ART.
791
Dizon-Rivera vs. Dizon (see Art. 788)
Vda. De Villaflor vs. Juico (see Art. 788)
G.R. No. L-10763 April 29, 1961
DELFIN YAMBAO, plaintiff-appellant,
vs.
ANGELINA GONZALES, ET AL., defendants-appellees.
Marcial G. Mendiola for plaintiff-appellant.
Onofre P. Guevara for defendants-appellees.
BAUTISTA ANGELO, J.:
This is an action filed by Delfin Yambao against Angelina
Gonzales and Maria Pablo praying that the latter be
ordered to appoint and employ him as tenant during his
lifetime on the parcels of land bequeathed to and
inherited by them from Maria Gonzales, as well as to
deliver to him the value of the harvests belonging to
him as tenant of said parcels of land. In their answer,
defendants averred that the provisions of the will relied
upon by plaintiff is not mandatory; that the
determination of who should be the tenant of the land
is vested in a special court; and that the present action
is not the proper remedy.
After trial, the court dismissed the complaint for lack of
sufficient cause of action. It held that the provisions of
the will relied upon by plaintiff merely amount to a
suggestion to the defendants who, though morally
bound, are not legally compelled to follow said
suggestion, invoking as authority Article 797 of the old
Civil Code. Plaintiff has appealed.
The pertinent provisions of the will relied upon by
appellant read as follows:
Dapat din naman malaman ng dalawa kong
tagapagmana na sila MARIA PABLO at ANGELINA
GONZALES na sila ay may dapat TUNGKULIN O
GANGPANAN GAYA ng mga sumusunod:
xxx xxx xxx
(2) Pahihintulutan nila na si Delfin Yambao ang
makapagtrabajo ng bukid habang panahon, at
ang nasabing bukid ay isasailalim ng
pamamahala ng Albasea samantalang ang bukid
ay nasa usapin at may utang pa.
It appears that on August 10, 1942, Maria Gonzales
executed a will bequeathing to appellees all her
properties situated in Sta. Rosa, Laguna. The will was
probated in 1948. Immediately, thereafter, appellant
went to appellees to request that he be placed as tenant
of the riceland which, by an express provision of said
will, they were directed to give to him for cultivation, as
tenant, and when they refused alleging that they had
already given it to another tenant he filed the present
action.
In holding that the provisions of the will relied upon by
appellant imposes only a moral but not
a legal obligation, the trial court went on to consider the
import of the word "Pahihintulutan" employed with
reference to appellant. In its opinion said word only
means to permit or to allow, but not to direct appellees
to appoint appellant as tenant. Rather, it opines, it
merely contains a suggestion to employ because the
testatrix did not use the words "ipinaguutos ko" which
she used in connection with other provisions of the will,
so that there is no clear indication that it was her
intention to make such provision compulsory.
We believe, however, that the trial court has not
properly interpreted the real import of the wish of the
testatrix. Analyzing it carefully we will find that the same
contains a clear directive to employ appellant as may be
seen from the words preceding the word
"pahihintulutan", which say: "Dapat din naman
malaman ng dalawa kong tagapagmana na sila MARIA
PABLO at ANGELINA GONZALES na sila ay may dapat
TUNGKULIN O GANGPANAN GAYA ng mga sumusunod."
The words 'dapat TUNGKULIN O GANGPANAN" mean to
do or to carry out as a mandate or directive, and having
reference to the word "pahihintulutan", can convey no
other meaning than to impose a duty upon appellees.
To follow the interpretation given by the trial court
would be to devoid the wish of the testatrix of its real
and true meaning.
Article 797 of the old Civil Code, invoked by the trial
court, is inapplicable. That refers to an institution of an
heir intended to be conditional by providing that a
statement to the effect cannot be considered as a
condition unless it appears clearly that such is the
intention of the testator. We are not faced here with any
conditional institution of heirship. What we have is a
clear-cut mandate which the heirs cannot fail to carry
out.
