Republic of the Philippines and who is now residing at No.
ow residing at No. 665 Rodger possessed at my death and which may have
SUPREME COURT
Manila
EN BANC
G.R. No. L-16749 January 31, 1963
IN THE MATTER OF THE TESTATE ESTATE OF
EDWARD E. CHRISTENSEN, DECEASED.
ADOLFO C. AZNAR, Executor and LUCY
CHRISTENSEN, Heir of the deceased, Executor and
Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-
appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for
oppositor-appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court of First
Instance of Davao, Hon. Vicente N. Cusi, Jr.,
presiding, in Special Proceeding No. 622 of said
court, dated September 14, 1949, approving among
things the final accounts of the executor, directing the
executor to reimburse Maria Lucy Christensen the
amount of P3,600 paid by her to Helen Christensen
Garcia as her legacy, and declaring Maria Lucy
Christensen entitled to the residue of the property to
be enjoyed during her lifetime, and in case of death
without issue, one-half of said residue to be payable
to Mrs. Carrie Louise C. Borton, etc., in accordance
with the provisions of the will of the testator Edward E.
Christensen. The will was executed in Manila on
March 5, 1951 and contains the following provisions:
3. I declare ... that I have but ONE (1) child,
named MARIA LUCY CHRISTENSEN (now
Mrs. Bernard Daney), who was born in the
Philippines about twenty-eight years ago,
Young Village, Los Angeles, California,
U.S.A.
4. I further declare that I now have no living
ascendants, and no descendants except my
above named daughter, MARIA LUCY
CHRISTENSEN DANEY.
xxx xxx xxx
7. I give, devise and bequeath unto MARIA
HELEN CHRISTENSEN, now married to
Eduardo Garcia, about eighteen years of age
and who, notwithstanding the fact that she
was baptized Christensen, is not in any way
related to me, nor has she been at any time
adopted by me, and who, from all
information I have now resides in Egpit,
Digos, Davao, Philippines, the sum of
THREE THOUSAND SIX HUNDRED
PESOS (P3,600.00), Philippine Currency the
same to be deposited in trust for the said
Maria Helen Christensen with the Davao
Branch of the Philippine National Bank, and
paid to her at the rate of One Hundred Pesos
(P100.00), Philippine Currency per month
until the principal thereof as well as any
interest which may have accrued thereon, is
exhausted..
xxx xxx xxx
12. I hereby give, devise and bequeath, unto
my well-beloved daughter, the said MARIA
LUCY CHRISTENSEN DANEY (Mrs.
Bernard Daney), now residing as aforesaid
at No. 665 Rodger Young Village, Los
Angeles, California, U.S.A., all the income
from the rest, remainder, and residue of my
property and estate, real, personal and/or
mixed, of whatsoever kind or character, and
wheresoever situated, of which I may be
come to me from any source whatsoever,
during her lifetime: ....
It is in accordance with the above-quoted provisions
that the executor in his final account and project of
partition ratified the payment of only P3,600 to Helen
Christensen Garcia and proposed that the residue of
the estate be transferred to his daughter, Maria Lucy
Christensen.
Opposition to the approval of the project of partition
was filed by Helen Christensen Garcia, insofar as it
deprives her (Helen) of her legitime as an
acknowledged natural child, she having been
declared by Us in G.R. Nos. L-11483-84 an
acknowledged natural child of the deceased Edward
E. Christensen. The legal grounds of opposition are
(a) that the distribution should be governed by the
laws of the Philippines, and (b) that said order of
distribution is contrary thereto insofar as it denies to
Helen Christensen, one of two acknowledged natural
children, one-half of the estate in full ownership. In
amplification of the above grounds it was alleged that
the law that should govern the estate of the deceased
Christensen should not be the internal law of
California alone, but the entire law thereof because
several foreign elements are involved, that the forum
is the Philippines and even if the case were decided
in California, Section 946 of the California Civil Code,
which requires that the domicile of the decedent
should apply, should be applicable. It was also
alleged that Maria Helen Christensen having been
declared an acknowledged natural child of the
decedent, she is deemed for all purposes legitimate
from the time of her birth.
The court below ruled that as Edward E. Christensen
was a citizen of the United States and of the State of
California at the time of his death, the successional
rights and intrinsic validity of the provisions in his will
are to be governed by the law of California, in
accordance with which a testator has the right to
dispose of his property in the way he desires,
because the right of absolute dominion over his
property is sacred and inviolable (In re McDaniel's
Estate, 77 Cal. Appl. 2d 877, 176 P. 2d 952, and In re
Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page
179, Record on Appeal). Oppositor Maria Helen
Christensen, through counsel, filed various motions
for reconsideration, but these were denied. Hence,
this appeal.
The most important assignments of error are as
follows:
I a citizen of the United States and of the State of
THE LOWER COURT ERRED IN IGNORING THE
DECISION OF THE HONORABLE SUPREME
COURT THAT HELEN IS THE ACKNOWLEDGED
NATURAL CHILD OF EDWARD E. CHRISTENSEN
AND, CONSEQUENTLY, IN DEPRIVING HER OF
HER JUST SHARE IN THE INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY
IGNORING AND/OR FAILING TO RECOGNIZE THE
EXISTENCE OF SEVERAL FACTORS, ELEMENTS
AND CIRCUMSTANCES CALLING FOR THE
APPLICATION OF INTERNAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO
RECOGNIZE THAT UNDER INTERNATIONAL LAW,
PARTICULARLY UNDER THE RENVOI DOCTRINE,
THE INTRINSIC VALIDITY OF THE
TESTAMENTARY DISPOSITION OF THE
DISTRIBUTION OF THE ESTATE OF THE
DECEASED EDWARD E. CHRISTENSEN SHOULD
BE GOVERNED BY THE LAWS OF THE
PHILIPPINES.
IV
THE LOWER COURT ERRED IN NOT DECLARING
THAT THE SCHEDULE OF DISTRIBUTION
SUBMITTED BY THE EXECUTOR IS CONTRARY
TO THE PHILIPPINE LAWS.
V and approved by this Honorable Court,
THE LOWER COURT ERRED IN NOT DECLARING
THAT UNDER THE PHILIPPINE LAWS HELEN
CHRISTENSEN GARCIA IS ENTITLED TO ONE-
HALF (1/2) OF THE ESTATE IN FULL OWNERSHIP.
There is no question that Edward E. Christensen was
California at the time of his death. But there is also no
question that at the time of his death he was
domiciled in the Philippines, as witness the following
facts admitted by the executor himself in appellee's
brief:
In the proceedings for admission of the will
to probate, the facts of record show that the
deceased Edward E. Christensen was born
on November 29, 1875 in New York City,
N.Y., U.S.A.; his first arrival in the
Philippines, as an appointed school teacher,
was on July 1, 1901, on board the U.S. Army
Transport "Sheridan" with Port of
Embarkation as the City of San Francisco, in
the State of California, U.S.A. He stayed in
the Philippines until 1904.
In December, 1904, Mr. Christensen
returned to the United States and stayed
there for the following nine years until 1913,
during which time he resided in, and was
teaching school in Sacramento, California.
Mr. Christensen's next arrival in the
Philippines was in July of the year 1913.
However, in 1928, he again departed the
Philippines for the United States and came
back here the following year, 1929. Some
nine years later, in 1938, he again returned
to his own country, and came back to the
Philippines the following year, 1939.
Wherefore, the parties respectfully pray that
the foregoing stipulation of facts be admitted
without prejudice to the parties adducing
other evidence to prove their case not
covered by this stipulation of
facts. 1wph1.t
Being an American citizen, Mr. Christensen
was interned by the Japanese Military
Forces in the Philippines during World War
II. Upon liberation, in April 1945, he left for
the United States but returned to the
Philippines in December, 1945. Appellees
Collective Exhibits "6", CFI Davao, Sp. Proc.
622, as Exhibits "AA", "BB" and "CC-Daney";
Exhs. "MM", "MM-l", "MM-2-Daney" and p.
473, t.s.n., July 21, 1953.)
In April, 1951, Edward E. Christensen
returned once more to California shortly after
the making of his last will and testament
(now in question herein) which he executed
at his lawyers' offices in Manila on March 5,
1951. He died at the St. Luke's Hospital in
the City of Manila on April 30, 1953. (pp. 2-3)
In arriving at the conclusion that the domicile of the
deceased is the Philippines, we are persuaded by the
fact that he was born in New York, migrated to
California and resided there for nine years, and since
he came to the Philippines in 1913 he returned to
California very rarely and only for short visits (perhaps
to relatives), and considering that he appears never to
have owned or acquired a home or properties in that
state, which would indicate that he would ultimately
abandon the Philippines and make home in the State
of California.
Sec. 16. Residence is a term used with
many shades of meaning from mere
 temporary presence to the most permanent
abode. Generally, however, it is used to
denote something more than mere physical
presence. (Goodrich on Conflict of Laws, p.
29)
As to his citizenship, however, We find that the
citizenship that he acquired in California when he
resided in Sacramento, California from 1904 to 1913,
was never lost by his stay in the Philippines, for the
latter was a territory of the United States (not a state)
until 1946 and the deceased appears to have
considered himself as a citizen of California by the
fact that when he executed his will in 1951 he
declared that he was a citizen of that State; so that he
appears never to have intended to abandon his
California citizenship by acquiring another. This
conclusion is in accordance with the following
principle expounded by Goodrich in his Conflict of
Laws.
The terms "'residence" and "domicile" might
well be taken to mean the same thing, a
place of permanent abode. But domicile, as
has been shown, has acquired a technical
meaning. Thus one may be domiciled in a
place where he has never been. And he may
reside in a place where he has no domicile.
The man with two homes, between which he
divides his time, certainly resides in each
one, while living in it. But if he went on
business which would require his presence
for several weeks or months, he might
properly be said to have sufficient
connection with the place to be called a
resident. It is clear, however, that, if he
treated his settlement as continuing only for
the particular business in hand, not giving up
his former "home," he could not be a
domiciled New Yorker. Acquisition of a
domicile of choice requires the exercise of
intention as well as physical presence.
"Residence simply requires bodily presence
of an inhabitant in a given place, while
domicile requires bodily presence in that
place and also an intention to make it one's
domicile." Residence, however, is a term
used with many shades of meaning, from the
merest temporary presence to the most
permanent abode, and it is not safe to insist
that any one use et the only proper one.
(Goodrich, p. 29)
The law that governs the validity of his testamentary
dispositions is defined in Article 16 of the Civil Code of
the Philippines, which is as follows:
ART. 16. Real property as well as personal
property is subject to the law of the country
where it is situated.
However, intestate and testamentary
successions, both with respect to the order
of succession and to the amount of
successional rights and to the intrinsic
validity of testamentary provisions, shall be
regulated by the national law of the person
whose succession is under consideration,
whatever may be the nature of the property
and regardless of the country where said
property may be found.
The application of this article in the case at bar
requires the determination of the meaning of the
term "national law" is used therein.
There is no single American law governing the validity
of testamentary provisions in the United States, each
state of the Union having its own private law
applicable to its citizens only and in force only within
the state. The "national law" indicated in Article 16 of
the Civil Code above quoted can not, therefore,
possibly mean or apply to any general American law.
So it can refer to no other than the private law of the
State of California.
The next question is: What is the law in California
governing the disposition of personal property? The
decision of the court below, sustains the contention of
the executor-appellee that under the California
Probate Code, a testator may dispose of his property
by will in the form and manner he desires, citing the
case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176
P. 2d 952. But appellant invokes the provisions of
Article 946 of the Civil Code of California, which is as
follows:
If there is no law to the contrary, in the place
where personal property is situated, it is
deemed to follow the person of its owner,
and is governed by the law of his domicile.
The existence of this provision is alleged in
appellant's opposition and is not denied. We have
checked it in the California Civil Code and it is there.
Appellee, on the other hand, relies on the case cited
in the decision and testified to by a witness. (Only the
case of Kaufman is correctly cited.) It is argued on
executor's behalf that as the deceased Christensen
was a citizen of the State of California, the internal
law thereof, which is that given in the abovecited
case, should govern the determination of the validity
of the testamentary provisions of Christensen's will,
such law being in force in the State of California of
which Christensen was a citizen. Appellant, on the
other hand, insists that Article 946 should be
applicable, and in accordance therewith and following
the doctrine of the renvoi, the question of the validity
of the testamentary provision in question should be
referred back to the law of the decedent's domicile,
which is the Philippines.
The theory of doctrine of renvoi has been defined by
various authors, thus:
The problem has been stated in this way:
"When the Conflict of Laws rule of the forum
refers a jural matter to a foreign law for
decision, is the reference to the purely
internal rules of law of the foreign system;
i.e., to the totality of the foreign law minus its
Conflict of Laws rules?"
On logic, the solution is not an easy one. The
Michigan court chose to accept the renvoi,
that is, applied the Conflict of Laws rule of
Illinois which referred the matter back to
Michigan law. But once having determined
the the Conflict of Laws principle is the rule
looked to, it is difficult to see why the
reference back should not have been to
Michigan Conflict of Laws. This would have
resulted in the "endless chain of references"
which has so often been criticized be legal
writers. The opponents of the renvoi would
have looked merely to the internal law of
Illinois, thus rejecting the renvoi or the
reference back. Yet there seems no
compelling logical reason why the original
reference should be the internal law rather
than to the Conflict of Laws rule. It is true
that such a solution avoids going on a merry-
go-round, but those who have accepted
the renvoi theory avoid this inextricabilis
circulas by getting off at the second
reference and at that point applying internal
law. Perhaps the opponents of the renvoi are
a bit more consistent for they look always to
internal law as the rule of reference.
Strangely enough, both the advocates for
and the objectors to the renvoi plead that
greater uniformity will result from adoption of
their respective views. And still more strange
is the fact that the only way to achieve
uniformity in this choice-of-law problem is if
in the dispute the two states whose laws
form the legal basis of the litigation disagree
as to whether the renvoi should be accepted.
If both reject, or both accept the doctrine, the
result of the litigation will vary with the choice
of the forum. In the case stated above, had
the Michigan court rejected the renvoi,
judgment would have been against the
woman; if the suit had been brought in the
Illinois courts, and they too rejected
the renvoi, judgment would be for the
woman. The same result would happen,
though the courts would switch with respect
to which would hold liability, if both courts
accepted the renvoi.
The Restatement accepts the renvoi theory
in two instances: where the title to land is in
question, and where the validity of a decree
of divorce is challenged. In these cases the
Conflict of Laws rule of the situs of the land,
or the domicile of the parties in the divorce
case, is applied by the forum, but any further
reference goes only to the internal law. Thus,
a person's title to land, recognized by the
situs, will be recognized by every court; and
every divorce, valid by the domicile of the
parties, will be valid everywhere. (Goodrich,
Conflict of Laws, Sec. 7, pp. 13-14.)
X, a citizen of Massachusetts, dies intestate,
domiciled in France, leaving movable
property in Massachusetts, England, and
France. The question arises as to how this
property is to be distributed among X's next
of kin.
Assume (1) that this question arises in a
Massachusetts court. There the rule of the
conflict of laws as to intestate succession to
movables calls for an application of the law
of the deceased's last domicile. Since by
hypothesis X's last domicile was France, the
natural thing for the Massachusetts court to
do would be to turn to French statute of
distributions, or whatever corresponds
thereto in French law, and decree a
distribution accordingly. An examination of
French law, however, would show that if a
French court were called upon to determine
how this property should be distributed, it
would refer the distribution to the national
law of the deceased, thus applying the
Massachusetts statute of distributions. So on
the surface of things the Massachusetts
court has open to it alternative course of
action: (a) either to apply the French law is to
intestate succession, or (b) to resolve itself
into a French court and apply the
Massachusetts statute of distributions, on
the assumption that this is what a French
court would do. If it accepts the so-
called renvoi doctrine, it will follow the latter
course, thus applying its own law.
This is one type of renvoi. A jural matter is
presented which the conflict-of-laws rule of
the forum refers to a foreign law, the conflict-
of-laws rule of which, in turn, refers the
matter back again to the law of the forum.
This is renvoi in the narrower sense. The
German term for this judicial process is
'Ruckverweisung.'" (Harvard Law Review,
Vol. 31, pp. 523-571.)
After a decision has been arrived at that a
foreign law is to be resorted to as governing
a particular case, the further question may
arise: Are the rules as to the conflict of laws
contained in such foreign law also to be
resorted to? This is a question which, while it
has been considered by the courts in but a
few instances, has been the subject of
frequent discussion by textwriters and
essayists; and the doctrine involved has
been descriptively designated by them as
the "Renvoyer" to send back, or the
"Ruchversweisung", or the
"Weiterverweisung", since an affirmative
answer to the question postulated and the
operation of the adoption of the foreign law
in toto would in many cases result in
returning the main controversy to be decided
according to the law of the forum. ... (16
C.J.S. 872.)
Another theory, known as the "doctrine
of renvoi", has been advanced. The theory of
the doctrine of renvoi is that the court of the
forum, in determining the question before it,
 must take into account the whole law of the
other jurisdiction, but also its rules as to
conflict of laws, and then apply the law to the
actual question which the rules of the other
jurisdiction prescribe. This may be the law of
the forum. The doctrine of the renvoi has
generally been repudiated by the American
authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has also been
defined and the reasons for its application in a country
explained by Prof. Lorenzen in an article in the Yale
Law Journal, Vol. 27, 1917-1918, pp. 529-531. The
pertinent parts of the article are quoted herein below:
The recognition of the renvoi theory implies
that the rules of the conflict of laws are to be
understood as incorporating not only the
ordinary or internal law of the foreign state or
country, but its rules of the conflict of laws as
well. According to this theory 'the law of a
country' means the whole of its law.
xxx xxx xxx
Von Bar presented his views at the meeting
of the Institute of International Law, at
Neuchatel, in 1900, in the form of the
following theses:
(1) Every court shall observe the law of its
country as regards the application of foreign
laws.
(2) Provided that no express provision to the
contrary exists, the court shall respect:
(a) The provisions of a foreign law
which disclaims the right to bind its
nationals abroad as regards their
personal statute, and desires that
said personal statute shall be
determined by the law of the
domicile, or even by the law of the
place where the act in question
occurred.
(b) The decision of two or more
foreign systems of law, provided it
be certain that one of them is
necessarily competent, which agree
in attributing the determination of a
question to the same system of law.
xxx xxx xxx
If, for example, the English law directs its
judge to distribute the personal estate of an
Englishman who has died domiciled in
Belgium in accordance with the law of his
domicile, he must first inquire whether the
law of Belgium would distribute personal
property upon death in accordance with the
law of domicile, and if he finds that the
Belgian law would make the distribution in
accordance with the law of nationality that
is the English law he must accept this
reference back to his own law.
We note that Article 946 of the California Civil Code is
its conflict of laws rule, while the rule applied in In re
Kaufman, Supra, its internal law. If the law on
succession and the conflict of laws rules of California
are to be enforced jointly, each in its own intended
and appropriate sphere, the principle cited In re
Kaufman should apply to citizens living in the State,
but Article 946 should apply to such of its citizens as
are not domiciled in California but in other
jurisdictions. The rule laid down of resorting to the law
of the domicile in the determination of matters with
foreign element involved is in accord with the general
principle of American law that the domiciliary law
should govern in most matters or rights which follow
the person of the owner.
When a man dies leaving personal property
in one or more states, and leaves a will
directing the manner of distribution of the
property, the law of the state where he was
domiciled at the time of his death will be
looked to in deciding legal questions about
the will, almost as completely as the law of
situs is consulted in questions about the
devise of land. It is logical that, since the
domiciliary rules control devolution of the
personal estate in case of intestate
succession, the same rules should
determine the validity of an attempted
testamentary dispostion of the property.
Here, also, it is not that the domiciliary has
effect beyond the borders of the domiciliary
state. The rules of the domicile are
recognized as controlling by the Conflict of
Laws rules at the situs property, and the
reason for the recognition as in the case of
intestate succession, is the general
convenience of the doctrine. The New York
court has said on the point: 'The general
principle that a dispostiton of a personal
property, valid at the domicile of the owner, is
valid anywhere, is one of the universal
application. It had its origin in that
international comity which was one of the
first fruits of civilization, and it this age, when
business intercourse and the process of
accumulating property take but little notice of
boundary lines, the practical wisdom and
justice of the rule is more apparent than
ever. (Goodrich, Conflict of Laws, Sec. 164,
pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code
of the Philippines pointed out as the national law is
the internal law of California. But as above explained
the laws of California have prescribed two sets of
laws for its citizens, one for residents therein and
another for those domiciled in other jurisdictions.
Reason demands that We should enforce the
California internal law prescribed for its citizens
residing therein, and enforce the conflict of laws rules
for the citizens domiciled abroad. If we must enforce
the law of California as in comity we are bound to go,
as so declared in Article 16 of our Civil Code, then we
must enforce the law of California in accordance with not appear to be a citizen of a state in the United
the express mandate thereof and as above explained, States but with domicile in the Philippines, and it does
i.e., apply the internal law for residents therein, and its not appear in each case that there exists in the state
conflict-of-laws rule for those domiciled abroad. of which the subject is a citizen, a law similar to or
identical with Art. 946 of the California Civil Code.
It is argued on appellees' behalf that the clause "if
there is no law to the contrary in the place where the We therefore find that as the domicile of the deceased
property is situated" in Sec. 946 of the California Civil Christensen, a citizen of California, is the Philippines,
Code refers to Article 16 of the Civil Code of the the validity of the provisions of his will depriving his
Philippines and that the law to the contrary in the acknowledged natural child, the appellant, should be
Philippines is the provision in said Article 16 that governed by the Philippine Law, the domicile,
the national law of the deceased should govern. This pursuant to Art. 946 of the Civil Code of California, not
contention can not be sustained. As explained in the by the internal law of California..
various authorities cited above the national law
mentioned in Article 16 of our Civil Code is the law on WHEREFORE, the decision appealed from is hereby
conflict of laws in the California Civil Code, i.e., Article reversed and the case returned to the lower court with
946, which authorizes the reference or return of the instructions that the partition be made as the
question to the law of the testator's domicile. The Philippine law on succession provides. Judgment
conflict of laws rule in California, Article 946, Civil reversed, with costs against appellees.
Code, precisely refers back the case, when a
decedent is not domiciled in California, to the law of
his domicile, the Philippines in the case at bar. The
court of the domicile can not and should not refer the
case back to California; such action would leave the
issue incapable of determination because the case
will then be like a football, tossed back and forth
between the two states, between the country of which
the decedent was a citizen and the country of his
domicile. The Philippine court must apply its own law
as directed in the conflict of laws rule of the state of
the decedent, if the question has to be decided,
especially as the application of the internal law of
California provides no legitime for children while the
Philippine law, Arts. 887(4) and 894, Civil Code of the
Philippines, makes natural children legally
acknowledged forced heirs of the parent recognizing
them.

The Philippine cases (In re Estate of Johnson, 39

Phil. 156; Riera vs. Palmaroli, 40 Phil. 105; Miciano
vs. Brimo, 50 Phil. 867; Babcock Templeton vs. Rider
Babcock, 52 Phil. 130; and Gibbs vs. Government, 59
Phil. 293.) cited by appellees to support the decision
can not possibly apply in the case at bar, for two
important reasons, i.e., the subject in each case does
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23678 June 6, 1967
TESTATE ESTATE OF AMOS G. BELLIS,
deceased.
PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA
BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for
oppositors appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-
appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et
al.
J. R. Balonkita for appellee People's Bank & Trust
Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely
of law, from an order of the Court of First Instance of
Manila dated April 30, 1964, approving the project of
partition filed by the executor in Civil Case No. 37089
therein.1wph1.t
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the
State of Texas and of the United States." By his first
wife, Mary E. Mallen, whom he divorced, he had five
legitimate children: Edward A. Bellis, George Bellis
(who pre-deceased him in infancy), Henry A. Bellis,
Alexander Bellis and Anna Bellis Allsman; by his
second wife, Violet Kennedy, who survived him, he
had three legitimate children: Edwin G. Bellis, Walter
S. Bellis and Dorothy Bellis; and finally, he had three
illegitimate children: Amos Bellis, Jr., Maria Cristina
Bellis and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in
the Philippines, in which he directed that after all
taxes, obligations, and expenses of administration are
paid for, his distributable estate should be divided, in
trust, in the following order and manner: (a)
$240,000.00 to his first wife, Mary E. Mallen; (b)
P120,000.00 to his three illegitimate children, Amos
Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis,
or P40,000.00 each and (c) after the foregoing two
items have been satisfied, the remainder shall go to
his seven surviving children by his first and second
wives, namely: Edward A. Bellis, Henry A. Bellis,
Alexander Bellis and Anna Bellis Allsman, Edwin G.
Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal
shares.1wph1.t by the registry receipt submitted on April 27, 1964 by
Subsequently, or on July 8, 1958, Amos G. Bellis died
a resident of San Antonio, Texas, U.S.A. His will was
admitted to probate in the Court of First Instance of
Manila on September 15, 1958.
The People's Bank and Trust Company, as executor
of the will, paid all the bequests therein including the
amount of $240,000.00 in the form of shares of stock
to Mary E. Mallen and to the three (3) illegitimate
children, Amos Bellis, Jr., Maria Cristina Bellis and
Miriam Palma Bellis, various amounts totalling
P40,000.00 each in satisfaction of their respective
legacies, or a total of P120,000.00, which it released
from time to time according as the lower court
approved and allowed the various motions or petitions
filed by the latter three requesting partial advances on
account of their respective legacies.
On January 8, 1964, preparatory to closing its
administration, the executor submitted and filed its
"Executor's Final Account, Report of Administration
and Project of Partition" wherein it reported, inter alia,
the satisfaction of the legacy of Mary E. Mallen by the
delivery to her of shares of stock amounting to
$240,000.00, and the legacies of Amos Bellis, Jr.,
Maria Cristina Bellis and Miriam Palma Bellis in the
amount of P40,000.00 each or a total of P120,000.00.
In the project of partition, the executor pursuant to
the "Twelfth" clause of the testator's Last Will and
Testament divided the residuary estate into seven
equal portions for the benefit of the testator's seven
legitimate children by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam
Palma Bellis filed their respective oppositions to the
project of partition on the ground that they were
deprived of their legitimes as illegitimate children and,
therefore, compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite
notice to him, proof of service of which is evidenced
the executor.1
After the parties filed their respective memoranda and
other pertinent pleadings, the lower court, on April 30,
1964, issued an order overruling the oppositions and
approving the executor's final account, report and
administration and project of partition. Relying upon
Art. 16 of the Civil Code, it applied the national law of
the decedent, which in this case is Texas law, which
did not provide for legitimes.
Their respective motions for reconsideration having
been denied by the lower court on June 11, 1964,
oppositors-appellants appealed to this Court to raise
the issue of which law must apply Texas law or
Philippine law.
In this regard, the parties do not submit the case on,
nor even discuss, the doctrine of renvoi, applied by
this Court in Aznar v. Christensen Garcia, L-16749,
January 31, 1963. Said doctrine is usually pertinent
where the decedent is a national of one country, and
a domicile of another. In the present case, it is not
disputed that the decedent was both a national of
Texas and a domicile thereof at the time of his
death.2 So that even assuming Texas has a conflict of
law rule providing that the domiciliary system (law of
the domicile) should govern, the same would not
result in a reference back (renvoi) to Philippine law,
but would still refer to Texas law. Nonetheless, if
Texas has a conflicts rule adopting the situs theory
(lex rei sitae) calling for the application of the law of
the place where the properties are situated, renvoi
would arise, since the properties here involved are
found in the Philippines. In the absence, however, of
proof as to the conflict of law rule of Texas, it should
not be presumed different from ours.3 Appellants'
position is therefore not rested on the doctrine of
renvoi. As stated, they never invoked nor even
mentioned it in their arguments. Rather, they argue
that their case falls under the circumstances
mentioned in the third paragraph of Article 17 in
relation to Article 16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code,
render applicable the national law of the decedent, in
intestate or testamentary successions, with regard to
four items: (a) the order of succession; (b) the amount
of successional rights; (e) the intrinsic validity of the
provisions of the will; and (d) the capacity to succeed.
They provide that
ART. 16. Real property as well as personal
property is subject to the law of the country
where it is situated.
However, intestate and testamentary
successions, both with respect to the order
of succession and to the amount of
successional rights and to the intrinsic
validity of testamentary provisions, shall be
regulated by the national law of the person
whose succession is under consideration,
whatever may he the nature of the property
and regardless of the country wherein said
property may be found.
ART. 1039. Capacity to succeed is governed decedent's intention in executing a separate
by the law of the nation of the decedent. Philippine will, it would not alter the law, for as this
Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a
Appellants would however counter that Art. 17, provision in a foreigner's will to the effect that his
paragraph three, of the Civil Code, stating that properties shall be distributed in accordance with
Philippine law and not with his national law, is illegal
Prohibitive laws concerning persons, their and void, for his national law cannot be ignored in
acts or property, and those which have for regard to those matters that Article 10 now Article
their object public order, public policy and 16 of the Civil Code states said national law should
good customs shall not be rendered govern.
ineffective by laws or judgments
promulgated, or by determinations or The parties admit that the decedent, Amos G. Bellis,
conventions agreed upon in a foreign was a citizen of the State of Texas, U.S.A., and that
country. under the laws of Texas, there are no forced heirs or
legitimes. Accordingly, since the intrinsic validity of the
provision of the will and the amount of successional
prevails as the exception to Art. 16, par. 2 of the Civil
rights are to be determined under Texas law, the
Code afore-quoted. This is not correct. Precisely,
Philippine law on legitimes cannot be applied to the
Congress deleted the phrase, "notwithstanding the
testacy of Amos G. Bellis.
provisions of this and the next preceding article" when
they incorporated Art. 11 of the old Civil Code as Art.
Wherefore, the order of the probate court is hereby
17 of the new Civil Code, while reproducing without
substantial change the second paragraph of Art. 10 of affirmed in toto, with costs against appellants. So
the old Civil Code as Art. 16 in the new. It must have ordered.
been their purpose to make the second paragraph of
Art. 16 a specific provision in itself which must be
applied in testate and intestate succession. As further
indication of this legislative intent, Congress added a
new provision, under Art. 1039, which decrees that
capacity to succeed is to be governed by the national
law of the decedent.
It is therefore evident that whatever public policy or
good customs may be involved in our System of
legitimes, Congress has not intended to extend the
same to the succession of foreign nationals. For it has
specifically chosen to leave, inter alia, the amount of
successional rights, to the decedent's national law.
Specific provisions must prevail over general ones.
Appellants would also point out that the decedent
executed two wills one to govern his Texas estate
and the other his Philippine estate arguing from
this that he intended Philippine law to govern his
Philippine estate. Assuming that such was the
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-1606 May 28, 1949
IN THE MATTER OF THE PETITION OF YEE BO
MANN FOR PHILIPPINE CITIZENSHIP. YEE BO
MANN,petitioner-appellee,
vs.
THE REPUBLIC OF THE PHILIPPINES, oppositor-
appellant.
First Assistant Solicitor General Roberto A. Gianzon
and Solicitor Florencio Villamor for appellant.
H.S. Hermosisima for appellee.
REYES, J.:
This is petition for naturalization.
Petitioner Yee Bo Mann was born in Canton, China, in
1898, of Chinese parents, who at an earlier date had
become naturalized citizens of the United States. In
1915 he immigrated to the Philippines and located in
the City of Cebu, where he has resided continuosly
since then. Studying in the public schools there and
completing the primary and secondary courses,
including a four-year commercial course, he became
a licensed public accountant in 1925 and has since
then engaged in the practice of that profession in
addition to being a general merchant and purchasing
agent. In 1922 he married Helen Leu, an American
citizen born in Hawaii, and with her came to have two
children, Nellie and Philip, born in 1924 and 1933,
respectively. Nellie took her primary course partly in
Hongkong and partly in Cebu and was at the time of
the trial a high school.
Petitioner believes in the principles underlying the As to the other ground of appeal, it appears that
Philippine Constitution and can speak and write petitioner has presented in evidence a translation of
English and the Cebu Visayan dialect. He is not a the Chinese naturalization law certified to be correct
polygamist and has never been convicted of any by the Chinese Consulate General in Manila. The
crime involving moral turpitude. He has a sister who is admissibility not conform to section 41, Rule 123 of
married to a Filipino, Atty. Manuel Veloso, and he has the Rule of Court. The objection is of no moment,
no more relatives in China. Asked why he wanted to since this Court has already accepted it as a fact in
become a Filipino citizen, he answered: "I have been previous naturalization cases that the laws China
here so long, I was educated here, I have so many permit Filipinos to naturalize in that country.
Filipino friends and I love them and they love me too."
He says he has already decided to spend the rest of In view of the foregoing, the decision appealed from is
his life in the Philippines. affirmed, without special pronouncement as to costs.
The Court of First Instance of Cebu granted the
petition, and the case is now here on appeal by the
Government on the ground that petitioner has failed to
declare his intention to become a Filipino citizen one
year before the filing of his petition to prove at the trial
that the laws of China permit Filipinos to naturalize in
that country.
As to the first ground, section 5 of the Revised
Naturalization to declare his intention to become a
Filipino citizen one year before the application. But
section 6 of the same law exempts from that
requirement, among others, those who have resided
continuously in the Philippines for 30 years or more
before the filing of their application, provided "that the
applicant has given primary and secondary education
to all his children in the public schools or in private
schools recognized by the Government and not
limited to any race or nationality." The Solicitor
General construes this proviso as requiring
completion of both primary and secondary education
by all the children of the applicant. This court,
however, has already held in other cases, among
them that of Rafael Roa Yrostorza vs. Republic of the
Philippines,1 G.R. No. L-1394, that enrollment in the
proper school is sufficient compliance with the law.
Petitioner's case comes within this ruling, since his
children are actually studying in school albeit they
have not yet finished secondary education.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-32636 March 17, 1930
In the matter Estate of Edward Randolph Hix,
deceased.
A.W. FLUEMER, petitioner-appellant,
vs.
ANNIE COUSHING HIX, oppositor-appellee.
C.A. Sobral for appellant.
Harvey & O' Brien and Gibbs & McDonough for
appellee.
MALCOLM, J.:
The special administrator of the estate of Edward
Randolph Hix appeals from a decision of Judge of
First Instance Tuason denying the probate of the
document alleged to by the last will and testament of
the deceased. Appellee is not authorized to carry on
this appeal. We think, however, that the appellant,
who appears to have been the moving party in these
proceedings, was a "person interested in the
allowance or disallowance of a will by a Court of First
Instance," and so should be permitted to appeal to the
Supreme Court from the disallowance of the will
(Code of Civil Procedure, sec. 781, as amended;
Villanueva vs. De Leon [1925], 42 Phil., 780).
It is theory of the petitioner that the alleged will was
executed in Elkins, West Virginia, on November 3,
1925, by Hix who had his residence in that
jurisdiction, and that the laws of West Verginia Code,
Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690,
and as certified to by the Director of the National
Library. But this was far from a compliance with the
law. The laws of a foreign jurisdiction do not prove
themselves in our courts. the courts of the Philippine
Islands are not authorized to take American Union.
Such laws must be proved as facts. (In re Estate of
Johnson [1918], 39 Phil., 156.) Here the requirements
of the law were not met. There was no was printed or
published under the authority of the State of West
Virginia, as provided in section 300 of the Code of
Civil Procedure. Nor was the extract from the law
attested by the certificate of the officer having charge
of the original, under the sale of the State of West
Virginia, as provided in section 301 of the Code of
Civil Procedure. No evidence was introduced to show
that the extract from the laws of West Virginia was in
force at the time the alleged will was executed.
In addition, the due execution of the will was not
established. The only evidence on this point is to be
found in the testimony of the petitioner. Aside from
this, there was nothing to indicate that the will was
acknowledged by the testator in the presence of two
competent witnesses, of that these witnesses
subscribed the will in the presence of the testator and
of each other as the law of West Virginia seems to
require. On the supposition that the witnesses to the
will reside without the Philippine Islands, it would then
the duty of the petitioner to prove execution by some
other means (Code of Civil Procedure, sec. 633.)
It was also necessary for the petitioner to prove that
the testator had his domicile in West Virginia and not
establish this fact consisted of the recitals in
the CATHY will and the testimony of the petitioner.
Also in beginning administration proceedings orginally
in the Philippine Islands, the petitioner violated his
own theory by attempting to have the principal
administration in the Philippine Islands.
While the appeal pending submission in this court, the
attorney for the appellant presented an unverified
petition asking the court to accept as part of the
evidence the documents attached to the petition. One
of these documents discloses that a paper writing
purporting to be the was presented for probate on
June 8, 1929, to the clerk of Randolph Country, State
of West Virginia, in vacation, and was duly proven by
the oaths of Dana Wamsley and Joseph L. MAdden,
the subscribing witnesses thereto , and ordered to be
recorded and filed. It was shown by another
document that, in vacation, on June 8, 1929, the clerk
of court of Randolph Country, West Virginia,
appointed Claude W. Maxwell as administrator, cum
testamento annexo, of the estate of Edward Randolph
Hix, deceased. In this connection, it is to be noted that
the application for the probate of the will in the
Philippines was filed on February 20, 1929, while the
proceedings in West Virginia appear to have been
initiated on June 8, 1929. These facts are strongly
indicative of an intention to make the Philippines the
principal administration and West Virginia the ancillary
administration. However this may be, no attempt has
been made to comply with Civil Procedure, for no
hearing on the question of the allowance of a will said
to have been proved and allowed in West Virginia has
been requested. There is no showing that the
deceased left any property at any place other than the
Philippine Islands and no contention that he left any in
West Virginia.
Reference has been made by the parties to a divorce
purported to have been awarded Edward Randolph
Hix from Annie Cousins Hix on October 8, 1925, in the
State of West specific pronouncements on the validity
or validity of this alleged divorce.
For all of the foregoing, the judgment appealed from
will be affirmed, with the costs of this instance against
the appellant.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-3087 and L-3088 July 31, 1954
In re: Testate Estate of the deceased JOSE B.
SUNTAY. SILVINO SUNTAY, petitioner-appellant,
vs.
In re: Intestate Estate of the deceased JOSE B.
SUNTAY,
FEDERICO C. SUNTAY, administrator-appellee.
Claro M. Recto for appellant.
Sison and Aruego for appellee.
PADILLA, J.:
This is an appeal from a decree of the Court of First
Instance of Bulacan disallowing the alleged will and
testament executed in Manila on November 1929,
and the alleged last will and testament executed in
Kulangsu, Amoy, China, on 4 January 1931, by Jose
B. Suntay. The value of the estate left by the
deceased is more than P50,000.
On 14 May 1934 Jose B. Suntay, a Filipino citizen and
resident of the Philippines, died in the city of Amoy,
Fookien province, Republic of China, leaving real and
personal properties in the Philippines and a house in
Amoy, Fookien province, China, and children by the
first marriage had with the late Manuela T. Cruz
namely, Apolonio, Concepcion, Angel, Manuel,
Federico, Ana, Aurora, Emiliano, and Jose, Jr. and a
child named Silvino by the second marriage had with
Maria Natividad Lim Billian who survived him.
Intestate proceedings were instituted in the Court of
First Instance of Bulacan (special proceedings No.
4892) and after hearing letters of administration were
issued to Apolonio Suntay. After the latter's death
Federico C. Suntay was appointed administrator of
the estate. On 15 October 1934 the surviving widow
filed a petition in the Court of First Instance of
Bulacan for the probate of a last will and testament
claimed to have been executed and signed in the
Philippines on November 1929 by the late Jose B.
Suntay. This petition was denied because of the loss
of said will after the filing of the petition and before the
hearing thereof and of the insufficiency of the
evidence to establish the loss of the said will. An
appeal was taken from said order denying the probate
of the will and this Court held the evidence before the
probate court sufficient to prove the loss of the will
and remanded the case to the Court of First Instance
of Bulacan for the further proceedings (63 Phil., 793).
In spite of the fact that a commission from the probate
court was issued on 24 April 1937 for the taking of the
deposition of Go Toh, an attesting witness to the will,
on 7 February 1938 the probate court denied a motion
for continuance of the hearing sent by cablegram from
China by the surviving widow and dismissed the
petition. In the meantime the Pacific War supervened.
After liberation, claiming that he had found among the
files, records and documents of his late father a will
and testament in Chinese characters executed and
signed by the deceased on 4 January 1931 and that
the same was filed, recorded and probated in the
Amoy district court, Province of Fookien, China,
Silvino Suntay filed a petition in the intestate
proceedings praying for the probate of the will
executed in the Philippines on November 1929
(Exhibit B) or of the will executed in Amoy, Fookien,
China, on 4 January 1931 (Exhibit N).
There is no merit in the contention that the petitioner
Silvino Suntay and his mother Maria Natividad Lim
Billian are estopped from asking for the probate of the
lost will or of the foreign will because of the transfer or
assignment of their share right, title and interest in the
estate of the late Jose B. Suntay to Jose G. Gutierrez
and the spouses Ricardo Gutierrez and Victoria Goo
and the subsequent assignment thereof by the
assignees to Francisco Pascual and by the latter to
Federico C. Suntay, for the validity and legality of
such assignments cannot be threshed out in this
proceedings which is concerned only with the probate
of the will and testament executed in the Philippines
on November 1929 or of the foreign will allegedly
executed in Amoy on 4 January 1931 and claimed to
have been probated in the municipal district court of
Amoy, Fookien province, Republic of China.
As to prescription, the dismissal of the petition for
probate of the will on 7 February 1938 was no bar to
the filing of this petition on 18 June 1947, or before
the expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or destroyed
will unless the execution and validity of the
same be established, and the will is proved
to have been in existence at the time of the
death of the testator, or is shown to have
been fraudulently or accidentally destroyed
in the lifetime of the testator without his
knowledge, nor unless its provisions are
clearly and distinctly proved by at least two
credible witnesses. When a lost will is
proved, the provisions thereof must be
distinctly stated and certified by the judge,
under the seal of the court, and the
certificate must be filed and recorded as
other wills are filed and recorded.
The witnesses who testified to the provisions of the
lost will are Go Toh, an attesting witness, Anastacio
Teodoro and Ana Suntay. Manuel Lopez, who was an
attesting witness to the lost will, was dead at the time
of the hearing of this alternative petition. In his
deposition Go Toh testifies that he was one of the
witnesses to the lost will consisting of twenty-three
sheets signed by Jose B. Suntay at the bottom of the
will and each and every page thereof in the presence
of Alberto Barretto, Manuel Lopez and himself and
underneath the testator's signature the attesting
witnesses signed and each of them signed the
attestation clause and each and every page of the will
in the presence of the testator and of the other
witnesses (answers to the 31st, 41st, 42nd, 49th,
50th, 55th and 63rd interrogatories, Exhibit D-1), but
did not take part in the drafting thereof (answer to the
11th interrogatory, Id.); that he knew the contents of
the will written in Spanish although he knew very little
of that language (answers to the 22nd and 23rd
interrogatories and to X-2 cross-interrogatory, Id.) and
all he knows about the contends of the lost will was
revealed to him by Jose B. Suntay at the time it was
executed (answers to the 25th interrogatory and to X-
4 and X-8 cross-interrogatories, Id.); that Jose B.
Suntay told him that the contents thereof are the
same as those of the draft (Exhibit B) (answers to the
33rd interrogatory and to X-8 cross-interrogatory, Id.)
which he saw in the office of Alberto Barretto in
November 1929 when the will was signed (answers to
the 69th, 72nd, and 74th interrogatories, Id); that
Alberto Barretto handed the draft and said to Jose B.
Suntay: "You had better see if you want any
correction" (answers to the 81st, 82nd and 83rd
interrogatories, Id.); that "after checking Jose B.
Suntay put the "Exhibit B" in his pocket and had the
original signed and executed" (answers to the 91st
interrogatory, and to X-18 cross-interrogatory, Id.);
that Mrs. Suntay had the draft of the will (Exhibit B)
translated into Chinese and he read the translation
(answers to the 67th interrogatory, Id.); that he did not
read the will and did not compare it (check it up) with
the draft (Exhibit B) (answers to X-6 and X-20 cross-
interrogatories, Id.).
Ana Suntay testifies that sometime in September
1934 in the house of her brother Apolonio Suntay she
learned that her father left a will "because of the
arrival of my brother Manuel Suntay, who was
bringing along with him certain document and he told
us or he was telling us that it was the will of our father
Jose B. Suntay which was taken from Go Toh. ..." (p.
524, t. s. n., hearing of 24 February 1948); that she
saw her brother Apolonio Suntay read the document
in her presence and of Manuel and learned of the
adjudication made in the will by her father of his
estate, to wit: one-third to his children, one-third to
Silvino and his mother and the other third to Silvino,
Apolonio, Concepcion and Jose, Jr. (pp. 526-8, 530-1,
542, t. s. n. Id.); that "after Apolonio read that portion,
then he turned over the document to Manuel, and he
went away," (p. 528, t. s. n., Id.). On cross-
examination, she testifies that she read the part of the
will on adjudication to know what was the share of
each heir (pp. 530, 544, t. s. n., Id.) and on redirect
she testifies that she saw the signature of her father,
Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t.
s. n., Id.).
Anastacio Teodoro testifies that one day in November
1934 (p. 273, t. s. n., hearing of 19 January 1948),
before the last postponement of the hearing granted
by the Court, Go Toh arrived at his law office in the De
los Reyes Building and left an envelope wrapped in
red handkerchief [Exhibit C] (p. 32, t. s. n., hearing of
13 October 1947); that he checked up the signatures
on the envelope Exhibit A with those on the will placed
in the envelope (p. 33, t. s. n., Id.); that the will was
exactly the same as the draft Exhibit B (pp. 32, 47,
50, t. s. n., Id.).
If the will was snatched after the delivery thereof by
Go Toh to Anastacio Teodoro And returned by the
latter to the former because they could not agree on
the amount of fees, the former coming to the latter's
office straight from the boat (p. 315, t. s. n., hearing of
19 January 1948) that brought him to the Philippines
from Amoy, and that delivery took place in November
1934 (p. 273, t. s. n., Id.), then the testimony of Ana
Suntay that she saw and heard her brother Apolonio
Suntay read the will sometime in September 1934 (p.
524, t. s. n., hearing of 24 February 1948), must not
be true.
Although Ana Suntay would be a good witness
because she was testifying against her own interest,
still the fact remains that she did not read the whole
will but only the adjudication (pp. 526-8, 530-1, 542, t.
s. n., Id.) and saw only the signature, of her father and
of the witnesses Go Toh, Manuel Lopez and Alberto
Barretto (p. 546, t. s. n., Id.). But her testimony on
cross-examination that she read the part of the will on
adjudication is inconsistent with her testimony in chief
that after Apolonio had read that part of the will he
turned over or handed the document to Manuel who
went away (p. 528, t. s. n., Id.).
If it is true that Go Toh saw the draft Exhibit B in the
office of Alberto Barretto in November 1929 when the
will was signed, then the part of his testimony that
Alberto Barretto handed the draft to Jose B. Suntay to
whom he said: "You had better see if you want any
correction" and that "after checking Jose B. Suntay
put the "Exhibit B" in his pocket and had the original
signed and executed" cannot be true, for it was not
the time for correcting the draft of the will, because it
must have been corrected before and all corrections
and additions written in lead pencil must have been
inserted and copied in the final draft of the will which
was signed on that occasion. The bringing in for the
draft (Exhibit B) on that occasion is just to fit it within
the framework of the appellant's theory. At any rate,
all of Go Toh's testimony by deposition on the
provisions of the alleged lost will is hearsay, because
he came to know or he learned to them from
information given him by Jose B. Suntay and from
reading the translation of the draft (Exhibit B) into
Chinese.
Much stress is laid upon the testimony of Federico C.
Suntay who testifies that he read the supposed will or
the alleged will of his father and that the share of the
surviving widow, according to the will, is two-thirds of
the estate (p. 229, t. s. n., hearing of 24 October
1947). But this witness testified to oppose the
appointment of a co-administrator of the estate, for
the reason that he had acquired the interest of the
surviving widow not only in the estate of her deceased
husband but also in the conjugal property (pp. 148,
205, 228, 229, 231, t. s. n., Id.) Whether he read the
original will or just the copy thereof (Exhibit B) is not
clear. For him the important point was that he had
acquired all the share, participation and interest of the
surviving widow and of the only child by the second
marriage in the estate of his deceased father. Be that
as it may, his testimony that under the will the
surviving widow would take two-thirds of the estate of
the late Jose B. Suntay is at variance with Exhibit B
and the testimony of Anastacio Teodoro. According to
the latter, the third for strict legitime is for the ten
children; the third for betterment is for Silvino,
Apolonio, Concepcion and Jose Jr.; and the third for
free disposal is for the surviving widow and her child
Silvino.
Hence, granting that there was a will duly executed by
Jose B. Suntay placed in the envelope (Exhibit A) and
that it was in existence at the time of, and not revoked
before, his death, still the testimony of Anastacio
Teodoro alone falls short of the legal requirement that
the provisions of the lost will must be "clearly and
distinctly proved by at least two credible witnesses."
Credible witnesses mean competent witnesses and
those who testify to facts from or upon hearsay are
neither competent nor credible witnesses.
On the other hand, Alberto Barretto testifies that in the
early part of 1929 he prepared or drew up two mills
for Jose B. Suntay at the latter's request, the rough
draft of the first will was in his own handwriting, given
to Manuel Lopez for the final draft or typing and
returned to him; that after checking up the final with
the rough draft he tore it and returned the final draft to
Manuel Lopez; that this draft was in favor of all the
children and the widow (pp. 392-4, 449, t. s. n.,
hearing of 21 February 1948); that two months later
Jose B. Suntay and Manuel Lopez called on him and
the former asked him to draw up another will favoring
more his wife and child Silvino; that he had the rough
draft of the second will typed (pp. 395, 449 t. s. n., Id.)
and gave it to Manuel Lopez (p. 396, t. s. n., Id.); that
he did not sign as witness the second will of Jose B.
Suntay copied from the typewritten draft [Exhibit B] (p.
420, t. s. n., Id.); that the handwritten insertions or
additions in lead pencil to Exhibit B are not his (pp.
