted as heir her sister and preterited her parents. Her will was intrinsically
void because it preterited her compulsory heirs in the direct line. Article 854 of
the Civil Code provides that "the preterition or omission of one, some, or all of
the compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall annul the
institution of heir; but the devises and legacies, shall be valid insofar as they are
not inofficious." Since the preterition of the parents annulled the institution of
the sister of the testatrix and there were no legacies and devises, total intestacy
resulted (.Art. 960[2], Civil Code).1wph1.t
In the instant case, the preterited heir was the surviving spouse. His preterition
did not produce intestacy. Moreover, he signified his conformity to his wife's
will and renounced his hereditary rights. .
It results that the lower court erred in not proceeding with the probate of the
will as contemplated in its uncancelled order of June 18, 1973. Save in an
extreme case where the will on its face is intrinsically void, it is the probate
court's duty to pass first upon the formal validity of the will. Generally, the
probate of the will is mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74
Phil. 479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638, October 12, 1967,
21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very existence of a purported
testament is in itself prima facie proof that the supposed testator has willed that
his estate should be distributed in the manner therein provided, and it is
incumbent upon the state that, if legally tenable, such desire be given effect
independent of the attitude of the parties affected thereby" (Resolution, Vda. de
Precilla vs. Narciso, L-27200, August 18, 1972, 46 SCRA 538, 565).
To give effect to the intention and wishes of the testatrix is the first and
principal law in the matter of testaments (Dizon-Rivera vs. Dizon, L-24561, June
30, 1970, 33 SCRA 554, 561). Testacy is preferable to intestacy. An
interpretation that will render a testamentary disposition operative takes
precedence over a construction that will nullify a provision of the will (Arts. 788
and 791, Civil Code).
Testacy is favored. Doubts are resolved in favor of testacy especially where the
will evinces an intention on the part of the testator to dispose of practically his
whole estate. So compelling is the principle that intestacy should be avoided
and that the wishes of the testator should prevail that sometimes the language
of the will can be varied for the purpose of giving it effect (Austria vs. Reyes, L-
23079, February 27, 1970, 31 SCRA 754, 762).
As far as is legally possible, the expressed desire of the testator must be
followed and the dispositions of the properties in his will should be upheld
(Estorque vs. Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of the testator as expressed in his
will because any disposition therein is better than that which the law can make
(Castro vs. Bustos, L-25913, February 28, 1969, 27 SCRA 327, 341).
Two other errors of the lower court may be noticed. It erred in issuing a notice
to creditors although no executor or regular administrator has been appointed.
The record reveals that it appointed a special administrator. A notice to
creditors is not in order if only a special administrator has been appointed.
Section 1, Rule 86 of the Rules of Court, in providing that "immediately after
granting letters of testamentary or of administration, the court shall issue a
notice requiring all persons having money claims against the decedent to file
them in the office of the clerk of said court" clearly contemplates the
appointment of an executor or regular administrator and not that of a special
administrator.
It is the executor or regular administrator who is supposed to oppose the claims
against the estate and to pay such claims when duly allowed (See. 10, Rule 86
and sec. 1, Rule 88, Rules of Court).
We also take this occasion to point out that the probate court's appointment of
its branch clerk of court as special administrator (p. 30, Rollo) is not a salutary
practice because it might engender the suspicion that the probate Judge and his
clerk of court are in cahoots in milking the decedent's estate. Should the branch
clerk of court commit any abuse or devastavit in the course of his
administration, the probate Judge might find it difficult to hold him to a strict
accountability. A court employee should devote his official time to his official
duties and should not have as a sideline the administration of a decedent's
estate.
WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are
set aside and its order of June 18, 1973, setting for hearing the petition for
probate, is affirmed. The lower court is directed to conduct further proceedings
in Special Case No. 1808 in consonance with this opinion. Costs, against the
private respondents.
SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23445 June 23, 1966
REMEDIOS NUGUID, petitioner and appellant,
vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single,
without descendants, legitimate or illegitimate. Surviving her were her
legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and six (6) brothers
and sisters, namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto,
all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance
of Rizal a holographic will allegedly executed by Rosario Nuguid on November
17, 1951, some 11 years before her demise. Petitioner prayed that said will be
admitted to probate and that letters of administration with the will annexed be
issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the
legitimate father and mother of the deceased Rosario Nuguid, entered their
opposition to the probate of her will. Ground therefor, inter alia, is that by the
institution of petitioner Remedios Nuguid as universal heir of the deceased,
oppositors who are compulsory heirs of the deceased in the direct ascending
line were illegally preterited and that in consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and
objection thereto, oppositors moved to dismiss on the ground of absolute
preterition.
On September 6, 1963, petitioner registered her opposition to the motion to
dismiss.1wph1.t
The court's order of November 8, 1963, held that "the will in question is a
complete nullity and will perforce create intestacy of the estate of the deceased
Rosario Nuguid" and dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this
Court on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is
for the probate of a will. The court's area of inquiry is limited to an
examination of, and resolution on, the extrinsic validity of the will. The due
execution thereof, the testatrix's testamentary capacity, and the compliance
with the requisites or solemnities by law prescribed, are the questions solely to
be presented, and to be acted upon, by the court. Said court at this stage of the
proceedings is not called upon to rule on the intrinsic validity or efficacy of
the provisions of the will, the legality of any devise or legacy therein.
1

A peculiar situation is here thrust upon us. The parties shunted aside the
question of whether or not the will should be allowed probate. For them, the
meat of the case is the intrinsic validity of the will. Normally, this comes only
after the court has declared that the will has been duly authenticated.
2
But
petitioner and oppositors, in the court below and here on appeal, travelled on
the issue of law, to wit: Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of the will,
nothing will be gained. On the contrary, this litigation will be protracted. And for
aught that appears in the record, in the event of probate or if the court rejects
the will, probability exists that the case will come up once again before us on the
same issue of the intrinsic validity or nullity of the will. Result: waste of time,
effort, expense, plus added anxiety. These are the practical considerations that
induce us to a belief that we might as well meet head-on the issue of the validity
of the provisions of the will in question.
3
After all, there exists a justiciable
controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the
conclusion below that the will is a complete nullity. This exacts from us a study
of the disputed will and the applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having
amassed a certain amount of property, do hereby give, devise, and bequeath all
of the property which I may have when I die to my beloved sister Remedios
Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness whereof, I have
signed my name this seventh day of November, nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in
part, provides:
ART. 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall annul
the institution of heir; but the devises and legacies shall be valid insofar
as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of
Article 814 of the Civil Code of Spain of 1889, which is similarly herein copied,
thus
Art. 814. The preterition of one or all of the forced heirs in the direct
line, whether living at the time of the execution of the will or born after
the death of the testator, shall void the institution of heir; but the
legacies and betterments
4
shall be valid, in so far as they are not
inofficious. ...
A comprehensive understanding of the term preterition employed in the law
becomes a necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se
le nombra siquiera o aun nombrandole como padre, hijo, etc., no se le
instituya heredero ni se le deshereda expresamente ni se le asigna
parte alguna de los bienes, resultando privado de un modo tacito de su
derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el
testamento omita el testador a uno cualquiera de aquellos a quienes
por su muerte corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b)
Que la omision sea completa; que el heredero forzoso nada reciba en el
testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective
of the problem before us, to have on hand a clear-cut definition of the word
annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54
A. 342, 343, 204 Pa. 484.
6

The word "annul" as used in statute requiring court to annul alimony
provisions of divorce decree upon wife's remarriage means to reduce
to nothing; to annihilate; obliterate; blot out; to make void or of no
effect; to nullify; to abolish. N.J.S.A. 2:50 38 (now N.J.S. 2A:34-35).
Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.
7

ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of
no effect; to nullify; to abolish; to do away with. Ex parte Mitchell, 123
W. Va. 283, 14 S.E. 2d. 771, 774.
8

And now, back to the facts and the law. The deceased Rosario Nuguid left no
descendants, legitimate or illegitimate. But she left forced heirs in the direct
ascending line her parents, now oppositors Felix Nuguid and Paz Salonga
Nuguid. And, the will completely omits both of them: They thus received
nothing by the testament; tacitly, they were deprived of their legitime; neither
were they expressly disinherited. This is a clear case of preterition. Such
preterition in the words of Manresa "anulara siempre la institucion de heredero,
dando caracter absoluto a este ordenamiento referring to the mandate of Article
814, now 854 of the Civil Code.
9
The one-sentence will here institutes petitioner
as the sole, universal heir nothing more. No specific legacies or bequests are
therein provided for. It is in this posture that we say that the nullity is complete.
Perforce, Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de
existir, en todo o en parte? No se aade limitacion alguna, como en el
articulo 851, en el que se expresa que se anulara la institucion de
heredero en cuanto prejudique a la legitima del deseheredado Debe,
pues, entenderse que la anulacion es completa o total, y que este
articulo como especial en el caso que le motiva rige con preferencia al
817.
10

The same view is expressed by Sanchez Roman:
La consecuencia de la anulacion o nulidad de la institucion de heredero
por pretericion de uno, varios o todos los forzosos en linea recta, es la
apertura de la sucesion intestada total o parcial. Sera total, cuando el
testador que comete la pretericion, hubiese dispuesto de todos los
bienes por titulo universal de herencia en favor de los herederos
instituidos, cuya institucion se anula, porque asi lo exige la generalidad
del precepto legal del art. 814, al determinar, como efecto de la
pretericion, el de que "anulara la institucion de heredero." ...
11

Really, as we analyze the word annul employed in the statute, there is no
escaping the conclusion that the universal institution of petitioner to the entire
inheritance results in totally abrogating the will. Because, the nullification of
such institution of universal heir without any other testamentary disposition
in the will amounts to a declaration that nothing at all was written. Carefully
worded and in clear terms, Article 854 offers no leeway for inferential
interpretation. Giving it an expansive meaning will tear up by the roots the
fabric of the statute. On this point, Sanchez Roman cites the "Memoria annual
del Tribunal Supreme, correspondiente a 1908", which in our opinion expresses
the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de
la institucion de heredero, no consiente interpretacion alguna favorable
a la persona instituida en el sentido antes expuesto aun cuando
parezca, y en algun caso pudiera ser, mas o menos equitativa, porque
una nulidad no significa en Derecho sino la suposicion de que el hecho o
el acto no se ha realizado, debiendo por lo tanto procederse sobre tal
base o supuesto, y consiguientemente, en un testamento donde falte la
institucion, es obligado llamar a los herederos forzosos en todo caso,
como habria que llamar a los de otra clase, cuando el testador no
hubiese distribudo todos sus bienes en legados, siendo tanto mas
obligada esta consecuencia legal cuanto que, en materia de
testamentos, sabido es, segun tiene declarado la jurisprudencia, con
repeticion, que no basta que sea conocida la voluntad de quien testa si
esta voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituiria una
interpretacion arbitraria, dentro del derecho positivo, reputar como
legatario a un heredero cuya institucion fuese anulada con pretexto de
que esto se acomodaba mejor a la voluntad del testador, pues aun
cuando asi fuese, sera esto razon para modificar la ley, pero no autoriza
a una interpretacion contraria a sus terminos y a los principios que
informan la testamentifaccion, pues no porque parezca mejor una cosa
en el terreno del Derecho constituyente, hay razon para convereste
juicio en regla de interpretacion, desvirtuando y anulando por este
procedimiento lo que el legislador quiere establecer.
12

3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, "the devises and legacies shall be valid insofar as they are not
inofficious". Legacies and devises merit consideration only when they are so
expressly given as such in a will. Nothing in Article 854 suggests that the mere
institution of a universal heir in a will void because of preterition would
give the heir so instituted a share in the inheritance. As to him, the will is
inexistent. There must be, in addition to such institution, a testamentary
disposition granting him bequests or legacies apart and separate from the
nullified institution of heir. Sanchez Roman, speaking of the two component
parts of Article 814, now 854, states that preterition annuls the institution of
the heir "totalmente por la pretericion"; but added (in reference to legacies and
bequests) "pero subsistiendo ... todas aquellas otras disposiciones que no se
refieren a la institucion de heredero ... .
13
As Manresa puts it, annulment throws
open to intestate succession the entire inheritance including "la porcion libre
(que) no hubiese dispuesto en virtud de legado, mejora o donacion.
14

As aforesaid, there is no other provision in the will before us except the
institution of petitioner as universal heir. That institution, by itself, is null and
void. And, intestate succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective
disinheritance rather than one of preterition".
15
From this, petitioner draws the
conclusion that Article 854 "does not apply to the case at bar". This argument
fails to appreciate the distinction between pretention and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or
anyone of them, either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly disinherited."
16
Disinheritance, in turn, "is a testamentary disposition depriving any
compulsory heir of his share in the legitime for a cause authorized by law. "
17
In
Manresa's own words: "La privacion expresa de la legitima constituye la
desheredacion. La privacion tacita de la misma se denomina pretericion."
18

Sanchez Roman emphasizes the distinction by stating that disinheritance "es
siempre voluntaria"; preterition, upon the other hand, is presumed to be
"involuntaria".
19
Express as disinheritance should be, the same must be
supported by a legal cause specified in the will itself.
20

The will here does not explicitly disinherit the testatrix's parents, the forced
heirs. It simply omits their names altogether. Said will rather than be labeled
ineffective disinheritance is clearly one in which the said forced heirs suffer
from preterition.
On top of this is the fact that the effects flowing from preterition are totally
different from those of disinheritance. Preterition under Article 854 of the Civil
Code, we repeat, "shall annul the institution of heir". This annulment is in toto,
unless in the will there are, in addition, testamentary dispositions in the form of
devises or legacies. In ineffective disinheritance under Article 918 of the same
Code, such disinheritance shall also "annul the institution of heirs", put only
"insofar as it may prejudice the person disinherited", which last phrase was
omitted in the case of preterition.
21
Better stated yet, in disinheritance the
nullity is limited to that portion of the estate of which the disinherited heirs
have been illegally deprived. Manresa's expressive language, in commenting on
the rights of the preterited heirs in the case of preterition on the one hand and
legal disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a
todo; desheredados, solo les corresponde un tercio o dos tercios,
22
el caso.
23

5. Petitioner insists that the compulsory heirs ineffectively disinherited are
entitled to receive their legitimes, but that the institution of heir "is not
invalidated," although the inheritance of the heir so instituted is reduced to the
extent of said legitimes.
24

This is best answered by a reference to the opinion of Mr. Chief Justice Moran in
the Neri case heretofore cited, viz:
But the theory is advanced that the bequest made by universal title in
favor of the children by the second marriage should be treated as
legado and mejora and, accordingly, it must not be entirely annulled but
merely reduced. This theory, if adopted, will result in a complete
abrogation of Articles 814 and 851 of the Civil Code. If every case of
institution of heirs may be made to fall into the concept of legacies and
betterments reducing the bequest accordingly, then the provisions of
Articles 814 and 851 regarding total or partial nullity of the institution,
would. be absolutely meaningless and will never have any application
at all. And the remaining provisions contained in said article concerning
the reduction of inofficious legacies or betterments would be a
surplusage because they would be absorbed by Article 817. Thus,
instead of construing, we would be destroying integral provisions of the
Civil Code.
The destructive effect of the theory thus advanced is due mainly to a
failure to distinguish institution of heirs from legacies and betterments,
and a general from a special provision. With reference to article 814,
which is the only provision material to the disposition of this case, it
must be observed that the institution of heirs is therein dealt with as a
thing separate and distinct from legacies or betterments. And they are
separate and distinct not only because they are distinctly and
separately treated in said article but because they are in themselves
different. Institution of heirs is a bequest by universal title of property
that is undetermined. Legacy refers to specific property bequeathed by
a particular or special title. ... But again an institution of heirs cannot be
taken as a legacy.
25

The disputed order, we observe, declares the will in question "a complete
nullity". Article 854 of the Civil Code in turn merely nullifies "the institution of
heir". Considering, however, that the will before us solely provides for the
institution of petitioner as universal heir, and nothing more, the result is the
same. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review
is hereby affirmed. No costs allowed. So ordered.

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-41971 November 29, 1983
ZONIA ANA T. SOLANO, petitioner,
vs.
THE COURT OF APPEALS, BIENVENIDO S. GARCIA, and EMETERIA S.
GARCIA, respondents.
Benjamin H. Aquino for petitioner.
Alfredo Kallos for respondents.

MELENCIO HERRERA, J.:+.wph!1
A Petition for Review on certiorari of the Decision of the then Court of Appeals
affirming the judgment rendered by the former Court of First Instance of Albay,
Branch II, in Civil Case No. 3956, an action for Recognition.
On July 7, 1969, Bienvenido Garcia and Emeteria Garcia (GARCIAS), claiming to
be illegitimate children of Dr. Meliton SOLANO, filed an action for recognition
against him. In his Answer, SOLANO denied paternity. On February 3, 1970,
during the pendency of the suit, SOLANO died. Petitioner ZONIA Ana Solano was
ordered substituted for the DECEDENT as the only surviving heir mentioned in
his Last Will and Testament probated on March 10, 1969, or prior to his death,
in Special Proceedings No. 842 of the same Court. ZONIA entered her formal
appearance as a "substitute defendant" on March 4, 1970 claiming additionally
that she was the sole heir of her father, SOLANO, and asking that she be allowed
to assume her duties as executrix of the probated Will with the least
interference from the GARCIAS who were "mere pretenders to be illegitimate
children of SOLANO".
On April 6, 1970, the GARCIAS filed their "Reply to ZONIA's Appearance and
Supplemental Cause of Action" impugning the recognition of ZONIA as an
acknowledged natural child with the prayer that she be declared instead, like
them, as an adulterous child of the DECEDENT. ZONIA did not file any
responsive pleading and the case proceeded to trial. The GARCIAS further
moved for the impleading of the SOLANO estate in addition to ZONIA, which
was opposed by the latter, but which the Trial Court granted in its Order dated
April 15, 1970.
1

In the hearing of May 13, 1970, the Trial Court specified the legal issues to be
treated in the parties' respective Memoranda as: 1) the question of recognition
of the GARCIAS; 2) the correct status of ZONIA, and 3) the hereditary share of
each of them in view of the probated Will.
2

On July 14, 1970, the Trial Court, presided by Judge Ezequiel S. Grageda,
rendered judgment the dispositive portion of which decrees: t.hqw
WHEREFORE, judgment is hereby rendered declaring the
plaintiffs Bienvenido S. Garcia and Emeteria S. Garcia and the
defendant Sonia Ana Tuagnon as the illegitimate children of
the late Dr. Meliton Solano under the class of ADULTEROUS
CHILDREN, with all the rights granted them by law. The
institution of Sonia Ana Solano as sole and universal heir of the
said deceased in the will is hereby declared null and void and
the three (3) children shall share equally the estate or one-
third (1/3) each, without prejudice to the legacy given to
Trinidad Tuagnon and the right of any creditors of the estate.
No pronouncement as to costs.
Appealed to the Court of Appeals by ZONIA, said Court affirmed the judgment in
toto (CA-G.R. No. 49018).
ZONIA seeks a reversal of that affirmance in this petition, which was given due
course.
At the outset, we should state that we are bound by the findings of fact of both
the Trial Court and the Appellate Court, particularly, the finding that the
GARCIAS and ZONIA are, in fact, illegitimate children of the DECEDENT. The oral
testimony and the documentary evidence of record inevitably point to that
conclusion, as may be gleaned from the following background facts: SOLANO, a
resident of Tabaco, Albay, married Pilar Riosa. The latter died. On a world tour
he met a French woman, Lilly Gorand, who became his second wife in 1928. The
union was short-lived as she left him in 1929. In the early part of 1930, SOLANO
started having amorous relations with Juana Garcia, out of which affair was
born Bienvenido Garcia on March 24, 1931 (Exhibits "A" & "3"); and on
November 3, 1935, Emeteria Garcia was born (Exhibits "B " & "2"). Their birth
certificates and baptismal certificates mention only the mother's name without
the father's name. The facts establish, however, that SOLANO during his lifetime
recognized the GARCIAS as his children by acts of support and provisions for
their education.
In 1935, SOLANO started living with Trinidad Tuagnon. Three children were
born out of this relation but only petitioner ZONIA Ana Tuagnon, born on July
26, 1941, is living. In her Birth Certificate, her status was listed as "illegitimate";
her mother as Trinidad Tuagnon; her father as "P.N.C. " (Exhibit "V"), or "padre
no conocido".
During the Japanese occupation, SOLANO obtained a divorce from Lilly Gorand
on November 29, 1943 (Exhibits "R-1" and "S-1"). On December 22, 1943,
SOLANO and Trinidad Tuagnon executed an "Escritura de Reconocimiento de
Unit Hija Natural" (Exhibit "Q"; "7"), acknowledging ZONIA as a "natural child"
and giving her the right to use the name ZONIA Ana Solano y Tuagnon. The
document was registered with the Local Civil Registrar on the same date.
On January 18, 1969, SOLANO executed his "Ultima Voluntad y Testamento"
(Exhibit "11"), instituting ZONIA as his universal heir to all his personal and real
properties in Camalig, Tabaco and Malinao, all in the province of Albay, except
for five parcels of land in Bantayan, Tabaco, Albay, which were given to Trinidad
Tuagnon in usufruct Upon SOLANO's petition (Exhibit "10"), the Will was duly
probated on March 10, 1969 in Special Proceedings No. 842 of the Court of First
Instance of Albay, Branch II, in a Decision also rendered by Judge Ezequiel S.
Grageda (Exhibit "12").
As above stated, these facts are not in question.
Petitioner maintains, however, that: t.hqw
I
The Court of Appeals, as well as the trial Court, acted without
jurisdiction or in excess of jurisdiction in declaring substitute
defendant Zonia Ana Solano, now petitioner, an illegitimate
child of the late Dr. Meliton Solano in an action where private
respondents, as plaintiffs in the Court below, sought
recognition as natural children of Dr. Meliton Solano.
II
The Court of Appeals, as well as the trial Court, acted without
jurisdiction or in excess of jurisdiction in ordering the division
of the estate of Dr. Meliton Solano between the petitioner and
private respondents, when said estate is under the jurisdiction
and control of the probate Court in Special Proceedings No.
842.
III
The Court of Appeals, as well as the trial Court, acted without
jurisdiction or in excess of jurisdiction in declaring nun and
void the institution of heir in the last will and testament of Dr.
Meliton Solano, which was duly probated in special
proceedings No. 842 of the Court of First Instance of Albay, and
in concluding that total intestacy resulted there from.
3

Directly challenged is the jurisdiction of the lower Court, in an action for
recognition: 1) to declare ZONIA as an illegitimate child of SOLANO; 2) to order
the division of the estate in the same action despite the pendency of Special
Proceedings No. 842; and 3) to declare null and void the institution of heir in the
Last Win and Testament of SOLANO, which was duly probated in the same
Special Proceedings No. 842, and concluding that total intestacy resulted.
It is true that the action below was basically one for recognition. However, upon
notice of SOLANO's death, the Trial Court ordered his substitution by ZONIA,
"the only surviving heir ... as of as of now"
4
In her "Appearance of Substitute
Defendant Zonia Ana T. Solano ... Sole and Universal Heir", ZONIA specifically
prayed that she be 6 allowed to assume her duties as executrix and
administratrix of the probated will and testament of the late Dr. Meliton Solano,
under Special Proceedings No. 842, which is already final and executory, with
least interference from the plaintiffs (GARCIAS) who may be classified for the
moment as only pretenders to be illegitimate children". In other words, ZONIA
did not only rely upon SOLANO's Answer already of record but asserted new
rights in her capacity as sole and universal heir, "executrix and administratrix,
"and challenged the right of the GARCIAS to recognition. Thus, she was not
defending the case as a mere representative of the deceased but asserted rights
and defenses in her own personal capacity. So it was that the GARCIAS filed a
"Reply to Appearance of ZONIA ... and Supplemental Cause of Action ...
"vigorously denying that ZONIA was SOLANO's sole and universal heir; that
ZONIA could not legally be considered as SOLANO's acknowledged natural child
because of a legal impediment; that the admission to probate of SOLANO's Will
was merely conclusive as to its due execution; that the supposed recognition
under a notarial instrument of ZONIA as an acknowledged natural child was
fraudulent and a product of misrepresentation; that ZONIA's recognition in the
Will as an acknowledged natural child is subject to nullification and that at most
ZONIA is, like them, an adulterous child of SOLANO with Trinidad Tuagnon.
During the trial, the GARCIAS presented evidence to prove their allegations not
only in their main complaint but also in their "Reply to Appearance and
Supplemental Cause of Action". ZONIA presented no objection to the
presentation by the GARCIAS of their oral and documentary evidence and even
cross-examined their witnesses. ZONIA, for her part, presented her own
testimonial and documentary evidence, denied the relationship of the GARCIAS'
to SOLANO and presented the notarial recognition in her favor as an
acknowledged natural child by SOLANO and Trinidad Tuagnon (Exhibit "Q").
Thus, as raised by the parties in their own pleadings and pursuant to their
respective evidence during the trial, the litigation was converted into a contest
between the GARCIAS and ZONIA precisely as to their correct status as heirs
and their respective rights as such. No error was committed by either the Trial
Court or the Appellate Court, therefore, in resolving the issue of ZONIA's status.
ZONIA additionally assails the jurisdiction of the Trial Court in declaring null
and void the institution of heir in SOLANO's will; in concluding that total
intestacy resulted therefrom; and distributing the shares of the parties in
SOLANO's estate when said estate was under the jurisdiction and control of the
Probate Court in Special Proceedings No. 842.
Normally, this would be the general rule. However, a peculiar situation is thrust
upon us here. It should be recalled that SOLANO himself instituted the petition
for probate of the Will during his lifetime. That proceeding was not one to settle
the estate of a deceased person that would be deemed terminated only upon the
final distribution of the residue of the hereditary estate. With the Will allowed
to probate, the case would have terminated except that it appears that the
parties, after SOLANO's death, continued to file pleadings therein. Secondly,
upon motion of the GARCIAS, and over the objection of ZONIA, the Trial Court
ordered the impleading of the estate of SOLANO and proceeded on that basis. In
effect, therefore, the two cases were consolidated. The records further disclose
that the action for recognition (Civil Case No. 3956) and Spec. Procs. No. 842
were pending before the same Branch of the Court and before the same
presiding Judge. Thirdly, it is settled that the allowance of a Will is conclusive
only as to its due execution.
5
A probate decree is not concerned with the
intrinsic validity or legality of the provisions of the Will.
6

Thus, the Trial Court and the Appellate Court had jurisdiction to conclude that,
upon the facts, the GARCIAS and ZONIA were in the same category as
illegitimate children; that ZONIA's acknowledgment as a "natural child" in a
notarial document executed by SOLANO and Trinidad Tuagnon on December
22, 1943 was erroneous because at the time of her birth in 1941, SOLANO was
still married to Lilly Gorand, his divorce having been obtained only in 1943, and,
therefore, did not have the legal capacity to contract marriage at the time of
ZONIA's conception,
7
that being compulsory heirs, the GARCIAS were, in fact,
pretended from SOLANO's Last' Will and Testament; and that as a result of said
preterition, the institution of ZONIA as sole heir by SOLANO is null and void
pursuant to Article 854 of the Civil Code. t.hqw
The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time
of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devises and
legacies shall be valid insofar as they are not inofficious. ...
8

As provided in the foregoing provision, the disposition in the Will giving the
usufruct in favor of Trinidad Tuagnon over the five parcels of land in Bantayan,
Tabaco, Albay, is a legacy, recognized in Article 563 of the Civil Code,
9
and
should be respected in so far as it is not inofficious.
10

So also did the Trial Court have jurisdiction in resolving the issue of the
hereditary shares of the GARCIAS and ZONIA. However, contrary to the
conclusions of the Courts below, holding that the entire Will is void and
intestacy ensues, the pretention of the GARCIAS should annul the institution of
ZONIA as heir only insofar as the legitime of the omitted heirs is impaired. The
Will, therefore, is valid subject to that limitation.
11
It is a plain that the intention
of the testator was to favor ZONIA with certain portions of his property, which,
under the law, he had a right to dispose of by Will, so that the disposition in her
favor should be upheld as to the one-half (1/2) portion of the property that the
testator could freely dispose of.
12
Since the legitime of illegitimate children
consists of one half (1/2) of the hereditary estate,
13
the GARCIAS and ZONIA
each have a right to participation therein in the proportion of one-third (1/3)
each. ZONIA's hereditary share will, therefore, be 1/2 + (1/3 of 1/2) or 4/6 of
the estate, while the GARCIAS will respectively be entitled to 1/3 of 1/2 or 1/6
of the value of the estate.
As heretofore stated, the usufruct in favor of Trinidad Tuagnon over the
properties indicated in the Will is valid and should be respected.
The case of Nuguid vs. Nuguid, et al.,
14
reiterating the ruling in Neri, et al. vs.
Akutin, et al.,
15
which held that where the institution of a universal heir is null
and void due to pretention, the Will is a complete nullity and intestate
succession ensues, is not applicable herein because in the Nuguid case, only a
one-sentence Will was involved with no other provision except the institution of
the sole and universal heir; there was no specification of individual property;
there were no specific legacies or bequests. It was upon that factual setting that
this Court declared: t.hqw
The disputed order, we observe, declares the will in question 'a
complete nullity. Article 854 of the Civil Code in turn merely
nullifies 'the institution of heir'. Considering, however, that the
will before us solely provides for the institution of petitioner as
universal heir, and nothing more, the result is the same. The
entire will is null." (at p. 459)
In contrast, in the case at bar, there is a specific bequest or legacy so that Article
854 of the Civil Code, supra, applies merely annulling the "institution of heir".
Lastly, it should be pointed out that the jurisdiction of the Trial Court and the
Appellate Court was never questioned before either Court. ZONIA herself had
gone, without objection, to trial on the issues raised and as defined by the Trial
Court. Neither had ZONIA assigned lack of jurisdiction of the Trial Court as an
error before the Appellate Court. She should now be held estopped to repudiate
that jurisdiction to which she had voluntarily submitted, after she had received
an unfavorable judgment, The leading case of Tijam vs. Sibonghanoy,
16
on this
point, declared: t.hqw
A party cannot invoke the jurisdiction of a court to secure
affirmative relief against his opponent and after failing to
obtain such relief, repudiate or question the same jurisdiction.
The question whether the court has jurisdiction either of the
subject matter of the action or of the parties is not because the
judgment or order of the court is valid and conclusive as an
adjudication but for the reason that such practice cannot be
tolerated obviously for reasons of public policy. After
voluntarily submitting a cause and encountering an adverse
decision on the merits, it is too late for the loser to question the
jurisdiction or power of the court.
WHEREFORE, the judgment under review is hereby modified in that the
hereditary share in the estate of the decedent of petitioner Zonia Ana T. Solano
is hereby declared to be (1/2 + (1/3 of 1/2) or 4/6 of said estate, while that of
private respondents, Bienvenido S. Garcia and Emeteria S. Garcia, shall each be
(1/3 of 1/2) or (1/6) of the estate. The usufruct in favor of Trinidad Tuagnon
shall be respected. The judgment is affirmed in all other respects. No costs.
SO ORDERED.1wph1.t
Plana, Relova and Gutierrez, Jr., JJ., concur.


Separate Opinions

TEEHANKEE, J., concurring:
The record shows that the probate proceeding (Sp. Proc. No. 842) was not one
for settlement of estate of a deceased but one instituted by the testator himself,
Dr. Meliton Solano, for the allowance of the will during his lifetime under Article
838 of the Civil Code. Such allowance was granted and this terminated the
proceeding, although as noted in the Court's opinion, the parties continued to
file some pleadings therein after Dr. Solano's death. But the issues between the
parties as to their status and hereditary shares in view of the probated will
naming petitioner as sole heir were expressly delineated, tried and determined
in the action for recognition (Civil Case No. 3956) filed by respondents Garcias
against their father Dr. Solano who was substituted by petitioner as defendant
(and sole heir of the estate under the probated will) after his death. In effect,
therefore, the two cases (assuming that the probate proceeding could be
deemed as having continued notwithstanding its termination with the
allowance in vitam of Dr. Solano's will) which were pending before the same
judge and the same branch of the trial court could be correctly said to have
been. consolidated. Finally, petitioner is now stopped, after getting an adverse
verdict, from repudiating belatedly the jurisdiction of the trial and appellate
courts to which she had submitted without question her cause.


Separate Opinions
TEEHANKEE, J., concurring:
The record shows that the probate proceeding (Sp. Proc. No. 842) was not one
for settlement of estate of a deceased but one instituted by the testator himself,
Dr. Meliton Solano, for the allowance of the will during his lifetime under Article
838 of the Civil Code. Such allowance was granted and this terminated the
proceeding, although as noted in the Court's opinion, the parties continued to
file some pleadings therein after Dr. Solano's death. But the issues between the
parties as to their status and hereditary shares in view of the probated will
naming petitioner as sole heir were expressly delineated, tried and determined
in the action for recognition (Civil Case No. 3956) filed by respondents Garcias
against their father Dr. Solano who was substituted by petitioner as defendant
(and sole heir of the estate under the probated will) after his death. In effect,
therefore, the two cases (assuming that the probate proceeding could be
deemed as having continued notwithstanding its termination with the
allowance in vitam of Dr. Solano's will) which were pending before the same
judge and the same branch of the trial court could be correctly said to have
been. consolidated. Finally, petitioner is now stopped, after getting an adverse
verdict, from repudiating belatedly the jurisdiction of the trial and appellate
courts to which she had submitted without question her cause.

SECOND DIVISION


DY YIENG SEANGIO, G.R. Nos. 140371-72
BARBARA D. SEANGIO
and VIRGINIA D. SEANGIO,
Petitioners, Present:

PUNO, J., Chairperson,
- versus - SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA, and
HON. AMOR A. REYES, in her GARCIA, JJ.
capacity as Presiding Judge,
Regional Trial Court, National
Capital Judicial Region, Branch 21,
Manila, ALFREDO D. SEANGIO,
ALBERTO D. SEANGIO, ELISA D. Promulgated:
SEANGIO-SANTOS, VICTOR D.
SEANGIO, ALFONSO D. SEANGIO,
SHIRLEY D. SEANGIO-LIM, November 27, 2006
BETTY D. SEANGIO-OBAS and
JAMES D. SEANGIO,
Respondents.
x ---------------------------------------------------------------------------------------- x


DECISION

AZCUNA, J.:

This is a petition for certiorarii[1] with application for the issuance of a
writ of preliminary injunction and/or temporary restraining order seeking the
nullification of the orders, dated August 10, 1999 and October 14, 1999, of the
Regional Trial Court of Manila, Branch 21 (the RTC), dismissing the petition for
probate on the ground of preterition, in the consolidated cases, docketed as SP.
Proc. No. 98-90870 and SP. Proc. No. 99-93396, and entitled, In the Matter of
the Intestate Estate of Segundo C. Seangio v. Alfredo D. Seangio, et al. and In
the Matter of the Probate of the Will of Segundo C. Seangio v. Dy Yieng Seangio,
Barbara D. Seangio and Virginia Seangio.

The facts of the cases are as follows:


On September 21, 1988, private respondents filed a petition for the
settlement of the intestate estate of the late Segundo Seangio, docketed as Sp.
Proc. No. 9890870 of the RTC, and praying for the appointment of private
respondent Elisa D. SeangioSantos as special administrator and guardian ad
litem of petitioner Dy Yieng Seangio.

Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio,
opposed the petition. They contended that: 1) Dy Yieng is still very healthy and
in full command of her faculties; 2) the deceased Segundo executed a general
power of attorney in favor of Virginia giving her the power to manage and
exercise control and supervision over his business in the Philippines; 3) Virginia
is the most competent and qualified to serve as the administrator of the estate
of Segundo because she is a certified public accountant; and, 4) Segundo left a
holographic will, dated September 20, 1995, disinheriting one of the private
respondents, Alfredo Seangio, for cause. In view of the purported holographic
will, petitioners averred that in the event the decedent is found to have left a
will, the intestate proceedings are to be automatically suspended and replaced
by the proceedings for the probate of the will.

On April 7, 1999, a petition for the probate of the holographic will of
Segundo, docketed as SP. Proc. No. 9993396, was filed by petitioners before
the RTC. They likewise reiterated that the probate proceedings should take
precedence over SP. Proc. No. 9890870 because testate proceedings take
precedence and enjoy priority over intestate proceedings.ii[2]

The document that petitioners refer to as Segundos holographic will is
quoted, as follows:

Kasulatan sa pag-aalis ng mana

Tantunin ng sinuman

Ako si Segundo Seangio Filipino may asawa
naninirahan sa 465-A Flores St., Ermita, Manila at nagtatalay
ng maiwanag na pag-iisip at disposisyon ay tahasan at
hayagang inaalisan ko ng lahat at anumang mana ang paganay
kong anak na si Alfredo Seangio dahil siya ay naging
lapastangan sa akin at isan beses siya ng sasalita ng masama
harapan ko at mga kapatid niya na si Virginia Seangio labis
kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na
ako nasa ibabaw gayon gunit daratin ang araw na ako nasa
ilalim siya at siya nasa ibabaw.

Labis kong ikinasama ng loob ko ang gamit ni Alfredo
ng akin pagalan para makapagutang na kuarta siya at kanya
asawa na si Merna de los Reyes sa China Bangking Corporation
na millon pesos at hindi ng babayad at hindi ng babayad ito ay
nagdulot sa aking ng malaking kahihiya sa mga may-ari at
stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng
kanyang asawa na mga custome[r] ng Travel Center of the
Philippines na pinagasiwaan ko at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si
Alfredo ng anak ko at hayanan kong inaalisan ng lahat at
anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko
siya anak at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa
longsod ng Manila sa harap ng tatlong saksi. iii[3]


(signed)

Segundo
Seangio

Nilagdaan sa harap namin

(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi

(signed)
ikatlong saksi


On May 29, 1999, upon petitioners motion, SP. Proc. No. 9890870 and
SP. Proc. No. 9993396 were consolidated.iv[4]

On July 1, 1999, private respondents moved for the dismissal of the
probate proceedingsv[5] primarily on the ground that the document purporting
to be the holographic will of Segundo does not contain any disposition of the
estate of the deceased and thus does not meet the definition of a will under
Article 783 of the Civil Code. According to private respondents, the will only
shows an alleged act of disinheritance by the decedent of his eldest son, Alfredo,
and nothing else; that all other compulsory heirs were not named nor instituted
as heir, devisee or legatee, hence, there is preterition which would result to
intestacy. Such being the case, private respondents maintained that while
procedurally the court is called upon to rule only on the extrinsic validity of the
will, it is not barred from delving into the intrinsic validity of the same, and
ordering the dismissal of the petition for probate when on the face of the will it
is clear that it contains no testamentary disposition of the property of the
decedent.

Petitioners filed their opposition to the motion to dismiss contending
that: 1) generally, the authority of the probate court is limited only to a
determination of the extrinsic validity of the will; 2) private respondents
question the intrinsic and not the extrinsic validity of the will; 3) disinheritance
constitutes a disposition of the estate of a decedent; and, 4) the rule on
preterition does not apply because Segundos will does not constitute a
universal heir or heirs to the exclusion of one or more compulsory heirs.vi[6]

On August 10, 1999, the RTC issued its assailed order, dismissing the
petition for probate proceedings:
A perusal of the document termed as will by
oppositors/petitioners Dy Yieng Seangio, et al., clearly shows
that there is preterition, as the only heirs mentioned thereat
are Alfredo and Virginia. [T]he other heirs being omitted,
Article 854 of the New Civil Code thus applies. However,
insofar as the widow Dy Yieng Seangio is concerned, Article
854 does not apply, she not being a compulsory heir in the
direct line.
As such, this Court is bound to dismiss this petition, for
to do otherwise would amount to an abuse of discretion. The
Supreme Court in the case of Acain v. Intermediate Appellate
Court [155 SCRA 100 (1987)] has made its position clear: for
respondents to have tolerated the probate of the will and
allowed the case to progress when, on its face, the will appears
to be intrinsically void would have been an exercise in
futility. It would have meant a waste of time, effort, expense,
plus added futility. The trial court could have denied its
probate outright or could have passed upon the intrinsic
validity of the testamentary provisions before the extrinsic
validity of the will was resolved (underscoring supplied).