WHEREFORE, the decision appealed from is reversed.
Appellees are hereby ordered to employ appellant as
tenant immediately after this decision has become final.
Costs against appellees.
ART. 792
Balanay, Jr. vs. Martinez (see Art. 780)
ART. 795
G.R. No. L-14074 November 7, 1918
In the matter of the probation of the will of Jose Riosa.
MARCELINO CASAS, applicant-appellant,
Vicente de Vera for petitioner-appellant.
MALCOLM, J.:
The issue which this appeal presents is whether in the
Philippine Islands the law existing on the date of the
execution of a will, or the law existing at the death of
the testator, controls.
Jose Riosa died on April 17, 1917. He left a will made in
the month of January, 1908, in which he disposed of an
estate valued at more than P35,000. The will was duly
executed in accordance with the law then in force,
namely, section 618 of the Code of Civil Procedure. The
will was not executed in accordance with Act No. 2645,
amendatory of said section 618, prescribing certain
additional formalities for the signing and attestation of
wills, in force on and after July 1, 1916. In other words,
the will was in writing, signed by the testator, and
attested and subscribed by three credible witnesses in
the presence of the testator and of each other; but was
not signed by the testator and the witnesses on the left
margin of each and every page, nor did the attestation
state these facts. The new law, therefore, went into
effect after the making of the will and before the death
of the testator, without the testator having left a will
that conforms to the new requirements.
Section 618 of the Code of Civil Procedure reads:
No will, except as provided in the preceding
section, shall be valid to pass any estate, real or
personal, nor charge or affect the same, unless
it be in writing and signed by the testator, or by
the testator's name written by some other
person in his presence, and by his express
direction, and attested and subscribed by three
or more credible witnesses in the presence of
the testator and of each other. The attestation
shall state the fact that the testator signed the
will, or caused it to be signed by some other
person, at his express direction, in the presence
of three witnesses, and that they attested and
subscribed it in his presence and in the
presence of each other. But the absence of such
form of attestation shall not render the will
invalid if it is proven that the will was in fact
signed and attested as in this section provided.
Act No. 2645 has amended section 618 of the Code of
Civil Procedure so as to make said section read as
follows:
SEC. 618. Requisites of will. No will, except as
provided in the preceding section, shall be valid
to pass any estate, real or personal, nor charge
or affect the same, unless it be written in the
language or dialect known by the testator and
signed by him, or by the testator's name written
by some other person in his presence, and by
his express direction, and attested and
subscribed by three or more credible witnesses
in the presence of the testator and of each
other. The testator or the person requested by
him to write his name and the instrumental
witnesses of the will, shall also sign, as
aforesaid, each, and every page thereof, on the
left margin, and said pages shall be numbered
correlatively in letters placed on the upper part
of each sheet. The attestation shall state the
number of sheets or pages used, upon which
the will is written, and the fact that the testator
signed the will and every page thereof, or
caused some other person to write his name,
under his express direction, in the presence of
three witnesses, and the latter witnessed and
signed the will and all pages thereof in the
presence of the testator and of each other.
This court has heretofore held in a decision handed
down by the Chief Justice, as to a will made after the
date Act No. 2645 went into effect, that it must comply
with the provisions of this law. (Caraig vs Tatlonghari, R.
G. No. 12558, dated March 23, 1918 [not published].)
The court has further held in a decision handed down by
Justice Torres, as to will executed by a testator whose
death took place prior to the operative date of Act No.
2645, that the amendatory act is inapplicable.
(Bona vs. Briones, [1918], 38 Phil., 276.) The instant
appeal presents an entirely different question. The will
was execute prior to the enactment of Act No. 2645 and
the death occurred after the enactment of this law.