415-7 435-6, 457, t. s. n., Id.); that the final draft of the
first will made up of four or five pages (p. 400, t. s.
n., Id.) was signed and executed, two or three months
after Suntay and Lopez had called on him (pp. 397-8,
403, 449, t. s. n., Id.) in his office at the Cebu Portland
Cement in the China Banking Building on Dasmarias
street by Jose B. Suntay, Manuel Lopez and a
Chinaman who had all come from Hagonoy (p. 398, t.
s. n., Id.); that on that occasion they brought an
envelope (Exhibit A) where the following words were
written: "Testamento de Jose B. Suntay" (pp. 399,
404, t. s. n., Id.); that after the signing of the will it was
placed inside the envelope (Exhibit A) together with
an inventory of the properties of Jose B. Suntay and
the envelope was sealed by the signatures of the
testator and the attesting witnesses (pp. 398, 401,
441, 443, 461, t. s. n., Id.); that he again saw the
envelope (Exhibit A) in his house one Saturday in the
later part of August 1934, brought by Go Toh and it
was then in perfect condition (pp. 405-6, 411, 440-2, t.
s. n., Id.); that on the following Monday Go Toh went
to his law office bringing along with him the envelope
(Exhibit A) in the same condition; that he told Go Toh
that he would charge P25,000 as fee for probating the
will (pp. 406, 440-2, Id.); that Go Toh did not leave the
envelope (Exhibit A) either in his house or in his law
office (p. 407, t. s. n., Id.); that Go Toh said he wanted
to keep it and on no occasion did Go Toh leave it to
him (pp. 409, 410, t. s. n., Id.).
The testimony of Go Toh taken and heard by
Assistant Fiscal F. B. Albert in connection with the
complaint for estafa filed against Manuel Suntay for
the alleged snatching of the envelope (Exhibit A),
corroborates the testimony of Alberto Barretto to the
effect that only one will was signed by Jose B. Suntay
at his office in which he (Alberto Barretto), Manuel
Lopez and Go Toh took part as attesting witnesses (p.
15, t. s. n., Exhibit 6). Go Toh testified before the
same assistant fiscal that he did not leave the will in
the hands of Anastacio Teodoro (p. 26, t. s. n., Exhibit
6). He said, quoting his own words, "Because I can
not give him this envelope even though the contract
(on fees) was signed. I have to bring that document to
court or to anywhere else myself." (p. 27, t. s. n.,
Exhibit 6).
As to the will claimed to have been executed on 4
January 1931 in Amoy, China, the law on the point in
Rule 78. Section 1 of the rule provides:
Wills proved and allowed in a foreign
country, according to the laws of such
country, may be allowed, filed, and recorded
by the proper Court of First Instance in the
Philippines.
Section 2 provides:
When a copy of such will and the allowance
thereof, duly authenticated, is filed with a
petition for allowance in the Philippines, by
the executor or other person interested, in
the court having jurisdiction, such court shall
fix a time and place for the hearing, and
cause notice thereof to be given as in case
of an original will presented for allowance.
Section 3 provides:
If it appears at the hearing that the will
should be allowed in the Philippines, the
court shall so allow it, and a certificate of its
allowance, signed by the Judge, and
attested by the seal of the courts, to which
shall be attached a copy of the will, shall be
filed and recorded by the clerk, and the will
shall have the same effect as if originally
proved and allowed in such court.
The fact that the municipal district court of Amoy,
China, is a probate court must be proved. The law of
China on procedure in the probate or allowance of
wills must also be proved. The legal requirements for
the execution of a valid will in China in 1931 should
also be established by competent evidence. There is
no proof on these points. The unverified answers to
the questions propounded by counsel for the
appellant to the Consul General of the Republic of
China set forth in Exhibits R-1 and R-2, objected to by
counsel for the appellee, are inadmissible, because
apart from the fact that the office of Consul General
does not qualify and make the person who holds it an
expert on the Chinese law on procedure in probate
matters, if the same be admitted, the adverse party
would be deprived of his right to confront and cross-
examine the witness. Consuls are appointed to attend
to trade matters. Moreover, it appears that all the
proceedings had in the municipal district court of
Amoy were for the purpose of taking the testimony of
two attesting witnesses to the will and that the order
of the municipal district court of Amoy does not
purport to probate the will. In the absence of proof
that the municipal district court of Amoy is a probate
court and on the Chinese law of procedure in probate
matters, it may be presumed that the proceedings in
the matter of probating or allowing a will in the
Chinese courts are the a deposition or to a
perpetuation of testimony, and even if it were so it
does not measure same as those provided for in our
laws on the subject. It is a proceedings in rem and for
the validity of such proceedings personal notice or by
publication or both to all interested parties must be
made. The interested parties in the case were known
to reside in the Philippines. The evidence shows that
no such notice was received by the interested parties
residing in the Philippines (pp. 474, 476, 481, 503-4, t.
s. n., hearing of 24 February 1948). The proceedings
had in the municipal district court of Amoy, China,
may be likened toe or come up to the standard of
such proceedings in the Philippines for lack of notice
to all interested parties and the proceedings were
held at the back of such interested parties.
The order of the municipal district court of Amoy,
China, which reads as follows:
ORDER:
SEE BELOW
The above minutes were satisfactorily
confirmed by the interrogated parties, who
declare that there are no errors, after said
minutes were loudly read and announced
actually in the court.
Done and subscribed on the Nineteenth day
of the English month of the 35th year of the
Republic of China in the Civil Section of the
Municipal District Court of Amoy, China.
HUANG KUANG CHENG
Clerk of Court
CHIANG TENG HWA
Judge
(Exhibit N-13, p. 89 Folder of Exhibits.).
does not purport to probate or allow the will which
was the subject of the proceedings. In view thereof,
the will and the alleged probate thereof cannot be
said to have been done in accordance with the
accepted basic and fundamental concepts and
principles followed in the probate and allowance of
wills. Consequently, the authenticated transcript of
proceedings held in the municipal district court of
Amoy, China, cannot be deemed and accepted as
proceedings leading to the probate or allowance of a
will and, therefore, the will referred to therein cannot
be allowed, filed and recorded by a competent court
of this country.
The decree appealed from is affirmed, without
pronouncement as to costs.
Pablo, Bengzon, A. Reyes, Labrador and
Concepcion, JJ., concur.
Separate Opinions
PARAS, C.J., dissenting:
As a preliminary statement we may well refer to the
case of Maria Natividad Lim Billian, petitioner and
appellant, vs. Apolonio Suntay, Angel Suntay, Manuel
Suntay, and Jose Suntay, oppositors and appellees,
63 Phil., 793-797, in which the following decision was
rendered by this Court on November 25, 1936,
holding that the will executed by Jose B. Suntay who
died in the City of Amoy, China, on May 14, 1934, was
lost under the circumstances pointed out therein, and
ordering the return of the case to the Court of First
Instance of Bulacan for further proceedings:
On May 14, 1934, Jose B. Suntay died in the
City of Amoy, China. He married twice, the
first time to Manuela T. Cruz with whom he
had several children now residing in the
Philippines, and the second time to Maria
Natividad Lim Billian with whom he had a
son.
On the same date, May 14, 1934, Apolonio
Suntay, eldest son of the deceased by his
first marriage, filed the latter's intestate in the
Court of First Instance of Manila (civil case
No. 4892).
On October 15, 1934, and in the same court,
Maria Natividad Lim Billian also instituted the
present proceedings for the probate of a will
allegedly left by the deceased.
According to the petitioner, before the
deceased died in China he left with her a
sealed envelope (Exhibit A) containing his
will and, also another document (Exhibit B of
the petitioner) said to be a true copy of the
original contained in the envelope. The will in
the envelope was executed in the
Philippines, with Messrs. Go Toh, Alberto
Barretto and Manuel Lopez as attesting
witnesses. On August 25, 1934, Go Toh, as
attorney-in-fact of the petitioner, arrived in
the Philippines with the will in the envelope
and its copy Exhibit B. While Go Toh was
showing this envelope to Apolonio Suntay
and Angel Suntay, children by first marriage
of the deceased, they snatched and opened
it and, after getting its contents and throwing
away the envelope, they fled.
Upon this allegation, the petitioner asks in
this case that the brothers Apolonio, Angel,
Manuel and Jose Suntay, children by the first
marriage of the deceased, who allegedly
have the document contained in the
envelope which is the will of the deceased,
be ordered to present it in court, that a day
be set for the reception of evidence on the
will, and that the petitioner be appointed
executrix pursuant to the designation made
by the deceased in the will.
In answer to the court's order to present the
alleged will, the brothers Apolonio, Angel,
Manuel and Jose Suntay stated that they did
not have the said will and denied having
snatched it from Go Toh.
In view of the allegations of the petition and
the answer of the brothers Apolonio, Angel,
Manuel and Jose Suntay, the questions
raised herein are: The loss of the alleged will
of the deceased, whether Exhibit B
accompanying the petition is an authentic
copy thereof, and whether it has been
executed with all the essential and
necessary formalities required by law for its
probate.
At the trial of the case on March 26, 1934,
the petitioner put two witnesses upon the
stand, Go Toh and Tan Boon Chong, who
corroborated the allegation that the brothers
Apolonio and Angel appropriated the
envelope in the circumstances above-
mentioned. The oppositors have not
adduced any evidence counter to the
testimony of these two witnesses. The court,
while making no express finding on this fact,
took it for granted in its decision; but it
dismissed the petition believing that the
evidence is insufficient to establish that the
envelope seized from Go Toh contained the
will of the deceased, and that the said will
was executed with all the essential and
necessary formalities required by law for its
probate.
In our opinion, the evidence is sufficient to
establish the loss of the document contained
in the envelope. Oppositors' answer admits
that, according to Barretto, he prepared a will
of the deceased to which he later become a
witness together with Go Toh and Manuel
Lopez, and that this will was placed in an
envelope which was signed by the deceased
and by the instrumental witnesses. In court
there was presented and attached to the
case an open and empty envelope signed by
Jose B. Suntay, Alberto Barretto, Go Toh and
Manuel Lopez. It is thus undeniable that this
envelope Exhibit A is the same one that
contained the will executed by the deceased-
drafted by Barretto and with the latter, Go
Toh and Manuel Lopez as attesting
witnesses. These tokens sufficiently point to
the loss of the will of the deceased, a
circumstance justifying the presentation of
secondary evidence of its contents and of
whether it was executed with all the essential
and necessary legal formalities.
The trial of this case was limited to the proof
of loss of the will, and from what has taken
place we deduce that it was not petitioner's
intention to raise, upon the evidence
adduced by her, the other points involved
herein, namely, as we have heretofore
indicated, whether Exhibit B is a true copy of
the will and whether the latter was executed
with all the formalities required by law for its
probate. The testimony of Alberto Barretto
bears importantly in this connection.
Wherefore, the loss of the will executed by
the deceased having been sufficiently
established, it is ordered that this case be
remanded to the court of origin for further
proceedings in obedience to this decision,
without any pronouncement as to the costs.
So ordered
On June 18, 1947, Silvino Suntay, the herein
petitioner, filed a petition in the Court of First Instance
of Bulacan praying "that an order be issued (a) either
directing the continuation of the proceedings in the
case remanded by the Supreme Court by virtue of its
decision in G. R. No. 44276 and fixing a date for the
reception of evidence of the contents of the will
declared lost, or the allowance, filing and recording of
the will of the deceased which had been duly
probated in China, upon the presentation of the
certificates and authentications required by Section
41, Rule 123 (Yu Chengco vs. Tiaoqui supra), or both
proceedings concurrently and simultaneously; (b) that
letters of administration be issued to herein petitioner
as co-administrator of the estate of the deceased
together with Federico Suntay; and (c) that such other
necessary and proper orders be issued which this
Honorable Court deems appropriate in the premises."
While this petition was opposed by Federico C.
Suntay, son of the deceased Jose B. Suntay with his
first wife, Manuela T. Cruz, the other children of the
first marriage, namely, Ana Suntay, Aurora Suntay,
Concepcion Suntay, Lourdes Guevara Vda. de
Suntay, Manuel Suntay and Emiliano Suntay, filed the
following answer stating that they had no opposition
thereto; "Come now the heirs Concepcion Suntay,
Ana Suntay, Aurora Suntay, Lourdes Guevara Vda. de
Suntay, Manuel Suntay, and Emiliano Suntay, through
their undersigned attorney, and, in answer to the
alternative petition filed in these proceedings by
Silvino Suntay, through counsel, dated June 18, 1947,
to this Honorable Court respectfully state that, since
said alternative petition seeks only to put into effect
the testamentary disposition and wishes of their late
father, they have no opposition thereto."
After hearing, the Court of First Instance of Bulacan
rendered on April 19, 1948, the following decision:
This action is for the legalization of the
alleged will of Jose B. Suntay, deceased.
In order to have a comprehensive
understanding of this case, it is necessary to
state the background on which the
alternative petition of the herein petitioner
Silvino Suntay has been based.
The decision of the Supreme Court (Exhibit
O), in re will of the deceased Jose B. Suntay,
63 Phil., 793-797, is hereunder produced:
(As quoted above)
The above quoted decision of the Supreme
Court was promulgated on November 25,
1936 (Exhibit O).
The Clerk of the Court of Court of First
Instance of Bulacan notified the parties of
the decision on December 15, 1936; and the
case was set for hearing on February 12,
1937, but it was transferred to March 29,
1937 (Exhibit O), on motion of the then
petitioner Maria Natividad Lim Billian (Exhibit
F). Again, it was postponed until "further
setting" in the order of court dated March 18,
1937, upon motion of the petitioner (Exhibit
H).
In the meantime, the deposition of Go Toh
was being sought (Exhibit H).
The hearing of the case was again set for
February 7, 1936, by order of the court dated
January 5, 1938, upon motion of Emiliano
Suntay and Jose Suntay, Jr. On the same
day of the hearing which had been set, the
petitioner, then, Maria Natividad Lim Billian,
sent a telegram from Amoy, China,
addressed to the Court of First Instance of
Bulacan moving for the postponement of the
hearing on the ground that Atty. Eriberto de
Silva who was representing her died (Exhibit
K). The court, instead of granting the
telegraphic motion for postponement,
dismissed the case in the order dated
February 7, 1938 (Exhibit L).
On July 3, 1947, the petitioner Silvino Suntay
filed a motion for the consolidation of the
intestate Estate of the deceased Jose B.
Suntay, Special Proceeding No. 4892 and
the Testate Estate of Jose B. Suntay, Special
Proceeding No. 4952, which latter case is
the subject of the said alternative petition.
The motion for the merger and consolidation
of the two cases was granted on July 3,
1947.
That oppositor, Federico C. Suntay, in the
Testate Proceeding filed a motion to dismiss
the alternative petition on November 14,
1947, which was denied by the court in its
resolution of November 22, 1947. The said
oppositor not being satisfied with the ruling
of this court denying the motion to dismiss,
filed before the Supreme Court a petition for
a writ of certiorari with preliminary injunction,
which was dismissed for lack of merit on
January 27, 1948.
In obedience to the decision of the Supreme
Court (Exhibit O) and upon the alternative
petition of Silvino Suntay, and, further, upon
the dismissal of the petition for a writ
of certiorari with preliminary injunction, the
court was constrained to proceed with the
hearing of the probate of the lost will, the
draft of which is Exhibit B, or the admission
and recording of the will which had been
probated in Amoy, China.
The evidence for the petitioner, Silvino
Suntay, shows that Jose B. Suntay married
twice; first to Manuela T. Cruz who died on
June 15, 1920 and had begotten with her
Apolonio, now deceased, Concepcion,
Angel, Manuel, Federico, Ana, Aurora,
Emiliano and Jose, Jr., all surnamed Suntay,
and second, to Maria Natividad Lim Billian
with whom he had as the only child Silvino
Suntay, the petitioner herein.
Some time in November 1929, Jose B.
Suntay executed his last will and testament
in the office of Atty. Alberto Barretto in
Manila, which was witnessed by Alberto
Barretto, Manuel Lopez and Go Toh. The will
was prepared by said Alberto Barretto upon
the instance of Jose B. Suntay, and it was
written in the Spanish language which was
understood and spoken by said testator.
After the due execution of the will, that is
signing every page and the attestation
clause by the testator and the witnesses in
the presence of each other, the will was
placed inside the envelope (Exhibit A),
sealed and on the said envelope the testator
and the three subscribing witnesses also
signed, after which it was delivered to Jose
B. Suntay.
A year or so after the execution of the will,
Jose B. Suntay together with his second wife
Maria Natividad Lim Billian and Silvino
Suntay who was then of tender age went to
reside in Amoy, Fookien, China, where he
died on May 14, 1934. The will was
entrusted to the widow, Maria Natividad Lim
Billian.
Upon the death of Jose B. Suntay on May
14, 1934, Apolonio Suntay, the oldest son
now deceased, instituted the Intestate
Proceedings No. 4892, upon the
presumption that no will existed. Maria
Natividad Lim Billian who remained in Amoy,
China, had with her the will and she engaged
the services of the law firm of Barretto and
Teodoro for the probate of the will. Upon the
request of the said attorneys the will was
brought to the Philippines by Go Toh who
was one of the attesting witnesses, and it
was taken to the law office of Barretto and
Teodoro. The law firm of Barretto and
Teodoro was composed of Atty. Alberto
Barretto and Judge Anastacio Teodoro. The
probate of the will was entrusted to the junior
partner Judge Anastacio Teodoro; and, upon
the presentation of the sealed envelope to
him, he opened it and examined the said will
preparatory to the filing of the petition for
probate. There was a disagreement as to the
fees to be paid by Maria Natividad Lim
Billian, and as she (through Go Toh) could
not agree to pay, P20,000 as fees, the will
was returned to Go Toh by Judge Anastacio
Teodoro after the latter had kept it in his
safe, in his office, for three days.
Subsequently, the will inside the envelope
was snatched from Go Toh by Manuel
Suntay and Jose, Jr., which fact has been
established in the decision of the Supreme
Court at the beginning of this decision. Go
Toh could recover the envelope (Exhibit A)
and the piece of cloth with which the
envelope was wrapped (Exhibit C).
The Testate Proceeding was filed
nevertheless and in lien of the lost will a draft
of the will (Exhibit B) was presented as
secondary evidence for probate. It was
disallowed by this court through Judge
Buenaventura Ocampo, but on appeal the
Supreme Court remanded the case to this
court for further proceeding (Exhibit C).
In the meantime, a Chinese will which was
executed in Amoy Fookien, China, on
January 4, 1931, by Jose B. Suntay, written
in Chinese characters (Exhibit P) was
discovered in Amoy, China, among the
papers left by Jose B. Suntay, and said will
had been allowed to probate in the Amoy
District Court, China, which is being also
presented by Silvino Suntay for allowance
and recording in this court.
The said petition is opposed by Federico C.
Suntay on the main ground that Maria
Natividad Lim Billian and Silvino Suntay
have no more interest in the properties left
by Jose B. Suntay, because they have
already sold their respective shares,
interests and participations. But such a
ground of opposition is not of moment in the
instant case, because the proposition
involved herein in the legalization of the lost
will or the allowance and recording of the will
which had been probated in Amoy, China.
It is now incumbent upon this court to delve
into the evidence whether or not Jose B.
Suntay, deceased, left a will (the draft of
which is Exhibit B) and another will which
was executed and another will which was
executed and probated in Amoy, China.
There is no longer any doubt that Jose B.
Suntay while he was still residing in the
Philippines, had executed a will; such is the
conclusion of the Supreme Court in its
decision (Exhibit O). That the will was
snatched and it has never been produced in
court by those who snatched it, and
consequently considered lost, is also an
established fact.
The contention of the oppositor, Federico C.
Suntay, is that the will that was executed by
Jose B. Suntay in the Philippines contained
provisions which provided for equal
distribution of the properties among the
heirs; hence, the draft (Exhibit B) cannot be
considered as secondary evidence, because
it does not provide for equal distribution, but
if favors Maria Natividad Lim Billian and
Silvino Suntay. He relies on the testimony of
Atty. Alberto Barretto who declared that the
first will which he drafted and reduced into a
plain copy was the will that was executed by
Jose B. Suntay and placed inside the
envelope (Exhibit A).
Granting that the first will which Atty. Alberto
Barretto had drafted became the will of Jose
B. Suntay and it was snatched by, and,
therefore, it had fallen into the hands of,
Manuel Suntay and the brothers of the first
marriage, it stands to reason that said
Manuel Suntay and brothers would have
been primarily interested in the production of
said will in court, for obvious reasons,
namely, that they would have been favored.
But it was suppressed and "evidence willfully
suppressed would be adverse if produced"
(Section 69 (e), Rule 123 of the Rules of
Court). The contention, therefore, that the
first will which was drafted by Atty. Barretto
was the one placed inside the envelope
(Exhibit A) is untenable.
It might be said in this connection that the
draft of the will (Exhibit B) has been admitted
by Atty. Alberto Barretto as identical in
substance and form to the second draft
which he prepared in typewriting; it differs
only, according to him, in style. He denied
that the insertions in long hand in the said
draft are in his own handwriting; however,
Judge Anastacio Teodoro averred that the
said insertions are the handwriting of Atty.
Alberto Barretto. But when Atty. Alberto
Barretto was asked to show any manuscript
of his for purposes of comparison, he
declined to do so alleging that he did not
have any document in his possession
showing his handwriting notwithstanding the
fact that he was testifying in his own house
at 188 Sta. Mesa Boulevard, Manila. He
further testified that the first will be drafted
contained four or five pages, but the second
draft contained twenty-three pages; that he
declared in one breath that he did not read
the will any more when it was signed by the
testator and the attesting witnesses because
it would take up much time, and in the same
breath he declared that he checked it before
it was signed; and that he destroyed the draft
of the first will which was in his own
handwriting, but he delivered the draft of the
second will which he prepared to Jose B.
Suntay in the presence of Manuel Lopez,
now deceased.
Whether or not the final plain copy of the
draft of the will (Exhibit B) was executed by
the testator, Jose B. Suntay, and attested by
the subscribing witnesses, Atty. Alberto
Barretto, Manuel Lopez and Go Toh, is the
pivotal point in this instant case. Judge
Anastacio Teodoro testified that he opened
the sealed envelope when it was given to
him by Go Toh preparatory to the
presentation of the petition for the probate of
the said will. As the lawyer entrusted with
that task, he had to examine the will and
have it copied to be reproduced or appended
to the petition. He could not do otherwise if
he is worth salt as a good lawyer; he could
not perform the stunt of "blind flying" in the
judicial firmament. Every step must be taken
with certainty and precision under any
circumstances. He could not have talked
about the attorney's fees with Go Toh, unless
he has not examined the will beforehand.
And, declaring that it was the exact draft of
the will that was inside the envelope (Exhibit
A), the testimony of Atty. Alberto Barretto to
the contrary notwithstanding.
The testimony of Judge Anastacio Teodoro is
corroborated by Go Toh, one of the attesting
witnesses, in his deposition (Exhibit D-1).
Ana Suntay, one of the heirs and who would
be affected adversely by the legalization of
the will in question, also testified on rebuttal
that she saw the original will in the
possession of Manuel Suntay, immediately
after the snatching. She read it and she
particularly remembers the manner in which
the properties were to be distributed. Exhibit
B was shown to her on the witness stand
and she declared that the provision
regarding the distribution of the properties in
said Exhibit B is the same as that contained
in the original will. Said testimony of Ana
Suntay, therefore, belies the testimony of
Atty. Alberto Barretto.
With respect to the proof of lost or destroyed
will, Section 6 of Rule 77 provides as follows:
"No will shall be proved as a lost or
destroyed will unless the execution and
validity of the same be established, and the
will is proved to have been in existence at
the time of the death of the testator, or it is
shown to have been fraudulently or
accidentally destroyed in the lifetime of the
testator without his knowledge, nor unless its
provisions are clearly and distinctly proved
by at least two credible witnesses. When a
lost will is proved, the provisions thereof
must be distinctly stated and certified by the
judge, under the seal of the court, and the
certificate must be filed and recorded as
other wills are filed and recorded."
Section 8 of the same Rule provides as
follows:
"If it appears at the time fixed for the hearing
that the subscribing witnesses are dead or
insane, or that none of them resides in the
Philippines the court may admit the
testimony of other witnesses to prove the
sanity of the testator, and the due execution
of the will; and as evidence of the due
execution of the will, it may admit proof of
the handwriting of the testator and of the
subscribing witnesses, or any of them."
Manuel Lopez as one of the subscribing
witnesses is dead. Atty. Alberto Barretto and
Go Toh are still living. The former testified
during the hearing, while Go Toh's deposition
was introduced in evidence which was
admitted. In the absence of the testimony of
Manuel Lopez, deceased, the testimony of
Judge Anastacio Teodoro and Ana Suntay
was received.
It is an established fact that the will, draft of
which is Exhibit B, was lost or destroyed;
that it was executed and valid and that it
existed at the time of the death of Jose B.
Suntay. These circumstances also apply to
the will (Exhibit P) which was executed in
Amoy, China.
The contents of the Chinese will is
substantially the same as the draft (Exhibit
B). Granting that the will executed in the
Philippines is non-existent as contended by
the oppositor, although the findings of this
court is otherwise, the will executed and
probated in China should be allowed and
recorded in this court. All the formalities of
the law in China had been followed in its
execution, on account of which it was duly
probated in the Amoy District Court. There is
no cogent reason, therefore, why it should
not be admitted and recorded in this
jurisdiction.
The said will (Exhibit P) in Chinese
characters is presented as an alternate in
case the will executed in the Philippines
would not be allowed to probate, or as a
corroborative evidence that the will, the draft
of which is Exhibit B, has been duly
executed in the Philippines by Jose B.
Suntay.
Rule 78 of the Rules of Court covers the
allowance of will proved outside of the
Philippines and administration of estate
thereunder.
Section 1 of said rule provides:
"Wills proved and allowed in the United
States, or any state or territory thereof, or in
foreign country, according to the laws of such
state, territory, or country, may be allowed,
filed, and recorded by the proper Court of
First Instance in the Philippines."
Section 2 of the same rule provides:
"When a copy of such will and the allowance
thereof, duly authenticated, is filed with a
petition for allowance in the Philippines, by
the executor or other person interested, in
the court having jurisdiction, such court shall
fix a time and place for the hearing, and
cause notice thereof to be given as in case
of an original will presented for allowance."
This court has delved deep into the evidence
adduced during the hearing with that
penetrating scrutiny in order to discovery the
real facts; it had used unsparingly the judicial
scapel; and it has winnowed the evidenced
to separate the grain from the chaff. All the
facts lead to the inevitable conclusion that
Jose B. Suntay, in his sound and disposing
mind and not acting under duress or undue
influence, executed the will which is lost, the
draft of which is Exhibit B, with all the
necessary formalities prescribed by law. He,
likewise, executed the second will (Exhibit P)
in Amoy, China, which has been duly
probated in Amoy District Court,-a
corroborative evidence that the testator
really executed the will. Copies of the said
wills duly certified and under the seal of the
court are appended hereto, marked Exhibits
B and P, and they form part of this decision.
In view of the foregoing considerations, the
court is of the opinion and so declares that
the draft of the will (Exhibit B) is, to all legal
intents and purposes, and testament of the
deceased Jose B. Suntay. With costs against
the oppositor, Federico C. Suntay.
Oppositor Federico C. Suntay filed on May 20, 1948,
a motion for new trial and to set aside the decision
rendered on April 19, 1948, to which the petitioner
filed an opposition, followed by a reply filed by the
oppositor and an answer on the part of the petitioner.
Without reopening the case and receiving any new or
additional evidence, the Court of First Instance of
Bulacan, on September 29, 1948, promulgated the
following resolution setting aside his first decision and
disallowing the wills sought to be probated by the
petitioner in his alternative petition filed on June 18,
1947:
This is a motion for new trial and to set aside
the decision legalizing the will of Jose B.
Suntay and allowing and recording another
will executed by him in Amoy, China.
By virtue of this motion, this court is
constrained to go over the evidence and the
law applicable thereto with the view of
ascertaining whether or not the motion is
well founded. Both parties have presented
extensive memoranda in support of their
respective contentions.
This court has gone over the evidence
conscientiously, and it reiterates its findings
of the same facts in this resolution, whether
or not the facts established by the petitioner,
Silvino Suntay, warrant the legalization of the
lost will and the allowance and recording of
the will that was executed in Amoy, China, is
therefore, the subject of this instant motion.
A. As to the legalization of the Lost Will.
There is no question in the mind of this court
that the original will which Jose B. Suntay,
deceased executed in the Philippines in the
year 1929 was lost (Exhibit O, Decision of
the Supreme Court). The evidence adduced
by the petitioner during the hearing has
established through the testimony of Judge
Anastacio Teodoro and that of Go Toh (an
attesting witness) that the will was executed
by Jose B. Suntay, deceased, with all the
formalities required by law. For the purpose
of legalizing an original and existing will, the
evidence on record is sufficient as to the
execution and attesting in the manner
required by law.
Section 8 of Rule 77 provides as follows:
"SEC. 8. Proof when witnesses dead or
insane or do not reside in the Philippines.
If it appears at the time fixed for the hearing
that the subscribing witnesses are dead or
insane, or that none of them resides in the
Philippines, the court may admit the
testimony of other witnesses to prove the
sanity of the testator, and the due execution
of the will; and as evidence of the execution
of the will, may admit proof of the
handwriting of the testator and of the
subscribing witnesses, or any of them."
Section 11 of said rule also provides as
follows:
"SEC. 11. Subscribing witnesses produced
or accounted for where contest. If the will
is contested, all the subscribing witnesses
present in the Philippines and not insane,
must be produced and examined, and the
death, absence, or insanity of any of them
must be satisfactorily shown to the court. If
all or some of the subscribing witnesses are
present in the Philippines, but outside the
province where the will has been filed, their
deposition must be taken. If all or some of
the subscribing witnesses produced and
examined testify against the due execution
of the will, or do not remember having
attested to it, or are otherwise of doubtful
credibility, the will may be allowed if the court
is satisfied from the testimony of other
witnesses and from all the evidence
presented that the will was executed and
attested in the manner required by law."
The three attesting witnesses were Manuel
Lopez, deceased Alberto Barretto and Go
Toh. The last two witnesses are still living;
the former testified against and the latter in
favor. In other words, the attesting witness,
Go Toh, only, testified in his deposition in
favor of the due execution of the will. Hence,
the petitioner presented another witness,
Judge Anastacio Teodoro, to establish and
prove the due execution of the said will. Ana
Suntay was also presented as a witness in
rebuttal evidence. The testimony of Go Toh
in his deposition as an attesting witness,
coupled with the testimony of Judge
Anastacio Teodoro who was able to examine
the original will that was executed by Jose B.
Suntay, deceased, when it was given to him
by Go Toh for the purpose of filing the
petition in court for its legalization, and could
recognize the signatures of the testator as
well as of the three attesting witnesses on
the said original will is sufficient to convince
the court that the original will was executed
by the deceased Jose B. Suntay with all the
formalities required by law. The original will,
therefore, if it was presented in court to
probate would be allowed to all legal intents
and purposes. But it was not the original will
that was presented, because it was lost, but
an alleged draft (Exhibit B) of the said
original will which does not bear the
signature of the testator and any of the
attesting witness. The original will was duly
executed with all the formalities required by
law, but it was unfortunately lost; and the
curtain falls for the next setting.
The Court is now confronted with the
legalization of the lost will whether or not
the draft (Exhibit B) should be admitted as
secondary evidence in lieu of the lost will
and allowed to probate.
Section 6. Rule 77 provides as follows:
"SEC. 6. Proof of lost or destroyed will
Certificate thereupon. No will shall be
proved as a lost will or destroyed will unless
the execution and validity of the same be
established, and the will is proved to have
been in existence at the time of the death of
the testator, or is shown to have been
fraudulently or accidentally destroyed in the
lifetime of the testator without his
knowledge, nor unless its provisions are
clearly and distinctly proved by at least two
credible witnesses. When a lost will is
proved, the provisions thereof must be
distinctly stated and certified by the Judge,
under the seal of the court and the certificate
must be filed and recorded as other wills are
filed and recorded." (Emphasis Court's)
From the above quoted provision of the law,
it is clear that the petitioner should not only
establish the execution and validity of the
will, its existence at the time of the death of
the testator or its fraudulent and accidental
destruction in the lifetime of the testator
without his knowledge, but also must prove
its provisions clearly and distinctly by at least
two credible witnesses. The exact language
of the clause in the above quoted provision
of the law is "nor unless its provisions are
clearly and distinctly proved by at least two
credible witnesses." The legalization of a lost
will is not so easy, therefore, as that of an
original will. The question, therefore, is boiled
down to, and projected on the screen, in a
very sharp focus; namely, the execution and
validity must be established and the
provisions must be clearly and distinctly
proved by at least credible witnesses.
Granting that the execution and validity of
the lost will have been established through
the testimony of Judge Anastacio Teodoro
and Go Toh, and perhaps superficially by the
rebuttal witness, Ana Suntay, does it follow
that the provisions of the lost will have been
clearly and distinctly proved by at least two
credible witnesses? A careful review of the
evidence has revealed that at most the only
credible witness who testified as to the
provisions of the will was Judge Anastacio
Teodoro, and yet he testified on the
provisions of the lost will with the draft
(Exhibit B) in his hands while testifying. It
may be granted, however, that with or
without the draft of the will (Exhibit B) in his
hands, he could have testified clearly and
distinctly on the provisions of the said lost
will, because he had kept the will in his safe,
in his office, for three days, after opening it,
and he is well versed in Spanish language in
which the will as written. But did the attesting
witness Go Toh, testify in his deposition and
prove clearly and distinctly the provisions of
the lost will? He did not, and he could not
have done so even if he tried because the
original will was not read to him nor by him
before or at the signing of the same. It was
written in Spanish and he did not and does
not understand the Spanish language.
Neither was there any occasion for him to
have the contents of the said will, after its
execution and sealing inside the envelope
(Exhibit A), read to him because it was
opened only when Judge Teodoro had
examined it and then subsequently snatched
from Go Toh. Ana Suntay on rebuttal did not,
likewise, prove clearly and distinctly the
provisions of the said lost will because she
has not had enough schooling and she does
possess adequate knowledge of the Spanish
language as shown by the fact that she had
to testify in Tagalog on the witness standing.
It is evident, therefore, that although the
petitioner has established the execution and
validity of the lost will, yet he had not proved
clearly and distinctly the provisions of the will
by at least two credible witnesses.
B. As to the Allowance and Recording of the
will Executed in Amoy, China. Jose B.
Suntay, while he was residing in China
during the remaining years of his life,
executed also a will, written in Chinese
characters, the translation of which is
marked Exhibit P. It was allowed to probate
in the District Court of Amoy, China. The
question is whether or not the said will
should be allowed and recorded in this
jurisdiction.
Section 1 of Rule 78 provides as follows:
"SEC. 1. Will proved outside Philippines any
be allowed here. Will proved and allowed
in the United States, or any state or territory
thereof, or in a foreign country, according to
the laws of such state, territory, or country,
may be allowed, filed, and recorded by the
proper court of First Instance in the
Philippines."
Section 2 of the same Rule also provides:
"SEC. 2. Notice of hearing for allowance.
When a copy of such will and the allowance
thereof, duly authenticated, is filed with a
petition for allowance in the Philippines by
the executor or other persons interested, in
the Court having jurisdiction, such court shall
fix a time and place for the hearing, and
cause notice thereof to be given as in case
of an original will presented for allowance."
Sections 41 and 42 of Rule 123 provides as
follows:
"SEC. 41. Proof of Public or official record.
An official record or an entry therein, when
admissible for any purpose, may be
evidenced by an official publication thereof
or by a copy attested by the officer having
the legal custody of the record, or by his
deputy, and accompanied, if the record is not
kept in the Philippines, with a certificate that
such officer has the custody. If the office in
which the record is kept is within the United
States or its territory, the certificate may be
made by a judge of a court of record of the
district or political subdivision in which the
record is kept, authenticated by the seal of
the court, or may be made by any public
officer having a seal of the office and having
official duties in the district or political
subdivision in which the record is kept,
authenticated by the seal of his office. If the
office in which the record is kept is in a
foreign country, the certificate may be made
by a secretary of embassy or legation,
consul general, consul, vice consul, or
consular agent or by any officer in the
foreign service of the United States stationed
in the foreign country in which the record is
kept, and authenticated by the seal of his
office."
F. "SEC. 42. What attestation of copy must
state. Whenever a copy of writing is
attested for the purpose of evidence, the
attestation must state, in substance, that the
copy is a correct copy of the original, or a
specific part thereof, as the case may be.
The attestation must be under the official
seal of the attesting officer, if there be any, or
if he be the clerk of a court having a seal,
under the seal of such court."
In the case of Yu Changco vs. Tiaoqui, 11
Phil. 598, 599, 600, our Supreme Court said:
"Section 637 of the Code of Civil Procedure
says that will proved and allowed in a foreign
country, according to the laws of such
country, may be allowed, filed, and recorded
in the Court of First Instance of the province
in which the testator has real or personal
estate on which such will may operate; but
section 638 requires that the proof of the
authenticity of a will executed in a foreign
country must be duly "authenticated". Such
authentication, considered as a foreign
judicial record, is prescribed by section 304,
which requires the attestation of the clerk or
of the legal keeper of the records with the
seal of the court annexed, if there be a seal,
together with a certificate of the chief judge
or presiding magistrate that the signature of
either of the functionaries attesting the will is
genuine, and, finally, the certification of the
authenticity of the signature of such judge or
presiding magistrate, by the ambassador,
minister, consul, vice consul or consular
agent of the United States in such foreign
country. And, should the will be considered,
from an administrative point of view, as a
mere official document 'of a foreign country',
it may be proved, 'by the original, or by a
copy certified by the legal keeper thereof,
with a certificate, under the seal of the
country or sovereign, that the document is a
valid and subsisting document of such
country, and that the copy is duly certified by
the officer having the legal custody of the
original. (Sec. 313, par. 8)."
In the case of Fluemer vs. Hix, 54 Phil. 610,
611, 612, and 613, our Supreme Court said:
"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. 1690, and as certified to
by the Director of the National Library. But
this was far from 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 not 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.
"It was also necessary for the petitioner to
prove that the testator had his domicile in
West Virginia and not in the Philippine
Islands. The only evidence introduced to
establish this fact consisted of the recitals in
the alleged will and the testimony of the
petitioner.
"While the appeal was pending submission
in this court, the attorney for the appellant
presented an unverified petition asking the
court to accept as part of the evidence the
documents attached to the petition. One of
these documents discloses that a paper
writing purporting to be the last will and
testament of Edward Randolph Hix,
deceased, was presented for probate on
June 8, 1929, to the clerk of Randolph
County, State of West Virginia, in vacation,
and was duly proven by the oaths of Dana
Vansley and Joseph L. Madden, the
subscribing witnesses thereto, and ordered
to be recorded and filed. It was shown by
another document that in vacation, on June
8, 1929, the clerk of court of Randolph
County, West Virginia, appointed Claude E.
Maxwell as administrator, cum testamento
annexo, of the estate of Edward Randolph
Hix, deceased ... However this may be no
attempt has been made to comply with the
provisions of sections 637, 638, and 639 of
the Code of Civil Procedure, for no hearing
on the question of the allowance of a will
said to have been proved and allowed in
West Virginia has been requested. ... ."
Granting that the will of Jose B. Suntay
which was executed in Amoy, China, was
validly done in accordance with the law of
the Republic of China on the matter, is it
necessary to prove in this jurisdiction the
existence of such law in China as a
prerequisite to the allowance and recording
of said will? The answer is in the affirmative
as enunciated in Fluemer vs. Hix, supra, and
in Yanez de Barnuevo vs. Fuster, 29 Phil.,
606. In the latter case, the Supreme Court
said:
"A foreign law may be proved by the
certificate of the officer having in charge of
the original, under the seal of the state or
country. It may also be proved by an official
copy of the same published under the
authority of the particular state and
purporting to contain such law. (Secs. 300
and 301, Act No. 190.), (Syllabus.)
The provisions of section 300 and 301 of the
Code of Civil Procedure (Act No. 190) are as
follows:
"SEC. 300. Printed laws of the State or
Country. Books printed or published under
the authority of the United States, or one of
the States of the United States, or a foreign
country, and purporting to contain statutes,
codes, or other written law of such State or
country or proved to be commonly admitted
in the tribunals of such State or country an
evidence of the written law thereof, are
admissible in the Philippine Islands are
evidence of such law."
"SEC. 301. Attested copy of foreign laws.
A copy of the written law or other public
writing of any state or country, attested by
the certificate of the officer having charge of
the original, under the seal of the state or
country, is admissible as evidence of such
law or writing."
The petitioner has presented in evidence the
certification of the Chinese Consul General,
Tsutseng T. Shen, of the existence of the law
in China (Exhibit B-3), relative to the
execution and probate of the will executed
by Jose B. Suntay in Amoy, China (Exhibit
P). Is that evidence admissible, in view of the
provisions of Sections 41 and 42 of the
Rules of the Rules of Court. Is the said
certification of the Chinese Consul General
in the Philippines a substantial compliance
with the provisions of the above mentioned
section 41 and 42 of our Rules of Court?
This court has its doubts as to the
admissibility in evidence of the Chinese
Consul General in the Philippines of the
existence of the laws of Republic of China
relative to the execution and probate of a will
executed in China. Such law may exist in
China, but
"An official record or an entry therein, when
admissible for any purpose, may be
evidence by an official publication thereof or
by a copy attested by the officer having the
legal custody of the record, or by his deputy,
and accompanied, if the record is not kept in
the Philippines, with a certificate that such
officer has the custody. ... If the office in
which the record is kept is in a foreign
country, the certificate may be made by a
secretary of embassy or legation, consul
general, consul, vice consul, or consular
agent or by any officer in the foreign service
of the United States stationed in the foreign
country in which the record is kept, and
authenticated by the seal of his office." (Sec.
41 of Rule 123.)
The law of the Republic of China is a public
or official record and it must be proved in this
jurisdiction through the means prescribed by
our Rules of Court. It is, therefore, obvious
that the Chinese Counsel General in the
Philippines who certified as to the existence
of such law is not the officer having the legal
custody of the record, nor is he a deputy of
such officer. And, if the office in which the
record is kept is in a foreign country, the
certificate may be made by a secretary of
embassy or legation, consul general, consul,
vice consul, or consular agent or by any
officer in the foreign service of the United
States stationed in the foreign country in
which the record is kept, and authenticated
by the seal of his office.
It is clear, therefore, that the above
provisions of the Rules of Court (Rule 123,
sec. 41) not having been complied with, the
doubt of this court has been dissipated, and
it is of the opinion and so holds that the
certification of the Chinese Consul
General alone is not admissible as evidence
in the jurisdiction.
The evidence of record is not clear as to
whether Jose B. Suntay, who was born in
China, but resided in the Philippines for a
long time, has become a Filipino citizen by
naturalization, or he remained a citizen of the
Republic of China. The record does not,
likewise, show with certainty whether or not
he had changed his permanent domicile
from the Philippines to Amoy, China. His
change of permanent domicile could only be
inferred. But the question of his permanent
domicile pales into insignificance in view of
the overtowering fact that the law of China
pertinent to the allowance and recording of
the said will in this jurisdiction has been
satisfactorily established by the petitioner.
Both the petitioner and the oppositor have
extensively urged in their respective
memorandum and in the oral argument in
behalf of the oppositor the question of
estoppel. The consideration of the points
raised by them would open the door to the
appreciation of the intrinsic validity of the
provisions of the will which is not of moment
at the present stage of the proceeding. While
the probate of a will is conclusive as to the
compliance with all formal requisites
necessary to the lawful execution of the will,
such probate does not affect the intrinsic
validity of the provisions of the will. With
respect to the latter the will in governed by
the substantive law relative to descent and
distribution. (In re Johnson, 39 Phil., 157).
IN VIEW OF THE FOREGOING, and upon
reconsideration, the previous decision
rendered in this case allowing the will
(Exhibit B) and allowing and recording the
foreign will (Exhibit P) is set aside; and this
court is of the opinion and so holds that the
said two wills should be, as they are hereby
disallowed. Without special pronouncement
as to costs.
It is very significant that in the foregoing resolution,
the Court of First Instance of Bulacan "reiterates its
finding of the same facts in this resolution," and
merely proceeds to pose the sole question "whether
or not the facts established by the petitioner, Silvino
Suntay, warrant the legalization of the lost will and
allowance and recording of the will that was executed
in Amoy, China." The somersault executed by the trial
court is premised on the ground that "although the
petitioner has established the execution and validity of
the lost will, yet he has not proved clearly and
distinctly the provisions of the will by the least two
credible witnesses"; and that, assuming that the will of
Jose B. Suntay executed in Amoy, China, was in
accordance with the law of the Republic of China, the
certification of the Chinese Consul General in the
Philippines as the existence of such law is not
admissible evidence in this jurisdiction. In effect the
resolution on the motion for reconsideration
promulgated by the trial court, and the decision of the
majority herein, adopt the position that the testimony
of Judge Anastacio Teodoro as to the provisions of
the lost will, while credible and perhaps sufficient in
extent, is not corroborated by the witnesses Go Toh
and Ana Suntay and, therefore, falls short of the
requirement in section 6, Rule 77, of the Rules of
Court that the provisions of the lost will must be
"clearly and distinctly proved by at least two
witnesses." That this requirement was obviously
construed, to mean that the exact provisions are to be
established, may be deduced from the following
dialogue between his Honor, Judge Potenciano
Pecson, and attorney Teofilo Sison, new counsel for
oppositor Federico C. Suntay, who appeared for the
first time at the ex parte hearing of the oppositor's
motion for new trial on September 1, 1949:
COURT: However, Rule 77, Section 6,
provides in proving a lost will, the provisions
of the lost will must be distinctly stated and
certified by the Judge.
ATTY. TEOFILO SISON: Yes, Your Honor.
COURT: That presupposes that the judge
could only certify to the exact provisions of
the will from the evidence presented.
ATTY. TEOFILO SISON: That is our
contention, provided that provision is clearly
established by two credible witnesses so that
the Court could state that in the decision, we
agree, that is the very point.
(t. s. n. 75, Session of Sept. 1, 1948)
The sound rule, however, as we have found it to be,
as to the degree of proof required to establish the
contents of a lost or destroyed will, is that there is
sufficient compliance if two witnesses have
substantiated the provisions affecting the disposition
of the testator's properties; and this is especially
necessary to prevent the "perpetration of fraud by
permitting a presumption to supply the suppressed
proof," to keep a wrong-doer from utilizing the rule as
his "most effective weapon," or to avoid the enjoyment
of a "premium from the rascality of one whose
interests might suggest the destruction of a will."
Section 1865 of the Code requires that the
provisions of a lost will must be clearly and
distinctly proved by at least two credible
witnesses before it can be admitted to
probate; but this section must receive a
liberal construction (Hook vs. Pratt, 8 Hun.
102-109) and its spirit is complied with by
holding that it applies only to those
provisions which affect the disposition of the
testator's property and which are of the
substance of the will.
The allegations of the contents of the will are
general, and under ordinary circumstances,
would be in sufficient; but the fact alleged, if
proven as alleged, would certainly authorize
the establishment of the will so far as its
bequests are concerned. To require that a
copy of the will or the language of the
bequests, in detail, should be pleaded,
where no copy has been preserved, and
where the memory of the witnesses does not
hold the exact words, would not only deny
the substance for mere form, but would offer
a premium upon the rascality of one whose
interests might suggest the destruction of a
will. As said in Anderson vs. Irwin, 101 Ill.
411: "The instrument in controversy having
been destroyed without the fault of the
defendant in error ... and there not appearing
to be any copy of it in existence, it would be
equivalent to denying the complainant relief
altogether to require her to prove the very
terms in which it was conceived. All that
could reasonably be required of her under
the circumstances could be to show in
general terms the disposition which the
testator made of his property by the
instruments; that it purported to be his will
and was duly attested by the requisite
number of witnesses." In Allison vs. Allison, 7
Dana 91, it was said in speaking of the
character and extent of proof required in
such a case:" nor is there any just ground to
object to the proof because the witnesses
have not given the language of the will or the
substance thereof. They have given the
substance of the different devises as to the
property or interest devised, and to whom
devised and we would not stop, in the case
of a destroyed will, to scan with rigid scrutiny
the form of the proof, provided we are
satisfied of the substance of its provisions."
(Jose vs. Casler 139 Ind. 392, 38 N. E. 812).
The evidence in the case falls short of
establishing the existence of such a writing,
except as it may be presumed, under the
maxim Omnia preasumuntur in odium
spoliateris." There was evidence tending to
show that the second will of Anne Lambie
was in the possession of Francis Lambie,
and that it came to the hands of the
proponents, warranting the inference that it
has been suppressed or destroyed. If from
this evidence the jury found such paper
destroyed the law permits the presumption
that it was legally drawn and executed,
notwithstanding the terms of the statute,
which requires the revoking instrument to be
formally executed. If a will be lost, secondary
evidence may be given of its contents; if
suppressed or destroyed, the same is true;
and, if necessary the law will prevent the
perpetration of a fraud by permitting a
presumption to supply the suppressed proof.
We cannot assent to the proposition that the
statute is so right as to be the wrongdoer's
most effective weapons. The misconduct
once established to the satisfaction of the
jury, it is no hardship to the wrongdoer to
say. "Produce the evidence in your
possession, or we will presume that your
opponent's contention is true." When one
deliberately destroys, or purposely induces
another to destroy, a written instrument
subsequently become a matter of judicial
inquiry between the spoliator and an
innocent party, the latter will not be required
to make strict proof of the contents of such
instrument in order to establish a right
founded thereon. Brook, Leg. Max. 576,
Preston vs. Preston, 132, Atl. 55, 61. (Re
Lambie's Estate, 97 Mich, 55,56 N. W. 225)
Judged from the standard set forth in the foregoing
authorities, and bearing in mind that the
circumstances of this case lead to the only conclusion
that the loss of the will in question is of course
imputable to those whose interests are adverse to the
petitioner and the widow Lim Billian, we have no
hesitancy in holding the view that the dispositions of
the properties left by the deceased Jose B. Suntay is
provided in his will which was lost or snatched in the
manner recited in the decision of this Court in the
case of Lim Billian vs. Suntay, 63 Phil., 798-797, had
been more than sufficiently proved by the testimony of
Judge Anastacio Teodoro, Go Toh, and Ana Suntay,
supported conclusively by the draft of the lost will
presented in evidence as Exhibit "B", and even by the
testimony of oppositor Federico C. Suntay himself.