WHEREFORE, premises considered, the Motion to
Suspend Proceedings is hereby DENIED for lack of merit.
Special Proceedings No. 9993396 is hereby DISMISSED
without pronouncement as to costs.

SO ORDERED.vii[7]


Petitioners motion for reconsideration was denied by the RTC in its
order dated October 14, 1999.

Petitioners contend that:

THE RESPONDENT JUDGE ACTED IN EXCESS OF HER
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND
DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW
AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS,
DATED 10 AUGUST 1999 AND 14 OCTOBER 1999
(ATTACHMENTS A AND B HEREOF) CONSIDERING THAT:

I
THE RESPONDENT JUDGE, WITHOUT EVEN
COMPLYING WITH SECTIONS 3 AND 4 OF RULE 76 OF THE
RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING
THE CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT
OF THE JURISDICTIONAL FACTS, DISMISSED THE TESTATE
CASE ON THE ALLEGED GROUND THAT THE TESTATORS
WILL IS VOID ALLEGEDLY BECAUSE OF THE EXISTENCE OF
PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY
OF THE WILL, DESPITE THE FACT THAT IT IS A SETTLED
RULE THAT THE AUTHORITY OF PROBATE COURTS IS
LIMITED ONLY TO A DETERMINATION OF THE EXTRINSIC
VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF,
THE TESTATORS TESTAMENTARY CAPACITY AND THE
COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES
PRESCRIBED BY LAW;

II
EVEN ASSUMING ARGUENDO THAT THE
RESPONDENT JUDGE HAS THE AUTHORITY TO RULE UPON
THE INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT
IS INDUBITABLE FROM THE FACE OF THE TESTATORS WILL
THAT NO PRETERITON EXISTS AND THAT THE WILL IS BOTH
INTRINSICALLY AND EXTRINSICALLY VALID; AND,

III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND
THE PROCEEDINGS IN THE INTESTATE CASE CONSIDERING
THAT IT IS A SETTLED RULE THAT TESTATE PROCEEDINGS
TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS.

Petitioners argue, as follows:

First, respondent judge did not comply with Sections 3 and 4 of Rule 76
of the Rules of Court which respectively mandate the court to: a) fix the time
and place for proving the will when all concerned may appear to contest the
allowance thereof, and cause notice of such time and place to be published three
weeks successively previous to the appointed time in a newspaper of general
circulation; and, b) cause the mailing of said notice to the heirs, legatees and
devisees of the testator Segundo;

Second, the holographic will does not contain any institution of an heir,
but rather, as its title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply
contains a disinheritance of a compulsory heir. Thus, there is no preterition in
the decedents will and the holographic will on its face is not intrinsically void;

Third, the testator intended all his compulsory heirs, petitioners and
private respondents alike, with the sole exception of Alfredo, to inherit his
estate. None of the compulsory heirs in the direct line of Segundo were
preterited in the holographic will since there was no institution of an heir;

Fourth, inasmuch as it clearly appears from the face of the holographic
will that it is both intrinsically and extrinsically valid, respondent judge was
mandated to proceed with the hearing of the testate case; and,

Lastly, the continuation of the proceedings in the intestate case will
work injustice to petitioners, and will render nugatory the disinheritance of
Alfredo.

The purported holographic will of Segundo that was presented by
petitioners was dated, signed and written by him in his own handwriting.
Except on the ground of preterition, private respondents did not raise any issue
as regards the authenticity of the document.

The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably
showed Segundos intention of excluding his eldest son, Alfredo, as an heir to his
estate for the reasons that he cited therein. In effect, Alfredo was disinherited by
Segundo.

For disinheritance to be valid, Article 916 of the Civil Code requires
that the same must be effected through a will wherein the legal cause therefor
shall be specified. With regard to the reasons for the disinheritance that were
stated by Segundo in his document, the Court believes that the incidents, taken
as a whole, can be considered a form of maltreatment of Segundo by his son,
Alfredo, and that the matter presents a sufficient cause for the disinheritance of
a child or descendant under Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for
the disinheritance of children and descendants, legitimate as
well as illegitimate:

(1) When a child or descendant has been found guilty of
an attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testator
of a crime for which the law prescribes imprisonment
for six years or more, if the accusation has been found
groundless;
(3) When a child or descendant has been convicted of
adultery or concubinage with the spouse of the
testator;
(4) When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator to
make a will or to change one already made;
(5) A refusal without justifiable cause to support the
parents or ascendant who disinherit such child or
descendant;
(6) Maltreatment of the testator by word or deed, by the
child or descendant;viii[8]
(7) When a child or descendant leads a dishonorable or
disgraceful life;
(8) Conviction of a crime which carries with it the
penalty of civil interdiction.


Now, the critical issue to be determined is whether the document
executed by Segundo can be considered as a holographic will.

A holographic will, as provided under Article 810 of the Civil Code,
must be entirely written, dated, and signed by the hand of the testator himself.
It is subject to no other form, and may be made in or out of the Philippines, and
need not be witnessed.

Segundos document, although it may initially come across as a mere
disinheritance instrument, conforms to the formalities of a holographic will
prescribed by law. It is written, dated and signed by the hand of Segundo
himself. An intent to dispose mortis causaix[9] can be clearly deduced from the
terms of the instrument, and while it does not make an affirmative disposition
of the latters property, the disinheritance of Alfredo, nonetheless, is an act of
disposition in itself. In other words, the disinheritance results in the disposition
of the property of the testator Segundo in favor of those who would succeed in
the absence of Alfredo.x[10]

Moreover, it is a fundamental principle that the intent or the will of the
testator, expressed in the form and within the limits prescribed by law, must be
recognized as the supreme law in succession. All rules of construction are
designed to ascertain and give effect to that intention. It is only when the
intention of the testator is contrary to law, morals, or public policy that it cannot
be given effect.xi[11]

Holographic wills, therefore, being usually prepared by one who is not
learned in the law, as illustrated in the present case, should be construed more
liberally than the ones drawn by an expert, taking into account the
circumstances surrounding the execution of the instrument and the intention of
the testator.xii[12] In this regard, the Court is convinced that the document,
even if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo
to be his last testamentary act and was executed by him in accordance with law
in the form of a holographic will. Unless the will is probated,xiii[13] the
disinheritance cannot be given effect.xiv[14]


With regard to the issue on preterition,xv[15] the Court believes that the
compulsory heirs in the direct line were not preterited in the will. It was, in the
Courts opinion, Segundos last expression to bequeath his estate to all his
compulsory heirs, with the sole exception of Alfredo. Also, Segundo did not
institute an heirxvi[16] to the exclusion of his other compulsory heirs. The mere
mention of the name of one of the petitioners, Virginia, in the document did not
operate to institute her as the universal heir. Her name was included plainly as a
witness to the altercation between Segundo and his son, Alfredo.

Considering that the questioned document is Segundos holographic
will, and that the law favors testacy over intestacy, the probate of the will
cannot be dispensed with. Article 838 of the Civil Code provides that no will
shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court. Thus, unless the will is probated, the right of
a person to dispose of his property may be rendered nugatory.xvii[17]

In view of the foregoing, the trial court, therefore, should have allowed
the holographic will to be probated. It is settled that testate proceedings for the
settlement of the estate of the decedent take precedence over intestate
proceedings for the same purpose.xviii[18]

WHEREFORE, the petition is GRANTED. The Orders of the Regional
Trial Court of Manila, Branch 21, dated August 10, 1999 and October 14, 1999,
are set aside. Respondent judge is directed to reinstate and hear SP Proc. No.
99-93396 for the allowance of the holographic will of Segundo Seangio. The
intestate case or SP. Proc. No. 98-90870 is hereby suspended until the
termination of the aforesaid testate proceedings.

No costs.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-27952 February 15, 1982
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS,
Administratrix, petitioner-appellee,
vs.
MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO
RAMIREZ, legatees, oppositors- appellants.

ABAD SANTOS, J.:
The main issue in this appeal is the manner of partitioning the testate estate of
Jose Eugenio Ramirez among the principal beneficiaries, namely: his widow
Marcelle Demoron de Ramirez; his two grandnephews Roberto and Jorge
Ramirez; and his companion Wanda de Wrobleski.
The task is not trouble-free because the widow Marcelle is a French who lives in
Paris, while the companion Wanda is an Austrian who lives in Spain. Moreover,
the testator provided for substitutions.
Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964,
with only his widow as compulsory heir. His will was admitted to probate by the
Court of First Instance of Manila, Branch X, on July 27, 1965. Maria Luisa
Palacios was appointed administratrix of the estate. In due time she submitted
an inventory of the estate as follows:
INVENTARIO
Una sexta parte (1/6) proindiviso de un te
rreno, con sus mejoras y edificaciones, situadoen
la Escolta, Manila............................................................. P500,000.00
Una sexta parte (1/6) proindiviso de dos
parcelas de terreno situadas en Antipolo, Rizal................... 658.34
Cuatrocientos noventa y uno (491) acciones
de la 'Central Azucarera de la Carlota a P17.00
por accion ................................................................................8,347.00
Diez mil ochocientos seize (10,806) acciones
de la 'Central Luzon Milling Co.', disuelta y en
liquidacion a P0.15 por accion ..............................................1,620.90
Cuenta de Ahorros en el Philippine Trust
Co.............................................................................................. 2,350.73
TOTAL..............................................................
P512,976.97
MENOS:
Deuda al Banco de las Islas Filipinas, garan-
tizada con prenda de las acciones de La Carlota ......... P 5,000,00
VALOR LIQUIDO...........................................
P507,976.97
The testamentary dispositions are as follows:
A.En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas
menores de edad, residentes en Manila, I.F., calle 'Alright, No.
1818, Malate, hijos de su sobrino D. Jose Ma. Ramirez, con
sustitucion vulgar a favor de sus respectivos descendientes, y,
en su defecto, con sustitucion vulgar reciprocal entre ambos.
El precedente legado en nuda propiedad de la participacion
indivisa de la finca Santa Cruz Building, lo ordena el testador a
favor de los legatarios nombrados, en atencion a que dicha
propiedad fue creacion del querido padre del otorgante y por
ser aquellos continuadores del apellido Ramirez,
B.Y en usufructo a saber:
a. En cuanto a una tercera parte, a favor de la esposa del
testador, Da. Marcelle Ramirez, domiciliada en IE PECO, calle
del General Gallieni No. 33, Seine Francia, con sustitucion
vulgar u fideicomisaria a favor de Da. Wanda de Wrobleski, de
Palma de Mallorca, Son Rapina Avenida de los Reyes 13,
b.Y en cuanto a las dos terceras partes restantes, a favor de
la nombrada Da. Wanda de Nrobleski con sustitucion vulgar v
fideicomisaria a saber:
En cuanto a la mitad de dichas dos terceras partes, a favor de
D. Juan Pablo Jankowski, de Son Rapina Palma de Mallorca; y
encuanto a la mitad restante, a favor de su sobrino, D. Horace
V. Ramirez, San Luis Building, Florida St. Ermita, Manila, I.F.
A pesar de las sustituciones fideiconiisarias precedentemente
ordinadas, las usufiructuarias nombradas conjuntamente con
los nudo propietarios, podran en cualquier memento vender a
tercero los bienes objeto delegado, sin intervencion alguna de
los titulares fideicomisaarios.
On June 23, 1966, the administratrix submitted a project of partition as follows:
the property of the deceased is to be divided into two parts. One part shall go to
the widow 'en pleno dominio" in satisfaction of her legitime; the other part or
"free portion" shall go to Jorge and Roberto Ramirez "en nuda propriedad."
Furthermore, one third (1/3) of the free portion is charged with the widow's
usufruct and the remaining two-thirds (2/3) with a usufruct in favor of Wanda.
Jorge and Roberto opposed the project of partition on the grounds: (a) that the
provisions for vulgar substitution in favor of Wanda de Wrobleski with respect
to the widow's usufruct and in favor of Juan Pablo Jankowski and Horacio V.
Ramirez, with respect to Wanda's usufruct are invalid because the first heirs
Marcelle and Wanda) survived the testator; (b) that the provisions for
fideicommissary substitutions are also invalid because the first heirs are not
related to the second heirs or substitutes within the first degree, as provided in
Article 863 of the Civil Code; (c) that the grant of a usufruct over real property
in the Philippines in favor of Wanda Wrobleski, who is an alien, violates Section
5, Article III of the Philippine Constitution; and that (d) the proposed partition
of the testator's interest in the Santa Cruz (Escolta) Building between the widow
Marcelle and the appellants, violates the testator's express win to give this
property to them Nonetheless, the lower court approved the project of partition
in its order dated May 3, 1967. It is this order which Jorge and Roberto have
appealed to this Court.
1. The widow's legitime.
The appellant's do not question the legality of giving Marcelle one-half of the
estate in full ownership. They admit that the testator's dispositions impaired his
widow's legitime. Indeed, under Art. 900 of the Civil Code "If the only survivor is
the widow or widower, she or he shall be entitled to one-half of the hereditary
estate." And since Marcelle alone survived the deceased, she is entitled to one-
half of his estate over which he could impose no burden, encumbrance,
condition or substitution of any kind whatsoever. (Art. 904, par. 2, Civil Code.)
It is the one-third usufruct over the free portion which the appellants question
and justifiably so. It appears that the court a quo approved the usufruct in favor
of Marcelle because the testament provides for a usufruct in her favor of one-
third of the estate. The court a quo erred for Marcelle who is entitled to one-half
of the estate "en pleno dominio" as her legitime and which is more than what
she is given under the will is not entitled to have any additional share in the
estate. To give Marcelle more than her legitime will run counter to the testator's
intention for as stated above his dispositions even impaired her legitime and
tended to favor Wanda.
2. The substitutions.
It may be useful to recall that "Substitution is the appoint- judgment of another
heir so that he may enter into the inheritance in default of the heir originally
instituted." (Art. 857, Civil Code. And that there are several kinds of
substitutions, namely: simple or common, brief or compendious, reciprocal, and
fideicommissary (Art. 858, Civil Code.) According to Tolentino, "Although the
Code enumerates four classes, there are really only two principal classes of
substitutions: the simple and the fideicommissary. The others are merely
variations of these two." (111 Civil Code, p. 185 [1973].)
The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:
ART. 859. The testator may designate one or more persons to
substitute the heir or heirs instituted in case such heir or heirs
should die before him, or should not wish, or should be
incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to
which it refers, shall comprise the three mentioned in the
preceding paragraph, unless the testator has otherwise
provided.
The fideicommissary substitution is described in the Civil Code as follows:
ART. 863. A fideicommissary substitution by virtue of which
the fiduciary or first heir instituted is entrusted with the
obligation to preserve and to transmit to a second heir the
whole or part of inheritance, shall be valid and shall take effect,
provided such substitution does not go beyond one degree
from the heir originally instituted, and provided further that
the fiduciary or first heir and the second heir are living at time
of the death of the testator.
It will be noted that the testator provided for a vulgar substitution in respect of
the legacies of Roberto and Jorge Ramirez, the appellants, thus: con sustitucion
vulgar a favor de sus respectivos descendientes, y, en su defecto, con
substitution vulgar reciprocal entre ambos.
The appellants do not question the legality of the substitution so provided. The
appellants question the sustitucion vulgar y fideicomisaria a favor de Da. Wanda
de Wrobleski" in connection with the one-third usufruct over the estate given to
the widow Marcelle However, this question has become moot because as We
have ruled above, the widow is not entitled to any usufruct.
The appellants also question the sustitucion vulgar y fideicomisaria in
connection with Wanda's usufruct over two thirds of the estate in favor of Juan
Pablo Jankowski and Horace v. Ramirez.
They allege that the substitution in its vulgar aspect as void because Wanda
survived the testator or stated differently because she did not predecease the
testator. But dying before the testator is not the only case for vulgar
substitution for it also includes refusal or incapacity to accept the inheritance as
provided in Art. 859 of the Civil Code, supra. Hence, the vulgar substitution is
valid.
As regards the substitution in its fideicommissary aspect, the appellants are
correct in their claim that it is void for the following reasons:
(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not
related to Wanda, the heir originally instituted. Art. 863 of the Civil Code
validates a fideicommissary substitution "provided such substitution does not
go beyond one degree from the heir originally instituted."
What is meant by "one degree" from the first heir is explained by Tolentino as
follows:
Scaevola Maura, and Traviesas construe "degree" as
designation, substitution, or transmission. The Supreme Court
of Spain has decidedly adopted this construction. From this
point of view, there can be only one tranmission or
substitution, and the substitute need not be related to the first
heir. Manresa, Morell and Sanchez Roman, however, construe
the word "degree" as generation, and the present Code has
obviously followed this interpretation. by providing that the
substitution shall not go beyond one degree "from the heir
originally instituted." The Code thus clearly indicates that the
second heir must be related to and be one generation from the
first heir.
From this, it follows that the fideicommissary can only be
either a child or a parent of the first heir. These are the only
relatives who are one generation or degree from the fiduciary
(Op. cit., pp. 193-194.)
(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the
substitutes as required by Arts. 865 and 867 of the Civil Code. In fact, the
appellee admits "that the testator contradicts the establishment of a
fideicommissary substitution when he permits the properties subject of the
usufruct to be sold upon mutual agreement of the usufructuaries and the naked
owners." (Brief, p. 26.)
3. The usufruct of Wanda.
The appellants claim that the usufruct over real properties of the estate in favor
of Wanda is void because it violates the constitutional prohibition against the
acquisition of lands by aliens.
The 1935 Constitution which is controlling provides as follows:
SEC. 5. Save in cases of hereditary succession, no private
agricultural land shall be transferred or assigned except to
individuals, corporations, or associations qualified to acquire
or hold lands of the public domain in the Philippines. (Art.
XIII.)
The court a quo upheld the validity of the usufruct given to Wanda on the
ground that the Constitution covers not only succession by operation of law but
also testamentary succession. We are of the opinion that the Constitutional
provision which enables aliens to acquire private lands does not extend to
testamentary succession for otherwise the prohibition will be for naught and
meaningless. Any alien would be able to circumvent the prohibition by paying
money to a Philippine landowner in exchange for a devise of a piece of land.
This opinion notwithstanding, We uphold the usufruct in favor of Wanda
because a usufruct, albeit a real right, does not vest title to the land in the
usufructuary and it is the vesting of title to land in favor of aliens which is
proscribed by the Constitution.
IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby
ordered distributed as follows:
One-half (1/2) thereof to his widow as her legitime;
One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in
naked ownership and the usufruct to Wanda de Wrobleski with a simple
substitution in favor of Juan Pablo Jankowski and Horace V. Ramirez.
The distribution herein ordered supersedes that of the court a quo. No special
pronouncement as to costs.
SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. Nos. L-27860 and L-27896 March 29, 1974
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the
Testate Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the Court
of First Instance of Iloilo), petitioner,
vs.
THE HONORABLE VENICIO ESCOLIN, Presiding Judge of the Court of First
Instance of Iloilo, Branch II, and AVELINA A. MAGNO, respondents.
G.R. Nos. L-27936 & L-27937 March 29, 1974
TESTATE ESTATE OF THE LATE LINNIE JANE HODGES (Sp. Proc. No. 1307).
TESTATE ESTATE OF THE LATE CHARLES NEWTON HODGES (Sp. Proc. No.
1672). PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, administrator-
appellant,
vs.
LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR
GUZMAN, BELCESAR CAUSING, FLORENIA BARRIDO, PURIFICACION
CORONADO, GRACIANO LUCERO, ARITEO THOMAS JAMIR, MELQUIADES
BATISANAN, PEPITO IYULORES, ESPERIDION PARTISALA, WINIFREDO
ESPADA, ROSARIO ALINGASA, ADELFA PREMAYLON, SANTIAGO
PACAONSIS, and AVELINA A. MAGNO, the last as Administratrix in Sp. Proc.
No. 1307, appellees, WESTERN INSTITUTE OF TECHNOLOGY, INC., movant-
appellee.
San Juan, Africa, Gonzales and San Agustin for Philippine Commercial and
Industrial Bank.
Manglapus Law Office, Antonio Law Office and Rizal R. Quimpo for private
respondents and appellees Avelina A. Magno, etc., et al.

BARREDO, J.:p
Certiorari and prohibition with preliminary injunction; certiorari to "declare all
acts of the respondent court in the Testate Estate of Linnie Jane Hodges (Sp.
Proc. No. 1307 of the Court of First Instance of Iloilo) subsequent to the order of
December 14, 1957 as null and void for having been issued without
jurisdiction"; prohibition to enjoin the respondent court from allowing,
tolerating, sanctioning, or abetting private respondent Avelina A. Magno to
perform or do any acts of administration, such as those enumerated in the
petition, and from exercising any authority or power as Regular Administratrix
of above-named Testate Estate, by entertaining manifestations, motion and
pleadings filed by her and acting on them, and also to enjoin said court from
allowing said private respondent to interfere, meddle or take part in any
manner in the administration of the Testate Estate of Charles Newton Hodges
(Sp. Proc. No. 1672 of the same court and branch); with prayer for preliminary
injunction, which was issued by this Court on August 8, 1967 upon a bond of
P5,000; the petition being particularly directed against the orders of the
respondent court of October 12, 1966 denying petitioner's motion of April 22,
1966 and its order of July 18, 1967 denying the motion for reconsideration of
said order.
Related to and involving basically the same main issue as the foregoing petition,
thirty-three (33) appeals from different orders of the same respondent court
approving or otherwise sanctioning the acts of administration of the respondent
Magno on behalf of the testate Estate of Mrs. Hodges.
THE FACTS
On May 23, 1957, Linnie Jane Hodges died in Iloilo City leaving a will executed
on November 22, 1952 pertinently providing as follows:
FIRST: I direct that all my just debts and funeral expenses be
first paid out of my estate.
SECOND: I give, devise and bequeath all of the rest, residue and
remainder of my estate, both personal and real, wherever
situated, or located, to my beloved husband, Charles Newton
Hodges, to have and to hold unto him, my said husband, during
his natural lifetime.
THIRD: I desire, direct and provide that my husband, Charles
Newton Hodges, shall have the right to manage, control, use
and enjoy said estate during his lifetime, and he is hereby given
the right to make any changes in the physical properties of said
estate, by sale or any part thereof which he may think best, and
the purchase of any other or additional property as he may
think best; to execute conveyances with or without general or
special warranty, conveying in fee simple or for any other term
or time, any property which he may deem proper to dispose of;
to lease any of the real property for oil, gas and/or other
minerals, and all such deeds or leases shall pass the absolute
fee simple title to the interest so conveyed in such property as
he may elect to sell. All rents, emoluments and income from
said estate shall belong to him, and he is further authorized to
use any part of the principal of said estate as he may need or
desire. It is provided herein, however, that he shall not sell or
otherwise dispose of any of the improved property now owned
by us located at, in or near the City of Lubbock, Texas, but he
shall have the full right to lease, manage and enjoy the same
during his lifetime, above provided. He shall have the right to
subdivide any farm land and sell lots therein. and may sell
unimproved town lots.
FOURTH: At the death of my said husband, Charles Newton
Hodges, I give, devise and bequeath all of the rest, residue and
remainder of my estate, both real and personal, wherever
situated or located, to be equally divided among my brothers
and sisters, share and share alike, namely:
Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon,
Saddie Rascoe, Era Roman and Nimroy Higdon.
FIFTH: In case of the death of any of my brothers and/or
sisters named in item Fourth, above, prior to the death of my
husband, Charles Newton Hodges, then it is my will and
bequest that the heirs of such deceased brother or sister shall
take jointly the share which would have gone to such brother
or sister had she or he survived.
SIXTH: I nominate and appoint my said husband, Charles
Newton Hodges, to be executor of this, my last will and
testament, and direct that no bond or other security be
required of him as such executor.
SEVENTH: It is my will and bequest that no action be had in the
probate court, in the administration of my estate, other than
that necessary to prove and record this will and to return an
inventory and appraisement of my estate and list of claims.
(Pp. 2-4, Petition.)
This will was subsequently probated in aforementioned Special Proceedings No.
1307 of respondent court on June 28, 1957, with the widower Charles Newton
Hodges being appointed as Executor, pursuant to the provisions thereof.
Previously, on May 27, 1957, the said widower (hereafter to be referred to as
Hodges) had been appointed Special Administrator, in which capacity he filed a
motion on the same date as follows:
URGENT EX-PARTE MOTION TO ALLOW OR AUTHORIZE
PETITIONER TO CONTINUE THE BUSINESS IN WHICH HE WAS
ENGAGED AND TO PERFORM ACTS WHICH HE HAD BEEN
DOING WHILE DECEASED WAS LIVING
Come petitioner in the above-entitled special proceedings, thru his undersigned
attorneys, to the Hon. Court, most respectfully states:
1. That Linnie Jane Hodges died leaving her last will and
testament, a copy of which is attached to the petition for
probate of the same.
2. That in said last will and testament herein petitioner
Charles Newton Hodges is directed to have the right to
manage, control use and enjoy the estate of deceased Linnie
Jane Hodges, in the same way, a provision was placed in
paragraph two, the following: "I give, devise and bequeath all
of the rest, residue and remainder of my estate, to my beloved
husband, Charles Newton Hodges, to have and (to) hold unto
him, my said husband, during his natural lifetime."
3. That during the lifetime of Linnie Jane Hodges, herein
petitioner was engaged in the business of buying and selling
personal and real properties, and do such acts which petitioner
may think best.
4. That deceased Linnie Jane Hodges died leaving no
descendants or ascendants, except brothers and sisters and
herein petitioner as executor surviving spouse, to inherit the
properties of the decedent.
5. That the present motion is submitted in order not to
paralyze the business of petitioner and the deceased, especially
in the purchase and sale of properties. That proper accounting
will be had also in all these transactions.
WHEREFORE, it is most respectfully prayed that, petitioner C.
N. Hodges (Charles Newton Hodges) be allowed or authorized
to continue the business in which he was engaged and to
perform acts which he had been doing while deceased Linnie
Jane Hodges was living.
City of Iloilo, May 27, 1957. (Annex "D", Petition.)
which the respondent court immediately granted in the following order:
It appearing in the urgent ex-parte motion filed by petitioner C.
N. Hodges, that the business in which said petitioner and the
deceased were engaged will be paralyzed, unless and until the
Executor is named and appointed by the Court, the said
petitioner is allowed or authorized to continue the business in
which he was engaged and to perform acts which he had been
doing while the deceased was living.
SO ORDERED.
City of Iloilo May 27, 1957. (Annex "E", Petition.)
Under date of December 11, 1957, Hodges filed as such Executor another
motion thus:
MOTION TO APPROVE ALL SALES, CONVEYANCES, LEASES,
MORTGAGES THAT THE EXECUTOR HAD MADE FURTHER
AND SUBSEQUENT TRANSACTIONS WHICH THE EXECUTOR
MAY DO IN ACCORDANCE WITH THE LAST WISH OF THE
DECEASED LINNIE JANE HODGES.
Comes the Executor in the above-entitled proceedings, thru his
undersigned attorney, to the Hon. Court, most respectfully
states:
1. That according to the last will and testament of the
deceased Linnie Jane Hodges, the executor as the surviving
spouse and legatee named in the will of the deceased; has the
right to dispose of all the properties left by the deceased,
portion of which is quoted as follows:
Second: I give, devise and bequeath all of the rest, residue and
remainder of my estate, both personal and real, wherever
situated, or located, to my beloved husband, Charles Newton
Hodges, to have and to hold unto him, my said husband, during
his natural lifetime.
Third: I desire, direct and provide that my husband, Charles
Newton Hodges, shall have the right to manage, control, use
and enjoy said estate during his lifetime, and he is hereby given
the right to make any changes in the physical properties of said
estate, by sale or any part thereof which he may think best, and
the purchase of any other or additional property as he may
think best; to execute conveyances with or without general or
special warranty, conveying in fee simple or for any other term
or time, any property which he may deem proper to dispose of;
to lease any of the real property for oil, gas and/or other
minerals, and all such deeds or leases shall pass the absolute
fee simple title to the interest so conveyed in such property as
he may elect to sell. All rents, emoluments and income from
said estate shall belong to him, and he is further authorized to
use any part of the principal of said estate as he may need or
desire. ...
2. That herein Executor, is not only part owner of the
properties left as conjugal, but also, the successor to all the
properties left by the deceased Linnie Jane Hodges. That during
the lifetime of herein Executor, as Legatee has the right to sell,
convey, lease or dispose of the properties in the Philippines.
That inasmuch as C.N. Hodges was and is engaged in the buy
and sell of real and personal properties, even before the death
of Linnie Jane Hodges, a motion to authorize said C.N. Hodges
was filed in Court, to allow him to continue in the business of
buy and sell, which motion was favorably granted by the
Honorable Court.
3. That since the death of Linnie Jane Hodges, Mr. C.N.
Hodges had been buying and selling real and personal
properties, in accordance with the wishes of the late Linnie
Jane Hodges.
4. That the Register of Deeds for Iloilo, had required of late
the herein Executor to have all the sales, leases, conveyances or
mortgages made by him, approved by the Hon. Court.
5. That it is respectfully requested, all the sales, conveyances
leases and mortgages executed by the Executor, be approved
by the Hon. Court. and subsequent sales conveyances, leases
and mortgages in compliances with the wishes of the late
Linnie Jane Hodges, and within the scope of the terms of the
last will and testament, also be approved;
6. That the Executor is under obligation to submit his yearly
accounts, and the properties conveyed can also be accounted
for, especially the amounts received.
WHEREFORE, it is most respectfully prayed that, all the sales,
conveyances, leases, and mortgages executed by the Executor,
be approved by the Hon. Court, and also the subsequent sales,
conveyances, leases, and mortgages in consonance with the
wishes of the deceased contained in her last will and
testament, be with authorization and approval of the Hon.
Court.
City of Iloilo, December 11, 1967.
(Annex "G", Petition.)
which again was promptly granted by the respondent court on December 14,
1957 as follows:
O R D E R
As prayed for by Attorney Gellada, counsel for the Executor for
the reasons stated in his motion dated December 11, 1957,
which the Court considers well taken all the sales,
conveyances, leases and mortgages of all properties left by the
deceased Linnie Jane Hodges executed by the Executor Charles
N. Hodges are hereby APPROVED. The said Executor is further
authorized to execute subsequent sales, conveyances, leases
and mortgages of the properties left by the said deceased
Linnie Jane Hodges in consonance with the wishes conveyed in
the last will and testament of the latter.
So ordered.
Iloilo City. December 14, 1957.
(Annex "H", Petition.)
On April 14, 1959, in submitting his first statement of account as Executor for
approval, Hodges alleged:
Pursuant to the provisions of the Rules of Court, herein
executor of the deceased, renders the following account of his
administration covering the period from January 1, 1958 to
December 31, 1958, which account may be found in detail in
the individual income tax return filed for the estate of deceased
Linnie Jane Hodges, to wit:
That a certified public accountant has examined the statement
of net worth of the estate of Linnie Jane Hodges, the assets and
liabilities, as well as the income and expenses, copy of which is
hereto attached and made integral part of this statement of
account as Annex "A".
IN VIEW OF THE FOREGOING, it is most respectfully prayed
that, the statement of net worth of the estate of Linnie Jane
Hodges, the assets and liabilities, income and expenses as
shown in the individual income tax return for the estate of the
deceased and marked as Annex "A", be approved by the
Honorable Court, as substantial compliance with the
requirements of the Rules of Court.
That no person interested in the Philippines of the time and
place of examining the herein accounts be given notice, as
herein executor is the only devisee or legatee of the deceased,
in accordance with the last will and testament already
probated by the Honorable court.
City of Iloilo April 14, 1959.
(Annex "I", Petition.)
The respondent court approved this statement of account on April 21, 1959 in
its order worded thus:
Upon petition of Atty. Gellada, in representation of the
Executor, the statement of net worth of the estate of Linnie
Jane Hodges, assets and liabilities, income and expenses as
shown in the individual income tax return for the estate of the
deceased and marked as Annex "A" is approved.
SO ORDERED.
City of Iloilo April 21, 1959.
(Annex "J", Petition.)
His accounts for the periods January 1, 1959 to December 31, 1959 and January
1, 1960 to December 31, 1960 were submitted likewise accompanied by
allegations identical mutatis mutandis to those of April 14, 1959, quoted above;
and the respective orders approving the same, dated July 30, 1960 and May 2,
1961, were substantially identical to the above-quoted order of April 21, 1959.
In connection with the statements of account just mentioned, the following
assertions related thereto made by respondent-appellee Magno in her brief do
not appear from all indications discernible in the record to be disputable:
Under date of April 14, 1959, C.N. Hodges filed his first
"Account by the Executor" of the estate of Linnie Jane Hodges.
In the "Statement of Networth of Mr. C.N. Hodges and the
Estate of Linnie Jane Hodges" as of December 31, 1958
annexed thereto, C.N. Hodges reported that the combined
conjugal estate earned a net income of P328,402.62, divided
evenly between him and the estate of Linnie Jane Hodges.
Pursuant to this, he filed an "individual income tax return" for
calendar year 1958 on the estate of Linnie Jane Hodges
reporting, under oath, the said estate as having earned income
of P164,201.31, exactly one-half of the net income of his
combined personal assets and that of the estate of Linnie Jane
Hodges. (p. 91, Appellee's Brief.)
xxx xxx xxx
Under date of July 21, 1960, C.N. Hodges filed his second
"Annual Statement of Account by the Executor" of the estate of
Linnie Jane Hodges. In the "Statement of Networth of Mr. C.N.
Hodges and the Estate of Linnie Jane Hodges" as of December
31, 1959 annexed thereto, C.N. Hodges reported that the
combined conjugal estate earned a net income of P270,623.32,
divided evenly between him and the estate of Linnie Jane
Hodges. Pursuant to this, he filed an "individual income tax
return" for calendar year 1959 on the estate of Linnie Jane
Hodges reporting, under oath, the said estate as having earned
income of P135,311.66, exactly one-half of the net income of
his combined personal assets and that of the estate of Linnie
Jane Hodges. (pp. 91-92. Appellee's Brief.)
xxx xxx xxx
Under date of April 20, 1961, C.N. Hodges filed his third
"Annual Statement of Account by the Executor for the Year
1960" of the estate of Linnie Jane Hodges. In the "Statement of
Net Worth of Mr. C.N. Hodges and the Estate of Linnie Jane
Hodges" as of December 31, 1960 annexed thereto, C.N.
Hodges reported that the combined conjugal estate earned a
net income of P314,857.94, divided evenly between him and
the estate of Linnie Jane Hodges. Pursuant to this, he filed an
"individual income tax return" for calendar year 1960 on the
estate of Linnie Jane Hodges reporting, under oath, the said
estate as having earned income of P157,428.97, exactly one-
half of the net income of his combined personal assets and that
of the estate of Linnie Jane Hodges. (Pp. 92-93, Appellee's
Brief.)
Likewise the following:
In the petition for probate that he (Hodges) filed, he listed the
seven brothers and sisters of Linnie Jane as her "heirs" (see p.
2, Green ROA). The order of the court admitting the will to
probate unfortunately omitted one of the heirs, Roy Higdon
(see p. 14, Green ROA). Immediately, C.N. Hodges filed a
verified motion to have Roy Higdon's name included as an heir,
stating that he wanted to straighten the records "in order the
heirs of deceased Roy Higdon may not think or believe they
were omitted, and that they were really and are interested in
the estate of deceased Linnie Jane Hodges. .
As an executor, he was bound to file tax returns for the estate
he was administering under American law. He did file such as
estate tax return on August 8, 1958. In Schedule "M" of such
return, he answered "Yes" to the question as to whether he was
contemplating "renouncing the will". On the question as to
what property interests passed to him as the surviving spouse,
he answered:
"None, except for purposes of administering
the Estate, paying debts, taxes and other legal
charges. It is the intention of the surviving
husband of deceased to distribute the
remaining property and interests of the
deceased in their Community estate to the
devisees and legatees named in the will when
the debts, liabilities, taxes and expenses of
administration are finally determined and
paid."
Again, on August 9, 1962, barely four months before his death,
he executed an "affidavit" wherein he ratified and confirmed all
that he stated in Schedule "M" of his estate tax returns as to his
having renounced what was given him by his wife's will.
1