There is a clear cleavage of authority among the cases
and the text-writers, as to the effect of a change in the
statutes prescribing the formalities necessary to be
observed in the execution of a will, when such change is
made intermediate to the execution of a will and the
death of a testator. (See generally 40 Cyc., 1076. and any
textbook on Wills, and Lane's Appeal from Probate
[1889], 57 Conn., 182.) The rule laid down by the courts
in many jurisdictions is that the statutes in force at the
testator's death are controlling, and that a will not
executed in conformity with such statutes is invalid,
although its execution was sufficient at the time it was
made. The reasons assigned for applying the later
statute are the following: "As until the death of the
testator the paper executed by him, expressing his
wishes, is not a will, but a mere inchoate act which may
or may not be a will, the law in force at the testator's
death applies and controls the proof of the will."
(Sutton vs. Chenault [1855], 18 Ga., 1.) Were we to
accept the foregoing proposition and the reasons
assigned for it, it would logically result that the will of
Jose Riosa would have to be held invalid.
The rule prevailing in many other jurisdictions is that the
validity of the execution of a will must be tested by the
statutes in force at the time of its execution and that
statutes subsequently enacted have no retrospective
effect. This doctrine is believed to be supported by the
weight of authority. It was the old English view; in
Downs (or Downing) vs. Townsend (Ambler, 280), Lord
Hardwicke is reported to have said that "the general rule
as to testaments is, that the time of the testament, and
not the testator's death, is regarded." It is also the
modern view, including among other decisions one of
the Supreme Court of Vermont from which State many
of the sections of the Code if Civil Procedure of the
Philippine Islands relating to wills are taken.
(Giddings vs. Turgeon [1886], 58 Vt., 103.)
Of the numerous decisions of divergent tendencies, the
opinion by the learned Justice Sharswood
(Taylor vs.Mitchell [1868], 57 Pa. St., 209) is regarded to
be the best considered. In this opinion is found the
following:
Retrospective laws generally if not universally
work injustice, and ought to be so construed
only when the mandate of the legislature is
imperative. When a testator makes a will,
formally executed according to the
requirements of the law existing at the time of
its execution, it would unjustly disappoint his
lawful right of disposition to apply to it a rule
subsequently enacted, though before his death.
While it is true that every one is presumed to
know the law, the maxim in fact is inapplicable
to such a case; for he would have an equal right
to presume that no new law would affect his
past act, and rest satisfied in security on that
presumption. . . . It is true, that every will is
ambulatory until the death of the testator, and
the disposition made by it does not actually take
effect until then. General words apply to the
property of which the testator dies possessed,
and he retains the power of revocation as long
as he lives. The act of bequeathing or devising,
however, takes place when the will is executed,
though to go into effect at a future time.
A third view, somewhat larger in conception than the
preceding one, finding support in the States of Alabama
and New York, is that statutes relating to the execution
of wills, when they increase the necessary formalities,
should be construed so as not to impair the validity of a
will already made and, when they lessen the formalities
required, should be construed so as to aid wills
defectively executed according to the law in force at the
time of their making (Hoffman vs. Hoffman, [1855], 26
Ala., 535; Price vs. Brown, 1 Bradf., Surr. N.Y., 252.)
This court is given the opportunity to choose between
the three rules above described. Our selection, under
such circumstances, should naturally depend more on
reason than on technicality. Above all, we cannot lose
sight of the fact that the testator has provided in detail
for the disposition of his property and that his desires
should be respected by the courts. Justice is a powerful
pleader for the second and third rules on the subject.
The plausible reasoning of the authorities which back
the first proposition is, we think, fallacious. The act of
bequeathing or devising is something more than
inchoate or ambulatory. In reality, it becomes a
completed act when the will is executed and attested
according to the law, although it does not take effect on
the property until a future time.lawphil.net
It is, of course, a general rule of statutory construction,
as this court has said, that "all statutes are to be
construed as having only a prospective operation unless
the purpose and intention of the Legislature to give
them a retrospective effect is expressly declared or is
necessarily implied from the language used. In every
case of doubt, the doubt must be resolved against the
restrospective effect." (Montilla vs. Corporacion de PP.