It is to be recalled that the trial Judge, in his first
decision of April 19, 1948, made the following express
findings with respect to the testimony of Judge
Teodoro: "Judge Anastacio Teodoro testified that he
opened the sealed envelope when it was given to him
by Go Toh preparatory to the presentation of the
petition for the probate of the said will. As the lawyer
entrusted with that task, he had to examine the will
and have it copied to be reproduced or appended to
the petition. He could not do otherwise if he is worth
his salt as a good lawyer. He could not perform the
stunt of "blind flying" in the judicial firmament. Every
step must be taken with certainty and precision under
any circumstances. He could not have talked about
the attorney's fees with Go Toh, unless he has not
examined the will beforehand. And, when he was
shown Exhibit B, he did not hesitate in declaring that it
was the exact draft of the will that was inside the
envelope (Exhibit A), the testimony of Atty. Alberto
Barretto to the contrary notwithstanding."
We should not forget, in this connection, that in the
resolution on the motion for reconsideration the trial
Judge reiterated the findings in his decision, although
as regards the testimony of Judge Teodoro admittedly
"the only credible witness who testified as to the
provisions of the will," he observed that Judge
Teodoro had the draft Exhibit "B" in his hands while
testifying. We cannot see any justifying for the
observation, assuming that Judge Teodoro consulted
the draft, since even the trial Judge granted that he
"could have testified clearly and distinctly on the
provisions of the said lost will, because he had kept
the will in his safe, in his office, for three days, after
opening it, and he is well versed in Spanish language
in which the will was written." As a matter of fact,
however, it is not true that Judge Teodoro had the
draft in question before him while testifying as may be
seen from the following passages of the transcript:
Q. And, have you read that will which was
inside this envelope, Exhibit A? "A. Yes.
Q. Do you remember more or less the
contents of the will?
ATTY. FERRIN: With our objection, the best
evidence is original will itself, Your Honor.
ATTY. RECTO: We are precisely proving by
means of secondary evidence, the contents
of the will, because according to the
Supreme Court, and that is a fact already
decided, that the will of Jose B. Suntay was
lost and that is res adjudicata.
COURT: Witness may answer.
WITNESS: I remember the main features of
the will because as I said I was the one
fighting for the postponement of the hearing
of the intestate case because I was asked by
Don Alberto Barretto to secure the
postponement until the will that was
executed by the deceased is sent here by
the widow from China, with whom we
communicated with several letters, and when
the will arrived. I had to check the facts as
appearing in the will, and examined fully in
connection with the facts alleged in the
intestate, and there was a striking fact in the
intestate that Apolonio Suntay has..
ATTY. FERRIN: (Interrupting) May we ask
that the witness answer categorically the
questions of Atty. Recto, it seems that the
answers of the witness are kilometric ...
ATTY. RECTO: Sometimes the question
cannot be answered fully unless the witness
would relate and give all the facts.
COURT: The Attorney for the Administrator
may move for the striking out of any
testimony that is not responsive to the
question.
ATTY. FERRIN: That is why, our objection,
the answer is out of the question.
COURT: Atty. Recto may propound another
question.
ATTY. RECTO: I heard the witness was
saying something and he has not finished
the sentence, and I want to ask the Court
just to allow the witness to finish his
sentence.
COURT: You may finish.
WITNESS: "A. There was a sentence, the
point I was trying to check first was whether
the value of the estate left by the deceased
was SIXTY THOUSAND PESOS
(P60,000.00) as Apolonio Suntay made it
appear in his petition, and when I looked at
the original will, I found out that it was
several hundred thousand pesos, several
thousands of pesos, hundreds of pesos, that
was very striking fact to me because the
petition for intestate was for SIXTY
THOUSAND PESOS (P60,000.00), and I
came to know that it was worth more than
SEVEN HUNDRED THOUSAND
(P700,000.00) PESOS.
Q. Do you remember, Judge, the disposition
of the will, the main disposition of the will?
"A. Yes, because our client were the widow,
Maria Natividad Lim Billian, and his son,
Silvino, the only son in the second marriage,
that was very important for me to know.
Q. How were the properties distributed
according to that will?- "A. The properties
were distributed into three (3) parts, one part
which we call legitima corta, were equally
distributed to the ten (10) children, nine (9) in
the first marriage, and one (1) in the second
marriage with Maria Natividad Lim Billian.
The other third, the betterment was given to
four (4) children, Concepcion, and Apolonio
getting a quiet substantial share in the
betterment, around SIXTY THOUSAND
(P60,000.00) for Concepcion, Apolonio the
amount of SEVENTY THOUSAND
(70,000,00) PESOS or little over, and then
about ONE HUNDRED THOUSAND
(P100,000.00) PESOS of the betterment in
favor of Silvino, the minor of the second
marriage, and to Jose equal to Concepcion.
Q. So the betterment, as I understand from
you went to four (4) children?-"A. Yes.
Q. Silvino in the second marriage,
Concepcion, Apolonio and Jose in the first
marriage? " A. Yes.
Q. What about the free disposal?-" A. The
free disposal was disposed in favor of the
widow, Maria Natividad Lim Billian and
Silvino, his minor son in equal parts..
Q. What about, if you remember, if there was
something in the will in connection with that
particular of the usufruct of the widow? "A.
It was somewhat incorporated into the
assets of the estate left by the deceased.
Q. Do you remember the number of pages of
which that will consisted? "A. Twenty-
three (23) pages.
Q. Do you remember if the pages were
signed by the testator? "A. Yes, sir, it was
signed.
Q. And the foot of the testament or the end
of the testament, was it signed by the
testator? "A. Yes, sir, and the attestation
clause was the last page signed by the three
instrumental witnesses, Alberto Barretto, one
 Chinaman Go Toh, and Manuel Lopez, my
former Justice of the Peace of Hagonoy.
Q. Do you remember if there witnesses
signed on the different pages of the will?
"A. Yes, sir, they signed with their name
signatures.
Q. Showing you this document consisting of
twenty-three (23) pages in Spanish and
which document appears already attached to
this same testamentary proceedings and
already marked as EXHIBIT B, will you
please tell the Court if and for instance on
page eight (8) of this document, pagina
octavo, it says, there are handwritings in
pencil, some of which read as follows: "Los
cinco-octavos (5/8) partes corresponds a mi
hijo Emiliano", can you recognize whose
handwriting is that? "A. From my best
estimate it is the handwriting of Don Alberto
Barretto.
Q. About the end of the same page eight
(8) pagina octavo, of the same document
Exhibit B, there is also the handwriting in
pencil which reads: "La otra sexta parte (6.a)
corresponde a Bonifacio Lopez", can you
recognize that handwriting? "A. Yes, sir,
this is the handwriting of Don Alberto
Barretto, and I wish to call the attention of
the Court to compare letter "B" which is in
capital letter with the signature of Don
Alberto Barretto in the envelope, "Alberto
Barretto" and stroke identifies one hand as
having written those words.
Q. Will you please go over cursorily this
document, Exhibit B composed of twenty-
three (23) pages and please tell the Court if
this document had anything to do with the
will which according to you was contained in
the envelope, Exhibit A? "A. This is
exactly the contents of the original will which
I received and kept in my office inside the
safe for three (3) days, and I precisely took
special case in the credits left by the
deceased, and I remember among them,
were the De Leon family, and Sandiko, well
known to me, and then the disposition of the
estate, divided into three (3) equal parts, and
I noticed that they are the contents of the will
read.
His Honor, Judge Pecson, was positive in his first
decision that "the testimony of Judge Anastacio
Teodoro is corroborated by Go Toh, one of the
attesting witnesses, in his deposition (Exhibit D-1)."
Yet in setting aside his first decision, he remarked that
Go Toh's testimony did not prove clearly and distinctly
the provision of the lost will, because: "He did not, and
he could not have done so even if he tried because
the original will was not read to him nor by him before
or at the signing of the same. It was written in Spanish
and he did not and does not understand the Spanish
language. Neither was there any occasion for him to
have the contents of the said will, after its execution
and sealing inside the envelope (Exhibit A), read to
him, because it was opened only when Judge
Teodoro had examined it and then subsequently
snatched from Go Toh."
The later position thus taken by Judge Pecson is
palpably inconsistent with the following unequivocal
statements of Go Toh contained in hid disposition
taken in Amoy, China, on April 17, 1938, and in
oppositor's Exhibit "6":
26. State what you know of the contents of
that will.
. . . . Regarding (1) expenditures (2)
Philippine citizenship; (3) Distribution of
estates among children (4) Taking care of
grave lot; (5) guardianship of Silvino Suntay
and (6) after paying his debts he will have
approximately 720,000 pesos left. This
amount will be divided into three equal parts
of 240,000 pesos each. The first part is to be
divided equally among the ten children born
by the first and second wives and the second
part among the three sons Silvino Suntay,
75,000 approximately; Apolonio Suntay,
50,000 pesos approximately; Jose Suntay
and Concepcion Suntay, 36,000 each
approximately. The third part is to be divided
between Maria Lim Billian and Silvino
Suntay; each will get approximately 110,000
pesos. Silvino Suntay will get a total of
210,000 pesos approximately, Maria
Natividad Lim Billian a total of 290,000
approximately, and Apolonio Suntay a total
of 80,000 approximately, Concepcion Suntay
and Jose Suntay will get 60,000 pesos each
approximately. The rest of the children will
get approximately 29,000 each. The way of
distribution of the property of Jose B. Suntay,
movable and immovable, and the
outstanding debts to be collected was
arranged by Jose B. Suntay.
xxx xxx xxx
78. On the occasion of the execution of the
testament of Jose B. Suntay, state whether
or not you say Exhibit B ... Yes.
79. In the affirmative case, state if you know
who had the possession of Exhibit B and the
testament the first time you saw them on that
occasion. ... Yes, I know who had
possession of them.
80. Can you say whether or not Jose B.
Suntay happened to get those documents
later on, on that same occasion? ... He
got them after the execution.
81. Please name the person who gave those
documents to Mr. Suntay. ... Alberto
Barretto gave the documents to Jose B.
Suntay.
82. Did the person who gave those
documents to Suntay say anything to him
(Suntay) at the time of giving them? ...
Yes.
83. If so what was it that he said, if he said
any? ... He said, "You had better see if
you want any correction."
84. What did Mr. Suntay do after those
documents were given to him? ... Jose B.
Suntay looked at them and then gave one
copy to Manuel Lopez for checking.
85. State whether or not Mr. Suntay gave
one of those documents to another man.
... Yes.
86. In the affirmative case, can you say
which of the two documents was given and
who the man was? ... Yes he gave Exhibit
B to Manuel Lopez.
87. State whether or not Mr. Suntay said
something to the man to whom he gave one
of those documents. ... Yes.
88. In the affirmative case can you repeat
more or less what Mr. Suntay said to that
man? ... He told him to read it for
checking.
89. State if you know what did the man do
with one of those documents given to him.
... He took it and read it for checking.
90. What did in turn Mr. Suntay do with the
other one left with him? ... Jose B. Suntay
looked at the original and checked them.
91. What was done with those documents
later on if there was anything done with
them? ... After checking, Jose B. Suntay
put Exhibit B in his pocket and had the
original signed and executed.
 92. What was done with the testament of
Jose B. Suntay after it was signed by the
testator and its witnesses? ... It was taken
away by Jose B. Suntay. (Exhibit D, D-1.)
Q. Did you know the contents of this
envelope? "A. I knew that it was a will.
Q. But did you know the provisions of the
will? "A. It is about the distribution of the
property to the heirs.
Q. Did you know how the property was
distributed according to the will? "A. I
know that more than P500,000 was for the
widow and her son, more than P100,000 for
the heirs that are in the family. (Exhibit "6", p.
28).
Q. You stated that you were one of the
witnesses to the will and that the will was
written in Spanish. Was it written in
typewriting or in handwriting of somebody?
"A. That will was written in typewriting.
Q. Did you read the contents of that will, or
do you know the contents of that will? A.
No, sir, because I do not know Spanish.
Q. How do you know that it was the will of
Jose B. Suntay ? "A. Because I was one
of the signers and I saw it." (Exhibit "6", p.
19.)
22. Do you understand the language in
which that will was written? ... I know a
little Spanish.
23. Do you talk or write that language? I can
write and talk a little Spanish. (Exhibits D, D-
1.)
As to Ana Suntay's corroborating testimony, Judge
Pecson aptly made the following findings: "Ana
Suntay, one of the heirs and who would be affected
adversely by the legalization of the will in question,
also testified on rebuttal that she saw the original will
in the possession of Manuel Suntay immediately after
the snatching. She read it and she particularly
remembers the manner in which the properties were
to be distributed. Exhibit B was shown to her on the
witness stand and she declared that the provision
regarding the distribution of the properties in said
Exhibit B is the same as that contained in the original
will. Said testimony of Ana Suntay, therefore, belies
the testimony of Atty. Alberto Barretto." And yet in the
resolution on the motion for new trial, the trial Judge
had to state that "Ana Suntay on rebuttal did not,
likewise, prove clearly and distinctly the provisions of
the said lost will, because she has not had enough
schooling and she does not possess adequate
knowledge of the Spanish language as shown by the
fact that she had to testify in Tagalog on the witness
stand." The potent error committed by Judge Pecson
in reversing his views as regards Ana's testimony, is
revealed readily in the following portions of the
transcript:
P. Cuantas paginas tenia aquel documento a
que usted se refiere? "R. Probablemente
seria mas de veinte (20) paginas.
P. No serian treinta (30) paginas?
"Abogado Recto: La testigo ha contestado
ya que mas de veinte (20).
Juzgado: Se estima
Abogado Mejia:
P. Usted personalmente leyo el documento"
"R. Yo leyo mi hermano en presencia mia.
P. La pregunta es, si usted personalmente
ha leido el documento? " R. Si, lo he
visto.
P. No solamente le pregunto a usted si Vd.
ha visto el testamento sino si usted ha leido
personalmente el testamento? "R. Si la
parte de la adjudicacion lo he leido para
asegurarme a que porcion corresponde a
cada uno de nosotros.
P. Puede usted repetir poco mas o menos
esa porcion a que se hacia la distribucion del
alegado testamento? "R. Como ya he
declarado, que las propiedades de mi difunto
padre se habian dividido en tres partes, una
tercera parte se nos adjudica a nosotros diez
(1) hijos en primeros nupcias y segunda
nupcia, la segunda tercera parte los adjudica
a la viuda y a Silvino, y la otra tercera parte
se lo adjudica a sus hijos como mejora a
Silvino, Apolonio, Concepcion y Jose.
P. Eso, tal como usted personalmente lo
leyo en el documento? "R. Si Seor.
P. Quiere usted tener la bondad, seora, de
repetir poco mas o menos las palabras en
ese documento que se distribuia las
propiedades del defundo padre usted como
usted relata aqui? "Abogado Recto:
Objetamos a la pregunta por falta de base,
porque elle solamente se fijo en la parte
como se distribuian las propiedades pero no
ha dicho la testigo que ella lo ha puesto de
memoria, ni Vd. ha preguntado en que
lenguaje estaba escrito el testamento ...
Juzgado: Se estima.
Abogado Mejia:
P. Sabe usted en que lenguaje estaba
redactado el documento que usted leyo
personalmente? "R. En Castellano.
P. Puede usted repetirnos ahora en
Castellano algunas frases o palabras como
se hizo la distribucion en aquel supuesto
testamento?
Abogado Recto: Objecion, por falta de base,
uno puede entender el espaol y sin
embargo no podra repetir lo que ha leido, y
no se sabe todavia si ha estudiado el
espaol bastante hasta el punto de poder
hablarlo.
Juzgado: Se estima.
Abogado Mejia
P. Usted dijo que estaba puesto en
castellano el supuesto testamento que Vda.
leyo, usted poso el castellano? "R. Yo
entiendo el castellano, pero no puedo hablar
bien.
P. Usted estudio el castellano en algun
colegio? "Rj. Si, seor, En Sta. Catalina.
P. Cuantos aos? "R. Nuestros estudios
no han sido continuous porque mi padre nos
ingresaba en el colegio y despues nos
sacaba para estar afuera, y no era continuo
nuestro estudio.
P. Pero en total, como cuantos meses o
aos estaba usted en el colegio aprendiendo
el castelano? "R. Unos cuatro o cinco
aos.
P. Entonces usted puede leer el castellano
con facilidad, seora? "R. Si, castellano
sencillo puedo entender y lo puedo leer.
P. Usted entiende las preguntas que se le
dirigian aqui en castellano sin interpretacion
o sin el interprete? "R. Si, Seor.
P. Puede usted contestar en castellano?
"R. Bueno, pero como de contestar, por eso
quiero que la pregunta se me traduzca
antes. asi puedo contestar debidamente.
(t.s.n. pp. 533-534.)
We are really at a loss to understand why, without any
change whatsoever in the evidence, the trial Judge
reversed his first decision, particularly when he
announced therein that "it is now incumbent upon this
court to delve into the evidence whether or not Jose
B. Suntay, deceased, left a will (the draft of which is
Exhibit B) and another will which was executed and
probated in Amoy, China." His action is indeed
surprising when we take into account the various
circumstancial features presently to be stated, that
clearly confirm the testimony of Judge Anastacio
Teodoro, G. Toh and Ana Suntay, or otherwise
constitute visible indicia of oppositor's desire to
frustrate the wishes of his father, Jose B. Suntay.
In our opinion the most important piece of evidence in
favor of the petitioner's case is the draft of the lost will,
Exhibit "B." Its authenticity cannot be seriously
questioned, because according to the trial Judge
himself, oppositor's own witness, Atty. Alberto
Barretto, admitted it to be "identical in substance and
form to the second draft which he prepared in
typewriting." Indeed, all the "A's" and "B's" in the
handwritten insertions of the draft are very similar to
those in Barretto's admittedly genuine signature on
the envelope, Exhibit "A." The finding of Judge
Pecson on the point in his first decision (reiterated
expressly in the resolution on the motion for new trial),
should control, not only because it is in accordance
with the evidence but because the oppositor had
failed and did not even attempt to have the trial Judge
reconsider or reverse his factual conclusions. The
draft, Exhibit "B," having been positively identified by
the witnesses for the petitioner to be an exact copy of
the lost will of Jose B. Suntay, is therefore conclusive.
Oppositor's effort to show that said draft was never
signed in final form, and was thought of merely to
deceive petitioner's mother, Lim Billian, and that the
will actually executed and put in the envelope, Exhibit
"A", provided that the testator's estate would be
divided equally among his heirs, as in the case of
intestacy, was necessarily futile because, if this
allegation is true, the will would not have been
"snatched" from Go Toh and the loss certainly
cannot be imputed to the widow Lim Billian or the
petitioner; the snatched will would have been
produced to put an end to petitioner's and his
mother's claim for greater inheritance or participation
under the lost will; and the envelope containing the
first will providing for equal shares, would not have
been entrusted to the care and custody of the widow
Lim Billian.
It is very noteworthy that out of the nine children of
the first marriage, only Angel, Jose and Federico
Suntay had opposed the probate of the will in
question; the rest, namely, Ana, Aurora, Concepcion,
Lourdes, Manuel and Emiliano Suntay, having
expressly manifested in their answer that they had no
opposition thereto, since the petitioner's alternative
petition "seeks only to put into effect the testamentary
disposition and wishes of their late father." This
attitude is significantly an indication of the justness of
petitioner's claim, because it would have been to their
greater advantage if they had sided with oppositor
Federico Suntay in his theory of equal inheritance for
all the children of Jose B. Suntay. Under the lost will
or its draft Exhibit "B", each of the Suntay children
would receive only some P 25,000.00, whereas in
case of intestacy or under the alleged will providing
for equal shares, each of them would receive some
P100,000.00. And yet the Suntay children other than
Angel, Jose and Federico had chosen to give their
conformity to the alternative petition in this case.
Another unequivocal confirmation of the lost will is the
will which Jose B. Suntay executed in Amoy, Fookien,
China, on January 4, 1931, and probated in Amoy
District Court, China, containing virtually the same
provisions as those in the draft Exhibit "B". What
better evidence is there of an man's desire or
insistence to express his last wishes than the
execution of a will reiterating the same provisions
contained in an earlier will. Assuming that the Chinese
will cannot be probated in the jurisdiction, its probative
value as corroborating evidence cannot be ignored.
Oppositor himself had admitted having read the will in
question under which the widow Lim Billian was
favored; and this again in a way goes to corroborate
the evidence for the petitioner as to the contents of
the will sought to be probated.
COURT:
Q. Have you read the supposed will or the
alleged will of your father? "A. Yes, sir.
COURT:
Q. Can you tell the court the share or
participation in the inheritance of Maria
Natividad Lim Billian according to the will?
A. Yes sir, she will inherit, I think, two-thirds
(2/3) of the estate, in other words she is the
most favored in the will, so when they sold
that, they sold everything, they are selling
everything even the conjugal property. (t. s.
n. 228-229.)
The decision of the majority leans heavily on the
testimony of Atty. Alberto Barretto, forgetful perhaps of
the fact that the trial Judge gave no credence to said
witness. It should be repeated that Judge Pecson
reiterated in the resolution on the motion for new trial
all his findings in the first decision. If as Atty. Barretto
testified, Lim Billian was entitled under the will actually
signed by Jose Suntay only to P10,000.00, in addition
to properties in China value at P15,000.00, the fees of
P25,000.00 admittedly asked by him would absorb
her entire inheritance; and this would normally not be
done by any law practitioner. Upon the other hand,
there is evidence to the effect that Atty. Barretto might
have become hostile to the petitioner and his mother
Lim Billian in view of the latter's refusal to agree to the
amount of P25,000.00 and her offer to pay only
P100.00. There is also evidence tending to show that
as early as 1942, Atty. Barretto was paid by oppositor
Federico Suntay the sum of P16,000.00 which,
although allegedly for services in the testate
proceedings, was paid out of the personal funds of
said oppositors to supply Atty. Barretto's needs. This
circumstances perhaps further explains why the latter
had to support the side of Federico Suntay.
We have quoted in full the decision of this court in the
"snatching" case and the first decision of Judge
Pecson in this case, both in the hope and in the belief
(1) that the first would reveal the manner by which
those adversely affected had planned to prevent the
last wishes of the deceased Jose B. Suntay from
being carried on, and (2) that the second, by the facts
correctly recited therein and by the force and
accuracy of its logic would amply show the weakness
and utter lack of foundation of the resolution on the
motion for reconsideration. We have set forth at
length pertinent portions of the testimony of various
witnesses to demonstrate more plainly the plausibility
of the original decision of Judge Pecson, and the
latter's consequent bad judgment in having forced
himself to accomplish a somersault, a feat which the
majority, in my opinion, have mistakenly commended.
We have found this to be one of the cases of this
court in which we have had occasion to participate,
where there can be absolutely no doubt as to the
result outright reversal for which, with due
respect to the majority opinion, we vote without
hesitancy.
Montemayor and Jugo, JJ., concur.
RESOLUTION
5 November 1954
PADILLA, J.:
This is a motion for reconsideration of the decision
promulgated on 31 July 1954, affirming the decree of
the Court of First Instance of Bulacan which
disallowed the alleged last will and testament
executed in November 1929 and the alleged last will
and testament executed in Kulangsu, Amoy, China,
on 4 January 1931, by Jose B. Suntay, without
pronouncement as to costs, on grounds that will
presently be taken up and discussed.
Appellant points to an alleged error in the decision
where it states that
. . . This petition was denied because of the
loss of said will after the filing of the petition
and before the hearing thereof, . . .
because according to him the "will was lost before not
after (the) filing of the petition." This slight error, if it is
an error at all, does not, and cannot, after the
conclusions and pronouncements made in the
judgment rendered in the case. In his alternative
petition the appellant alleges:
4. That on October 15, 1934, Marian
Natividad Lim Billian, the mother of herein
petitioner filed a petition in this court for the
allowance and probate of a last will and
testament executed, and signed in the
Philippines in the year 1929 by said
deceased Jose B. Suntay. (P. 3, amended
record on appeal.)
If such will and testament was already lost or
destroyed at the time of the filing of the petition by
Maria Natividad Lim Billian (15 October 1934), the
appellant would have so stated and alleged. If
Anastacio Teodoro, a witness for the appellant, is to
be believed when he testified
. . . that one day in November 1934 (p. 273,
t. s. n., hearing of 19 January 1948), ... Go
Toh arrived at his law office in the De Los
Reyes Building and left an envelope
wrapped in red handkerchief [Exhibit C] (p.
32, t. s. n., hearing of 13 October 19470 . . .
and
If the will was snatched after the delivery
thereof by Go Toh to Anastacio Teodoro and
returned by the latter to the former because
they could not agree on the amount of fees, .
..
then on 15 October 1934, the date of the filing of the
petition, the will was not yet lost. And if the facts
alleged in paragraph 5 of the appellant's alternative
petition which states:
That this Honorable Court, after hearing,
denied the aforesaid petition for probate filed
by Maria Natividad Lim Billian in view of the
loss and/or destruction of said
will subsequent to the filing of said petition
and prior to the hearing thereof, and the
alleged insufficiency of the evidence
adduced to established the loss and/or
destruction of the said will, (Emphasis
supplied, P. 3, amended record on appeal.)
may be relied upon, then the alleged error pointed out
by the appellant, if it is an error, is due to the
allegation in said paragraph of his alternative petition.
Did the appellant allege the facts in said paragraph
with reckless abandon? Or, did the appellant make
the allegation as erroneously as that which he made
in paragraph 10 of the alternative petition that "his will
which was lost and ordered probated by our Supreme
Court in G. R. No. 44276, above referred to?" (P. 7,
amended record on appeal.) This Court did not order
the probate of the will in said case because if it did,
there would have been no further and subsequent
proceedings in the case after the decision of this
Court referred to had been rendered and had become
final. Be that as it may, whether the loss of the will
was before or subsequent to the filing of the petition,
as already stated, the fact would not affect in the
slightest degree the conclusions and pronouncements
made by this Court.
The appellant advances the postulate that the
decision of this Court in the case of Lim Billian vs.
Suntay, G. R. No. 44276, 63 Phil., 793,
constitutes res judicata on these points: (a) that only
one will was prepared by attorney Barretto, and (b)
that the issue to be resolved by the trial court was
whether the draft (Exhibit B) is a true copy or draft of
the snatched will, and contends that these points
already adjudged were overlooked in the majority
opinion. The decision of this Court in the case
referred to does not constitute res judicata on the
points adverted to by the appellant. The only point
decided in that case is that "the evidence is sufficient
to establish the loss of the document contained in the
envelope." In the opinion of this Court, this
circumstance justified "the presentation of secondary
evidence of its contents and of whether it was
executed with all the essential and necessary legal
formalities." That is all that was decided. This Court
further said:
The trial of this case was limited to the proof
of loss of the will, and from what has taken
place we deduce that it was not petitioner's
intention to raise, upon the evidence
adduced by her, and other points involved
herein, namely, as we have heretofore
indicated, whether Exhibit B is a true copy of
the will and whether the latter was executed
with all the formalities required by law for its
probate. The testimony of Alberto Barretto
bears importantly in this connection. (P.
796, supra.)
Appellant's contention that the question before the
probate court was whether the draft (Exhibit B) is a
true copy or draft of the snatched will is a mistaken
interpretation and view of the decision of this Court in
the case referred to, for if this Court did make that
pronouncement, which, of course, it did not, such
pronouncement would be contrary to law and would
have been a grievous and irreparable mistake,
because what the Court passed upon and decided in
that case, as already stated, is that there was
sufficient evidence to prove the loss of the of the will
and that the next step was to prove by secondary
evidence its due execution in accordance with the
formalities of the law and its contents, clearly and
districtly, by the testimony of at least two credible
witnesses.1
The appellant invokes Rule 133 to argue that Rule 77
should not have been applied to the case but the
provisions of section 623 of the Code of Civil
Procedure (Act No. 190), for the reason that this case
had been commenced before the Rules of Court took
effect. But Rule 133 cited by the appellant provides:
These rules shall take effect on July 1, 1940.
They shall govern all cases brought after
they take effect, and also all further
proceedings in cases then pending, except
to the extent that in the opinion of the court
their application would not be feasible or
would work injustice, in which event the
former procedure shall apply. (Emphasis
supplied.)
So, Rule 77 applies to this case because it was a
further proceedings in a case then pending. But even
if section 623 of the Code of Civil Procedure were to
be applied, still the evidence to prove the contents
and due execution of the will and the fact of its
unauthorized destruction, cancellation, or obliteration
must be established "by full evidence to the
satisfaction of the Court." This requirement may even
be more strict and exacting than the two-witness rule
provided for in section 6, Rule 77. The underlying
reason for the exacting provisions found in section
623 of Act No. 190 and section 6, Rule 77, the
product of experience and wisdom, is to prevent
imposters from foisting, or at least to make for them
difficult to foist, upon probate courts alleged last wills
or testaments that were never executed.
In commenting unfavorably upon the decree
disallowing the lost will, both the appellant and the
dissenting opinion suffer from an infirmity born of a
mistaken premise that all the conclusions and
pronouncements made by the probate court in the
first decree which allowed the probate of the lost will
of the late Jose B. Suntay must be accepted by this
Court. This is an error. It must be borne in mind that
this is not a petition for a writ of certiorari to review a
judgment of the Court of Appeals on questions of law
where the findings of fact by said Court are binding
upon this Court. This is an appeal from the probate
court, because the amount involved in the controversy
exceeds P50,000, and this Court in the exercise of its
appellate jurisdiction must review the evidence and
the findings of fact and legal pronouncements made
by the probate court. If such conclusions and
pronouncements are unjustified and erroneous this
Court is in duty bound to correct them. Not long after
entering the first decree the probate court was
convinced that it had committed a mistake, so it set
aside the decree and entered another. This Court
affirmed the last decree not precisely upon the facts
found by the probate court but upon facts found by it
after a careful review and scrutiny of the evidence,
parole and documentary. After such review this Court
has found that the provisions of the will had not been
established clearly and distinctly by at least two
credible witnesses and that conclusion is unassailable
because it is solidly based on the established facts
and in accordance with law.
The appellant and the dissent try to make much out of
a pleading filed by five (5) children and the widow of
Apolonio Suntay, another child of the deceased by the
first marriage, wherein they state that
. . . in answer to the alternative petition filed
in these proceedings by Silvino Suntay,
through counsel, dated June 18, 1947, to
this Honorable Court respectfully state that,
since said alternative petition seeks only to
put into effect the testamentary disposition
and wishes of their late father, they have no
opposition thereto. (Pp. 71-72, amended
record on appeal.)
Does that mean that they were consenting to the
probate of the lost will? Of course not. If the lost will
sought to be probated in the alternative petition was
really the will of their late father, they, as good
children, naturally had, could have, no objection to its
probate. That is all that their answer implies and
means. But such lack of objection to the probate of
the lost will does not relieve the proponent thereof or
the party interested in its probate from establishing its
due execution and proving clearly and distinctly the
provisions thereof at least two credible witnesses. It
does not mean that they accept the draft Exhibit B as
an exact and true copy of the lost will and consent to
its probate. Far from it. In the pleading copied in the
dissent, which the appellant has owned and used as
argument in the motion for reconsideration, there is
nothing that may bolster up his contention. Even if all
the children were agreeable to the probate of said lost
will, still the due execution of the lost will must be
established and the provisions thereof proved clearly
and distinctly by at least two credible witnesses, as
provided for in section 6, Rule 77. The appellant's
effort failed to prove what is required by the rule. Even
if the children of the deceased by the first marriage,
out of generosity, were willing to donate their shares
in the estate of their deceased father or parts thereof
to their step mother and her only child, the herein
appellant, still the donation, if validly made, would not
dispense with the proceedings for the probate of the
will in accordance with section 6, Rule 77, because
the former may convey by way of donation their
shares in the state of their deceased father or parts
thereof to the latter only after the decree disallowing
the will shall have been rendered and shall have
become final. If the lost will is allowed to probate there
would be no room for such donation except of their
respective shares in the probated will.
The part of the deposition of Go Toh quoted in the
motion for reconsideration which appellant
underscores does not refer to Go Toh but to Manuel
Lopez. Even if Go Toh heard Manuel Lopez read the
draft (Exhibit B) for the purpose of checking it up with
the original held and read by Jose B. Suntay, Go Toh
should not have understood the provisions of the will
because he knew very little of the Spanish language
in which the will was written (answer to 22nd and 23rd
interrogatories and to X-2 cross-interrogatory). In fact,
he testifies in his deposition that all he knows about
the contents of the lost will was revealed to him by
Jose B. Suntay at the time it was executed (answers
to 25th interrogatory and to X-4 and X-8 cross-
interrogatories); that Jose B. Suntay told him that the
contents thereof are the same as those of the draft
[Exhibit B] (answers to 33rd interrogatory and to X-8
cross-interrogatory); that Mrs. Suntay had the draft of
the will (Exhibit B) translated into Chinese and he
read the translation (answer to the 67th interrogatory);
that he did not read the will and did not compare it
(check it up) with the draft [Exhibit B] (answers to X-6
and X-20 cross-interrogatories). We repeat that
. . . all of Go Toh's testimony by deposition
on the provisions of the alleged lost will is
hearsay, because he came to know or he
learned of them from information given him
by Jose B. Suntay and from reading the
translation of the draft (Exhibit B) into
Chinese.
This finding cannot be contested and assailed.
The appellant does not understand how the Court
came to the conclusion that Ana Suntay, a witness for
the appellant could not have read the part of the will
on adjudication. According to her testimony "she did
not read the whole will but only the adjudication,"
which, this Court found, "is inconsistent with her
testimony in chief (to the effect) that "after Apolonio
read that portion, then he turned over the document of
Manuel, and he went away." (P. 528, t. s. n., hearing
of 24 February 1948.) And appellant asks the
question: "Who went away? Was it Manuel or
Apolonio?" In answer to his own question the
appellant says: "The more obvious inference is that it
was Apolonio and not Manuel who went away." This
inference made by the appellant not only is not
obvious but it is also illogical, if it be borne in mind
that Manuel came to the house of Apolonio and it
happened that Ana was there, according to her
testimony. So the sentence "he went away" in Ana's
testimony must logically and reasonably refer to
Manuel, who was a caller or visitor in the house of his
brother Apolonio and not to the latter who was in his
house. If it was Apolonio who "went away," counsel for
the appellant could have brought that out by a single
question. As the evidence stands could it be said that
the one who went away was Apolonio and not
Manuel? The obvious answer is that it was Manuel.
That inference is the result of a straight process of
reasoning and clear thinking.
There is a veiled insinuation in the dissent that Alberto
Barretto testified as he did because he had been paid
by Federico C. Suntay the sum of P16,000. Federico
C. Suntay testifies on the point thus
Q. You mentioned in your direct testimony
that you paid certain amount to Atty. Alberto
Barretto for services rendered, how much did
you pay? A. Around SIXTEEN
THOUSAND (P16,000.00).
Q. When did you make the payment? A.
During the Japanese time.
Q. Did you state that fact in any accounts
you presented to the Court? A. I do not
quite remember that.
. . . (P. 180, t. s. n., hearing of 24 October
1947.)
Q. When you made that payment, was (it)
your intention to charge it to the state or to
collect it later from the estate? A. Yes, sir.
 Q. More or less when was such payment
made, during the Japanese time, what
particular month and year, do you
remember? A. I think in 1942.
Q. And you said you paid him because of
services he rendered? A. Upon the order
to the Court.
Q. And those services were precisely
because he made a will and he made a will
which was lost, the will of Jose B. Suntay? ...
(P. 181, t. s. n., supra.) A. I think I
remember correctly according to ex-
Representative Vera who is the administrator
whom I followed at that time, that was paid
according to the services rendered by Don
Alberto Barretto with regard to our case in
the testamentaria but he also rendered
services to my father.
Q. At least your Counsel said that there was
an order of the Court ordering you to pay
that, do you have that copy of the order?
A. Yes, sir, I have, but I think that was
burned. (P. 184, t. s. n., supra.).
So the sum of P16,000 was paid upon
recommendation of the former administrator and
order of the probate court for services rendered by
Alberto Barretto not only in the probate proceedings
that also for services rendered to his father. But if this
sum of P16,000 paid to Alberto Barretto upon
recommendation of the previous administrator and
order of the probate court for professional services
rendered in the probate proceedings and to the
deceased in his lifetime be taken against his
truthfulness and veracity as to affect adversely his
testimony, what about the professional services of
Anastacio Teodoro who appeared in this case as one
of the attorneys for the petitioner-appellant? (P. 2, t. s.
n., hearing of 13 October 1947.)Would that not
likewise or by the same token affect his credibility? It
is the latter's interest more compelling than the
former's?
For the foregoing reasons, the motion for
reconsideration is denied.
 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:
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 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 As an executor, he was bound to
combined personal assets and that file tax returns for the estate he was
of the estate of Linnie Jane administering under American law.
Hodges. (pp. 91-92. Appellee's He did file such as estate tax return
Brief.) on August 8, 1958. In Schedule "M"
xxx xxx xxx of such return, he answered "Yes"
Under date of April 20, 1961, C.N. to the question as to whether he
Hodges filed his third "Annual was contemplating "renouncing the
Statement of Account by the will". On the question as to what
Executor for the Year 1960" of the property interests passed to him as
estate of Linnie Jane Hodges. In the surviving spouse, he answered:
the "Statement of Net Worth of Mr. "None, except for
C.N. Hodges and the Estate of purposes of
Linnie Jane Hodges" as of administering the
December 31, 1960 annexed Estate, paying
thereto, C.N. Hodges reported that debts, taxes and
the combined conjugal estate other legal
earned a net income of charges. It is the
P314,857.94, divided evenly intention of the
between him and the estate of surviving
Linnie Jane Hodges. Pursuant to husband of
this, he filed an "individual income deceased to
tax return" for calendar year 1960 distribute the
on the estate of Linnie Jane remaining
Hodges reporting, under oath, the property and
said estate as having earned interests of the
income of P157,428.97, exactly deceased in their
one-half of the net income of his Community
combined personal assets and that estate to the
of the estate of Linnie Jane devisees and
Hodges. (Pp. 92-93, Appellee's legatees named
Brief.) in the will when
Likewise the following: the debts,
In the petition for probate that he liabilities, taxes
(Hodges) filed, he listed the seven and expenses of
brothers and sisters of Linnie Jane administration are
as her "heirs" (see p. 2, Green finally determined
ROA). The order of the court and paid."
admitting the will to probate Again, on August 9, 1962, barely
unfortunately omitted one of the four months before his death, he
heirs, Roy Higdon (see p. 14, executed an "affidavit" wherein he
Green ROA). Immediately, C.N. ratified and confirmed all that he
Hodges filed a verified motion to stated in Schedule "M" of his estate
have Roy Higdon's name included tax returns as to his having
as an heir, stating that he wanted to renounced what was given him by
straighten the records "in order the his wife's will. 1
heirs of deceased Roy Higdon may As appointed executor, C.N.
not think or believe they were Hodges filed an "Inventory" dated
omitted, and that they were really May 12, 1958. He listed all the
and are interested in the estate of assets of his conjugal partnership
deceased Linnie Jane Hodges. . 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- contracts have already paid the
1828), which was again approved price and complied with the terms
by the lower court on August 7, and conditions thereof;
1964. The gates having been "2. In the course of administration of
opened, a flood ensued: the both estates, mortgage debtors
appellant subsequently filed similar have already paid their debts
motions for the approval of a secured by chattel mortgages in
multitude of deeds of sales and favor of the late C. N. Hodges, and
cancellations of mortgages signed are now entitled to release
by both the appellee Avelina A. therefrom;
Magno and the appellant. "3. There are attached hereto
A random check of the records of documents executed jointly by the
Special Proceeding No. 1307 alone Administratrix in Sp. Proc. No. 1307
will show Atty. Cesar T. Tirol as and the Administrator in Sp. Proc.
having presented for court approval No. 1672, consisting of deeds of
deeds of sale of real properties sale in favor
signed by both appellee Avelina A. Fernando Cano,
Magno and D. R. Paulino in the Bacolod City,
following numbers: (a) motion dated Occ. Negros
September 21, 1964 6 deeds of Fe Magbanua,
sale; (b) motion dated November 4, Iloilo City
1964 1 deed of sale; (c) motion Policarpio M.
dated December 1, 1964 4 Pareno, La Paz,
deeds of sale; (d) motion dated Iloilo City
February 3, 1965 8 deeds of Rosario T. Libre,
sale; (f) motion dated May 7, 1965 Jaro, Iloilo City
9 deeds of sale. In view of the Federico B.
very extensive landholdings of the Torres, Iloilo City
Hodges spouses and the many Reynaldo T.
motions filed concerning deeds of Lataquin, La Paz,
sale of real properties executed by Iloilo City
C. N. Hodges the lower court has Anatolio T. Viray,
had to constitute special separate Iloilo City
expedientes in Special Proceedings Benjamin
Nos. 1307 and 1672 to include Rolando, Jaro,
mere motions for the approval of Iloilo City
deeds of sale of the conjugal and cancellations of mortgages in
properties of the Hodges spouses. favor of
As an example, from among the Pablo Manzano,
very many, under date of February Oton, Iloilo
3, 1965, Atty. Cesar T. Tirol, as Ricardo M.
counsel for the appellant, filed Diana, Dao, San
"Motion for Approval of Deeds of Jose, Antique
Sale for Registered Land and Simplicio
Cancellations of Mortgages" (CFI Tingson, Iloilo
Record, Sp. Proc. No. 1307, Vol. City
VIII, pp. 6570-6596) the allegations Amado
of which read: Magbanua,
"1. In his lifetime, the late C. N. Pototan, Iloilo
Hodges executed "Contracts to Roselia M. Baes,
Sell" real property, and the Bolo, Roxas City
prospective buyers under said 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., specific final deeds of sale probate the Last Will and Testament
approving the deed of sale executed by respondent executed by the appellant, of the deceased Linnie Jane
Magno in favor of appellee Alfredo Catedral on March Philippine Commercial and Hodges executed November 22,
2, 1966, pursuant to a "contract to sell" signed by Industrial Bank, which were never 1952 and appointed C. N. Hodges
Hodges on May 29, 1954, before the death of his appealed by the appellee, Avelina as Executor of the estate of Linnie
wife, which contract petitioner claims it had cancelled A. Magno, nor by any party for that Jane Hodges (pp. 24-25, Rec. Sp.
on February 16, 1966 for failure of appellee Catedral matter, and which are now therefore Proc. 1307).
to pay the installments due on time. final. (3) On July 1, 1957 this Honorable
10. Order of April 5, 1966, on pp. 138-139, id., Now, simultaneously with the foregoing incidents, Court issued Letters Testamentary
approving the deed of sale executed by respondent others of more fundamental and all embracing to C. N. Hodges in the Estate of
Magno in favor of appellee Jose Pablico on March 7, significance developed. On October 5, 1963, over the Linnie Jane Hodges (p. 30, Rec.
1966, pursuant to a "contract to sell" signed by signature of Atty. Allison J. Gibbs in representation of Sp. Proc. 1307).
Hodges on March 7, 1950, after the death of his wife, the law firm of Ozaeta, Gibbs & Ozaeta, as counsel (4) On December 14, 1957 this
which contract petitioner claims it had cancelled on for the co-administrators Joe Hodges and Fernando Honorable Court, on the basis of
June 29, 1960, for failure of appellee Pablico to pay P. Mirasol, the following self-explanatory motion was the following allegations in a Motion
the installments due on time. filed: dated December 11, 1957 filed by
11. Order of December 2, 1966, on pp. 303-304, id., URGENT Leon P. Gellada as attorney for the
insofar as it approved the deed of sale executed by MOTION FOR executor C. N. Hodges:
respondent Magno in favor of appellee Pepito Iyulores AN "That herein
on September 6, 1966, pursuant to a "contract to sell" ACCOUNTING Executor, (is) not
signed by Hodges on February 5, 1951, before the AND DELIVERY only part owner of
death of his wife. TO the properties left
12. Order of January 3, 1967, on pp. 335-336, id., ADMINISTRATIO as conjugal, but
approving three deeds of sale executed by N OF THE also, the
respondent Magno, one in favor of appellees ESTATE OF C. successor to all
Santiago Pacaonsis and two in favor of appellee N. HODGES OF the properties left
Adelfa Premaylon on December 5, 1966 and ALL OF THE by the deceased
November 3, 1966, respectively, pursuant to separate ASSETS OF THE Linnie Jane
"promises to sell" signed respectively by Hodges on CONJUGAL Hodges."
May 26, 1955 and January 30, 1954, before the death PARTNERSHIP (p. 44, Rec. Sp.
of his wife, and October 31, 1959, after her death. OF THE Proc. 1307;
In like manner, there were also instances when DECEASED emphasis
respondent court approved deeds of sale executed by LINNIE JANE supplied.)
petitioner alone and without the concurrence of HODGES AND C issued the following order:
respondent Magno, and such approvals have not N. HODGES "As prayed for by
been the subject of any appeal. No less than EXISTING AS OF Attorney Gellada,
petitioner points this out on pages 149-150 of its brief MAY 23, 1957 counsel for the
as appellant thus: PLUS ALL THE Executory, for the
The points of fact and law RENTS, reasons stated in
pertaining to the two abovecited EMOLUMENTS his motion dated
assignments of error have already AND INCOME December 11,
been discussed previously. In the THEREFROM. 1957 which the
first abovecited error, the order COMES NOW the co-administrator court considers
alluded to was general, and as of the estate of C. N. Hodges, Joe well taken, all the
already explained before, it was, as Hodges, through his undersigned sales,
admitted by the lower court itself, attorneys in the above-entitled conveyances,
superseded by the particular orders proceedings, and to this Honorable leases and
approving specific final deeds of Court respectfully alleges: mortgages of all
sale executed by the appellee, (1) On May 23, 1957 Linnie Jane properties left by
Avelina A. Magno, which are Hodges died in Iloilo City. the deceased
subject of this appeal, as well as (2) On June 28, 1957 this Linnie Jane
the particular orders approving Honorable Court admitted to Hodges are
 hereby (6) On July 30, 1960 this Honorable accordance with
APPROVED. The Court approved the "Annual the last will and
said executor is Statement of Account" submitted by testament of the
further authorized C. N. Hodges through his counsel deceased,
to execute Leon P. Gellada on July 21, 1960 already probated
subsequent wherein he alleged among other by this Honorable
sales, things: Court.
conveyances, "That no person (pp. 90-91. Rec.
leases and interested in the Sp. Proc. 1307;
mortgages of the Philippines of the emphasis
properties left by time and place of supplied.)
the said examining the (8) On December 25, 1962, C.N.
deceased Linnie herein account, Hodges died.
Jane Hodges in be given notice (9) On December 25, 1962, on the
consonance with as herein Urgent Ex-parte Motion of Leon P.
the wishes executor is the Gellada filed only in Special
contained in the only devisee or Proceeding No. 1307, this
last will and legatee of the Honorable Court appointed Avelina
testament of the deceased Linnie A. Magno
latter." Jane Hodges, in "Administratrix of the estate of
(p. 46, Rec. Sp. accordance with Linnie Jane Hodges and as Special
Proc. 1307; the last will and Administratrix of the estate of
emphasis testament of the Charles Newton Hodges, in the
supplied.) deceased, latter case, because the last will of
(5) On April 21, 1959 this Honorable already probated said Charles Newton Hodges is still
Court approved the inventory and by this Honorable kept in his vault or iron safe and
accounting submitted by C. N. Court." that the real and personal
Hodges through his counsel Leon P. (pp. 81-82. Rec. properties of both spouses may be
Gellada on April 14, 1959 wherein Sp. Proc. 1307; lost, damaged or go to waste,
he alleged among other things emphasis unless a Special Administratrix is
"That no person supplied.) appointed."
interested in the (7) On May 2, 1961 this Honorable (p. 100. Rec. Sp. Proc. 1307)
Philippines of the court approved the "Annual (10) On December 26, 1962 Letters
time and place of Statement of Account By The of Administration were issued to
examining the Executor for the Year 1960" Avelina Magno pursuant to this
herein account, submitted through Leon P. Gellada Honorable Court's aforesaid Order
be given notice, on April 20, 1961 wherein he of December 25, 1962
as herein alleged: "With full
executor is the That no person authority to take
only devisee or interested in the possession of all
legatee of the Philippines be the property of
deceased, in given notice, of said deceased in
accordance with the time and any province or
the last will and place of provinces in
testament examining the which it may be
already probated herein account, situated and to
by the Honorable as herein perform all other
Court." Executor is the acts necessary
(pp. 77-78, Rec. only devisee or for the
Sp. Proc. 1307; legatee of the preservation of
emphasis deceased Linnie said property,
supplied.). Jane Hodges, in said
 Administratrix escrituras de sale executed by
and/or Special cancelacion de the Administratrix
Administratrix hipoteca tanto de and by the co-
having filed a bienes reales administrator
bond satisfactory como personales (Fernando P.
to the Court." cada vez que la Mirasol) of the
(p. 102, Rec. Sp. consideracion de estate of Linnie
Proc. 1307) cada hipoteca Jane Hodges and
(11) On January 22, 1963 this este totalmente Charles Newton
Honorable Court on petition of Leon pagada. Hodges
P. Gellada of January 21, 1963 "Cada una de respectively, in
issued Letters of Administration to: dichas escrituras compliance with
(a) Avelina A. Magno as que se otorguen the terms and
Administratrix of the estate of Linnie debe ser conditions of the
Jane Hodges; sometida para la respective
(b) Avelina A. Magno as Special aprobacion de "contracts to sell"
Administratrix of the Estate of este Juzgado." executed by the
Charles Newton Hodges; and (p. 117, Sp. Proc. parties thereto."
(c) Joe Hodges as Co-Special 1307). (14) The properties involved in the
Administrator of the Estate of [Par 1 (c), Reply aforesaid motion of September 16,
Charles Newton Hodges. to Motion For 1963 are all registered in the name
(p. 43, Rec. Sp. Proc. 1307) Removal of Joe of the deceased C. N. Hodges.