As appointed executor, C.N. Hodges filed an "Inventory" dated
May 12, 1958. He listed all the assets of his conjugal
partnership with Linnie Jane Hodges on a separate balance
sheet and then stated expressly that her estate which has come
into his possession as executor was "one-half of all the items"
listed in said balance sheet. (Pp. 89-90, Appellee's Brief.)
Parenthetically, it may be stated, at this juncture, that We are taking pains to
quote wholly or at least, extensively from some of the pleadings and orders
whenever We feel that it is necessary to do so for a more comprehensive and
clearer view of the important and decisive issues raised by the parties and a
more accurate appraisal of their respective positions in regard thereto.
The records of these cases do not show that anything else was done in the
above-mentioned Special Proceedings No. 1307 until December 26, 1962, when
on account of the death of Hodges the day before, the same lawyer, Atty. Leon P.
Gellada, who had been previously acting as counsel for Hodges in his capacity as
Executor of his wife's estate, and as such had filed the aforequoted motions and
manifestations, filed the following:
URGENT EX-PARTE MOTION FOR THE APPOINTMENT OF A
SPECIAL ADMINISTRATRIX
COMES the undersigned attorney for the Executor in the
above-entitled proceedings, to the Honorable Court, most
respectfully states:
1. That in accordance with the Last Will and Testament of
Linnie Jane Hodges (deceased), her husband, Charles Newton
Hodges was to act as Executor, and in fact, in an order issued
by this Hon. Court dated June 28, 1957, the said Charles
Newton Hodges was appointed Executor and had performed
the duties as such.
2. That last December 22, 1962, the said Charles Newton
Hodges was stricken ill, and brought to the Iloilo Mission
Hospital for treatment, but unfortunately, he died on December
25, 1962, as shown by a copy of the death certificate hereto
attached and marked as Annex "A".
3. That in accordance with the provisions of the last will and
testament of Linnie Jane Hodges, whatever real and personal
properties that may remain at the death of her husband
Charles Newton Hodges, the said properties shall be equally
divided among their heirs. That there are real and personal
properties left by Charles Newton Hodges, which need to be
administered and taken care of.
4. That the estate of deceased Linnie Jane Hodges, as well as
that of Charles Newton Hodges, have not as yet been
determined or ascertained, and there is necessity for the
appointment of a general administrator to liquidate and
distribute the residue of the estate to the heirs and legatees of
both spouses. That in accordance with the provisions of
Section 2 of Rule 75 of the Rules of Court, the conjugal
partnership of Linnie Jane Hodges and Charles Newton Hodges
shall be liquidated in the testate proceedings of the wife.
5. That the undersigned counsel, has perfect personal
knowledge of the existence of the last will and testament of
Charles Newton Hodges, with similar provisions as that
contained in the last will and testament of Linnie Jane Hodges.
However, said last will and testament of Charles Newton
Hodges is kept inside the vault or iron safe in his office, and
will be presented in due time before this honorable Court.
6. That in the meantime, it is imperative and indispensable
that, an Administratrix be appointed for the estate of Linnie
Jane Hodges and a Special Administratrix for the estate of
Charles Newton Hodges, to perform the duties required by law,
to administer, collect, and take charge of the goods, chattels,
rights, credits, and estate of both spouses, Charles Newton
Hodges and Linnie Jane Hodges, as provided for in Section 1
and 2, Rule 81 of the Rules of Court.
7. That there is delay in granting letters testamentary or of
administration, because the last will and testament of
deceased, Charles Newton Hodges, is still kept in his safe or
vault, and in the meantime, unless an administratrix (and,) at
the same time, a Special Administratrix is appointed, the estate
of both spouses are in danger of being lost, damaged or go to
waste.
8. That the most trusted employee of both spouses Linnie Jane
Hodges and C.N. Hodges, who had been employed for around
thirty (30) years, in the person of Miss Avelina Magno, (should)
be appointed Administratrix of the estate of Linnie Jane
Hodges and at the same time Special Administratrix of the
estate of Charles Newton Hodges. That the said Miss Avelina
Magno is of legal age, a resident of the Philippines, the most fit,
competent, trustworthy and well-qualified person to serve the
duties of Administratrix and Special Administratrix and is
willing to act as such.
9. That Miss Avelina Magno is also willing to file bond in such
sum which the Hon. Court believes reasonable.
WHEREFORE, in view of all the foregoing, it is most
respectfully prayed that, Miss AVELINA A. MAGNO be
immediately appointed Administratrix of the estate of Linnie
Jane Hodges and as Special Administratrix of the estate of
Charles Newton Hodges, with powers and duties provided for
by law. That the Honorable Court fix the reasonable bond of
P1,000.00 to be filed by Avelina A. Magno.
(Annex "O", Petition.)
which respondent court readily acted on in its order of even date thus: .
For the reasons alleged in the Urgent Ex-parte Motion filed by
counsel for the Executor dated December 25, 1962, which the
Court finds meritorious, Miss AVELINA A. MAGNO, is hereby
appointed Administratrix of the estate of Linnie Jane Hodges
and as Special Administratrix of the estate of Charles Newton
Hodges, in the latter case, because the last will of said Charles
Newton Hodges is still kept in his vault or iron safe and that the
real and personal properties of both spouses may be lost,
damaged or go to waste, unless a Special Administratrix is
appointed.
Miss Avelina A. Magno is required to file bond in the sum of
FIVE THOUSAND PESOS (P5,000.00), and after having done so,
let letters of Administration be issued to her." (Annex "P",
Petition.)
On December 29, 1962, however, upon urgent ex-parte petition
of respondent Magno herself, thru Atty. Gellada, Harold, R.
Davies, "a representative of the heirs of deceased Charles
Newton Hodges (who had) arrived from the United States of
America to help in the administration of the estate of said
deceased" was appointed as Co-Special Administrator of the
estate of Hodges, (pp. 29-33, Yellow - Record on Appeal) only
to be replaced as such co-special administrator on January 22,
1963 by Joe Hodges, who, according to the motion of the same
attorney, is "the nephew of the deceased (who had) arrived
from the United States with instructions from the other heirs of
the deceased to administer the properties or estate of Charles
Newton Hodges in the Philippines, (Pp. 47-50, id.)
Meanwhile, under date of January 9, 1963, the same Atty. Gellada filed in Special
Proceedings 1672 a petition for the probate of the will of Hodges,
2
with a
prayer for the issuance of letters of administration to the same Joe Hodges,
albeit the motion was followed on February 22, 1963 by a separate one asking
that Atty. Fernando Mirasol be appointed as his co-administrator. On the same
date this latter motion was filed, the court issued the corresponding order of
probate and letters of administration to Joe Hodges and Atty. Mirasol, as prayed
for.
At this juncture, again, it may also be explained that just as, in her will, Mrs.
Hodges bequeathed her whole estate to her husband "to have and to hold unto
him, my said husband, during his natural lifetime", she, at the same time or in
like manner, provided that "at the death of my said husband I give devise and
bequeath all of the rest, residue and remainder of my estate, both real and
personal, wherever situated or located, to be equally divided among my
brothers and sisters, share and share alike ". Accordingly, it became
incumbent upon Hodges, as executor of his wife's will, to duly liquidate the
conjugal partnership, half of which constituted her estate, in order that upon the
eventuality of his death, "the rest, residue and remainder" thereof could be
determined and correspondingly distributed or divided among her brothers and
sisters. And it was precisely because no such liquidation was done, furthermore,
there is the issue of whether the distribution of her estate should be governed
by the laws of the Philippines or those of Texas, of which State she was a
national, and, what is more, as already stated, Hodges made official and sworn
statements or manifestations indicating that as far as he was concerned no
"property interests passed to him as surviving spouse "except for purposes
of administering the estate, paying debts, taxes and other legal charges" and it
was the intention of the surviving husband of the deceased to distribute the
remaining property and interests of the deceased in their Community Estate to
the devisees and legatees named in the will when the debts, liabilities, taxes and
expenses of administration are finally determined and paid", that the incidents
and controversies now before Us for resolution arose. As may be observed, the
situation that ensued upon the death of Hodges became rather unusual and so,
quite understandably, the lower court's actuations presently under review are
apparently wanting in consistency and seemingly lack proper orientation.
Thus, We cannot discern clearly from the record before Us the precise
perspective from which the trial court proceeded in issuing its questioned
orders. And, regretably, none of the lengthy briefs submitted by the parties is of
valuable assistance in clearing up the matter.
To begin with, We gather from the two records on appeal filed by petitioner, as
appellant in the appealed cases, one with green cover and the other with a
yellow cover, that at the outset, a sort of modus operandi had been agreed upon
by the parties under which the respective administrators of the two estates
were supposed to act conjointly, but since no copy of the said agreement can be
found in the record before Us, We have no way of knowing when exactly such
agreement was entered into and under what specific terms. And while reference
is made to said modus operandi in the order of September 11, 1964, on pages
205-206 of the Green Record on Appeal, reading thus:
The present incident is to hear the side of administratrix, Miss
Avelina A. Magno, in answer to the charges contained in the
motion filed by Atty. Cesar Tirol on September 3, 1964. In
answer to the said charges, Miss Avelina A. Magno, through her
counsel, Atty. Rizal Quimpo, filed a written manifestation.
After reading the manifestation here of Atty. Quimpo, for and
in behalf of the administratrix, Miss Avelina A. Magno, the
Court finds that everything that happened before September 3,
1964, which was resolved on September 8, 1964, to the
satisfaction of parties, was simply due to a misunderstanding
between the representative of the Philippine Commercial and
Industrial Bank and Miss Magno and in order to restore the
harmonious relations between the parties, the Court ordered
the parties to remain in status quo as to their modus operandi
before September 1, 1964, until after the Court can have a
meeting with all the parties and their counsels on October 3, as
formerly agreed upon between counsels, Attys. Ozaeta, Gibbs
and Ozaeta, Attys. Tirol and Tirol and Atty. Rizal Quimpo.
In the meantime, the prayers of Atty. Quimpo as stated in his
manifestation shall not be resolved by this Court until October
3, 1964.
SO ORDERED.
there is nothing in the record indicating whatever happened to it afterwards,
except that again, reference thereto was made in the appealed order of October
27, 1965, on pages 292-295 of the Green Record on Appeal, as follows:
On record is an urgent motion to allow PCIB to open all doors
and locks in the Hodges Office at 206-208 Guanco Street, Iloilo
City, to take immediate and exclusive possession thereof and to
place its own locks and keys for security purposes of the PCIB
dated October 27, 1965 thru Atty. Cesar Tirol. It is alleged in
said urgent motion that Administratrix Magno of the testate
estate of Linnie Jane Hodges refused to open the Hodges Office
at 206-208 Guanco Street, Iloilo City where PCIB holds office
and therefore PCIB is suffering great moral damage and
prejudice as a result of said act. It is prayed that an order be
issued authorizing it (PCIB) to open all doors and locks in the
said office, to take immediate and exclusive possession thereof
and place thereon its own locks and keys for security purposes;
instructing the clerk of court or any available deputy to witness
and supervise the opening of all doors and locks and taking
possession of the PCIB.
A written opposition has been filed by Administratrix Magno of
even date (Oct. 27) thru counsel Rizal Quimpo stating therein
that she was compelled to close the office for the reason that
the PCIB failed to comply with the order of this Court signed by
Judge Anacleto I. Bellosillo dated September 11, 1964 to the
effect that both estates should remain in status quo to their
modus operandi as of September 1, 1964.
To arrive at a happy solution of the dispute and in order not to
interrupt the operation of the office of both estates, the Court
aside from the reasons stated in the urgent motion and
opposition heard the verbal arguments of Atty. Cesar Tirol for
the PCIB and Atty. Rizal Quimpo for Administratix Magno.
After due consideration, the Court hereby orders Magno to
open all doors and locks in the Hodges Office at 206-208
Guanco Street, Iloilo City in the presence of the PCIB or its duly
authorized representative and deputy clerk of court Albis of
this branch not later than 7:30 tomorrow morning October 28,
1965 in order that the office of said estates could operate for
business.
Pursuant to the order of this Court thru Judge Bellosillo dated
September 11, 1964, it is hereby ordered:
(a) That all cash collections should be deposited in the joint
account of the estates of Linnie Jane Hodges and estates of C.N.
Hodges;
(b) That whatever cash collections that had been deposited in
the account of either of the estates should be withdrawn and
since then deposited in the joint account of the estate of Linnie
Jane Hodges and the estate of C.N. Hodges;
(c) That the PCIB should countersign the check in the amount
of P250 in favor of Administratrix Avelina A. Magno as her
compensation as administratrix of the Linnie Jane Hodges
estate chargeable to the testate estate of Linnie Jane Hodges
only;
(d) That Administratrix Magno is hereby directed to allow the
PCIB to inspect whatever records, documents and papers she
may have in her possession in the same manner that
Administrator PCIB is also directed to allow Administratrix
Magno to inspect whatever records, documents and papers it
may have in its possession;
(e) That the accountant of the estate of Linnie Jane Hodges
shall have access to all records of the transactions of both
estates for the protection of the estate of Linnie Jane Hodges;
and in like manner the accountant or any authorized
representative of the estate of C.N. Hodges shall have access to
the records of transactions of the Linnie Jane Hodges estate for
the protection of the estate of C.N. Hodges.
Once the estates' office shall have been opened by
Administratrix Magno in the presence of the PCIB or its duly
authorized representative and deputy clerk Albis or his duly
authorized representative, both estates or any of the estates
should not close it without previous consent and authority
from this court.
SO ORDERED.
As may be noted, in this order, the respondent court required that all collections
from the properties in the name of Hodges should be deposited in a joint
account of the two estates, which indicates that seemingly the so-called modus
operandi was no longer operative, but again there is nothing to show when this
situation started.
Likewise, in paragraph 3 of the petitioner's motion of September 14, 1964, on
pages 188-201 of the Green Record on Appeal, (also found on pp. 83-91 of the
Yellow Record on Appeal) it is alleged that:
3. On January 24, 1964 virtually all of the heirs of C.N. Hodges,
Joe Hodges and Fernando P. Mirasol acting as the two co-
administrators of the estate of C.N. Hodges, Avelina A. Magno
acting as the administratrix of the estate of Linnie Jane Hodges
and Messrs. William Brown and Ardell Young acting for all of
the Higdon family who claim to be the sole beneficiaries of the
estate of Linnie Jane Hodges and various legal counsel
representing the aforementioned parties entered into an
amicable agreement, which was approved by this Honorable
Court, wherein the parties thereto agreed that certain sums of
money were to be paid in settlement of different claims against
the two estates and that the assets (to the extent they existed)
of both estates would be administered jointly by the PCIB as
administrator of the estate of C.N. Hodges and Avelina A.
Magno as administratrix of the estate of Linnie Jane Hodges,
subject, however, to the aforesaid October 5, 1963 Motion,
namely, the PCIB's claim to exclusive possession and
ownership of one hundred percent (100%) (or, in the
alternative, seventy-five percent (75%) of all assets owned by
C.N. Hodges or Linnie Jane Hodges situated in the Philippines.
On February 1, 1964 (pp. 934-935, CFI Rec., S.P. No. 1672) this
Honorable Court amended its order of January 24, 1964 but in
no way changed its recognition of the afore-described basic
demand by the PCIB as administrator of the estate of C.N.
Hodges to one hundred percent (100%) of the assets claimed
by both estates.
but no copy of the mentioned agreement of joint administration of the two
estates exists in the record, and so, We are not informed as to what exactly are
the terms of the same which could be relevant in the resolution of the issues
herein.
On the other hand, the appealed order of November 3, 1965, on pages 313-320
of the Green Record on Appeal, authorized payment by respondent Magno of,
inter alia, her own fees as administratrix, the attorney's fees of her lawyers, etc.,
as follows:
Administratrix Magno thru Attys. Raul S. Manglapus and Rizal.
R. Quimpo filed a Manifestation and Urgent Motion dated June
10, 1964 asking for the approval of the Agreement dated June
6, 1964 which Agreement is for the purpose of retaining their
services to protect and defend the interest of the said
Administratrix in these proceedings and the same has been
signed by and bears the express conformity of the attorney-in-
fact of the late Linnie Jane Hodges, Mr. James L. Sullivan. It is
further prayed that the Administratrix of the Testate Estate of
Linnie Jane Hodges be directed to pay the retailers fee of said
lawyers, said fees made chargeable as expenses for the
administration of the estate of Linnie Jane Hodges (pp. 1641-
1642, Vol. V, Sp. 1307).
An opposition has been filed by the Administrator PCIB thru
Atty. Herminio Ozaeta dated July 11, 1964, on the ground that
payment of the retainers fee of Attys. Manglapus and Quimpo
as prayed for in said Manifestation and Urgent Motion is
prejudicial to the 100% claim of the estate of C. N. Hodges;
employment of Attys. Manglapus and Quimpo is premature
and/or unnecessary; Attys. Quimpo and Manglapus are
representing conflicting interests and the estate of Linnie Jane
Hodges should be closed and terminated (pp. 1679-1684, Vol,
V, Sp. 1307).
Atty. Leon P. Gellada filed a memorandum dated July 28, 1964
asking that the Manifestation and Urgent Motion filed by Attys.
Manglapus and Quimpo be denied because no evidence has
been presented in support thereof. Atty. Manglapus filed a
reply to the opposition of counsel for the Administrator of the
C. N. Hodges estate wherein it is claimed that expenses of
administration include reasonable counsel or attorney's fees
for services to the executor or administrator. As a matter of
fact the fee agreement dated February 27, 1964 between the
PCIB and the law firm of Ozaeta, Gibbs & Ozaeta as its counsel
(Pp. 1280-1284, Vol. V, Sp. 1307) which stipulates the fees for
said law firm has been approved by the Court in its order dated
March 31, 1964. If payment of the fees of the lawyers for the
administratrix of the estate of Linnie Jane Hodges will cause
prejudice to the estate of C. N. Hodges, in like manner the very
agreement which provides for the payment of attorney's fees
to the counsel for the PCIB will also be prejudicial to the estate
of Linnie Jane Hodges (pp. 1801-1814, Vol. V, Sp. 1307).
Atty. Herminio Ozaeta filed a rejoinder dated August 10, 1964
to the reply to the opposition to the Manifestation and Urgent
Motion alleging principally that the estates of Linnie Jane
Hodges and C. N. Hodges are not similarly situated for the
reason that C. N. Hodges is an heir of Linnie Jane Hodges
whereas the latter is not an heir of the former for the reason
that Linnie Jane Hodges predeceased C. N. Hodges (pp. 1839-
1848, Vol. V, Sp. 1307); that Attys. Manglapus and Quimpo
formally entered their appearance in behalf of Administratrix
of the estate of Linnie Jane Hodges on June 10, 1964 (pp. 1639-
1640, Vol. V, Sp. 1307).
Atty. Manglapus filed a manifestation dated December 18,
1964 stating therein that Judge Bellosillo issued an order
requiring the parties to submit memorandum in support of
their respective contentions. It is prayed in this manifestation
that the Manifestation and Urgent Motion dated June 10, 1964
be resolved (pp. 6435-6439, Vol. VII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed a counter-
manifestation dated January 5, 1965 asking that after the
consideration by the court of all allegations and arguments and
pleadings of the PCIB in connection therewith (1) said
manifestation and urgent motion of Attys. Manglapus and
Quimpo be denied (pp. 6442-6453, Vol. VII, Sp. 1307). Judge
Querubin issued an order dated January 4, 1965 approving the
motion dated June 10, 1964 of the attorneys for the
administratrix of the estate of Linnie Jane Hodges and
agreement annexed to said motion. The said order further
states: "The Administratrix of the estate of Linnie Jane Hodges
is authorized to issue or sign whatever check or checks may be
necessary for the above purpose and the administrator of the
estate of C. N. Hodges is ordered to countersign the same. (pp.
6518-6523, Vol VII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed a manifestation and
motion dated January 13, 1965 asking that the order of January
4, 1965 which was issued by Judge Querubin be declared null
and void and to enjoin the clerk of court and the administratrix
and administrator in these special proceedings from all
proceedings and action to enforce or comply with the
provision of the aforesaid order of January 4, 1965. In support
of said manifestation and motion it is alleged that the order of
January 4, 1965 is null and void because the said order was
never delivered to the deputy clerk Albis of Branch V (the sala
of Judge Querubin) and the alleged order was found in the
drawer of the late Judge Querubin in his office when said
drawer was opened on January 13, 1965 after the death of
Judge Querubin by Perfecto Querubin, Jr., the son of the judge
and in the presence of Executive Judge Rovira and deputy clerk
Albis (Sec. 1, Rule 36, New Civil Code) (Pp. 6600-6606, Vol.
VIII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed a motion for
reconsideration dated February 23, 1965 asking that the order
dated January 4, 1964 be reversed on the ground that:
1. Attorneys retained must render services to the estate not to
the personal heir;
2. If services are rendered to both, fees should be pro-rated
between them;
3. Attorneys retained should not represent conflicting
interests; to the prejudice of the other heirs not represented by
said attorneys;
4. Fees must be commensurate to the actual services rendered
to the estate;
5. There must be assets in the estate to pay for said fees (Pp.
6625-6636, Vol. VIII, Sp. 1307).
Atty. Quimpo for Administratrix Magno of the estate of Linnie
Jane Hodges filed a motion to submit dated July 15, 1965
asking that the manifestation and urgent motion dated June 10,
1964 filed by Attys. Manglapus and Quimpo and other
incidents directly appertaining thereto be considered
submitted for consideration and approval (pp. 6759-6765, Vol.
VIII, Sp. 1307).
Considering the arguments and reasons in support to the
pleadings of both the Administratrix and the PCIB, and of Atty.
Gellada, hereinbefore mentioned, the Court believes that the
order of January 4, 1965 is null and void for the reason that the
said order has not been filed with deputy clerk Albis of this
court (Branch V) during the lifetime of Judge Querubin who
signed the said order. However, the said manifestation and
urgent motion dated June 10, 1964 is being treated and
considered in this instant order. It is worthy to note that in the
motion dated January 24, 1964 (Pp. 1149- 1163, Vol. V, Sp.
1307) which has been filed by Atty. Gellada and his associates
and Atty. Gibbs and other lawyers in addition to the stipulated
fees for actual services rendered. However, the fee agreement
dated February 27, 1964, between the Administrator of the
estate of C. N. Hodges and Atty. Gibbs which provides for
retainer fee of P4,000 monthly in addition to specific fees for
actual appearances, reimbursement for expenditures and
contingent fees has also been approved by the Court and said
lawyers have already been paid. (pp. 1273-1279, Vol. V, Sp.
Proc. 1307 pp. 1372-1373, Vol. V, Sp. Proc. 1307).
WHEREFORE, the order dated January 4, 1965 is hereby
declared null and void.
The manifestation and motion dated June 10, 1964 which was
filed by the attorneys for the administratrix of the testate
estate of Linnie Jane Hodges is granted and the agreement
annexed thereto is hereby approved.
The administratrix of the estate of Linnie Jane Hodges is
hereby directed to be needed to implement the approval of the
agreement annexed to the motion and the administrator of the
estate of C. N. Hodges is directed to countersign the said check
or checks as the case may be.
SO ORDERED.
thereby implying somehow that the court assumed the existence of
independent but simultaneous administrations.
Be that as it may, again, it appears that on August 6, 1965, the court, acting on a
motion of petitioner for the approval of deeds of sale executed by it as
administrator of the estate of Hodges, issued the following order, also on appeal
herein:
Acting upon the motion for approval of deeds of sale for
registered land of the PCIB, Administrator of the Testate Estate
of C. N. Hodges in Sp. Proc. 1672 (Vol. VII, pp. 2244-2245),
dated July 16, 1965, filed by Atty. Cesar T. Tirol in
representation of the law firms of Ozaeta, Gibbs and Ozaeta
and Tirol and Tirol and the opposition thereto of Atty. Rizal R.
Quimpo (Vol. VIII, pp. 6811-6813) dated July 22, 1965 and
considering the allegations and reasons therein stated, the
court believes that the deeds of sale should be signed jointly by
the PCIB, Administrator of the Testate Estate of C. N. Hodges
and Avelina A. Magno, Administratrix of the Testate Estate of
Linnie Jane Hodges and to this effect the PCIB should take the
necessary steps so that Administratrix Avelina A. Magno could
sign the deeds of sale.
SO ORDERED. (p. 248, Green Record on Appeal.)
Notably this order required that even the deeds executed by petitioner, as
administrator of the Estate of Hodges, involving properties registered in his
name, should be co-signed by respondent Magno.
3
And this was not an isolated
instance.
In her brief as appellee, respondent Magno states:
After the lower court had authorized appellee Avelina A.
Magno to execute final deeds of sale pursuant to contracts to
sell executed by C. N. Hodges on February 20, 1963 (pp. 45-46,
Green ROA), motions for the approval of final deeds of sale
(signed by appellee Avelina A. Magno and the administrator of
the estate of C. N. Hodges, first Joe Hodges, then Atty. Fernando
Mirasol and later the appellant) were approved by the lower
court upon petition of appellee Magno's counsel, Atty. Leon P.
Gellada, on the basis of section 8 of Rule 89 of the Revised
Rules of Court. Subsequently, the appellant, after it had taken
over the bulk of the assets of the two estates, started
presenting these motions itself. The first such attempt was a
"Motion for Approval of Deeds of Sale for Registered Land and
Cancellations of Mortgages" dated July 21, 1964 filed by Atty.
Cesar T. Tirol, counsel for the appellant, thereto annexing two
(2) final deeds of sale and two (2) cancellations of mortgages
signed by appellee Avelina A. Magno and D. R. Paulino,
Assistant Vice-President and Manager of the appellant (CFI
Record, Sp. Proc. No. 1307, Vol. V, pp. 1694-1701). This motion
was approved by the lower court on July 27, 1964. It was
followed by another motion dated August 4, 1964 for the
approval of one final deed of sale again signed by appellee
Avelina A. Magno and D. R. Paulino (CFI Record, Sp. Proc. No.
1307. Vol. V, pp. 1825-1828), which was again approved by the
lower court on August 7, 1964. The gates having been opened,
a flood ensued: the appellant subsequently filed similar
motions for the approval of a multitude of deeds of sales and
cancellations of mortgages signed by both the appellee Avelina
A. Magno and the appellant.
A random check of the records of Special Proceeding No. 1307
alone will show Atty. Cesar T. Tirol as having presented for
court approval deeds of sale of real properties signed by both
appellee Avelina A. Magno and D. R. Paulino in the following
numbers: (a) motion dated September 21, 1964 6 deeds of
sale; (b) motion dated November 4, 1964 1 deed of sale; (c)
motion dated December 1, 1964 4 deeds of sale; (d) motion
dated February 3, 1965 8 deeds of sale; (f) motion dated
May 7, 1965 9 deeds of sale. In view of the very extensive
landholdings of the Hodges spouses and the many motions
filed concerning deeds of sale of real properties executed by C.
N. Hodges the lower court has had to constitute special
separate expedientes in Special Proceedings Nos. 1307 and
1672 to include mere motions for the approval of deeds of sale
of the conjugal properties of the Hodges spouses.
As an example, from among the very many, under date of
February 3, 1965, Atty. Cesar T. Tirol, as counsel for the
appellant, filed "Motion for Approval of Deeds of Sale for
Registered Land and Cancellations of Mortgages" (CFI Record,
Sp. Proc. No. 1307, Vol. VIII, pp. 6570-6596) the allegations of
which read:
"1. In his lifetime, the late C. N. Hodges executed "Contracts to
Sell" real property, and the prospective buyers under said
contracts have already paid the price and complied with the
terms and conditions thereof;
"2. In the course of administration of both estates, mortgage
debtors have already paid their debts secured by chattel
mortgages in favor of the late C. N. Hodges, and are now
entitled to release therefrom;
"3. There are attached hereto documents executed jointly by
the Administratrix in Sp. Proc. No. 1307 and the Administrator
in Sp. Proc. No. 1672, consisting of deeds of sale in favor
Fernando Cano, Bacolod City, Occ. Negros
Fe Magbanua, Iloilo City
Policarpio M. Pareno, La Paz, Iloilo City
Rosario T. Libre, Jaro, Iloilo City
Federico B. Torres, Iloilo City
Reynaldo T. Lataquin, La Paz, Iloilo City
Anatolio T. Viray, Iloilo City
Benjamin Rolando, Jaro, Iloilo City
and cancellations of mortgages in favor of
Pablo Manzano, Oton, Iloilo
Ricardo M. Diana, Dao, San Jose, Antique
Simplicio Tingson, Iloilo City
Amado Magbanua, Pototan, Iloilo
Roselia M. Baes, Bolo, Roxas City
William Bayani, Rizal Estanzuela, Iloilo City
Elpidio Villarete, Molo, Iloilo City
Norma T. Ruiz, Jaro, Iloilo City
"4. That the approval of the aforesaid
documents will not reduce the assets of the
estates so as to prevent any creditor from
receiving his full debt or diminish his
dividend."
And the prayer of this motion is indeed very revealing:
"WHEREFORE, it is respectfully prayed that, under Rule 89,
Section 8 of the Rules of Court, this honorable court approve
the aforesaid deeds of sale and cancellations of mortgages."
(Pp. 113-117, Appellee's Brief.)
None of these assertions is denied in Petitioner's reply brief.
Further indicating lack of concrete perspective or orientation on the part of the
respondent court and its hesitancy to clear up matters promptly, in its other
appealed order of November 23, 1965, on pages 334-335 of the Green Record
on Appeal, said respondent court allowed the movant Ricardo Salas, President
of appellee Western Institute of Technology (successor of Panay Educational
Institutions, Inc.), one of the parties with whom Hodges had contracts that are
in question in the appeals herein, to pay petitioner, as Administrator of the
estate of Hodges and/or respondent Magno, as Administrator of the estate of
Mrs. Hodges, thus:
Considering that in both cases there is as yet no judicial
declaration of heirs nor distribution of properties to
whomsoever are entitled thereto, the Court believes that
payment to both the administrator of the testate estate of C. N.
Hodges and the administratrix of the testate estate of Linnie
Jane Hodges or to either one of the two estates is proper and
legal.
WHEREFORE, movant Ricardo T. Salas can pay to both estates
or either of them.
SO ORDERED.
(Pp. 334-335, Green Record on Appeal.)
On the other hand, as stated earlier, there were instances when respondent
Magno was given authority to act alone. For instance, in the other appealed
order of December 19, 1964, on page 221 of the Green Record on Appeal, the
respondent court approved payments made by her of overtime pay to some
employees of the court who had helped in gathering and preparing copies of
parts of the records in both estates as follows:
Considering that the expenses subject of the motion to approve
payment of overtime pay dated December 10, 1964, are
reasonable and are believed by this Court to be a proper
charge of administration chargeable to the testate estate of the
late Linnie Jane Hodges, the said expenses are hereby
APPROVED and to be charged against the testate estate of the
late Linnie Jane Hodges. The administrator of the testate estate
of the late Charles Newton Hodges is hereby ordered to
countersign the check or checks necessary to pay the said
overtime pay as shown by the bills marked Annex "A", "B" and
"C" of the motion.
SO ORDERED.
(Pp. 221-222, Green Record on Appeal.)
Likewise, the respondent court approved deeds of sale executed by respondent
Magno alone, as Administratrix of the estate of Mrs. Hodges, covering properties
in the name of Hodges, pursuant to "contracts to sell" executed by Hodges,
irrespective of whether they were executed by him before or after the death of
his wife. The orders of this nature which are also on appeal herein are the
following:
1. Order of March 30, 1966, on p. 137 of the Green Record on Appeal, approving
the deed of sale executed by respondent Magno in favor of appellee Lorenzo
Carles on February 24, 1966, pursuant to a "contract to sell" signed by Hodges
on June 17, 1958, after the death of his wife, which contract petitioner claims
was cancelled by it for failure of Carles to pay the installments due on January 7,
1965.
2. Order of April 5, 1966, on pp. 139-140, id., approving the deed of sale
executed by respondent Magno in favor of appellee Salvador Guzman on
February 28, 1966 pursuant to a "contract to sell" signed by Hodges on
September 13, 1960, after the death of his wife, which contract petitioner claims
it cancelled on March 3, 1965 in view of failure of said appellee to pay the
installments on time.
3. Order of April 20, 1966, on pp. 167-168, id., approving the deed of sale
executed by respondent Magno in favor of appellee Purificacion Coronado on
March 28, 1966 pursuant to a "contract to sell" signed by Hodges on August 14,
1961, after the death of his wife.
4. Order of April 20, 1966, on pp. 168-169, id., approving the deed of sale
executed by respondent Magno in favor of appellee Florenia Barrido on March
28, 1966, pursuant to a "contract to sell" signed by Hodges on February 21,
1958, after the death of his wife.
5. Order of June 7, 1966, on pp. 184-185, id., approving the deed of sale executed
by respondent Magno in favor of appellee Belcezar Causing on May 2, 1966,
pursuant to a "contract to sell" signed by Hodges on February 10, 1959, after
the death of his wife.
6. Order of June 21, 1966, on pp. 211-212, id., approving the deed of sale
executed by respondent Magno in favor of appellee Artheo Thomas Jamir on
June 3, 1966, pursuant to a "contract to sell" signed by Hodges on May 26, 1961,
after the death of his wife.
7. Order of June 21, 1966, on pp. 212-213, id., approving the deed of sale
executed by respondent Magno in favor of appellees Graciano Lucero and
Melquiades Batisanan on June 6 and June 3, 1966, respectively, pursuant to
"contracts to sell" signed by Hodges on June 9, 1959 and November 27, 1961,
respectively, after the death of his wife.
8. Order of December 2, 1966, on pp. 303-304, id., approving the deed of sale
executed by respondent Magno in favor of appellees Espiridion Partisala,
Winifredo Espada and Rosario Alingasa on September 6, 1966, August 17, 1966
and August 3, 1966, respectively, pursuant to "contracts to sell" signed by
Hodges on April 20, 1960, April 18, 1960 and August 25, 1958, respectively, that
is, after the death of his wife.
9. Order of April 5, 1966, on pp. 137-138, id., approving the deed of sale
executed by respondent Magno in favor of appellee Alfredo Catedral on March 2,
1966, pursuant to a "contract to sell" signed by Hodges on May 29, 1954, before
the death of his wife, which contract petitioner claims it had cancelled on
February 16, 1966 for failure of appellee Catedral to pay the installments due on
time.
10. Order of April 5, 1966, on pp. 138-139, id., approving the deed of sale
executed by respondent Magno in favor of appellee Jose Pablico on March 7,
1966, pursuant to a "contract to sell" signed by Hodges on March 7, 1950, after
the death of his wife, which contract petitioner claims it had cancelled on June
29, 1960, for failure of appellee Pablico to pay the installments due on time.
11. Order of December 2, 1966, on pp. 303-304, id., insofar as it approved the
deed of sale executed by respondent Magno in favor of appellee Pepito Iyulores
on September 6, 1966, pursuant to a "contract to sell" signed by Hodges on
February 5, 1951, before the death of his wife.
12. Order of January 3, 1967, on pp. 335-336, id., approving three deeds of sale
executed by respondent Magno, one in favor of appellees Santiago Pacaonsis
and two in favor of appellee Adelfa Premaylon on December 5, 1966 and
November 3, 1966, respectively, pursuant to separate "promises to sell" signed
respectively by Hodges on May 26, 1955 and January 30, 1954, before the death
of his wife, and October 31, 1959, after her death.
In like manner, there were also instances when respondent court approved
deeds of sale executed by petitioner alone and without the concurrence of
respondent Magno, and such approvals have not been the subject of any appeal.
No less than petitioner points this out on pages 149-150 of its brief as appellant
thus:
The points of fact and law pertaining to the two abovecited
assignments of error have already been discussed previously.
In the first abovecited error, the order alluded to was general,
and as already explained before, it was, as admitted by the
lower court itself, superseded by the particular orders
approving specific final deeds of sale executed by the appellee,
Avelina A. Magno, which are subject of this appeal, as well as
the particular orders approving specific final deeds of sale
executed by the appellant, Philippine Commercial and
Industrial Bank, which were never appealed by the appellee,
Avelina A. Magno, nor by any party for that matter, and which
are now therefore final.
Now, simultaneously with the foregoing incidents, others of more fundamental
and all embracing significance developed. On October 5, 1963, over the
signature of Atty. Allison J. Gibbs in representation of the law firm of Ozaeta,
Gibbs & Ozaeta, as counsel for the co-administrators Joe Hodges and Fernando
P. Mirasol, the following self-explanatory motion was filed:
URGENT MOTION FOR AN ACCOUNTING AND
DELIVERY TO ADMINISTRATION OF THE
ESTATE OF C. N. HODGES OF ALL OF THE
ASSETS OF THE CONJUGAL PARTNERSHIP OF
THE DECEASED LINNIE JANE HODGES AND C
N. HODGES EXISTING AS OF MAY 23, 1957
PLUS ALL THE RENTS, EMOLUMENTS AND
INCOME THEREFROM.
COMES NOW the co-administrator of the estate of C. N. Hodges,
Joe Hodges, through his undersigned attorneys in the above-
entitled proceedings, and to this Honorable Court respectfully
alleges:
(1) On May 23, 1957 Linnie Jane Hodges died in Iloilo City.
(2) On June 28, 1957 this Honorable Court admitted to probate
the Last Will and Testament of the deceased Linnie Jane
Hodges executed November 22, 1952 and appointed C. N.
Hodges as Executor of the estate of Linnie Jane Hodges (pp. 24-
25, Rec. Sp. Proc. 1307).
(3) On July 1, 1957 this Honorable Court issued Letters
Testamentary to C. N. Hodges in the Estate of Linnie Jane
Hodges (p. 30, Rec. Sp. Proc. 1307).
(4) On December 14, 1957 this Honorable Court, on the basis
of the following allegations in a Motion dated December 11,
1957 filed by Leon P. Gellada as attorney for the executor C. N.
Hodges:
"That herein Executor, (is) not only part
owner of the properties left as conjugal, but
also, the successor to all the properties left by
the deceased Linnie Jane Hodges."
(p. 44, Rec. Sp. Proc. 1307; emphasis
supplied.)
issued the following order:
"As prayed for by Attorney Gellada, counsel
for the Executory, for the reasons stated in his
motion dated December 11, 1957 which the
court considers well taken, all the sales,
conveyances, leases and mortgages of all
properties left by the deceased Linnie Jane
Hodges are hereby APPROVED. The said
executor is further authorized to execute
subsequent sales, conveyances, leases and
mortgages of the properties left by the said
deceased Linnie Jane Hodges in consonance
with the wishes contained in the last will and
testament of the latter."
(p. 46, Rec. Sp. Proc. 1307; emphasis
supplied.)
(5) On April 21, 1959 this Honorable Court approved the
inventory and accounting submitted by C. N. Hodges through
his counsel Leon P. Gellada on April 14, 1959 wherein he
alleged among other things
"That no person interested in the Philippines
of the time and place of examining the herein
account, be given notice, as herein executor is
the only devisee or legatee of the deceased, in
accordance with the last will and testament
already probated by the Honorable Court."
(pp. 77-78, Rec. Sp. Proc. 1307; emphasis
supplied.).
(6) On July 30, 1960 this Honorable Court approved the
"Annual Statement of Account" submitted by C. N. Hodges
through his counsel Leon P. Gellada on July 21, 1960 wherein
he alleged among other things:
"That no person interested in the Philippines
of the time and place of examining the herein
account, be given notice as herein executor is
the only devisee or legatee of the deceased
Linnie Jane Hodges, in accordance with the last
will and testament of the deceased, already
probated by this Honorable Court."
(pp. 81-82. Rec. Sp. Proc. 1307; emphasis
supplied.)
(7) On May 2, 1961 this Honorable court approved the "Annual
Statement of Account By The Executor for the Year 1960"
submitted through Leon P. Gellada on April 20, 1961 wherein
he alleged:
That no person interested in the Philippines
be given notice, of the time and place of
examining the herein account, as herein
Executor is the only devisee or legatee of the
deceased Linnie Jane Hodges, in accordance
with the last will and testament of the
deceased, already probated by this Honorable
Court.
(pp. 90-91. Rec. Sp. Proc. 1307; emphasis
supplied.)
(8) On December 25, 1962, C.N. Hodges died.
(9) On December 25, 1962, on the Urgent Ex-parte Motion of
Leon P. Gellada filed only in Special Proceeding No. 1307, this
Honorable Court appointed Avelina A. Magno
"Administratrix of the estate of Linnie Jane Hodges and as
Special Administratrix of the estate of Charles Newton Hodges,
in the latter case, because the last will of said Charles Newton
Hodges is still kept in his vault or iron safe and that the real
and personal properties of both spouses may be lost, damaged
or go to waste, unless a Special Administratrix is appointed."
(p. 100. Rec. Sp. Proc. 1307)
(10) On December 26, 1962 Letters of Administration were
issued to Avelina Magno pursuant to this Honorable Court's
aforesaid Order of December 25, 1962
"With full authority to take possession of all
the property of said deceased in any province
or provinces in which it may be situated and
to perform all other acts necessary for the
preservation of said property, said
Administratrix and/or Special Administratrix
having filed a bond satisfactory to the Court."
(p. 102, Rec. Sp. Proc. 1307)
(11) On January 22, 1963 this Honorable Court on petition of
Leon P. Gellada of January 21, 1963 issued Letters of
Administration to:
(a) Avelina A. Magno as Administratrix of the estate of Linnie
Jane Hodges;
(b) Avelina A. Magno as Special Administratrix of the Estate of
Charles Newton Hodges; and
(c) Joe Hodges as Co-Special Administrator of the Estate of
Charles Newton Hodges.
(p. 43, Rec. Sp. Proc. 1307)
(12) On February 20, 1963 this Honorable Court on the basis of
a motion filed by Leon P. Gellada as legal counsel on February
16, 1963 for Avelina A. Magno acting as Administratrix of the
Estate of Charles Newton Hodges (pp. 114-116, Sp. Proc. 1307)
issued the following order:
"... se autoriza a aquella (Avelina A. Magno) a
firmar escrituras de venta definitiva de
propiedades cubiertas por contratos para
vender, firmados, en vida, por el finado
Charles Newton Hodges, cada vez que el
precio estipulado en cada contrato este
totalmente pagado. Se autoriza igualmente a
la misma a firmar escrituras de cancelacion de
hipoteca tanto de bienes reales como
personales cada vez que la consideracion de
cada hipoteca este totalmente pagada.
"Cada una de dichas escrituras que se
otorguen debe ser sometida para la
aprobacion de este Juzgado."
(p. 117, Sp. Proc. 1307).
[Par 1 (c), Reply to Motion For Removal of Joe
Hodges]
(13) On September l6, 1963 Leon P. Gellada, acting as attorney
for Avelina A. Magno as Administratrix of the estate of Linnie
Jane Hodges, alleges:
3. That since January, 1963, both estates of
Linnie Jane Hodges and Charles Newton
Hodges have been receiving in full, payments
for those "contracts to sell" entered into by C.
N. Hodges during his lifetime, and the
purchasers have been demanding the
execution of definite deeds of sale in their
favor.
4. That hereto attached are thirteen (13)
copies deeds of sale executed by the
Administratrix and by the co-administrator
(Fernando P. Mirasol) of the estate of Linnie
Jane Hodges and Charles Newton Hodges
respectively, in compliance with the terms
and conditions of the respective "contracts to
sell" executed by the parties thereto."
(14) The properties involved in the aforesaid motion of
September 16, 1963 are all registered in the name of the
deceased C. N. Hodges.
(15) Avelina A. Magno, it is alleged on information and belief,
has been advertising in the newspaper in Iloilo thusly:
For Sale
Testate Estate of Linnie Jane Hodges and Charles Newton
Hodges.
All Real Estate or Personal Property will be sold on First Come
First Served Basis.
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(16) Avelina A. Magno, it is alleged on information and belief, has paid and still
is paying sums of money to sundry persons.
(17) Joe Hodges through the undersigned attorneys manifested
during the hearings before this Honorable Court on September
5 and 6, 1963 that the estate of C. N. Hodges was claiming all of
the assets belonging to the deceased spouses Linnie Jane
Hodges and C. N. Hodges situated in Philippines because of the
aforesaid election by C. N. Hodges wherein he claimed and took
possession as sole owner of all of said assets during the
administration of the estate of Linnie Jane Hodges on the
ground that he was the sole devisee and legatee under her Last
Will and Testament.
(18) Avelina A. Magno has submitted no inventory and
accounting of her administration as Administratrix of the
estate of Linnie Jane Hodges and Special Administratrix of the
estate of C. N. Hodges. However, from manifestations made by
Avelina A. Magno and her legal counsel, Leon P. Gellada, there
is no question she will claim that at least fifty per cent (50%) of
the conjugal assets of the deceased spouses and the rents,
emoluments and income therefrom belong to the Higdon
family who are named in paragraphs Fourth and Fifth of the
Will of Linnie Jane Hodges (p. 5, Rec. Sp. Proc. 1307).
WHEREFORE, premises considered, movant respectfully prays
that this Honorable Court, after due hearing, order:
(1) Avelina A. Magno to submit an inventory and accounting of
all of the funds, properties and assets of any character
belonging to the deceased Linnie Jane Hodges and C. N. Hodges
which have come into her possession, with full details of what
she has done with them;
(2) Avelina A. Magno to turn over and deliver to the
Administrator of the estate of C. N. Hodges all of the funds,
properties and assets of any character remaining in her
possession;
(3) Pending this Honorable Court's adjudication of the
aforesaid issues, Avelina A. Magno to stop, unless she first
secures the conformity of Joe Hodges (or his duly authorized
representative, such as the undersigned attorneys) as the Co-
administrator and attorney-in-fact of a majority of the
beneficiaries of the estate of C. N. Hodges:
(a) Advertising the sale and the sale of the properties of the
estates:
(b) Employing personnel and paying them any compensation.
(4) Such other relief as this Honorable Court may deem just
and equitable in the premises. (Annex "T", Petition.)
Almost a year thereafter, or on September 14, 1964, after the co-administrators
Joe Hodges and Fernando P. Mirasol were replaced by herein petitioner
Philippine Commercial and Industrial Bank as sole administrator, pursuant to
an agreement of all the heirs of Hodges approved by the court, and because the
above motion of October 5, 1963 had not yet been heard due to the absence
from the country of Atty. Gibbs, petitioner filed the following:
MANIFESTATION AND MOTION, INCLUDING
MOTION TO SET FOR HEARING AND RESOLVE
"URGENT MOTION FOR AN ACCOUNTING AND
DELIVERY TO ADMINISTRATORS OF THE
ESTATE OF C. N. HODGES OF ALL THE ASSETS
OF THE CONJUGAL PARTNERSHIP OF THE
DECEASED LINNIE JANE HODGES AND C. N.
HODGES EXISTING AS OF MAY 23, 1957 PLUS
ALL OF THE RENTS, EMOLUMENTS AND
INCOME THEREFROM OF OCTOBER 5, 1963.
COMES NOW Philippine Commercial and Industrial Bank
(hereinafter referred to as PCIB), the administrator of the
estate of C. N. Hodges, deceased, in Special Proceedings No.
1672, through its undersigned counsel, and to this Honorable
Court respectfully alleges that:
1. On October 5, 1963, Joe Hodges acting as the co-
administrator of the estate of C. N. Hodges filed, through the
undersigned attorneys, an "Urgent Motion For An Accounting
and Delivery To Administrator of the Estate of C. N. Hodges of
all Of The Assets Of The Conjugal Partnership of The Deceased
Linnie Jane Hodges and C. N. Hodges Existing as Of May, 23,
1957 Plus All Of The Rents, Emoluments and Income
Therefrom" (pp. 536-542, CFI Rec. S. P. No. 1672).
2. On January 24, 1964 this Honorable Court, on the basis of an
amicable agreement entered into on January 23, 1964 by the
two co-administrators of the estate of C. N. Hodges and
virtually all of the heirs of C. N. Hodges (p. 912, CFI Rec., S. P.
No. 1672), resolved the dispute over who should act as
administrator of the estate of C. N. Hodges by appointing the
PCIB as administrator of the estate of C. N. Hodges (pp. 905-
906, CFI Rec. S. P. No. 1672) and issuing letters of
administration to the PCIB.
3. On January 24, 1964 virtually all of the heirs of C. N. Hodges,
Joe Hodges and Fernando P. Mirasol acting as the two co-
administrators of the estate of C. N. Hodges, Avelina A. Magno
acting as the administratrix of the estate of Linnie Jane Hodges,
and Messrs. William Brown and Ardel Young Acting for all of
the Higdon family who claim to be the sole beneficiaries of the
estate of Linnie Jane Hodges and various legal counsel
representing the aforenamed parties entered into an amicable
agreement, which was approved by this Honorable Court,
wherein the parties thereto agreed that certain sums of money
were to be paid in settlement of different claims against the
two estates and that the assets (to the extent they existed)of
both estates would be administrated jointly by the PCIB as
administrator of the estate of C. N. Hodges and Avelina A. Magno
as administratrix of the estate of Linnie Jane Hodges, subject,
however, to the aforesaid October 5, 1963 Motion, namely, the
PCIB's claim to exclusive possession and ownership of one-
hundred percent (10017,) (or, in the alternative, seventy-five
percent [75%] of all assets owned by C. N. Hodges or Linnie
Jane Hodges situated in the Philippines. On February 1, 1964
(pp. 934-935, CFI Rec., S. P. No. 1672) this Honorable Court
amended its order of January 24, 1964 but in no way changes
its recognition of the aforedescribed basic demand by the PCIB
as administrator of the estate of C. N. Hodges to one hundred
percent (100%) of the assets claimed by both estates.
4. On February 15, 1964 the PCIB filed a "Motion to Resolve"
the aforesaid Motion of October 5, 1963. This Honorable Court
set for hearing on June 11, 1964 the Motion of October 5, 1963.
5. On June 11, 1964, because the undersigned Allison J. Gibbs
was absent in the United States, this Honorable Court ordered
the indefinite postponement of the hearing of the Motion of
October 5, 1963.
6. Since its appointment as administrator of the estate of C. N.
Hodges the PCIB has not been able to properly carry out its
duties and obligations as administrator of the estate of C. N.
Hodges because of the following acts, among others, of Avelina
A. Magno and those who claim to act for her as administratrix
of the estate of Linnie Jane Hodges:
(a) Avelina A. Magno illegally acts as if she is
in exclusive control of all of the assets in the
Philippines of both estates including those
claimed by the estate of C. N. Hodges as
evidenced in part by her locking the premises
at 206-208 Guanco Street, Iloilo City on
August 31, 1964 and refusing to reopen same
until ordered to do so by this Honorable Court
on September 7, 1964.
(b) Avelina A. Magno illegally acts as though
she alone may decide how the assets of the
estate of C.N. Hodges should be administered,
who the PCIB shall employ and how much
they may be paid as evidenced in party by her
refusal to sign checks issued by the PCIB
payable to the undersigned counsel pursuant
to their fee agreement approved by this
Honorable Court in its order dated March 31,
1964.
(c) Avelina A. Magno illegally gives access to
and turns over possession of the records and
assets of the estate of C.N. Hodges to the
attorney-in-fact of the Higdon Family, Mr.
James L. Sullivan, as evidenced in part by the
cashing of his personal checks.
(d) Avelina A. Magno illegally refuses to
execute checks prepared by the PCIB drawn
to pay expenses of the estate of C. N. Hodges
as evidenced in part by the check drawn to
reimburse the PCIB's advance of P48,445.50
to pay the 1964 income taxes reported due
and payable by the estate of C.N. Hodges.
7. Under and pursuant to the orders of this Honorable Court,
particularly those of January 24 and February 1, 1964, and the
mandate contained in its Letters of Administration issued on
January 24, 1964 to the PCIB, it has
"full authority to take
possession of all the property
of the deceased C. N. Hodges
"and to perform all other acts necessary for
the preservation of said property." (p. 914,
CFI Rec., S.P. No. 1672.)
8. As administrator of the estate of C. N. Hodges, the PCIB
claims the right to the immediate exclusive possession and
control of all of the properties, accounts receivables, court
cases, bank accounts and other assets, including the
documentary records evidencing same, which existed in the
Philippines on the date of C. N. Hodges' death, December 25,
1962, and were in his possession and registered in his name
alone. The PCIB knows of no assets in the Philippines