Agustinos [1913], 24 Phil., 220. See also Chew
Heong vs. U.S. [1884], 112 U.S., 536; U.S. vs American
Sugar Ref. Co. [1906], 202 U.S., 563.) Statute law, as
found in the Civil Code, is corroborative; article 3
thereof provides that "laws shall not have a retroactive
effect, unless therein otherwise prescribed." The
language of Act No. 2645 gives no indication of
retrospective effect. Such, likewise, has been the
uniform tendency of the Supreme Court of the
Philippine Islands on cases having special application to
testamentary succession. (Abello vs. Kock de Monaterio
[1904], 3 Phil., 558; Timbol vs. Manalo [1906], 6 Phil.,
254; Bona vs. Briones, supra; In the Matter of the
Probation of the Will of Bibiana Diquia [1918], R. G.
No. 13176, 1 concerning the language of the Will. See
also section 617, Code of Civil Procedure.)
The strongest argument against our accepting the first
two rules comes out of section 634 of the Code of Civil
Procedure which, in negative terms, provides that a will
shall be disallowed in either of five cases, the first being
"if not executed and attested as in this Act provided."
Act No. 2645 has, of course, become part and parcel of
the Code of Civil Procedure. The will in question is
admittedly not executed and attested as provided by the
Code of Civil Procedure as amended. Nevertheless, it is
proper to observe that the general principle in the law
of wills inserts itself even within the provisions of said
section 634. Our statute announces a positive rule for
the transference of property which must be complied
with as completed act at the time of the execution, so
far as the act of the testator is concerned, as to all
testaments made subsequent to the enactment of Act
No. 2645, but is not effective as to testaments made
antecedent to that date.
To answer the question with which we began this
decision, we adopt as our own the second rule,
particularly as established by the Supreme Court of
Pennsylvania. The will of Jose Riosa is valid.
The order of the Court of First Instance for the Province
of Albay of December 29, 1917, disallowing the will of
Jose Riosa, is reversed, and the record shall be returned
to the lower court with direction to admit the said will
to probate, without special findings as to costs. So
ordered.
G.R. No. L-7188 August 9, 1954
In re: Will and Testament of the deceased REVEREND
SANCHO ABADIA.
SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-
appellees,
vs.
MIGUEL ABADIA, ET AL., oppositors-appellants.
Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and
B. G. Advincula for appellants.
C. de la Victoria for appellees.
MONTEMAYOR, J.:
On September 6, 1923, Father Sancho Abadia, parish
priest of Talisay, Cebu, executed a document purporting
to be his Last Will and Testament now marked Exhibit
"A". Resident of the City of Cebu, he died on January 14,
1943, in the municipality of Aloguinsan, Cebu, where he
was an evacuee. He left properties estimated at P8,000
in value. On October 2, 1946, one Andres Enriquez, one
of the legatees in Exhibit "A", filed a petition for its
probate in the Court of First Instance of Cebu. Some
cousins and nephews who would inherit the estate of
the deceased if he left no will, filed opposition.
During the hearing one of the attesting witnesses, the
other two being dead, testified without contradiction
that in his presence and in the presence of his co-
witnesses, Father Sancho wrote out in longhand Exhibit
"A" in Spanish which the testator spoke and understood;
that he (testator) signed on he left hand margin of the
front page of each of the three folios or sheets of which
the document is composed, and numbered the same
with Arabic numerals, and finally signed his name at the
end of his writing at the last page, all this, in the
presence of the three attesting witnesses after telling
that it was his last will and that the said three witnesses
signed their names on the last page after the attestation
clause in his presence and in the presence of each other.
The oppositors did not submit any evidence.