(12) On February 20, 1963 this Hodges] (15) Avelina A. Magno, it is alleged
Honorable Court on the basis of a (13) On September l6, 1963 Leon P. on information and belief, has been
motion filed by Leon P. Gellada as Gellada, acting as attorney for advertising in the newspaper in
legal counsel on February 16, 1963 Avelina A. Magno as Administratrix Iloilo thusly:
for Avelina A. Magno acting as of the estate of Linnie Jane For Sale
Administratrix of the Estate of Hodges, alleges: Testate Estate of Linnie Jane
Charles Newton Hodges (pp. 114- 3. That since Hodges and Charles Newton
116, Sp. Proc. 1307) issued the January, 1963, Hodges.
following order: both estates of All Real Estate or Personal
"... se autoriza a Linnie Jane Property will be sold on First Come
aquella (Avelina Hodges and First Served Basis.
A. Magno) a Charles Newton Avelina A
firmar escrituras Hodges have Administr
de venta been receiving in (16) Avelina A. Magno, it is alleged
definitiva de full, payments for on information and belief, has paid
propiedades those "contracts and still is paying sums of money to
cubiertas por to sell" entered sundry persons.
contratos para into by C. N. (17) Joe Hodges through the
vender, firmados, Hodges during undersigned attorneys manifested
en vida, por el his lifetime, and during the hearings before this
finado Charles the purchasers Honorable Court on September 5
Newton Hodges, have been and 6, 1963 that the estate of C. N.
cada vez que el demanding the Hodges was claiming all of the
precio estipulado execution of assets belonging to the deceased
en cada contrato definite deeds of spouses Linnie Jane Hodges and
este totalmente sale in their favor. C. N. Hodges situated in Philippines
pagado. Se 4. That hereto because of the aforesaid election
autoriza attached are by C. N. Hodges wherein he
igualmente a la thirteen (13) claimed and took possession as
misma a firmar copies deeds of 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 COMES NOW Philippine
of the properties of the estates: Commercial and Industrial Bank
(b) Employing personnel and (hereinafter referred to as PCIB),
paying them any compensation. the administrator of the estate of C.
(4) Such other relief as this N. Hodges, deceased, in Special
Honorable Court may deem just Proceedings No. 1672, through its
and equitable in the premises. undersigned counsel, and to this
(Annex "T", Petition.) Honorable Court respectfully
Almost a year thereafter, or on September 14, 1964, alleges that:
after the co-administrators Joe Hodges and Fernando 1. On October 5, 1963, Joe Hodges
P. Mirasol were replaced by herein petitioner acting as the co-administrator of the
Philippine Commercial and Industrial Bank as sole estate of C. N. Hodges filed,
administrator, pursuant to an agreement of all the through the undersigned attorneys,
heirs of Hodges approved by the court, and because an "Urgent Motion For An
the above motion of October 5, 1963 had not yet been Accounting and Delivery To
heard due to the absence from the country of Atty. Administrator of the Estate of C. N.
Gibbs, petitioner filed the following: Hodges of all Of The Assets Of The
MANIFESTATIO Conjugal Partnership of The
N AND MOTION, Deceased Linnie Jane Hodges and
INCLUDING C. N. Hodges Existing as Of May,
MOTION TO SET 23, 1957 Plus All Of The Rents,
FOR HEARING Emoluments and Income
AND RESOLVE Therefrom" (pp. 536-542, CFI Rec.
"URGENT S. P. No. 1672).
MOTION FOR 2. On January 24, 1964 this
AN Honorable Court, on the basis of an
ACCOUNTING amicable agreement entered into
AND DELIVERY on January 23, 1964 by the two co-
TO administrators of the estate of C. N.
ADMINISTRATO Hodges and virtually all of the heirs
RS OF THE of C. N. Hodges (p. 912, CFI Rec.,
ESTATE OF C. S. P. No. 1672), resolved the
N. HODGES OF dispute over who should act as
ALL THE administrator of the estate of C. N.
ASSETS OF THE Hodges by appointing the PCIB as
CONJUGAL administrator of the estate of C. N.
PARTNERSHIP Hodges (pp. 905-906, CFI Rec. S.
OF THE P. No. 1672) and issuing letters of
DECEASED administration to the PCIB.
LINNIE JANE 3. On January 24, 1964 virtually all
HODGES AND of the heirs of C. N. Hodges, Joe
C. N. HODGES Hodges and Fernando P. Mirasol
EXISTING AS OF acting as the two co-administrators
MAY 23, 1957 of the estate of C. N. Hodges,
PLUS ALL OF Avelina A. Magno acting as the
THE RENTS, administratrix of the estate of Linnie
EMOLUMENTS Jane Hodges, and Messrs. William
AND INCOME Brown and Ardel Young Acting for
THEREFROM all of the Higdon family who claim to
OF OCTOBER 5, be the sole beneficiaries of the
1963. estate of Linnie Jane Hodges and
various legal counsel representing
the aforenamed parties entered into the following acts, among others, of to their fee
an amicable agreement, which was Avelina A. Magno and those who agreement
approved by this Honorable Court, claim to act for her as administratrix approved by this
wherein the parties thereto agreed of the estate of Linnie Jane Honorable Court
that certain sums of money were to Hodges: in its order dated
be paid in settlement of different (a) Avelina A. March 31, 1964.
claims against the two estates Magno illegally (c) Avelina A.
and that the assets (to the extent acts as if she is in Magno illegally
they existed)of both estates would exclusive control gives access to
be administrated jointly by the PCIB of all of the and turns over
as administrator of the estate of C. assets in the possession of the
N. Hodges and Avelina A. Magno Philippines of records and
as administratrix of the estate of both estates assets of the
Linnie Jane Hodges, subject, including those estate of C.N.
however, to the aforesaid October claimed by the Hodges to the
5, 1963 Motion, namely, the PCIB's estate of C. N. attorney-in-fact of
claim to exclusive possession and Hodges as the Higdon
ownership of one-hundred percent evidenced in part Family, Mr.
(10017,) (or, in the alternative, by her locking the James L.
seventy-five percent [75%] of all premises at 206- Sullivan, as
assets owned by C. N. Hodges or 208 Guanco evidenced in part
Linnie Jane Hodges situated in the Street, Iloilo City by the cashing of
Philippines. On February 1, 1964 on August 31, his personal
(pp. 934-935, CFI Rec., S. P. No. 1964 and checks.
1672) this Honorable Court refusing to (d) Avelina A.
amended its order of January 24, reopen same until Magno illegally
1964 but in no way changes its ordered to do so refuses to
recognition of the aforedescribed by this Honorable execute checks
basic demand by the PCIB as Court on prepared by the
administrator of the estate of C. N. September 7, PCIB drawn to
Hodges to one hundred percent 1964. pay expenses of
(100%) of the assets claimed by (b) Avelina A. the estate of C.
both estates. Magno illegally N. Hodges as
4. On February 15, 1964 the PCIB acts as though evidenced in part
filed a "Motion to Resolve" the she alone may by the check
aforesaid Motion of October 5, decide how the drawn to
1963. This Honorable Court set for assets of the reimburse the
hearing on June 11, 1964 the estate of C.N. PCIB's advance
Motion of October 5, 1963. Hodges should of P48,445.50 to
5. On June 11, 1964, because the be administered, pay the 1964
undersigned Allison J. Gibbs was who the PCIB income taxes
absent in the United States, this shall employ and reported due and
Honorable Court ordered the how much they payable by the
indefinite postponement of the may be paid as estate of C.N.
hearing of the Motion of October 5, evidenced in Hodges.
1963. party by her 7. Under and pursuant to the orders
6. Since its appointment as refusal to sign of this Honorable Court, particularly
administrator of the estate of C. N. checks issued by those of January 24 and February
Hodges the PCIB has not been able the PCIB payable 1, 1964, and the mandate
to properly carry out its duties and to the contained in its Letters of
obligations as administrator of the undersigned Administration issued on January
estate of C. N. Hodges because of counsel pursuant 24, 1964 to the PCIB, it has
 "full authority simultaneously thereupon was
to take as: appointed on
possession of (i) Administratrix January 22, 1963
all the of the estate of by this Honorable
property of Linnie Jane Court as special
the deceased Hodges (p. 102, co-administrator
C. N. Hodges CFI Rec., S.P. of the estate of
"and to perform No. 1307) to C.N. Hodges (pp.
all other acts replace the 38-40 & 43, CFI
necessary for the deceased C. N. Rec. S.P. No.
preservation of Hodges who on 1672) along with
said property." (p. May 28, 1957 Miss Magno who
914, CFI Rec., was appointed at that time was
S.P. No. 1672.) Special still acting as
8. As administrator of the estate of Administrator (p. special co-
C. N. Hodges, the PCIB claims the 13. CFI Rec. S.P. administratrix of
right to the immediate exclusive No. 1307) and on the estate of C.
possession and control of all of the July 1, 1957 N. Hodges.
properties, accounts receivables, Executor of the (d) On February
court cases, bank accounts and estate of Linnie 22, 1963, without
other assets, including the Jane Hodges (p. objection on the
documentary records evidencing 30, CFI Rec., S. part of Avelina A.
same, which existed in the P. No. 1307). Magno, this
Philippines on the date of C. N. (ii) Special Honorable Court
Hodges' death, December 25, Administratrix of appointed Joe
1962, and were in his possession the estate of C. Hodges and
and registered in his name alone. N. Hodges (p. Fernando P.
The PCIB knows of no assets in the 102, CFI Rec., Mirasol as co-
Philippines registered in the name S.P. No. 1307). administrators of
of Linnie Jane Hodges, the estate (b) On December the estate of C.N.
of Linnie Jane Hodges, or, C. N. 29, 1962 this Hodges (pp. 76-
Hodges, Executor of the Estate of Honorable Court 78, 81 & 85, CFI
Linnie Jane Hodges on December appointed Harold Rec., S.P. No.
25, 1962. All of the assets of which K. Davies as co- 1672).
the PCIB has knowledge are either special 10. Miss Avelina A. Magno,
registered in the name of C. N. administrator of pursuant to the orders of this
Hodges, alone or were derived the estate of C.N. Honorable Court of December 25,
therefrom since his death on Hodges along 1962, took possession of all
December 25, 1962. with Avelina A. Philippine Assets now claimed by
9. The PCIB as the current Magno (pp. 108- the two estates. Legally, Miss
administrator of the estate of C. N. 111, CFI Rec., S. Magno could take possession of the
Hodges, deceased, succeeded to P. No. 1307). assets registered in the name of C.
all of the rights of the previously (c) On January N. Hodges alone only in her
duly appointed administrators of the 22, 1963, with the capacity as Special Administratrix of
estate of C. N. Hodges, to wit: conformity of the Estate of C.N. Hodges. With the
(a) On December Avelina A. appointment by this Honorable
25, 1962, date of Magno, Harold K. Court on February 22, 1963 of Joe
C. N. Hodges' Davies resigned Hodges and Fernando P. Mirasol as
death, this in favor of Joe the co-administrators of the estate
Honorable Court Hodges (pp. 35- of C.N. Hodges, they legally were
appointed Miss 36, CFI Rec., S.P. entitled to take over from Miss
Avelina A. Magno No. 1672) who Magno the full and exclusive
possession of all of the assets of 25-33, CFI Rec., 12. In the aforesaid agreement of January 24, 1964,
the estate of C.N. Hodges. With the S. P. No. 1672). Miss Avelina A. Magno agreed to receive P10,000.00
appointment on January 24, 1964 Note: This accounting was "for her services
of the PCIB as the sole approved by this Honorable Court as administratrix
administrator of the estate of C.N. on January 22, 1963 (p. 34, CFI of the estate of
Hodges in substitution of Joe Rec., S. P. No. 1672). Linnie Jane
Hodges and Fernando P. Mirasol, (b) The Hodges"
the PCIB legally became the only accounting of Joe and in addition she agreed to be
party entitled to the sole and Hodges and employed, starting February 1,
exclusive possession of all of the Fernando P. 1964, at
assets of the estate of C. N. Mirasol as of "a monthly salary
Hodges. January 23, of P500.00 for
11. The PCIB's predecessors 1964, filed her services as
submitted their accounting and this February 24, an employee of
Honorable Court approved same, to 1964 (pp. 990- both estates."
wit: 1000, CFI Rec. 24 ems.
(a) The S.P. No. 1672 13. Under the aforesaid agreement
accounting of and pp. 1806- of January 24, 1964 and the orders
Harold K. Davies 1848, CFI Rec. of this Honorable Court of same
dated January S.P. No. 1307). date, the PCIB as administrator of
18, 1963 (pp. 16- Note: This accounting was the estate of C. N. Hodges is
33, CFI Rec. S.P. approved by this Honorable Court entitled to the exclusive possession
No. 1672); which on March 3, 1964. of all records, properties and assets
shows or its face (c) The PCIB and in the name of C. N. Hodges as of
the: its undersigned the date of his death on December
(i) Conformity of lawyers are 25, 1962 which were in the
Avelina A. Magno aware of no possession of the deceased C. N.
acting as report or Hodges on that date and which
"Administratrix of accounting then passed to the possession of
the Estate of submitted by Miss Magno in her capacity as
Linnie Jane Avelina A. Magno Special Co-Administratrix of the
Hodges and of her acts as estate of C. N. Hodges or the
Special administratrix of possession of Joe Hodges or
Administratrix of the estate of Fernando P. Mirasol as co-
the Estate of C. Linnie Jane administrators of the estate of C. N.
N. Hodges"; Hodges or Hodges.
(ii) Conformity of special 14. Because of Miss Magno's
Leslie Echols, a administratrix of refusal to comply with the
Texas lawyer the estate of C.N. reasonable request of PCIB
acting for the Hodges, unless it concerning the assets of the estate
heirs of C.N. is the accounting of C. N. Hodges, the PCIB
Hodges; and of Harold K. dismissed Miss Magno as an
(iii) Conformity of Davies as special employee of the estate of C. N.
William Brown, a co-administrator Hodges effective August 31, 1964.
Texas lawyer of the estate of On September 1, 1964 Miss Magno
acting for the C.N. Hodges locked the premises at 206-208
Higdon family dated January Guanco Street and denied the PCIB
who claim to be 18, 1963 to which access thereto. Upon the Urgent
the only heirs of Miss Magno Motion of the PCIB dated
Linnie Jane manifested her September 3, 1964, this Honorable
Hodges (pp. 18, conformity Court on September 7, 1964
(supra). 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 oil, gas and/or bequeath all of
my estate, both other minerals, the rest, residue
personal and and all such and remainder of
real, wherever deeds or leases my estate both
situated, or shall pass the real and
located, to my absolute fee personal,
husband, Charles simple title to the wherever situated
Newton Hodges, interest so or located, to be
to have and to conveyed in such equally divided
hold unto him, my property as he among my
said husband may elect to sell. brothers and
during his natural All rents, sisters, share and
lifetime. emoluments and share alike,
THIRD: I desire, income from said namely:
direct and provide estate shall "Esta Higdon,
that my husband, belong to him, Emma Howell,
Charles Newton and he is further Leonard Higdon,
Hodges, shall authorized to use Roy Higdon,
have the right to any part of the Sadie Rascoe,
manage, control, principal of said Era Boman and
use and enjoy estate as he may Nimray Higdon."
said estate during need or desire. It 4. On November 14, 1953, C. N.
his lifetime, and is provided Hodges executed in the City of Iloilo
he is hereby herein, however, his Last Will and Testament, a copy
given the right to that he shall not of which is hereto attached
make any sell or otherwise as Annex "B ". In said Will, C. N.
changes in the dispose of any of Hodges designated his wife, Linnie
physical the improved Jane Hodges, as his beneficiary
properties of said property now using the identical language she
estate by sale of owned by us used in the second and third
any part thereof located at, in or provisos of her Will, supra.
which he think near the City of 5. On May 23, 1957 Linnie Jane
best, and the Lubbock, Texas, Hodges died in Iloilo City,
purchase of any but he shall have predeceasing her husband by more
other or the full right to than five (5) years. At the time of
additional lease, manage her death, she had no forced or
property as he and enjoy the compulsory heir, except her
may think best; to same during his husband, C. N. Hodges. She was
execute lifetime, as above survived also by various brothers
conveyances with provided. He and sisters mentioned in her Will
or without general shall have the (supra), which, for convenience, we
or special right to sub-divide shall refer to as the HIGDONS.
warranty, any farmland and 6. On June 28, 1957, this
conveying in fee sell lots therein, Honorable Court admitted to
simple or for any and may sell probate the Last Will and Testament
other term or unimproved town of the deceased Linnie Jane
time, any lots. Hodges (Annex "A"), and appointed
property which he FOURTH: At the C. N. Hodges as executor of her
may deem proper death of my said estate without bond. (CFI Record,
to dispose of; to husband, Charles Sp. Proc. No. 1307, pp. 24-25). On
lease any of the Newton Hodges, I July 1, 1957, this Honorable Court
real property for give, devise and issued letters testamentary to C. N.
Hodges in the estate of Linnie Jane situs of the captioned Special
Hodges. (CFI Record, Sp. Proc. No. property (also Proceedings.
1307, p. 30.) Philippine law as 8. Under Philippine and Texas law,
7. The Will of Linnie Jane Hodges, to properties the conjugal or community estate of
with respect to the order of located in the spouses shall, upon dissolution, be
succession, the amount of Philippines) with divided equally between them.
successional rights, and the regards Thus, upon the death of Linnie Jane
intrinsic of its testamentary immovable (real Hodges on May 23, 1957, one-half
provisions, should be governed by properties). Thus (1/2) of the entirety of the assets of
Philippine laws because: applying the the Hodges spouses constituting
(a) The testatrix, "Renvoi their conjugal estate pertained
Linnie Jane Doctrine", as automatically to Charles Newton
Hodges, intended approved and Hodges, not by way of inheritance,
Philippine laws to applied by our but in his own right as partner in the
govern her Will; Supreme Court in conjugal partnership. The other
(b) Article 16 of the case of "In one-half (1/2) portion of the
the Civil Code The Matter Of conjugal estate constituted the
provides that "the The Testate estate of Linnie Jane Hodges. This
national law of Estate of Eduard is the only portion of the conjugal
the person whose E. Christensen", estate capable of inheritance by her
succession is G.R. No. heirs.
under L-16749, 9. This one-half (1/2) portion of the
consideration, promulgated conjugal assets pertaining to Linnie
whatever may be January 31, Jane Hodges cannot, under a clear
the nature of the 1963, Philippine and specific provision of her Will, be
property and law should apply enhanced or increased by income,
regardless of the to the Will of earnings, rents, or emoluments
country wherein Linnie Jane accruing after her death on May 23,
said property may Hodges and to 1957. Linnie Jane Hodges' Will
be found", shall the successional provides that "all rents, emoluments
prevail. However, rights to her and income from said estate shall
the Conflict of estate insofar as belong to him (C. N. Hodges) and
Law of Texas, her movable and he is further authorized to use any
which is the immovable asset part of the principal of said estate
"national law" of s in the as he may need or desire."
the testatrix, Philippines are (Paragraph 3, Annex "A".) Thus, by
Linnie Jane concerned. We specific provision of Linnie Jane
Hodges, provide shall not, at this Hodges' Will, "all rents, emoluments
that the stage, discuss and income" must be credited to the
domiciliary law what law should one-half (1/2) portion of the
(Philippine law govern the assets conjugal estate pertaining to C. N.
see paragraph of Linnie Jane Hodges. Clearly, therefore, the
2, supra) should Hodges located estate of Linnie Jane Hodges,
govern the in Oklahoma and capable of inheritance by her heirs,
testamentary Texas, because consisted exclusively of no more
dispositions and the only assets in than one-half (1/2) of the conjugal
successional issue in this estate, computed as of the time of
rights over motion are those her death on May 23, 1957.
movables within the 10. Articles 900, 995 and 1001 of
(personal jurisdiction of this the New Civil Code provide that the
properties), and motion Court in surviving spouse of a deceased
the law of the the two above- 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 in accordance with the dispositions "Esta Higdon,
Honorable Court approved the of her will, there was, in fact, no Emma
verified "Annual Statement of need to liquidate the conjugal Howell,
Account" submitted by C. N. estate of the spouses. The entirely Leonard
Hodges through his counsel Leon P. of said conjugal estate pertained to Higdon, Roy
Gellada on July 21, 1960 wherein him exclusively, therefore this Higdon, Sadie
he alleged, among other things. Honorable Court sanctioned and Rascoe, Era
"That no person authorized, as above-stated, C. N. Boman and
interested in the Hodges to manage, operate and Nimray
Philippines of the control all the conjugal assets as Higdon."
time and place of owner. Because of the facts hereinabove
examining the 16. By expressly authorizing C. N. set out there is no "rest, residue
herein account, Hodges to act as he did in and remainder", at least to the
be given connection with the estate of his extent of the Philippine assets,
notice as herein wife, this Honorable Court has (1) which remains to vest in the
executor is the declared C. N. Hodges as the sole HIGDONS, assuming this proviso in
only devisee or heir of the estate of Linnie Jane Linnie Jane Hodges' Will is valid
legatee of the Hodges, and (2) delivered and and binding against the estate of C.
deceased Linnie distributed her estate to C. N. N. Hodges.
Jane Hodges, in Hodges as sole heir in accordance 18. Any claims by the HIGDONS
accordance with with the terms and conditions of her under the above-quoted provision
the last will and Will. Thus, although the "estate of of Linnie Jane Hodges' Will is
testament ofthe Linnie Jane Hodges" still exists as a without merit because said
deceased, legal and juridical personality, it had provision is void and invalid at least
already probated no assets or properties located in as to the Philippine assets. It should
by this Honorable the Philippines registered in its not, in anyway, affect the rights of
Court." (CFI name whatsoever at the time of the the estate of C. N. Hodges or his
Record, Sp. Proc. death of C. N. Hodges on heirs to the properties, which C. N.
No. 1307, pp. 81- December 25, 1962. Hodges acquired by way of
82; emphasis 17. The Will of Linnie Jane Hodges inheritance from his wife Linnie
supplied.) (Annex "A"), fourth paragraph, Jane Hodges upon her death.
(e) On May 2, 1961, this Honorable provides as follows: (a) In spite of the
Court approved the verified "Annual "At the death of above-mentioned
Statement of Account By The my said husband, provision in the
Executor For the Year 1960" Charles Newton Will of Linnie
submitted through Leon P. Gellada Hodges, I give, Jane Hodges, C.
on April 20, 1961 wherein he devise and N. Hodges
alleged: bequeath all of acquired, not
"That no person interested in the the rest, residue merely a
Philippines be given notice, ofthe and remainder of usufructuary
time and place of examining the my estate both right, but absolute
herein account, as herein executor real and title and
is the only devisee or legatee of the personal, ownership to her
deceased Linnie Jane Hodges, in wherever situated estate. In a
accordance with the last will and or located, to be recent case
testament ofthe deceased, already equally divided involving a very
probated by this Honorable Court." among my similar
(CFI Record, Sp. Proc. No. 1307, brothers and testamentary
pp. 90-91; emphasis supplied.) sisters, share and provision, the
15. Since C. N. Hodges was the share alike, Supreme Court
sole and exclusive heir of Linnie namely: held that the heir
Jane Hodges, not only by law, but first designated
acquired full conjugal estate of substitution.
ownership of the the deceased. However, in order
property (c) There are that
bequeathed by generally only a vulgar or simple
the will, not mere two kinds of substitution can
usufructuary substitution be valid, three
rights. provided for and alternative
(Consolacion authorized by our conditions must
Florentino de Civil Code be present,
Crisologo, et al., (Articles 857- namely, that the
vs. Manuel 870), namely, first designated
Singson, G. R. (1) simple or heir (1) should
No. L-13876, common substitut die before the
February 28, ion, sometimes testator; or (2)
1962.) referred to should not wish
(b) Article 864, as vulgar substitu to accept the
872 and 886 of tion (Article 859), inheritance; or (3)
the New Civil and (2) should be
Code clearly fideicommissary incapacitated to
provide that no substitution do so. None of
charge, condition (Article 863). All these conditions
or substitution other apply to C. N.
whatsoever upon substitutions are Hodges, and,
the legitime can merely variations therefore, the
be imposed by a of these. The substitution
testator. Thus, substitution provided for by
under the provided for by the above-quoted
provisions of paragraph four of provision of the
Articles 900, 995 the Will of Linnie Will is not
and 1001 of the Jane Hodges is authorized by the
New Civil Code, not Code, and,
the legitime of a fideicommissary therefore, it is
surviving spouse substitution, void. Manresa,
is 1/2 of the because there is commenting on
estate of the clearly no these kisses of
deceased obligation on the substitution,
spouse. part of C. N. meaningfully
Consequently, the Hodges as the stated that: "...
above-mentioned first heir cuando el
provision in the designated, to testador
Will of Linnie preserve the instituyeun primer
Jane Hodges is properties for the heredero, y por
clearly invalid substitute heirs. fallecimiento de
insofar as the (Consolacion este nombra otro
legitime of C. N. Florentino de u otros, ha de
Hodges was Crisologo et al. entenderse que
concerned, which vs. Manuel estas segundas
consisted of 1/2 Singson, G. R. designaciones
of the 1/2 portion No. solo han de llegar
of the conjugal L-13876.) At a tener
estate, or 1/4 of most, it is efectividad en el
the entire a vulgar or simple caso de que el
 primer instituido that all said assets constituted his
muera antes que estate. Therefore
el testador, fuera (a) If the HIGDONS wish to enforce
o no esta su their dubious rights as substituted
verdadera heirs to 1/4 of the conjugal estate
intencion. ...". (6 (the other 1/4 is covered by the
Manresa, 7 a ed., legitime of C. N. Hodges which can
pag. 175.) In not be affected by any testamentary
other disposition), their remedy, if any, is
words, when to file their claim against the estate
another heir is of C. N. Hodges, which should be
designated to entitled at the present time to full
inherit upon the custody and control of all the
death of a first conjugal estate of the spouses.
heir, the second (b) The present proceedings, in
designation can which two estates exist under
have effect only separate administration, where the
in case the first administratrix of the Linnie Jane
instituted heir Hodges estate exercises an
dies before the officious right to object and
testator, whether intervene in matters affecting
or not that was exclusively the C. N. Hodges
the true intention estate, is anomalous.
of said testator. WHEREFORE, it is most
Since C. N. respectfully prayed that after trial
Hodges did not and reception of evidence, this
die before Linnie Honorable Court declare:
Jane Hodges, the 1. That the estate of Linnie Jane
provision for Hodges was and is composed
substitution exclusively of one-half (1/2) share
contained in in the conjugal estate of the
Linnie Jane spouses Hodges, computed as of
Hodges' Willis the date of her death on May 23,
void. 1957;
(d) In view of the 2. That the other half of the conjugal
invalidity of the estate pertained exclusively to C. N.
provision for Hodges as his share as partner in
substitution in the the conjugal partnership;
Will, C. N. 3. That all "rents, emoluments and
Hodges' income" of the conjugal estate
inheritance to the accruing after Linnie Jane Hodges'
entirety of the death pertains to C. N. Hodges;
Linnie Jane 4. That C. N. Hodges was the sole
Hodges estate is and exclusive heir of the estate of
irrevocable and Linnie Jane Hodges;
final. 5. That, therefore, the entire
19. Be that as it may, at the time of conjugal estate of the spouses
C. N. Hodges' death, the entirety of located in the Philippines, plus all
the conjugal estate appeared and the "rents, emoluments and
was registered in him exclusively as income" above-mentioned, now
owner. Thus, the presumption is 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. make any sell or otherwise
No. 1307, Folio I, pp. 24-25, 26-28); changes in the dispose of any of
5. That the required notice to physical the improved
creditors and to all others who may properties of said property now
have any claims against the estate, by sale of owned by us
decedent, Linnie Jane Hodges has any part thereof located at, in or
already been printed, published and which he may near the City of
posted (Sp. Proc. No. 1307, Folio I. think best, and Lubbock Texas,
pp. 34-40) and the reglamentary the purchase of but he shall have
period for filing such claims has any other or the full right to
long ago lapsed and expired additional lease, manage
without any claims having been property as he and enjoy the
asserted against the estate of may think best; to same during his
Linnie Jane Hodges, approved by execute lifetime, above
the Administrator/Administratrix of conveyances with provided. He
the said estate, nor ratified by this or without general shall have the
Honorable Court; or special right to subdivide
6. That the last will and testament of warranty, any farm land
Linnie Jane Hodges already conveying in fee and sell lots
admitted to probate contains an simple or for any therein, and may
institution of heirs in the following other term or sell unimproved
words: time, any town lots.
"SECOND: I give, property which he FOURTH: At the
devise and may deem proper death of my said
bequeath all of to dispose of; to husband, Charles
the rest, residue lease any of the Newton Hodges, I
and remainder of real property for give, devise and
my estate, both oil, gas and/or bequeath all of
personal and other minerals, the rest, residue
real, wherever and all such and remainder of
situated or deeds or leases my estate, both
located, to my shall pass the real and
beloved husband, absolute fee personal,
Charles Newton simple title to the wherever situated
Hodges to have interest so or located, to be
and to hold unto conveyed in such equally divided
him, my said property as he among my
husband, during elect to sell. All brothers and
his natural rents, sisters, share and
lifetime. emoluments and share alike,
THIRD: I desire, income from said namely:
direct and provide estate shall Esta Higdon,
that my husband, belong to him, Emma Howell,
Charles Newton and he is further Leonard Higdon,
Hodges, shall authorized to use Roy Higdon,
have the right to any part of the Sadie Rascoe,
manage, control, principal of said Era Boman and
use and enjoy estate as he may Nimroy Higdon.
said estate during need or desire. It FIFTH: In case of
his lifetime, and, is provided the death of any
he is hereby herein, however, of my brothers
given the right to that he shall not 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 b. Determining the exact value of estate of Linnie
Hodges; the estate of Linnie Jane Hodges in Jane Hodges';
c. Adjustments accordance with the system b. That "Urgent
must be made, enunciated in paragraph 14 of this Motion for An
after making a motion; Accounting and
deduction of c. After such determination ordering Delivery to the
charges, its segregation from the combined Estate of C. N.
disbursements conjugal estate and its delivery to Hodges of All the
and other the Administratrix of the estate of Assets of the
dispositions Linnie Jane Hodges for distribution Conjugal
made by Charles to the heirs to whom they properly Partnership of the
Newton Hodges belong and appertain. Deceased Linnie
personally and for (Green Record on Appeal, pp. 382- Jane Hodges and
his own personal 391) C. N. Hodges
account from May whereupon, instead of further pressing on its motion Existing as of
23, 1957 up to of January 8, 1965 aforequoted, as it had been doing May 23, 1957
December 25, before, petitioner withdrew the said motion and in Plus All the
1962, as well as addition to opposing the above motion of respondent Rents,
other charges, Magno, filed a motion on April 22, 1966 alleging in Emoluments and
disbursements part that: Income
and other 1. That it has received from the Therefrom";
dispositions counsel for the administratrix of the c. Various
made for him and supposed estate of Linnie Jane motions to
in his behalf since Hodges a notice to set her "Motion resolve the
December 25, for Official Declaration of Heirs of aforesaid motion;
1962 up to the the Estate of Linnie Jane Hodges"; d. Manifestation
present; 2. That before the aforesaid motion of September 14,
15. That there remains no other could be heard, there are matters 1964, detailing
matter for disposition now insofar pending before this Honorable acts of
as the estate of Linnie Jane Hodges Court, such as: interference of
is concerned but to complete the a. The Avelina Magno
liquidation of her estate, segregate examination under color of title
them from the conjugal estate, and already ordered as administratrix
distribute them to her heirs by this Honorable of the Estate of
pursuant to her last will and Court of Linnie Jane
testament. documents Hodges;
WHEREFORE, premises relating to the which are all prejudicial, and which
considered, it is most respectfully allegation of involve no issues of fact, all facts
moved and prayed that this Avelina Magno involved therein being matters of
Honorable Court, after a hearing on that Charles record, and therefore require only
the factual matters raised by this Newton Hodges the resolution of questions of law;
motion, issue an order: "through ... 3. That whatever claims any alleged
a. Declaring the following persons, written heirs or other persons may have
to wit: Esta Higdon, Emma Howell, declarations and could be very easily threshed out in
Leonard Higdon, Aline Higdon, sworn public the Testate Estate of Charles
David Higdon, Sadie Rascoe, Era statements, Newton Hodges;
Boman and Nimroy Higdon, as the renounced, 4. That the maintenance of two
sole heirs under the last will and disclaimed and separate estate proceedings and
testament of Linnie Jane Hodges repudiated life- two administrators only results in
and as the only persons entitled to estate and confusion and is unduly
her estate; usufruct over the 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:
ORDER
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 be well taken for the reason that so
estate of C. N. Hodges. far there has been no official
A reply (Sp. 1672, Vol. X, pp. 4436- declaration of heirs in the testate
4444) dated May 11, 1966 of the estate of Linnie Jane Hodges and
PCIB has been filed alleging that therefore no disposition of her
the motion dated April 22, 1966 of estate.
the PCIB is not to seek deferment WHEREFORE, the motion of the
of the hearing and consideration of PCIB dated April 22, 1966 is hereby
the motion for official declaration of DENIED.
heirs of Linnie Jane Hodges but to (Annex "W", Petition)
declare the testate estate of Linnie In its motion dated November 24, 1966 for the
Jane Hodges closed and for reconsideration of this order, petitioner alleged inter
administratrix Magno to account for alia that:
and deliver to the PCIB all assets of It cannot be over-stressed that the
the conjugal partnership of the motion of December 11, 1957 was
deceased spouses which has come based on the fact that:
to her possession plus all rents and a. Under the last
income. will and
A rejoinder (Sp. 1672, Vol. X, pp. testament of the
4458-4462) of administratrix Magno deceased, Linnie
dated May 19, 1966 has been filed Jane Hodges, the
alleging that the motion dated late Charles
December 11, 1957 only sought the Newton Hodges
approval of all conveyances made was the sole heir
by C. N. Hodges and requested the instituted insofar
Court authority for all subsequent as her properties
conveyances that will be executed in the Philippines
by C. N. Hodges; that the order are concerned;
dated December 14, 1957 only b. Said last will
approved the conveyances made and testament
by C. N. Hodges; that C. N. Hodges vested upon the
represented by counsel never made said late Charles
any claim in the estate of Linnie Newton Hodges
Jane Hodges and never filed a rights over said
motion to declare himself as the properties which,
heir of the said Linnie Jane Hodges in sum, spell
despite the lapse of more than five ownership,
(5) years after the death of Linnie absolute and in
Jane Hodges; that it is further fee simple;
alleged in the rejoinder that there c. Said late
can be no order of adjudication of Charles Newton
the estate unless there has been a Hodges was,
prior express declaration of heirs therefore, "not
and so far no declaration of heirs in only part owner of
the estate of Linnie Jane Hodges the properties left
(Sp. 1307) has been made. as conjugal, but
Considering the allegations and also, the
arguments in the motion and of the successor to all
PCIB as well as those in the the properties left
opposition and rejoinder of by the deceased
administratrix Magno, the Court Linnie Jane
finds the opposition and rejoinder to 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 CAUSING, ARITEO THOMAS
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
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, of the hereditary
both with respect to movables, as estate, except
well as immovables situated in the when they have
Philippines. been living as
The subject of successional rights. husband and wife
Under Philippine law, as it is under for more than five
the law of Texas, the conjugal or years. In the
community property of the spouses, latter case, the
Charles Newton Hodges and Linnie legitime of the
Jane Hodges, upon the death of the surviving spouse
latter, is to be divided into two, one- shall be that
half pertaining to each of the specified in the
spouses, as his or her own preceding
property. Thus, upon the death of paragraph.
Linnie Jane Hodges, one-half of the This legitime of the surviving
conjugal partnership property spouse cannot be burdened by a
immediately pertained to Charles fideicommisary substitution (Art.
Newton Hodges as his own share, 864, Civil code), nor by any charge,
and not by virtue of any condition, or substitution (Art, 872,
successional rights. There can be Civil code). It is clear, therefore, that
no question about this. in addition to one-half of the
Again, Philippine law, or more conjugal partnership property as his
specifically, Article 900 of the Civil own conjugal share, Charles
Code provides: Newton Hodges was also
If the only immediately entitled to one-half of
survivor is the the half conjugal share of the
widow or deceased, Linnie Jane Hodges, or
widower, she or one-fourth of the entire conjugal
he shall be property, as his legitime.
entitled to one- One-fourth of the conjugal property
half of the therefore remains at issue.
hereditary estate In the summary of its arguments in its memorandum
of the deceased dated April 30, 1968, the following appears:
spouse, and the Briefly, the position advanced by the
testator may petitioner is:
freely dispose of a. That the Hodges spouses were
the other half. domiciled legally in the Philippines
If the marriage (pp. 19-20, petition). This is now a
between the matter of res adjudicata (p. 20,
surviving spouse petition).
and the testator b. That under Philippine law, Texas
was solemnized law, and the renvoi doctrine,
in articulo mortis, Philippine law governs the
and the testator successional rights over the
died within three properties left by the deceased,
months from the Linnie Jane Hodges (pp. 20-21,
time of the petition).
marriage, the c. That under Philippine as well as
legitime of the Texas law, one-half of the Hodges
surviving spouse properties pertains to the deceased,
as the sole heir Charles Newton Hodges (p. 21,
shall be one-third
 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.
SUMMARY
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 administrator12; 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.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12767 November 16, 1918
In the matter of the estate of EMIL H. JOHNSON.
EBBA INGEBORG JOHNSON, applicant-appellant,
Hartigan & Welch for applicant and appellant.
Hartford Beaumont for Victor Johnson and others as
appellees.
Chas. E. Tenney for Alejandra Ibaez de Johnson,
personally and as guardian,
and for Simeona Ibaez, appellees.
STREET, J.:
On February 4, 1916, Emil H. Johnson, a native of
Sweden and a naturalized citizen of the United
States, died in the city of Manila, leaving a will, dated
September 9, 1915, by which he disposed of an
estate, the value of which, as estimated by him, was
P231,800. This document is an holographic
instrument, being written in the testator's own
handwriting, and is signed by himself and two
witnesses only, instead of three witnesses required by
section 618 of the Code of Civil Procedure. This will,
therefore, was not executed in conformity with the
provisions of law generally applicable to wills
executed by inhabitants of these Islands, and hence
could not have been proved under section 618.
On February 9, 1916, however, a petition was
presented in the Court of First Instance of the city of
Manila for the probate of this will, on the ground that
Johnson was at the time of his death a citizen of the
State of Illinois, United States of America; that the will
was duly executed in accordance with the laws of that
State; and hence could properly be probated here
pursuant to section 636 of the Code of Civil
Procedure. This section reads as follows:
Will made here by alien. A will made
within the Philippine Islands by a citizen or
subject of another state or country, which is
executed in accordance with the law of the
state or country of which he is a citizen or
subject, and which might be proved and
allowed by the law of his own state or
country, may be proved, allowed, and
recorded in the Philippine Islands, and shall
have the same effect as if executed
according to the laws of these Islands.
The hearing on said application was set for March 6,
1916, and three weeks publication of notice was
ordered in the "Manila Daily Bulletin." Due publication
was made pursuant to this order of the court. On
March 6, 1916, witnesses were examined relative to
the execution of the will; and upon March 16th
thereafter the document was declared to be legal and
was admitted to probate. At the same time an order
was made nominating Victor Johnson and John T.
Pickett as administrators of the estate, with the sill
annexed. Shortly thereafter Pickett signified his desire
not to serve, and Victor Johnson was appointed sole
administrator.
By the will in question the testator gives to his brother
Victor one hundred shares of the corporate stock in
the Johnson-Pickett Rope Company; to his father and
mother in Sweden, the sum of P20,000; to his
daughter Ebba Ingeborg, the sum of P5,000; to his
wife, Alejandra Ibaez, the sum of P75 per month, if
she remains single; to Simeona Ibaez, spinster, P65
per month, if she remains single. The rest of the
property is left to the testator's five children
Mercedes, Encarnacion, Victor, Eleonor and Alberto.
The biographical facts relative to the deceased
necessary to an understanding of the case are these:
Emil H. Johnson was born in Sweden, May 25, 1877,
from which country he emigrated to the United States
and lived in Chicago, Illinois, from 1893 to 1898. On
May 9, 1898, at Chicago, he was married to Rosalie
Ackeson, and immediately thereafter embarked for
the Philippine Islands as a soldier in the Army of the
United States. As a result of relations between
Johnson and Rosalie Ackeson a daughter, named
Ebba Ingeborg, was born a few months after their
marriage. This child was christened in Chicago by a
pastor of the Swedish Lutheran Church upon October
16, 1898.
After Johnson was discharged as a soldier from the
service of the United States he continued to live in the
Philippine Islands, and on November 20, 1902, the
wife, Rosalie Johnson, was granted a decree of
divorce from him in the Circuit Court of Cook County,
Illinois, on the ground of desertion. A little later
Johnson appeared in the United States on a visit and
on January 10, 1903, procured a certificate of
naturalization at Chicago. From Chicago he appears
to have gone to Sweden, where a photograph,
exhibited in evidence in this case, was taken in which
he appeared in a group with his father, mother, and
the little daughter, Ebba Ingeborg, who was then living
with her grandparents in Sweden. When this visit was
concluded, the deceased returned to Manila, where
he prospered in business and continued to live until
his death.
In this city he appears to have entered into marital
relations with Alejandra Ibaez, by whom he had
three children, to wit, Mercedes, baptized May 31,
1903; Encarnacion, baptized April 29, 1906; and
Victor, baptized December 9, 1907. The other two
children mentioned in the will were borne to the
deceased by Simeona Ibaez.
On June 12, 1916, or about three months after the will
had been probated, the attorneys for Ebba Ingeborg
Johnson entered an appearance in her behalf and
noted an exception to the other admitting the will to
probate. On October 31, 1916, the same attorneys
moved the court to vacate the order of March 16 and
also various other orders in the case. On February 20,
1917, this motion was denied, and from this action of
the trial court the present appeal has been perfected.
As will be discerned, the purpose of the proceeding
on behalf of the petitioner is to annul the decree of
probate and put the estate into intestate
administration, thus preparing the way for the
establishment of the claim of the petitioner as the sole
legitimate heir of her father.
The grounds upon which the petitioner seeks to avoid
the probate are four in number and may be stated, in
the same sequence in which they are set forth in the
petition, as follows:
(1) Emil H. Johnson was a resident of the city of
Manila and not a resident of the State of Illinois at the
time the will in question was executed;
(2) The will is invalid and inadequate to pass real and
personal property in the State of Illinois;
(3) The order admitting the will to probate was made
without notice to the petitioner; and
(4) The order in question was beyond the jurisdiction
of the court.
It cannot of course be maintained that a court of first
instance lacks essential jurisdiction over the probate
of wills. The fourth proposition above stated must,
accordingly, be interpreted in relation with the third
and must be considered as a corollary deduced from
the latter. Moreover, both the third and fourth grounds
stated take precedence, by reason of their more
fundamental implications, over the first two; and a
logical exposition of the contentions of the petitioner is
expressed in the two following propositions:
(I) The order admitting the will to probate
was beyond the jurisdiction of the court and
void because made without notice to the
petitioner;
(II) The judgment from which the petitioner
seeks relief should be set aside because the
testator was not a resident of the State of
Illinois and the will was not in conformity with
the laws of that State.
In the discussion which is to follow we shall consider
the problems arising in this cae in the order last above
indicated. Upon the question, then, of the jurisdiction
of the court, it is apparent from an inspection of the
record of the proceedings in the court below that all
the steps prescribed by law as prerequisites to the
probate of a will were complied with in every respect
and that the probate was effected in external
conformity with all legal requirements. This much is
unquestioned. It is, however, pointed out in the
argument submitted in behalf of the petitioner, that, at
the time the court made the order of publication, it
was apprised of the fact that the petitioner lived in the
United States and that as daughter and heir she was
necessarily interested in the probate of the will. It is,
therefore, insisted that the court should have
appointed a date for the probate of the will sufficiently
far in the future to permit the petitioner to be present
either in person or by representation; and it is said
that the failure of the court thus to postpone the
probate of the will constitutes an infringement of that
provision of the Philippine Bill which declared that
property shall not be taken without due process of
law.
On this point we are of the opinion that the
proceedings for the probate of the will were regular
and that the publication was sufficient to give the
court jurisdiction to entertain the proceeding and to
allow the will to be probated.
As was said in the case of In re Davis (136 Cal., 590,
596), "the proceeding as to the probate of a will is
essentially one in rem, and in the very nature of things
the state is allowed a wide latitude in determining the
character of the constructive notice to be given to the
world in a proceeding where it has absolute
possession of the res. It would be an exceptional case
where a court would declare a statute void, as
depriving a party of his property without due process
of law, the proceeding being strictly in rem, and
the res within the state, upon the ground that the
constructive notice prescribed by the statute was
unreasonably short."
In that case the petitioner had been domiciled in the
Hawaiian Islands at the time of the testator's death;
and it was impossible, in view of the distance and
means of communication then existing, for the
petitioner to appear and oppose the probate on the
day set for the hearing in California. It was
nevertheless held that publication in the manner
prescribed by statute constituted due process of law.
(See Estate of Davis, 151 Cal., 318; Tracy vs. Muir,
151 Cal., 363.)
In the Davis case (136 Cal., 590) the court
commented upon the fact that, under the laws of
California, the petitioner had a full year within which
she might have instituted a proceeding to contest the
will; and this was stated as one of the reasons for
holding that publication in the manner provided by
statute was sufficient. The same circumstance was
commented upon in O'Callaghan vs. O'Brien (199 U.
S., 89), decided in the Supreme Court of the United
States. This case arose under the laws of the State of
Washington, and it was alleged that a will had been
there probated without the notice of application for
probate having been given as required by law. It was
insisted that this was an infringement of the
Fourteenth Amendment of the Constitution of the
United States. This contention was, however, rejected
and it was held that the statutory right to contest the
will within a year was a complete refutation of the
argument founded on the idea of a violation of the due
process provision.
The laws of these Islands, in contrast with the laws in
force in perhaps all of the States of the American
Union, contain no special provision, other than that
allowing an appeal in the probate proceedings, under
which relief of any sort can be obtained from an order
of a court of first instance improperly allowing or
disallowing a will. We do, however, have a provision
of a general nature authorizing a court under certain
circumstances to set aside any judgment, order, or
other proceeding whatever. This provision is found in
section 113 of the Code of Civil Procedure, which
reads as follows:
Upon such terms as may be just the court
may relieve a party or his legal
representative from a judgment, order or
other proceeding taken against him through
his mistake, inadvertence, surprise or
excusable neglect; Provided, That
application therefor be made within a
reasonable time, but in no case exceeding
six months after such judgment, order, or
proceeding was taken.
The use of the word "judgment, order or other
proceeding" in this section indicates an intention on
the part of the Legislature to give a wide latitude to
the remedy here provided, and in our opinion its
operation is not to be restricted to judgments or
orders entered in ordinary contentious litigation where
a plaintiff impleads a defendant and brings him into
court by personal service of process. In other words
the utility of the provision is not limited to actions
proper but extends to all sorts of judicial proceedings.
In the second section of the Code of Civil Procedure it
is declared that the provisions of this Code shall be
liberally construed to promote its object and to assist
the parties in obtaining speedy justice. We think that
the intention thus exhibited should be applied in the
interpretation of section 113; and we hold that the
word "party," used in this section, means any person
having an interest in the subject matter of the
proceeding who is in a position to be concluded by
the judgment, order, to other proceeding taken.
The petitioner, therefore, in this case could have
applied, under the section cited, at any time within six
months for March 16, 1916, and upon showing that
she had been precluded from appearing in the
probate proceedings by conditions over which she
had no control and that the order admitting the will to
probate had been erroneously entered upon
insufficient proof or upon a supposed state of facts
contrary to the truth, the court would have been
authorized to set the probate aside and grant a
rehearing. It is no doubt true that six months was,
under the circumstances, a very short period of time
within which to expect the petitioner to appear and be
prepared to contest the probate with the proof which
she might have desired to collect from remote
countries. Nevertheless, although the time allowed for
the making of such application was inconveniently
short, the remedy existed; and the possibility of its
use is proved in this case by the circumstance that on
June 12, 1916, she in fact here appeared in court by
her attorneys and excepted to the order admitting the
will to probate.
It results that, in conformity with the doctrine
announced in the Davis case, above cited, the
proceedings in the court below were conducted in
such manner as to constitute due process of law. The
law supplied a remedy by which the petitioner might
have gotten a hearing and have obtained relief from
the order by which she is supposed to have been
injured; and though the period within which the
application should have been made was short, the
remedy was both possible and practicable.
From what has been said it follows that the order of
March 16, 1916, admitting the will of Emil H. Johnson
to probate cannot be declared null and void merely
because the petitioner was unavoidably prevented
from appearing at the original hearing upon the matter
of the probate of the will in question. Whether the
result would have been the same if our system of
procedure had contained no such provision as that
expressed in section 113 is a matter which we need
not here consider.
Intimately connected with the question of the
jurisdiction of the court, is another matter which may
be properly discussed at this juncture. This relates to
the interpretation to be placed upon section 636 of the
Code of Civil Procedure. The position is taken by the
appellant that this section is applicable only to wills of
liens; and in this connection attention is directed to
the fact that the epigraph of this section speaks only
of the will made here by an alien and to the further
fact that the word "state" in the body of the section is
not capitalized. From this it is argued that section 636
is not applicable to the will of a citizen of the United
States residing in these Islands.lawphil.net
We consider these suggestions of little weight and are
of the opinion that, by the most reasonable
interpretation of the language used in the statute, the
words "another state or country" include the United
States and the States of the American Union, and that
the operation of the statute is not limited to wills of
aliens. It is a rule of hermeneutics that punctuation
and capitalization are aids of low degree in
interpreting the language of a statute and can never
control against the intelligible meaning of the written
words. Furthermore, the epigraph, or heading,, of a
section, being nothing more than a convenient index
to the contents of the provision, cannot have the
effect of limiting the operative words contained in the
body of the text. It results that if Emil H. Johnson was
at the time of his death a citizen of the United States
and of the State of Illinois, his will was provable under
this section in the courts of the Philippine Islands,
provided the instrument was so executed as to be
admissible to probate under the laws of the State of
Illinois.