registered in the name of Linnie Jane Hodges, the estate of
Linnie Jane Hodges, or, C. N. Hodges, Executor of the Estate of
Linnie Jane Hodges on December 25, 1962. All of the assets of
which the PCIB has knowledge are either registered in the
name of C. N. Hodges, alone or were derived therefrom since
his death on December 25, 1962.
9. The PCIB as the current administrator of the estate of C. N.
Hodges, deceased, succeeded to all of the rights of the
previously duly appointed administrators of the estate of C. N.
Hodges, to wit:
(a) On December 25, 1962, date of C. N.
Hodges' death, this Honorable Court
appointed Miss Avelina A. Magno
simultaneously as:
(i) Administratrix of the estate of Linnie Jane
Hodges (p. 102, CFI Rec., S.P. No. 1307) to
replace the deceased C. N. Hodges who on
May 28, 1957 was appointed Special
Administrator (p. 13. CFI Rec. S.P. No. 1307)
and on July 1, 1957 Executor of the estate of
Linnie Jane Hodges (p. 30, CFI Rec., S. P. No.
1307).
(ii) Special Administratrix of the estate of C. N.
Hodges (p. 102, CFI Rec., S.P. No. 1307).
(b) On December 29, 1962 this Honorable
Court appointed Harold K. Davies as co-
special administrator of the estate of C.N.
Hodges along with Avelina A. Magno (pp. 108-
111, CFI Rec., S. P. No. 1307).
(c) On January 22, 1963, with the conformity
of Avelina A. Magno, Harold K. Davies
resigned in favor of Joe Hodges (pp. 35-36, CFI
Rec., S.P. No. 1672) who thereupon was
appointed on January 22, 1963 by this
Honorable Court as special co-administrator
of the estate of C.N. Hodges (pp. 38-40 & 43,
CFI Rec. S.P. No. 1672) along with Miss Magno
who at that time was still acting as special co-
administratrix of the estate of C. N. Hodges.
(d) On February 22, 1963, without objection
on the part of Avelina A. Magno, this
Honorable Court appointed Joe Hodges and
Fernando P. Mirasol as co-administrators of
the estate of C.N. Hodges (pp. 76-78, 81 & 85,
CFI Rec., S.P. No. 1672).
10. Miss Avelina A. Magno, pursuant to the orders of this
Honorable Court of December 25, 1962, took possession of all
Philippine Assets now claimed by the two estates. Legally, Miss
Magno could take possession of the assets registered in the
name of C. N. Hodges alone only in her capacity as Special
Administratrix of the Estate of C.N. Hodges. With the
appointment by this Honorable Court on February 22, 1963 of
Joe Hodges and Fernando P. Mirasol as the co-administrators
of the estate of C.N. Hodges, they legally were entitled to take
over from Miss Magno the full and exclusive possession of all of
the assets of the estate of C.N. Hodges. With the appointment
on January 24, 1964 of the PCIB as the sole administrator of
the estate of C.N. Hodges in substitution of Joe Hodges and
Fernando P. Mirasol, the PCIB legally became the only party
entitled to the sole and exclusive possession of all of the assets
of the estate of C. N. Hodges.
11. The PCIB's predecessors submitted their accounting and
this Honorable Court approved same, to wit:
(a) The accounting of Harold K. Davies dated
January 18, 1963 (pp. 16-33, CFI Rec. S.P. No.
1672); which shows or its face the:
(i) Conformity of Avelina A. Magno acting as
"Administratrix of the Estate of Linnie Jane
Hodges and Special Administratrix of the
Estate of C. N. Hodges";
(ii) Conformity of Leslie Echols, a Texas
lawyer acting for the heirs of C.N. Hodges; and
(iii) Conformity of William Brown, a Texas
lawyer acting for the Higdon family who claim
to be the only heirs of Linnie Jane Hodges (pp.
18, 25-33, CFI Rec., S. P. No. 1672).
Note: This accounting was approved by this Honorable Court
on January 22, 1963 (p. 34, CFI Rec., S. P. No. 1672).
(b) The accounting of Joe Hodges and
Fernando P. Mirasol as of January 23, 1964,
filed February 24, 1964 (pp. 990-1000, CFI
Rec. S.P. No. 1672 and pp. 1806-1848, CFI Rec.
S.P. No. 1307).
Note: This accounting was approved by this Honorable Court
on March 3, 1964.
(c) The PCIB and its undersigned lawyers are
aware of no report or accounting submitted
by Avelina A. Magno of her acts as
administratrix of the estate of Linnie Jane
Hodges or special administratrix of the estate
of C.N. Hodges, unless it is the accounting of
Harold K. Davies as special co-administrator
of the estate of C.N. Hodges dated January 18,
1963 to which Miss Magno manifested her
conformity (supra).
12. In the aforesaid agreement of January 24, 1964, Miss Avelina A. Magno
agreed to receive P10,000.00
"for her services as administratrix of the
estate of Linnie Jane Hodges"
and in addition she agreed to be employed, starting February 1,
1964, at
"a monthly salary of P500.00 for her services
as an employee of both estates."
24 ems.
13. Under the aforesaid agreement of January 24, 1964 and the
orders of this Honorable Court of same date, the PCIB as
administrator of the estate of C. N. Hodges is entitled to the
exclusive possession of all records, properties and assets in the
name of C. N. Hodges as of the date of his death on December
25, 1962 which were in the possession of the deceased C. N.
Hodges on that date and which then passed to the possession
of Miss Magno in her capacity as Special Co-Administratrix of
the estate of C. N. Hodges or the possession of Joe Hodges or
Fernando P. Mirasol as co-administrators of the estate of C. N.
Hodges.
14. Because of Miss Magno's refusal to comply with the
reasonable request of PCIB concerning the assets of the estate
of C. N. Hodges, the PCIB dismissed Miss Magno as an employee
of the estate of C. N. Hodges effective August 31, 1964. On
September 1, 1964 Miss Magno locked the premises at 206-
208 Guanco Street and denied the PCIB access thereto. Upon
the Urgent Motion of the PCIB dated September 3, 1964, this
Honorable Court on September 7, 1964 ordered Miss Magno to
reopen the aforesaid premises at 206-208 Guanco Street and
permit the PCIB access thereto no later than September 8,
1964.
15. The PCIB pursuant to the aforesaid orders of this
Honorable Court is again in physical possession of all of the
assets of the estate of C. N. Hodges. However, the PCIB is not in
exclusive control of the aforesaid records, properties and
assets because Miss Magno continues to assert the claims
hereinabove outlined in paragraph 6, continues to use her own
locks to the doors of the aforesaid premises at 206-208 Guanco
Street, Iloilo City and continues to deny the PCIB its right to
know the combinations to the doors of the vault and safes
situated within the premises at 206-208 Guanco Street despite
the fact that said combinations were known to only C. N.
Hodges during his lifetime.
16. The Philippine estate and inheritance taxes assessed the
estate of Linnie Jane Hodges were assessed and paid on the
basis that C. N. Hodges is the sole beneficiary of the assets of
the estate of Linnie Jane Hodges situated in the Philippines.
Avelina A. Magno and her legal counsel at no time have
questioned the validity of the aforesaid assessment and the
payment of the corresponding Philippine death taxes.
17. Nothing further remains to be done in the estate of Linnie
Jane Hodges except to resolve the aforesaid Motion of October
5, 1963 and grant the PCIB the exclusive possession and
control of all of the records, properties and assets of the estate
of C. N. Hodges.
18. Such assets as may have existed of the estate of Linnie Jane
Hodges were ordered by this Honorable Court in special
Proceedings No. 1307 to be turned over and delivered to C. N.
Hodges alone. He in fact took possession of them before his
death and asserted and exercised the right of exclusive
ownership over the said assets as the sole beneficiary of the
estate of Linnie Jane Hodges.
WHEREFORE, premises considered, the PCIB respectfully
petitions that this Honorable court:
(1) Set the Motion of October 5, 1963 for hearing at the earliest
possible date with notice to all interested parties;
(2) Order Avelina A. Magno to submit an inventory and
accounting as Administratrix of the Estate of Linnie Jane
Hodges and Co-Administratrix of the Estate of C. N. Hodges of
all of the funds, properties and assets of any character
belonging to the deceased Linnie Jane Hodges and C. N. Hodges
which have come into her possession, with full details of what
she has done with them;
(3) Order Avelina A. Magno to turn over and deliver to the PCIB
as administrator of the estate of C. N. Hodges all of the funds,
properties and assets of any character remaining in her
possession;
(4) Pending this Honorable Court's adjudication of the
aforesaid issues, order Avelina A. Magno and her
representatives to stop interferring with the administration of
the estate of C. N. Hodges by the PCIB and its duly authorized
representatives;
(5) Enjoin Avelina A. Magno from working in the premises at
206-208 Guanco Street, Iloilo City as an employee of the estate
of C. N. Hodges and approve her dismissal as such by the PCIB
effective August 31, 1964;
(6) Enjoin James L. Sullivan, Attorneys Manglapus and Quimpo
and others allegedly representing Miss Magno from entering
the premises at 206-208 Guanco Street, Iloilo City or any other
properties of C. N. Hodges without the express permission of
the PCIB;
(7) Order such other relief as this Honorable Court finds just
and equitable in the premises. (Annex "U" Petition.)
On January 8, 1965, petitioner also filed a motion for "Official Declaration of
Heirs of Linnie Jane Hodges Estate" alleging:
COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred
to as PCIB), as administrator of the estate of the late C. N. Hodges, through the
undersigned counsel, and to this Honorable Court respectfully alleges that:
1. During their marriage, spouses Charles Newton Hodges and
Linnie Jane Hodges, American citizens originally from the State
of Texas, U.S.A., acquired and accumulated considerable assets
and properties in the Philippines and in the States of Texas and
Oklahoma, United States of America. All said properties
constituted their conjugal estate.
2. Although Texas was the domicile of origin of the Hodges
spouses, this Honorable Court, in its orders dated March 31
and December 12, 1964 (CFI Record, Sp. Proc. No. 1307, pp. ----
; Sp. Proc. No. 1672, p. ----), conclusively found and
categorically ruled that said spouses had lived and worked for
more than 50 years in Iloilo City and had, therefore, acquired a
domicile of choice in said city, which they retained until the
time of their respective deaths.
3. On November 22, 1952, Linnie Jane Hodges executed in the
City of Iloilo her Last Will and Testament, a copy of which is
hereto attached as Annex "A". The bequests in said will
pertinent to the present issue are the second, third, and fourth
provisions, which we quote in full hereunder.
SECOND: I give, devise and bequeath all of the
rest, residue and remainder of my estate, both
personal and real, wherever situated, or
located, to my husband, Charles Newton
Hodges, to have and to hold unto him, my said
husband during his natural lifetime.
THIRD: I desire, direct and provide that my
husband, Charles Newton Hodges, shall have
the right to manage, control, use and enjoy
said estate during his lifetime, and he is
hereby given the right to make any changes in
the physical properties of said estate by sale
of any part thereof which he think best, and
the purchase of any other or additional
property as he may think best; to execute
conveyances with or without general or
special warranty, conveying in fee simple or
for any other term or time, any property
which he may deem proper to dispose of; to
lease any of the real property for oil, gas
and/or other minerals, and all such deeds or
leases shall pass the absolute fee simple title
to the interest so conveyed in such property
as he may elect to sell. All rents, emoluments
and income from said estate shall belong to
him, and he is further authorized to use any
part of the principal of said estate as he may
need or desire. It is provided herein, however,
that he shall not sell or otherwise dispose of
any of the improved property now owned by
us located at, in or near the City of Lubbock,
Texas, but he shall have the full right to lease,
manage and enjoy the same during his
lifetime, as above provided. He shall have the
right to sub-divide any farmland and sell lots
therein, and may sell unimproved town lots.
FOURTH: At the death of my said husband,
Charles Newton Hodges, I give, devise and
bequeath all of the rest, residue and
remainder of my estate both real and
personal, wherever situated or located, to be
equally divided among my brothers and
sisters, share and share alike, namely:
"Esta Higdon, Emma Howell, Leonard Higdon,
Roy Higdon, Sadie Rascoe, Era Boman and
Nimray Higdon."
4. On November 14, 1953, C. N. Hodges executed in the City of
Iloilo his Last Will and Testament, a copy of which is hereto
attached as Annex "B ". In said Will, C. N. Hodges designated his
wife, Linnie Jane Hodges, as his beneficiary using the identical
language she used in the second and third provisos of her Will,
supra.
5. On May 23, 1957 Linnie Jane Hodges died in Iloilo City,
predeceasing her husband by more than five (5) years. At the
time of her death, she had no forced or compulsory heir, except
her husband, C. N. Hodges. She was survived also by various
brothers and sisters mentioned in her Will (supra), which, for
convenience, we shall refer to as the HIGDONS.
6. On June 28, 1957, this Honorable Court admitted to probate
the Last Will and Testament of the deceased Linnie Jane
Hodges (Annex "A"), and appointed C. N. Hodges as executor of
her estate without bond. (CFI Record, Sp. Proc. No. 1307, pp.
24-25). On July 1, 1957, this Honorable Court issued letters
testamentary to C. N. Hodges in the estate of Linnie Jane
Hodges. (CFI Record, Sp. Proc. No. 1307, p. 30.)
7. The Will of Linnie Jane Hodges, with respect to the order of
succession, the amount of successional rights, and the intrinsic
of its testamentary provisions, should be governed by
Philippine laws because:
(a) The testatrix, Linnie Jane Hodges, intended
Philippine laws to govern her Will;
(b) Article 16 of the Civil Code provides that
"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", shall prevail.
However, the Conflict of Law of Texas, which
is the "national law" of the testatrix, Linnie
Jane Hodges, provide that the domiciliary law
(Philippine law see paragraph 2, supra)
should govern the testamentary dispositions
and successional rights over movables
(personal properties), and the law of the situs
of the property (also Philippine law as to
properties located in the Philippines) with
regards immovable (real properties). Thus
applying the "Renvoi Doctrine", as approved
and applied by our Supreme Court in the case
of "In The Matter Of The Testate Estate of
Eduard E. Christensen", G.R. No.
L-16749, promulgated January 31, 1963,
Philippine law should apply to the Will of
Linnie Jane Hodges and to the successional
rights to her estate insofar as her movable and
immovable assets in the Philippines are
concerned. We shall not, at this stage, discuss
what law should govern the assets of Linnie
Jane Hodges located in Oklahoma and Texas,
because the only assets in issue in this motion
are those within the jurisdiction of this
motion Court in the two above-captioned
Special Proceedings.
8. Under Philippine and Texas law, the conjugal or community
estate of spouses shall, upon dissolution, be divided equally
between them. Thus, upon the death of Linnie Jane Hodges on
May 23, 1957, one-half (1/2) of the entirety of the assets of the
Hodges spouses constituting their conjugal estate pertained
automatically to Charles Newton Hodges, not by way of
inheritance, but in his own right as partner in the conjugal
partnership. The other one-half (1/2) portion of the conjugal
estate constituted the estate of Linnie Jane Hodges. This is the
only portion of the conjugal estate capable of inheritance by her
heirs.
9. This one-half (1/2) portion of the conjugal assets pertaining
to Linnie Jane Hodges cannot, under a clear and specific
provision of her Will, be enhanced or increased by income,
earnings, rents, or emoluments accruing after her death on
May 23, 1957. Linnie Jane Hodges' Will provides that "all rents,
emoluments and income from said estate shall belong to him (C.
N. Hodges) and he is further authorized to use any part of the
principal of said estate as he may need or desire." (Paragraph 3,
Annex "A".) Thus, by specific provision of Linnie Jane Hodges'
Will, "all rents, emoluments and income" must be credited to
the one-half (1/2) portion of the conjugal estate pertaining to
C. N. Hodges. Clearly, therefore, the estate of Linnie Jane Hodges,
capable of inheritance by her heirs, consisted exclusively of no
more than one-half (1/2) of the conjugal estate, computed as of
the time of her death on May 23, 1957.
10. Articles 900, 995 and 1001 of the New Civil Code provide
that the surviving spouse of a deceased leaving no ascendants
or descendants is entitled, as a matter of right and by way of
irrevocable legitime, to at least one-half (1/2) of the estate of
the deceased, and no testamentary disposition by the deceased
can legally and validly affect this right of the surviving spouse.
In fact, her husband is entitled to said one-half (1/2) portion of
her estate by way of legitime. (Article 886, Civil Code.) Clearly,
therefore, immediately upon the death of Linnie Jane Hodges,
C. N. Hodges was the owner of at least three-fourths (3/4) or
seventy-five (75%) percent of all of the conjugal assets of the
spouses, (1/2 or 50% by way of conjugal partnership share
and 1/4 or 25% by way of inheritance and legitime) plus all
"rents, emoluments and income" accruing to said conjugal
estate from the moment of Linnie Jane Hodges' death (see
paragraph 9, supra).
11. The late Linnie Jane Hodges designated her husband C.N.
Hodges as her sole and exclusive heir with full authority to do
what he pleased, as exclusive heir and owner of all the assets
constituting her estate, except only with regards certain
properties "owned by us, located at, in or near the City of
Lubbock, Texas". Thus, even without relying on our laws of
succession and legitime, which we have cited above, C. N.
Hodges, by specific testamentary designation of his wife, was
entitled to the entirely to his wife's estate in the Philippines.
12. Article 777 of the New Civil Code provides that "the rights
of the successor are transmitted from the death of the
decedent". Thus, title to the estate of Linnie Jane Hodges was
transmitted to C. N. Hodges immediately upon her death on
May 23, 1957. For the convenience of this Honorable Court, we
attached hereto as Annex "C" a graph of how the conjugal
estate of the spouses Hodges should be divided in accordance
with Philippine law and the Will of Linnie Jane Hodges.
13. In his capacity as sole heir and successor to the estate of
Linnie Jane Hodges as above-stated, C. N. Hodges, shortly after
the death of Linnie Jane Hodges, appropriated to himself the
entirety of her estate. He operated all the assets, engaged in
business and performed all acts in connection with the entirety
of the conjugal estate, in his own name alone, just as he had
been operating, engaging and doing while the late Linnie Jane
Hodges was still alive. Upon his death on December 25, 1962,
therefore, all said conjugal assets were in his sole possession and
control, and registered in his name alone, not as executor, but as
exclusive owner of all said assets.
14. All these acts of C. N. Hodges were authorized and
sanctioned expressly and impliedly by various orders of this
Honorable Court, as follows:
(a) In an Order dated May 27, 1957, this Honorable Court ruled
that C. N. Hodges "is allowed or authorized to continue the
business in which he was engaged, and to perform acts which
he had been doing while the deceased was living." (CFI Record,
Sp. Proc. No. 1307, p. 11.)
(b) On December 14, 1957, this Honorable Court, on the basis
of the following fact, alleged in the verified Motion dated
December 11, 1957 filed by Leon P. Gellada as attorney for the
executor C. N. Hodges:
That herein Executor, (is) not only part owner of the
properties left as conjugal, but also, the successor to all the
properties left by the deceased Linnie Jane Hodges.' (CFI
Record, Sp. Proc. No. 1307, p. 44; emphasis supplied.)
issued the following order:
"As prayed for by Attorney Gellada, counsel for the Executor,
for the reasons stated in his motion dated December 11, 1957,
which the Court considers well taken, all the sales, conveyances,
leases and mortgages of all the properties left by the deceased
Linnie Jane Hodges executed by the Executor, Charles Newton
Hodges are hereby APPROVED. The said Executor is further
authorized to execute subsequent sales, conveyances, leases
and mortgages of the properties left by the said deceased
Linnie Jane Hodges in consonance with the wishes contained in
the last will and testament of the latter." (CFI Record. Sp. Proc.
No. 1307, p. 46; emphasis supplied.)
24 ems
(c) On April 21, 1959, this Honorable Court approved the
verified inventory and accounting submitted by C. N. Hodges
through his counsel Leon P. Gellada on April 14, 1959 wherein
he alleged among other things,
"That no person interested in the Philippines
of the time and place of examining the herein
account, be given notice, as herein executor is
the only devisee or legatee of the deceased, in
accordance with the last will and testament
already probated by the Honorable Court." (CFI
Record, Sp. Proc. No. 1307, pp. 77-78;
emphasis supplied.)
(d) On July 20, 1960, this Honorable Court approved the
verified "Annual Statement of Account" submitted by C. N.
Hodges through his counsel Leon P. Gellada on July 21, 1960
wherein he alleged, among other things.
"That no person interested in the Philippines
of the time and place of examining the herein
account, be given notice as herein executor is
the only devisee or legatee of the deceased
Linnie Jane Hodges, in accordance with the last
will and testament ofthe deceased, already
probated by this Honorable Court." (CFI
Record, Sp. Proc. No. 1307, pp. 81-82;
emphasis supplied.)
(e) On May 2, 1961, this Honorable Court approved the verified
"Annual Statement of Account By The Executor For the Year
1960" submitted through Leon P. Gellada on April 20, 1961
wherein he alleged:
"That no person interested in the Philippines be given notice,
ofthe time and place of examining the herein account, as herein
executor is the only devisee or legatee of the deceased Linnie
Jane Hodges, in accordance with the last will and testament
ofthe deceased, already probated by this Honorable Court." (CFI
Record, Sp. Proc. No. 1307, pp. 90-91; emphasis supplied.)
15. Since C. N. Hodges was the sole and exclusive heir of Linnie
Jane Hodges, not only by law, but in accordance with the
dispositions of her will, there was, in fact, no need to liquidate
the conjugal estate of the spouses. The entirely of said conjugal
estate pertained to him exclusively, therefore this Honorable
Court sanctioned and authorized, as above-stated, C. N. Hodges
to manage, operate and control all the conjugal assets as
owner.
16. By expressly authorizing C. N. Hodges to act as he did in
connection with the estate of his wife, this Honorable Court has
(1) declared C. N. Hodges as the sole heir of the estate of Linnie
Jane Hodges, and (2) delivered and distributed her estate to C.
N. Hodges as sole heir in accordance with the terms and
conditions of her Will. Thus, although the "estate of Linnie Jane
Hodges" still exists as a legal and juridical personality, it had no
assets or properties located in the Philippines registered in its
name whatsoever at the time of the death of C. N. Hodges on
December 25, 1962.
17. The Will of Linnie Jane Hodges (Annex "A"), fourth
paragraph, provides as follows:
"At the death of my said husband, Charles
Newton Hodges, I give, devise and bequeath
all of the rest, residue and remainder of my
estate both real and personal, wherever
situated or located, to be equally divided
among my brothers and sisters, share and
share alike, namely:
"Esta Higdon, Emma Howell,
Leonard Higdon, Roy Higdon,
Sadie Rascoe, Era Boman and
Nimray Higdon."
Because of the facts hereinabove set out there is no "rest,
residue and remainder", at least to the extent of the Philippine
assets, which remains to vest in the HIGDONS, assuming this
proviso in Linnie Jane Hodges' Will is valid and binding against
the estate of C. N. Hodges.
18. Any claims by the HIGDONS under the above-quoted
provision of Linnie Jane Hodges' Will is without merit because
said provision is void and invalid at least as to the Philippine
assets. It should not, in anyway, affect the rights of the estate of
C. N. Hodges or his heirs to the properties, which C. N. Hodges
acquired by way of inheritance from his wife Linnie Jane
Hodges upon her death.
(a) In spite of the above-mentioned provision
in the Will of Linnie Jane Hodges, C. N. Hodges
acquired, not merely a usufructuary right, but
absolute title and ownership to her estate. In a
recent case involving a very similar
testamentary provision, the Supreme Court
held that the heir first designated acquired
full ownership of the property bequeathed by
the will, not mere usufructuary rights.
(Consolacion Florentino de Crisologo, et al.,
vs. Manuel Singson, G. R. No. L-13876,
February 28, 1962.)
(b) Article 864, 872 and 886 of the New Civil
Code clearly provide that no charge, condition
or substitution whatsoever upon the legitime
can be imposed by a testator. Thus, under the
provisions of Articles 900, 995 and 1001 of
the New Civil Code, the legitime of a surviving
spouse is 1/2 of the estate of the deceased
spouse. Consequently, the above-mentioned
provision in the Will of Linnie Jane Hodges is
clearly invalid insofar as the legitime of C. N.
Hodges was concerned, which consisted of
1/2 of the 1/2 portion of the conjugal estate,
or 1/4 of the entire conjugal estate of the
deceased.
(c) There are generally only two kinds of
substitution provided for and authorized by
our Civil Code (Articles 857-870), namely, (1)
simple or common substitution, sometimes
referred to as vulgar substitution (Article
859), and (2) fideicommissary substitution
(Article 863). All other substitutions are
merely variations of these. The substitution
provided for by paragraph four of the Will of
Linnie Jane Hodges is not fideicommissary
substitution, because there is clearly no
obligation on the part of C. N. Hodges as the
first heir designated, to preserve the
properties for the substitute heirs.
(Consolacion Florentino de Crisologo et al. vs.
Manuel Singson, G. R. No.
L-13876.) At most, it is a vulgar or simple
substitution. However, in order that a vulgar
or simple substitution can be valid, three
alternative conditions must be present,
namely, that the first designated heir (1)
should die before the testator; or (2) should
not wish to accept the inheritance; or (3)
should be incapacitated to do so. None of
these conditions apply to C. N. Hodges, and,
therefore, the substitution provided for by the
above-quoted provision of the Will is not
authorized by the Code, and, therefore, it is
void. Manresa, commenting on these kisses of
substitution, meaningfully stated that: "...
cuando el testador instituyeun primer
heredero, y por fallecimiento de este nombra
otro u otros, ha de entenderse que estas
segundas designaciones solo han de llegar a
tener efectividad en el caso de que el primer
instituido muera antes que el testador, fuera o
no esta su verdadera intencion. ...". (6
Manresa, 7 a ed., pag. 175.) In other words,
when another heir is designated to inherit upon
the death of a first heir, the second designation
can have effect only in case the first instituted
heir dies before the testator, whether or not
that was the true intention of said testator.
Since C. N. Hodges did not die before Linnie
Jane Hodges, the provision for substitution
contained in Linnie Jane Hodges' Willis void.
(d) In view of the invalidity of the provision
for substitution in the Will, C. N. Hodges'
inheritance to the entirety of the Linnie Jane
Hodges estate is irrevocable and final.
19. Be that as it may, at the time of C. N. Hodges' death, the
entirety of the conjugal estate appeared and was registered in
him exclusively as owner. Thus, the presumption is that all said
assets constituted his estate. Therefore
(a) If the HIGDONS wish to enforce their dubious rights as
substituted heirs to 1/4 of the conjugal estate (the other 1/4 is
covered by the legitime of C. N. Hodges which can not be
affected by any testamentary disposition), their remedy, if any,
is to file their claim against the estate of C. N. Hodges, which
should be entitled at the present time to full custody and
control of all the conjugal estate of the spouses.
(b) The present proceedings, in which two estates exist under
separate administration, where the administratrix of the Linnie
Jane Hodges estate exercises an officious right to object and
intervene in matters affecting exclusively the C. N. Hodges
estate, is anomalous.
WHEREFORE, it is most respectfully prayed that after trial and
reception of evidence, this Honorable Court declare:
1. That the estate of Linnie Jane Hodges was and is composed
exclusively of one-half (1/2) share in the conjugal estate of the
spouses Hodges, computed as of the date of her death on May
23, 1957;
2. That the other half of the conjugal estate pertained
exclusively to C. N. Hodges as his share as partner in the
conjugal partnership;
3. That all "rents, emoluments and income" of the conjugal
estate accruing after Linnie Jane Hodges' death pertains to C. N.
Hodges;
4. That C. N. Hodges was the sole and exclusive heir of the
estate of Linnie Jane Hodges;
5. That, therefore, the entire conjugal estate of the spouses
located in the Philippines, plus all the "rents, emoluments and
income" above-mentioned, now constitutes the estate of C. N.
Hodges, capable of distribution to his heirs upon termination
of Special Proceedings No. 1672;
6. That PCIB, as administrator of the estate of C. N. Hodges, is
entitled to full and exclusive custody, control and management
of all said properties; and
7. That Avelina A. Magno, as administratrix of the estate of
Linnie Jane Hodges, as well as the HIGDONS, has no right to
intervene or participate in the administration of the C. N.
Hodges estate.
PCIB further prays for such and other relief as may be deemed
just and equitable in the premises."
(Record, pp. 265-277)
Before all of these motions of petitioner could be resolved, however, on
December 21, 1965, private respondent Magno filed her own "Motion for the
Official Declaration of Heirs of the Estate of Linnie Jane Hodges" as follows:
COMES NOW the Administratrix of the Estate of Linnie Jane
Hodges and, through undersigned counsel, unto this Honorable
Court most respectfully states and manifests:
1. That the spouses Charles Newton Hodges and Linnie Jane
Hodges were American citizens who died at the City of Iloilo
after having amassed and accumulated extensive properties in
the Philippines;
2. That on November 22, 1952, Linnie Jane Hodges executed a
last will and testament (the original of this will now forms part
of the records of these proceedings as Exhibit "C" and appears
as Sp. Proc. No. 1307, Folio I, pp. 17-18);
3. That on May 23, 1957, Linnie Jane Hodges died at the City of
Iloilo at the time survived by her husband, Charles Newton
Hodges, and several relatives named in her last will and
testament;
4. That on June 28, 1957, a petition therefor having been
priorly filed and duly heard, this Honorable Court issued an
order admitting to probate the last will and testament of Linnie
Jane Hodges (Sp. Proc. No. 1307, Folio I, pp. 24-25, 26-28);
5. That the required notice to creditors and to all others who
may have any claims against the decedent, Linnie Jane Hodges
has already been printed, published and posted (Sp. Proc. No.
1307, Folio I. pp. 34-40) and the reglamentary period for filing
such claims has long ago lapsed and expired without any
claims having been asserted against the estate of Linnie Jane
Hodges, approved by the Administrator/Administratrix of the
said estate, nor ratified by this Honorable Court;
6. That the last will and testament of Linnie Jane Hodges
already admitted to probate contains an institution of heirs in
the following words:
"SECOND: I give, devise and bequeath all of
the rest, residue and remainder of my estate,
both personal and real, wherever situated or
located, to my beloved husband, Charles
Newton Hodges to have and to hold unto him,
my said husband, during his natural lifetime.
THIRD: I desire, direct and provide that my
husband, Charles Newton Hodges, shall have
the right to manage, control, use and enjoy
said estate during his lifetime, and, he is
hereby given the right to make any changes in
the physical properties of said estate, by sale
of any part thereof which he may think best,
and the purchase of any other or additional
property as he may think best; to execute
conveyances with or without general or
special warranty, conveying in fee simple or
for any other term or time, any property
which he may deem proper to dispose of; to
lease any of the real property for oil, gas
and/or other minerals, and all such deeds or
leases shall pass the absolute fee simple title
to the interest so conveyed in such property
as he elect to sell. All rents, emoluments and
income from said estate shall belong to him,
and he is further authorized to use any part of
the principal of said estate as he may need or
desire. It is provided herein, however, that he
shall not sell or otherwise dispose of any of
the improved property now owned by us
located at, in or near the City of Lubbock
Texas, but he shall have the full right to lease,
manage and enjoy the same during his
lifetime, above provided. He shall have the
right to subdivide any farm land and sell lots
therein, and may sell unimproved town lots.
FOURTH: At the death of my said husband,
Charles Newton Hodges, I give, devise and
bequeath all of the rest, residue and
remainder of my estate, both real and
personal, wherever situated or located, to be
equally divided among my brothers and
sisters, share and share alike, namely:
Esta Higdon, Emma Howell, Leonard Higdon,
Roy Higdon, Sadie Rascoe, Era Boman and
Nimroy Higdon.
FIFTH: In case of the death of any of my
brothers and/or sisters named in item Fourth,
above, prior to the death of my husband,
Charles Newton Hodges, then it is my will and
bequest that the heirs of such deceased
brother or sister shall take jointly the share
which would have gone to such brother or
sister had she or he survived."
7. That under the provisions of the last will and testament
already above-quoted, Linnie Jane Hodges gave a life-estate or
a usufruct over all her estate to her husband, Charles Newton
Hodges, and a vested remainder-estate or the naked title over
the same estate to her relatives named therein;
8. That after the death of Linnie Jane Hodges and after the
admission to probate of her last will and testament, but during
the lifetime of Charles Newton Hodges, the said Charles
Newton Hodges with full and complete knowledge of the life-
estate or usufruct conferred upon him by the will since he was
then acting as Administrator of the estate and later as Executor
of the will of Linnie Jane Hodges, unequivocably and clearly
through oral and written declarations and sworn public
statements, renounced, disclaimed and repudiated his life-
estate and usufruct over the estate of Linnie Jane Hodges;
9. That, accordingly, the only heirs left to receive the estate of
Linnie Jane Hodges pursuant to her last will and testament, are
her named brothers and sisters, or their heirs, to wit: Esta
Higdon, Emma Howell, Leonard Higdon, Aline Higdon and
David Higdon, the latter two being the wife and son
respectively of the deceased Roy Higdon, Sadie Rascoe Era
Boman and Nimroy Higdon, all of legal ages, American citizens,
with residence at the State of Texas, United States of America;
10. That at the time of the death of Linnie Jane Hodges on May
23, 1957, she was the co-owner (together with her husband
Charles Newton Hodges) of an undivided one-half interest in
their conjugal properties existing as of that date, May 23, 1957,
which properties are now being administered sometimes
jointly and sometimes separately by the Administratrix of the
estate of Linnie Jane Hodges and/or the Administrator of the
estate of C. N. Hodges but all of which are under the control
and supervision of this Honorable Court;
11. That because there was no separation or segregation of the
interests of husband and wife in the combined conjugal estate,
as there has been no such separation or segregation up to the
present, both interests have continually earned exactly the
same amount of "rents, emoluments and income", the entire
estate having been continually devoted to the business of the
spouses as if they were alive;
12. That the one-half interest of Linnie Jane Hodges in the
combined conjugal estate was earning "rents, emoluments and
income" until her death on May 23, 1957, when it ceased to be
saddled with any more charges or expenditures which are
purely personal to her in nature, and her estate kept on
earning such "rents, emoluments and income" by virtue of
their having been expressly renounced, disclaimed and
repudiated by Charles Newton Hodges to whom they were
bequeathed for life under the last will and testament of Linnie
Jane Hodges;
13. That, on the other hand, the one-half interest of Charles
Newton Hodges in the combined conjugal estate existing as of
May 23, 1957, while it may have earned exactly the same
amount of "rents, emoluments and income" as that of the share
pertaining to Linnie Jane Hodges, continued to be burdened by
charges, expenditures, and other dispositions which are purely
personal to him in nature, until the death of Charles Newton
Hodges himself on December 25, 1962;
14. That of all the assets of the combined conjugal estate of
Linnie Jane Hodges and Charles Newton Hodges as they exist
today, the estate of Linnie Jane Hodges is clearly entitled to a
portion more than fifty percent (50%) as compared to the
portion to which the estate of Charles Newton Hodges may be
entitled, which portions can be exactly determined by the
following manner:
a. An inventory must be made of the assets of
the combined conjugal estate as they existed
on the death of Linnie Jane Hodges on May 23,
1957 one-half of these assets belong to the
estate of Linnie Jane Hodges;
b. An accounting must be made of the "rents,
emoluments and income" of all these assets
again one-half of these belong to the estate of
Linnie Jane Hodges;
c. Adjustments must be made, after making a
deduction of charges, disbursements and
other dispositions made by Charles Newton
Hodges personally and for his own personal
account from May 23, 1957 up to December
25, 1962, as well as other charges,
disbursements and other dispositions made
for him and in his behalf since December 25,
1962 up to the present;
15. That there remains no other matter for disposition now
insofar as the estate of Linnie Jane Hodges is concerned but to
complete the liquidation of her estate, segregate them from the
conjugal estate, and distribute them to her heirs pursuant to
her last will and testament.
WHEREFORE, premises considered, it is most respectfully
moved and prayed that this Honorable Court, after a hearing
on the factual matters raised by this motion, issue an order:
a. Declaring the following persons, to wit: Esta Higdon, Emma
Howell, Leonard Higdon, Aline Higdon, David Higdon, Sadie
Rascoe, Era Boman and Nimroy Higdon, as the sole heirs under
the last will and testament of Linnie Jane Hodges and as the
only persons entitled to her estate;
b. Determining the exact value of the estate of Linnie Jane
Hodges in accordance with the system enunciated in paragraph
14 of this motion;
c. After such determination ordering its segregation from the
combined conjugal estate and its delivery to the Administratrix
of the estate of Linnie Jane Hodges for distribution to the heirs
to whom they properly belong and appertain.
(Green Record on Appeal, pp. 382-391)
whereupon, instead of further pressing on its motion of January 8, 1965
aforequoted, as it had been doing before, petitioner withdrew the said motion
and in addition to opposing the above motion of respondent Magno, filed a
motion on April 22, 1966 alleging in part that:
1. That it has received from the counsel for the administratrix
of the supposed estate of Linnie Jane Hodges a notice to set her
"Motion for Official Declaration of Heirs of the Estate of Linnie
Jane Hodges";
2. That before the aforesaid motion could be heard, there are
matters pending before this Honorable Court, such as:
a. The examination already ordered by this
Honorable Court of documents relating to the
allegation of Avelina Magno that Charles
Newton Hodges "through ... written
declarations and sworn public statements,
renounced, disclaimed and repudiated life-
estate and usufruct over the estate of Linnie
Jane Hodges';
b. That "Urgent Motion for An Accounting and
Delivery to the Estate of C. N. Hodges of All the
Assets of the Conjugal Partnership of the
Deceased Linnie Jane Hodges and C. N. Hodges
Existing as of May 23, 1957 Plus All the Rents,
Emoluments and Income Therefrom";
c. Various motions to resolve the aforesaid
motion;
d. Manifestation of September 14, 1964,
detailing acts of interference of Avelina Magno
under color of title as administratrix of the
Estate of Linnie Jane Hodges;
which are all prejudicial, and which involve no issues of fact, all
facts involved therein being matters of record, and therefore
require only the resolution of questions of law;
3. That whatever claims any alleged heirs or other persons may
have could be very easily threshed out in the Testate Estate of
Charles Newton Hodges;
4. That the maintenance of two separate estate proceedings
and two administrators only results in confusion and is unduly
burdensome upon the Testate Estate of Charles Newton
Hodges, particularly because the bond filed by Avelina Magno
is grossly insufficient to answer for the funds and property
which she has inofficiously collected and held, as well as those
which she continues to inofficiously collect and hold;
5. That it is a matter of record that such state of affairs affects
and inconveniences not only the estate but also third-parties
dealing with it;" (Annex "V", Petition.)
and then, after further reminding the court, by quoting them, of the relevant
allegations of its earlier motion of September 14, 1964, Annex U, prayed that:
1. Immediately order Avelina Magno to account for and deliver
to the administrator of the Estate of C. N. Hodges all the assets
of the conjugal partnership of the deceased Linnie Jane Hodges
and C. N. Hodges, plus all the rents, emoluments and income
therefrom;
2. Pending the consideration of this motion, immediately order
Avelina Magno to turn over all her collections to the
administrator Philippine Commercial & Industrial Bank;
3. Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc.
No. 1307) closed;
4. Defer the hearing and consideration of the motion for
declaration of heirs in the Testate Estate of Linnie Jane Hodges
until the matters hereinabove set forth are resolved.
(Prayer, Annex "V" of Petition.)
On October 12, 1966, as already indicated at the outset of this opinion, the
respondent court denied the foregoing motion, holding thus:
O R D E R
On record is a motion (Vol. X, Sp. 1672, pp. 4379-4390) dated
April 22, 1966 of administrator PCIB praying that (1)
Immediately order Avelina Magno to account for and deliver to
the administrator of the estate of C. N. Hodges all assets of the
conjugal partnership of the deceased Linnie Jane Hodges and C.
N. Hodges, plus all the rents, emoluments and income
therefrom; (2) Pending the consideration of this motion,
immediately order Avelina Magno to turn over all her
collections to the administrator PCIB; (3) Declare the Testate
Estate of Linnie Jane Hodges (Sp. Proc. No. 1307) closed; and
(4) Defer the hearing and consideration of the motion for
declaration of heirs in the Testate Estate of Linnie Jane Hodges
until the matters hereinabove set forth are resolved.
This motion is predicated on the fact that there are matters
pending before this court such as (a) the examination already
ordered by this Honorable Court of documents relating to the
allegation of Avelina Magno that Charles Newton Hodges thru
written declaration and sworn public statements renounced,
disclaimed and repudiated his life-estate and usufruct over the
estate of Linnie Jane Hodges (b) the urgent motion for
accounting and delivery to the estate of C. N. Hodges of all the
assets of the conjugal partnership of the deceased Linnie Jane
Hodges and C. N. Hodges existing as of May 23, 1957 plus all
the rents, emoluments and income therefrom; (c) various
motions to resolve the aforesaid motion; and (d) manifestation
of September 14, 1964, detailing acts of interference of Avelina
Magno under color of title as administratrix of the estate of
Linnie Jane Hodges.
These matters, according to the instant motion, are all pre-
judicial involving no issues of facts and only require the
resolution of question of law; that in the motion of October 5,
1963 it is alleged that in a motion dated December 11, 1957
filed by Atty. Leon Gellada as attorney for the executor C. N.
Hodges, the said executor C. N. Hodges is not only part owner
of the properties left as conjugal but also the successor to all
the properties left by the deceased Linnie Jane Hodges.
Said motion of December 11, 1957 was approved by the Court
in consonance with the wishes contained in the last will and
testament of Linnie Jane Hodges.
That on April 21, 1959 this Court approved the inventory and
accounting submitted by C. N. Hodges thru counsel Atty. Leon
Gellada in a motion filed on April 14, 1959 stating therein that
executor C. N. Hodges is the only devisee or legatee of Linnie
Jane Hodges in accordance with the last will and testament
already probated by the Court.
That on July 13, 1960 the Court approved the annual statement
of accounts submitted by the executor C. N. Hodges thru his
counsel Atty. Gellada on July 21, 1960 wherein it is stated that
the executor, C. N. Hodges is the only devisee or legatee of the
deceased Linnie Jane Hodges; that on May 2, 1961 the Court
approved the annual statement of accounts submitted by
executor, C. N. Hodges for the year 1960 which was submitted
by Atty. Gellada on April 20, 1961 wherein it is stated that
executor Hodges is the only devisee or legatee of the deceased
Linnie Jane Hodges;
That during the hearing on September 5 and 6, 1963 the estate
of C. N. Hodges claimed all the assets belonging to the deceased
spouses Linnie Jane Hodges and C. N. Hodges situated in the
Philippines; that administratrix Magno has executed illegal acts
to the prejudice of the testate estate of C. N. Hodges.
An opposition (Sp. 1672, Vol. X, pp. 4415-4421) dated April 27,
1966 of administratrix Magno has been filed asking that the
motion be denied for lack of merit and that the motion for the
official declaration of heirs of the estate of Linnie Jane Hodges
be set for presentation and reception of evidence.
It is alleged in the aforesaid opposition that the examination of
documents which are in the possession of administratrix
Magno can be made prior to the hearing of the motion for the
official declaration of heirs of the estate of Linnie Jane Hodges,
during said hearing.
That the matters raised in the PCIB's motion of October 5, 1963
(as well as the other motion) dated September 14, 1964 have
been consolidated for the purpose of presentation and
reception of evidence with the hearing on the determination of
the heirs of the estate of Linnie Jane Hodges. It is further
alleged in the opposition that the motion for the official
declaration of heirs of the estate of Linnie Jane Hodges is the
one that constitutes a prejudicial question to the motions dated
October 5 and September 14, 1964 because if said motion is
found meritorious and granted by the Court, the PCIB's
motions of October 5, 1963 and September 14, 1964 will
become moot and academic since they are premised on the
assumption and claim that the only heir of Linnie Jane Hodges
was C. N. Hodges.
That the PCIB and counsel are estopped from further
questioning the determination of heirs in the estate of Linnie
Jane Hodges at this stage since it was PCIB as early as January
8, 1965 which filed a motion for official declaration of heirs of
Linnie Jane Hodges that the claim of any heirs of Linnie Jane
Hodges can be determined only in the administration
proceedings over the estate of Linnie Jane Hodges and not that
of C. N. Hodges, since the heirs of Linnie Jane Hodges are
claiming her estate and not the estate of C. N. Hodges.
A reply (Sp. 1672, Vol. X, pp. 4436-4444) dated May 11, 1966 of
the PCIB has been filed alleging that the motion dated April 22,
1966 of the PCIB is not to seek deferment of the hearing and
consideration of the motion for official declaration of heirs of
Linnie Jane Hodges but to declare the testate estate of Linnie
Jane Hodges closed and for administratrix Magno to account
for and deliver to the PCIB all assets of the conjugal
partnership of the deceased spouses which has come to her
possession plus all rents and income.
A rejoinder (Sp. 1672, Vol. X, pp. 4458-4462) of administratrix
Magno dated May 19, 1966 has been filed alleging that the
motion dated December 11, 1957 only sought the approval of
all conveyances made by C. N. Hodges and requested the Court
authority for all subsequent conveyances that will be executed
by C. N. Hodges; that the order dated December 14, 1957 only
approved the conveyances made by C. N. Hodges; that C. N.
Hodges represented by counsel never made any claim in the
estate of Linnie Jane Hodges and never filed a motion to
declare himself as the heir of the said Linnie Jane Hodges
despite the lapse of more than five (5) years after the death of
Linnie Jane Hodges; that it is further alleged in the rejoinder
that there can be no order of adjudication of the estate unless
there has been a prior express declaration of heirs and so far
no declaration of heirs in the estate of Linnie Jane Hodges (Sp.
1307) has been made.
Considering the allegations and arguments in the motion and
of the PCIB as well as those in the opposition and rejoinder of
administratrix Magno, the Court finds the opposition and
rejoinder to be well taken for the reason that so far there has
been no official declaration of heirs in the testate estate of
Linnie Jane Hodges and therefore no disposition of her estate.
WHEREFORE, the motion of the PCIB dated April 22, 1966 is
hereby DENIED.
(Annex "W", Petition)
In its motion dated November 24, 1966 for the reconsideration of this order,
petitioner alleged inter alia that:
It cannot be over-stressed that the motion of December 11,
1957 was based on the fact that:
a. Under the last will and testament of the
deceased, Linnie Jane Hodges, the late Charles
Newton Hodges was the sole heir instituted
insofar as her properties in the Philippines
are concerned;
b. Said last will and testament vested upon the
said late Charles Newton Hodges rights over
said properties which, in sum, spell
ownership, absolute and in fee simple;
c. Said late Charles Newton Hodges was,
therefore, "not only part owner of the
properties left as conjugal, but also, the
successor to all the properties left by the
deceased Linnie Jane Hodges.
Likewise, it cannot be over-stressed that the aforesaid motion
was granted by this Honorable Court "for the reasons stated"
therein.
Again, the motion of December 11, 1957 prayed that not only
"all the sales, conveyances, leases, and mortgages executed by"
the late Charles Newton Hodges, but also all "the subsequent
sales, conveyances, leases, and mortgages ..." be approved and
authorized. This Honorable Court, in its order of December 14,
1957, "for the reasons stated" in the aforesaid motion, granted
the same, and not only approved all the sales, conveyances,
leases and mortgages of all properties left by the deceased
Linnie Jane Hodges executed by the late Charles Newton
Hodges, but also authorized "all subsequent sales,
conveyances, leases and mortgages of the properties left by the
said deceased Linnie Jane Hodges. (Annex "X", Petition)
and reiterated its fundamental pose that the Testate Estate of Linnie Jane
Hodges had already been factually, although not legally, closed with the virtual
declaration of Hodges and adjudication to him, as sole universal heir of all the
properties of the estate of his wife, in the order of December 14, 1957, Annex G.
Still unpersuaded, on July 18, 1967, respondent court denied said motion for
reconsideration and held that "the court believes that there is no justification
why the order of October 12, 1966 should be considered or modified", and, on
July 19, 1967, the motion of respondent Magno "for official declaration of heirs
of the estate of Linnie Jane Hodges", already referred to above, was set for
hearing.
In consequence of all these developments, the present petition was filed on
August 1, 1967 (albeit petitioner had to pay another docketing fee on August 9,
1967, since the orders in question were issued in two separate testate estate
proceedings, Nos. 1307 and 1672, in the court below).
Together with such petition, there are now pending before Us for resolution
herein, appeals from the following:
1. The order of December 19, 1964 authorizing payment by
respondent Magno of overtime pay, (pp. 221, Green Record on
Appeal) together with the subsequent orders of January 9,
1965, (pp. 231-232, id.) October 27, 1965, (pp. 227, id.) and
February 15, 1966 (pp. 455-456, id.) repeatedly denying
motions for reconsideration thereof.
2. The order of August 6, 1965 (pp. 248, id.) requiring that
deeds executed by petitioner to be co-signed by respondent
Magno, as well as the order of October 27, 1965 (pp. 276-277)
denying reconsideration.
3. The order of October 27, 1965 (pp. 292-295, id.) enjoining
the deposit of all collections in a joint account and the same
order of February 15, 1966 mentioned in No. 1 above which
included the denial of the reconsideration of this order of
October 27, 1965.
4. The order of November 3, 1965 (pp. 313-320, id.) directing
the payment of attorney's fees, fees of the respondent
administratrix, etc. and the order of February 16, 1966 denying
reconsideration thereof.
5. The order of November 23, 1965 (pp. 334-335, id.) allowing
appellee Western Institute of Technology to make payments to
either one or both of the administrators of the two estates as
well as the order of March 7, 1966 (p. 462, id.) denying
reconsideration.
6. The various orders hereinabove earlier enumerated
approving deeds of sale executed by respondent Magno in
favor of appellees Carles, Catedral, Pablito, Guzman, Coronado,
Barrido, Causing, Javier, Lucero and Batisanan, (see pp. 35 to
37 of this opinion), together with the two separate orders both
dated December 2, 1966 (pp. 306-308, and pp. 308-309, Yellow
Record on Appeal) denying reconsideration of said approval.
7. The order of January 3, 1967, on pp. 335-336, Yellow Record
on Appeal, approving similar deeds of sale executed by
respondent Magno, as those in No. 6, in favor of appellees
Pacaonsis and Premaylon, as to which no motion for
reconsideration was filed.
8. Lastly, the order of December 2, 1966, on pp. 305-306,
Yellow Record on Appeal, directing petitioner to surrender to
appellees Lucero, Batisanan, Javier, Pablito, Barrido, Catedral,
Causing, Guzman, and Coronado, the certificates of title
covering the lands involved in the approved sales, as to which
no motion for reconsideration was filed either.
Strictly speaking, and considering that the above orders deal with different
matters, just as they affect distinctly different individuals or persons, as
outlined by petitioner in its brief as appellant on pp. 12-20 thereof, there are,
therefore, thirty-three (33) appeals before Us, for which reason, petitioner has
to pay also thirty-one (31) more docket fees.
It is as well perhaps to state here as elsewhere in this opinion that in connection
with these appeals, petitioner has assigned a total of seventy-eight (LXXVIII)
alleged errors, the respective discussions and arguments under all of them
covering also the fundamental issues raised in respect to the petition for
certiorari and prohibition, thus making it feasible and more practical for the
Court to dispose of all these cases together.
4