The learned trial court found and declared Exhibit "A" to
be a holographic will; that it was in the handwriting of
the testator and that although at the time it was
executed and at the time of the testator's death,
holographic wills were not permitted by law still,
because at the time of the hearing and when the case
was to be decided the new Civil Code was already in
force, which Code permitted the execution of
holographic wills, under a liberal view, and to carry out
the intention of the testator which according to the trial
court is the controlling factor and may override any
defect in form, said trial court by order dated January
24, 1952, admitted to probate Exhibit "A", as the Last
Will and Testament of Father Sancho Abadia. The
oppositors are appealing from that decision; and
because only questions of law are involved in the
appeal, the case was certified to us by the Court of
Appeals.
The new Civil Code (Republic Act No. 386) under article
810 thereof provides that a person may execute a
holographic will which must be entirely written, dated
and signed by the testator himself and need not be
witnessed. It is a fact, however, that at the time that
Exhibit "A" was executed in 1923 and at the time that
Father Abadia died in 1943, holographic wills were not
permitted, and the law at the time imposed certain
requirements for the execution of wills, such as
numbering correlatively each page (not folio or sheet) in
letters and signing on the left hand margin by the
testator and by the three attesting witnesses,
requirements which were not complied with in Exhibit
"A" because the back pages of the first two folios of the
will were not signed by any one, not even by the
testator and were not numbered, and as to the three
front pages, they were signed only by the testator.
Interpreting and applying this requirement this Court in
the case of In re Estate of Saguinsin, 41 Phil., 875, 879,
referring to the failure of the testator and his witnesses
to sign on the left hand margin of every page, said:
. . . . This defect is radical and totally vitiates the
testament. It is not enough that the signatures
guaranteeing authenticity should appear upon
two folios or leaves; three pages having been
written on, the authenticity of all three of them
should be guaranteed by the signature of the
alleged testatrix and her witnesses.
And in the case of Aspe vs. Prieto, 46 Phil., 700, referring
to the same requirement, this Court declared:
From an examination of the document in
question, it appears that the left margins of the
six pages of the document are signed only by
Ventura Prieto. The noncompliance with section
2 of Act No. 2645 by the attesting witnesses
who omitted to sign with the testator at the left
margin of each of the five pages of the
document alleged to be the will of Ventura
Prieto, is a fatal defect that constitutes an
obstacle to its probate.
What is the law to apply to the probate of Exh. "A"?
May we apply the provisions of the new Civil Code
which not allows holographic wills, like Exhibit "A"
which provisions were invoked by the appellee-
petitioner and applied by the lower court? But article
795 of this same new Civil Code expressly provides: "The
validity of a will as to its form depends upon the
observance of the law in force at the time it is made."
The above provision is but an expression or statement
of the weight of authority to the affect that the validity
of a will is to be judged not by the law enforce at the
time of the testator's death or at the time the supposed
will is presented in court for probate or when the
petition is decided by the court but at the time the
instrument was executed. One reason in support of the
rule is that although the will operates upon and after
the death of the testator, the wishes of the testator
about the disposition of his estate among his heirs and
among the legatees is given solemn expression at the
time the will is executed, and in reality, the legacy or
bequest then becomes a completed act. This ruling has
been laid down by this court in the case of In re Will of
Riosa, 39 Phil., 23. It is a wholesome doctrine and
should be followed.
Of course, there is the view that the intention of the
testator should be the ruling and controlling factor and
that all adequate remedies and interpretations should
be resorted to in order to carry out said intention, and
that when statutes passed after the execution of the will
and after the death of the testator lessen the formalities
required by law for the execution of wills, said
subsequent statutes should be applied so as to validate
wills defectively executed according to the law in force
at the time of execution. However, we should not forget
that from the day of the death of the testator, if he
leaves a will, the title of the legatees and devisees under
it becomes a vested right, protected under the due
process clause of the constitution against a subsequent
change in the statute adding new legal requirements of
execution of wills which would invalidate such a will. By
parity of reasoning, when one executes a will which is
invalid for failure to observe and follow the legal
requirements at the time of its execution then upon his
death he should be regarded and declared as having
died intestate, and his heirs will then inherit by intestate
succession, and no subsequent law with more liberal
requirements or which dispenses with such
requirements as to execution should be allowed to
validate a defective will and thereby divest the heirs of
their vested rights in the estate by intestate succession.