We are thus brought to consider the second principal
proposition stated at the outset of this discussion,
which raises the question whether the order f probate
can be set aside in this proceeding on the other
ground stated in the petition, namely, that the testator
was not a resident of the State of Illinois and that the
will was not made in conformity with the laws of that
State.
The order of the Court of First Instance admitting the
will to probate recites, among other things:
That upon the date when the will in question
was executed Emil H. Johnson was a citizen
of the United States, naturalized in the State
of Illinois, County of Cook, and that the will in
question was executed in conformity with the
dispositions of the law f the State of Illinois.
We consider this equivalent to a finding that upon the
date of the execution of the will the testator was a
citizen of the State of Illinois and that the will was
executed in conformity with the laws of that State.
Upon the last point the finding is express; and in our
opinion the statement that the testator was a citizen of
the United States, naturalized in the State of Illinois,
should be taken to imply that he was a citizen of the
State of Illinois, as well as of the United States.
The naturalization laws of the United States require,
as a condition precedent to the granting of the
certificate of naturalization, that the applicant should
have resided at least five years in the United States
and for one year within the State or territory where the
court granting the naturalization papers is held; and in
the absence of clear proof to the contrary it should be
presumed that a person naturalized in a court of a
certain State thereby becomes a citizen of that State
as well as of the United States.
In this connection it should be remembered that the
Fourteenth Amendment to the Constitution of the
United States declares, in its opening words, that all
persons naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside.
It is noteworthy that the petition by which it is sought
to annul the probate of this will does not assert that
the testator was not a citizen of Illinois at the date
when the will was executed. The most that is said on
this point is he was "never a resident of the State of
Illinois after the year 1898, but became and was a
resident of the city of Manila," etc. But residence in
the Philippine Islands is compatible with citizenship in
Illinois; and it must be considered that the allegations
of the petition on this point are, considered in their
bearing as an attempt to refute citizenship in Illinois,
wholly insufficient.
As the Court of First Instance found that the testator
was a citizen of the State of Illinois and that the will
was executed in conformity with the laws of that
State, the will was necessarily and properly admitted
to probate. And how is it possible to evade the effect
of these findings?
In Section 625 of the Code of Civil Procedure it is
declared that "the allowance by the court of a will of
real or personal property shall be conclusive as to its
due execution."
The due execution of a will involves conditions
relating to a number of matters, such as the age and
mental capacity of the testator, the signing of the
document by the testator, or by someone in his
behalf, and the acknowledgment of the instrument by
him in the presence of the required number of
witnesses who affix their signatures to the will to attest
the act. The proof of all these requisites is involved in
the probate; and as to each and all of them the
probate is conclusive. (Castaeda vs. Alemany, 3
Phil. Rep., 426; Pimentel vs. Palanca, 5 Phil. Rep.,
436; Chiong Joc-Soy vs. Vao, 8 Phil. Rep., 119;
Sanchez vs. Pascual, 11 Phil. Rep., 395;
Montaano vs. Suesa, 14 Phil. Rep., 676.)
Our reported cases do not contain the slightest
intimation that a will which has been probated
according to law, and without fraud, can be annulled,
in any other proceeding whatever, on account of any
supposed irregularity or defect in the execution of the
will or on account of any error in the action of the
court upon the proof adduced before it. This court has
never been called upon to decide whether, in case the
probate of a will should be procured by fraud, relief
could be granted in some other proceeding; and no
such question is now presented. But it is readily seen
that if fraud were alleged, this would introduce an
entirely different factor in the cae. In
Austrua vs. Ventenilla (21 Phil. Rep., 180, 184), it was
suggested but not decided that relief might be granted
in case the probate of a will were procured by fraud.
The circumstance that the judgment of the trial court
recites that the will was executed in conformity with
the law of Illinois and also, in effect, that the testator
was a citizen of that State places the judgment upon
an unassailable basis so far as any supposed error
apparent upon the fact of the judgment is concerned.
It is, however, probable that even if the judgment had
not contained these recitals, there would have been a
presumption from the admission of the will to probate
as the will of a citizen of Illinois that the facts were as
recited in the order of probate.
As was said by this court in the case of Banco
Espaol-Filipino vs. Palanca (37 Phil. Rep., 921),
"There is no principle of law better settled than that
after jurisdiction has once been acquired, every act of
a court of general jurisdiction shall be presumed to
have been rightly done. This rule is applied to every
judgment or decree rendered in the various stages of
the proceedings from their initiation to their
completion (Voorhees vs. United States Bank, 10
Pet., 314; 35 U. S., 449); and if the record is silent
with respect to any fact which must have established
before the court could have rightly acted, it will be
presumed that such fact was properly brought to its
knowledge."
The Court of First Instance is a court of original and
general jurisdiction; and there is no difference in its
faculties in this respect whether exercised in matters
of probate or exerted in ordinary contentious litigation.
The trial court therefore necessarily had the power to
determine the facts upon which the propriety of
admitting the will to probate depended; and the recital
of those facts in the judgment was probably not
essential to its validity. No express ruling is, however,
necessary on this point.
What has been said effectually disposes of the
petition considered in its aspect as an attack upon the
order of probate for error apparent on the face of the
record. But the petitioner seeks to have the judgment
reviewed, it being asserted that the findings of the trial
court especially on the question of the citizenship
of the testator are not supported by the evidence. It
needs but a moment's reflection, however, to show
that in such a proceeding as this it is not possible to
reverse the original order on the ground that the
findings of the trial court are unsupported by the proof
adduced before that court. The only proceeding in
which a review of the evidence can be secured is by
appeal, and the case is not before us upon appeal
from the original order admitting the will to probate.
The present proceedings by petition to set aside the
order of probate, and the appeal herein is from the
order denying this relief. It is obvious that on appeal
from an order refusing to vacate a judgment it is not
possible to review the evidence upon which the
original judgment was based. To permit this would
operate unduly to protract the right of appeal.
However, for the purpose of arriving at a just
conception of the case from the point of view of the
petitioner, we propose to examine the evidence
submitted upon the original hearing, in connection
with the allegations of the petition, in order to see,
first, whether the evidence submitted to the trial court
was sufficient to justify its findings, and, secondly,
whether the petition contains any matter which would
justify the court in setting the judgment, aside. In this
connection we shall for a moment ignore the
circumstance that the petition was filed after the
expiration of the six months allowed by section 113 of
the Code of Civil Procedure.
The principal controversy is over the citizenship of the
testator. The evidence adduced upon this point in the
trial court consists of the certificate of naturalization
granted upon January 10, 1903, in the Circuit Court of
Cook County, Illinois, in connection with certain
biographical facts contained in the oral evidence. The
certificate of naturalization supplies incontrovertible
proof that upon the date stated the testator became a
citizen of the United States, and inferentially also a
citizen of said State. In the testimony submitted to the
trial court it appears that, when Johnson first came to
the United States as a boy, he took up his abode in
the State of Illinois and there remained until he came
as a soldier in the United States Army to the
Philippine Islands. Although he remained in these
Islands for sometime after receiving his discharge, no
evidence was adduced showing that at the time he
returned to the United States, in the autumn of 1902,
he had then abandoned Illinois as the State of his
permanent domicile, and on the contrary the
certificate of naturalization itself recites that at that
time he claimed to be a resident of Illinois.
Now, if upon January 10, 1903, the testator became a
citizen of the United States and of the State of Illinois,
how has he lost the character of citizen with respect
to either of these jurisdictions? There is no law in
force by virtue of which any person of foreign nativity
can become a naturalized citizen of the Philippine
Islands; and it was, therefore, impossible for the
testator, even if he had so desired, to expatriate
himself from the United States and change his
political status from a citizen of the United States to a
citizen of these Islands. This being true, it is to be
presumed that he retained his citizenship in the State
of Illinois along with his status as a citizen of the
United States. It would be novel doctrine to Americans
living in the Philippine Islands to be told that by living
here they lose their citizenship in the State of their
naturalization or nativity.
We are not unmindful of the fact that when a citizen of
one State leaves it and takes up his abode in another
State with no intention of returning, he immediately
acquires citizenship in the State of his new domicile.
This is in accordance with that provision of the
Fourteenth Amendment to the Constitution of the
United States which says that every citizen of the
United States is a citizen of the State where in he
resides. The effect of this provision necessarily is that
a person transferring his domicile from one State to
another loses his citizenship in the State of his
original above upon acquiring citizenship in the State
of his new abode. The acquisition of the new State
citizenship extinguishes the old. That situation, in our
opinion, has no analogy to that which arises when a
citizen of an American State comes to reside in the
Philippine Islands. Here he cannot acquire a new
citizenship; nor by the mere change of domicile does
he lose that which he brought with him.
The proof adduced before the trial court must
therefore be taken as showing that, at the time the will
was executed, the testator was, as stated in the order
of probate, a citizen of the State of Illinois. This, in
connection with the circumstance that the petition
does not even so much as deny such citizenship but
only asserts that the testator was a resident of the
Philippine Islands, demonstrates the impossibility of
setting the probate aside for lack of the necessary
citizenship on the part of the testator. As already
observed, the allegation of the petition on this point is
wholly insufficient to justify any relief whatever.
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 transaction 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
action, 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 tent
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.
But it is insisted in the brief for the appellant that the
will in question was not properly admissible to probate
because it contains provisions which cannot be given
effect consistently with the laws of the Philippine
Islands; and it is suggested that as the petitioner is a It follows that the trial court committed no error in
legitimate heir of the testator she cannot be deprived denying the relief sought. The order appealed from is
of the legitime to which she is entitled under the law accordingly affirmed with costs. So ordered.
governing testamentary successions in these Islands.
Upon this point it is sufficient to say that the probate
of the will does not affect the intrinsic validity of its
provisions, the decree of probate being conclusive
only as regards the due execution of the will. (Code of
Civil Procedure, secs. 625, 614; Sahagun vs. De
Gorostiza, 7 Phil. Rep., 347, 349; Chiong Joc-
Soy vs. Vao, 8 Phil. Rep., 119, 121;
Limjuco vs. Ganara, 11 Phil. Rep., 393, 395.)
If, therefore, upon the distribution of this estate, it
should appear that any legacy given by the will or
other disposition made therein is contrary to the law
applicable in such case, the will must necessarily
yield upon that point and the law must prevail.
Nevertheless, it should not be forgotten that the
intrinsic validity of the provisions of this will must be
determined by the law of Illinois and not, as the
appellant apparently assumes, by the general
provisions here applicable in such matters; for in the
second paragraph of article 10 of the Civil Code it is
declared that "legal and testamentary successions,
with regard to the order of succession, as well as to
the amount of the successional rights and to the
intrinsic validity of their provisions, shall be regulated
by the laws of the nation of the person whose
succession is in question, whatever may be the
nature of the property and the country where it may
be situate."
From what has been said, it is, we think, manifest that
the petition submitted to the court below on October
31, 1916, was entirely insufficient to warrant the
setting aside of the other probating the will in
question, whether said petition be considered as an
attack on the validity of the decree for error apparent,
or whether it be considered as an application for a
rehearing based upon the new evidence submitted in
the affidavits which accompany the petition. And in
this latter aspect the petition is subject to the further
fatal defect that it was not presented within the time
allowed by law.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-11622 January 28, 1961
THE COLLECTOR OF INTERNAL
REVENUE, petitioner,
vs.
DOUGLAS FISHER AND BETTINA FISHER, and the
COURT OF TAX APPEALS, respondents.
BARRERA, J.:
This case relates to the determination and settlement
of the hereditary estate left by the deceased Walter G.
Stevenson, and the laws applicable thereto. Walter G.
Stevenson (born in the Philippines on August 9, 1874
of British parents and married in the City of Manila on
January 23, 1909 to Beatrice Mauricia Stevenson
another British subject) died on February 22, 1951 in
San Francisco, California, U.S.A. whereto he and his
wife moved and established their permanent
residence since May 10, 1945. In his will executed in
San Francisco on May 22, 1947, and which was duly
probated in the Superior Court of California on April
11, 1951, Stevenson instituted his wife Beatrice as his
sole heiress to the following real and personal
properties acquired by the spouses while residing in
the Philippines, described and preliminary assessed
as follows:
Gross Estate
Real Property 2 parcels of land in Baguio,
covered by T.C.T. Nos. 378 and 379
Personal Property
(1) 177 shares of stock of Canacao Estate at
P10.00 each
(2) 210,000 shares of stock of Mindanao Mother
Lode Mines, Inc. at P0.38 per share
(3) Cash credit with Canacao Estate Inc.
(4) Cash, with the Chartered Bank of India,
Australia & China
Total Gross Assets
On May 22, 1951, ancillary administration
proceedings were instituted in the Court of First
Instance of Manila for the settlement of the estate in
the Philippines. In due time Stevenson's will was duly
admitted to probate by our court and Ian Murray Statt
was appointed ancillary administrator of the estate,
who on July 11, 1951, filed a preliminary estate and
inheritance tax return with the reservation of having
the properties declared therein finally appraised at
their values six months after the death of Stevenson.
Preliminary return was made by the ancillary
administrator in order to secure the waiver of the
Collector of Internal Revenue on the inheritance tax
due on the 210,000 shares of stock in the Mindanao
Mother Lode Mines Inc. which the estate then desired
to dispose in the United States. Acting upon said
return, the Collector of Internal Revenue accepted the
valuation of the personal properties declared therein,
but increased the appraisal of the two parcels of land
located in Baguio City by fixing their fair market value
in the amount of P52.200.00, instead of P43,500.00.
After allowing the deductions claimed by the ancillary
administrator for funeral expenses in the amount of
P2,000.00 and for judicial and administration
expenses in the sum of P5,500.00, the Collector
assessed the state the amount of P5,147.98 for
estate tax and P10,875,26 or inheritance tax, or a
total of P16,023.23. Both of these assessments were
paid by the estate on June 6, 1952.
On September 27, 1952, the ancillary administrator
filed in amended estate and inheritance tax return in
pursuance f his reservation made at the time of filing
of the preliminary return and for the purpose of
availing of the right granted by section 91 of the
National Internal Revenue Code.
In this amended return the valuation of the 210,000
shares of stock in the Mindanao Mother Lode Mines,
Inc. was reduced from 0.38 per share, as originally
declared, to P0.20 per share, or from a total valuation
of P79,800.00 to P42,000.00. This change in price per
share of stock was based by the ancillary
administrator on the market notation of the stock
obtaining at the San Francisco California) Stock
Exchange six months from the death of Stevenson,
that is, As of August 22, 1931. In addition, the
ancillary administrator made claim for the following
deductions:
Funeral expenses ($1,04326)
Judicial Expenses:
(a) Administrator's Fee
(b) Attorney's Fee
(c) Judicial and Administration expenses
as of August 9, 1952
Real Estate Tax for 1951 on Baguio real
properties (O.R. No. B-1 686836)
Claims against the estate:
($5,000.00) P10,000.00
Plus: 4% int. p.a. from Feb. 2 to 22, 1951
Sub-Total
In the meantime, on December 1, 1952, Beatrice
Mauricia Stevenson assigned all her rights and
interests in the estate to the spouses, Douglas and
Bettina Fisher, respondents herein.
On September 7, 1953, the ancillary administrator
filed a second amended estate and inheritance tax
return (Exh. "M-N"). This return declared the same
assets of the estate stated in the amended return of
September 22, 1952, except that it contained new
claims for additional exemption and deduction to wit:
(1) deduction in the amount of P4,000.00 from the
gross estate of the decedent as provided for in
Section 861 (4) of the U.S. Federal Internal Revenue
Code which the ancillary administrator averred was
allowable by way of the reciprocity granted by Section
122 of the National Internal Revenue Code, as then
held by the Board of Tax Appeals in case No. 71
entitled "Housman vs. Collector," August 14, 1952;
and (2) exemption from the imposition of estate and
inheritance taxes on the 210,000 shares of stock in
the Mindanao Mother Lode Mines, Inc. also pursuant
to the reciprocity proviso of Section 122 of the
National Internal Revenue Code. In this last return,
the estate claimed that it was liable only for the
amount of P525.34 for estate tax and P238.06 for
inheritance tax and that, as a consequence, it had
overpaid the government. The refund of the amount of
P15,259.83, allegedly overpaid, was accordingly
requested by the estate. The Collector denied the
claim. For this reason, action was commenced in the
Court of First Instance of Manila by respondents, as
assignees of Beatrice Mauricia Stevenson, for the
recovery of said amount. Pursuant to Republic Act
No. 1125, the case was forwarded to the Court of Tax
Appeals which court, after hearing, rendered decision
the dispositive portion of which reads as follows:
In fine, we are of the opinion and so hold that: (a)
the one-half () share of the surviving spouse in
the conjugal partnership property as diminished by
the obligations properly chargeable to such
property should be deducted from the net estate
of the deceased Walter G. Stevenson, pursuant to
Section 89-C of the National Internal Revenue
Code; (b) the intangible personal property
belonging to the estate of said Stevenson is
exempt from inheritance tax, pursuant to the
 provision of section 122 of the National Internal
Revenue Code in relation to the California
Inheritance Tax Law but decedent's estate is not
entitled to an exemption of P4,000.00 in the
computation of the estate tax; (c) for purposes of
estate and inheritance taxation the Baguio real
estate of the spouses should be valued at
P52,200.00, and 210,000 shares of stock in the
Mindanao Mother Lode Mines, Inc. should be
appraised at P0.38 per share; and (d) the estate
shall be entitled to a deduction of P2,000.00 for
funeral expenses and judicial expenses of
P8,604.39.
From this decision, both parties appealed.
The Collector of Internal Revenue, hereinafter called
petitioner assigned four errors allegedly committed by
the trial court, while the assignees, Douglas and
Bettina Fisher hereinafter called respondents, made
six assignments of error. Together, the assigned
errors raise the following main issues for resolution by
this Court:
(1) Whether or not, in determining the taxable net
estate of the decedent, one-half () of the net estate
should be deducted therefrom as the share of tile
surviving spouse in accordance with our law on
conjugal partnership and in relation to section 89 (c)
of the National Internal revenue Code;
(2) Whether or not the estate can avail itself of the
reciprocity proviso embodied in Section 122 of the
National Internal Revenue Code granting exemption
from the payment of estate and inheritance taxes on
the 210,000 shares of stock in the Mindanao Mother
Lode Mines Inc.;
(3) Whether or not the estate is entitled to the
deduction of P4,000.00 allowed by Section 861, U.S.
Internal Revenue Code in relation to section 122 of
the National Internal Revenue Code;
(4) Whether or not the real estate properties of the
decedent located in Baguio City and the 210,000
shares of stock in the Mindanao Mother Lode Mines,
Inc., were correctly appraised by the lower court;
(5) Whether or not the estate is entitled to the
following deductions: P8,604.39 for judicial and
administration expenses; P2,086.52 for funeral
expenses; P652.50 for real estate taxes; and
P10,0,22.47 representing the amount of indebtedness
allegedly incurred by the decedent during his lifetime;
and
(6) Whether or not the estate is entitled to the
payment of interest on the amount it claims to have
overpaid the government and to be refundable to it.
In deciding the first issue, the lower court applied a
well-known doctrine in our civil law that in the
absence of any ante-nuptial agreement, the
contracting parties are presumed to have adopted the
system of conjugal partnership as to the properties
acquired during their marriage. The application of this
doctrine to the instant case is being disputed,
however, by petitioner Collector of Internal Revenue,
who contends that pursuant to Article 124 of the New
Civil Code, the property relation of the spouses
Stevensons ought not to be determined by the
Philippine law, but by the national law of the decedent
husband, in this case, the law of England. It is alleged
by petitioner that English laws do not recognize legal
partnership between spouses, and that what obtains
in that jurisdiction is another regime of property
relation, wherein all properties acquired during the
marriage pertain and belong Exclusively to the
husband. In further support of his stand, petitioner
cites Article 16 of the New Civil Code (Art. 10 of the
old) to the effect that in testate and intestate
proceedings, the amount of successional rights,
among others, is to be determined by the national law
of the decedent.
In this connection, let it be noted that since the
mariage of the Stevensons in the Philippines took
place in 1909, the applicable law is Article 1325 of the
old Civil Code and not Article 124 of the New Civil
Code which became effective only in 1950. It is true
that both articles adhere to the so-called nationality
theory of determining the property relation of spouses
where one of them is a foreigner and they have made
no prior agreement as to the administration
disposition, and ownership of their conjugal
properties. In such a case, the national law of the
husband becomes the dominant law in determining
the property relation of the spouses. There is,
however, a difference between the two articles in that
Article 1241 of the new Civil Code expressly provides
that it shall be applicable regardless of whether the
marriage was celebrated in the Philippines or abroad
while Article 13252 of the old Civil Code is limited to
marriages contracted in a foreign land.
It must be noted, however, that what has just been
said refers to mixed marriages between a Filipino
citizen and a foreigner. In the instant case, both
spouses are foreigners who married in the
Philippines. Manresa,3 in his Commentaries, has this
to say on this point:
La regla establecida en el art. 1.315, se
refiere a las capitulaciones otorgadas en
Espana y entre espanoles. El 1.325, a las
celebradas en el extranjero cuando alguno
de los conyuges es espanol. En cuanto a la
regla procedente cuando dos extranjeros se
casan en Espana, o dos espanoles en el
extranjero hay que atender en el primer caso
a la legislacion de pais a que aquellos
pertenezean, y en el segundo, a las reglas
generales consignadas en los articulos 9 y
10 de nuestro Codigo. (Emphasis supplied.)
If we adopt the view of Manresa, the law
determinative of the property relation of the
Stevensons, married in 1909, would be the English
law even if the marriage was celebrated in the
Philippines, both of them being foreigners. But, as
correctly observed by the Tax Court, the pertinent
English law that allegedly vests in the decedent
husband full ownership of the properties acquired
during the marriage has not been proven by
petitioner. Except for a mere allegation in his answer,
which is not sufficient, the record is bereft of any
evidence as to what English law says on the matter.
In the absence of proof, the Court is justified,
therefore, in indulging in what Wharton calls
"processual presumption," in presuming that the law
of England on this matter is the same as our law.4
Nor do we believe petitioner can make use of Article
16 of the New Civil Code (art. 10, old Civil Code) to
bolster his stand. A reading of Article 10 of the old
Civil Code, which incidentally is the one applicable,
shows that it does not encompass or contemplate to
govern the question of property relation between
spouses. Said article distinctly speaks of amount of
successional rights and this term, in speaks in our
opinion, properly refers to the extent or amount of
property that each heir is legally entitled to inherit
from the estate available for distribution. It needs to
be pointed out that the property relation of spouses,
as distinguished from their successional rights, is
governed differently by the specific and express
provisions of Title VI, Chapter I of our new Civil Code
(Title III, Chapter I of the old Civil Code.) We,
therefore, find that the lower court correctly deducted
the half of the conjugal property in determining the
hereditary estate left by the deceased Stevenson.
On the second issue, petitioner disputes the action of
the Tax Court in the exempting the respondents from
paying inheritance tax on the 210,000 shares of stock
in the Mindanao Mother Lode Mines, Inc. in virtue of
the reciprocity proviso of Section 122 of the National
Internal Revenue Code, in relation to Section 13851
of the California Revenue and Taxation Code, on the
ground that: (1) the said proviso of the California
Revenue and Taxation Code has not been duly
proven by the respondents; (2) the reciprocity
exemptions granted by section 122 of the National
Internal Revenue Code can only be availed of by
residents of foreign countries and not of residents of a
state in the United States; and (3) there is no "total"
reciprocity between the Philippines and the state of
California in that while the former exempts payment of
both estate and inheritance taxes on intangible
personal properties, the latter only exempts the
payment of inheritance tax..
To prove the pertinent California law, Attorney Allison
Gibbs, counsel for herein respondents, testified that
as an active member of the California Bar since 1931,
he is familiar with the revenue and taxation laws of
the State of California. When asked by the lower court
to state the pertinent California law as regards
exemption of intangible personal properties, the
witness cited article 4, section 13851 (a) and (b) of
the California Internal and Revenue Code as
published in Derring's California Code, a publication
of the Bancroft-Whitney Company inc. And as part of
his testimony, a full quotation of the cited section was
offered in evidence as Exhibits "V-2" by the
respondents.
It is well-settled that foreign laws do not prove
themselves in our jurisdiction and our courts are not
authorized to take judicial notice of them.5 Like any
other fact, they must be alleged and proved.6
Section 41, Rule 123 of our Rules of Court prescribes
the manner of proving foreign laws before our
tribunals. However, although we believe it desirable
that these laws be proved in accordance with said
rule, we held in the case of Willamette Iron and Steel
Works v. Muzzal, 61 Phil. 471, that "a reading of
sections 300 and 301 of our Code of Civil Procedure
(now section 41, Rule 123) will convince one that
these sections do not exclude the presentation of
other competent evidence to prove the existence of a
foreign law." In that case, we considered the
testimony of an attorney-at-law of San Francisco,
California who quoted verbatim a section of California
Civil Code and who stated that the same was in force
at the time the obligations were contracted, as
sufficient evidence to establish the existence of said
law. In line with this view, we find no error, therefore,
on the part of the Tax Court in considering the
pertinent California law as proved by respondents'
witness.
We now take up the question of reciprocity in
exemption from transfer or death taxes, between the
State of California and the Philippines.F
Section 122 of our National Internal Revenue Code, in
pertinent part, provides:
... And, provided, further, That no tax shall be
collected under this Title in respect of
intangible personal property (a) if the
decedent at the time of his death was a
resident of a foreign country which at the
time of his death did not impose a transfer of
tax or death tax of any character in respect
of intangible personal property of citizens of
the Philippines not residing in that foreign
country, or (b) if the laws of the foreign
country of which the decedent was a
resident at the time of his death allow a
similar exemption from transfer taxes or
death taxes of every character in respect of
intangible personal property owned by
citizens of the Philippines not residing in that
foreign country." (Emphasis supplied).
On the other hand, Section 13851 of the California
Inheritance Tax Law, insofar as pertinent, reads:.
"SEC. 13851, Intangibles of nonresident:
Conditions. Intangible personal property is
exempt from the tax imposed by this part if
the decedent at the time of his death was a
resident of a territory or another State of the
United States or of a foreign state or country
which then imposed a legacy, succession, or
death tax in respect to intangible personal
property of its own residents, but either:.
(a) Did not impose a legacy, succession, or
death tax of any character in respect to
intangible personal property of residents of
this State, or
(b) Had in its laws a reciprocal provision
under which intangible personal property of a
non-resident was exempt from legacy,
succession, or death taxes of every
character if the Territory or other State of the
United States or foreign state or country in
which the nonresident resided allowed a
similar exemption in respect to intangible
personal property of residents of the Territory
or State of the United States or foreign state
or country of residence of the decedent."
(Id.)
It is clear from both these quoted provisions that the
reciprocity must be total, that is, with respect to
transfer or death taxes of any and every character, in
the case of the Philippine law, and to legacy,
succession, or death taxes of any and every
character, in the case of the California law. Therefore,
if any of the two states collects or imposes and does
not exempt any transfer, death, legacy, or succession
tax of any character, the reciprocity does not work.
This is the underlying principle of the reciprocity
clauses in both laws.
In the Philippines, upon the death of any citizen or
resident, or non-resident with properties therein, there
are imposed upon his estate and its settlement, both
an estate and an inheritance tax. Under the laws of
California, only inheritance tax is imposed. On the
other hand, the Federal Internal Revenue Code
imposes an estate tax on non-residents not citizens of
the United States,7 but does not provide for any
exemption on the basis of reciprocity. Applying these
laws in the manner the Court of Tax Appeals did in the
instant case, we will have a situation where a
Californian, who is non-resident in the Philippines but
has intangible personal properties here, will the
subject to the payment of an estate tax, although
exempt from the payment of the inheritance tax. This
being the case, will a Filipino, non-resident of
California, but with intangible personal properties
there, be entitled to the exemption clause of the
California law, since the Californian has not been
exempted from every character of legacy, succession,
or death tax because he is, under our law, under
obligation to pay an estate tax? Upon the other hand,
if we exempt the Californian from paying the estate
tax, we do not thereby entitle a Filipino to be exempt
from a similar estate tax in California because under
the Federal Law, which is equally enforceable in
California he is bound to pay the same, there being
no reciprocity recognized in respect thereto. In both
instances, the Filipino citizen is always at a
disadvantage. We do not believe that our legislature
has intended such an unfair situation to the detriment
of our own government and people. We, therefore,
find and declare that the lower court erred in
exempting the estate in question from payment of the
inheritance tax.
We are not unaware of our ruling in the case
of Collector of Internal Revenue vs. Lara (G.R. Nos.
L-9456 & L-9481, prom. January 6, 1958, 54 O.G.
2881) exempting the estate of the deceased Hugo H.
Miller from payment of the inheritance tax imposed by
the Collector of Internal Revenue. It will be noted,
however, that the issue of reciprocity between the
pertinent provisions of our tax law and that of the
State of California was not there squarely raised, and
the ruling therein cannot control the determination of
the case at bar. Be that as it may, we now declare that
in view of the express provisions of both the
Philippine and California laws that the exemption
would apply only if the law of the other grants an
exemption from legacy, succession, or death taxes of
every character, there could not be partial reciprocity.
It would have to be total or none at all.
With respect to the question of deduction or reduction
in the amount of P4,000.00 based on the U.S. Federal
Estate Tax Law which is also being claimed by
respondents, we uphold and adhere to our ruling in
the Lara case (supra) that the amount of $2,000.00
allowed under the Federal Estate Tax Law is in the
nature of a deduction and not of an exemption
regarding which reciprocity cannot be claimed under
the provision of Section 122 of our National Internal
Revenue Code. Nor is reciprocity authorized under
the Federal Law. .
On the issue of the correctness of the appraisal of the
two parcels of land situated in Baguio City, it is
contended that their assessed values, as appearing in
the tax rolls 6 months after the death of Stevenson,
ought to have been considered by petitioner as their
fair market value, pursuant to section 91 of the
National Internal Revenue Code. It should be pointed
out, however, that in accordance with said proviso the
properties are required to be appraised at their fair
market value and the assessed value thereof shall be
considered as the fair market value only when
evidence to the contrary has not been shown. After all
review of the record, we are satisfied that such
evidence exists to justify the valuation made by
petitioner which was sustained by the tax court, for as
the tax court aptly observed:
"The two parcels of land containing 36,264
square meters were valued by the
administrator of the estate in the Estate and
Inheritance tax returns filed by him at
P43,500.00 which is the assessed value of
said properties. On the other hand,
defendant appraised the same at
P52,200.00. It is of common knowledge, and
this Court can take judicial notice of it, that
assessments for real estate taxation
purposes are very much lower than the true
and fair market value of the properties at a
given time and place. In fact one year after
decedent's death or in 1952 the said
properties were sold for a price of
P72,000.00 and there is no showing that
special or extraordinary circumstances
caused the sudden increase from the price
of P43,500.00, if we were to accept this
value as a fair and reasonable one as of
1951. Even more, the counsel for plaintiffs
himself admitted in open court that he was
willing to purchase the said properties at
P2.00 per square meter. In the light of these
facts we believe and therefore hold that the
valuation of P52,200.00 of the real estate in
Baguio made by defendant is fair,
reasonable and justified in the premises."
(Decision, p. 19).
In respect to the valuation of the 210,000 shares of
stock in the Mindanao Mother Lode Mines, Inc., (a
domestic corporation), respondents contend that their
value should be fixed on the basis of the market
quotation obtaining at the San Francisco (California)
Stock Exchange, on the theory that the certificates of
stocks were then held in that place and registered
with the said stock exchange. We cannot agree with
respondents' argument. The situs of the shares of
stock, for purposes of taxation, being located here in
the Philippines, as respondents themselves concede
and considering that they are sought to be taxed in
this jurisdiction, consistent with the exercise of our
government's taxing authority, their fair market value
should be taxed on the basis of the price prevailing in
our country.
Upon the other hand, we find merit in respondents'
other contention that the said shares of stock
commanded a lesser value at the Manila Stock
Exchange six months after the death of Stevenson.
Through Atty. Allison Gibbs, respondents have shown
that at that time a share of said stock was bid for at
only P.325 (p. 103, t.s.n.). Significantly, the testimony
of Atty. Gibbs in this respect has never been
questioned nor refuted by petitioner either before this
court or in the court below. In the absence of evidence
to the contrary, we are, therefore, constrained to
reverse the Tax Court on this point and to hold that
the value of a share in the said mining company on
August 22, 1951 in the Philippine market was P.325
as claimed by respondents..
It should be noted that the petitioner and the Tax
Court valued each share of stock of P.38 on the basis
of the declaration made by the estate in its preliminary
return. Patently, this should not have been the case,
in view of the fact that the ancillary administrator had
reserved and availed of his legal right to have the
properties of the estate declared at their fair market
value as of six months from the time the decedent
died..
On the fifth issue, we shall consider the various
deductions, from the allowance or disallowance of
which by the Tax Court, both petitioner and
respondents have appealed..
Petitioner, in this regard, contends that no evidence of
record exists to support the allowance of the sum of
P8,604.39 for the following expenses:.
1) Administrator's fee
2) Attorney's fee
3) Judicial and Administrative expenses
Total Deductions
An examination of the record discloses, however, that
the foregoing items were considered deductible by the
Tax Court on the basis of their approval by the
probate court to which said expenses, we may
presume, had also been presented for consideration.
It is to be supposed that the probate court would not
have approved said items were they not supported by
evidence presented by the estate. In allowing the
items in question, the Tax Court had before it the
pertinent order of the probate court which was
submitted in evidence by respondents. (Exh. "AA-2",
p. 100, record). As the Tax Court said, it found no
basis for departing from the findings of the probate
court, as it must have been satisfied that those
expenses were actually incurred. Under the
circumstances, we see no ground to reverse this
finding of fact which, under Republic Act of California
National Association, which it would appear, that while
still living, Walter G. Stevenson obtained we are not
inclined to pass upon the claim of respondents in
respect to the additional amount of P86.52 for funeral
expenses which was disapproved by the court a quo
for lack of evidence.
In connection with the deduction of P652.50
representing the amount of realty taxes paid in 1951
on the decedent's two parcels of land in Baguio City,
which respondents claim was disallowed by the Tax
Court, we find that this claim has in fact been allowed.
What happened here, which a careful review of the
record will reveal, was that the Tax Court, in itemizing
the liabilities of the estate, viz:
1) Administrator's fee
2) Attorney's fee
3) Judicial and Administration expenses as of August 9
Total
added the P652.50 for realty taxes as a liability of the
estate, to the P1,400.05 for judicial and administration
expenses approved by the court, making a total of
P2,052.55, exactly the same figure which was arrived
at by the Tax Court for judicial and administration
expenses. Hence, the difference between the total of
P9,256.98 allowed by the Tax Court as deductions,
and the P8,604.39 as found by the probate court,
which is P652.50, the same amount allowed for realty
taxes. An evident oversight has involuntarily been
made in omitting the P2,000.00 for funeral expenses
in the final computation. This amount has been
expressly allowed by the lower court and there is no
reason why it should not be. .
We come now to the other claim of respondents that
pursuant to section 89(b) (1) in relation to section
89(a) (1) (E) and section 89(d), National Internal
Revenue Code, the amount of P10,022.47 should
have been allowed the estate as a deduction,
because it represented an indebtedness of the
decedent incurred during his lifetime. In support
thereof, they offered in evidence a duly certified claim,
presented to the probate court in California by the
Bank of California National Association, which it would
appear, that while still living, Walter G. Stevenson
obtained a loan of $5,000.00 secured by pledge on
140,000 of his shares of stock in the Mindanao
Mother Lode Mines, Inc. (Exhs. "Q-Q4", pp. 53-59,
record). The Tax Court disallowed this item on the
ground that the local probate court had not approved
the same as a valid claim against the estate and
because it constituted an indebtedness in respect to
intangible personal property which the Tax Court held
to be exempt from inheritance tax.
For two reasons, we uphold the action of the lower
court in disallowing the deduction.
Firstly, we believe that the approval of the Philippine
probate court of this particular indebtedness of the
decedent is necessary. This is so although the same,
it is averred has been already admitted and approved
by the corresponding probate court in California, situs
of the principal or domiciliary administration. It is true
that we have here in the Philippines only an ancillary
administration in this case, but, it has been held, the
distinction between domiciliary or principal
administration and ancillary administration serves only
to distinguish one administration from the other, for
the two proceedings are separate and
independent.8 The reason for the ancillary
administration is that, a grant of administration does
not ex proprio vigore, have any effect beyond the
limits of the country in which it was granted. Hence,
we have the requirement that before a will duly
probated outside of the Philippines can have effect
here, it must first be proved and allowed before our
courts, in much the same manner as wills originally
presented for allowance therein.9 And the estate shall
be administered under letters testamentary, or letters
of administration granted by the court, and disposed
of according to the will as probated, after payment of
just debts and expenses of administration.10 In other
words, there is a regular administration under the
control of the court, where claims must be presented
and approved, and expenses of administration
allowed before deductions from the estate can be
authorized. Otherwise, we would have the actuations
of our own probate court, in the settlement and
distribution of the estate situated here, subject to the
proceedings before the foreign court over which our
courts have no control. We do not believe such a
procedure is countenanced or contemplated in the
Rules of Court.
Another reason for the disallowance of this
indebtedness as a deduction, springs from the
provisions of Section 89, letter (d), number (1), of the
National Internal Revenue Code which reads:
(d) Miscellaneous provisions (1) No
deductions shall be allowed in the case of a
non-resident not a citizen of the Philippines
unless the executor, administrator or anyone
of the heirs, as the case may be, includes in
the return required to be filed under section
ninety-three the value at the time of his
death of that part of the gross estate of the
non-resident not situated in the Philippines."
In the case at bar, no such statement of the gross
estate of the non-resident Stevenson not situated in
the Philippines appears in the three returns submitted
to the court or to the office of the petitioner Collector
of Internal Revenue. The purpose of this requirement
is to enable the revenue officer to determine how
much of the indebtedness may be allowed to be
deducted, pursuant to (b), number (1) of the same
section 89 of the Internal Revenue Code which
provides:
(b) Deductions allowed to non-resident
estates. In the case of a non-resident not
a citizen of the Philippines, by deducting
from the value of that part of his gross estate
which at the time of his death is situated in
the Philippines
(1) Expenses, losses, indebtedness, and
taxes. That proportion of the deductions
specified in paragraph (1) of subjection (a) of
this section11 which the value of such part
bears the value of his entire gross estate
wherever situated;"
In other words, the allowable deduction is only to the
extent of the portion of the indebtedness which is
equivalent to the proportion that the estate in the
Philippines bears to the total estate wherever
situated. Stated differently, if the properties in the
Philippines constitute but 1/5 of the entire assets
wherever situated, then only 1/5 of the indebtedness
may be deducted. But since, as heretofore adverted
to, there is no statement of the value of the estate
situated outside the Philippines, no part of the
indebtedness can be allowed to be deducted,
pursuant to Section 89, letter (d), number (1) of the
Internal Revenue Code.
For the reasons thus stated, we affirm the ruling of the
lower court disallowing the deduction of the alleged
indebtedness in the sum of P10,022.47.
In recapitulation, we hold and declare that:
(a) only the one-half (1/2) share of the
decedent Stevenson in the conjugal
partnership property constitutes his hereditary
estate subject to the estate and inheritance
taxes;
(b) the intangible personal property is not
exempt from inheritance tax, there existing no
complete total reciprocity as required in
section 122 of the National Internal Revenue
Code, nor is the decedent's estate entitled to
an exemption of P4,000.00 in the computation
of the estate tax;
(c) for the purpose of the estate and
inheritance taxes, the 210,000 shares of stock
in the Mindanao Mother Lode Mines, Inc. are
to be appraised at P0.325 per share; and
(d) the P2,000.00 for funeral expenses should
be deducted in the determination of the net
asset of the deceased Stevenson.
In all other respects, the decision of the Court of Tax
Appeals is affirmed.
Respondent's claim for interest on the amount
allegedly overpaid, if any actually results after a
recomputation on the basis of this decision is hereby
denied in line with our recent decision in Collector of
Internal Revenue v. St. Paul's Hospital (G.R. No. L-
12127, May 29, 1959) wherein we held that, "in the
absence of a statutory provision clearly or expressly
directing or authorizing such payment, and none has
been cited by respondents, the National Government
cannot be required to pay interest."
WHEREFORE, as modified in the manner heretofore
indicated, the judgment of the lower court is hereby
affirmed in all other respects not inconsistent
herewith. No costs. So ordered.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 95122-23 May 31, 1991
BOARD OF COMMISSIONERS (COMMISSION ON
IMMIGRATION AND DEPORTATION), BOARD OF
SPECIAL INQUIRY, COMMISSIONER ANDREA D.
DOMINGO, ASSOCIATE COMMISSIONER JORGE
V. SARMIENTO, ACTING ASSOCIATE
COMMISSIONER REGINO R. SANTIAGO,
MEMBERS OF THE BOARD OF SPECIAL INQUIRY,
ESTANISLAO CANTA, LEO MAGAHOM and
BENJAMIN KALAW, petitioners,
vs.
HON. JOSELITO DELA ROSA, Presiding Judge,
RTC Manila, Branch 29, WILLIAM T.
GATCHALIAN, respondents.
BOARD OF COMMISSIONERS (COMMISSION ON
IMMIGRATION AND DEPORTATION), BOARD OF
SPECIAL INQUIRY, COMMISSIONER ANDREA D.
DOMINGO, ASSOCIATE COMMISSIONER JORGE
V. SARMIENTO, ACTING ASSOCIATE
COMMISSIONER REGINO R. SANTIAGO,
MEMBERS OF THE BOARD OF SPECIAL INQUIRY,
ESTANISLAO CANTA, LEO MAGAHOM and
BENJAMIN KALAW, petitioners,
vs.
HON. TERESITA DIZON CAPULONG, Presiding
Judge, RTC Branch 172, Valenzuela, Metro Manila,
DEE HUA T. GATCHALIAN, SHERWING T.
GATCHALIAN, KENNETH T. GATCHALIAN,
REXLON T. GATCHALIAN, and WESLIE T.
GATCHALIAN, respondents.
G.R. Nos. 95612-13 May 31, 1991
WILLIAM T. GATCHALIAN, petitioner,
vs.
BOARD OF COMMISSIONERS (COMMISSION ON
IMMIGRATION AND DEPORTATION), et
al., respondents.
The Solicitor General for petitioners.
edesma, Saludo & Associates for respondent William
Gatchalian.
Cervo and Tanay Law Office for respondent T.D.
Capulong, D.H.T. Gatchalian, et al.
BIDIN, J.:
This is a petition for certiorari and prohibition filed by
the Solicitor General seeking 1) to set aside the
Resolution/Temporary Restraining Order dated
September 7, 1990, issued by respondent Judge de
la Rosa in Civil Case No. 90-54214 which denied
petitioners' motion to dismiss and restrained
petitioners from commencing or continuing with any of
the proceedings which would lead to the deportation
of respondent William Gatchalian, docketed as D.C.
No. 90-523, as well as the Order of respondent Judge
Capulong dated September 6, 1990 in Civil Case No.
3431-V-90 which likewise enjoined petitioners from
proceeding with the deportation charges against
respondent Gatchalian, and 2) to prohibit respondent
judges from further acting in the aforesaid civil cases.
On October 23, 1990, respondent Gatchalian filed his
Comment with Counter-Petition, docketed as G.R.
Nos. 96512-13, alleging lack of jurisdiction on the part
of respondent Board of Commissioners, et al., over
his person with prayer that he be declared a Filipino
citizen, or in the alternative, to remand the case to the
trial court for further proceedings.
On December 13, 1990, petitioners filed their
comment to respondent Gatchalian's counter-petition.
The Court considers the comment filed by respondent
Gatchalian as answer to the petition and petitioners'
comment as answer to the counter-petition and gives
due course to the petitions.
There is no dispute as to the following facts:
On July 12, 1960, Santiago Gatchalian, grandfather of
William Gatchalian, was recognized by the Bureau of
Immigration as a native born Filipino citizen following
the citizenship of his natural mother, Marciana
Gatchalian (Annex "1", counter-petition). Before the
Citizenship Evaluation Board, Santiago Gatchalian
testified that he has five (5) children with his wife Chu
Gim Tee, namely: Jose Gatchalian, Gloria Gatchalian,
Francisco Gatchalian, Elena Gatchalian and Benjamin
Gatchalian (Annex "2", counter-petition).
On June 27, 1961, William Gatchalian, then a twelve-
year old minor, arrived in Manila from Hongkong
together with Gloria, Francisco, and Johnson, all
surnamed Gatchalian. They had with them
Certificates of Registration and Identity issued by the
Philippine Consulate in Hongkong based on a
cablegram bearing the signature of the then Secretary
of Foreign Affairs, Felixberto Serrano, and sought
admission as Filipino citizens. Gloria and Francisco
are the daughter and son, respectively, of Santiago
Gatchalian; while William and Johnson are the sons
of Francisco.
After investigation, the Board of Special Inquiry No. 1
rendered a decision dated July 6, 1961, admitting
William Gatchalian and his companions as Filipino
citizens (Annex "C", petition). As a consequence
thereof, William Gatchalian was issued Identification
Certificate No. 16135 by the immigration authorities
on August 16, 1961 (Annex "D", petition).
On January 24, 1962, the then Secretary of Justice
issued Memorandum No. 9 setting aside all decisions
purporting to have been rendered by the Board of
Commissioners on appeal or on review motu
proprio of decisions of the Board of Special Inquiry.
The same memorandum directed the Board of
Commissioners to review all cases where entry was
allowed on the ground that the entrant was a
Philippine citizen. Among those cases was that of
William and others.
On July 6, 1962, the new Board of Commissioners,
after a review motu proprio of the proceedings had in
the Board of Special Inquiry, reversed the decision of
the latter and ordered the exclusion of, among others,
respondent Gatchalian (Annex "E", petition). A
warrant of exclusion also dated July 6, 1962 was
issued alleging that "the decision of the Board of
Commissioners dated July 6, 1962 . . . has now
become final and executory (Annex "F", petition).
The actual date of rendition of said decision by the
Board of Commissioners (whether on July 6, 1962 or
July 20, 1962) became the subject of controversy in
the 1967 case of Arocha vs. Vivo (21 SCRA 532)
wherein this Court sustained the validity of the
decision of the new Board of Commissioners having
been promulgated on July 6, 1962, or within the
reglementary period for review.
Sometime in 1973, respondent Gatchalian, as well as
the others covered by the July 6, 1962 warrant of
exclusion, filed a motion for re-hearing with the Board
of Special Inquiry where the deportion case against
them was assigned.
On March 14, 1973, the Board of Special Inquiry
recommended to the then Acting Commissioner Victor
Nituda the reversal of the July 6, 1962 decision of the
then Board of Commissioners and the recall of the
warrants of arrest issued therein (Annex "5", counter-
petition).
On March 15, 1973, Acting Commissioner Nituda
issued an order reaffirming the July 6, 1961 decision
of the Board of Special Inquiry thereby admitting
respondent Gatchalian as a Filipino citizen and
recalled the warrant of arrest issued against him
(Annex "6", counter-petition).
On June 7, 1990, the acting director of the National
Bureau of Investigation wrote the Secretary of Justice
recommending that respondent Gatchalian along with
the other applicants covered by the warrant of
exclusion dated July 6, 1962 be charged with violation
of Sec. 37 (a), pars. 1 and 2, in relation to Secs. 45
(c), and (d) and (e) of Commonwealth Act No. 613, as
amended, also known as the Immigration Act of 1940
(Annex "G", petition).
On August 1, 1990, the Secretary of Justice indorsed
the recommendation of the NBI to the Commissioner
of Immigration for investigation and immediate action
(Annex "20", counter-petition).
On August 15, 1990, petitioner Commissioner
Domingo of the Commission of Immigration and
Deportation * issued a mission order commanding the
arrest of respondent William Gatchalian (Annex "18",
counter-petition). The latter appeared before
Commissioner Domingo on August 20, 1990 and was
released on the same day upon posting P200,000.00
cash bond.
On August 29, 1990, William Gatchalian filed a
petition for certiorari and prohibition with injunction
before the Regional Trial Court of Manila, Br. 29,
presided by respondent Judge dela Rosa, docketed
as Civil Case No. 90-54214.
On September 4, 1990, petitioners filed a motion to
dismiss Civil Case No. 90-54214 alleging that
respondent judge has no jurisdiction over the Board of
Commissioners and/or the Board of Special Inquiry.
Nonetheless, respondent judge dela Rosa issued the
assailed order dated September 7, 1990, denying the
motion to dismiss.
Meanwhile, on September 6, 1990, respondent
Gatchalian's wife and minor children filed before the
Regional Trial Court of Valenzuela, Metro Manila, Br.
172, presided by respondent judge Capulong Civil
Case No. 3431-V-90 for injunction with writ of
preliminary injunction. The complaint alleged, among
others, that petitioners acted without or in excess of
jurisdiction in the institution of deportation
proceedings against William. On the same day,
respondent Capulong issued the questioned
temporary restraining order restraining petitioners
from continuing with the deportation proceedings
against William Gatchalian.
The petition is anchored on the following propositions:
1) respondent judges have no jurisdiction over
petitioners (Board of Commissioners, et al.,) and the
subject matter of the case, appellate jurisdiction being
vested by BP 129 with the Court of Appeals; 2)
assuming respondent judges have jurisdiction, they
acted with grave abuse of discretion in preempting
petitioners in the exercise of the authority and
jurisdiction to hear and determine the deportation
case against respondent Gatchalian, and in the
process determine also his citizenship; 3) respondent
judge dela Rosa gravely abused his discretion in
ruling that the issues raised in the deportation
proceedings are beyond the competence and
jurisdiction of petitioners, thereby disregarding the
cases of Arocha vs. Vivo and Vivo vs. Arca (supra),
which put finality to the July 6, 1962 decision of the
Board of Commissioners that respondent Gatchalian
is a Chinese citizen; and 4) respondent judge
Capulong should have dismissed Civil Case No.