The assignments of error read thus:
I to IV
THE ORDER COURT ERRED IN APPROVING THE FINAL DEEDS
OF SALE IN FAVOR OF THE APPELLEES, PEPITO G. IYULORES,
ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND
ROSARIO ALINGASA, EXECUTED BY THE APPELLEE, AVELINA
A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE
DECEASED, CHARLES NEWTON HODGES, AND THE
CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY
HIM DURING HIS LIFETIME.
V to VIII
THE LOWER COURT ERRED IN APPROVING THE DEEDS OF
SALE IN FAVOR OF THE APPELLEES, PEPITO G. IYULORES,
ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND
ROSARIO ALINGASA, COVERING PARCELS OF LAND FOR
WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE
WITH THE ORIGINAL CONTRACTS TO SELL.
IX to XII
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF
OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES,
PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C.
ESPADA AND ROSARIO ALINGASA, WHILE ACTING AS A
PROBATE COURT.
XIII to XV
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS
OF SALE IN FAVOR OF THE APPELLEES ADELFA PREMAYLON
(LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA
PREMAYLON (LOT NO. 104), EXECUTED BY THE APPELLEE,
AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED
BY THE DECEASED, CHARLES NEWTON HODGES, AND THE
CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY
HIM DURING HIS LIFETIME.
XVI to XVIII
THE LOWER COURT ERRED IN APPROVING THE DEEDS OF
SALE IN FAVOR OF THE APPELLEES ADELFA PREMAYLON
(LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA
PREMAYLON (LOT NO. 104) COVERING PARCELS OF LAND
FOR WHICH THEY HAVE NEVER PAID IN FULL IN
ACCORDANCE WITH THE ORIGINAL CONTRACTS TO SELL.
XIX to XXI
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF
OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES
ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS,
AND ADELFA PREMAYLON (LOT NO. 104) WHILE ACTING AS
A PROBATE COURT.
XXII to XXV
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS
OF SALE IN FAVOR OF THE APPELLEES LORENZO CARLES,
JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR S.
GUZMAN, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO,
COVERING PARCELS OF LAND OWNED BY THE DECEASED,
CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL
COVERING WHICH WERE EXECUTED BY HIM DURING HIS
LIFETIME.
XXVI to XXIX
THE LOWER COURT ERRED IN APPROVING THE FINAL DEED
OF SALE EXECUTED IN FAVOR OF THE APPELLEES, LORENZO
CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR
S. GUZMAN PURSUANT TO CONTRACTS TO SPELL WHICH
WERE CANCELLED AND RESCINDED.
XXX to XXXIV
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF
OWNERSHIP OVER REAL PROPERTY OF THE LORENZO
CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR
S. GUZMAN, WHILE ACTING AS A PROBATE COURT.
XXXV to XXXVI
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS
OF SALE IN FAVOR OF THE APPELLEES, FLORENIA BARRIDO
AND PURIFICACION CORONADO, EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND
OWNED BY THE DECEASED, CHARLES NEWTON HODGES,
AND THE CONTRACTS TO SELL COVERING WHICH WERE
EXECUTED BY HIM DURING HIS LIFETIME.
XXXVII to XXXVIII
THE LOWER COURT ERRED IN APPROVING THE DEEDS OF
SALE IN FAVOR OF THE APPELLEES, FLORENIA BARRIDO AND
PURIFICACION CORONADO, ALTHOUGH THEY WERE IN
ARREARS IN THE PAYMENTS AGREED UPON IN THE
ORIGINAL CONTRACT TO SELL WHICH THEY EXECUTED
WITH THE DECEASED, CHARLES NEWTON HODGES, IN THE
AMOUNT OF P10,680.00 and P4,428.90, RESPECTIVELY.
XXXIX to XL
THE LOWER COURT ERRED IN DEPRIVING THE DECEASED,
CHARLES NEWTON HODGES, OF THE CONTRACTUAL RIGHT,
EXERCISED THROUGH HIS ADMINISTRATOR, THE INSTANT
APPELLANT, TO CANCEL THE CONTRACTS TO SELL OF THE
APPELLEES, FLORENIA BARRIDO AND PURIFICACION
CORONADO.
XLI to XLIII
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS
OF SALE IN FAVOR OF THE APPELLEES, GRACIANO LUCERO,
ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN,
EXECUTED BY THE APPELLEE, AVELINA A. MAGNO,
COVERING PARCELS OF LAND OWNED BY THE DECEASED,
CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL
COVERING WHICH WERE EXECUTED BY HIM DURING HIS
LIFETIME.
XLIV to XLVI
THE LOWER COURT ERRED IN APPROVING THE FINAL DEED
OF SALE IN FAVOR OF THE APPELLEES, GRACIANO LUCERO,
ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN,
PURSUANT TO CONTRACTS TO SELL EXECUTED BY THEM
WITH THE DECEASED, CHARLES NEWTON HODGES, THE
TERMS AND CONDITIONS OF WHICH THEY HAVE NEVER
COMPLIED WITH.
XLVII to XLIX
THE LOWER COURT ERRED IN DEPRIVING THE DECEASED,
CHARLES NEWTON HODGES, OF HIS RIGHT, EXERCISED
THROUGH HIS ADMINISTRATION, THE INSTANT APPELLANT,
TO CANCEL THE CONTRACTS TO SELL OF THE APPELLEES,
GRACIANO LUCERO, ARITEO THOMAS JAMIR AND
MELQUIADES BATISANAN, AND IN DETERMINING THE
RIGHTS OF THE SAID APPELLEES OVER REAL PROPERTY
WHILE ACTING AS A PROBATE COURT.
L
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS
OF SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING,
EXECUTED BY THE APPELLEE, AVELINA A. MAGNO,
COVERING PARCELS OF LAND OWNED BY THE DECEASED,
CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL
COVERING WHICH WERE EXECUTED BY HIM DURING HIS
LIFETIME.
LI
THE LOWER COURT ERRED IN APPROVING THE DEEDS OF
SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING,
ALTHOUGH HE WAS IN ARREARS IN THE PAYMENTS AGREED
UPON IN THE ORIGINAL CONTRACT TO SELL WHICH HE
EXECUTED WITH THE DECEASED, CHARLES NEWTON
HODGES, IN THE AMOUNT OF P2,337.50.
LII
THE LOWER COURT ERRED IN APPROVING THE DEED OF
SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING,
ALTHOUGH THE SAME WAS NOT EXECUTED IN ACCORDANCE
WITH THE RULES OF COURT.
LIII to LXI
THE LOWER COURT ERRED IN ORDERING THE APPELLANT,
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK TO
SURRENDER THE OWNER'S DUPLICATE CERTIFICATES OF
TITLE OVER THE RESPECTIVE LOTS COVERED BY THE DEEDS
OF SALE EXECUTED BY THE APPELLEE, AVELINA A. MAGNO,
IN FAVOR OF THE OTHER APPELLEES, JOSE PABLICO,
ALFREDO CATEDRAL, SALVADOR S. GUZMAN, FLRENIA
BARRIDO, PURIFICACION CORONADO, BELCESAR CAUSING,
ARITEO THOMAS JAMIR, MAXIMA BATISANAN AND
GRACIANO L. LUCERO.
LXII
THE LOWER COURT ERRED IN RESOLVING THE MOTION OF
THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY,
DATED NOVEMBER 3, 1965, WITHOUT ANY COPY THEREOF
HAVING BEEN SERVED UPON THE APPELLANT, PHILIPPINE
COMMERCIAL & INDUSTRIAL BANK.
LXIII
THE LOWER COURT ERRED IN HEARING AND CONSIDERING
THE MOTION OF THE APPELLEE, WESTERN INSTITUTE OF
TECHNOLOGY, DATED NOVEMBER 3rd, 1965, ON NOVEMBER
23, 1965, WHEN THE NOTICE FOR THE HEARING THEREOF
WAS FOR NOVEMBER 20, 1965.
LXIV
THE LOWER COURT ERRED IN GRANTING THE APPELLEE,
WESTERN INSTITUTE OF TECHNOLOGY A RELIEF OTHER
THAN THAT PRAYED FOR IN ITS MOTION, DATED NOVEMBER
3, 1965, IN THE ABSENCE OF A PRAYER FOR GENERAL RELIEF
CONTAINED THEREIN.
LXV
THE LOWER COURT ERRED IN ALLOWING THE APPELLEE,
WESTERN INSTITUTE OF TECHNOLOGY, TO CONTINUE
PAYMENTS UPON A CONTRACT TO SELL THE TERMS AND
CONDITIONS OF WHICH IT HAS FAILED TO FULFILL.
LXVI
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF
THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY OVER
THE REAL PROPERTY SUBJECT MATTER OF THE CONTRACT
TO SELL IT EXECUTED WITH THE DECEASED, CHARLES
NEWTON HODGES, WHILE ACTING AS A PROBATE COURT.
LXVII
LOWER COURT ERRED IN ALLOWING THE CONTINUATION OF
PAYMENTS BY THE APPELLEE, WESTERN INSTITUTE OF
TECHNOLOGY, UPON A CONTRACT TO SELL EXECUTED BY IT
AND THE DECEASED, CHARLES NEWTON HODGES, TO A
PERSON OTHER THAN HIS LAWFULLY APPOINTED
ADMINISTRATOR.
LXVIII
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF
RETAINER'S FEES FROM THE SUPPOSED ESTATE OF THE
DECEASED, LINNIE JANE HODGES, WHEN THERE IS NEITHER
SUCH ESTATE NOR ASSETS THEREOF.
LXIX
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF
RETAINER'S FEES OF LAWYERS OF ALLEGED HEIRS TO THE
SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES.
LXX
THE LOWER COURT ERRED IN IMPLEMENTING THE ALLEGED
AGREEMENT BETWEEN THE HEIRS OF THE SUPPOSED
ESTATE OF THE DECEASED, LINNIE JANE HODGES, AND
THEIR LAWYERS.
LXXI
THE LOWER COURT ERRED IN ORDERING THE PREMATURE
DISTRIBUTION OF ESTATE ASSETS TO ALLEGED HEIRS OR
BENEFICIARIES THEREOF, BY WAY OF RETAINER'S FEES.
LXXII
THE LOWER COURT ERRED IN ORDERING THAT ALL FINAL
DEEDS OF SALE EXECUTED PURSUANT TO CONTRACTS TO
SELL ENTERED INTO BY THE DECEASED, CHARLES NEWTON
HODGES, DURING HIS LIFETIME, BE SIGNED JOINTLY BY THE
APPELLEE, AVELINA A. MAGNO, AND THE APPELLANT,
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, AND NOT
BY THE LATTER ONLY AS THE LAWFULLY APPOINTED
ADMINISTRATOR OF HIS ESTATE.
LXXIII
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF
LEGAL EXPENSES FROM THE SUPPOSED ESTATE OF THE
DECEASED, LINNIE JANE HODGES, WHEN THERE IS NEITHER
SUCH ESTATE NOR ASSETS THEREOF.
LXXIV
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF
LEGAL EXPENSES OF LAWYERS OF ALLEGED HEIRS TO THE
SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES.
LXXV
THE LOWER COURT ERRED IN ORDERING THE PREMATURE
DISTRIBUTION OF ESTATE ASSETS TO ALLEGED HEIRS OR
BENEFICIARIES THEREOF, BY WAY OF LEGAL EXPENSES.
LXXVI
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF
COMPENSATION TO THE PURPORTED ADMINISTRATRIX OF
THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE
HODGES, THE INSTANT APPELLEE, AVELINA A. MAGNO,
WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS
THEREOF.
LXXVII
THE LOWER COURT ERRED IN ORDERING THAT THE FUNDS
OF THE TESTATE ESTATE OF THE DECEASED, CHARLES
NEWTON HODGES, BE PLACED IN A JOINT ACCOUNT OF THE
APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL
BANK, AND THE APPELLEE, AVELINA A. MAGNO, WHO IS A
COMPLETE STRANGER TO THE AFORESAID ESTATE.
LXXVIII
THE LOWER COURT ERRED IN ORDERING THAT THE
APPELLEE, AVELINA A. MAGNO, BE GIVEN EQUAL ACCESS TO
THE RECORDS OF THE TESTATE ESTATE OF THE DECEASED,
CHARLES NEWTON HODGES, WHEN SHE IS A COMPLETE
STRANGER TO THE AFORESAID ESTATE. (Pp. 73-83,
Appellant's Brief.)
To complete this rather elaborate, and unavoidably extended narration of the
factual setting of these cases, it may also be mentioned that an attempt was
made by the heirs of Mrs. Hodges to have respondent Magno removed as
administratrix, with the proposed appointment of Benito J. Lopez in her place,
and that respondent court did actually order such proposed replacement, but
the Court declared the said order of respondent court violative of its injunction
of August 8, 1967, hence without force and effect (see Resolution of September
8, 1972 and February 1, 1973). Subsequently, Atty. Efrain B. Trenas, one of the
lawyers of said heirs, appeared no longer for the proposed administrator Lopez
but for the heirs themselves, and in a motion dated October 26, 1972 informed
the Court that a motion had been filed with respondent court for the removal of
petitioner PCIB as administrator of the estate of C. N. Hodges in Special
Proceedings 1672, which removal motion alleged that 22.968149% of the share
of C. N. Hodges had already been acquired by the heirs of Mrs. Hodges from
certain heirs of her husband. Further, in this connection, in the answer of PCIB
to the motion of respondent Magno to have it declared in contempt for
disregarding the Court's resolution of September 8, 1972 modifying the
injunction of August 8, 1967, said petitioner annexed thereto a joint
manifestation and motion, appearing to have been filed with respondent court,
informing said court that in addition to the fact that 22% of the share of C. N.
Hodges had already been bought by the heirs of Mrs. Hodges, as already stated,
certain other heirs of Hodges representing 17.343750% of his estate were
joining cause with the heirs of Mrs. Hodges as against PCIB, thereby making
somewhat precarious, if not possibly untenable, petitioners' continuation as
administrator of the Hodges estate.
RESOLUTION OF ISSUES IN THE CERTIORARI AND
PROHIBITION CASES
I
As to the Alleged Tardiness
of the Present Appeals
The priority question raised by respondent Magno relates to the alleged
tardiness of all the aforementioned thirty-three appeals of PCIB. Considering,
however, that these appeals revolve around practically the same main issues
and that it is admitted that some of them have been timely taken, and,
moreover, their final results hereinbelow to be stated and explained make it of
no consequence whether or not the orders concerned have become final by the
lapsing of the respective periods to appeal them, We do not deem it necessary to
pass upon the timeliness of any of said appeals.
II
The Propriety Here of Certiorari and
Prohibition instead of Appeal
The other preliminary point of the same respondent is alleged impropriety of
the special civil action of certiorari and prohibition in view of the existence of
the remedy of appeal which it claims is proven by the very appeals now before
Us. Such contention fails to take into account that there is a common thread
among the basic issues involved in all these thirty-three appeals which, unless
resolved in one single proceeding, will inevitably cause the proliferation of
more or less similar or closely related incidents and consequent eventual
appeals. If for this consideration alone, and without taking account anymore of
the unnecessary additional effort, expense and time which would be involved in
as many individual appeals as the number of such incidents, it is logical and
proper to hold, as We do hold, that the remedy of appeal is not adequate in the
present cases. In determining whether or not a special civil action of certiorari
or prohibition may be resorted to in lieu of appeal, in instances wherein lack or
excess of jurisdiction or grave abuse of discretion is alleged, it is not enough that
the remedy of appeal exists or is possible. It is indispensable that taking all the
relevant circumstances of the given case, appeal would better serve the
interests of justice. Obviously, the longer delay, augmented expense and trouble
and unnecessary repetition of the same work attendant to the present multiple
appeals, which, after all, deal with practically the same basic issues that can be
more expeditiously resolved or determined in a single special civil action, make
the remedies of certiorari and prohibition, pursued by petitioner, preferable, for
purposes of resolving the common basic issues raised in all of them, despite the
conceded availability of appeal. Besides, the settling of such common
fundamental issues would naturally minimize the areas of conflict between the
parties and render more simple the determination of the secondary issues in
each of them. Accordingly, respondent Magno's objection to the present remedy
of certiorari and prohibition must be overruled.
We come now to the errors assigned by petitioner-appellant, Philippine
Commercial & Industrial Bank, (PCIB, for short) in the petition as well as in its
main brief as appellant.
III
On Whether or Not There is Still Any Part of the Testate
Estate Mrs. Hodges that may be Adjudicated to her brothers
and sisters as her estate, of which respondent Magno is the
unquestioned Administratrix in special Proceedings 1307.
In the petition, it is the position of PCIB that the respondent court exceeded its
jurisdiction or gravely abused its discretion in further recognizing after
December 14, 1957 the existence of the Testate Estate of Linnie Jane Hodges
and in sanctioning purported acts of administration therein of respondent
Magno. Main ground for such posture is that by the aforequoted order of
respondent court of said date, Hodges was already allowed to assert and
exercise all his rights as universal heir of his wife pursuant to the provisions of
her will, quoted earlier, hence, nothing else remains to be done in Special
Proceedings 1307 except to formally close it. In other words, the contention of
PCIB is that in view of said order, nothing more than a formal declaration of
Hodges as sole and exclusive heir of his wife and the consequent formal
unqualified adjudication to him of all her estate remain to be done to completely
close Special Proceedings 1307, hence respondent Magno should be considered
as having ceased to be Administratrix of the Testate Estate of Mrs. Hodges since
then.
After carefully going over the record, We feel constrained to hold that such pose
is patently untenable from whatever angle it is examined.
To start with, We cannot find anywhere in respondent Order of December 14,
1957 the sense being read into it by PCIB. The tenor of said order bears no
suggestion at all to such effect. The declaration of heirs and distribution by the
probate court of the estate of a decedent is its most important function, and this
Court is not disposed to encourage judges of probate proceedings to be less
than definite, plain and specific in making orders in such regard, if for no other
reason than that all parties concerned, like the heirs, the creditors, and most of
all the government, the devisees and legatees, should know with certainty what
are and when their respective rights and obligations ensuing from the
inheritance or in relation thereto would begin or cease, as the case may be,
thereby avoiding precisely the legal complications and consequent litigations
similar to those that have developed unnecessarily in the present cases. While it
is true that in instances wherein all the parties interested in the estate of a
deceased person have already actually distributed among themselves their
respective shares therein to the satisfaction of everyone concerned and no
rights of creditors or third parties are adversely affected, it would naturally be
almost ministerial for the court to issue the final order of declaration and
distribution, still it is inconceivable that the special proceeding instituted for the
purpose may be considered terminated, the respective rights of all the parties
concerned be deemed definitely settled, and the executor or administrator
thereof be regarded as automatically discharged and relieved already of all
functions and responsibilities without the corresponding definite orders of the
probate court to such effect.
Indeed, the law on the matter is specific, categorical and unequivocal. Section 1
of Rule 90 provides:
SECTION 1. When order for distribution of residue made.
When the debts, funeral charges, and expenses of
administration, the allowance to the widow and inheritance
tax, if any, chargeable to the estate in accordance with law have
been paid, the court, on the application of the executor or
administrator, or of a person interested in the estate, and after
hearing upon notice, shall assign the residue of the estate to
the persons entitled to the same, naming them and the
proportions, or parts, to which each is entitled, and such
persons may demand and recover their respective shares from
the executor or administrator, or any other person having the
same in his possession. If there is a controversy before the
court as to who are the lawful heirs of the deceased person or
as to the distributive shares to which each person is entitled
under the law, the controversy shall be heard and decided as in
ordinary cases.
No distribution shall be allowed until the payment of the
obligations above mentioned has been made or provided for,
unless the distributees, or any of them give a bond, in a sum to
be fixed by the court, conditioned for the payment of said
obligations within such time as the court directs.
These provisions cannot mean anything less than that in order that a
proceeding for the settlement of the estate of a deceased may be deemed ready
for final closure, (1) there should have been issued already an order of
distribution or assignment of the estate of the decedent among or to those
entitled thereto by will or by law, but (2) such order shall not be issued until
after it is shown that the "debts, funeral expenses, expenses of administration,
allowances, taxes, etc. chargeable to the estate" have been paid, which is but
logical and proper. (3) Besides, such an order is usually issued upon proper and
specific application for the purpose of the interested party or parties, and not of
the court.
... it is only after, and not before, the payment of all debts,
funeral charges, expenses of administration, allowance to the
widow, and inheritance tax shall have been effected that the
court should make a declaration of heirs or of such persons as
are entitled by law to the residue. (Moran, Comments on the
Rules of Court, 2nd ed., Vol. II, p. 397, citing Capistrano vs.
Nadurata, 49 Phil., 726; Lopez vs. Lopez, 37 Off. Gaz., 3091.)
(JIMOGA-ON v. BELMONTE, 84 Phil. 545, 548) (p. 86,
Appellee's Brief)
xxx xxx xxx
Under Section 753 of the Code of Civil Procedure,
(corresponding to Section 1, Rule 90) what brings an intestate
(or testate) proceeding to a close is the order of distribution
directing delivery of the residue to the persons entitled thereto
after paying the indebtedness, if any, left by the deceased.
(Santiesteban vs. Santiesteban, 68 Phil. 367, 370.)
In the cases at bar, We cannot discern from the voluminous and varied facts,
pleadings and orders before Us that the above indispensable prerequisites for
the declaration of heirs and the adjudication of the estate of Mrs. Hodges had
already been complied with when the order of December 14, 1957 was issued.
As already stated, We are not persuaded that the proceedings leading to the
issuance of said order, constituting barely of the motion of May 27, 1957, Annex
D of the petition, the order of even date, Annex E, and the motion of December
11, 1957, Annex H, all aforequoted, are what the law contemplates. We cannot
see in the order of December 14, 1957, so much relied upon by the petitioner,
anything more than an explicit approval of "all the sales, conveyances, leases
and mortgages of all the properties left by the deceased Linnie Jane Hodges
executed by the Executor Charles N. Hodges" (after the death of his wife and
prior to the date of the motion), plus a general advance authorization to enable
said "Executor to execute subsequent sales, conveyances, leases and
mortgages of the properties left the said deceased Linnie Jane Hodges in
consonance with wishes conveyed in the last will and testament of the latter",
which, certainly, cannot amount to the order of adjudication of the estate of the
decedent to Hodges contemplated in the law. In fact, the motion of December
11, 1957 on which the court predicated the order in question did not pray for
any such adjudication at all. What is more, although said motion did allege that
"herein Executor (Hodges) is not only part owner of the properties left as
conjugal, but also, the successor to all the properties left by the deceased Linnie
Jane Hodges", it significantly added that "herein Executor, as Legatee (sic), has
the right to sell, convey, lease or dispose of the properties in the Philippines
during his lifetime", thereby indicating that what said motion contemplated was
nothing more than either the enjoyment by Hodges of his rights under the
particular portion of the dispositions of his wife's will which were to be
operative only during his lifetime or the use of his own share of the conjugal
estate, pending the termination of the proceedings. In other words, the
authority referred to in said motions and orders is in the nature of that
contemplated either in Section 2 of Rule 109 which permits, in appropriate
cases, advance or partial implementation of the terms of a duly probated will
before final adjudication or distribution when the rights of third parties would
not be adversely affected thereby or in the established practice of allowing the
surviving spouse to dispose of his own share of he conjugal estate, pending its
final liquidation, when it appears that no creditors of the conjugal partnership
would be prejudiced thereby, (see the Revised Rules of Court by Francisco, Vol.
V-B, 1970 ed. p. 887) albeit, from the tenor of said motions, We are more
inclined to believe that Hodges meant to refer to the former. In any event, We
are fully persuaded that the quoted allegations of said motions read together
cannot be construed as a repudiation of the rights unequivocally established in
the will in favor of Mrs. Hodges' brothers and sisters to whatever have not been
disposed of by him up to his death.
Indeed, nowhere in the record does it appear that the trial court subsequently
acted upon the premise suggested by petitioner. On the contrary, on November
23, 1965, when the court resolved the motion of appellee Western Institute of
Technology by its order We have quoted earlier, it categorically held that as of
said date, November 23, 1965, "in both cases (Special Proceedings 1307 and
1672) there is as yet no judicial declaration of heirs nor distribution of
properties to whomsoever are entitled thereto." In this connection, it may be
stated further against petitioner, by way of some kind of estoppel, that in its
own motion of January 8, 1965, already quoted in full on pages 54-67 of this
decision, it prayed inter alia that the court declare that "C. N. Hodges was the
sole and exclusive heir of the estate of Linnie Jane Hodges", which it would not
have done if it were really convinced that the order of December 14, 1957 was
already the order of adjudication and distribution of her estate. That said
motion was later withdrawn when Magno filed her own motion for
determination and adjudication of what should correspond to the brothers and
sisters of Mrs. Hodges does not alter the indubitable implication of the prayer of
the withdrawn motion.
It must be borne in mind that while it is true that Mrs. Hodges bequeathed her
whole estate to her husband and gave him what amounts to full powers of
dominion over the same during his lifetime, she imposed at the same time the
condition that whatever should remain thereof upon his death should go to her
brothers and sisters. In effect, therefore, what was absolutely given to Hodges
was only so much of his wife's estate as he might possibly dispose of during his
lifetime; hence, even assuming that by the allegations in his motion, he did
intend to adjudicate the whole estate to himself, as suggested by petitioner,
such unilateral act could not have affected or diminished in any degree or
manner the right of his brothers and sisters-in-law over what would remain
thereof upon his death, for surely, no one can rightly contend that the
testamentary provision in question allowed him to so adjudicate any part of the
estate to himself as to prejudice them. In other words, irrespective of whatever
might have been Hodges' intention in his motions, as Executor, of May 27, 1957
and December 11, 1957, the trial court's orders granting said motions, even in
the terms in which they have been worded, could not have had the effect of an
absolute and unconditional adjudication unto Hodges of the whole estate of his
wife. None of them could have deprived his brothers and sisters-in-law of their
rights under said will. And it may be added here that the fact that no one
appeared to oppose the motions in question may only be attributed, firstly, to
the failure of Hodges to send notices to any of them, as admitted in the motion
itself, and, secondly, to the fact that even if they had been notified, they could
not have taken said motions to be for the final distribution and adjudication of
the estate, but merely for him to be able, pending such final distribution and
adjudication, to either exercise during his lifetime rights of dominion over his
wife's estate in accordance with the bequest in his favor, which, as already
observed, may be allowed under the broad terms of Section 2 of Rule 109, or
make use of his own share of the conjugal estate. In any event, We do not
believe that the trial court could have acted in the sense pretended by
petitioner, not only because of the clear language of the will but also because
none of the interested parties had been duly notified of the motion and hearing
thereof. Stated differently, if the orders of May 27, 1957 and December 4, 1957
were really intended to be read in the sense contended by petitioner, We would
have no hesitancy in declaring them null and void.
Petitioner cites the case of Austria vs. Ventenilla, G. R. No. L-10018, September
19, 1956, (unreported but a partial digest thereof appears in 99 Phil. 1069) in
support of its insistence that with the orders of May 27 and December 14, 1957,
the closure of Mrs. Hodges' estate has become a mere formality, inasmuch as
said orders amounted to the order of adjudication and distribution ordained by
Section 1 of Rule 90. But the parallel attempted to be drawn between that case
and the present one does not hold. There the trial court had in fact issued a
clear, distinct and express order of adjudication and distribution more than
twenty years before the other heirs of the deceased filed their motion asking
that the administratrix be removed, etc. As quoted in that decision, the order of
the lower court in that respect read as follows:
En orden a la mocion de la administradora, el juzgado la
encuentra procedente bajo la condicion de que no se hara
entrega ni adjudicacion de los bienes a los herederos antes de
que estos presten la fianza correspondiente y de acuerdo con
lo prescrito en el Art. 754 del Codigo de Procedimientos: pues,
en autos no aparece que hayan sido nombrados comisionados
de avaluo y reclamaciones. Dicha fianza podra ser por un valor
igual al de los bienes que correspondan a cada heredero segun
el testamento. Creo que no es obice para la terminacion del
expediente el hecho de que la administradora no ha
presentado hasta ahora el inventario de los bienes; pues, segun
la ley, estan exentos de esta formalidad os administradores que
son legatarios del residuo o remanente de los bienes y hayan
prestado fianza para responder de las gestiones de su cargo, y
aparece en el testamento que la administradora Alejandra
Austria reune dicha condicion.
POR TODO LO EXPUESTO, el juzgado declara, 1.o: no haber
lugar a la mocion de Ramon Ventenilla y otros; 2.o, declara
asimismo que los unicos herederos del finado Antonio
Ventenilla son su esposa Alejandra Austria, Maria Ventenilla,
hermana del testador, y Ramon Ventenilla, Maria Ventenilla,
Ramon Soriano, Eulalio Soriano, Jose Soriano, Gabriela
Ventenilla, Lorenzo Ventenilla, Felicitas Ventenilla, Eugenio
Ventenilla y Alejandra Ventenilla, en representacion de los
difuntos Juan, Tomas, Catalino y Froilan, hermanos del
testador, declarando, ademas que la heredera Alejandra
Austria tiene derecho al remanente de todos los bienes dejados
por el finado, despues de deducir de ellos la porcion que
corresponde a cada uno de sus coherederos, conforme esta
mandado en las clausulas 8.a, 9.a, 10.a, 11.a, 12.a y 13.a del
testamento; 3.o, se aprueba el pago hecho por la
administradora de los gastos de la ultima enfermedad y
funerales del testador, de la donacion hecha por el testador a
favor de la Escuela a Publica del Municipio de Mangatarem, y
de las misas en sufragio del alma del finado; 4.o, que una vez
prestada la fianza mencionada al principio de este auto, se haga
la entrega y adjudicacion de los bienes, conforme se dispone en
el testamento y se acaba de declarar en este auto; 5.o, y,
finalmente, que verificada la adjudicacion, se dara por
terminada la administracion, revelandole toda responsabilidad
a la administradora, y cancelando su fianza.
ASI SE ORDENA.
Undoubtedly, after the issuance of an order of such tenor, the closure of any
proceedings for the settlement of the estate of a deceased person cannot be but
perfunctory.
In the case at bar, as already pointed out above, the two orders relied upon by
petitioner do not appear ex-facie to be of the same tenor and nature as the order
just quoted, and, what is more, the circumstances attendant to its issuance do
not suggest that such was the intention of the court, for nothing could have been
more violative of the will of Mrs. Hodges.
Indeed, to infer from Hodges' said motions and from his statements of accounts
for the years 1958, 1959 and 1960, A Annexes I, K and M, respectively, wherein
he repeatedly claimed that "herein executor (being) the only devisee or legatee
of the deceased, in accordance with the last will and testament already
probated," there is "no (other) person interested in the Philippines of the time
and place of examining herein account to be given notice", an intent to
adjudicate unto himself the whole of his wife's estate in an absolute manner and
without regard to the contingent interests of her brothers and sisters, is to
impute bad faith to him, an imputation which is not legally permissible, much
less warranted by the facts of record herein. Hodges knew or ought to have
known that, legally speaking, the terms of his wife's will did not give him such a
right. Factually, there are enough circumstances extant in the records of these
cases indicating that he had no such intention to ignore the rights of his co-
heirs. In his very motions in question, Hodges alleged, thru counsel, that the
"deceased Linnie Jane Hodges died leaving no descendants and ascendants,
except brothers and sisters and herein petitioner, as surviving spouse, to inherit
the properties of the decedent", and even promised that "proper accounting will
be had in all these transactions" which he had submitted for approval and
authorization by the court, thereby implying that he was aware of his
responsibilities vis-a-vis his co-heirs. As alleged by respondent Magno in her
brief as appellee:
Under date of April 14, 1959, C. N. Hodges filed his first
"Account by the Executor" of the estate of Linnie Jane Hodges.
In the "Statement of Networth of Mr. C. N. Hodges and the
Estate of Linnie Jane Hodges" as of December 31, 1958
annexed thereto, C. N. Hodges reported that the combined
conjugal estate earned a net income of P328,402.62, divided
evenly between him and the estate of Linnie Jane Hodges.
Pursuant to this, he filed an "individual income tax return" for
calendar year 1958 on the estate of Linnie Jane Hodges
reporting, under oath, the said estate as having earned income
of P164,201.31, exactly one-half of the net income of his
combined personal assets and that of the estate of Linnie Jane
Hodges. (p. 91, Appellee's Brief.)
Under date of July 21, 1960, C. N. Hodges filed his second
"Annual Statement of Account by the Executor" of the estate of
Linnie Jane Hodges. In the "Statement of Networth of Mr. C. N.
Hodges and the Estate of Linnie Jane Hodges" as of December
31, 1959 annexed thereto, C. N. Hodges reported that the
combined conjugal estate earned a net income of P270,623.32,
divided evenly between him and the estate of Linnie Jane
Hodges. Pursuant to this, he filed an "individual income tax
return" for calendar year 1959 on the estate of Linnie Jane
Hodges reporting, under oath, the said estate as having earned
income of P135,311.66, exactly one-half of the net income of
his combined personal assets and that of the estate of Linnie
Jane Hodges. (pp. 91-92, id.)
Under date of April 20, 1961, C. N. Hodges filed his third
"Annual Statement of Account by the Executor for the year
1960" of the estate of Linnie Jane Hodges. In the "Statement of
Net Worth of Mr. C. N. Hodges and the Estate of Linnie Jane
Hodges" as of December 31, 1960 annexed thereto, C. N.
Hodges reported that the combined conjugal estate earned a
net income of P314,857.94, divided of Linnie Jane Hodges.
Pursuant to this, he filed an "individual evenly between him
and the estate income tax return" for calendar year 1960 on
the estate of Linnie Jane Hodges reporting, under oath, the said
estate as having earned income of P157,428.97, exactly one-
half of the net income of his combined personal assets and that
of the estate of Linnie Jane Hodges. (pp. 92-93, id.)
In the petition for probate that he (Hodges) filed, he listed the
seven brothers and sisters of Linnie Jane as her "heirs" (see p.
2, Green ROA). The order of the court admitting the will to
probate unfortunately omitted one of the heirs, Roy Higdon
(see p. 14, Green ROA). Immediately, C. N. Hodges filed a
verified motion to have Roy Higdon's name included as an heir,
stating that he wanted to straighten the records "in order
(that) the heirs of deceased Roy Higdon may not think or
believe they were omitted, and that they were really and are
interested in the estate of deceased Linnie Jane Hodges".
Thus, he recognized, if in his own way, the separate identity of his wife's estate
from his own share of the conjugal partnership up to the time of his death, more
than five years after that of his wife. He never considered the whole estate as a
single one belonging exclusively to himself. The only conclusion one can gather
from this is that he could have been preparing the basis for the eventual
transmission of his wife's estate, or, at least, so much thereof as he would not
have been able to dispose of during his lifetime, to her brothers and sisters in
accordance with her expressed desire, as intimated in his tax return in the
United States to be more extensively referred to anon. And assuming that he did
pay the corresponding estate and inheritance taxes in the Philippines on the
basis of his being sole heir, such payment is not necessarily inconsistent with
his recognition of the rights of his co-heirs. Without purporting to rule definitely
on the matter in these proceedings, We might say here that We are inclined to
the view that under the peculiar provisions of his wife's will, and for purposes
of the applicable inheritance tax laws, Hodges had to be considered as her sole
heir, pending the actual transmission of the remaining portion of her estate to
her other heirs, upon the eventuality of his death, and whatever adjustment
might be warranted should there be any such remainder then is a matter that
could well be taken care of by the internal revenue authorities in due time.
It is to be noted that the lawyer, Atty. Leon P. Gellada, who signed the motions of
May 27, 1957 and December 11, 1957 and the aforementioned statements of
account was the very same one who also subsequently signed and filed the
motion of December 26, 1962 for the appointment of respondent Magno as
"Administratrix of the Estate of Mrs. Linnie Jane Hodges" wherein it was alleged
that "in accordance with the provisions of the last will and testament of Linnie
Jane Hodges, whatever real properties that may remain at the death of her
husband, Charles Newton Hodges, the said properties shall be equally divided
among their heirs." And it appearing that said attorney was Hodges' lawyer as
Executor of the estate of his wife, it stands to reason that his understanding of
the situation, implicit in his allegations just quoted, could somehow be reflective
of Hodges' own understanding thereof.
As a matter of fact, the allegations in the motion of the same Atty. Gellada dated
July 1, 1957, a "Request for Inclusion of the Name of Roy Higdon in the Order of
the Court dated July 19, 1957, etc.", reference to which is made in the above
quotation from respondent Magno's brief, are over the oath of Hodges himself,
who verified the motion. Said allegations read:
1. That the Hon. Court issued orders dated June 29, 1957,
ordering the probate of the will.
2. That in said order of the Hon. Court, the relatives of the
deceased Linnie Jane Hodges were enumerated. However, in
the petition as well as in the testimony of Executor during the
hearing, the name Roy Higdon was mentioned, but deceased. It
was unintentionally omitted the heirs of said Roy Higdon who
are his wife Aline Higdon and son David Higdon, all of age, and
residents of Quinlan, Texas, U.S.A.
3. That to straighten the records, and in order the heirs of
deceased Roy Higdon may not think or believe they were omitted,
and that they were really and are interested in the estate of
deceased Linnie Jane Hodges, it is requested of the Hon. Court to
insert the names of Aline Higdon and David Higdon, wife and
son of deceased Roy Higdon in the said order of the Hon. Court
dated June 29, 1957. (pars. 1 to 3, Annex 2 of Magno's Answer
Record, p. 260)
As can be seen, these italicized allegations indicate, more or less, the real
attitude of Hodges in regard to the testamentary dispositions of his wife.
In connection with this point of Hodges' intent, We note that there are
documents, copies of which are annexed to respondent Magno's answer, which
purportedly contain Hodges' own solemn declarations recognizing the right of
his co-heirs, such as the alleged tax return he filed with the United States
Taxation authorities, identified as Schedule M, (Annex 4 of her answer) and his
supposed affidavit of renunciation, Annex 5. In said Schedule M, Hodges appears
to have answered the pertinent question thus:
2a. Had the surviving spouse the right to declare an election
between (1) the provisions made in his or her favor by the will
and (11) dower, curtesy or a statutory interest? (X) Yes ( ) No
2d. Does the surviving spouse contemplate renouncing the will
and electing to take dower, curtesy, or a statutory interest? (X)
Yes ( ) No
3. According to the information and belief of the person or
persons filing the return, is any action described under
question 1 designed or contemplated? ( ) Yes (X) No (Annex 4,
Answer Record, p. 263)
and to have further stated under the item, "Description of property interests
passing to surviving spouse" the following:
None, except for purposes of administering the Estate, paying
debts, taxes and other legal charges. It is the intention of the
surviving husband of deceased to distribute the remaining
property and interests of the deceased in their Community Estate
to the devisees and legatees named in the will when the debts,
liabilities, taxes and expenses of administration are finally
determined and paid. (Annex 4, Answer Record, p. 263)
In addition, in the supposed affidavit of Hodges, Annex 5, it is stated:
I, C. N. Hodges, being duly sworn, on oath affirm that at the
time the United States Estate Tax Return was filed in the Estate
of Linnie Jane Hodges on August 8, 1958, I renounced and
disclaimed any and all right to receive the rents, emoluments
and income from said estate, as shown by the statement
contained in Schedule M at page 29 of said return, a copy of
which schedule is attached to this affidavit and made a part
hereof.
The purpose of this affidavit is to ratify and confirm, and I do
hereby ratify and confirm, the declaration made in Schedule M of
said return and hereby formally disclaim and renounce any
right on my part to receive any of the said rents, emoluments
and income from the estate of my deceased wife, Linnie Jane
Hodges. This affidavit is made to absolve me or my estate from
any liability for the payment of income taxes on income which
has accrued to the estate of Linnie Jane Hodges since the death
of the said Linnie Jane Hodges on May 23, 1957. (Annex 5,
Answer Record, p. 264)
Although it appears that said documents were not duly presented as evidence in
the court below, and We cannot, therefore, rely on them for the purpose of the
present proceedings, still, We cannot close our eyes to their existence in the
record nor fail to note that their tenor jibes with Our conclusion discussed
above from the circumstances related to the orders of May 27 and December 14,
1957. 5 Somehow, these documents, considering they are supposed to be copies
of their originals found in the official files of the governments of the United
States and of the Philippines, serve to lessen any possible apprehension that
Our conclusion from the other evidence of Hodges' manifest intent vis-a-vis the
rights of his co-heirs is without basis in fact.
Verily, with such eloquent manifestations of his good intentions towards the
other heirs of his wife, We find it very hard to believe that Hodges did ask the
court and that the latter agreed that he be declared her sole heir and that her
whole estate be adjudicated to him without so much as just annotating the
contingent interest of her brothers and sisters in what would remain thereof
upon his demise. On the contrary, it seems to us more factual and fairer to
assume that Hodges was well aware of his position as executor of the will of his
wife and, as such, had in mind the following admonition made by the Court in
Pamittan vs. Lasam, et al., 60 Phil., 908, at pp. 913-914:
Upon the death of Bernarda in September, 1908, said lands
continued to be conjugal property in the hands of the
defendant Lasam. It is provided in article 1418 of the Civil Code
that upon the dissolution of the conjugal partnership, an
inventory shall immediately be made and this court in
construing this provision in connection with section 685 of the
Code of Civil Procedure (prior to its amendment by Act No.
3176 of November 24, 1924) has repeatedly held that in the
event of the death of the wife, the law imposes upon the
husband the duty of liquidating the affairs of the partnership
without delay (desde luego) (Alfonso vs. Natividad, 6 Phil., 240;
Prado vs. Lagera, 7 Phil., 395; De la Rama vs. De la Rama, 7
Phil., 745; Enriquez vs. Victoria, 10 Phil., 10; Amancio vs. Pardo,
13 Phil., 297; Rojas vs. Singson Tongson, 17 Phil., 476;
Sochayseng vs. Trujillo, 31 Phil., 153; Molera vs. Molera, 40
Phil., 566; Nable Jose vs. Nable Jose, 41 Phil., 713.)
In the last mentioned case this court quoted with approval the
case of Leatherwood vs. Arnold (66 Texas, 414, 416, 417), in
which that court discussed the powers of the surviving spouse
in the administration of the community property. Attention
was called to the fact that the surviving husband, in the
management of the conjugal property after the death of the
wife, was a trustee of unique character who is liable for any
fraud committed by him with relation to the property while he
is charged with its administration. In the liquidation of the
conjugal partnership, he had wide powers (as the law stood
prior to Act No. 3176) and the high degree of trust reposed in
him stands out more clearly in view of the fact that he was the
owner of a half interest in his own right of the conjugal estate
which he was charged to administer. He could therefore no
more acquire a title by prescription against those for whom he
was administering the conjugal estate than could a guardian
against his ward or a judicial administrator against the heirs of
estate. Section 38 of Chapter III of the Code of Civil Procedure,
with relation to prescription, provides that "this chapter shall
not apply ... in the case of a continuing and subsisting trust."
The surviving husband in the administration and liquidation of
the conjugal estate occupies the position of a trustee of the
highest order and is not permitted by the law to hold that
estate or any portion thereof adversely to those for whose
benefit the law imposes upon him the duty of administration
and liquidation. No liquidation was ever made by Lasam
hence, the conjugal property which came into his possession
on the death of his wife in September, 1908, still remains
conjugal property, a continuing and subsisting trust. He should
have made a liquidation immediately (desde luego). He cannot
now be permitted to take advantage of his own wrong. One of
the conditions of title by prescription (section 41, Code of Civil
Procedure) is possession "under a claim of title exclusive of
any other right". For a trustee to make such a claim would be a
manifest fraud.
And knowing thus his responsibilities in the premises, We are not convinced
that Hodges arrogated everything unto himself leaving nothing at all to be
inherited by his wife's brothers and sisters.
PCIB insists, however, that to read the orders of May 27 and December 14,
1957, not as adjudicatory, but merely as approving past and authorizing future
dispositions made by Hodges in a wholesale and general manner, would