3431-V-90 for forum-shopping.
In his counter-petition, William Gatchalian alleges
among others that: 1) assuming that the evidence on
record is not sufficient to declare him a Filipino citizen,
petitioners have no jurisdiction to proceed with the
deportation case until the courts shall have finally
resolved the question of his citizenship; 2) petitioners
can no longer judiciously and fairly resolve the
question of respondent's citizenship in the deportation
case because of their bias, pre-judgment and
prejudice against him; and 3) the ground for which he
is sought to be deported has already prescribed.
For purposes of uniformity, the parties herein will be
referred to in the order the petitions were filed.
Petitioners argue that under Sec. 9 (3) of BP 129, it is
the Court of Appeals which has exclusive appellate
jurisdiction over all final judgments or orders of quasi-
judicial agencies, boards or commissions, such as the
Board of Commissioners and the Board of Special
Inquiry.
Respondent, on the other hand, contends that
petitioners are not quasi-judicial agencies and are not
in equal rank with Regional Trial Courts.
Under Sec. 21 (1) of Batas Pambansa Blg. 129, the
Regional Trial Courts have concurrent jurisdiction with
this Court and the Court of Appeals to issue "writs
of certiorari, prohibition, mandamus, quo warranto,
habeas corpus and injunction which may be enforced
in any part of their respective regions, . . ." Thus, the
RTCs are vested with the power to determine whether
or not there has been a grave abuse of discretion on
the part of any branch or instrumentality of the
government.
It is true that under Sec. 9 (3) of Batas Pambansa Blg.
129, the Court of Appeals is vested with
(3) Exclusive appellate jurisdiction over all
final judgments, decisions, resolutions, order,
or awards of Regional Trial Courts and
quasi-judicial agencies, instrumentalities,
board or commission, except those falling
within the appellate jurisdiction of the
Supreme Court in accordance with the
Constitution, the provisions of this Act, and of
sub-paragraph (1) of the third paragraph of
and sub-paragraph (4) of the fourth
paragraph of Section 17 of the Judiciary Act
of 1948.
It does not provide, however, that said exclusive
appellate jurisdiction of the Court of Appeals extends
to all quasi-judicial agencies. The quasi-judicial
bodies whose decisions are exclusively appealable to
the Court of Appeals are those which under the law,
Republic Act No. 5434, or their enabling acts, are
specifically appealable to the Court of Appeals
(Presidential Anti-Dollar Salting Task Force vs. Court
of Appeals, 171 SCRA 348 [1989]; Lupangco vs.
Court of Appeals, 160 SCRA 848 [1988]). Thus, under
Republic Act No. 5434, it is specifically provided that
the decisions of the Land Registration Commission
(LRC), the Social Security Commission (SSC), Civil
Aeronautics Board (CAB), the Patent Office and the
Agricultural Invention Board are appealable to the
Court of Appeals.
In the Presidential Anti-Dollar Salting Task Force
(supra), this Court clarified the matter when We ruled:
Under our Resolution dated January 11,
1983:
. . . The appeals to the Intermediate
Appellate Court (now Court of
Appeals) from quasi-judicial bodies
shall continue to be governed by
the provisions of Republic Act No.
5434 insofar as the same is not
inconsistent with the provisions of
B.P. Blg. 129.
The pertinent provisions of Republic Act No.
5434 are as follows:
Sec. 1. Appeals from specified
agencies. Any provision of
existing law or Rules of Court to the
contrary notwithstanding, parties
aggrieved by a final ruling, award,
order, or decision, or judgment of
the Court of Agrarian Relations; the
Secretary of Labor under Section 7
of Republic Act Numbered Six
hundred and two, also known as
the "Minimum Wage Law"; the
Department of Labor under Section
23 of Republic Act Numbered Eight
hundred seventy-five, also known
as the "Industrial Peace Act"; the
Land Registration Commission; the
Social Security Commission; the
 Civil Aeronautics Board; the Patent
Office and the Agricultural
Inventions Board, may appeal
therefrom to the Court of Appeals,
within the period and in the manner
herein provided, whether the appeal
involves questions of fact, mixed
questions of fact and law, or
questions of law, or all three kinds
of questions. From final judgments
or decisions of the Court of
Appeals, the aggrieved party may
appeal by certiorari to the Supreme
Court as provided under Rule 45 of
the Rules of Court.
Because of subsequent amendments,
including the abolition of various special
courts, jurisdiction over quasi-judicial bodies
has to be, consequently, determined by the
corresponding amendatory statutes. Under
the Labor Code, decisions and awards of the
National Labor Relations Commission are
final and executory, but, nevertheless,
reviewable by this Court through a petition
for certiorari and not by way of appeal.
Under the Property Registration Decree,
decision of the Commission of Land
Registration, en consulta, are appealable to
the Court of Appeals.
The decisions of the Securities and
Exchange Commission are likewise
appealable to the Appellate Court, and so
are decisions of the Social Security
Commission.
As a rule, where legislation provides for an
appeal from decisions of certain
administrative bodies to the Court of
Appeals, it means that such bodies are co-
equal with the Regional Trial Courts, in terms
of rank and stature, and logically, beyond the
control of the latter. (Emphasis supplied)
There are quasi-judicial agencies, as the National
Labor Relations Commissions, whose decisions are
directly appealable to this Court. It is only when a
specific law, as Republic Act No. 5434, provides
appeal from certain bodies or commissions to the
Court of Appeals as the Land Registration
Commission (LRC), Securities and Exchange
Commission (SEC) and others, that the said
commissions or boards may be considered co-equal
with the RTCs in terms of rank, stature and are
logically beyond the control of the latter.
However, the Bureau of Immigration (or CID) is not
among those quasi-judicial agencies specified by law
whose decisions, orders, and resolutions are directly
appealable to the Court of Appeals. In fact, its
decisions are subject to judicial review in accordance
with Sec. 25, Chapter 4, Book VII of the 1987
Administrative Code, which provides as follows:
Sec. 25. Judicial Review.(1) Agency
decisions shall be subject to judicial review
in accordance with this chapter and
applicable laws.
xxx xxx xxx
(6) The review proceeding shall be filed in
the court specified in the statute or, in the
absence thereof, in any court of competent
jurisdiction in accordance with the provisions
on venue of the Rules of Court.
Said provision of the Administrative Code, which is
subsequent to B.P. Blg. 129 and which thus modifies
the latter, provides that the decision of an agency like
the Bureau of Immigration should be subject to review
by the court specified by the statute or in the absence
thereof, it is subject to review by any court of
competent jurisdiction in accordance with the
provisions on venue of the Rules of Court.
B.P. Blg. 129 did not intend to raise all quasi-judicial
bodies to the same level or rank of the RTC except
those specifically provided for under the law as
aforestated. As the Bureau of Immigration is not of
equal rank as the RTC, its decisions may be
appealable to, and may be reviewed through a special
civil action for certiorari by, the RTC (Sec. 21, (1) BP
129).
True, it is beyond cavil that the Bureau of Immigration
has the exclusive authority and jurisdiction to try and
hear cases against an alleged alien, and in the
process, determine also their citizenship (Lao Gi vs.
Court of Appeals, 180 SCRA 756 [1989]). And a mere
claim of citizenship cannot operate to divest the Board
of Commissioners of its jurisdiction in deportation
proceedings (Miranda vs. Deportation Board, 94 Phil.
531 [1954]).
However, the rule enunciated in the above-cases
admits of an exception, at least insofar as deportation
proceedings are concerned. Thus, what if the claim to
citizenship of the alleged deportee is satisfactory?
Should the deportation proceedings be allowed to
continue or should the question of citizenship be
ventilated in a judicial proceeding? In Chua Hiong vs.
Deportation Board (96 Phil. 665 [1955]), this Court
answered the question in the affirmative, and We
quote:
When the evidence submitted by a
respondent is conclusive of his citizenship,
the right to immediate review should also be
recognized and the courts should promptly
enjoin the deportation proceedings. A citizen
is entitled to live in peace, without
molestation from any official or authority, and
if he is disturbed by a deportation
proceeding, he has the unquestionable right
to resort to the courts for his protection,
either by a writ of habeas corpus or of
prohibition, on the legal ground that the
Board lacks jurisdiction. If he is a citizen and
evidence thereof is satisfactory, there is no
sense nor justice in allowing the deportation
proceedings to continue, granting him the
remedy only after the Board has finished its
investigation of his undesirability.
. . . And if the right (to peace) is precious and
valuable at all, it must also be protected on
time, to prevent undue harassment at the
hands of ill-meaning or misinformed
administrative officials. Of what use is this
much boasted right to peace and liberty if it
can be availed of only after the Deportation
Board has unjustly trampled upon it,
besmirching the citizen's name before the
bar of public opinion? (Emphasis supplied)
The doctrine of primary jurisdiction of petitioners
Board of Commissioners over deportation
proceedings is, therefore, not without exception
(Calacday vs. Vivo, 33 SCRA 413 [1970]; Vivo vs.
Montesa, 24 SCRA 155 [1967]). Judicial intervention,
however, should be granted only in cases where the
"claim of citizenship is so substantial that there are
reasonable grounds to believe that the claim is
correct. In other words, the remedy should be allowed
only on sound discretion of a competent court in a
proper proceeding (Chua Hiong vs. Deportation
Board, supra; Co. vs. Deportation Board, 78 SCRA
107 [1977]). It appearing from the records that
respondent's claim of citizenship is substantial, as We
shall show later, judicial intervention should be
allowed.
In the case at bar, the competent court which could
properly take cognizance of the proceedings instituted
by respondent Gatchalian would nonetheless be the
Regional Trial Court and not the Court of Appeals in
view of Sec. 21 (1), BP 129, which confers upon the
former jurisdiction over actions for prohibition
concurrently with the Court of Appeals and the
Supreme Court and in line with the pronouncements
of this Court in Chua Hiong and Co cases.
Ordinarily, the case would then be remanded to the
Regional Trial Court. But not in the case at
bar.1wphi1 Considering the voluminous pleadings
submitted by the parties and the evidence presented,
We deem it proper to decide the controversy right at
this instance. And this course of action is not without
precedent for "it is a cherished rule of procedure for
this Court to always strive to settle the entire
controversy in a single proceeding leaving no root or
branch to bear the seeds of future litigation. No useful
purpose will be served if this case is remanded to the
trial court only to have its decision raised again to the
Court of Appeals and from there to this Court"
(Marquez vs. Marquez, 73 Phil. 74; Keramic
Industries, Inc. vs. Guerrero, 61 SCRA 265 [1974])
Alger Electric, Inc. vs. Court of Appeals (135 SCRA 37
[1985]), citing Gayos vs. Gayos (67 SCRA 146
[1975]).
In Lianga Bay Logging Co., Inc. vs. Court of
Appeals (157 SCRA 357 [1988]), We also stated:
Remand of the case to the lower court for
further reception of evidence is not
necessary where the court is in a position to
resolve the dispute based on the records
before it. On many occasions, the Court, in
the public interest and the expeditious
administration of justice, has resolved
actions on the merits instead of remanding
them to the trial court for further
proceedings, such as where the ends of
justice would not be subserved by the
remand of the case or when public interest
demands an early disposition of the case or
where the trial court had already received all
the evidence of the parties (Quisumbing vs.
CA, 112 SCRA 703; Francisco, et al., vs. The
City of Davao, et al., supra; Republic vs.
Security Credit & Acceptance Corp., et al.,
19 SCRA 58; Samal vs. CA, supra; Republic
vs. Central Surety & Insurance Co., 25
SCRA 641).
Likewise in Tejones vs. Gironella (159 SCRA 100
[1988]), We said:
Sound practice seeks to accommodate the
theory which avoids waste of time, effort and
expense, both to the parties and the
government, not to speak of delay in the
disposal of the case (cf. Fernandez vs.
Garcia, 92 Phil. 592, 297). A marked
characterstic of our judicial set-up is that
where the dictates of justice so demand . . .
the Supreme Court should act, and act with
finality (Li Siu Liat vs. Republic, 21 SCRA
1039, 1046, citing Samal vs. CA, 99 Phil.
230 and US vs. Gimenez, 34 Phil. 74.)
(Beautifont, Inc. vs. Court of appeals, et al.,
Jan. 29, 1988; See also Labo vs.
Commission on Elections, 176 SCRA 1
[1989]).
Respondent Gatchalian has adduced evidence not
only before the Regional Trial Court but also before
Us in the form of public documents attached to his
pleadings. On the other hand, Special Prosecutor
Renato Mabolo in his Manifestation (dated September
6, 1990; Rollo, p. 298, counter-petition) before the
Bureau of Immigration already stated that there is no
longer a need to adduce evidence in support of the
deportation charges against respondent. In addition,
petitioners invoke that this Court's decision in Arocha
vs. Vivo and Vivo vs. Arca (supra), has already settled
respondent's alienage. Hence, the need for a judicial
determination of respondent's citizenship specially so
where the latter is not seeking admission, but is
already in the Philippines (for the past thirty [30]
years) and is being expelled (Chua Hiong vs.
Deportation Board, supra).
According to petitioners, respondent's alienage has
been conclusively settled by this Court in
the Arocha and Vivo cases, We disagree. It must be
noted that in said cases, the sole issue resolved
therein was the actual date of rendition of the July 6,
1962 decision of the then board of
Commissioners, i.e., whether the decision was
rendered on July 6, 1962 or on July 20, 1962 it
appearing that the figure (date) "20" was erased and
over it was superimposed the figure "6" thereby
making the decision fall within the one-year
reglementary period from July 6, 1961 within which
the decision may be reviewed. This Court did not
squarely pass upon any question of citizenship, much
less that of respondent's who was not a party in the
aforesaid cases. The said cases originated from a
petition for a writ of habeas corpus filed on July 21,
1965 by Macario Arocha in behalf of Pedro
Gatchalian. Well settled is the rule that a person not
party to a case cannot be bound by a decision
rendered therein.
Neither can it be argued that the Board of
Commissioners' decision (dated July 6, 1962) finding
respondent's claim to Philippine citizenship not
satisfactorily proved, constitute res judicata. For one
thing, said decision did not make any categorical
statement that respondent Gatchalian is a Chinese.
Secondly, the doctrine of res judicata does not apply
to questions of citizenship (Labo vs. Commission on
Elections (supra); citing Soria vs. Commissioner of
Immigration, 37 SCRA 213; Lee vs. Commissioner of
Immigration, 42 SCRA 561 [1971]; Sia Reyes vs.
Deportation Board, 122 SCRA 478 [1983]).
In Moy Ya Lim vs. Commissioner of Immigration (41
SCRA 292 [1971]) and in Lee vs. Commissioner of
Immigration (supra), this Court declared that:
(e)verytime the citizenship of a person is
material or indispensable in a judicial or
administrative case, whatever the
corresponding court or administrative
authority decides therein as to such
citizenship is generally not considered as res
adjudicata, hence it has to be threshed out
again and again as the occasion may
demand.
An exception to the above rule was laid by this Court
in Burca vs. Republic (51 SCRA 248 [1973]), viz:
We declare it to be a sound rule that where
the citizenship of a party in a case is
definitely resolved by a court or by an
administrative agency, as a material issue in
the controversy, after a full-blown hearing
with the active participation of the Solicitor
General or his authorized representative,
and this finding or the citizenship of the party
is affirmed by this Court, the decision on the
matter shall constitute conclusive proof of
such party's citizenship in any other case or
proceeding. But it is made clear that in no
instance will a decision on the question of
citizenship in such cases be considered
conclusive or binding in any other case or
proceeding, unless obtained in accordance
with the procedure herein stated.
Thus, in order that the doctrine of res judicata may be
applied in cases of citizenship, the following must be
present: 1) a person's citizenship must be raised as a
material issue in a controversy where said person is a
party; 2) the Solicitor General or his authorized
representative took active part in the resolution
thereof, and 3) the finding or citizenship is affirmed by
this Court.
Gauged by the foregoing, We find the pre-conditions
set forth in Burca inexistent in
the Arocha and Vivo cases relied upon by petitioners.
Indeed, respondent William Gatchalian was not even
a party in said cases.
Coming now to the contention of petitioners that the
arrest of respondent follows as a matter of
consequence based on the warrant of exclusion
issued on July 6, 1962, coupled with
the Arocha and Vivo cases (Rollo, pp. 33), the Court
finds the same devoid of merit.
Sec. 37 (a) of Commonwealth Act No. 613, as
amended, otherwise known as the Immigration Act of
1940, reads:
Sec. 37. (a) The following aliens shall be
arrested upon the warrant of the
Commissioner of Immigration or of any other
officer designated by him for the purpose
and deported upon the warrant of the
Commissioner of Immigration after a
determination by the Board of Commissioner
of the existence of the ground for
deportation as charged against the alien.
(Emphasis supplied)
From a perusal of the above provision, it is clear that
in matters of implementing the Immigration Act insofar
as deportation of aliens are concerned, the
Commissioner of Immigration may issue warrants of
arrest only after a determination by the Board of
Commissioners of the existence of the ground for
deportation as charged against the alien. In other
words, a warrant of arrest issued by the
Commissioner of Immigration, to be valid, must be for
the sole purpose of executing a final order of
deportation. A warrant of arrest issued by the
Commissioner of Immigration for purposes of
investigation only, as in the case at bar, is null and
void for being unconstitutional (Ang Ngo Chiong vs.
Galang, 67 SCRA 338 [1975] citing Po Siok Pin vs.
Vivo, 62 SCRA 363 [1975]; Vivo vs. Montesa, 24
SCRA 155; Morano vs. Vivo, 20 SCRA 562; Qua
Chee Gan vs. Deportation Board, 9 SCRA 27 [1963];
Ng Hua To vs. Galang, 10 SCRA 411; see also Santos
vs. Commissioner of Immigration, 74 SCRA 96
[1976]).
As We held in Qua Chee Gan vs. Deportation
Board (supra), "(t)he constitution does not distinguish
warrants between a criminal case and administrative
proceedings. And if one suspected of having
committed a crime is entitled to a determination of the
probable cause against him, by a judge, why should
one suspected of a violation of an administrative
nature deserve less guarantee?" It is not
indispensable that the alleged alien be arrested for
purposes of investigation. If the purpose of the
issuance of the warrant of arrest is to determine the
existence of probable cause, surely, it cannot pass
the test of constitutionality for only judges can issue
the same (Sec. 2, Art. III, Constitution).
A reading of the mission order/warrant of arrest (dated
August 15, 1990; Rollo, p. 183, counter-petition)
issued by the Commissioner of Immigration, clearly
indicates that the same was issued only for purposes
of investigation of the suspects, William Gatchalian
included. Paragraphs 1 and 3 of the mission order
directs the Intelligence Agents/Officers to:
xxx xxx xxx
1. Make a warrantless arrest under the Rules
of Criminal Procedure, Rule 113, Sec. 5, for
violation of the Immigration Act, Sec. 37,
para. a; Secs. 45 and 46 Administrative
Code;
xxx xxx xxx
3. Deliver the suspect to the Intelligence
Division and immediately conduct custodial
interrogation, after warning the suspect that
he has a right to remain silent and a right to
counsel; . . .
Hence, petitioners' argument that the arrest of
respondent was based, ostensibly, on the July 6,
1962 warrant of exclusion has obviously no leg to
stand on. The mission order/warrant of arrest made
no mention that the same was issued pursuant to a
final order of deportation or warrant of exclusion.
But there is one more thing that militates against
petitioners' cause. As records indicate, which
petitioners conveniently omitted to state either in their
petition or comment to the counter-petition of
respondent, respondent Gatchalian, along with others
previously covered by the 1962 warrant of exclusion,
filed a motion for re-hearing before the Board of
Special Inquiry (BSI) sometime in 1973.
On March 14, 1973, the Board of Special Inquiry, after
giving due course to the motion for re-hearing,
submitted a memorandum to the then Acting
Commissioner Victor Nituda (Annex "5", counter-
petition) recommending 1 the reconsideration of the
July 6, 1962 decision of the then Board of
Commissioners which reversed the July 6, 1961
decision of the then Board of Special Inquiry No. 1
and 2 the lifting of the warrants of arrest issued
against applicants. The memorandum inferred that
the "very basis of the Board of Commissioners in
reversing the decision of the Board of Special Inquiry
was due to a forged cablegram by the then Secretary
of Foreign Affairs, . . ., which was dispatched to the
Philippine Consulate in Hong Kong authorizing the
registration of applicants as P.I. citizens." The Board
of Special Inquiry concluded that "(i)f at all, the
cablegram only led to the issuance of their
Certificate(s) of Identity which took the place of a
passport for their authorized travel to the Philippines.
It being so, even if the applicants could have entered
illegally, the mere fact that they are citizens of the
Philippines entitles them to remain in the country."
On March 15, 1973, then Acting Commissioner Nituda
issued an Order (Annex "6", counter-petition) which
affirmed the Board of Special Inquiry No. 1 decision
dated July 6, 1961 admitting respondent Gatchalian
and others as Filipino citizens; recalled the July 6,
1962 warrant of arrest and revalidated their
Identification Certificates.
The above order admitting respondent as a Filipino
citizen is the last official act of the government on the
basis of which respondent William Gatchalian
continually exercised the rights of a Filipino citizen to
the present. Consequently, the presumption of
citizenship lies in favor of respondent William
Gatchalian.
There should be no question that Santiago
Gatchalian, grandfather of William Gatchalian, is a
Filipino citizen. As a matter of fact, in the very order of
the BOC of July 6, 1962, which reversed the July 6,
1961 BSI order, it is an accepted fact that Santiago
Gatchalian is a Filipino. The opening paragraph of
said order states:
The claim to Filipino citizenship of
abovenamed applicants is based on the
citizenship of one Santiago Gatchalian
whose Philippine citizenship was recognized
by the Bureau of Immigration in an Order
dated July 12, 1960. (Annex "37", Comment
with Counter-Petition).
Nonetheless, in said order it was found that the
applicants therein have not satisfactorily proven that
they are the children and/or grandchildren of Santiago
Gatchalian. The status of Santiago Gatchalian as a
Filipino was reiterated in Arocha and Arca (supra)
where advertence is made to the "applicants being
the descendants of one Santiago Gatchalian, a
Filipino." (at p. 539).
In the sworn statement of Santiago Gatchalian before
the Philippine Consul in Hongkong in 1961 (Annex "1"
to the Comment of petitioners to Counter-Petition), he
reiterated his status as a Philippine citizen being the
illegitimate child of Pablo Pacheco and Marciana
Gatchalian, the latter being a Filipino; that he was
born in Manila on July 25, 1905; and that he was
issued Philippine Passport No. 28160 (PA-No.
A91196) on November 18, 1960 by the Department of
Foreign Affairs in Manila. In his affidavit of January 23,
1961 (Annex "5", counter-petition), Santiago
reiterated his claim of Philippine citizenship as a
consequence of his petition for cancellation of his
alien registry which was granted on February 18,
1960 in C.E.B. No. 3660-L; and that on July 20, 1960,
he was recognized by the Bureau of Immigration as a
Filipino and was issued Certificate No. 1-2123.
The dissenting opinions of my esteemed brethrens,
Messrs. Justices F.P. Feliciano and H.G. Davide, Jr.,
proposing to re-open the question of citizenship of
Santiago Gatchalian at this stage of the case, where it
is not even put in issue, is quite much to late. As
stated above, the records of the Bureau of
Immigration show that as of July 20, 1960, Santiago
Gatchalian had been declared to be a Filipino citizen.
It is a final decision that forecloses a re-opening of the
same 30 years later. Petitioners do not even question
Santiago Gatchalian's Philippine citizenship. It is the
citizenship of respondent William Gatchalian that is in
issue and addressed for determination of the Court in
this case.
Furthermore, petitioners' position is not enhanced by
the fact that respondent's arrest came twenty-eight
(28) years after the alleged cause of deportation
arose. Section 37 (b) of the Immigration Act states
that deportation "shall not be effected . . . unless the
arrest in the deportation proceedings is made within
five (5) years after the cause of deportation arises."
In Lam Shee vs. Bengzon (93 Phil. 1065 [1953]), We
laid down the consequences of such inaction, thus:
There is however an important circumstance
which places this case beyond the reach of
the resultant consequence of the fraudulent
act committed by the mother of the minor
when she admitted that she gained entrance
into the Philippines by making use of the
name of a Chinese resident merchant other
than that of her lawful husband, and that is,
that the mother can no longer be the subject
of deportation proceedings for the simple
reason that more than 5 years had elapsed
from the date of her admission. Note that the
above irregularity was divulged by the
mother herself, who in a gesture of sincerity,
made an spontaneous admission before the
immigration officials in the investigation
conducted in connection with the landing of
the minor on September 24, 1947, and not
through any effort on the part of the
immigration authorities. And considering this
frank admission, plus the fact that the mother
was found to be married to another Chinese
resident merchant, now deceased, who
owned a restaurant in the Philippines valued
at P15,000 and which gives a net profit of
P500 a month, the immigration officials then
must have considered the irregularity not
serious enough when, inspire of that finding,
they decided to land said minor "as a
properly documented preference quota
immigrant" (Exhibit D). We cannot therefore
but wonder why two years later the
immigration officials would reverse their
attitude and would take steps to institute
deportation proceedings against the minor.
Under the circumstances obtaining in this
case, we believe that much as the attitude of
the mother would be condemned for having
made use of an improper means to gain
entrance into the Philippines and acquire
permanent residence there, it is now too
late, not to say unchristian, to deport the
minor after having allowed the mother to
remain even illegally to the extent of
validating her residence by inaction, thus
allowing the period of prescription to set in
and to elapse in her favor. To permit his
deportation at this late hour would be to
condemn him to live separately from his
mother through no fault of his thereby
leaving him to a life of insecurity resulting
from lack of support and protection of his
family. This inaction or oversight on the part
of immigration officials has created an
anomalous situation which, for reasons of
equity, should be resolved in favor of the
minor herein involved. (Emphasis supplied)
In the case at bar, petitioners' alleged cause of action
and deportation against herein respondent arose in
1962. However, the warrant of arrest of respondent
was issued by Commissioner Domingo only on
August 15, 1990 28 long years after. It is clear that
petitioners' cause of action has already prescribed
and by their inaction could not now be validly
enforced by petitioners against respondent William
Gatchalian. Furthermore, the warrant of exclusion
dated July 6, 1962 was already recalled and the
Identification certificate of respondent, among others,
was revalidated on March 15, 1973 by the then Acting
Commissioner Nituda.
It is also proposed in the dissenting opinions of
Messrs. Justices Feliciano and Davide, Jr., that the
BOC decision dated July 6, 1962 and the warrant of
exclusion which was found to be valid
in Arocha should be applicable to respondent William
Gatchalian even if the latter was not a party to said
case. They also opined that under Sec. 37 (b) of the
Immigration Act, the five (5) years limitation is
applicable only where the deportation is sought to be
effected under clauses of Sec. 37 (b) other than
clauses 2, 7, 8, 11 and 12 and that no period of
limitation is applicable in deportations under clauses
2, 7, 8, 11 and 12.
The Court disagrees. Under Sec. 39 of the
Immigration Act, it is reiterated that such deportation
proceedings should be instituted within five (5) years.
Section 45 of the same Act provides penal sanctions
for violations of the offenses therein enumerated with
a fine of "not more than P1,000.00 and imprisonment
for not more than two (2) years and deportation if he
is an alien." Thus:
Penal Provisions
Sec. 45. Any individual who
(a) When applying for an immigration
document personates another individual, or
falsely appears in the name of deceased
individual, or evades the immigration laws by
appearing under an assumed name; fictitious
name; or
(b) Issues or otherwise disposes of an
immigration document, to any person not
authorized by law to receive such document;
or
(c) Obtains, accepts or uses any immigration
document, knowing it to be false; or
(d) Being an alien, enters the Philippines
without inspection and admission by the
immigration officials, or obtains entry into the
Philippines by wilful, false, or misleading
representation or wilful concealment of a
material fact; or
(e) Being an alien shall for any fraudulent
purpose represent himself to be a Philippine
citizen in order to evade any requirement of
the immigration laws; or
(f) In any immigration matter shall knowingly
make under oath any false statement or
representations; or
(g) Being an alien, shall depart from the
Philippines without first securing an
immigration clearance certificates required
by section twenty-two of this Act; or
(h) Attempts or conspires with another to
commit any of the foregoing acts, shall be
guilty of an offense, and upon conviction
thereof, shall be fined not more than one
 thousand pesos, and imprisoned for not
more than two years, and deported if he is
an alien. (Emphasis supplied)
Such offenses punishable by correctional penalty
prescribe in 10 years (Art. 90, Revised Penal Code);
correctional penalties also prescribe in 10 years (Art.
92, Revised Penal Code).
It must be noted, however, that under Sec. 1, Act No.
3326 [1926], as amended, (Prescription for Violations
Penalized by Special Acts and Municipal Ordinances)
"violations penalized by special acts shall, unless
otherwise provided in such acts, prescribe in
accordance with the following rules: . . .c) after eight
years for those punished by imprisonment for two
years or more, but less than six years; . . ."
Consequently, no prosecution and consequent
deportation for violation of the offenses enumerated in
the Immigration Act can be initiated beyond the eight-
year prescriptive period, the Immigration Act being a
special legislation.
The Court, therefore, holds that the period of effecting
deportation of an alien after entry or a warrant of
exclusion based on a final order of the BSI or BOC
are not imprescriptible. The law itself provides for a
period of prescription. Prescription of the crime is
forfeiture or loss of the rights of the State to prosecute
the offender after the lapse of a certain time, while
prescription of the penalty is the loss or forfeiture by
the government of the right to execute the final
sentence after the lapse of a certain time (Padilla,
Criminal Law, Vol. 1, 1974, at p. 855).
"Although a deportation proceeding does not partake
of the nature of a criminal action, however,
considering that it is a harsh and extraordinary
administrative proceeding affecting the freedom and
liberty of a person, the constitutional right of such
person to due process should not be denied. Thus,
the provisions of the Rules of Court of the Philippines
particularly on criminal procedure are applicable to
deportation proceedings." (Lao Gi vs. Court of
Appeals, supra). Under Sec. 6, Rule 39 of the Rules
of Court, a final judgment may not be executed after
the lapse of five (5) years from the date of its entry or
from the date it becomes final and executory.
Thereafter, it may be enforced only by a separate
action subject to the statute of limitations. Under Art.
1144 (3) of the Civil Code, an action based on
judgment must be brought within 10 years from the
time the right of action accrues.
In relation to Sec. 37 (b) of the Immigration Act, the
rule, therefore, is:
1. Deportation or exclusion proceedings should be
initiated within five (5) years after the cause of
deportation or exclusion arises when effected under
any other clauses other than clauses 2, 7, 8, 11 and
12 and of paragraph (a) of Sec. 37 of the Immigration
Act; and
2. When deportation or exclusion is effected under
clauses 2, 7, 8, 11 and 12 of paragraph (a) of Sec. 37,
the prescriptive period of the deportation or exclusion
proceedings is eight (8) years.
In the case at bar, it took petitioners 28 years since
the BOC decision was rendered on July 6, 1962
before they commenced deportation or exclusion
proceedings against respondent William Gatchalian in
1990. Undoubtedly, petitioners' cause of action has
already prescribed. Neither may an action to revive
and/or enforce the decision dated July 6, 1962 be
instituted after ten (10) years (Art. 1144 [3], Civil
Code).
Since his admission as a Filipino citizen in 1961,
respondent William Gatchalian has continuously
resided in the Philippines. He married Ting Dee Hua
on July 1, 1973 (Annex "8", counter-petition) with
whom he has four (4) minor children. The marriage
contract shows that said respondent is a Filipino
(Annex "8"). He holds passports and earlier passports
as a Filipino (Annexes "9", "10" & "11", counter-
petition). He is a registered voter of Valenzuela, Metro
Manila where he has long resided and exercised his
right of suffrage (Annex 12, counter-petition). He
engaged in business in the Philippines since 1973
and is the director/officer of the International Polymer
Corp. and Ropeman International Corp. as a Filipino
(Annexes, "13" & "14", counter-petition). He is a
taxpayer. Respondent claims that the companies he
runs and in which he has a controlling investment
provides livelihood to 4,000 employees and
approximately 25,000 dependents. He continuously
enjoyed the status of Filipino citizenship and
discharged his responsibility as such until petitioners
initiated the deportation proceedings against him.
"The power to deport an alien is an act of the State. It
is an act by or under the authority of the sovereign
power. It is a police measure against undesirable
aliens whose presence in the country is found to be
injurious to the public good and domestic tranquility of
the people" (Lao Gi vs. Court of Appeals, supra). How
could one who has helped the economy of the country
by providing employment to some 4,000 people be
considered undesirable and be summarily deported
when the government, in its concerted drive to attract
foreign investors, grants Special Resident Visa to any
alien who invest at least US$50,000.00 in the
country? Even assuming arguendo that respondent is
an alien, his deportation under the circumstances is
unjust and unfair, if not downright illegal. The action
taken by petitioners in the case at bar is diametrically
opposed to settled government policy.
Petitioners, on the other hand, claim that respondent
is an alien. In support of their position, petitioners
point out that Santiago Gatchalian's marriage with
Chu Gim Tee in China as well as the marriage of
Francisco (father of William) Gatchalian to Ong Chiu
Kiok, likewise in China, were not supported by any
evidence other than their own self-serving testimony
nor was there any showing what the laws of China
were. It is the postulate advanced by petitioners that
for the said marriages to be valid in this country, it
should have been shown that they were valid by the
laws of China wherein the same were contracted.
There being none, petitioners conclude that the
aforesaid marriages cannot be considered valid.
Hence, Santiago's children, including Francisco,
followed the citizenship of their mother, having been
born outside of a valid marriage. Similarly, the validity
of the Francisco's marriage not having been
demonstrated, William and Johnson followed the
citizenship of their mother, a Chinese national.
After a careful consideration of petitioner's argument,
We find that it cannot be sustained.
In Miciano vs. Brimo (50 Phil. 867 [1924]; Lim and Lim
vs. Collector of Customs, 36 Phil. 472; Yam Ka Lim
vs. Collector of Customs, 30 Phil. 46 [1915]), this
Court held that in the absence of evidence to the
contrary, foreign laws on a particular subject are
presumed to be the same as those of the Philippines.
In the case at bar, there being no proof of Chinese
law relating to marriage, there arises the presumption
that it is the same as that of Philippine law.
The lack of proof of Chinese law on the matter cannot
be blamed on Santiago Gatchalian much more on
respondent William Gatchalian who was then a
twelve-year old minor. The fact is, as records indicate,
Santiago was not pressed by the Citizenship
Investigation Board to prove the laws of China relating
to marriage, having been content with the testimony
of Santiago that the Marriage Certificate was lost or
destroyed during the Japanese occupation of China.
Neither was Francisco Gatchalian's testimony
subjected to the same scrutiny by the Board of
Special Inquiry. Nevertheless, the testimonies of
Santiago Gatchalian and Francisco Gatchalian before
the Philippine consular and immigration authorities
regarding their marriages, birth and relationship to
each other are not self-serving but are admissible in
evidence as statements or declarations regarding
family reputation or tradition in matters of pedigree
(Sec. 34, Rule 130). Furtheremore, this salutary rule
of evidence finds support in substantive law. Thus,
Art. 267 of the Civil Code provides:
Art. 267. In the absence of a record of birth,
authentic document, final judgment or
possession of status, legitimate filiation may
be proved by any other means allowed by
the Rules of Court and special laws. (See
also Art. 172 of the Family Code)
Consequently, the testimonies/affidavits of Santiago
Gatchalian and Francisco Gatchalian aforementioned
are not self-serving but are competent proof of filiation
(Art. 172 [2], Family Code).
Philippine law, following the lex loci celebrationis,
adheres to the rule that a marriage formally valid
where celebrated is valid everywhere. Referring to
marriages contracted abroad, Art. 71 of the Civil Code
(now Art. 26 of the Family Code) provides that "(a)ll
marriages performed outside of the Philippines in
accordance with the laws in force in the country
where they were performed, and valid there as such,
shall also be valid in this country . . ." And any doubt
as to the validity of the matrimonial unity and the
extent as to how far the validity of such marriage may
be extended to the consequences of the coverture is
answered by Art. 220 of the Civil Code in this manner:
"In case of doubt, all presumptions favor the solidarity
of the family. Thus, every intendment of law or facts
leans toward the validity of marriage, the
indissolubility of the marriage bonds, the legitimacy of
children, the community of property during marriage,
the authority of parents over their children, and the
validity of defense for any member of the family in
case of unlawful aggression." (Emphasis supplied).
Bearing in mind the "processual presumption"
enunciated in Miciano and other cases, he who
asserts that the marriage is not valid under our law
bears the burden of proof to present the foreign law.
Having declared the assailed marriages as valid,
respondent William Gatchalian follows the citizenship
of his father Francisco, a Filipino, as a legitimate child
of the latter. Francisco, in turn is likewise a Filipino
being the legitimate child of Santiago Gatchalian who
(the latter) is admittedly a Filipino citizen whose
Philippine citizenship was recognized by the Bureau
of Immigration in an order dated July 12, 1960.
Finally, respondent William Gatchalian belongs to the
class of Filipino citizens contemplated under Sec. 1,
Article IV of the Constitution, which provides:
Sec. 1. The following are citizens of the
Philippines:
(1) Those who are citizens of the Philippines
at the time of the adoption of this
Constitution. . . .
This forecloses any further question about the
Philippine citizenship of respondent William
Gatchalian.
The Court is not unaware of Woong Woo Yiu vs.
Vivo (13 SCRA 552 [1965]) relied upon by petitioners.
The ruling arrived thereat, however, cannot apply in
the case at bar for the simple reason that the parties
therein testified to have been married in China by a
village leader, which undoubtedly is not among those
authorized to solemnize marriage as provided in Art.
56 of the Civil Code (now Art. 7, Family Code).
Premises considered, the Court deems it
unnecessary to resolve the other issues raised by the
parties.
WHEREFORE, G.R. Nos. 95122-23 is DISMISSED
for lack of merit; G.R. Nos. 95612-13 is hereby
GRANTED and respondent William Gatchalian is
declared a Filipino citizen. Petitioners are hereby
permanently enjoined from continuing with the
deportation proceedings docketed as DC No. 90-523
for lack of jurisdiction over respondent Gatchalian, he
being a Filipino citizen; Civil Cases No. 90-54214 and
3431-V-90 pending before respondent judges are
likewise DISMISSED. Without pronouncement as to
costs.
SO ORDERED.
Gutierrez, Jr., Gancayco, Sarmiento, Grio-Aquino
and Medialdea, JJ., concur.
Fernan, C.J., and Narvasa, J., concur in the result.
Separate Opinions
DAVIDE, JR., J., concurring-dissenting:
I can easily agree with the summary of antecedent
facts in the ponencia of Mr. Justice Bidin and the
reiteration therein of the established doctrine that the
Bureau of Immigration has the exclusive authority and
jurisdiction to try and hear cases against alleged
aliens, and in the process, determine also their
citizenship, and that "a mere claim of citizenship
cannot operate to divest the Board of Commissioners
of its jurisdiction in deportation proceedings." I also
agree with the conclusion that the petitioners in G.R.
No. 95122-23, the Board of Commissioners and
Board of Special Inquiry, hereinafter referred to as the
Boards, are quasi-judicial bodies.
However, I cannot go along with the view that the
case of William Gatchalian should be treated as an
exception to that doctrine and, above all, to the law
which vests upon the Court of Appeals exclusive
appellate jurisdiction over the Boards. Neither can I
have solidarity with his opinion that this Court should,
in this instance, rule on the citizenship of Mr.
Gatchalian instead of remanding the case to the
Regional Trial Court. To grant him these benefits
would do violence to the law, liberally stretch the limits
of the exceptions or misapply the exceptionary rule,
and to unduly pollute the settled doctrine. No fact or
circumstance exists to justify the application of the
exceptions for the benefit of Mr. Gatchalian. On the
contrary, substantial facts exist to render immutable
the unqualified application of the law and the doctrine.
To my mind, the questioned acts of the Boards were
done absolutely within their quasi-judicial functions.
Therefore, the rule laid down in Filipinas Engineering
and Machine Shop vs. Ferrer (135 SCRA 25)
and Lupangco vs. Court of Appeals (160 SCRA 848)
does not apply.
Consequently, pursuant to paragraph 3 of Section 9 of
Batas Pambansa Blg. 129, and Our resolutions of 15
September 1987 and 2 April 1990 in G.R. No. 79635
(Commissioner of Customs vs. Court of Tax Appeals,
et al.) and G.R. No. 80320 (Commissioner of Internal
Revenue vs. Court of Tax Appeals, et al.),
respectively, and Our decisions of 16 March 1989, 22
December 1989, and 6 June 1990 in G.R. No. 83578
(Presidential Anti-Dollar Salting Task Force vs. Court
of Appeals, et al.), 171 SCRA 348, G.R. No. 86625
(Development Bank of the Philippines vs. Court of Tax
Appeals, et al.), 180 SCRA 609, 617, and in G.R. No.
L-48113 (Yang vs. Court of Appeals, et al.),
respectively, the Gatchalians should have invoked the
exclusive appellate jurisdiction of the Court of Appeals
for appropriate redress instead of filing petitions
for certiorari and prohibition with injunction before the
Regional Trial Court of Manila (Civil Case No. 90-
54214) and before the Regional Trial Court of
Valenzuela, Metro Manila (Civil Case No. 3431-V-90).
The trial courts should have dismissed the cases. In
issuing the questioned orders, respondents Judge
Dela Rosa and Judge Capulong clearly acted without
jurisdiction or with grave abuse of discretion.
As to why William Gatchalian filed his petition before
the former court and his wife and minor children filed
a separate complaint before the latter has not been
explained. It is to be noted that he is a registered
voter of Valenzuela, Metro Manila where he has long
resided and exercised his right of suffrage (Annex 12,
Counter-Petition). Therefore, he should have filed his
petition with the Regional Trial Court of Valenzuela.
His wife and minor children are not parties to the case
before the Commission on Immigration and
Deportation. Their causes of action are based mainly
on their claim that the acts of the Boards against
William tend to deprive plaintiff mother consortium
and connubium and the plaintiffs minors protection
and support. At once, the viability of their causes of
action is doubtful; however, if indeed they have valid
causes of action, they could have been joined as co-
plaintiffs in the case filed by William. It appears then
that their filing of a separate complaint before another
court was part of a strategy to frustrate the
proceedings before the Boards. As correctly
maintained by the petitioning Boards, we have here a
clear case of forum-shopping, especially considering
the fact that on September 4, 1990, or two days
before the filing of the case before the Valenzuela
court the government filed a motion to dismiss the
case before the Manila court. Forum-shopping has
long been condemned and proscribed. In People vs.
Court of Appeals, et al. (101 SCRA 450, 463),
promulgated on 28 November 1980, this Court held
that a party "should not be allowed to pursue
simultaneous remedies in two different forums." In the
Resolution of 31 July 1986 in E. Razon Inc., et al. vs.
Philippine Port Authority, et al., G.R. No. 75197, this
Court held:
The acts of petitioners constitute a clear
case of forum-shopping, an act of
malpractice that is proscribed and
condemned as trifling with the courts and
abusing their processes. It is improper
conduct that tends to degrade the
administration of justice. (See also Buan vs.
Lopez, Jr., 145 SCRA 34; Palm Avenue
Realty Development Corp. vs. PCGG, 153
SCRA 591; Minister of Natural Resources, et
al. vs. Heirs of Orval Hughes, et al., 155
SCRA 566; Limpin vs. IAC, 161 SCRA 98;
Collado vs. Hernando, 161 SCRA 639;
Villanueva, et al. vs. Adre, et al., 172 SCRA
877; Danville Maritime, Inc. vs. COA, 175
SCRA 717; Crisostomo vs. SEC, 179 SCRA
154; Adlawan vs. Tomol, 179 SCRA 42; and
Alonto vs. Memoracion, 185 SCRA 73).
William Gatchalian did not stop in his forum-shopping
in the regional trial courts. Under the guise of a
counter-petition, he is now before this Court in an
active offensive role. This is a very clever, albeit
subtle, ploy to bang directly to this Court the issue of
his deportation and to divest the Boards of their
original jurisdiction thereon. He could have done this
at the first instance; he did not. He and his wife and
minor children deliberately chose, instead, to
separately go to the wrong court, evidently to delay
the proceedings before the Boards, which they
accomplished when the two judges separately issued
orders restraining said Boards from commencing or
continuing with any of the proceedings which would
lead to the deportation of William Gatchalian (Civil
Case No. 90-54214) and from proceeding with the
deportation charges against William Gatchalian (Civil
Case No. 3431-V-90).
Chua Hiong vs. Deportation Board (96 Phil. 665) cited
in the ponencia as another authority which allows
William Gatchalian to enjoy the protective mantle of
the exceptionary rule affecting the exclusive power of
the Commission on Immigration and Deportation to try
and hear cases against aliens and in the process also
determine their citizenship is either not applicable or
is mis-applied. This case laid down the principle that
"when the evidence submitted by a respondent is
conclusive of his citizenship, the right to immediate
review should also be recognized and the courts
should promptly enjoin the deportation
proceedings. . . . If he is a citizen and evidence
thereof is satisfactory, there is no sense nor justice in
allowing the deportation proceedings to continue,
granting him the remedy only after the Board has
finished its investigation of his undesirability. . . ."
(emphasis supplied). The word courts should
not now be interpreted to mean or to include the
regional trial courts because, as stated above, said
courts do not have any appellate jurisdiction over the
Commission on Immigration and Deportation, the
Board of Commissioners and the Board of Special
Inquiry. This case was decided in 1955 yet, or twenty-
six years before the effectivity of Batas Pambansa
Blg. 129.
The condition sine qua non then to an authorized
judicial intervention is that the evidence submitted by
a respondent is conclusive of his citizenship, or as
stated in Co vs. Deportation Board, (78 SCRA 104,
107), the claim of citizenship is so substantial that
there are no reasonable grounds for the belief that the
claim is correct.
The facts before this Court do not constitute, or even
show, a conclusive or substantial evidence that
William Gatchalian is a Filipino citizen. On the
contrary, very serious doubts surround such a claim
from the beginning. His initial entry into the
Philippines was made possible through a Certificate
of Identity (as Filipino) which was issued on the basis
of a forged cablegram by the then Secretary of
Foreign Affairs. Then on 6 July 1962 the then new
Board of Commissioners promulgated a written
decision in I.C. Cases Nos. 61-2108-C to 61-2116-C
inclusive (Application for admission as Philippine
citizens of Jose, Elena, Benjamin, Juan, Pedro,
Gloria, Francisco, William and Johnson, all surnamed
Gatchalian) reversing the decision of the Board of
Special Inquiry No. 1 of 6 July 1961 and ordering the
exclusion of William Gatchalian and the others as
aliens not properly documented. Accordingly, a
warrant of exclusion, also dated 6 July 1962, was
issued by the Commissioners commanding the
deportation officer to exclude William Gatchalian, and
others, and to cause their removal from the country
on the first available transportation in accordance with
law to the port of the country of which they were
nationals. The pertinent portion of the Decision reads
as follows:
The claim to Philippine citizenship of above-
named applicants is based on the citizenship
of one Santiago Gatchalian whose Philippine
citizenship was recognized by the Bureau of
Immigration in an Order, dated July 12,
1960. It is alleged that applicants JOSE
GATCHALIAN, FRANCISCO GATCHALIAN,
ELENA GATCHALIAN and BENJAMIN
GATCHALIAN are the legitimate children of
Santiago Gatchalian with one Chiu Gim Tee.
Except for the self-serving testimonies of
Santiago Gatchalian and his alleged
children, there has not been submitted any
evidence of Santiago Gatchalian's marriage
to Chiu Gim Tee and the birth of the alleged
children of the couple. The personal records
of Santiago Gatchalian on file with this office
do not reflect the names of applicants as his
children, and while two names listed in his
Form 1 (ACR application), Jose and Elena,
bear the same name as two of herein
applicants, the difference in the ages of said
applicants, casts serious doubt on their
identity. Apropos, the applicants JOSE
GATCHALIAN, GLORIA GATCHALIAN,
FRANCISCO GATCHALIAN, ELENA
GATCHALIAN and BENJAMIN
GATCHALIAN, not having satisfactorily
proved as the children of Santiago
Gatchalian, determination of the citizenship
of the other applicants, JUAN GATCHALIAN,
PEDRO GATCHALIAN and JOHNSON
 GATCHALIAN, whose right to Filipino
citizenship are merely drawn from their
fathers, Jose Gatchalian and Francisco
Gatchalian, is unnecessary. (Decision, Annex
"E" of Petition).
Looking back to the case of Santiago, William's
alleged grandfather, I cannot find sufficient credible
evidence to support his claim of Filipino citizenship.
For a long time before 20 July 1960 he considered
himself a Chinese citizen. The "conclusion" of the
Bureau of Immigration that Santiago is a Filipino
citizen is based on totally questionable and
insufficient evidence which cannot inspire belief. The
Order itself, signed by Associate Commissioner Felix
Talabis, supports this conclusion. It reads in full as
follows:
This is a petition for the cancellation of an
alien registry of SANTIAGO GATCHALIAN,
registered as Chinese and holder of ACR
No. A-219003 issued at Manila on 13
February 1951 and ICR No. 7501 dated 3
May 1946. He is alleged to be the son of
Filipino parents who were not lawfully
married.
It is alleged that the petitioner was born in
Binondo, Manila, on 25 July 1905, to Pablo
Pacheco and Marciana Gatchalian. It is
noted that in his application for alien
registration filed with this Office on 13
January 1951, Santiago Gatchalian stated
that his deceased parents were Pablo
Pacheco and Marciana. He was identified by
his only brother, Joaquin Pacheco, who
insisted that he and petitioner are
illegitimate. It is true that, on record, there is
a certificate signed on 26 October 1902 by
Maxima Gatchalian, their maternal
grandmother, giving consent to the marriage
of Marciana Gatchalian to Pablo Pacheco
(Exh. B), but Joaquin said that his parents
did not actually get married. In proof of this,
the baptismal record of the petitioner
expressly states that Santiago Gatchalian
was born on 25 July 1905 and baptized on 6
October 1905, being the son of Marciana
Gatchalian, "filipina", and an unknown father
(verbatim copy dated 22 June 1907, Parish
Priest of Binondo, Manila).