necessarily render the said orders void for being violative of the provisions of
Rule 89 governing the manner in which such dispositions may be made and
how the authority therefor and approval thereof by the probate court may be
secured. If We sustained such a view, the result would only be that the said
orders should be declared ineffective either way they are understood,
considering We have already seen it is legally impossible to consider them as
adjudicatory. As a matter of fact, however, what surges immediately to the
surface, relative to PCIB's observations based on Rule 89, is that from such point
of view, the supposed irregularity would involve no more than some non-
jurisdictional technicalities of procedure, which have for their evident
fundamental purpose the protection of parties interested in the estate, such as
the heirs, its creditors, particularly the government on account of the taxes due
it; and since it is apparent here that none of such parties are objecting to said
orders or would be prejudiced by the unobservance by the trial court of the
procedure pointed out by PCIB, We find no legal inconvenience in nor
impediment to Our giving sanction to the blanket approval and authority
contained in said orders. This solution is definitely preferable in law and in
equity, for to view said orders in the sense suggested by PCIB would result in
the deprivation of substantive rights to the brothers and sisters of Mrs. Hodges,
whereas reading them the other way will not cause any prejudice to anyone,
and, withal, will give peace of mind and stability of rights to the innocent parties
who relied on them in good faith, in the light of the peculiar pertinent
provisions of the will of said decedent.
Now, the inventory submitted by Hodges on May 12, 1958 referred to the estate
of his wife as consisting of "One-half of all the items designated in the balance
sheet, copy of which is hereto attached and marked as "Annex A"." Although,
regrettably, no copy of said Annex A appears in the records before Us, We take
judicial notice, on the basis of the undisputed facts in these cases, that the same
consists of considerable real and other personal kinds of properties. And since,
according to her will, her husband was to be the sole owner thereof during his
lifetime, with full power and authority to dispose of any of them, provided that
should there be any remainder upon his death, such remainder would go to her
brothers and sisters, and furthermore, there is no pretension, much less any
proof that Hodges had in fact disposed of all of them, and, on the contrary, the
indications are rather to the effect that he had kept them more or less intact, it
cannot truthfully be said that, upon the death of Hodges, there was no more
estate of Mrs. Hodges to speak of. It is Our conclusion, therefore, that properties
do exist which constitute such estate, hence Special Proceedings 1307 should
not yet be closed.
Neither is there basis for holding that respondent Magno has ceased to be the
Administratrix in said proceeding. There is no showing that she has ever been
legally removed as such, the attempt to replace her with Mr. Benito Lopez
without authority from the Court having been expressly held ineffective by Our
resolution of September 8, 1972. Parenthetically, on this last point, PCIB itself is
very emphatic in stressing that it is not questioning said respondent's status as
such administratrix. Indeed, it is not clear that PCIB has any standing to raise
any objection thereto, considering it is a complete stranger insofar as the estate
of Mrs. Hodges is concerned.
It is the contention of PCIB, however, that as things actually stood at the time of
Hodges' death, their conjugal partnership had not yet been liquidated and,
inasmuch as the properties composing the same were thus commingled pro
indiviso and, consequently, the properties pertaining to the estate of each of the
spouses are not yet identifiable, it is PCIB alone, as administrator of the estate of
Hodges, who should administer everything, and all that respondent Magno can
do for the time being is to wait until the properties constituting the remaining
estate of Mrs. Hodges have been duly segregated and delivered to her for her
own administration. Seemingly, PCIB would liken the Testate Estate of Linnie
Jane Hodges to a party having a claim of ownership to some properties included
in the inventory of an administrator of the estate of a decedent, (here that of
Hodges) and who normally has no right to take part in the proceedings pending
the establishment of his right or title; for which as a rule it is required that an
ordinary action should be filed, since the probate court is without jurisdiction to
pass with finality on questions of title between the estate of the deceased, on the
one hand, and a third party or even an heir claiming adversely against the
estate, on the other.
We do not find such contention sufficiently persuasive. As We see it, the
situation obtaining herein cannot be compared with the claim of a third party
the basis of which is alien to the pending probate proceedings. In the present
cases what gave rise to the claim of PCIB of exclusive ownership by the estate of
Hodges over all the properties of the Hodges spouses, including the share of
Mrs. Hodges in the community properties, were the orders of the trial court
issued in the course of the very settlement proceedings themselves, more
specifically, the orders of May 27 and December 14, 1957 so often mentioned
above. In other words, the root of the issue of title between the parties is
something that the court itself has done in the exercise of its probate
jurisdiction. And since in the ultimate analysis, the question of whether or not
all the properties herein involved pertain exclusively to the estate of Hodges
depends on the legal meaning and effect of said orders, the claim that
respondent court has no jurisdiction to take cognizance of and decide the said
issue is incorrect. If it was within the competence of the court to issue the root
orders, why should it not be within its authority to declare their true
significance and intent, to the end that the parties may know whether or not the
estate of Mrs. Hodges had already been adjudicated by the court, upon the
initiative of Hodges, in his favor, to the exclusion of the other heirs of his wife
instituted in her will?
At this point, it bears emphasis again that the main cause of all the present
problems confronting the courts and the parties in these cases was the failure of
Hodges to secure, as executor of his wife's estate, from May, 1957 up to the time
of his death in December, 1962, a period of more than five years, the final
adjudication of her estate and the closure of the proceedings. The record is bare
of any showing that he ever exerted any effort towards the early settlement of
said estate. While, on the one hand, there are enough indications, as already
discuss that he had intentions of leaving intact her share of the conjugal
properties so that it may pass wholly to his co-heirs upon his death, pursuant to
her will, on the other hand, by not terminating the proceedings, his interests in
his own half of the conjugal properties remained commingled pro-indiviso with
those of his co-heirs in the other half. Obviously, such a situation could not be
conducive to ready ascertainment of the portion of the inheritance that should
appertain to his co-heirs upon his death. Having these considerations in mind, it
would be giving a premium for such procrastination and rather unfair to his co-
heirs, if the administrator of his estate were to be given exclusive
administration of all the properties in question, which would necessarily
include the function of promptly liquidating the conjugal partnership, thereby
identifying and segregating without unnecessary loss of time which properties
should be considered as constituting the estate of Mrs. Hodges, the remainder of
which her brothers and sisters are supposed to inherit equally among
themselves.
To be sure, an administrator is not supposed to represent the interests of any
particular party and his acts are deemed to be objectively for the protection of
the rights of everybody concerned with the estate of the decedent, and from this
point of view, it maybe said that even if PCIB were to act alone, there should be
no fear of undue disadvantage to anyone. On the other hand, however, it is
evidently implicit in section 6 of Rule 78 fixing the priority among those to
whom letters of administration should be granted that the criterion in the
selection of the administrator is not his impartiality alone but, more
importantly, the extent of his interest in the estate, so much so that the one
assumed to have greater interest is preferred to another who has less. Taking
both of these considerations into account, inasmuch as, according to Hodges'
own inventory submitted by him as Executor of the estate of his wife, practically
all their properties were conjugal which means that the spouses have equal
shares therein, it is but logical that both estates should be administered jointly
by representatives of both, pending their segregation from each other.
Particularly is such an arrangement warranted because the actuations so far of
PCIB evince a determined, albeit groundless, intent to exclude the other heirs of
Mrs. Hodges from their inheritance. Besides, to allow PCIB, the administrator of
his estate, to perform now what Hodges was duty bound to do as executor is to
violate the spirit, if not the letter, of Section 2 of Rule 78 which expressly
provides that "The executor of an executor shall not, as such, administer the
estate of the first testator." It goes without saying that this provision refers also
to the administrator of an executor like PCIB here.
We are not unmindful of the fact that under Section 2 of Rule 73, "When the
marriage is dissolved by the death of the husband or wife, the community
property shall be inventoried, administered, and liquidated, and the debts
thereof paid, in the testate or intestate proceedings of the deceased spouse. If
both spouses have died, the conjugal partnership shall be liquidated in the
testate or intestate proceedings of either." Indeed, it is true that the last
sentence of this provision allows or permits the conjugal partnership of spouses
who are both deceased to be settled or liquidated in the testate or intestate
proceedings of either, but precisely because said sentence allows or permits
that the liquidation be made in either proceeding, it is a matter of sound judicial
discretion in which one it should be made. After all, the former rule referring to
the administrator of the husband's estate in respect to such liquidation was
done away with by Act 3176, the pertinent provisions of which are now
embodied in the rule just cited.
Thus, it can be seen that at the time of the death of Hodges, there was already
the pending judicial settlement proceeding of the estate of Mrs. Hodges, and,
more importantly, that the former was the executor of the latter's will who had,
as such, failed for more than five years to see to it that the same was terminated
earliest, which was not difficult to do, since from ought that appears in the
record, there were no serious obstacles on the way, the estate not being
indebted and there being no immediate heirs other than Hodges himself. Such
dilatory or indifferent attitude could only spell possible prejudice of his co-
heirs, whose rights to inheritance depend entirely on the existence of any
remainder of Mrs. Hodges' share in the community properties, and who are now
faced with the pose of PCIB that there is no such remainder. Had Hodges
secured as early as possible the settlement of his wife's estate, this problem
would not arisen. All things considered, We are fully convinced that the
interests of justice will be better served by not permitting or allowing PCIB or
any administrator of the estate of Hodges exclusive administration of all the
properties in question. We are of the considered opinion and so hold that what
would be just and proper is for both administrators of the two estates to act
conjointly until after said estates have been segregated from each other.
At this juncture, it may be stated that we are not overlooking the fact that it is
PCIB's contention that, viewed as a substitution, the testamentary disposition in
favor of Mrs. Hodges' brothers and sisters may not be given effect. To a certain
extent, this contention is correct. Indeed, legally speaking, Mrs. Hodges' will
provides neither for a simple or vulgar substitution under Article 859 of the
Civil Code nor for a fideicommissary substitution under Article 863 thereof.
There is no vulgar substitution therein because there is no provision for either
(1) predecease of the testator by the designated heir or (2) refusal or (3)
incapacity of the latter to accept the inheritance, as required by Article 859; and
neither is there a fideicommissary substitution therein because no obligation is
imposed thereby upon Hodges to preserve the estate or any part thereof for
anyone else. But from these premises, it is not correct to jump to the conclusion,
as PCIB does, that the testamentary dispositions in question are therefore
inoperative and invalid.
The error in PCIB's position lies simply in the fact that it views the said
disposition exclusively in the light of substitutions covered by the Civil Code
section on that subject, (Section 3, Chapter 2, Title IV, Book III) when it is
obvious that substitution occurs only when another heir is appointed in a will
"so that he may enter into inheritance in default of the heir originally
instituted," (Article 857, id.) and, in the present case, no such possible default is
contemplated. The brothers and sisters of Mrs. Hodges are not substitutes for
Hodges because, under her will, they are not to inherit what Hodges cannot,
would not or may not inherit, but what he would not dispose of from his
inheritance; rather, therefore, they are also heirs instituted simultaneously with
Hodges, subject, however, to certain conditions, partially resolutory insofar as
Hodges was concerned and correspondingly suspensive with reference to his
brothers and sisters-in-law. It is partially resolutory, since it bequeaths unto
Hodges the whole of her estate to be owned and enjoyed by him as universal
and sole heir with absolute dominion over them
6
only during his lifetime, which
means that while he could completely and absolutely dispose of any portion
thereof inter vivos to anyone other than himself, he was not free to do so mortis
causa, and all his rights to what might remain upon his death would cease
entirely upon the occurrence of that contingency, inasmuch as the right of his
brothers and sisters-in-law to the inheritance, although vested already upon the
death of Mrs. Hodges, would automatically become operative upon the
occurrence of the death of Hodges in the event of actual existence of any
remainder of her estate then.
Contrary to the view of respondent Magno, however, it was not the usufruct
alone of her estate, as contemplated in Article 869 of the Civil Code, that she
bequeathed to Hodges during his lifetime, but the full ownership thereof,
although the same was to last also during his lifetime only, even as there was no
restriction whatsoever against his disposing or conveying the whole or any
portion thereof to anybody other than himself. The Court sees no legal
impediment to this kind of institution, in this jurisdiction or under Philippine
law, except that it cannot apply to the legitime of Hodges as the surviving
spouse, consisting of one-half of the estate, considering that Mrs. Hodges had no
surviving ascendants nor descendants. (Arts. 872, 900, and 904, New Civil
Code.)
But relative precisely to the question of how much of Mrs. Hodges' share of the
conjugal partnership properties may be considered as her estate, the parties are
in disagreement as to how Article 16 of the Civil Code
7
should be applied. On
the one hand, petitioner claims that inasmuch as Mrs. Hodges was a resident of
the Philippines at the time of her death, under said Article 16, construed in
relation to the pertinent laws of Texas and the principle of renvoi, what should
be applied here should be the rules of succession under the Civil Code of the
Philippines, and, therefore, her estate could consist of no more than one-fourth
of the said conjugal properties, the other fourth being, as already explained, the
legitime of her husband (Art. 900, Civil Code) which she could not have
disposed of nor burdened with any condition (Art. 872, Civil Code). On the other
hand, respondent Magno denies that Mrs. Hodges died a resident of the
Philippines, since allegedly she never changed nor intended to change her
original residence of birth in Texas, United States of America, and contends that,
anyway, regardless of the question of her residence, she being indisputably a
citizen of Texas, under said Article 16 of the Civil Code, the distribution of her
estate is subject to the laws of said State which, according to her, do not provide
for any legitime, hence, the brothers and sisters of Mrs. Hodges are entitled to
the remainder of the whole of her share of the conjugal partnership properties
consisting of one-half thereof. Respondent Magno further maintains that, in any
event, Hodges had renounced his rights under the will in favor of his co-heirs, as
allegedly proven by the documents touching on the point already mentioned
earlier, the genuineness and legal significance of which petitioner seemingly
questions. Besides, the parties are disagreed as to what the pertinent laws of
Texas provide. In the interest of settling the estates herein involved soonest, it
would be best, indeed, if these conflicting claims of the parties were determined
in these proceedings. The Court regrets, however, that it cannot do so, for the
simple reason that neither the evidence submitted by the parties in the court
below nor their discussion, in their respective briefs and memoranda before Us,
of their respective contentions on the pertinent legal issues, of grave
importance as they are, appear to Us to be adequate enough to enable Us to
render an intelligent comprehensive and just resolution. For one thing, there is
no clear and reliable proof of what in fact the possibly applicable laws of Texas
are.
7
* Then also, the genuineness of documents relied upon by respondent
Magno is disputed. And there are a number of still other conceivable related
issues which the parties may wish to raise but which it is not proper to mention
here. In Justice, therefore, to all the parties concerned, these and all other
relevant matters should first be threshed out fully in the trial court in the
proceedings hereafter to be held therein for the purpose of ascertaining and
adjudicating and/or distributing the estate of Mrs. Hodges to her heirs in
accordance with her duly probated will.
To be more explicit, all that We can and do decide in connection with the
petition for certiorari and prohibition are: (1) that regardless of which
corresponding laws are applied, whether of the Philippines or of Texas, and
taking for granted either of the respective contentions of the parties as to
provisions of the latter,
8
and regardless also of whether or not it can be proven
by competent evidence that Hodges renounced his inheritance in any degree, it
is easily and definitely discernible from the inventory submitted by Hodges
himself, as Executor of his wife's estate, that there are properties which should
constitute the estate of Mrs. Hodges and ought to be disposed of or distributed
among her heirs pursuant to her will in said Special Proceedings 1307; (2) that,
more specifically, inasmuch as the question of what are the pertinent laws of
Texas applicable to the situation herein is basically one of fact, and, considering
that the sole difference in the positions of the parties as to the effect of said laws
has reference to the supposed legitime of Hodges it being the stand of PCIB
that Hodges had such a legitime whereas Magno claims the negative - it is now
beyond controversy for all future purposes of these proceedings that whatever
be the provisions actually of the laws of Texas applicable hereto, the estate of
Mrs. Hodges is at least, one-fourth of the conjugal estate of the spouses; the
existence and effects of foreign laws being questions of fact, and it being the
position now of PCIB that the estate of Mrs. Hodges, pursuant to the laws of
Texas, should only be one-fourth of the conjugal estate, such contention
constitutes an admission of fact, and consequently, it would be in estoppel in
any further proceedings in these cases to claim that said estate could be less,
irrespective of what might be proven later to be actually the provisions of the
applicable laws of Texas; (3) that Special Proceedings 1307 for the settlement of
the testate estate of Mrs. Hodges cannot be closed at this stage and should
proceed to its logical conclusion, there having been no proper and legal
adjudication or distribution yet of the estate therein involved; and (4) that
respondent Magno remains and continues to be the Administratrix therein.
Hence, nothing in the foregoing opinion is intended to resolve the issues which,
as already stated, are not properly before the Court now, namely, (1) whether
or not Hodges had in fact and in law waived or renounced his inheritance from
Mrs. Hodges, in whole or in part, and (2) assuming there had been no such
waiver, whether or not, by the application of Article 16 of the Civil Code, and in
the light of what might be the applicable laws of Texas on the matter, the estate
of Mrs. Hodges is more than the one-fourth declared above. As a matter of fact,
even our finding above about the existence of properties constituting the estate
of Mrs. Hodges rests largely on a general appraisal of the size and extent of the
conjugal partnership gathered from reference made thereto by both parties in
their briefs as well as in their pleadings included in the records on appeal, and it
should accordingly yield, as to which exactly those properties are, to the more
concrete and specific evidence which the parties are supposed to present in
support of their respective positions in regard to the foregoing main legal and
factual issues. In the interest of justice, the parties should be allowed to present
such further evidence in relation to all these issues in a joint hearing of the two
probate proceedings herein involved. After all, the court a quo has not yet
passed squarely on these issues, and it is best for all concerned that it should do
so in the first instance.
Relative to Our holding above that the estate of Mrs. Hodges cannot be less than
the remainder of one-fourth of the conjugal partnership properties, it may be
mentioned here that during the deliberations, the point was raised as to
whether or not said holding might be inconsistent with Our other ruling here
also that, since there is no reliable evidence as to what are the applicable laws of
Texas, U.S.A. "with respect to the order of succession and to the amount of
successional rights" that may be willed by a testator which, under Article 16 of
the Civil Code, are controlling in the instant cases, in view of the undisputed
Texan nationality of the deceased Mrs. Hodges, these cases should be returned
to the court a quo, so that the parties may prove what said law provides, it is
premature for Us to make any specific ruling now on either the validity of the
testamentary dispositions herein involved or the amount of inheritance to
which the brothers and sisters of Mrs. Hodges are entitled. After nature
reflection, We are of the considered view that, at this stage and in the state of
the records before Us, the feared inconsistency is more apparent than real.
Withal, it no longer lies in the lips of petitioner PCIB to make any claim that
under the laws of Texas, the estate of Mrs. Hodges could in any event be less
than that We have fixed above.
It should be borne in mind that as above-indicated, the question of what are the
laws of Texas governing the matters herein issue is, in the first instance, one of
fact, not of law. Elementary is the rule that foreign laws may not be taken
judicial notice of and have to be proven like any other fact in dispute between
the parties in any proceeding, with the rare exception in instances when the
said laws are already within the actual knowledge of the court, such as when
they are well and generally known or they have been actually ruled upon in
other cases before it and none of the parties concerned do not claim otherwise.
(5 Moran, Comments on the Rules of Court, p. 41, 1970 ed.) In Fluemer vs. Hix,
54 Phil. 610, it was held:
It is the theory of the petitioner that the alleged will was executed in Elkins
West Virginia, on November 3, 1925, by Hix who had his residence in that
jurisdiction, and that the laws of West Virginia govern. To this end, there was
submitted a copy of section 3868 of Acts 1882, c. 84 as found in West Virginia
Code, Annotated, by Hogg Charles E., vol. 2, 1914, p. 1960, and as certified to by
the Director of the National Library. But this was far from a compliance with the
law. The laws of a foreign jurisdiction do not prove themselves in our courts.
The courts of the Philippine Islands are not authorized to take judicial notice of
the laws of the various States of the American Union. Such laws must be proved
as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of
the law were not met. There was no showing that the book from which an
extract was taken was printed or published under the authority of the State of
West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor
was the extract from the law attested by the certificate of the officer having
charge of the original, under the seal of the State of West Virginia, as provided in
section 301 of the Code of Civil Procedure. No evidence was introduced to show
that the extract from the laws of West Virginia was in force at the time the
alleged will was executed."
No evidence of the nature thus suggested by the Court may be found in the
records of the cases at bar. Quite to the contrary, the parties herein have
presented opposing versions in their respective pleadings and memoranda
regarding the matter. And even if We took into account that in Aznar vs. Garcia,
the Court did make reference to certain provisions regarding succession in the
laws of Texas, the disparity in the material dates of that case and the present
ones would not permit Us to indulge in the hazardous conjecture that said
provisions have not been amended or changed in the meantime.
On the other hand, in In re Estate of Johnson, 39 Phil. 156, We held:
Upon the other point as to whether the will was executed in
conformity with the statutes of the State of Illinois we note
that it does not affirmatively appear from the transcription of
the testimony adduced in the trial court that any witness was
examined with reference to the law of Illinois on the subject of
the execution of will. The trial judge no doubt was satisfied that
the will was properly executed by examining section 1874 of
the Revised Statutes of Illinois, as exhibited in volume 3 of
Starr & Curtis's Annotated Illinois Statutes, 2nd ed., p. 426; and
he may have assumed that he could take judicial notice of the
laws of Illinois under section 275 of the Code of Civil
Procedure. If so, he was in our opinion mistaken. That section
authorizes the courts here to take judicial notice, among other
things, of the acts of the legislative department of the United
States. These words clearly have reference to Acts of the
Congress of the United States; and we would hesitate to hold
that our courts can, under this provision, take judicial notice of
the multifarious laws of the various American States. Nor do
we think that any such authority can be derived from the
broader language, used in the same section, where it is said
that our courts may take judicial notice of matters of public
knowledge "similar" to those therein enumerated. The proper
rule we think is to require proof of the statutes of the States of
the American Union whenever their provisions are
determinative of the issues in any action litigated in the
Philippine courts.
Nevertheless, even supposing that the trial court may have
erred in taking judicial notice of the law of Illinois on the point
in question, such error is not now available to the petitioner,
first, because the petition does not state any fact from which it
would appear that the law of Illinois is different from what the
court found, and, secondly, because the assignment of error
and argument for the appellant in this court raises no question
based on such supposed error. Though the trial court may have
acted upon pure conjecture as to the law prevailing in the State
of Illinois, its judgment could not be set aside, even upon
application made within six months under section 113 of the
Code of Civil Procedure, unless it should be made to appear
affirmatively that the conjecture was wrong. The petitioner, it
is true, states in general terms that the will in question is
invalid and inadequate to pass real and personal property in
the State of Illinois, but this is merely a conclusion of law. The
affidavits by which the petition is accompanied contain no
reference to the subject, and we are cited to no authority in the
appellant's brief which might tend to raise a doubt as to the
correctness of the conclusion of the trial court. It is very clear,
therefore, that this point cannot be urged as of serious
moment.
It is implicit in the above ruling that when, with respect to certain aspects of the
foreign laws concerned, the parties in a given case do not have any controversy
or are more or less in agreement, the Court may take it for granted for the
purposes of the particular case before it that the said laws are as such virtual
agreement indicates, without the need of requiring the presentation of what
otherwise would be the competent evidence on the point. Thus, in the instant
cases wherein it results from the respective contentions of both parties that
even if the pertinent laws of Texas were known and to be applied, the amount of
the inheritance pertaining to the heirs of Mrs. Hodges is as We have fixed above,
the absence of evidence to the effect that, actually and in fact, under said laws, it
could be otherwise is of no longer of any consequence, unless the purpose is to
show that it could be more. In other words, since PCIB, the petitioner-appellant,
concedes that upon application of Article 16 of the Civil Code and the pertinent
laws of Texas, the amount of the estate in controversy is just as We have
determined it to be, and respondent-appellee is only claiming, on her part, that
it could be more, PCIB may not now or later pretend differently.
To be more concrete, on pages 20-21 of its petition herein, dated July 31, 1967,
PCIB states categorically:
Inasmuch as Article 16 of the Civil Code provides that
"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", while the law of Texas (the Hodges
spouses being nationals of U.S.A., State of Texas), in its conflicts
of law rules, provides that the domiciliary law (in this case
Philippine law) governs the testamentary dispositions and
successional rights over movables or personal properties,
while the law of the situs (in this case also Philippine law with
respect to all Hodges properties located in the Philippines),
governs with respect to immovable properties, and applying
therefore the 'renvoi doctrine' as enunciated and applied by
this Honorable Court in the case of In re Estate of Christensen
(G.R. No. L-16749, Jan. 31, 1963), there can be no question that
Philippine law governs the testamentary dispositions
contained in the Last Will and Testament of the deceased
Linnie Jane Hodges, as well as the successional rights to her
estate, both with respect to movables, as well as to immovables
situated in the Philippines.
In its main brief dated February 26, 1968, PCIB asserts:
The law governing successional rights.
As recited above, there is no question that the deceased, Linnie
Jane Hodges, was an American citizen. There is also no
question that she was a national of the State of Texas, U.S.A.
Again, there is likewise no question that she had her domicile
of choice in the City of Iloilo, Philippines, as this has already
been pronounced by the above-cited orders of the lower court,
pronouncements which are by now res adjudicata (par. [a], See.
49, Rule 39, Rules of Court; In re Estate of Johnson, 39 Phil.
156).
Article 16 of the Civil Code provides:
"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 wherein
said property may be found."
Thus the aforecited provision of the Civil Code points towards
the national law of the deceased, Linnie Jane Hodges, which is
the law of Texas, as governing succession "both with respect to
the order of succession and to the amount of successional
rights and to the intrinsic validity of testamentary provisions
...". But the law of Texas, in its conflicts of law rules, provides
that the domiciliary law governs the testamentary dispositions
and successional rights over movables or personal property,
while the law of the situs governs with respect to immovable
property. Such that with respect to both movable property, as
well as immovable property situated in the Philippines, the law
of Texas points to the law of the Philippines.
Applying, therefore, the so-called "renvoi doctrine", as
enunciated and applied by this Honorable Court in the case of
"In re Christensen" (G.R. No. L-16749, Jan. 31, 1963), there can
be no question that Philippine law governs the testamentary
provisions in the Last Will and Testament of the deceased
Linnie Jane Hodges, as well as the successional rights to her
estate, both with respect to movables, as well as immovables
situated in the Philippines.
The subject of successional rights.
Under Philippine law, as it is under the law of Texas, the
conjugal or community property of the spouses, Charles
Newton Hodges and Linnie Jane Hodges, upon the death of the
latter, is to be divided into two, one-half pertaining to each of
the spouses, as his or her own property. Thus, upon the death
of Linnie Jane Hodges, one-half of the conjugal partnership
property immediately pertained to Charles Newton Hodges as
his own share, and not by virtue of any successional rights.
There can be no question about this.
Again, Philippine law, or more specifically, Article 900 of the
Civil Code provides:
If the only survivor is the widow or widower,
she or he shall be entitled to one-half of the
hereditary estate of the deceased spouse, and
the testator may freely dispose of the other
half.
If the marriage between the surviving spouse
and the testator was solemnized in articulo
mortis, and the testator died within three
months from the time of the marriage, the
legitime of the surviving spouse as the sole
heir shall be one-third of the hereditary
estate, except when they have been living as
husband and wife for more than five years. In
the latter case, the legitime of the surviving
spouse shall be that specified in the preceding
paragraph.
This legitime of the surviving spouse cannot be burdened by a
fideicommisary substitution (Art. 864, Civil code), nor by any
charge, condition, or substitution (Art, 872, Civil code). It is
clear, therefore, that in addition to one-half of the conjugal
partnership property as his own conjugal share, Charles
Newton Hodges was also immediately entitled to one-half of
the half conjugal share of the deceased, Linnie Jane Hodges, or
one-fourth of the entire conjugal property, as his legitime.
One-fourth of the conjugal property therefore remains at issue.
In the summary of its arguments in its memorandum dated April 30, 1968, the
following appears:
Briefly, the position advanced by the petitioner is:
a. That the Hodges spouses were domiciled legally in the
Philippines (pp. 19-20, petition). This is now a matter of res
adjudicata (p. 20, petition).
b. That under Philippine law, Texas law, and the renvoi
doctrine, Philippine law governs the successional rights over
the properties left by the deceased, Linnie Jane Hodges (pp. 20-
21, petition).
c. That under Philippine as well as Texas law, one-half of the
Hodges properties pertains to the deceased, Charles Newton
Hodges (p. 21, petition). This is not questioned by the
respondents.
d. That under Philippine law, the deceased, Charles Newton
Hodges, automatically inherited one-half of the remaining one-
half of the Hodges properties as his legitime (p. 21, petition).
e. That the remaining 25% of the Hodges properties was
inherited by the deceased, Charles Newton Hodges, under the
will of his deceased spouse (pp. 22-23, petition). Upon the
death of Charles Newton Hodges, the substitution 'provision of
the will of the deceased, Linnie Jane Hodges, did not operate
because the same is void (pp. 23-25, petition).
f. That the deceased, Charles Newton Hodges, asserted his sole
ownership of the Hodges properties and the probate court
sanctioned such assertion (pp. 25-29, petition). He in fact
assumed such ownership and such was the status of the
properties as of the time of his death (pp. 29-34, petition).
Of similar tenor are the allegations of PCIB in some of its pleadings quoted in
the earlier part of this option.
On her part, it is respondent-appellee Magno's posture that under the laws of
Texas, there is no system of legitime, hence the estate of Mrs. Hodges should be
one-half of all the conjugal properties.
It is thus unquestionable that as far as PCIB is concerned, the application to
these cases of Article 16 of the Civil Code in relation to the corresponding laws
of Texas would result in that the Philippine laws on succession should control.
On that basis, as We have already explained above, the estate of Mrs. Hodges is
the remainder of one-fourth of the conjugal partnership properties, considering
that We have found that there is no legal impediment to the kind of disposition
ordered by Mrs. Hodges in her will in favor of her brothers and sisters and,
further, that the contention of PCIB that the same constitutes an inoperative
testamentary substitution is untenable. As will be recalled, PCIB's position that
there is no such estate of Mrs. Hodges is predicated exclusively on two
propositions, namely: (1) that the provision in question in Mrs. Hodges'
testament violates the rules on substitution of heirs under the Civil Code and (2)
that, in any event, by the orders of the trial court of May 27, and December 14,
1957, the trial court had already finally and irrevocably adjudicated to her
husband the whole free portion of her estate to the exclusion of her brothers
and sisters, both of which poses, We have overruled. Nowhere in its pleadings,
briefs and memoranda does PCIB maintain that the application of the laws of
Texas would result in the other heirs of Mrs. Hodges not inheriting anything
under her will. And since PCIB's representations in regard to the laws of Texas
virtually constitute admissions of fact which the other parties and the Court are
being made to rely and act upon, PCIB is "not permitted to contradict them or
subsequently take a position contradictory to or inconsistent with them." (5
Moran, id, p. 65, citing Cunanan vs. Amparo, 80 Phil. 227; Sta. Ana vs. Maliwat, L-
23023, Aug. 31, 1968, 24 SCRA 1018).
Accordingly, the only question that remains to be settled in the further
proceedings hereby ordered to be held in the court below is how much more
than as fixed above is the estate of Mrs. Hodges, and this would depend on (1)
whether or not the applicable laws of Texas do provide in effect for more, such
as, when there is no legitime provided therein, and (2) whether or not Hodges
has validly waived his whole inheritance from Mrs. Hodges.
In the course of the deliberations, it was brought out by some members of the
Court that to avoid or, at least, minimize further protracted legal controversies
between the respective heirs of the Hodges spouses, it is imperative to elucidate
on the possible consequences of dispositions made by Hodges after the death of
his wife from the mass of the unpartitioned estates without any express
indication in the pertinent documents as to whether his intention is to dispose
of part of his inheritance from his wife or part of his own share of the conjugal
estate as well as of those made by PCIB after the death of Hodges. After a long
discussion, the consensus arrived at was as follows: (1) any such dispositions
made gratuitously in favor of third parties, whether these be individuals,
corporations or foundations, shall be considered as intended to be of properties
constituting part of Hodges' inheritance from his wife, it appearing from the
tenor of his motions of May 27 and December 11, 1957 that in asking for
general authority to make sales or other disposals of properties under the
jurisdiction of the court, which include his own share of the conjugal estate, he
was not invoking particularly his right over his own share, but rather his right
to dispose of any part of his inheritance pursuant to the will of his wife; (2) as
regards sales, exchanges or other remunerative transfers, the proceeds of such
sales or the properties taken in by virtue of such exchanges, shall be considered
as merely the products of "physical changes" of the properties of her estate
which the will expressly authorizes Hodges to make, provided that whatever of
said products should remain with the estate at the time of the death of Hodges
should go to her brothers and sisters; (3) the dispositions made by PCIB after
the death of Hodges must naturally be deemed as covering only the properties
belonging to his estate considering that being only the administrator of the
estate of Hodges, PCIB could not have disposed of properties belonging to the
estate of his wife. Neither could such dispositions be considered as involving
conjugal properties, for the simple reason that the conjugal partnership
automatically ceased when Mrs. Hodges died, and by the peculiar provision of
her will, under discussion, the remainder of her share descended also
automatically upon the death of Hodges to her brothers and sisters, thus outside
of the scope of PCIB's administration. Accordingly, these construction of the will
of Mrs. Hodges should be adhered to by the trial court in its final order of
adjudication and distribution and/or partition of the two estates in question.
THE APPEALS
A cursory examination of the seventy-eight assignments of error in appellant
PCIB's brief would readily reveal that all of them are predicated mainly on the
contention that inasmuch as Hodges had already adjudicated unto himself all
the properties constituting his wife's share of the conjugal partnership,
allegedly with the sanction of the trial court per its order of December 14, 1957,
there has been, since said date, no longer any estate of Mrs. Hodges of which
appellee Magno could be administratrix, hence the various assailed orders
sanctioning her actuations as such are not in accordance with law. Such being
the case, with the foregoing resolution holding such posture to be untenable in
fact and in law and that it is in the best interest of justice that for the time being
the two estates should be administered conjointly by the respective
administrators of the two estates, it should follow that said assignments of error
have lost their fundamental reasons for being. There are certain matters,
however, relating peculiarly to the respective orders in question, if commonly
among some of them, which need further clarification. For instance, some of
them authorized respondent Magno to act alone or without concurrence of
PCIB. And with respect to many of said orders, PCIB further claims that either
the matters involved were not properly within the probate jurisdiction of the
trial court or that the procedure followed was not in accordance with the rules.
Hence, the necessity of dealing separately with the merits of each of the appeals.
Indeed, inasmuch as the said two estates have until now remained commingled
pro-indiviso, due to the failure of Hodges and the lower court to liquidate the
conjugal partnership, to recognize appellee Magno as Administratrix of the
Testate Estate of Mrs. Hodges which is still unsegregated from that of Hodges is
not to say, without any qualification, that she was therefore authorized to do
and perform all her acts complained of in these appeals, sanctioned though they
might have been by the trial court. As a matter of fact, it is such commingling
pro-indiviso of the two estates that should deprive appellee of freedom to act
independently from PCIB, as administrator of the estate of Hodges, just as, for
the same reason, the latter should not have authority to act independently from
her. And considering that the lower court failed to adhere consistently to this
basic point of view, by allowing the two administrators to act independently of
each other, in the various instances already noted in the narration of facts
above, the Court has to look into the attendant circumstances of each of the
appealed orders to be able to determine whether any of them has to be set aside
or they may all be legally maintained notwithstanding the failure of the court a
quo to observe the pertinent procedural technicalities, to the end only that
graver injury to the substantive rights of the parties concerned and unnecessary
and undesirable proliferation of incidents in the subject proceedings may be
forestalled. In other words, We have to determine, whether or not, in the light of
the unusual circumstances extant in the record, there is need to be more
pragmatic and to adopt a rather unorthodox approach, so as to cause the least
disturbance in rights already being exercised by numerous innocent third
parties, even if to do so may not appear to be strictly in accordance with the
letter of the applicable purely adjective rules.
Incidentally, it may be mentioned, at this point, that it was principally on
account of the confusion that might result later from PCIB's continuing to
administer all the community properties, notwithstanding the certainty of the
existence of the separate estate of Mrs. Hodges, and to enable both estates to
function in the meantime with a relative degree of regularity, that the Court
ordered in the resolution of September 8, 1972 the modification of the
injunction issued pursuant to the resolutions of August 8, October 4 and
December 6, 1967, by virtue of which respondent Magno was completely barred
from any participation in the administration of the properties herein involved.
In the September 8 resolution, We ordered that, pending this decision, Special
Proceedings 1307 and 1672 should proceed jointly and that the respective
administrators therein "act conjointly none of them to act singly and
independently of each other for any purpose." Upon mature deliberation, We
felt that to allow PCIB to continue managing or administering all the said
properties to the exclusion of the administratrix of Mrs. Hodges' estate might
place the heirs of Hodges at an unduly advantageous position which could result
in considerable, if not irreparable, damage or injury to the other parties
concerned. It is indeed to be regretted that apparently, up to this date, more
than a year after said resolution, the same has not been given due regard, as
may be gleaned from the fact that recently, respondent Magno has filed in these
proceedings a motion to declare PCIB in contempt for alleged failure to abide
therewith, notwithstanding that its repeated motions for reconsideration
thereof have all been denied soon after they were filed.
9