The petitioner, apparently not completely
certain about his civil status, has been
interchangeably using his paternal and
maternal surnames. In school he was known
as Santiago Pacheco (Class card for 1920-
21, Meisic, Manila; Certificates of completion
of third and fourth grades, Meisic Primary
School); but in his residence certificate dated
17 September 1937, and in Tax Clearance
Certificate issued on 2 October 1937, he is
referred to as Santiago Gatchalian; and in a
communication dated 6 June 1941, he was
addressed to as Santiago Pacheco by the
Philippine Charity Sweepstakes office.
Considering, however, the positive assertion
by his elder brother who is better informed
about their origin, the incontestable entry in
his baptismal record that he is illegitimate
and the entry in the marriage contract of his
elder brother wherein the father's name is
omitted and the mother, Marciana
Gatchalian, is described as Filipina
(marriage contract dated 29 November
1936) there is sufficient evidence to establish
that Santiago Gatchalian is really Filipino at
birth, being the legitimate child of a Filipino
woman.
WHEREFORE, the herein petition to cancel
his alien registration is granted, petitioner
shall henceforth be shown in the records of
this office as a citizen of the Philippines and
the issuance to him of the appropriate
Identification certificate showing his correct
status is hereby authorized. (Order of 12 July
1960, Annex "1" of Comment with Counter-
Petition).
As to his alleged marriage to Chu Gim Tee, and their
five children, we only have his self-selling oral
testimony, thus:
Q What is the name of your wife?
A Her name is Chu Gim Tee.
Q Is she still alive?
A No, she died in 1951, in Amoy.
Q Do you have children with her, if so,
mention their names, ages and sexes?
A Yes. I have five children, all of them alive
and they are as follows:
Jose Gatchalian, born on Jan. 2, 1927 in
Amoy; Gloria Gatchalian, born February 20,
1929 in Amoy; Francisco Gatchalian, born on
March 3, 1931 in Amoy; Elena Gatchalian,
born on April 4, 1933 in Amoy; Benjamin
Gatchalian, born on 31 March 1942 in Amoy.
Q Where are they living now?
A All of them are now living in Macao, with
my sister-in-law by the name of Chu Lam
Tee. (p. 4, Transcript of the proceedings
before the Citizen Evaluation Board on 12
February 1960, Annex "2" of Comment with
Counter-Petition).
If indeed Santiago's parents, Pablo Pacheco and
Marciana Gatchalian, were married, what was his
reason for insisting, through his brother Joaquin, that
he, is an illegitimate son? The only possible reason is
that Pablo Pacheco is a Chinese citizen, in which
case Santiago would follow the citizenship of
Marciana, a "filipina." But to give full faith and credit to
the oral insistence of illegitimacy is to do violence to
the presumptions of validity of marriage, the
indissolubility of the marriage bonds and the
legitimacy of children. (Art. 220, Civil Code). These
are among the presumptions which
the ponencia precisely applied when it rejected the
petitioners' claim that Santiago failed to establish his
claimed marriage to Chu Gim Tee and Francisco's
(father of William) claimed marriage to Ong Chiu Kiok,
both of which were allegedly celebrated abroad. I
cannot find any valid justification why these
presumptions should be liberally applied in favor of
claimed marriages allegedly celebrated abroad but
denied to purported marriages celebrated in the
Philippines.
Interestingly, Santiago used the surname Pacheco
during such proceedings and when he testified, he
gave his name as Santiago Gatchalian Pacheco. This
is an incontrovertible proof that he recognized the
legitimate union of his father and mother.
On 18 February 1960, Santiago was recalled to be
confronted re his claim as to the number of his
children; he testified thus:
Q In your testimony on February 12, this
year, you named as your children the
following: Jose, Gloria, Francisco, Elena and
Benjamin, all born in Amoy, arranged
according to the order of their ages.
However, in your Form 1 when you secured
your ACR in 1951, you mentioned only Jose
Gatchalian and Elena Gatchalian. Why, what
is the reason why in this form that you filled
up in 1951, you mentioned only Jose and
Elena?
A That form I am not the one who filled it
because that is not my handwriting. It is the
handwriting of my broker or the clerk of my
broker. However, when they prepared that I
mentioned my children named Jose, Gloria,
Francisco, Elena in a piece of paper which I
gave to him, except Benjamin.
 Q Why did you not mention Benjamin in the
list?
A Because he was not yet baptized then.
(Transcript, p. 7, Annex "2" of Comment with
Counter-Petition).
The explanation is very flimsy and does not deserve
the respect of a passing glance.
There is no showing that Gatchalian took any
immediate definite positive step against the 6 July
1962 decision and the warrant of exclusion.
It was only sometime in 1973, or eleven years after,
that he and others covered by the warrant of
expulsion filed a motion for re-hearing with the Board
of Special Inquiry. There has been no explanation for
the unreasonable delay in the filing of the motion. It
may be surmised that it was due to his minority,
considering that he was allegedly only twelve years
old when he arrived in Manila from Hongkong on 27
June 1961. But, such minority was no obstacle to the
filing of any remedial action for and in his behalf.
The action taken by and the recommendation of the
Board of Special Inquiry of 14 March 1973 to the then
Acting Commissioner Victor Nituda for the reversal of
the July 6, 1962 decision of the Board of
Commissioners were not only highly anomalous,
irregular and improper, it was done without any
semblance of authority. The Board of Special Inquiry
did not have the power to review, modify or reverse a
Decision of the Board of Commissioners rendered
about eleven years earlier. Then Acting Commissioner
Victor Nituda, acting alone, did not likewise have the
power or authority to approve the recommendation of
said Board, to revive and/or reaffirm the July 6, 1961
decision of the Board of Special Inquiry, to reverse,
and nullify, the Decision of 6 July 1962 of the Board of
Commissioners, and to order the admission of William
Gatchalian as a Filipino citizen. Pursuant to Sec. 26
(b) of C.A. No. 613, as amended (The Philippine
Immigration Act of 1940), only the Board of
Commissioners can act on the recommendation, if at
all it was legally and validly done. The Board of
Commissioners is composed of the Commissioner of
Immigration and the two Deputy Commissioners. In
the absence of any member of the Board, the
Department Head shall designate an officer or
employee in the Bureau of Immigration to serve as
member thereof. In any case coming before it, the
decision of any two members shall prevail. (Sec. 8,
C.A. No. 613 as amended). The Department Head
referred to is the Secretary of Justice since the
Commission is, for administrative purposes, under the
supervision and control of the Department of Justice.
The decision then of Acting Commissioner Nituda was
void and invalid ab initio. In view thereof, the
rationalization in the ponencia that the issue could be
re-opened since the decision of the Board of
Commissioners of 6 July 1962 did not constitute res
judicata is irrelevant. But even if it is to be conceded
that the 6 July 1962 decision did not constitute res
judicata, I find it both strange and illogical to give full
faith and credit to the unilateral action of Mr. Nituda
and to use it to bar the Boards from exercising its
power and jurisdiction over William Gatchalian.
Assuming that indeed William is the grandson of
Santiago, I find it rather strange why Santiago did not
mention him in his testimony before the Citizenship
Evaluation Board. At that time William was already
eleven years old. It is logical to presume that the
proceeding initiated by Santiago was principally for
the benefit of his alleged children and grandchildren.
It was, as subsequent events proved, intended to
prepare the legal basis for their entry into the country
as Filipino citizens. Thus, eleven months after he
obtained a favorable decision from the Board, and on
two successive dates, his alleged children and
grandchildren entered the country. On 25 June 1961
his alleged children Jose, Elena, Benjamin, and his
alleged grandchildren Pedro and Juan arrived from
Hongkong. On 27 June 1961, his alleged daughter
Gloria and son Francisco with his alleged children
William and Johnson also arrived from Hongkong.
(pp. 4-5, Petition).
That he has continuously resided in the Philippines
since 1961; he is married to Ting Dee Hua on July 1,
1973, and his marriage contract shows that he is a
Filipino citizen; he holds passports and earlier
passports as a Filipino; he is a registered voter of
Valenzuela, Metro Manila where he has long resided
and exercised his right of suffrage; he is engaged in
business in the Philippines since 1973, and is a
director/officer of the International Polymer Corp. and
Ropeman International Corp. as a Filipino, and that
the companies he runs and in which he has a
controlling investment provided a livelihood to 4,000
employees and approximately 25,000 dependents; he
is a taxpayer; and he has continuously enjoyed the
status of Filipino citizenship, discharged his
responsibility as such until petitioning Boards initiated
the deportation proceedings against him, are not of
any help to William Gatchalian. For, they neither
confer nor strengthen his claim of Filipino citizenship
since they are all rooted on the illegal and void
decision of then Acting Commissioner Victor Nituda of
15 March 1973. A decision which is void and
invalid ab initio cannot be a source of valid acts.
Neither can such substantive infirmity be cured by
salutary acts that tend to confirm the status conferred
by the void decision.
In the light of the foregoing, it follows that the warrant
of exclusion issued against William Gatchalian
pursuant to and by virtue of the 6 July 1962 Decision
of the Board of Commissioners subsists and remains
valid and enforceable.
I disagree with the view advanced in
the ponencia that the State can no longer enforce the
warrant of exclusion because it is already barred by
prescription considering that Section 37 (b) of the
Immigration Act states that deportation "shall not be
effected . . . unless the arrest in the deportation
proceedings is made within five (5) years after the
cause of deportation arises."
Said paragraph (b) of Section 37 reads in full as
follows:
(b) Deportation may be effected under
clauses 2, 7, 8, 11 and 12 paragraph (a) of
this section at any time after entry, but shall
not be effected under any other
clause unless the arrest in the deportation
proceedings is made within five years after
the cause of deportation arises. Deportation
under clauses 3 and 4 shall not be effected if
the court or judge thereof, when sentencing
the alien, shall recommend to the
Commissioner of Immigration that the alien
be not deported. (As amended by Sec. 13,
R.A. No. 503). (Emphasis supplied).
Note that the five-year period applies only to clauses
other than 2, 7, 8, 11 and 12 of paragraph (a) of the
Section. In respect to clauses 2, 7, 8, 11 and 12, the
limitation does not apply. These clauses read as
follows:
(2) Any alien who enters the Philippines after
the effective date of this Act, who was not
lawfully admissible at the time of entry;
xxx xxx xxx
(7) Any alien who remains in the Philippines
in violation of any limitation or condition
under which he was admitted as a non-
immigrant;
(8) Any alien who believes in, advises,
advocates or teaches the overthrow by force
and violence of the Government of the
Philippines, or of constituted law and
authority, or who disbelieves in or is opposed
to organized government, or who advises,
advocates, or teaches the assault or
 assassination of public officials because of
their office, or who advises, advocates, or
teaches the unlawful destruction of property,
or who is a member of or affiliated with any
organization entertaining, advocating or
teaching such doctrines, or who in any
manner whatsoever lends assistance,
financial or otherwise, to the dissemination of
such doctrines;
xxx xxx xxx
(11) Any alien who engages in profiteering,
hoarding, or black-marketing, independent of
any criminal action which may be brought
against him;
(12) Any alien who is convicted of any
offense penalized under Commonwealth Act
Numbered Four Hundred and Seventy-
Three, otherwise known as the Revised
Naturalization Laws of the Philippines, or any
law relating to acquisition of Philippine
citizenship;
xxx xxx xxx
Mr. Gatchalian is covered by clause (2); besides, the
warrant for his exclusion was issued within a period of
five years following his entry.
Lam Shee vs. Bengzon (93 Phil. 1065) is not
applicable to Mr. Gatchalian. In issue in that case was
the deportation of a minor whose mother fraudulently
entered the Philippines by using the name of a
resident Chinese merchant who is not her lawful
husband but against whom no deportation
proceedings was initiated within five years following
her entry. Said mother did in fact acquire permanent
residence status. Furthermore, the minor's mother
never claimed to be a Filipino citizen.
IN VIEW OF ALL THE FOREGOING, I vote to GRANT
the petition in G.R. Nos. 95122-23, SET ASIDE the
questioned orders of respondents Judge Joselito Dela
Rosa and Judge Teresita Dizon Capulong as having
been issued beyond their jurisdiction, ORDER the
DISMISSAL of Civil Case Nos. 90-54214 of the
Regional Trial Court of Manila and 3431-V-90 of the
Regional Trial Court of Valenzuela, Metro Manila and
to DISMISS for lack of merit the COUNTER-
PETITION.
FELICIANO, J., dissenting:
I regret I am unable to join the opinion written by my
distinguished brother in the Court, Mr. Justice A.A.
Bidin, and I, therefore, undertake to submit this
separate opinion.
For convenience, the following is a precis of the
matters discussed in detail below.
1. I agree that the Warrant of Arrest dated 14 August
1990 is defective in its language. The surrounding
facts, however, make quite clear that an amended
warrant of arrest or mission order, or a new one
correctly worded, may be issued by Immigration
Commissioner Domingo for the purpose of carrying
out an existing and valid Warrant of Exclusion
covering respondent William Gatchalian and his co-
applicants for admission.
2. The 6 July 1962 Decision of the Board of
Commissioners ("BOC") and Warrant of Exclusion
remain valid and effective and enforceable against
respondent William Gatchalian, and his co-applicants
for that matter. That Decision reversed a 6 July 1961
decision of the Board of Special Inquiry ("BSI") and
held that respondent William Gatchalian and his co-
applicants failed to subtantiate and prove their claim
to Philippine citizenship in 1961. Respondent William
Gatchalian does not claim Philippine citizenship by
any mode of entitlement subsequent to his application
for entry as a citizen of the Philippines in 1961, i.e., by
any act or circumstance subsequent to his birth and
supposed filiation as a legitimate son of Francisco
Gatchalian, also a supposed citizen of the Philippines.
3. In its Decision in Arocha vs. Vivo,1 the Supreme
Court upheld the validity and legal effect of the 6 July
1962 Decision of the BOC and the Warrant of
Exclusion not only against Pedro Gatchalian, the
particular Gatchalian who was taken into custody by
immigration authorities in 1965, but also against
Pedro's co-applicants, which include respondent
William Gatchalian. The validity of the claim to
Philippine citizenship by Pedro Gatchalian, as a
supposed descendant of Santiago Gatchalian,
allegedly a natural born citizen of the Philippines,
was directly placed in issue in the 1961-1962
proceedings before the BSI and the BOC, and by the
Solicitor General and Pedro Gatchalian in Arocha vs.
Vivo (supra). In upholding the validity and legal effect
of the 6 July 1962 BOC Decision that the Gatchalian
applicants had not substantiated their claim to
Philippine citizenship, this Court in effect ruled that
the Gatchalian applicants were not Philippine citizens,
whatever their true nationality might be.
4. Should this Court now determine to examine once
more the claim to Philippine citizenship of respondent
William Gatchalian, a detailed examination of the
facts, including the supposed status of Santiago
Gatchalian as a natural born Philippine citizenship,
shows that those claims to Philippine citizenship were
indeed not proven by respondent William Gatchalian
and his co-applicants. Since respondent William
Gatchalian does not claim to have been naturalized
as a Philippine citizen after rendition of the 6 July
1962 BOC Decision, he must accordingly be held to
be not a Philippine citizen.
5. Should the legal results thus reached seem harsh
to some, I respectfully submit that the remedy lies not
with this Court which is charged with the application of
the law as it is in fact written, but with the political
branches of the Government. It is those departments
of Government which must consider the desirability
and wisdom of enacting legislation providing for the
legalization of the entry and stay of aliens who may
be in the same situation as respondent William
Gatchalian and his co-applicants.
I
1. Petitioner argues that respondent William
Gatchalian's arrest follows as a matter of
"consequence" of the Warrant of Exclusion issued by
the BOC on 6 July 1962. This is opposed by
respondent Gatchalian upon the ground that the
Mission Order or Warrant of Arrest does not mention
that it is issued pursuant to a final order of deportation
or Warrant of Exclusion.
The Mission Order or Warrant of Arrest dated 14
August 1990 issued by petitioner Commissioner
Domingo, CID, reads in part as follows:
Intelligence Officers/Agents: All Teams
Team No.
Subject: William, Juan, Francisco, Jose,
Benjamin, Jonathan, Pedro, Gloria, Elena, all
surnamed Gatchalian
Address: Bgy. Canumay, Valenzuela, M.M.
xxx xxx xxx
1. Make a warrantless arrest under the Rules
of Criminal Procedure, Rule 113, Section 5,
for violation of the Immigration Act, Section
37, para. a; Secs. 45 and 46 Administrative
Code;
2. Make a warrantless search as an incident
to a lawful arrest under Rule 125, Section
12.
3. Deliver the suspect to the Intelligence
Division and immediately conduct custodial
interrogation, after warning the suspect that
he has a right to remain silent and a right to
counsel;
4. Prepare and file an affidavit of arrest with
the Special Prosecutor's Office and, in case
 of a search, prepare and file an inventory of
the properties seized, verified under oath
following Office Memorandum Order No. 45
xxx xxx xxx
The above Mission Order merely referred to Section
37 (a) of the Immigration Act, as amended, and to
Sections 45 and 46 of the Administrative Code
(should be Immigration Law), and that its wording
suggests that the arrest is sought to be carried out for
the purpose of carrying out a preliminary investigation
or custodial interrogation rather than for the purpose
of enforcing a final order of deportation or warrant of
exclusion. More specifically, the Mission Order failed
to mention the 6 July 1962 BOC Decision and
Warrant of Exclusion. At the same time, there is no
gainsaying the fact that the 6 July 1962 BOC Decision
and Warrant of Exclusion do exist and became final
and, as discussed in detail below, remain valid and
effective.
It should be noted also that by 6 September 1990,
Special Prosecutor Mabolo had filed a Manifestation
or Motion before the Bureau of Immigration explicitly
referring to the Warrant of Exclusion issued against
respondent William Gatchalian and his original co-
applicants for admission in 1961, which had been
passed upon in Arocha vs. Vivo (supra), and argued
that there was, therefore, no longer any need to
adduce evidence in support of the charges against
respondent William Gatchalian.
Thus it appears to me that the Warrant of Arrest or
Mission Order dated 15 August 1990, ineptly worded
as it is, may be amended so as to refer explicitly to
the mentioned Warrant of Exclusion, or a new warrant
of arrest or mission order issued similarly explicitly
referring to the Warrant of Exclusion.
2. It is indispensably necessary to refer to the Warrant
of Exclusion of 6 July 1962 which read as follows:
WHEREAS, upon review, motu proprio of the
proceedings had on the application for
admission as Philippine citizens of JOSE
GATCHALIAN, ELENA GATCHALIAN,
BENJAMIN GATCHALIAN, JUAN
GATCHALIAN, PEDRO GATCHALIAN,
GLORIA GATCHALIAN, FRANCISCO
GATCHALIAN, WILLIAM GATCHALIAN, and
JOHNSON GATCHALIAN, the Board of
Commissioners found them not entitled to
admission as Filipinos in a Decision, dated
July 6, 1962, and ordered their exclusion
as persons not properly documented;
AND WHEREAS, the Decision of the Board
of Commissioners, dated 6 July 1962,
ordering the exclusion of above-named
applicants, has now become final and
executory.
NOW THEREFORE, by virtue of the
authority vested in the undersigned by law,
you are hereby ordered to exclude the
aforenamed individuals and cause their
removal from this country to the port where
they came or to the port of the country of
which they are nationals, on the first
available transportation, in accordance with
law. (Emphasis supplied)
It should be noted that respondent William Gatchalian
was a party to the 1961-1962 proceedings before the
Bureau of Immigration which proceedings culminated
in the 6 July 1962 Decision of the BOC and the
aforequoted Warrant of Exclusion.
It is, however, insisted by respondent William
Gatchalian that the Warrant of Exclusion may no
longer be executed or implemented as against him in
view of the passage of approximately twenty-eight
(28) years since the issuance of such Warrant.
Respondent Gatchalian here relies upon Section 37
(b) of the Immigration Act which states that:
Sec. 37 (b). Deportation may be effected
under clauses 2, 3, 7, 8, 11 and 12 of the
Par. (a) of this Section at any time after
entry, but shall not be effected under any
other clauses unless the arrest in the
deportation proceedings is made within
five (5) years after the cause for deportation
arises . . . (Emphasis supplied)
Examination of the above quoted Section 37 (b)
shows that the five (5) year-limitation is
applicable only where deportation is sought to be
effected under clauses of Section 37 (a) other
than clauses 2, 7, 8, 11 and 12; that where
deportation or exclusion is sought to be effected
under clauses 2, 7, 8 11 and 12 of Section 37
(a), no period of limitation is applicable; and that, to
the contrary, deportation or exclusion may be effected
"at any time after entry."
Examination of contemporaneous facts shows that
the Government has sought to effect the exclusion
and deportation of respondent William Gatchalian
upon the ground that he had entered the country as a
citizen of the Philippines when he was not lawfully
admissible as such at the time of entry under Section
37 (a) (2), since the BOC had held him and the other
Gatchalians there involved as not properly
documented for admission, under Section 29 (a)
(17) of the Immigration Act, as amended. On 7 July
1990, the Acting Director of the National Bureau of
Investigation ("NBI") initiated the proceedings
immediately before us by writing to the Secretary of
Justice recommending that respondent William
Gatchalian, and his co-applicants covered by the
Warrant of Exclusion dated 6 July 1962, be charged
with: "Violation of Section 37 (a), paragraphs 1 and 2,
in relation to Section 45 (c), (d) and (e) of
Commonwealth Act 613 as amended, also known as
the Immigration Act of 1940." The Secretary of Justice
endorsed this recommendation to Immigration
Commissioner Domingo for investigation and
immediate action. On 20 August 1990, Special
Prosecutor Mabolo filed a charge sheet against
respondent William Gatchalian which specified the
following charges:
The respondent is an alien national who
unlawfully gained entry into the Philippines
without valid travel document in violation of
the Immigration Act; Sec. 37 par. a, sub
pars. (1) and (2);
That respondent being an alien
misrepresented himself as Philippine Citizen
by false statements and fraudulent
documents in violation of the Immigration
Act, Sec. 45, par. (c), (d) and (e).
That respondent being an alien national is an
undocumented person classified as
excludable under the Immigration Act, Sec.
29 (a) sub par. (17).
xxx xxx xxx
(Emphasis supplied)
Section 37 (a) (1) and (2), of Commonwealth Act No.
613, as amended, provides as follows:
Sec. 37 (a). The following aliens shall be
arrested upon the warrant of the
Commissioner of Immigration or of any other
officer designated by him for the purpose
and deported upon the warrant of the
Commissioner of Immigration after a
determination by the Board of
Commissioners of the existence of the
ground for deportation as charged against
the alien.
(1) Any alien who enters the Philippines after
the effective date of this act by means of
false and misleading statements or without
inspection and admission by the Immigration
authorities at a designated port of entry or at
any place other than at a designated port of
entry; (As amended by Republic Act No.
503).
 (2) An alien who enters the Philippines after
the effective date of this act, who was not
lawfully admissible at the time of entry.
xxx xxx xxx
(Emphasis supplied)
Section 37 (a) (2), quoted above, relates back to
Section 29 (a) of the Immigration Act, as amended,
which lists the classes of alien excluded from entry in
the Philippines, as follows:
Sec. 29. (a). The following classes of aliens
shall be excluded from entry into the
Philippines;
xxx xxx xxx
(17) Persons not properly documented for
admission as may be required under the
provisions of this act. (Emphasis supplied)
Thus, in the instant case, the net result is that no time
limitation is applicable in respect of the carrying out of
the Warrant of Exclusion issued in 1962.
A little reflection suffices to show why this must be so.
What was involved in 1961 when the supposed
children and grandchildren of Santiago Gatchalian
first descended upon the Philippines, was the right of
a person claiming to be a Philippine citizen to enter
for the first time and reside in the Philippines. On the
part of the Government, what was at stake was the
right to exclude from the country persons who had
claimed the right to enter the country as Philippine
citizens but who had failed to substantiate such
claimed status. Aliens seeking entry into the
Philippines do not acquire the right to be admitted into
the country by the simple passage of
time. Exclusion of persons found not to be entitled to
admission as Philippine citizens, must be
distinguished from the deportation of aliens, who,
after having been initially lawfully admitted into the
Philippines, committed acts which rendered them
liable to deportation.
Normally, aliens excluded are immediately sent back
to their country of origin. 2 This is so in cases where
the alien has not yet gained a foothold into the
country and is still seeking physical admittance.
However, when the alien had already physically
gained entry but such entry is later found unlawful or
devoid of legal basis, the alien can be excluded any
time after it is found that he was not lawfully
admissible at the time of his entry. Technically, the
alien in this case is being excluded; however, the
rules on deportation can be made to apply to him in
view of the fact that the cause for his exclusion is
discovered only after he had gained physical entry.
It is worth noting at this point that in Arocha vs.
Vivo (supra), this Court upheld the 6 July 1962 Order
of the BOC and the application of the Warrant of
Exclusion, in respect of Pedro Gatchalian, even
though more than five (5) years had elapsed by the
time the Court's Decision was promulgated on 26
October 1967.
Though respondent William Gatchalian is physically
inside the country, it is the government's basic
position that he was never lawfully admitted into the
country, having failed to prove his claim of Philippine
citizenship, and hence the Warrant of Exclusion of 6
July 1962, or a new Warrant of Exclusion for that
matter, may be executed "at any time" under Section
37 (b). It is the correctness of that basic position
which must be ascertained and in that ascertainment,
the mere passage of time is quite peripheral in
relevance considering the express language of
Section 37 (b).
My distinguished brother, Bidin, J., finally invokes Act
No. 3326, and on the basis of Section 1 thereof,
would hold that where the arrest for purpose of
deportation is made more than five (5) years after the
cause for deportation arose, the prescriptive period of
eight (8) years should be applied. Act No. 3326 which
took effect on 4 December 1926, establishes
prescriptive periods in respect of criminal
prosecutions for violations penalized not by the
Revised Penal Code but rather by special acts which
do not otherwise establish a period of prescription. In
other words, Act No. 3326 establishes a statute of
limitations for the institution of criminal proceedings. It
is, however, quite settled that deportation proceedings
cannot be assimilated to criminal prosecutions for
violation either of the Revised Penal Code or of
special statutes. 3 Moreover, Act No. 3326 purports to
be applicable only where the special act itself has not
established an applicable statute of limitations for
criminal proceedings. It cannot, however, be said that
Article 37 (b) of the Immigration Act (quoted earlier)
has not established an applicable statute of
limitations. For, precisely, Section 37 (b) of the
Immigration Act states that deportation may be
effected under certain clauses of Section 37 (a) "at
any time after entry." One of those instances is,
precisely, deportation upon the ground specified in
Clause (2) of 37 (a) which relates to "any alien who
enters the Philippines after the effective date of this
act, who was not lawfully admissible at the time of
entry." Thus, the Immigration Act, far from failing to
specify a prescriptive period for deportation under
Section 37 (a) (2), expressly authorizes deportation
under such ground "at any time after entry." It is, thus,
very difficult to see how Act No. 3326 could apply at
all to the instant case.
Finally, we must recall once more that what is actually
involved in the case at bar is exclusion,
not deportation.
3. It is urged by the government that Arocha vs.
Vivo (supra) has already resolved the claim to
Philippine citizenship of respondent William
Gatchalian adversely to him and that such ruling
constitutes res judicata. Upon the other hand,
respondent William Gatchalian vehemently argues
that neither the 6 July 1962 BOC's Decision
nor Arocha definitely settled the question of his
citizenship.
My respectful submission is that respondent William
Gatchalian's argument constitutes a highly selective
reading of both the BOC Decision and the Decision
in Arocha Written by J.B.L. Reyes, J. for a unanimous
court. The 6 July 1962 Decision of the BOC, in its
dispositive portion, reads as follows:
IN VIEW OF THE FOREGOING
CONSIDERATIONS, this Board finds and
hereby holds that the applicants [Jose
Gatchalian, Elena Gatchalian, Benjamin
Gatchalian, Juan Gatchalian, Pedro
Gatchalian, Gloria Gatchalian, Francisco
Gatchalian, William Gatchalian and Johnson
Gatchalian] herein have not satisfactorily
proved their claim to Philippine
citizenship and therefore the Decision of the
Board of Special Inquiry, dated July 6, 1961
admitting them as Filipinos is hereby
reversed, and said applicants should be, as
they are hereby ordered excluded as
persons not properly documented.
SO ORDERED. (Emphasis supplied)
Since respondent William Gatchalian and his co-
applicants in 1961 claimed the right to enter the
country as Philippine citizens, determination of their
right to enter the Philippines thus indispensably
involved the resolution of their claim to Philippine
citizenship. In other words, the determination of that
citizenship in the instant case was not a mere incident
of the case; it was rather the central and indeed the
only issue that had to be resolved by the BOC.
Review of the 1961 proceedings before the BSI
shows that the sole issue before it was the supposed
Philippine citizenship of the applicants. Thus, the very
same issue of claimed Philippine citizenship was
resolved by the BOC when it reversed the 6 July 1961
decision of the BSI. This case may be distinguished
from other types of cases, e.g., applications for public
utility franchises, petitions for change of name,
applications for registration as voter, filing of
certificates of candidacy for an elective position, etc.,
where the central issue is not citizenship although
resolution of that issue requires a determination of the
citizenship of the applicant, candidate or petitioner.
The ruling of the BOC that respondent William
Gatchalian and his co-applicants for admission as
Philippine citizens had not satisfactorily proved their
claim to Philippine citizenship, can only be reasonably
read as a holding that respondent William Gatchalian
and his co-applicants were not Philippine citizens,
whatever their true nationality or nationalities might
be. Thus, it appears to be merely semantic play to
argue, as respondent William Gatchalian argues, that
the 1962 BOC Decision did not categorically hold him
to be an "alien" and that the BOC had merely held
him and his co-applicants as "not properly
documented." The phrase "not properly documented"
was strictly and technically correct. For William
Gatchalian and his co-applicants had presented
themselves as Philippine citizens and as such entitled
to admission into the country. Since the BOC rejected
their claims to Philippine citizenship, William
Gatchalian and his co-applicants were non-Filipinos
"not properly documented for admission" under
Section 29 (a) (17), Immigration Act as amended.
4. In Arocha vs. Vivo (supra), the Supreme Court had
before it the following items:
1. The 6 July 1961 Decision of the BSI which
allowed the entry of respondent Gatchalian
and his co-applicants as citizens of the
Philippines;
2. A split BOC Decision approving the 6 July
1961 BSI decision, which had been "noted"
by two (2) Commissioners but rejected by
Commissioner Galang on 14 and 26 July
1961 and 21 August 1961, respectively;
3. The 6 July 1962 Decision of the BOC in
which the BOC had reviewed motu
proprio the Gatchalian proceedings before
the BSI and reversed the BSI decision of 6
July 1961;
4. The Warrant of Exclusion dated 6 July
1962 issued pursuant to the 6 July 1962
Decision of the BOC; and
5. A decision of the Manila Court of First
Instance dated 31 July 1965, rendered in
a habeas corpus proceeding brought to
effect the release of Pedro Gatchalian who
had been taken into custody by immigration
officials pursuant to the 6 July 1962 Warrant
of Exclusion.
The Court of First Instance ("CFI") decision ordered
Pedro Gatchalian's release upon the ground that the 6
July 1962 BOC Decision had been issued beyond the
one (1) year period for review of the BSI decision of 6
July 1961. The CFI decision was reversed and
nullified by the Supreme Court.
The Supreme Court held that the BOC Decision of 6
July 1962 had not been antedated and that it was
valid and effective to reverse and nullify the BSI order
granting admission to the Gatchalians as citizens of
the Philippines.
The Court also held that the split BOC decision of
July-August 1961 did not operate to confirm and
render final the BSI decision of 6 July 1961, the split
decision being null and void because it had not been
rendered by the BOC as a body.
The Court further rejected Pedro Gatchalian's
argument that he was not bound by the 6 July 1962
BOC Decision:
It is argued for the appellee that the minutes
in Exh. 5-A refer only to the cases of Gloria,
Francisco and Benjamin Gatchalian. But the
designation of the case is "Gloria Gatchalian,
et al." No reason is shown why the case of
these three should be considered and voted
upon separately, considering that the claims
to citizenship and entry of all were based on
the same circumstances, applicants being
the descendants of one Santiago Gatchalian,
a Filipino and that all their applications for
entry were in fact jointly resolved by the
Board of Inquiry in one single decision
(Annex 1, petition, G.R. No. L-24844). 4
I respectfully submit that the above-quoted ruling
in Arocha disposes of the contention here being made
by respondent William Gatchalian that he is not bound
by the Decision in Arocha vs. Vivo, Arocha held that
the 1962 BOC Decision was valid and effective and
William was certainly one of the applicants for
admission in the proceedings which began in 1961
before the BSI.
Respondent William Gatchalian contends that the
Court in Arocha did not find him nor any of his co-
applicants to be aliens and that all the Court did was
to hold that the 6 July 1962 Board of Commissioners
decision had not been antedated. This contention
cannot be taken seriously. As has already been
pointed out several times, the 1962 Board of
Commissioners decision held that William Gatchalian
and his eight (8) other co-applicants for
admission had not proved their claim to Philippine
citizenship; not being Filipinos, they must have been
aliens, to be excluded as persons not properly
documented. Moreover, a review of
the Rollo in Arocha vs. Vivo shows that the parties
there had expressly raised the issue of the citizenship
of Pedro Gatchalian in their pleadings. The Solicitor
General, in his fifth assignment of error, argued that
the Court of First Instance had erred in declaring
Pedro Gatchalian a Filipino, and simultaneously urged
that the 6 July 1962 decision of the Board of
Commissioners was quite correct. Pedro Gatchalian,
upon the other hand, contended that precisely
because he was a Filipino, the Bureau of Immigration
had no jurisdiction to exclude him. 5
The Court also said in Arocha:
Finally, it is well to note that appellee did not
traverse the allegation of appellant
Commissioners in their return to the writ
of Habeas Corpus that appellee Pedro
Gatchalian gained entry on the strength of a
forged cablegram, purportedly signed by the
former Secretary of Foreign Affairs Felixberto
Serrano, and apparently authorizing
appellee's documentation as a Filipino (par.
3[a] of Return, C.F.I. Rec., pp. 15-16). Such
failure to deny imports admission of its truth
by the appellee, establishes that his entry
was irregular. Neither has he appealed the
decision of the Commissioners of
Immigration to the Department Head.6
Since the physical entry of Pedro Gatchalian was
effected simultaneously with that of Francisco and
William Gatchalian, on exactly the same basis and on
the strength of the same forged cablegram allegedly
from then Secretary of Foreign Affairs Felixberto
Serrano, it must follow that the entry of Francisco and
William Gatchalian was similarly irregular. The
applications for admission of the nine (9) Gatchalians
were all jointly resolved by the BSI on 6 July 1961 on
the identical basis that they were all descendants of
Santiago Gatchalian, a supposed natural born
Philippine citizen.
5. The purported reversal of the 1962 BOC Decision
by Commissioner Nituda in 1973, cannot be given any
effect. A close examination of the same reveals that
such purported reversal was highly irregular.
Respondent William Gatchalian alleges that Mr.
Nituda, being in 1973 Acting Commissioner of
Immigration, had the authority to reverse the BOC
Decision of 6 July 1962, since he (Nituda) had
immediate control, direction and supervision of all
officers, clerks and employees of the Bureau of
Immigration. Control means, respondent Gatchalian
continues, the power to alter or modify or nullify or set
aside what a subordinate officer had done in the
performance of his duties and to substitute the
judgment of the former for that of the latter. 7
Respondent Gatchalian's view is obviously flawed.
The Commissioner's power of control over the officers
and employees of the Bureau of Immigration cannot
be compared to the power of control and supervision
vested by the Constitution in the President of the
Philippines (which was what Ham was all about), for
the Commissioner's general power of control cannot
be said to include the power to review and set aside
the prior final decision reached by the BOC. The
Commissioner of Immigration, acting alone, cannot be
regarded as an authority higher than the BOC itself
(constituted by the Commissioner and the two [2]
Associate Commissioners), in respect of matters
vested by the governing statute in such Board itself.
One of these matters is precisely the hearing and
deciding of appeals from decisions of the BSI, and
the motu proprio review of the entire proceedings of a
case within one (1) year from the promulgation of a
decision by the BSI. 8
Respondent Gatchalian points to Section 29 (b) of the
Immigration Act as amended, as empowering Nituda
to reverse the 1962 BOC Decision. Section 29 (b)
reads as follows:
Section 29. . . .
xxx xxx xxx
(b) Notwithstanding the provisions of this
section, the Commissioner of Immigration, in
his discretion, may permit to enter (sic) any
alien properly documented, who is subject to
exclusion under this section, but who is
(1) an alien lawfully resident in the
Philippines who is returning from a
temporary visit abroad;
(2) an alien applying for temporary
admission.
It is difficult to understand respondent's
argument. For one thing, Section 29 (b)
relates to an "alien properly documented"
while respondent Gatchalian precisely claims
to be a citizen of the Philippines rather than
a resident alien returning from a temporary
visit abroad or an alien applying for
temporary admission.
It should be recalled that Nituda's 1973
Decision approved a ruling rendered by a
Board of Special Inquiry in 1973 that
respondent Gatchalian was properly
documented, a ruling which was precipitated
by a "Petition for Rehearing" filed by
respondent Gatchalian and his co-applicants
in 8 March 1972 before the BSI. There are a
number of obvious defects in the action of
the BSI. Firstly, the motion for rehearing was
filed way out of time. Rule 3, B 22 of the
Immigration Rules and Regulations of 1
January 1941 provides as follows:
At any time before the alien is
deported, but not later than seven
days from the date he receives
notice of the decision on appeal of
the Board of Commissioners, the
applicant or his attorney or counsel
may file a petition for rehearing only
on the ground of newly discovered
evidence. Such petition shall be in
writing and shall set forth the nature
of the evidence discovered and the
reason or reasons why it was not
produced before. . . . (Emphasis
supplied)
Respondent Gatchalian's and his co-
applicants' motion for rehearing was filed,
not seven (7) days but rather ten (10) years
after notice of the 1962 BOC Decision had
been received by them. Secondly, Rule 3, B
25 of the Immigration Rules and Regulations
prescribed that any motion for rehearing
shall be filed only with the Board of
Commissioners; the Gatchalians' motion for
rehearing was filed with the BSI which then
purported to reopen the case "without first
securing the consent in writing of the
Commissioner of Immigration" as required by
Rule 2, D 20.
Furthermore, the purported reversal of the
1962 BOC Decision was made not by the
duly constituted BOC in 1973, but only by its
Chairman, then Acting Commissioner Nituda.
Mr. Nituda's action flew in the face of Rule 3,
B 22 of the Immigration Rules and
Regulation, which mandates that the
decision of any two (2) members of the BOC
shall prevail. It thus appears that Mr. Nituda
purported to act as if he were the entire
BOC. Indeed, even the BOC itself in 1973
could not have lawfully reversed a final
decision rendered by the BOC ten (10) years
ago. 9
We must, finally, not lose sight of the ruling in Arocha
vs. Vivo (supra) where the Supreme Court expressly
outlined the procedure to be followed by the BOC in
resolving cases before them. This court was very
explicit in holding that individual actions of members
of the BOC are legally ineffective:
. . . [T]he former Immigration Commissioners
appeared to have acted individually in this
particular instance and not as a Board. It is
shown by the different dates affixed to their
signatures that they did not actually meet to
discuss and vote on the case. This was
officially made to record by the Secretary of
Justice in his Memorandum Order No. 9, on
January 24, 1962, wherein he stated.
that for the past several years, the
Board of Commissioners of
Immigration has not met collectively
to discuss and deliberate in the
cases coming before it. [Citation
omitted]
Individual action by members of a board
plainly renders nugatory the purpose of its
constitution as a Board. The Legislature
organized the Board of Commissioners
precisely in order that they should deliberate
collectively and in order that their views and
Ideas should be exchanged and examined
before reaching a conclusion (See Ryan vs.
Humphrise, LRA 1915F 1047). This process
is of the essence of a board's action, save
where otherwise provided by law, and the
salutary effects of the rule would be lost were
the members to act individually, without
benefit of discussion.
The powers and duties of boards
and commissions may not be
exercised by the individual
members separately. Their acts are
official only when done by the
members convened in sessions,
upon a concurrence of at least a
majority and with at least
a quorum present. [Citation omitted]
Where the action needed is not of
the individuals composing a board
but of the official body, the
members must be together and act
in their official capacity, and the
action should appear on the records
of the board. [Citation omitted]
 Where a duty is entrusted to a
board, composed of different
individuals, that board can act
officially only as such, in convened
sessions, with the members, or
a quorum thereof, present. [Citation
omitted] 10 (Emphasis supplied)
The act of Mr. Nituda of reversing the 1962
Decision of the BOC could not hence be
considered as the act of the BOC itself.
The pretended act of reversal 0of Mr. Nituda
must, therefore, be stricken down and
disregarded for having been made in excess
of his lawful authority. The 1973 order of
Nituda was ineffective to vest any right upon
respondent Gatchalian who, it is worth
nothing, did not pretend to submit any newly
discovered evidence to support their claim to
Philippine citizenship already rejected by the
1962 BOC. In essence, Mr. Nituda purported
not merely to set aside the 1962 BOC
Decision but also the 1967 Decision of this
Court in Arocha vs. Vivo.
II
I turn to an examination of the underlying
facts which make up the basis of the claim of
William Gatchalian to Philippine citizenship.
The most striking feature of this claim to
Philippine citizenship is that it rests upon a
fragile web constructed out of self-serving
oral testimony, a total lack of official
documentation whether Philippine or foreign,
of negative facts and of invocation of
presumptions without proof of essential
factual premises. Put in summary terms, the
claim of William Gatchalian to Philippine
citizenship rests upon three (3) premises, to
wit:
a. that Santiago Gatchalian was a
Philippine citizen;
b. the supposed filiation of
Francisco Gatchalian as a
legitimate son of Santiago
Gatchalian, which leads to the
intermediate conclusion that
Francisco was a Philippine citizen;
and
c. the supposed filiation of William
Gatchalian as a legitimate son of
Francisco Gatchalian leading to the
final conclusion that William
Gatchalian is a Philippine citizen.
I respectfully submit that a careful
examination of the facts made of record will
show that the correctness and factual nature
of each of these layered premises are open
to very serious doubt, doubts which can only
lead to the same conclusion which the BOC
reached on 6 July 1962 when it reversed the
BSI, that is, that there was failure to prove
the Philippine citizenship of William
Gatchalian and of his eight (8) alleged
uncles, aunts and brother in 1961 when they
first arrived in the Philippines.
1. The supposed Philippine citizenship of
Santiago Gatchalian must be considered
first. Santiago was allegedly born in Binondo,
Manila, on 25 July 1905 to Pablo Pacheco
and Marciana Gatchalian. The records do
not disclose anything about Pablo Pacheco
but everyone, including William Gatchalian,
assumes that Pablo Pacheco was a Chinese
subject and never became a citizen of the
Philippine Islands. The basic claim of
Santiago was that his mother Marciana
Gatchalian was a Philippine citizen and that
Marciana was not lawfully married to Pablo
Pacheco and that consequently, he
(Santiago) was an illegitimate son of
Marciana Gatchalian.
The first point that should be made in
respect of Santiago's claim was that he had
always regarded himself as a Chinese
citizen until around 1958 or 1960, that is,
when he reached the age of 53 or 55 years.
Santiago, by his own testimony, lived the
bulk of his adult life in China where he went
in 1924 at age 19 and where he stayed for
about 13 years returning to the Philippines
for the first time in 1937. He returned in the
same year to China, stayed there for another
nine (9) years, and then came back to the
Philippines again in 1946. He once more left
the Philippines for China on 14 April 1947
and returned on 14 June 1947. Upon his
second return to the Philippines in 1946, he
documented himself as a Chinese national:
he was holder of ICR No. 7501 dated 3 May
1946. He continued to be documented as
such, the record showing that he was also
holder of an ACR No. A-219003 dated 13
January 1951. Santiago, again by his own
statement, married in China a Chinese
woman. This Chinese wife, however,
Santiago never brought or attempted to bring
to the Philippines and she allegedly died in
China in 1951, or four (4)
years after Santiago had permanently
returned to the Philippines.
In 1958, when he was 53 years of age,
Santiago obtained a residence certificate
where for the first time he described himself
as a Filipino. It was also only in 1960, that is,
when Santiago was 55 years of age, that he
filed a petition for cancellation of his ACR
obviously upon the theory that he had
always been a Philippine citizen. It was at
the hearing of his petition for cancellation of
his ACR that Santiago made his oral
statements concerning the supposed
circumstances of his birth, parentage and
marriage. Santiago's petition to cancel his
ACR was apparently made in preparation for
efforts to bring in, the succeeding year, a
whole group of persons as his supposed
descendants.
The second point that needs to be made in
respect of Santiago's claim of citizenship
resting on his supposed status as an
illegitimate son of a Filipina woman, is that
no birth certificate bearing the name of
Santiago Gatchalian was ever presented.
Instead, a baptismal certificate bearing the
name Santiago Gatchalian was presented
showing the name of Marciana Gatchalian,
Filipina, as mother, with the name of the
father unknown. There was also presented a
marriage certificate dated 1936 of Joaquin
Pacheco, alleged brother of Santiago
Gatchalian, also showing Marciana
Gatchalian as mother with the name of the
father similarly left blank. These two (2)
pieces of paper, together with Santiago's
own statements to the Citizenship Evaluation
Board as well as the statements of Joaquin
Pacheco to the same Board, constituted the
sum total of the evidence supporting
Santiago's claim to Philippine citizenship and
on the basis of which an Order dated 12 July
1960, signed by Felix S. Talabis, Associate
Commissioner, granted the petition to cancel
Santiago's alien registry.
In so issuing his Order granting cancellation
of Santiago's ACR, Commissioner Talabis
disregarded Santiago's failure to present a
birth certificate, in obvious violation of rules
of the Bureau of Immigration which expressly
require the submission of a birth certificate,
or a certified true copy thereof, in
proceedings brought for cancellation of an
ACR upon the ground that the petitioner is
an illegitimate son of a Filipina mother. 11 It is
well-settled that a baptismal certificate is
proof only of the administration of baptism to
the person named therein, and that such
certificate is not proof of anything else and
certainly not proof of parentage nor of
the status of legitimacy or illegitimacy.12
That Order also casually disregarded a
number of other things, one of which was a
document dated 1902 signed by Maxima
Gatchalian, the mother of Marciana
Gatchalian, stating that Maxima
. . . residing in the City of Manila,
mother of Marciana Gatchalian,
unmarried, of 18 years of age, her
father being dead, do hereby
freely consent to her marriage with
Pablo C. Pacheco, of Manila, and
that I know of no legal impediment
to such marriage. (Emphasis
supplied)
Such parental consent indicated that a
marriage ceremony would have taken place
shortly thereafter as a matter of course;
otherwise, the consent would have been
totally pointless. Even more importantly,
Commissioner Talabis' Order disregarded
the testimony of Santiago Gatchalian himself
in the same cancellation proceedings that he
(Santiago) believed that his parents had
been married by the Justice of the Peace of
Pasig, Rizal. 13 In his Order, Commissioner
Talabis referred to the fact that Santiago
Gatchalian had been "interchangeably using
his parental and maternal surnames. In
school, he was known as Santiago
Pacheco (Class Card for 1920-1921, Meisic
Manila; Certificates of Completion of Third
and Fourth Grades, Meisic Primary School).
But in his Special Cedula Certificate No.
676812 dated 17 September 1937, and in
tax clearance certificate issued on 2 October
1937, he is referred to as Santiago
Gatchalian; and in a Communication dated 6
June 1941, he was addressed to
as Santiago Pacheco by the Philippine
Charity Sweepstakes Office." At the very
least, such use of both paternal and
maternal surnames indicated that Santiago
was uncertain as to his supposed
illegitimacy. In our case law, moreover, the
use of a paternal surname may be regarded
as an indication of possession of the status
of a legitimate or acknowledged natural
child. 14
Perhaps the most important aspect of
Commissioner Talabis Order granting
cancellation of Santiago's ACR, is that such
Order failed to give any weight to the
presumption in law in favor of marriage, a
presumption significantly reinforced by the
parental consent given by Maxima
Gatchalian to the marriage of her daughter
Marciana Gatchalian to one Pablo C.
Pacheco. A related presumption is that in
favor of the legitimacy of offspring born of a
man and woman comporting themselves as
husband and wife. 15 I respectfully submit
that these presumptions cannot be
successfully overthrown by the simple self-
serving testimony of Santiago and of his
alleged brother Joaquin Pacheco and by the
two (2) pieces of paper (the baptismal
certificate of Santiago and the marriage
certificate of Joaquin Pacheco). It seems
relevant to point out that Joaquin Pacheco,
too, was unable to present any birth
certificate to prove his supposed common
parentage with Santiago Gatchalian; Joaquin
was allegedly born in 1902, the same
year that Maxima Gatchalian gave her
consent to the marriage of Marciana
Gatchalian and Pablo C. Pacheco.
The third point that needs to be underscored
is that Santiago Gatchalian did nothing to try
to bring into the Philippines his supposed
sons and daughters and grandchildren since
1947, when he returned permanently to the
Philippines, and until 1960. The story given
by the nine (9) supposed descendants of
Santiago when they first arrived in the
Philippines was that they had left the
People's Republic of China and had gone to
Macao in 1952 and there they stayed until
they moved to Hongkong in 1958. It should
also be noted that the youngest supposed
child of Santiago, Benjamin Gatchalian, was
said to have been born in China in 1942 and
was consequently only five (5) years old
when Santiago returned permanently to the
Philippines in 1947. In other words, Santiago
Gatchalian behaved as if the nine (9)
supposed descendants did not exist until
1960 when Commissioner Talabis' Order
cancelling Santiago's ACR was issued.
It may also be noted that Santiago's 1951
ACR application mentioned only two (2)
children of Santiago: Jose and Elena. In
1961, however, Santiago stated before the
immigration investigator that he had a total of
five (5) children: Jose, Elena, Francisco,
Gloria and Benjamin. Santiago's explanation
strongly echoes a common lawyer's excuse
for failure to seasonably file some pleading,
and, it is respectfully submitted, is equally
contrived and unpersuasive; that he had his
clerk fill up the ACR; that he gave his clerk
four (4) names (not five [5]); that the clerk
had simply failed to fill up the ACR correctly.
In its 6 July 1962 Decision, the BOC noted
that "while the two (2) names listed in
[Santiago's] [ACR application] Jose and
Elena, bear the same names as two of the
[9] applicants, the difference in the ages of
said persons compared to the said
applicants, casts serious doubts on their
Identity." 16
It is suggested in the majority opinion that
the question of citizenship of Santiago
Gatchalian is a closed matter which cannot
be reviewed by this Court; that per the
records of the Bureau of Immigration, as of
20 July 1960, Santiago Gatchalian had been
declared to be a Filipino citizen and that this
forecloses re-opening of that question thirty
(30) years later. I must, with respect,
disagree with this suggestion. The
administrative determination by the Bureau
of Immigration as of 20 July 1960 certainly
does not constitute res adjudicata that
forecloses this Court from examining the
supposed Philippine citizenship of Santiago
Gatchalian upon which private respondent
William Gatchalian seeks to rely. The Court
cannot avoid examining the Philippine
nationality claimed by Santiago Gatchalian
or, more accurately, claimed on his behalf by
William Gatchalian, considering that one of
the central issues here is the tanability or
untenability of the claim of William
Gatchalian to Philippine citizenship and
hence to entry or admission to the
Philippines as such citizen.
2. The second of the three (3) premises
noted in the beginning of this section is: that
Francisco Gatchalian was the legitimate son
of Santiago Gatchalian and therefore
followed the supposed Philippine citizenship
of Santiago. This premise has in fact two (2)
parts: (a) the physical filiation of Francisco
Gatchalian as the son of Santiago
Gatchalian; and (b) that Santiago Gatchalian
was lawfully married to the Chinese mother
of Francisco Gatchalian. This premise is
remarkable for the total absence of
documentary support for either of its two (2)
parts. Francisco was born in Amoy, China in
1931, according to Santiago. The sum total
of the evidence on this premise consists of
Francisco Gatchalian's own statement and
that of Santiago. No birth certificate or
certified true copy thereof, or comparable
documentation under Chinese law, was
submitted by either Santiago or by
Francisco. No secondary evidence of any
kind was submitted. No testimony of a
disinterested person was offered.
Santiago Gatchalian claimed to have been
married in China in 1926 to a Chinese
woman, Chua Gim Tee, out of which
marriage Francisco was allegedly born. No
documentary proof of such marriage in
China, whether primary or secondary, was
ever submitted. Neither was there ever
presented any proof of the contents of the
Chinese law on marriage in 1926 and of
compliance with its requirements.
It is firmly settled in our jurisdiction that he
who asserts and relies upon the existence of
a valid foreign marriage must prove not only
the foreign law on marriage and the fact of
compliance with the requisites of such law,
but also the fact of the marriage itself. In Yao
Kee vs. Sy-Gonzales, 17 the issue before the
Court was whether the marriage of petitioner
Yao Kee to the deceased Sy Kiat in
accordance with Chinese law and custom
had been adequately proven. In rendering a
negative answer, this Court, speaking
through Cortes, J., said:
These evidence may very well
prove the fact of marriage between
Yao Kee and Sy Kiat. However, the
same do not suffice to establish the
validity of said marriage in
accordance with Chinese law and
custom.
Custom is defined as "a rule of
conduct formed by repetition of
acts, uniformly observed (practiced)
as a social rule, legally binding and
obligatory." The law requires that "a
custom must be proved as a fact,
according to the rules of evidence"
[Article 12, Civil Code]. On this
score the Court had occasion to
state that "a local custom as a
source of right can not be
considered by a court of justice
unless such custom is properly
established by competent evidence
like any other fact" [Patriarca vs.
Orato, 7 Phil. 390, 395 (1907)]. The
same evidence, if not one of a
higher degree, should be required
of a foreign custom.
The law on foreign marriages is
provided by Article 71 of the Civil
Code which states that:
Art. 71. All marriages
performed outside the
Philippines in accordance
with the laws in force in
the country where they
were performed, and valid
there as such, shall also
be valid in this country,
except bigamous,
polygamous, or incestuous
marriages, as determined
by Philippine law.
Construing this provision of law the
Court has held that to establish a
valid foreign marriage two things
must be proven, namely: (1) the
existence of the foreign law as a
question of fact; and (2) the alleged
foreign marriage by convincing
evidence [Adong vs. Cheong Seng
Gee, 43 Phil. 43, 49
(1922). 18 (Emphasis supplied)
In the instant case, there was absolutely no proof
other than Santiago's bare assertion that a marriage
ceremony between Santiago and Chua Gim Tee had
taken place in China in accordance with Chinese law.
The contents of the relevant Chinese law on marriage
at the time of the supposed marriage, was similarly
not shown. Should it be assumed simply that the
requirements of the 1926 Chinese law on marriage
are identical with the requirements of the Philippine
law on marriage, it must be pointed out that neither
Santiago nor Francisco Gatchalian submitted proof
that any of the requirements of a valid marriage under
Philippine law had been complied with.
I respectfully urge, therefore, that the reliance in the
majority opinion upon our conflicts rule on marriage
embodied in Article 71 of the Civil Code (now Article
26 of the Family Code; then Section 19 of Act No.
3630) is unwarranted. The rule that a foreign marriage
valid in accordance with the law of the place where it
was performed shall be valid also in the Philippines,
cannot begin to operate until after the marriage
performed abroad and its compliane with the
requirements for validity under the marriage law of
the place where performed, are first shown as factual
matters. There is, in other words, no factual basis for
a presumption that a lawful marriage under Chinese
law had taken place in 1926 in China between
Santiago Gatchalian and Chua Gim Tee.
It must follow also that Francisco Gatchalian cannot
simply rely upon a presumption of legitimacy of
offspring of a valid marriage.1wphi1 As far as the
record here is concerned, there could well have been
no marriage at all in China between Santiago
Gatchalian and Chua Gim Tee (just as Santiago had
insisted that his father and mother had never married
each other) and that consequently Francisco
Gatchalian could just as well have followed the
nationality of his admittedly Chinese mother.
3. The last premise noted earlier is the supposed
filiation of William Gatchalian as a legitimate son of
Francisco which resulted in William's following the
supposed Philippine citizenship of Francisco
Gatchalian. William was, according to Santiago
Gatchalian, born in Amoy, China in 1949. Here again,
just in the case of Francisco Gatchalian, there is a
complete absence of contemporaneous documentary
evidence of the supposed filiation of William
Gatchalian as a legitimate son of Francisco
Gatchalian. 19 The only support ever presented for
such alleged filiation consisted of the oral statements
of Santiago Gatchalian, Francisco Gatchalian and
William Gatchalian. It is difficult to resist the
impression that there took place here a pyramiding of
oral statements, each resting upon another oral
statement and all going back to the supposed
bastardy of Santiago, a status suddenly discovered or
asserted by Santiago in his 55th year in life. No birth
certificate, or comparable documentation under
Chinese law, exhibiting the name of William
Gatchalian was submitted.
Francisco Gatchalian stated that he had married a
Chinese woman, Ong Siu Kiok, in Amoy in 1947
according to Chinese custom. Once again, we must
note that there was no proof submitted that a
marriage ceremony satisfying the requirements of
"Chinese custom" had ever taken place in China
between Francisco and Ong Siu Kiok; neither was
there any proof that a marriage "according to Chinese
custom" was valid and lawful under Chinese law in
1947 and of factual compliance with the requirements
of the law and custom in China concerning
marriage. 20 Ong Siu Kiok was alleged to have died in
Macau and never came to the Philippines. It must
then follow, once again, that no presumption of a
lawful marriage between Francisco Gatchalian and
his alleged Chinese wife can be invoked by William
Gatchalian. It follows still further that William
Gatchalian cannot invoke any presumption of
legitimacy in his own favor. As in the case of his
putative father Francisco, William could as well have
followed the nationality of his concededly Chinese
mother.
One final note: it might be thought that the result I
have reached is unduly harsh considering the
prolonged physical stay of William Gatchalian in the
country. But this Court must apply the law as it is in
fact written. I respectfully submit that the appropriate
recourse of respondent William Gatchalian, should he
feel that he has some humanitarian claim to a right to
stay in the Philippines, is to the political departments
of Government. Those departments of Government
may then consider the wisdom and desirability, in the
light of the interests of the country, of legislation
permitting the legalization of the entry and stay in the
Philippines of respondent William Gatchalian and
those similarly situated. Unless and until such
legislation is enacted, this Court really has no choice
save to apply and enforce our immigration law and
regulations and our law on citizenship.
Accordingly, I vote to GRANT the Petition
for Certiorari and Prohibition in G.R. Nos. 95122-23,
and to SET ASIDE the Resolution/Temporary
Restraining Order dated 7 September 1990 issued by
respondent Judge Dela Rosa in Civil Case No. 90-
5214, as well as the Order of respondent Judge
Capulong dated 6 September 1990 in Civil Case No.
3431-V-90; and to RE-AFFIRM that respondent
William Gatchalian is not a Philippine citizen.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 104235 November 18, 1993
SPOUSES CESAR & SUTHIRA ZALAMEA and
LIANA ZALAMEA, petitioners,
vs.
HONORABLE COURT OF APPEALS and
TRANSWORLD AIRLINES, INC., respondents.
Sycip, Salazar, Hernandez, Gatmaitan for petitioners.
Quisumbing, Torres & Evangelista for private-
respondent.
NOCON, J.:
Disgruntled over TransWorld Airlines, Inc.'s refusal to
accommodate them in TWA Flight 007 departing from
New York to Los Angeles on June 6, 1984 despite
possession of confirmed tickets, petitioners filed an
action for damages before the Regional Trial Court of
Makati, Metro Manila, Branch 145. Advocating
petitioner's position, the trial court categorically ruled
that respondent TransWorld Airlines (TWA) breached
its contract of carriage with petitioners and that said
breach was "characterized by bad faith." On appeal,
however, the appellate court found that while there
was a breach of contract on respondent TWA's part,
there was neither fraud nor bad faith because under
the Code of Federal Regulations by the Civil
Aeronautics Board of the United States of America it
is allowed to overbook flights.
The factual backdrop of the case is as follows:
Petitioners-spouses Cesar C. Zalamea and Suthira
Zalamea, and their daughter, Liana Zalamea,
purchased three (3) airline tickets from the Manila
agent of respondent TransWorld Airlines, Inc. for a
flight to New York to Los Angeles on June 6, 1984.
The tickets of petitioners-spouses were purchased at
a discount of 75% while that of their daughter was a
full fare ticket. All three tickets represented confirmed
reservations.
While in New York, on June 4, 1984, petitioners
received notice of the reconfirmation of their
reservations for said flight. On the appointed date,
however, petitioners checked in at 10:00 a.m., an
hour earlier than the scheduled flight at 11:00 a.m. but
were placed on the wait-list because the number of
passengers who had checked in before them had
already taken all the seats available on the flight.
Liana Zalamea appeared as the No. 13 on the wait-
list while the two other Zalameas were listed as "No.
34, showing a party of two." Out of the 42 names on
the wait list, the first 22 names were eventually
allowed to board the flight to Los Angeles, including
petitioner Cesar Zalamea. The two others, on the
other hand, at No. 34, being ranked lower than 22,
were not able to fly. As it were, those holding full-fare
tickets were given first priority among the wait-listed
passengers. Mr. Zalamea, who was holding the full-
fare ticket of his daughter, was allowed to board the
plane; while his wife and daughter, who presented the
discounted tickets were denied boarding. According to
Mr. Zalamea, it was only later when he discovered the
he was holding his daughter's full-fare ticket.
Even in the next TWA flight to Los Angeles Mrs.
Zalamea and her daughter, could not be
accommodated because it was also fully booked.
Thus, they were constrained to book in another flight
and purchased two tickets from American Airlines at a
cost of Nine Hundred Eighteen ($918.00) Dollars.
Upon their arrival in the Philippines, petitioners filed
an action for damages based on breach of contract of
air carriage before the Regional Trial Court of Makati,
Metro Manila, Branch 145. As aforesaid, the lower
court ruled in favor of petitioners in its decision 1 dated
January 9, 1989 the dispositive portion of which
states as follows:
WHEREFORE, judgment is hereby
rendered ordering the defendant to
pay plaintiffs the following amounts:
(1) US $918.00, or its peso
equivalent at the time of payment
representing the price of the tickets
bought by Suthira and Liana
Zalamea from American Airlines, to
enable them to fly to Los Angeles
from New York City;
(2) US $159.49, or its peso
equivalent at the time of payment,
representing the price of Suthira
Zalamea's ticket for TWA Flight 007;
(3) Eight Thousand Nine Hundred
Thirty-Four Pesos and Fifty
Centavos (P8,934.50, Philippine
Currency, representing the price of
Liana Zalamea's ticket for TWA
Flight 007,
(4) Two Hundred Fifty Thousand
Pesos (P250,000.00), Philippine
Currency, as moral damages for all
the plaintiffs'
(5) One Hundred Thousand Pesos
(P100,000.00), Philippine Currency,
as and for attorney's fees; and
(6) The costs of suit.
SO ORDERED. 2
On appeal, the respondent Court of Appeals held that
moral damages are recoverable in a damage suit
predicated upon a breach of contract of
carriage only where there is fraud or bad faith. Since it
is a matter of record that overbooking of flights is a
common and accepted practice of airlines in the
United States and is specifically allowed under the
Code of Federal Regulations by the Civil Aeronautics
Board, no fraud nor bad faith could be imputed on
respondent TransWorld Airlines.
Moreover, while respondent TWA was remiss in not
informing petitioners that the flight was overbooked
and that even a person with a confirmed reservation
may be denied accommodation on an overbooked
flight, nevertheless it ruled that such omission or
negligence cannot under the circumstances be
considered to be so gross as to amount to bad faith.
Finally, it also held that there was no bad faith in
placing petitioners in the wait-list along with forty-eight
(48) other passengers where full-fare first class tickets
were given priority over discounted tickets.
The dispositive portion of the decision of respondent
Court of Appeals 3 dated October 25, 1991 states as
follows:
WHEREFORE, in view of all the
foregoing, the decision under
review is hereby MODIFIED in that
the award of moral and exemplary
damages to the plaintiffs is
eliminated, and the defendant-
appellant is hereby ordered to pay
the plaintiff the following amounts:
(1) US$159.49, or its peso
equivalent at the time of the
payment, representing the price of
Suthira Zalamea's ticket for TWA
Flight 007;
(2) US$159.49, or its peso
equivalent at the time of the
payment, representing the price of
Cesar Zalamea's ticket for TWA
Flight 007;
(3) P50,000.00 as and for attorney's
fees.
(4) The costs of suit.
SO ORDERED. 4
Not satisfied with the decision, petitioners raised the
case on petition for review on certiorari and alleged
the following errors committed by the respondent
Court of Appeals, to wit:
I.
. . . IN HOLDING THAT THERE
WAS NO FRAUD OR BAD FAITH
ON THE PART OF RESPONDENT
TWA BECAUSE IT HAS A RIGHT
TO OVERBOOK FLIGHTS.
II.
. . . IN ELIMINATING THE AWARD
OF EXEMPLARY DAMAGES.
III.
. . . IN NOT ORDERING THE
REFUND OF LIANA ZALAMEA'S
TWA TICKET AND PAYMENT FOR
THE AMERICAN AIRLINES
TICKETS. 5
That there was fraud or bad faith on the part of
respondent airline when it did not allow petitioners to
board their flight for Los Angeles in spite of confirmed
tickets cannot be disputed. The U.S. law or regulation
allegedly authorizing overbooking has never been
proved. Foreign laws do not prove themselves nor
can the courts take judicial notice of them. Like any
other fact, they must be alleged and proved. 6 Written
law may be evidenced by an official publication
thereof or by a copy attested by the officer having the
legal custody of the record, or by his deputy, and
accompanied with a certificate that such officer has
custody. The certificate may be made by a secretary
of an embassy or legation, consul general, consul,
vice-consul, or consular agent or by any officer in the
foreign service of the Philippines stationed in the
foreign country in which the record is kept, and
authenticated by the seal of his office. 7
Respondent TWA relied solely on the statement of
Ms. Gwendolyn Lather, its customer service agent, in
her deposition dated January 27, 1986 that the Code
of Federal Regulations of the Civil Aeronautics Board
allows overbooking. Aside from said statement, no
official publication of said code was presented as
evidence. Thus, respondent court's finding that
overbooking is specifically allowed by the US Code of
Federal Regulations has no basis in fact.
Even if the claimed U.S. Code of Federal Regulations
does exist, the same is not applicable to the case at
bar in accordance with the principle of lex loci
contractus which require that the law of the place
where the airline ticket was issued should be applied
by the court where the passengers are residents and
nationals of the forum and the ticket is issued in such
State by the defendant airline. 8 Since the tickets were
sold and issued in the Philippines, the applicable law
in this case would be Philippine law.
Existing jurisprudence explicitly states that
overbooking amounts to bad faith, entitling the
passengers concerned to an award of moral
damages. In Alitalia Airways v. Court of
Appeals, 9 where passengers with confirmed bookings
were refused carriage on the last minute, this Court
held that when an airline issues a ticket to a
passenger confirmed on a particular flight, on a
certain date, a contract of carriage arises, and the
passenger has every right to expect that he would fly
on that flight and on that date. If he does not, then the
carrier opens itself to a suit for breach of contract of
carriage. Where an airline had deliberately
overbooked, it took the risk of having to deprive some
passengers of their seats in case all of them would
show up for the check in. For the indignity and
inconvenience of being refused a confirmed seat on
the last minute, said passenger is entitled to an award
of moral damages.
Similarly, in Korean Airlines Co., Ltd. v. Court of
Appeals, 10 where private respondent was not allowed
to board the plane because her seat had already
been given to another passenger even before the
allowable period for passengers to check in had
lapsed despite the fact that she had a confirmed ticket
and she had arrived on time, this Court held that
petitioner airline acted in bad faith in violating private
respondent's rights under their contract of carriage
and is therefore liable for the injuries she has
sustained as a result.
In fact, existing jurisprudence abounds with rulings
where the breach of contract of carriage amounts to
bad faith. In Pan American World Airways, Inc. v.
Intermediate Appellate Court, 11 where a would-be
passenger had the necessary ticket, baggage claim
and clearance from immigration all clearly and
unmistakably showing that she was, in fact, included
in the passenger manifest of said flight, and yet was
denied accommodation in said flight, this Court did
not hesitate to affirm the lower court's finding
awarding her damages.
A contract to transport passengers is quite different in
kind and degree from any other contractual relation.
So ruled this Court in Zulueta v. Pan American World
Airways, Inc. 12 This is so, for a contract of carriage
generates a relation attended with public duty a
duty to provide public service and convenience to its
passengers which must be paramount to self-interest
or enrichment. Thus, it was also held that the switch
of planes from Lockheed 1011 to a smaller Boeing
707 because there were only 138 confirmed economy
class passengers who could very well be
accommodated in the smaller planes, thereby
sacrificing the comfort of its first class passengers for
the sake of economy, amounts to bad faith. Such
inattention and lack of care for the interest of its
passengers who are entitled to its utmost
consideration entitles the passenger to an award of
moral damages. 13
Even on the assumption that overbooking is allowed,
respondent TWA is still guilty of bad faith in not
informing its passengers beforehand that it could
breach the contract of carriage even if they have
confirmed tickets if there was overbooking.
Respondent TWA should have incorporated
stipulations on overbooking on the tickets issued or to
properly inform its passengers about these policies so
that the latter would be prepared for such eventuality
or would have the choice to ride with another airline.
Respondent TWA contends that Exhibit I, the
detached flight coupon upon which were written the
name of the passenger and the points of origin and
destination, contained such a notice. An examination
of Exhibit I does not bear this out. At any rate, said
exhibit was not offered for the purpose of showing the
existence of a notice of overbooking but to show that
Exhibit I was used for flight 007 in first class of June
11, 1984 from New York to Los Angeles.
Moreover, respondent TWA was also guilty of not
informing its passengers of its alleged policy of giving
less priority to discounted tickets. While the
petitioners had checked in at the same time, and held
confirmed tickets, yet, only one of them was allowed
to board the plane ten minutes before departure time
because the full-fare ticket he was holding was given
priority over discounted tickets. The other two
petitioners were left behind.
It is respondent TWA's position that the practice of
overbooking and the airline system of boarding
priorities are reasonable policies, which when
implemented do not amount to bad faith. But the issue
raised in this case is not the reasonableness of said
policies but whether or not said policies were
incorporated or deemed written on petitioners'
contracts of carriage. Respondent TWA failed to show
that there are provisions to that effect. Neither did it
present any argument of substance to show that
petitioners were duly apprised of the overbooked
condition of the flight or that there is a hierarchy of
boarding priorities in booking passengers. It is evident
that petitioners had the right to rely upon the
assurance of respondent TWA, thru its agent in
Manila, then in New York, that their tickets
represented confirmed seats without any qualification.
The failure of respondent TWA to so inform them
when it could easily have done so thereby enabling
respondent to hold on to them as passengers up to
the last minute amounts to bad faith. Evidently,
respondent TWA placed its self-interest over the rights
of petitioners under their contracts of carriage. Such
conscious disregard of petitioners' rights makes
respondent TWA liable for moral damages. To deter
breach of contracts by respondent TWA in similar
fashion in the future, we adjudge respondent TWA
liable for exemplary damages, as well.
Petitioners also assail the respondent court's decision
not to require the refund of Liana Zalamea's ticket
because the ticket was used by her father. On this
score, we uphold the respondent court. Petitioners
had not shown with certainty that the act of
respondent TWA in allowing Mr. Zalamea to use the
ticket of her daughter was due to inadvertence or
deliberate act. Petitioners had also failed to establish
that they did not accede to said agreement. The
logical conclusion, therefore, is that both petitioners
and respondent TWA agreed, albeit impliedly, to the
course of action taken.
The respondent court erred, however, in not ordering
the refund of the American Airlines tickets purchased
and used by petitioners Suthira and Liana. The
evidence shows that petitioners Suthira and Liana
were constrained to take the American Airlines flight
to Los Angeles not because they "opted not to use (1) US$918.00 or its peso equivalent at the time of
their TWA tickets on another TWA flight" but because payment representing the price of the tickets bought
respondent TWA could not accommodate them either by Suthira and Liana Zalamea from American Airlines,
on the next TWA flight which was also fully to enable them to fly to Los Angeles from New York
booked. 14 The purchase of the American Airlines City;
tickets by petitioners Suthira and Liana was the
consequence of respondent TWA's unjustifiable (2) P50,000.00 as moral damages;
breach of its contracts of carriage with petitioners. In
accordance with Article 2201, New Civil Code, (3) P50,000.00 as exemplary damages;
respondent TWA should, therefore, be responsible for
all damages which may be reasonably attributed to
(4) P50,000.00 as attorney's fees; and
the non-performance of its obligation. In the
previously cited case of Alitalia Airways v. Court of
Appeals, 15 this Court explicitly held that a passenger (5) Costs of suit.
is entitled to be reimbursed for the cost of the tickets
he had to buy for a flight to another airline. Thus, SO ORDERED.
instead of simply being refunded for the cost of the
unused TWA tickets, petitioners should be awarded
the actual cost of their flight from New York to Los
Angeles. On this score, we differ from the trial court's
ruling which ordered not only the reimbursement of
the American Airlines tickets but also the refund of the
unused TWA tickets. To require both prestations
would have enabled petitioners to fly from New York
to Los Angeles without any fare being paid.

The award to petitioners of attorney's fees is also

justified under Article 2208(2) of the Civil Code which
allows recovery when the defendant's act or omission
has compelled plaintiff to litigate or to incur expenses
to protect his interest. However, the award for moral
damages and exemplary damages by the trial court is
excessive in the light of the fact that only Suthira and
Liana Zalamea were actually "bumped off." An award
of P50,000.00 moral damages and another
P50,000.00 exemplary damages would suffice under
the circumstances obtaining in the instant case.

WHEREFORE, the petition is hereby GRANTED and

the decision of the respondent Court of Appeals is
hereby MODIFIED to the extent of adjudging
respondent TransWorld Airlines to pay damages to
petitioners in the following amounts, to wit:
 SECOND DIVISION
[G.R. No. 119602. October 6, 2000]
WILDVALLEY SHIPPING CO., LTD. petitioner,
vs. COURT OF APPEALS and PHILIPPINE
PRESIDENT LINES INC., respondents.
DECISION
BUENA, J.:
This is a petition for review on certiorari seeking
to set aside the decision of the Court of Appeals
which reversed the decision of the lower court in CA-
G.R. CV No. 36821, entitled "Wildvalley Shipping Co.,
Ltd., plaintiff-appellant, versus Philippine President
Lines, Inc., defendant-appellant."
The antecedent facts of the case are as follows:
Sometime in February 1988, the Philippine
Roxas, a vessel owned by Philippine President Lines,
Inc., private respondent herein, arrived in Puerto
Ordaz, Venezuela, to load iron ore.Upon the
completion of the loading and when the vessel was
ready to leave port, Mr. Ezzar del Valle Solarzano
Vasquez, an official pilot of Venezuela, was
designated by the harbour authorities in Puerto Ordaz
to navigate the Philippine Roxas through the Orinoco
River.[1] He was asked to pilot the said vessel on
February 11, 1988[2] boarding it that night at 11:00
p.m.[3]
The master (captain) of the Philippine Roxas,
Captain Nicandro Colon, was at the bridge together
with the pilot (Vasquez), the vessel's third mate (then
the officer on watch), and a helmsman when the
vessel left the port[4] at 1:40 a.m. on February 12,
1988.[5] Captain Colon left the bridge when the vessel
was under way.[6]
The Philippine Roxas experienced some
vibrations when it entered the San Roque Channel at
mile 172.[7] The vessel proceeded on its way, with the
pilot assuring the watch officer that the vibration was
a result of the shallowness of the channel.[8]
Between mile 158 and 157, the vessel again
experienced some vibrations.[9] These occurred at
4:12 a.m.[10] It was then that the watch officer called
the master to the bridge.[11]
The master (captain) checked the position of the
vessel[12] and verified that it was in the centre of the
channel.[13] He then went to confirm, or set down, the
position of the vessel on the chart.[14] He ordered
Simplicio A. Monis, Chief Officer of the President
Roxas, to check all the double bottom tanks.[15]
At around 4:35 a.m., the Philippine Roxas ran
aground in the Orinoco River,[16] thus obstructing the
ingress and egress of vessels.
As a result of the blockage, the Malandrinon, a
vessel owned by herein petitioner Wildvalley Shipping
Company, Ltd., was unable to sail out of Puerto Ordaz
on that day.
Subsequently, Wildvalley Shipping Company,
Ltd. filed a suit with the Regional Trial Court of Manila,
Branch III against Philippine President Lines, Inc. and
Pioneer Insurance Company (the underwriter/insurer
of Philippine Roxas) for damages in the form of
unearned profits, and interest thereon amounting to
US $400,000.00 plus attorney's fees, costs, and
expenses of litigation. The complaint against Pioneer
Insurance Company was dismissed in an Order dated
November 7, 1988.[17]
At the pre-trial conference, the parties agreed on
the following facts:
"1. The jurisdictional facts, as specified in their
respective pleadings;
"2. That defendant PPL was the owner of the vessel
Philippine Roxas at the time of the incident;
"3. That defendant Pioneer Insurance was the
insurance underwriter for defendant PPL;
"4. That plaintiff Wildvalley Shipping Co., Inc. is the
owner of the vessel Malandrinon, whose passage was
obstructed by the vessel Philippine Roxas at Puerto
Ordaz, Venezuela, as specified in par. 4, page 2 of
the complaint;
"5. That on February 12, 1988, while the Philippine
Roxas was navigating the channel at Puerto Ordaz,
the said vessel grounded and as a result, obstructed
navigation at the channel;
"6. That the Orinoco River in Puerto Ordaz is a
compulsory pilotage channel;
"7. That at the time of the incident, the vessel,
Philippine Roxas, was under the command of the pilot
Ezzar Solarzano, assigned by the government
thereat, but plaintiff claims that it is under the
command of the master;
"8. The plaintiff filed a case in Middleburg, Holland
which is related to the present case;
"9. The plaintiff caused the arrest of the Philippine
Collier, a vessel owned by the defendant PPL;
"10. The Orinoco River is 150 miles long and it takes
approximately 12 hours to navigate out of the said
river;
"11. That no security for the plaintiff's claim was given
until after the Philippine Collier was arrested; and
"12. That a letter of guarantee, dated 12-May-88 was
issued by the Steamship Mutual Underwriters Ltd."[18]
 The trial court rendered its decision on October Hence, this petition.
16, 1991 in favor of the petitioner, Wildvalley Shipping
Co., Ltd. The dispositive portion thereof reads as The petitioner assigns the following errors to the
follows: court a quo:
"WHEREFORE, judgment is rendered for the plaintiff, 1. RESPONDENT COURT OF APPEALS
ordering defendant Philippine President Lines, Inc. to SERIOUSLY ERRED IN FINDING
pay to the plaintiff the sum of U.S. $259,243.43, as THAT UNDER PHILIPPINE LAW NO
actual and compensatory damages, and U.S. FAULT OR NEGLIGENCE CAN BE
$162,031.53, as expenses incurred abroad for its ATTRIBUTED TO THE MASTER NOR
foreign lawyers, plus additional sum of U.S. THE OWNER OF THE "PHILIPPINE
$22,000.00, as and for attorney's fees of plaintiff's ROXAS" FOR THE GROUNDING OF
local lawyer, and to pay the cost of this suit. SAID VESSEL RESULTING IN THE
BLOCKAGE OF THE RIO ORINOCO;
"Defendant's counterclaim is dismissed for lack of
merit. 2. RESPONDENT COURT OF APPEALS
SERIOUSLY ERRED IN REVERSING
"SO ORDERED."[19] THE FINDINGS OF FACTS OF THE
TRIAL COURT CONTRARY TO
Both parties appealed: the petitioner appealing EVIDENCE;
the non-award of interest with the private respondent
questioning the decision on the merits of the case. 3. RESPONDENT COURT OF APPEALS
SERIOUSLY ERRED IN FINDING
After the requisite pleadings had been filed, the THAT THE "PHILIPPINE ROXAS" IS
Court of Appeals came out with its questioned SEAWORTHY;
decision dated June 14, 1994,[20] the dispositive
portion of which reads as follows: 4. RESPONDENT COURT OF APPEALS
SERIOUSLY ERRED IN
"WHEREFORE, finding defendant-appellant's appeal DISREGARDING VENEZUELAN LAW
to be meritorious, judgment is hereby rendered DESPITE THE FACT THAT THE SAME
reversing the Decision of the lower court. Plaintiff- HAS BEEN SUBSTANTIALLY
appellant's Complaint is dismissed and it is ordered to PROVED IN THE TRIAL COURT
pay defendant-appellant the amount of Three WITHOUT ANY OBJECTION FROM
Hundred Twenty-three Thousand, Forty-two Pesos PRIVATE RESPONDENT, AND
and Fifty-three Centavos (P323,042.53) as and for WHOSE OBJECTION WAS
attorney's fees plus cost of suit. Plaintiff-appellant's INTERPOSED BELATEDLY ON
appeal is DISMISSED. APPEAL;
"SO ORDERED."[21] 5. RESPONDENT COURT OF APPEALS
SERIOUSLY ERRED IN AWARDING
Petitioner filed a motion for ATTORNEY'S FEES AND COSTS TO
reconsideration[22] but the same was denied for lack of PRIVATE RESPONDENT WITHOUT
merit in the resolution dated March 29, 1995.[23] ANY FAIR OR REASONABLE BASIS
WHATSOEVER;
6. RESPONDENT COURT OF APPEALS
SERIOUSLY ERRED IN NOT FINDING
THAT PETITIONER'S CAUSE IS
MERITORIOUS HENCE, PETITIONER
SHOULD BE ENTITLED TO
ATTORNEY'S FEES, COSTS AND
INTEREST.
The petition is without merit.
The primary issue to be determined is whether
or not Venezuelan law is applicable to the case at bar.
It is well-settled that foreign laws do not prove
themselves in our jurisdiction and our courts are not
authorized to take judicial notice of them. Like any
other fact, they must be alleged and proved.[24]
A distinction is to be made as to the manner of
proving a written and an unwritten law. The former
falls under Section 24, Rule 132 of the Rules of Court,
as amended, the entire provision of which is quoted
hereunder. Where the foreign law sought to be proved
is "unwritten," the oral testimony of expert witnesses
is admissible, as are printed and published books of
reports of decisions of the courts of the country
concerned if proved to be commonly admitted in such
courts.[25]
Section 24 of Rule 132 of the Rules of Court, as
amended, provides:
"Sec. 24. Proof of official record. -- The record of
public documents referred to in paragraph (a) of
Section 19, when admissible for any purpose, may be
evidenced by an official publication thereof or by a
copy attested by the officer having the legal custody
of the record, or by his deputy, and accompanied, if
the record is not kept in the Philippines, with a
certificate that such officer has the custody. If the
office in which the record is kept is in a foreign
country, the certificate may be made by a secretary of
the embassy or legation, consul general, consul, vice
consul, or consular agent or by any officer in the
foreign service of the Philippines stationed in the
foreign country in which the record is kept, and
authenticated by the seal of his office." (Underscoring
supplied)
The court has interpreted Section 25 (now
Section 24) to include competent evidence like the
testimony of a witness to prove the existence of a
written foreign law.[26]
In the noted case of Willamette Iron & Steel
Works vs. Muzzal,[27] it was held that:
" Mr. Arthur W. Bolton, an attorney-at-law of San
Francisco, California, since the year 1918 under oath,
quoted verbatim section 322 of the California Civil
Code and stated that said section was in force at the
time the obligations of defendant to the plaintiff were
incurred, i.e. on November 5, 1928 and December 22,
1928. This evidence sufficiently established the fact
that the section in question was the law of the State of
California on the above dates. A reading of sections
300 and 301 of our Code of Civil Procedure will
convince one that these sections do not exclude the
presentation of other competent evidence to prove the
existence of a foreign law.
"`The foreign law is a matter of fact You ask the
witness what the law is; he may, from his recollection,
or on producing and referring to books, say what it is.'
(Lord Campbell concurring in an opinion of Lord Chief
Justice Denman in a well-known English case where
a witness was called upon to prove the Roman laws
of marriage and was permitted to testify, though he
referred to a book containing the decrees of the
Council of Trent as controlling, Jones on Evidence,
Second Edition, Volume 4, pages 3148-3152.) x x x.
We do not dispute the competency of Capt.
Oscar Leon Monzon, the Assistant Harbor Master and
Chief of Pilots at Puerto Ordaz, Venezuela, [28] to testify
on the existence of the Reglamento General de la
Ley de Pilotaje (pilotage law of Venezuela)[29] and
the Reglamento Para la Zona de Pilotaje No 1 del
Orinoco (rules governing the navigation of the
Orinoco River). Captain Monzon has held the
aforementioned posts for eight years.[30] As such he is
in charge of designating the pilots for maneuvering
and navigating the Orinoco River. He is also in charge
of the documents that come into the office of the
harbour masters.[31]
Nevertheless, we take note that these written
laws were not proven in the manner provided by
Section 24 of Rule 132 of the Rules of Court.
The Reglamento General de la Ley de
Pilotaje was published in the Gaceta Oficial[32]of the
Republic of Venezuela. A photocopy of the Gaceta
Oficial was presented in evidence as an official
publication of the Republic of Venezuela.
The Reglamento Para la Zona de Pilotaje No 1
del Orinoco is published in a book issued by
the Ministerio de Comunicaciones of Venezuela.
[33]
Only a photocopy of the said rules was likewise
presented as evidence.
Both of these documents are considered in
Philippine jurisprudence to be public documents for
they are the written official acts, or records of the
official acts of the sovereign authority, official bodies
and tribunals, and public officers of Venezuela.[34]
For a copy of a foreign public document to be
admissible, the following requisites are mandatory: (1)
It must be attested by the officer having legal custody
of the records or by his deputy; and (2) It must be
accompanied by a certificate by a secretary of the
embassy or legation, consul general, consul, vice
consular or consular agent or foreign service officer,
and with the seal of his office. [35] The latter
requirement is not a mere technicality but is intended
to justify the giving of full faith and credit to the
genuineness of a document in a foreign country.[36]
It is not enough that the Gaceta Oficial, or a
book published by the Ministerio de
Comunicaciones of Venezuela, was presented as
evidence with Captain Monzon attesting it. It is also
required by Section 24 of Rule 132 of the Rules of
Court that a certificate that Captain Monzon, who
attested the documents, is the officer who had legal
custody of those records made by a secretary of the
embassy or legation, consul general, consul, vice
consul or consular agent or by any officer in the
foreign service of the Philippines stationed in
Venezuela, and authenticated by the seal of his office
accompanying the copy of the public document. No
such certificate could be found in the records of the
case.
With respect to proof of written laws, parol proof
is objectionable, for the written law itself is the best
evidence. According to the weight of authority, when a
foreign statute is involved, the best evidence rule
requires that it be proved by a duly authenticated
copy of the statute.[37]
At this juncture, we have to point out that the
Venezuelan law was not pleaded before the lower
court.
A foreign law is considered to be pleaded if there
is an allegation in the pleading about the existence of
the foreign law, its import and legal consequence on
the event or transaction in issue.[38]
A review of the Complaint[39] revealed that it was
never alleged or invoked despite the fact that the
grounding of the M/V Philippine Roxas occurred
within the territorial jurisdiction of Venezuela.
We reiterate that under the rules of private
international law, a foreign law must be properly
pleaded and proved as a fact. In the absence of
pleading and proof, the laws of a foreign country, or
state, will be presumed to be the same as our own
local or domestic law and this is known as processual
presumption.[40]
 Having cleared this point, we now proceed to a
thorough study of the errors assigned by the
petitioner.
Petitioner alleges that there was negligence on
the part of the private respondent that would warrant
the award of damages.
There being no contractual obligation, the
private respondent is obliged to give only the
diligence required of a good father of a family in
accordance with the provisions of Article 1173 of the
New Civil Code, thus:
Art. 1173. The fault or negligence of the obligor
consists in the omission of that diligence which is
required by the nature of the obligation and
corresponds with the circumstances of the persons, of
the time and of the place. When negligence shows
bad faith, the provisions of articles 1171 and 2201,
paragraph 2, shall apply.
If the law or contract does not state the diligence
which is to be observed in the performance, that
which is expected of a good father of a family shall be
required.
The diligence of a good father of a family
requires only that diligence which an ordinary prudent
man would exercise with regard to his own
property. This we have found private respondent to
have exercised when the vessel sailed only after the
"main engine, machineries, and other auxiliaries"
were checked and found to be in good running
condition;[41] when the master left a competent officer,
the officer on watch on the bridge with a pilot who is
experienced in navigating the Orinoco River; when
the master ordered the inspection of the vessel's
double bottom tanks when the vibrations occurred
anew.[42]
The Philippine rules on pilotage, embodied in
Philippine Ports Authority Administrative Order No.
03-85, otherwise known as the Rules and Regulations
Governing Pilotage Services, the Conduct of Pilots
and Pilotage Fees in Philippine Ports enunciate the
duties and responsibilities of a master of a vessel and
its pilot, among other things.
The pertinent provisions of the said
administrative order governing these persons are
quoted hereunder:
Sec. 11. Control of Vessels and Liability for
Damage. -- On compulsory pilotage grounds, the
Harbor Pilot providing the service to a vessel shall be
responsible for the damage caused to a vessel or to
life and property at ports due to his negligence or
fault. He can be absolved from liability if the accident
is caused by force majeure or natural calamities
provided he has exercised prudence and extra
diligence to prevent or minimize the damage.
The Master shall retain overall command of the vessel
even on pilotage grounds whereby he can
countermand or overrule the order or command of the
Harbor Pilot on board. In such event, any damage
caused to a vessel or to life and property at ports by
reason of the fault or negligence of the Master shall
be the responsibility and liability of the registered
owner of the vessel concerned without prejudice to
recourse against said Master.
Such liability of the owner or Master of the vessel or
its pilots shall be determined by competent authority
in appropriate proceedings in the light of the facts and
circumstances of each particular case.
xxx
Sec. 32. Duties and Responsibilities of the Pilots or
Pilots Association. -- The duties and responsibilities of
the Harbor Pilot shall be as follows:
xxx
f) A pilot shall be held responsible for the direction of a
vessel from the time he assumes his work as a pilot
thereof until he leaves it anchored or berthed safely;
Provided, however, that his responsibility shall cease
at the moment the Master neglects or refuses to carry
out his order."
The Code of Commerce likewise provides for
the obligations expected of a captain of a vessel, to
wit:
Art. 612. The following obligations shall be inherent in
the office of captain:
xxx
"7. To be on deck on reaching land and to take
command on entering and leaving ports, canals,
roadsteads, and rivers, unless there is a pilot on
board discharging his duties. x x x.
The law is very explicit. The master remains the
overall commander of the vessel even when there is a
pilot on board. He remains in control of the ship as he
can still perform the duties conferred upon him by
law[43] despite the presence of a pilot who is
temporarily in charge of the vessel. It is not required
of him to be on the bridge while the vessel is being
navigated by a pilot.
However, Section 8 of PPA Administrative Order
No. 03-85, provides:
Sec. 8. Compulsory Pilotage Service - For entering a
harbor and anchoring thereat, or passing through
rivers or straits within a pilotage district, as well as
docking and undocking at any pier/wharf, or shifting
from one berth or another, every vessel engaged in
coastwise and foreign trade shall be under
compulsory pilotage.
xxx.
The Orinoco River being a compulsory pilotage
channel necessitated the engaging of a pilot who was
presumed to be knowledgeable of every shoal, bank,
deep and shallow ends of the river. In his deposition,
pilot Ezzar Solarzano Vasquez testified that he is an
official pilot in the Harbour at Port Ordaz, Venezuela,
[44]
and that he had been a pilot for twelve (12) years.
[45]
He also had experience in navigating the waters of
the Orinoco River.[46]
The law does provide that the master can
countermand or overrule the order or command of the
harbor pilot on board. The master of the Philippine
Roxas deemed it best not to order him (the pilot) to
stop the vessel,[47] mayhap, because the latter had
assured him that they were navigating normally
before the grounding of the vessel.[48] Moreover, the
pilot had admitted that on account of his experience
he was very familiar with the configuration of the river
as well as the course headings, and that he does not
even refer to river charts when navigating the Orinoco
River.[49]
Based on these declarations, it comes as no
surprise to us that the master chose not to regain
control of the ship. Admitting his limited knowledge of
the Orinoco River, Captain Colon relied on the
knowledge and experience of pilot Vasquez to guide
the vessel safely.
Licensed pilots, enjoying the emoluments of
compulsory pilotage, are in a different class from
ordinary employees, for they assume to have a skill
and a knowledge of navigation in the particular waters
over which their licenses extend superior to that of the
master; pilots are bound to use due diligence and
reasonable care and skill. A pilot's ordinary skill is in
proportion to the pilot's responsibilities, and implies a
knowledge and observance of the usual rules of
navigation, acquaintance with the waters piloted in
their ordinary condition, and nautical skill in avoiding
all known obstructions. The character of the skill and
knowledge required of a pilot in charge of a vessel on
the rivers of a country is very different from that which
enables a navigator to carry a vessel safely in the
ocean. On the ocean, a knowledge of the rules of
navigation, with charts that disclose the places of
hidden rocks, dangerous shores, or other dangers of
the way, are the main elements of a pilot's knowledge
and skill. But the pilot of a river vessel, like the harbor
pilot, is selected for the individual's personal
knowledge of the topography through which the
vessel is steered."[50]
We find that the grounding of the vessel is
attributable to the pilot. When the vibrations were first
felt the watch officer asked him what was going on,
and pilot Vasquez replied that "(they) were in the
middle of the channel and that the vibration was as
(sic) a result of the shallowness of the channel."[51]
Pilot Ezzar Solarzano Vasquez was assigned to
pilot the vessel Philippine Roxas as well as other
vessels on the Orinoco River due to his knowledge of
the same. In his experience as a pilot, he should have
been aware of the portions which are shallow and
which are not. His failure to determine the depth of
the said river and his decision to plod on his set
course, in all probability, caused damage to the
vessel. Thus, we hold him as negligent and liable for
its grounding.
In the case of Homer Ramsdell Transportation
Company vs. La Compagnie Generale
Transatlantique, 182 U.S. 406, it was held that:
x x x The master of a ship, and the owner also, is
liable for any injury done by the negligence of the
crew employed in the ship. The same doctrine will
apply to the case of a pilot employed by the master or
owner, by whose negligence any injury happens to a
third person or his property: as, for example, by a
collision with another ship, occasioned by his
negligence. And it will make no difference in the case
that the pilot, if any is employed, is required to be a
licensed pilot; provided the master is at liberty to take
a pilot, or not, at his pleasure, for in such a case the
master acts voluntarily, although he is necessarily
required to select from a particular class. On the other
hand, if it is compulsive upon the master to take a
pilot, and, a fortiori, if he is bound to do so under
penalty, then, and in such case, neither he nor the
owner will be liable for injuries occasioned by the
negligence of the pilot; for in such a case the pilot
cannot be deemed properly the servant of the master
or the owner, but is forced upon them, and the
maxim Qui facit per alium facit per se does not apply."
(Underscoring supplied)
Anent the river passage plan, we find that, while
there was none,[52] the voyage has been sufficiently
planned and monitored as shown by the following
actions undertaken by the pilot, Ezzar Solarzano
Vasquez, to wit: contacting the radio marina via VHF
for information regarding the channel, river traffic,
[53]
soundings of the river, depth of the river, bulletin on
the buoys.[54] The officer on watch also monitored the
voyage.[55]
We, therefore, do not find the absence of a river
passage plan to be the cause for the grounding of the
vessel.
The doctrine of res ipsa loquitur does not apply
to the case at bar because the circumstances
surrounding the injury do not clearly indicate
negligence on the part of the private respondent. For
the said doctrine to apply, the following conditions
must be met: (1) the accident was of such character
as to warrant an inference that it would not have
happened except for defendant's negligence; (2) the
accident must have been caused by an agency or
instrumentality within the exclusive management or
control of the person charged with the negligence
complained of; and (3) the accident must not have
been due to any voluntary action or contribution on
the part of the person injured.[56]
As has already been held above, there was a
temporary shift of control over the ship from the
master of the vessel to the pilot on a compulsory
pilotage channel. Thus, two of the requisites
necessary for the doctrine to apply, i.e., negligence
and control, to render the respondent liable, are
absent.
As to the claim that the ship was unseaworthy,
we hold that it is not.
The Lloyds Register of Shipping confirmed the
vessels seaworthiness in a Confirmation of Class
issued on February 16, 1988 by finding that "the
above named ship (Philippine Roxas) maintained the
class "+100A1 Strengthened for Ore Cargoes, Nos. 2
and 8 Holds may be empty (CC) and +LMC" from
31/12/87 up until the time of casualty on or about
12/2/88."[57] The same would not have been issued
had not the vessel been built according to the
standards set by Lloyd's.
Samuel Lim, a marine surveyor, at Lloyd's
Register of Shipping testified thus:
"Q Now, in your opinion, as a surveyor, did top
side tank have any bearing at all to the
seaworthiness of the vessel?
"A Well, judging on this particular vessel, and also
basing on the class record of the vessel,
wherein recommendations were made on
the top side tank, and it was given sufficient
time to be repaired, it means that the vessel
is fit to travel even with those defects on the
ship.
"COURT
What do you mean by that? You explain. The
vessel is fit to travel even with defects? Is
that what you mean? Explain.
"WITNESS
"A Yes, your Honor. Because the class society
which register (sic) is the third party looking
into the condition of the vessel and as far as
their record states, the vessel was class or
maintained, and she is fit to travel during that
voyage."
xxx
"ATTY. MISA
Before we proceed to other matter, will you kindly
tell us what is (sic) the 'class +100A1
Strengthened for Ore Cargoes', mean?
"WITNESS
"A Plus 100A1 means that the vessel was built
according to Lloyd's rules and she is capable
of carrying ore bulk cargoes, but she is
particularly capable of carrying Ore Cargoes
with No. 2 and No. 8 holds empty.
xxx
"COURT
The vessel is classed, meaning?
"A Meaning she is fit to travel, your Honor, or
seaworthy."[58]
It is not required that the vessel must be
perfect. To be seaworthy, a ship must be reasonably
fit to perform the services, and to encounter the
ordinary perils of the voyage, contemplated by the
parties to the policy.[59]
As further evidence that the vessel was
seaworthy, we quote the deposition of pilot Vasquez:
"Q Was there any instance when your orders or
directions were not complied with because of
the inability of the vessel to do so?
"A No.
"Q. Was the vessel able to respond to all your
commands and orders?
"A. The vessel was navigating normally.[60]
Eduardo P. Mata, Second Engineer of the
Philippine Roxas submitted an accident report
wherein he stated that on February 11, 1988, he
checked and prepared the main engine, machineries
and all other auxiliaries and found them all to be in
good running condition and ready for
maneuvering. That same day the main engine, bridge
and engine telegraph and steering gear motor were
also tested.[61] Engineer Mata also prepared the fuel
for consumption for maneuvering and checked the
engine generators.[62]
Finally, we find the award of attorneys fee
justified.
Article 2208 of the New Civil Code provides that:
"Art. 2208. In the absence of stipulation, attorney's
fees and expenses of litigation, other than judicial
costs, cannot be recovered, except:
xxx
"(11) In any other case where the court deems it just
and equitable that attorney's fees and expenses of
litigation should be recovered.
xxx
Due to the unfounded filing of this case, the
private respondent was unjustifiably forced to litigate,
thus the award of attorneys fees was proper.
WHEREFORE, IN VIEW OF THE FOREGOING,
the petition is DENIED and the decision of the Court
of Appeals in CA G.R. CV No. 36821 is AFFIRMED.
SO ORDERED.