Going back to the appeals, it is perhaps best to begin first with what appears to
Our mind to be the simplest, and then proceed to the more complicated ones in
that order, without regard to the numerical sequence of the assignments of
error in appellant's brief or to the order of the discussion thereof by counsel.
Assignments of error numbers
LXXII, LXXVII and LXXVIII.
These assignments of error relate to (1) the order of the trial court of August 6,
1965 providing that "the deeds of sale (therein referred to involving properties
in the name of Hodges) should be signed jointly by the PCIB, as Administrator of
Testate Estate of C.N. Hodges, and Avelina A. Magno, as Administratrix of the
Testate Estate of Linnie Jane Hodges, and to this effect, the PCIB should take the
necessary steps so that Administratrix Avelina A. Magno could sign the deeds of
sale," (p. 248, Green Rec. on Appeal) (2) the order of October 27, 1965 denying
the motion for reconsideration of the foregoing order, (pp. 276-277, id.) (3) the
other order also dated October 27, 1965 enjoining inter alia, that "(a) all cash
collections should be deposited in the joint account of the estate of Linnie Jane
Hodges and estate of C. N. Hodges, (b) that whatever cash collections (that) had
been deposited in the account of either of the estates should be withdrawn and
since then (sic) deposited in the joint account of the estate of Linnie Jane
Hodges and the estate of C. N. Hodges; ... (d) (that) Administratrix Magno
allow the PCIB to inspect whatever records, documents and papers she may
have in her possession, in the same manner that Administrator PCIB is also
directed to allow Administratrix Magno to inspect whatever records, documents
and papers it may have in its possession" and "(e) that the accountant of the
estate of Linnie Jane Hodges shall have access to all records of the transactions
of both estates for the protection of the estate of Linnie Jane Hodges; and in like
manner, the accountant or any authorized representative of the estate of C. N.
Hodges shall have access to the records of transactions of the Linnie Jane
Hodges estate for the protection of the estate of C. N. Hodges", (pp. 292-295, id.)
and (4) the order of February 15, 1966, denying, among others, the motion for
reconsideration of the order of October 27, 1965 last referred to. (pp. 455-456,
id.)
As may be readily seen, the thrust of all these four impugned orders is in line
with the Court's above-mentioned resolution of September 8, 1972 modifying
the injunction previously issued on August 8, 1967, and, more importantly, with
what We have said the trial court should have always done pending the
liquidation of the conjugal partnership of the Hodges spouses. In fact, as already
stated, that is the arrangement We are ordering, by this decision, to be followed.
Stated differently, since the questioned orders provide for joint action by the
two administrators, and that is precisely what We are holding out to have been
done and should be done until the two estates are separated from each other,
the said orders must be affirmed. Accordingly the foregoing assignments of
error must be, as they are hereby overruled.
Assignments of error Numbers LXVIII
to LXXI and LXXIII to LXXVI.
The orders complained of under these assignments of error commonly deal
with expenditures made by appellee Magno, as Administratrix of the Estate of
Mrs. Hodges, in connection with her administration thereof, albeit additionally,
assignments of error Numbers LXIX to LXXI put into question the payment of
attorneys fees provided for in the contract for the purpose, as constituting, in
effect, premature advances to the heirs of Mrs. Hodges.
More specifically, assignment Number LXXIII refers to reimbursement of
overtime pay paid to six employees of the court and three other persons for
services in copying the court records to enable the lawyers of the
administration to be fully informed of all the incidents in the proceedings. The
reimbursement was approved as proper legal expenses of administration per
the order of December 19, 1964, (pp. 221-222, id.) and repeated motions for
reconsideration thereof were denied by the orders of January 9, 1965, (pp. 231-
232, id.) October 27, 1965, (p. 277, id.) and February 15, 1966. (pp. 455-456, id.)
On the other hand, Assignments Numbers LXVIII to LXXI, LXXIV and LXXV
question the trial court's order of November 3, 1965 approving the agreement
of June 6, 1964 between Administratrix Magno and James L. Sullivan, attorney-
in-fact of the heirs of Mrs. Hodges, as Parties of the First Part, and Attorneys
Raul Manglapus and Rizal R. Quimpo, as Parties of the Second Part, regarding
attorneys fees for said counsel who had agreed "to prosecute and defend their
interests (of the Parties of the First Part) in certain cases now pending litigation
in the Court of First Instance of Iloilo , more specifically in Special
Proceedings 1307 and 1672 " (pp. 126-129, id.) and directing Administratrix
Magno "to issue and sign whatever check or checks maybe needed to implement
the approval of the agreement annexed to the motion" as well as the
"administrator of the estate of C. N. Hodges to countersign the said check or
checks as the case maybe." (pp. 313-320, id.), reconsideration of which order of
approval was denied in the order of February 16, 1966, (p. 456, id.) Assignment
Number LXXVI imputes error to the lower court's order of October 27, 1965,
already referred to above, insofar as it orders that "PCIB should counter sign the
check in the amount of P250 in favor of Administratrix Avelina A. Magno as her
compensation as administratrix of Linnie Jane Hodges estate chargeable to the
Testate Estate of Linnie Jane Hodges only." (p. 294, id.)
Main contention again of appellant PCIB in regard to these eight assigned errors
is that there is no such estate as the estate of Mrs. Hodges for which the
questioned expenditures were made, hence what were authorized were in effect
expenditures from the estate of Hodges. As We have already demonstrated in
Our resolution above of the petition for certiorari and prohibition, this posture
is incorrect. Indeed, in whichever way the remaining issues between the parties
in these cases are ultimately resolved,
10
the final result will surely be that there
are properties constituting the estate of Mrs. Hodges of which Magno is the
current administratrix. It follows, therefore, that said appellee had the right, as
such administratrix, to hire the persons whom she paid overtime pay and to be
paid for her own services as administratrix. That she has not yet collected and is
not collecting amounts as substantial as that paid to or due appellant PCIB is to
her credit.
Of course, she is also entitled to the services of counsel and to that end had the
authority to enter into contracts for attorney's fees in the manner she had done
in the agreement of June 6, 1964. And as regards to the reasonableness of the
amount therein stipulated, We see no reason to disturb the discretion exercised
by the probate court in determining the same. We have gone over the
agreement, and considering the obvious size of the estate in question and the
nature of the issues between the parties as well as the professional standing of
counsel, We cannot say that the fees agreed upon require the exercise by the
Court of its inherent power to reduce it.
PCIB insists, however, that said agreement of June 6, 1964 is not for legal
services to the estate but to the heirs of Mrs. Hodges, or, at most, to both of
them, and such being the case, any payment under it, insofar as counsels'
services would redound to the benefit of the heirs, would be in the nature of
advances to such heirs and a premature distribution of the estate. Again, We
hold that such posture cannot prevail.
Upon the premise We have found plausible that there is an existing estate of
Mrs. Hodges, it results that juridically and factually the interests involved in her
estate are distinct and different from those involved in her estate of Hodges and
vice versa. Insofar as the matters related exclusively to the estate of Mrs.
Hodges, PCIB, as administrator of the estate of Hodges, is a complete stranger
and it is without personality to question the actuations of the administratrix
thereof regarding matters not affecting the estate of Hodges. Actually,
considering the obviously considerable size of the estate of Mrs. Hodges, We see
no possible cause for apprehension that when the two estates are segregated
from each other, the amount of attorney's fees stipulated in the agreement in
question will prejudice any portion that would correspond to Hodges' estate.
And as regards the other heirs of Mrs. Hodges who ought to be the ones who
should have a say on the attorney's fees and other expenses of administration
assailed by PCIB, suffice it to say that they appear to have been duly
represented in the agreement itself by their attorney-in-fact, James L. Sullivan
and have not otherwise interposed any objection to any of the expenses
incurred by Magno questioned by PCIB in these appeals. As a matter of fact, as
ordered by the trial court, all the expenses in question, including the attorney's
fees, may be paid without awaiting the determination and segregation of the
estate of Mrs. Hodges.
Withal, the weightiest consideration in connection with the point under
discussion is that at this stage of the controversy among the parties herein, the
vital issue refers to the existence or non-existence of the estate of Mrs. Hodges.
In this respect, the interest of respondent Magno, as the appointed
administratrix of the said estate, is to maintain that it exists, which is naturally
common and identical with and inseparable from the interest of the brothers
and sisters of Mrs. Hodges. Thus, it should not be wondered why both Magno
and these heirs have seemingly agreed to retain but one counsel. In fact, such an
arrangement should be more convenient and economical to both. The
possibility of conflict of interest between Magno and the heirs of Mrs. Hodges
would be, at this stage, quite remote and, in any event, rather insubstantial.
Besides, should any substantial conflict of interest between them arise in the
future, the same would be a matter that the probate court can very well take
care of in the course of the independent proceedings in Case No. 1307 after the
corresponding segregation of the two subject estates. We cannot perceive any
cogent reason why, at this stage, the estate and the heirs of Mrs. Hodges cannot
be represented by a common counsel.
Now, as to whether or not the portion of the fees in question that should
correspond to the heirs constitutes premature partial distribution of the estate
of Mrs. Hodges is also a matter in which neither PCIB nor the heirs of Hodges
have any interest. In any event, since, as far as the records show, the estate has
no creditors and the corresponding estate and inheritance taxes, except those of
the brothers and sisters of Mrs. Hodges, have already been paid,
11
no prejudice
can caused to anyone by the comparatively small amount of attorney's fees in
question. And in this connection, it may be added that, although strictly
speaking, the attorney's fees of the counsel of an administrator is in the first
instance his personal responsibility, reimbursable later on by the estate, in the
final analysis, when, as in the situation on hand, the attorney-in-fact of the heirs
has given his conformity thereto, it would be idle effort to inquire whether or
not the sanction given to said fees by the probate court is proper.
For the foregoing reasons, Assignments of Error LXVIII to LXXI and LXXIII to
LXXVI should be as they are hereby overruled.
Assignments of error I to IV,
XIII to XV, XXII to XXV, XXXV
to XXX VI, XLI to XLIII and L.
These assignments of error deal with the approval by the trial court of various
deeds of sale of real properties registered in the name of Hodges but executed
by appellee Magno, as Administratrix of the Estate of Mrs. Hodges, purportedly
in implementation of corresponding supposed written "Contracts to Sell"
previously executed by Hodges during the interim between May 23, 1957, when
his wife died, and December 25, 1962, the day he died. As stated on pp. 118-120
of appellant's main brief, "These are: the, contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Pepito G. Iyulores executed on
February 5, 1961; the contract to sell between the deceased, Charles Newton
Hodges, and the appellant Esperidion Partisala, executed on April 20, 1960; the
contract to sell between the deceased, Charles Newton Hodges, and the
appellee, Winifredo C. Espada, executed on April 18, 1960; the contract to sell
between the deceased, Charles Newton Hodges, and the appellee, Rosario
Alingasa, executed on August 25, 1958; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Lorenzo Carles, executed
on June 17, 1958; the contract to sell between the deceased, Charles Newton
Hodges, and the appellee, Salvador S. Guzman, executed on September 13, 1960;
the contract to sell between the deceased, Charles Newton Hodges, and the
appellee, Florenia Barrido, executed on February 21, 1958; the contract to sell
between the deceased, Charles Newton Hodges, and the appellee, Purificacion
Coronado, executed on August 14, 1961; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Graciano Lucero, executed
on November 27, 1961; the contract to sell between the deceased, Charles
Newton Hodges, and the appellee, Ariteo Thomas Jamir, executed on May 26,
1961; the contract to sell between the deceased, Charles Newton Hodges, and
the appellee, Melquiades Batisanan, executed on June 9, 1959; the contract to
sell between the deceased, Charles Newton Hodges, and the appellee, Belcezar
Causing, executed on February 10, 1959 and the contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Adelfa Premaylon,
executed on October 31, 1959, re Title No. 13815."
Relative to these sales, it is the position of appellant PCIB that, inasmuch as
pursuant to the will of Mrs. Hodges, her husband was to have dominion over all
her estate during his lifetime, it was as absolute owner of the properties
respectively covered by said sales that he executed the aforementioned
contracts to sell, and consequently, upon his death, the implementation of said
contracts may be undertaken only by the administrator of his estate and not by
the administratrix of the estate of Mrs. Hodges. Basically, the same theory is
invoked with particular reference to five other sales, in which the respective
"contracts to sell" in favor of these appellees were executed by Hodges before
the death of his wife, namely, those in favor of appellee Santiago Pacaonsis,
Alfredo Catedral, Jose Pablico, Western Institute of Technology and Adelfa
Premaylon.
Anent those deeds of sale based on promises or contracts to sell executed by
Hodges after the death of his wife, those enumerated in the quotation in the
immediately preceding paragraph, it is quite obvious that PCIB's contention
cannot be sustained. As already explained earlier, 1
1
* all proceeds of
remunerative transfers or dispositions made by Hodges after the death of his
wife should be deemed as continuing to be parts of her estate and, therefore,
subject to the terms of her will in favor of her brothers and sisters, in the sense
that should there be no showing that such proceeds, whether in cash or
property have been subsequently conveyed or assigned subsequently by
Hodges to any third party by acts inter vivos with the result that they could not
thereby belong to him anymore at the time of his death, they automatically
became part of the inheritance of said brothers and sisters. The deeds here in
question involve transactions which are exactly of this nature. Consequently,
the payments made by the appellees should be considered as payments to the
estate of Mrs. Hodges which is to be distributed and partitioned among her
heirs specified in the will.
The five deeds of sale predicated on contracts to sell executed Hodges during
the lifetime of his wife, present a different situation. At first blush, it would
appear that as to them, PCIB's position has some degree of plausibility.
Considering, however, that the adoption of PCIB's theory would necessarily
have tremendous repercussions and would bring about considerable
disturbance of property rights that have somehow accrued already in favor of
innocent third parties, the five purchasers aforenamed, the Court is inclined to
take a pragmatic and practical view of the legal situation involving them by
overlooking the possible technicalities in the way, the non-observance of which
would not, after all, detract materially from what should substantially
correspond to each and all of the parties concerned.
To start with, these contracts can hardly be ignored. Bona fide third parties are
involved; as much as possible, they should not be made to suffer any prejudice
on account of judicial controversies not of their own making. What is more, the
transactions they rely on were submitted by them to the probate court for
approval, and from already known and recorded actuations of said court then,
they had reason to believe that it had authority to act on their motions, since
appellee Magno had, from time to time prior to their transactions with her, been
allowed to act in her capacity as administratrix of one of the subject estates
either alone or conjointly with PCIB. All the sales in question were executed by
Magno in 1966 already, but before that, the court had previously authorized or
otherwise sanctioned expressly many of her act as administratrix involving
expenditures from the estate made by her either conjointly with or
independently from PCIB, as Administrator of the Estate of Hodges. Thus, it may
be said that said buyers-appellees merely followed precedents in previous
orders of the court. Accordingly, unless the impugned orders approving those
sales indubitably suffer from some clearly fatal infirmity the Court would rather
affirm them.
It is quite apparent from the record that the properties covered by said sales are
equivalent only to a fraction of what should constitute the estate of Mrs. Hodges,
even if it is assumed that the same would finally be held to be only one-fourth of
the conjugal properties of the spouses as of the time of her death or, to be more
exact, one-half of her estate as per the inventory submitted by Hodges as
executor, on May 12, 1958. In none of its numerous, varied and voluminous
pleadings, motions and manifestations has PCIB claimed any possibility
otherwise. Such being the case, to avoid any conflict with the heirs of Hodges,
the said properties covered by the questioned deeds of sale executed by
appellee Magno may be treated as among those corresponding to the estate of
Mrs. Hodges, which would have been actually under her control and
administration had Hodges complied with his duty to liquidate the conjugal
partnership. Viewing the situation in that manner, the only ones who could
stand to be prejudiced by the appealed orders referred to in the assignment of
errors under discussion and who could, therefore, have the requisite interest to
question them would be only the heirs of Mrs. Hodges, definitely not PCIB.
It is of no moment in what capacity Hodges made the "contracts to sell' after the
death of his wife. Even if he had acted as executor of the will of his wife, he did
not have to submit those contracts to the court nor follow the provisions of the
rules, (Sections 2, 4, 5, 6, 8 and 9 of Rule 89 quoted by appellant on pp. 125 to
127 of its brief) for the simple reason that by the very orders, much relied upon
by appellant for other purposes, of May 27, 1957 and December 14, 1957,
Hodges was "allowed or authorized" by the trial court "to continue the business
in which he was engaged and to perform acts which he had been doing while
the deceased was living", (Order of May 27) which according to the motion on
which the court acted was "of buying and selling personal and real properties",
and "to execute subsequent sales, conveyances, leases and mortgages of the
properties left by the said deceased Linnie Jane Hodges in consonance with the
wishes conveyed in the last will and testament of the latter." (Order of
December 14) In other words, if Hodges acted then as executor, it can be said
that he had authority to do so by virtue of these blanket orders, and PCIB does
not question the legality of such grant of authority; on the contrary, it is relying
on the terms of the order itself for its main contention in these cases. On the
other hand, if, as PCIB contends, he acted as heir-adjudicatee, the authority
given to him by the aforementioned orders would still suffice.
As can be seen, therefore, it is of no moment whether the "contracts to sell"
upon which the deeds in question were based were executed by Hodges before
or after the death of his wife. In a word, We hold, for the reasons already stated,
that the properties covered by the deeds being assailed pertain or should be
deemed as pertaining to the estate of Mrs. Hodges; hence, any supposed
irregularity attending the actuations of the trial court may be invoked only by
her heirs, not by PCIB, and since the said heirs are not objecting, and the defects
pointed out not being strictly jurisdictional in nature, all things considered,
particularly the unnecessary disturbance of rights already created in favor of
innocent third parties, it is best that the impugned orders are not disturbed.
In view of these considerations, We do not find sufficient merit in the
assignments of error under discussion.
Assignments of error V to VIII,
XVI to XVIII, XXVI to XXIX, XXXVII
to XXXVIII, XLIV to XLVI and LI.
All these assignments of error commonly deal with alleged non-fulfillment by
the respective vendees, appellees herein, of the terms and conditions embodied
in the deeds of sale referred to in the assignments of error just discussed. It is
claimed that some of them never made full payments in accordance with the
respective contracts to sell, while in the cases of the others, like Lorenzo Carles,
Jose Pablico, Alfredo Catedral and Salvador S. Guzman, the contracts with them
had already been unilaterally cancelled by PCIB pursuant to automatic
rescission clauses contained in them, in view of the failure of said buyers to pay
arrearages long overdue. But PCIB's posture is again premised on its
assumption that the properties covered by the deeds in question could not
pertain to the estate of Mrs. Hodges. We have already held above that, it being
evident that a considerable portion of the conjugal properties, much more than
the properties covered by said deeds, would inevitably constitute the estate of
Mrs. Hodges, to avoid unnecessary legal complications, it can be assumed that
said properties form part of such estate. From this point of view, it is apparent
again that the questions, whether or not it was proper for appellee Magno to
have disregarded the cancellations made by PCIB, thereby reviving the rights of
the respective buyers-appellees, and, whether or not the rules governing new
dispositions of properties of the estate were strictly followed, may not be raised
by PCIB but only by the heirs of Mrs. Hodges as the persons designated to
inherit the same, or perhaps the government because of the still unpaid
inheritance taxes. But, again, since there is no pretense that any objections were
raised by said parties or that they would necessarily be prejudiced, the
contentions of PCIB under the instant assignments of error hardly merit any
consideration.
Assignments of error IX to XII, XIX
to XXI, XXX to XXIV, XXXIX to XL,
XLVII to XLIX, LII and LIII to LXI.
PCIB raises under these assignments of error two issues which according to it
are fundamental, namely: (1) that in approving the deeds executed by Magno
pursuant to contracts to sell already cancelled by it in the performance of its
functions as administrator of the estate of Hodges, the trial court deprived the
said estate of the right to invoke such cancellations it (PCIB) had made and (2)
that in so acting, the court "arrogated unto itself, while acting as a probate court,
the power to determine the contending claims of third parties against the estate
of Hodges over real property," since it has in effect determined whether or not
all the terms and conditions of the respective contracts to sell executed by
Hodges in favor of the buyers-appellees concerned were complied with by the
latter. What is worse, in the view of PCIB, is that the court has taken the word of
the appellee Magno, "a total stranger to his estate as determinative of the issue".
Actually, contrary to the stand of PCIB, it is this last point regarding appellee
Magno's having agreed to ignore the cancellations made by PCIB and allowed
the buyers-appellees to consummate the sales in their favor that is decisive.
Since We have already held that the properties covered by the contracts in
question should be deemed to be portions of the estate of Mrs. Hodges and not
that of Hodges, it is PCIB that is a complete stranger in these incidents.
Considering, therefore, that the estate of Mrs. Hodges and her heirs who are the
real parties in interest having the right to oppose the consummation of the
impugned sales are not objecting, and that they are the ones who are precisely
urging that said sales be sanctioned, the assignments of error under discussion
have no basis and must accordingly be as they are hereby overruled.
With particular reference to assignments LIII to LXI, assailing the orders of the
trial court requiring PCIB to surrender the respective owner's duplicate
certificates of title over the properties covered by the sales in question and
otherwise directing the Register of Deeds of Iloilo to cancel said certificates and
to issue new transfer certificates of title in favor of the buyers-appellees, suffice
it to say that in the light of the above discussion, the trial court was within its
rights to so require and direct, PCIB having refused to give way, by withholding
said owners' duplicate certificates, of the corresponding registration of the
transfers duly and legally approved by the court.
Assignments of error LXII to LXVII
All these assignments of error commonly deal with the appeal against orders
favoring appellee Western Institute of Technology. As will be recalled, said
institute is one of the buyers of real property covered by a contract to sell
executed by Hodges prior to the death of his wife. As of October, 1965, it was in
arrears in the total amount of P92,691.00 in the payment of its installments on
account of its purchase, hence it received under date of October 4, 1965 and
October 20, 1965, letters of collection, separately and respectively, from PCIB
and appellee Magno, in their respective capacities as administrators of the
distinct estates of the Hodges spouses, albeit, while in the case of PCIB it made
known that "no other arrangement can be accepted except by paying all your
past due account", on the other hand, Magno merely said she would "appreciate
very much if you can make some remittance to bring this account up-to-date
and to reduce the amount of the obligation." (See pp. 295-311, Green R. on A.)
On November 3, 1965, the Institute filed a motion which, after alleging that it
was ready and willing to pay P20,000 on account of its overdue installments but
uncertain whether it should pay PCIB or Magno, it prayed that it be "allowed to
deposit the aforesaid amount with the court pending resolution of the
conflicting claims of the administrators." Acting on this motion, on November
23, 1965, the trial court issued an order, already quoted in the narration of facts
in this opinion, holding that payment to both or either of the two administrators
is "proper and legal", and so "movant can pay to both estates or either of
them", considering that "in both cases (Special Proceedings 1307 and 1672)
there is as yet no judicial declaration of heirs nor distribution of properties to
whomsoever are entitled thereto."
The arguments under the instant assignments of error revolve around said
order. From the procedural standpoint, it is claimed that PCIB was not served
with a copy of the Institute's motion, that said motion was heard, considered
and resolved on November 23, 1965, whereas the date set for its hearing was
November 20, 1965, and that what the order grants is different from what is
prayed for in the motion. As to the substantive aspect, it is contended that the
matter treated in the motion is beyond the jurisdiction of the probate court and
that the order authorized payment to a person other than the administrator of
the estate of Hodges with whom the Institute had contracted.
The procedural points urged by appellant deserve scant consideration. We must
assume, absent any clear proof to the contrary, that the lower court had acted
regularly by seeing to it that appellant was duly notified. On the other hand,
there is nothing irregular in the court's having resolved the motion three days
after the date set for hearing the same. Moreover, the record reveals that
appellants' motion for reconsideration wherein it raised the same points was
denied by the trial court on March 7, 1966 (p. 462, Green R. on A.) Withal, We
are not convinced that the relief granted is not within the general intent of the
Institute's motion.
Insofar as the substantive issues are concerned, all that need be said at this
point is that they are mere reiterations of contentions We have already resolved
above adversely to appellants' position. Incidentally, We may add, perhaps, to
erase all doubts as to the propriety of not disturbing the lower court's orders
sanctioning the sales questioned in all these appeal s by PCIB, that it is only
when one of the parties to a contract to convey property executed by a deceased
person raises substantial objections to its being implemented by the executor or
administrator of the decedent's estate that Section 8 of Rule 89 may not apply
and, consequently, the matter has, to be taken up in a separate action outside of
the probate court; but where, as in the cases of the sales herein involved, the
interested parties are in agreement that the conveyance be made, it is properly
within the jurisdiction of the probate court to give its sanction thereto pursuant
to the provisions of the rule just mentioned. And with respect to the supposed
automatic rescission clauses contained in the contracts to sell executed by
Hodges in favor of herein appellees, the effect of said clauses depend on the true
nature of the said contracts, despite the nomenclature appearing therein, which
is not controlling, for if they amount to actual contracts of sale instead of being
mere unilateral accepted "promises to sell", (Art. 1479, Civil Code of the
Philippines, 2nd paragraph) the pactum commissorium or the automatic
rescission provision would not operate, as a matter of public policy, unless there
has been a previous notarial or judicial demand by the seller (10 Manresa 263,
2nd ed.) neither of which have been shown to have been made in connection
with the transactions herein involved.
Consequently, We find no merit in the assignments of error
Number LXII to LXVII.
S U M M A R Y
Considering the fact that this decision is unusually extensive and that the issues
herein taken up and resolved are rather numerous and varied, what with
appellant making seventy-eight assignments of error affecting no less than
thirty separate orders of the court a quo, if only to facilitate proper
understanding of the import and extent of our rulings herein contained, it is
perhaps desirable that a brief restatement of the whole situation be made
together with our conclusions in regard to its various factual and legal aspects. .
The instant cases refer to the estate left by the late Charles Newton Hodges as
well as that of his wife, Linnie Jane Hodges, who predeceased him by about five
years and a half. In their respective wills which were executed on different
occasions, each one of them provided mutually as follows: "I give, devise and
bequeath all of the rest, residue and remainder (after funeral and
administration expenses, taxes and debts) of my estate, both real and personal,
wherever situated or located, to my beloved (spouse) to have and to hold unto
(him/her) during (his/her) natural lifetime", subject to the condition that
upon the death of whoever of them survived the other, the remainder of what
he or she would inherit from the other is "give(n), devise(d) and bequeath(ed)"
to the brothers and sisters of the latter.
Mrs. Hodges died first, on May 23, 1957. Four days later, on May 27, Hodges was
appointed special administrator of her estate, and in a separate order of the
same date, he was "allowed or authorized to continue the business in which he
was engaged, (buying and selling personal and real properties) and to perform
acts which he had been doing while the deceased was living." Subsequently, on
December 14, 1957, after Mrs. Hodges' will had been probated and Hodges had
been appointed and had qualified as Executor thereof, upon his motion in which
he asserted that he was "not only part owner of the properties left as conjugal,
but also, the successor to all the properties left by the deceased Linnie Jane
Hodges", the trial court ordered that "for the reasons stated in his motion dated
December 11, 1957, which the Court considers well taken, ... all the sales,
conveyances, leases and mortgages of all properties left by the deceased Linnie
Jane Hodges executed by the Executor, Charles Newton Hodges are hereby
APPROVED. The said Executor is further authorized to execute subsequent
sales, conveyances, leases and mortgages of the properties left by the said
deceased Linnie Jane Hodges in consonance with the wishes contained in the
last will and testament of the latter."
Annually thereafter, Hodges submitted to the court the corresponding
statements of account of his administration, with the particularity that in all his
motions, he always made it point to urge the that "no person interested in the
Philippines of the time and place of examining the herein accounts be given
notice as herein executor is the only devisee or legatee of the deceased in
accordance with the last will and testament already probated by the Honorable
Court." All said accounts approved as prayed for.
Nothing else appears to have been done either by the court a quo or Hodges
until December 25, 1962. Importantly to be the provision in the will of Mrs.
Hodges that her share of the conjugal partnership was to be inherited by her
husband "to have and to hold unto him, my said husband, during his natural
lifetime" and that "at the death of my said husband, I give, devise and bequeath
all the rest, residue and remainder of my estate, both real and personal,
wherever situated or located, to be equally divided among my brothers and
sisters, share and share alike", which provision naturally made it imperative
that the conjugal partnership be promptly liquidated, in order that the "rest,
residue and remainder" of his wife's share thereof, as of the time of Hodges'
own death, may be readily known and identified, no such liquidation was ever
undertaken. The record gives no indication of the reason for such omission,
although relatedly, it appears therein:
1. That in his annual statement submitted to the court of the
net worth of C. N. Hodges and the Estate of Linnie Jane Hodges,
Hodges repeatedly and consistently reported the combined
income of the conjugal partnership and then merely divided
the same equally between himself and the estate of the
deceased wife, and, more importantly, he also, as consistently,
filed corresponding separate income tax returns for each
calendar year for each resulting half of such combined income,
thus reporting that the estate of Mrs. Hodges had its own
income distinct from his own.
2. That when the court a quo happened to inadvertently omit in
its order probating the will of Mrs. Hodges, the name of one of
her brothers, Roy Higdon then already deceased, Hodges lost
no time in asking for the proper correction "in order that the
heirs of deceased Roy Higdon may not think or believe they
were omitted, and that they were really interested in the estate
of the deceased Linnie Jane Hodges".
3. That in his aforementioned motion of December 11, 1957, he
expressly stated that "deceased Linnie Jane Hodges died
leaving no descendants or ascendants except brothers and
sisters and herein petitioner as the surviving spouse, to inherit
the properties of the decedent", thereby indicating that he was
not excluding his wife's brothers and sisters from the
inheritance.
4. That Hodges allegedly made statements and manifestations
to the United States inheritance tax authorities indicating that
he had renounced his inheritance from his wife in favor of her
other heirs, which attitude he is supposed to have reiterated or
ratified in an alleged affidavit subscribed and sworn to here in
the Philippines and in which he even purportedly stated that
his reason for so disclaiming and renouncing his rights under
his wife's will was to "absolve (him) or (his) estate from any
liability for the payment of income taxes on income which has
accrued to the estate of Linnie Jane Hodges", his wife, since her
death.
On said date, December 25, 1962, Hodges died. The very next day, upon motion
of herein respondent and appellee, Avelina A. Magno, she was appointed by the
trial court as Administratrix of the Testate Estate of Linnie Jane Hodges, in
Special Proceedings No. 1307 and as Special Administratrix of the estate of
Charles Newton Hodges, "in the latter case, because the last will of said Charles
Newton Hodges is still kept in his vault or iron safe and that the real and
personal properties of both spouses may be lost, damaged or go to waste, unless
Special Administratrix is appointed," (Order of December 26, 1962, p. 27,
Yellow R. on A.) although, soon enough, on December 29, 1962, a certain Harold
K. Davies was appointed as her Co-Special Administrator, and when Special
Proceedings No. 1672, Testate Estate of Charles Newton Hodges, was opened,
Joe Hodges, as next of kin of the deceased, was in due time appointed as Co-
Administrator of said estate together with Atty. Fernando P. Mirasol, to replace
Magno and Davies, only to be in turn replaced eventually by petitioner PCIB
alone.
At the outset, the two probate proceedings appear to have been proceeding
jointly, with each administrator acting together with the other, under a sort of
modus operandi. PCIB used to secure at the beginning the conformity to and
signature of Magno in transactions it wanted to enter into and submitted the
same to the court for approval as their joint acts. So did Magno do likewise.
Somehow, however, differences seem to have arisen, for which reason, each of
them began acting later on separately and independently of each other, with
apparent sanction of the trial court. Thus, PCIB had its own lawyers whom it
contracted and paid handsomely, conducted the business of the estate
independently of Magno and otherwise acted as if all the properties appearing
in the name of Charles Newton Hodges belonged solely and only to his estate, to
the exclusion of the brothers and sisters of Mrs. Hodges, without considering
whether or not in fact any of said properties corresponded to the portion of the
conjugal partnership pertaining to the estate of Mrs. Hodges. On the other hand,
Magno made her own expenditures, hired her own lawyers, on the premise that
there is such an estate of Mrs. Hodges, and dealth with some of the properties,
appearing in the name of Hodges, on the assumption that they actually
correspond to the estate of Mrs. Hodges. All of these independent and separate
actuations of the two administrators were invariably approved by the trial court
upon submission. Eventually, the differences reached a point wherein Magno,
who was more cognizant than anyone else about the ins and outs of the
businesses and properties of the deceased spouses because of her long and
intimate association with them, made it difficult for PCIB to perform normally
its functions as administrator separately from her. Thus, legal complications
arose and the present judicial controversies came about.
Predicating its position on the tenor of the orders of May 27 and December 14,
1957 as well as the approval by the court a quo of the annual statements of
account of Hodges, PCIB holds to the view that the estate of Mrs. Hodges has
already been in effect closed with the virtual adjudication in the mentioned
orders of her whole estate to Hodges, and that, therefore, Magno had already
ceased since then to have any estate to administer and the brothers and sisters
of Mrs. Hodges have no interests whatsoever in the estate left by Hodges. Mainly
upon such theory, PCIB has come to this Court with a petition for certiorari and
prohibition praying that the lower court's orders allowing respondent Magno to
continue acting as administratrix of the estate of Mrs. Hodges in Special
Proceedings 1307 in the manner she has been doing, as detailed earlier above,
be set aside. Additionally, PCIB maintains that the provision in Mrs. Hodges' will
instituting her brothers and sisters in the manner therein specified is in the
nature of a testamentary substitution, but inasmuch as the purported
substitution is not, in its view, in accordance with the pertinent provisions of
the Civil Code, it is ineffective and may not be enforced. It is further contended
that, in any event, inasmuch as the Hodges spouses were both residents of the
Philippines, following the decision of this Court in Aznar vs. Garcia, or the case
of Christensen, 7 SCRA 95, the estate left by Mrs. Hodges could not be more than
one-half of her share of the conjugal partnership, notwithstanding the fact that
she was citizen of Texas, U.S.A., in accordance with Article 16 in relation to
Articles 900 and 872 of the Civil Code. Initially, We issued a preliminary
injunction against Magno and allowed PCIB to act alone.
At the same time PCIB has appealed several separate orders of the trial court
approving individual acts of appellee Magno in her capacity as administratrix of
the estate of Mrs. Hodges, such as, hiring of lawyers for specified fees and
incurring expenses of administration for different purposes and executing
deeds of sale in favor of her co-appellees covering properties which are still
registered in the name of Hodges, purportedly pursuant to corresponding
"contracts to sell" executed by Hodges. The said orders are being questioned on
jurisdictional and procedural grounds directly or indirectly predicated on the
principal theory of appellant that all the properties of the two estates belong
already to the estate of Hodges exclusively.
On the other hand, respondent-appellee Magno denies that the trial court's
orders of May 27 and December 14, 1957 were meant to be finally adjudicatory
of the hereditary rights of Hodges and contends that they were no more than
the court's general sanction of past and future acts of Hodges as executor of the
will of his wife in due course of administration. As to the point regarding
substitution, her position is that what was given by Mrs. Hodges to her husband
under the provision in question was a lifetime usufruct of her share of the
conjugal partnership, with the naked ownership passing directly to her brothers
and sisters. Anent the application of Article 16 of the Civil Code, she claims that
the applicable law to the will of Mrs. Hodges is that of Texas under which, she
alleges, there is no system of legitime, hence, the estate of Mrs. Hodges cannot
be less than her share or one-half of the conjugal partnership properties. She
further maintains that, in any event, Hodges had as a matter of fact and of law
renounced his inheritance from his wife and, therefore, her whole estate passed
directly to her brothers and sisters effective at the latest upon the death of
Hodges.
In this decision, for the reasons discussed above, and upon the issues just
summarized, We overrule PCIB's contention that the orders of May 27, 1957
and December 14, 1957 amount to an adjudication to Hodges of the estate of his
wife, and We recognize the present existence of the estate of Mrs. Hodges, as
consisting of properties, which, while registered in that name of Hodges, do
actually correspond to the remainder of the share of Mrs. Hodges in the conjugal
partnership, it appearing that pursuant to the pertinent provisions of her will,
any portion of said share still existing and undisposed of by her husband at the
time of his death should go to her brothers and sisters share and share alike.
Factually, We find that the proven circumstances relevant to the said orders do
not warrant the conclusion that the court intended to make thereby such
alleged final adjudication. Legally, We hold that the tenor of said orders furnish
no basis for such a conclusion, and what is more, at the time said orders were
issued, the proceedings had not yet reached the point when a final distribution
and adjudication could be made. Moreover, the interested parties were not duly
notified that such disposition of the estate would be done. At best, therefore,
said orders merely allowed Hodges to dispose of portions of his inheritance in
advance of final adjudication, which is implicitly permitted under Section 2 of
Rule 109, there being no possible prejudice to third parties, inasmuch as Mrs.
Hodges had no creditors and all pertinent taxes have been paid.
More specifically, We hold that, on the basis of circumstances presently extant
in the record, and on the assumption that Hodges' purported renunciation
should not be upheld, the estate of Mrs. Hodges inherited by her brothers and
sisters consists of one-fourth of the community estate of the spouses at the time
of her death, minus whatever Hodges had gratuitously disposed of therefrom
during the period from, May 23, 1957, when she died, to December 25, 1962,
when he died provided, that with regard to remunerative dispositions made by
him during the same period, the proceeds thereof, whether in cash or property,
should be deemed as continuing to be part of his wife's estate, unless it can be
shown that he had subsequently disposed of them gratuitously.
At this juncture, it may be reiterated that the question of what are the pertinent
laws of Texas and what would be the estate of Mrs. Hodges under them is
basically one of fact, and considering the respective positions of the parties in
regard to said factual issue, it can already be deemed as settled for the purposes
of these cases that, indeed, the free portion of said estate that could possibly
descend to her brothers and sisters by virtue of her will may not be less than
one-fourth of the conjugal estate, it appearing that the difference in the stands
of the parties has reference solely to the legitime of Hodges, PCIB being of the
view that under the laws of Texas, there is such a legitime of one-fourth of said
conjugal estate and Magno contending, on the other hand, that there is none. In
other words, hereafter, whatever might ultimately appear, at the subsequent
proceedings, to be actually the laws of Texas on the matter would no longer be
of any consequence, since PCIB would anyway be in estoppel already to claim
that the estate of Mrs. Hodges should be less than as contended by it now, for
admissions by a party related to the effects of foreign laws, which have to be
proven in our courts like any other controverted fact, create estoppel.
In the process, We overrule PCIB's contention that the provision in Mrs. Hodges'
will in favor of her brothers and sisters constitutes ineffective hereditary
substitutions. But neither are We sustaining, on the other hand, Magno's pose
that it gave Hodges only a lifetime usufruct. We hold that by said provision, Mrs.
Hodges simultaneously instituted her brothers and sisters as co-heirs with her
husband, with the condition, however, that the latter would have complete
rights of dominion over the whole estate during his lifetime and what would go
to the former would be only the remainder thereof at the time of Hodges' death.
In other words, whereas they are not to inherit only in case of default of Hodges,
on the other hand, Hodges was not obliged to preserve anything for them.
Clearly then, the essential elements of testamentary substitution are absent; the
provision in question is a simple case of conditional simultaneous institution of
heirs, whereby the institution of Hodges is subject to a partial resolutory
condition the operative contingency of which is coincidental with that of the
suspensive condition of the institution of his brothers and sisters-in-law, which
manner of institution is not prohibited by law.
We also hold, however, that the estate of Mrs. Hodges inherited by her brothers
and sisters could be more than just stated, but this would depend on (1)
whether upon the proper application of the principle of renvoi in relation to
Article 16 of the Civil Code and the pertinent laws of Texas, it will appear that
Hodges had no legitime as contended by Magno, and (2) whether or not it can
be held that Hodges had legally and effectively renounced his inheritance from
his wife. Under the circumstances presently obtaining and in the state of the
record of these cases, as of now, the Court is not in a position to make a final
ruling, whether of fact or of law, on any of these two issues, and We, therefore,
reserve said issues for further proceedings and resolution in the first instance
by the court a quo, as hereinabove indicated. We reiterate, however, that
pending such further proceedings, as matters stand at this stage, Our
considered opinion is that it is beyond cavil that since, under the terms of the
will of Mrs. Hodges, her husband could not have anyway legally adjudicated or
caused to be adjudicated to himself her whole share of their conjugal
partnership, albeit he could have disposed any part thereof during his lifetime,
the resulting estate of Mrs. Hodges, of which Magno is the uncontested
administratrix, cannot be less than one-fourth of the conjugal partnership
properties, as of the time of her death, minus what, as explained earlier, have
been gratuitously disposed of therefrom, by Hodges in favor of third persons
since then, for even if it were assumed that, as contended by PCIB, under Article
16 of the Civil Code and applying renvoi the laws of the Philippines are the ones
ultimately applicable, such one-fourth share would be her free disposable
portion, taking into account already the legitime of her husband under Article
900 of the Civil Code.
The foregoing considerations leave the Court with no alternative than to
conclude that in predicating its orders on the assumption, albeit unexpressed
therein, that there is an estate of Mrs. Hodges to be distributed among her
brothers and sisters and that respondent Magno is the legal administratrix
thereof, the trial court acted correctly and within its jurisdiction. Accordingly,
the petition for certiorari and prohibition has to be denied. The Court feels
however, that pending the liquidation of the conjugal partnership and the
determination of the specific properties constituting her estate, the two
administrators should act conjointly as ordered in the Court's resolution of
September 8, 1972 and as further clarified in the dispositive portion of its
decision.
Anent the appeals from the orders of the lower court sanctioning payment by
appellee Magno, as administratrix, of expenses of administration and attorney's
fees, it is obvious that, with Our holding that there is such an estate of Mrs.
Hodges, and for the reasons stated in the body of this opinion, the said orders
should be affirmed. This We do on the assumption We find justified by the
evidence of record, and seemingly agreed to by appellant PCIB, that the size and
value of the properties that should correspond to the estate of Mrs. Hodges far
exceed the total of the attorney's fees and administration expenses in question.
With respect to the appeals from the orders approving transactions made by
appellee Magno, as administratrix, covering properties registered in the name of
Hodges, the details of which are related earlier above, a distinction must be
made between those predicated on contracts to sell executed by Hodges before
the death of his wife, on the one hand, and those premised on contracts to sell
entered into by him after her death. As regards the latter, We hold that
inasmuch as the payments made by appellees constitute proceeds of sales of
properties belonging to the estate of Mrs. Hodges, as may be implied from the
tenor of the motions of May 27 and December 14, 1957, said payments continue
to pertain to said estate, pursuant to her intent obviously reflected in the
relevant provisions of her will, on the assumption that the size and value of the
properties to correspond to the estate of Mrs. Hodges would exceed the total
value of all the properties covered by the impugned deeds of sale, for which
reason, said properties may be deemed as pertaining to the estate of Mrs.
Hodges. And there being no showing that thus viewing the situation, there
would be prejudice to anyone, including the government, the Court also holds
that, disregarding procedural technicalities in favor of a pragmatic and practical
approach as discussed above, the assailed orders should be affirmed. Being a
stranger to the estate of Mrs. Hodges, PCIB has no personality to raise the
procedural and jurisdictional issues raised by it. And inasmuch as it does not
appear that any of the other heirs of Mrs. Hodges or the government has
objected to any of the orders under appeal, even as to these parties, there exists
no reason for said orders to be set aside.
DISPOSITIVE PART
IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered
DISMISSING the petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in
G. R. Nos. L-27936-37 and the other thirty-one numbers hereunder ordered to
be added after payment of the corresponding docket fees, all the orders of the
trial court under appeal enumerated in detail on pages 35 to 37 and 80 to 82 of
this decision; the existence of the Testate Estate of Linnie Jane Hodges, with
respondent-appellee Avelina A. Magno, as administratrix thereof is recognized,
and it is declared that, until final judgment is ultimately rendered regarding (1)
the manner of applying Article 16 of the Civil Code of the Philippines to the
situation obtaining in these cases and (2) the factual and legal issue of whether
or not Charles Newton Hodges had effectively and legally renounced his
inheritance under the will of Linnie Jane Hodges, the said estate consists of one-
fourth of the community properties of the said spouses, as of the time of the
death of the wife on May 23, 1957, minus whatever the husband had already
gratuitously disposed of in favor of third persons from said date until his death,
provided, first, that with respect to remunerative dispositions, the proceeds
thereof shall continue to be part of the wife's estate, unless subsequently
disposed of gratuitously to third parties by the husband, and second, that
should the purported renunciation be declared legally effective, no deductions
whatsoever are to be made from said estate; in consequence, the preliminary
injunction of August 8, 1967, as amended on October 4 and December 6, 1967,
is lifted, and the resolution of September 8, 1972, directing that petitioner-
appellant PCIB, as Administrator of the Testate Estate of Charles Newton
Hodges, in Special Proceedings 1672, and respondent-appellee Avelina A.
Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges, in Special
Proceedings 1307, should act thenceforth always conjointly, never
independently from each other, as such administrators, is reiterated, and the
same is made part of this judgment and shall continue in force, pending the
liquidation of the conjugal partnership of the deceased spouses and the
determination and segregation from each other of their respective estates,
provided, that upon the finality of this judgment, the trial court should
immediately proceed to the partition of the presently combined estates of the
spouses, to the end that the one-half share thereof of Mrs. Hodges may be
properly and clearly identified; thereafter, the trial court should forthwith
segregate the remainder of the one-fourth herein adjudged to be her estate and
cause the same to be turned over or delivered to respondent for her exclusive
administration in Special Proceedings 1307, while the other one-fourth shall
remain under the joint administration of said respondent and petitioner under a
joint proceedings in Special Proceedings 1307 and 1672, whereas the half
unquestionably pertaining to Hodges shall be administered by petitioner
exclusively in Special Proceedings 1672, without prejudice to the resolution by
the trial court of the pending motions for its removal as administrator
12
; and
this arrangement shall be maintained until the final resolution of the two issues
of renvoi and renunciation hereby reserved for further hearing and
determination, and the corresponding complete segregation and partition of the
two estates in the proportions that may result from the said resolution.
Generally and in all other respects, the parties and the court a quo are directed
to adhere henceforth, in all their actuations in Special Proceedings 1307 and
1672, to the views passed and ruled upon by the Court in the foregoing opinion.
Appellant PCIB is ordered to pay, within five (5) days from notice hereof, thirty-
one additional appeal docket fees, but this decision shall nevertheless become
final as to each of the parties herein after fifteen (15) days from the respective
notices to them hereof in accordance with the rules.
Costs against petitioner-appellant PCIB.
Zaldivar, Castro, Esguerra and Fernandez, JJ., concur.
Makasiar, Antonio, Muoz Palma and Aquino, JJ., concur in the result.






Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-13876 February 28, 1962
CONSOLACION FLORENTINO DE CRISOLOGO, ET AL., plaintiffs-appellees,
vs.
DR. MANUEL SINGSON, defendant-appellant.
Felix V. Vergara for defendant-appellant.
B. Martinez for plaintiffs-appellees.
DIZON, J.:
Action for partition commenced by the spouses Consolacion Florentino and
Francisco Crisologo against Manuel Singson in connection with a residential lot
located a Plaridel St., Vigan, Ilocos Sur, with an area of approximately 193
square meters, and the improvements existing thereon, covered by Tax No.
10765-C. Their complaint alleged that Singson owned one-half pro-indiviso of
said property and that Consolacion Florentino owned the other half by virtue of
the provisions of the duly probated last will of Da. Leona Singson, the original
owner, and the project of partition submitted to, and approved by the Court of
First Instance of Ilocos Sur in special Proceeding No. 453; that plaintiffs had
made demands for the partition of said property, but defendant refused to
accede thereto, thus compelling them to bring action.
Defendant's defense was that Consolacion Florentino was a mere usufructuary
of, and not owner of one-half pro-indiviso of the property in question, and that,
therefore, she was not entitled to demand partition thereof.
After trial upon the issue thus posed, the lower court rendered judgment as
follows:
1. Declaring that the plaintiff is a co-owner pro-indiviso with the
defendant of the house and lot described in the complaint to the extent
of each of an undivided 1/2 portion thereof; .
2. Ordering the aforesaid co-owners to execute an agreement of
partition of the said property within 30 days from receipt of this
judgment unless it be shown that the division thereof may render it
unserviceable, in which case the provisions of Art. 498 of the New Civil
Code may be applied; .1wph1.t
3. That in the event the said parties shall fail to do so, this Court will
appoint the corresponding commissioners to make the partition in
accordance with law; and .
4. Without special pronouncement as to costs." .
From the above judgment, defendant Singson appealed.
It is admitted that Da. Leona Singson, who died single on January 13, 1948, was
the owner of the property in question at the time of her death. On July 31, 1951
she executed her last will which was admitted to probate in Special Proceeding
No. 453 of the lower court whose decision was affirmed by the Court of Appeals
in G.R. No. 3605-R. At the time of the execution of the will, her nearest living
relatives were her brothers Evaristo, Manuel and Dionisio Singson, her nieces
Rosario, Emilia and Trinidad, and her grandniece Consolation, all surnamed
Florentino.
Clause IX of her last will reads as follows: .
NOVENO. Ordeno que se de a mi nieta por parte de mi hermana mia
y que al mismo tiempo vive en mi casa, y, por tanto, bajo mi proteccion,
y es la CONSOLACION FLORENTINO:
(A). La mitad de mi casa de materials fuertes con techo de hierro
galvanizado, incluyendo la mitad de su solar, ubicado en la Poblacion de
Vigan, Ilocos Sur, Calle Plaridel, actualmente arrendada por los
hermanos Fortunato, Teofilo y Pedro del appellido Kairuz. Pero si
falleciere antes o despues que yo mi citada nieta, esta propiedad se
dara por partes iguales entre mis tres hermanos Evaristo, Manuel y
Dionisio, o a sus herederos forzosos en el caso de que alguno de ellas
murieie antes ... (Exhibit F.)
The issue to be decided is whether the testamentary disposition above-quoted
provided for what is called sustitucion vulgar or for a sustitucion fideicomisaria.
This issue is, we believe, controlled by the pertinent provisions of the Civil Code
in force in the Philippines prior to the effectivity of the New Civil Code, in view
of the fact that the testatrix died on January 13, 1948. They are the following: .
Art. 774. The testator may designate one or more persons to substitute
the heir or heirs instituted in case such heir or heirs should die before
him, or should not wish or should be unable to accept the inheritance.
A simple substitution, without a statement of the cases to which it is to
apply, shall include the three mentioned in the next preceeding
paragraph, unless the testator has otherwise provided:
Art. 781. Fidei-commissary substitutions by virtue of which the heir is
charged to preserve and transmit to a third person the whole or part of
the inheritance shall be valid and effective, provided they do not go
beyond the second degree, or that they are made in favor of persons
living at the time of the death of the testator." .
Art. 785. The following shall be inoperative: .
1. Fiduciary substitutions not made expressly, either by giving them
this name or by imposing upon the fiduciary the absolute obligation of
delivering the property to a second heir." ....
In accordance with the first legal provision quoted above, the testator may not
only designate the heirs who will succeed him upon his death, but also provide
for substitutes in the event that said heirs do not accept or are in no position to
accept the inheritance or legacies, or die ahead of him.
The testator may also bequeath his properties to a particular person with the
obligation, on the part of the latter, to deliver the same to another person,
totally or partially, upon the occurrence of a particular event (6 Manresa, p.
1112).
It is clear that the particular testamentary clause under consideration provides
for a substitution of the heir named therein in this manner: that upon the death
of Consolacion Florentino whether this occurs before or after that of the
testatrix the property bequeathed to her shall be delivered ("se dara") or
shall belong in equal parts to the testatrix's three brothers, Evaristo, Manuel and
Dionisio, or their forced heirs, should anyone of them die ahead of Consolacion
Florentino. If this clause created what is known as sustitucion vulgar, the
necessary result would be that Consolacion Florentino, upon the death of the
testatrix, became the owner of one undivided half of the property, but if it
provided for a sustitution fideicomisaria, she would have acquired nothing more
than usufructuary rights over the same half. In the former case, she would
undoubtedly be entitled to partition, but not in the latter. As Manresa says, if the
fiduciary did not acquire full ownership of the property bequeathed by will, but
mere usufructuary rights thereon until the time came for him to deliver said
property to the fideicomisario, it is obvious that the nude ownership over the
property, upon the death of the testatrix, passed to and was acquired by another
person, and the person cannot be other than the fideicomisario (6 Manresa p.
145).
It seems to be of the essence of a fideicommissary substitution that an
obligation be clearly imposed upon the first heir to preserve and transmit to
another the whole or part of the estate bequeathed to him, upon his death or
upon the happening of a particular event. For this reason, Art. 785 of the old
Civil Code provides that a fideicommissary substitution shall have no effect
unless it is made expressly ("de una manera expresa") either by giving it such
name, or by imposing upon the first heir the absolute obligation ("obligacion
terminante") to deliver the inheritance to a substitute or second heir. In this
connection Manresa says: .
Para que la sustitucion sea fideicomisaria, es preciso segun el art. 781,
que se ordeno o encargue al primer heredero, cuando sea tal, que
conserve y transmita a una tercera persona o entidad el todo a parte de
la herencia. O lo que es lo mismo, la sustitucion fideicomisaria, como
declaran las resoluciones de 25 de Junio de 1895, 10 de Febrero de
1899 y 19 de Julio de 1909, exige tres requisitos: .
1.o Un primer heredero llamado al goce de los bienes preferentemente.
2.o Obligacion claramente impuesta al mismo de conservar y transmitir
a un tercero el todo o parte del caudal.
3.o Un segundo heredero.
A estos requisitos anade la sentencia de 18 de Noviembre de 1918, otro
mas, el del que el fideicomisario tenga derecho a los bienes de la
herencia desde el momento de la muerte del testador, puesto que ha de
suceder a este y no al fiduciario.
Por tanto, cuando el causante se limita a instituir dos herederos, y por
fallecimiento de ambos o de cualquiera de ellos, asigna la parte del
fallecido o fallecidos, a los herederos legitimos o a otras personas, solo
existe una sustitucion vulgar, porque falta el requisito de haberse
impuesto a los primeros herederos la obligacion de conservar y
transmitir los bienes, y el articulo 789, en su parrafo primero, evige que
la sustitucion sea expresa, ya dandole el testador el nombre de
sustitucion fideicomisaria, ya imponiendo al sustituido la obligacion
terminante de conservar y transmitir los bienes a un segundo heredero.
A careful perusal of the testamentary clause under consideration shows that the
substitution of heirs provided for therein is not expressly made of the
fideicommissary kind, nor does it contain a clear statement to the effect that
appellee, during her lifetime, shall only enjoy usufructuary rights over the
property bequeathed to her, naked ownership thereof being vested in the
brothers of the testatrix. As already stated, it merely provides that upon
appellee's death whether this happens before or after that of the testatrix
her share shall belong to the brothers of the testatrix.
In the light of the foregoing, we believe, and so hold, that the last will of the
deceased Da. Leona Singson, established a mere sustitucion vulgar, the
substitution Consolacion Florentino by the brothers of the testatrix to be
effective or to take place upon the death of the former, whether it happens
before or after that of the testatrix.
IN VIEW OF THE FOREGOING, the appealed judgment is affirmed, with costs.