The general rule is that the Legislature can not validate
void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193).
In view of the foregoing, the order appealed from is
reversed, and Exhibit "A" is denied probate. With costs.
G.R. No. L-5064 February 27, 1953
BIENVENIDO A. IBARLE, plaintiff-appellant,
vs.
ESPERANZA M. PO, defendant-appellant.
Quirico del Mar for appellant.
Daniel P. Tumulak and Conchita F. Miel appellee.
TUASON, J.:
This action commenced in the Court of First Instance of
Cebu to annul a deed of sale conveying to the
defendant, in consideration of P1,700, one undivided
half of a parcel of land which previously had been sold,
along with the other half, by the same vendor to the
plaintiff's grantors. judgment was against the plaintiff.
The case was submitted for decision upon an agreed
statement of facts, the pertinent parts of which are thus
summarized in the appealed decision:
1st. That Leonard j. Winstanley and Catalina
Navarro were husband and wife, the former
having died on June 6, 1946 leaving heir the
surviving spouse and some minor children;
2nd. hat upon the death of L.J. Winstanley,
he left a parcel of land described under Transfer
Certificate of title No. 2391 of the Registry of
Deeds of the Province of Cebu;
3rd. That the above mentioned property was
a conjugal property;
4th. That on April 15, 1946, the surviving
spouse Catalina Navarro Vda. de Winstanley
sold the entire parcel of land to the spouses
Maria Canoy, alleging among other things, that
she needed money for the support of her
children;
5th. That on May 24, 1947, the spouses
Maria Canoy and Roberto Canoy sold the same
parcel of land to the plaintiff in this case named
Bienvenido A. Ebarle;
6th. That the two deeds of sale referred to
above were not registered and have never been
registered up to the date;
7th. That on January 17, 1948 surviving
spouse Catalina Navarro Vda. de Winstanley,
after her appointment as guardian of her
children by this court (Special proceeding no.
212-R) sold one-half of the land mentioned
above to Esperanza M. Po, defendant in the
instant case, which portion belongs to the
children of the above named spouses.
As stated by the trial Judge, the sole question for
determination is the validity of the sale to Esperanza M.
Po, the last purchaser. This question in turn depends
upon the validity of the prior ale to Maria Canoy and
Roberto Canoy.
Article 657 of the old Civil Code provides: "The rights to
the succession of a person are transmitted from the
moment of his death." in a slightly different language,
this article is incorporated in the new Civil Code as
article 777.
Manresa, commending on article 657 of the Civil Code
of Spain, says:
The moment of death is the determining factor
when the heirs acquire a definite right to the
inheritance, whether such right be pure or
contingent. It is immaterial whether a short or
long period of time lapses between the death of
the predecessor and the entry into possession
of the property of the inheritance because the
right is always deemed to be retroactive from
the moment of death. (5 Manresa, 317.)
The above provision and comment make it clear that
when Catalina Navarro Vda. de Winstanley sold the
entire parcel to the Canoy spouses, one-half of it already
belonged to the seller's children. No formal or judicial
declaration being needed to confirm the children's title,
it follows that the first sale was null and void in so far as
it included the children's share.
On the other hand, the sale to the defendant having
been made by authority of the competent court was
undeniably legal and effective. The fact that it has not
been recorded is of no consequence. If registration were
necessary, still the non-registration would not avail the
plaintiff because it was due to no other cause than his
own opposition.
The decision will be affirmed subject to the reservation,
made in said decision, of the right of the plaintitff
and/or the Canoy spouses to bring such action against
Catalina Navarro Vda. de Winstanley as may be
appropriate for such damages as they may have
incurred by reason of the voiding of the sale in their
favor.
G.R. No. 147145 January 31, 2005
TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA
CAPONONG-NOBLE, petitioner,
vs.
ALIPIO ABAJA and NOEL ABELLAR, respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review1 assailing the
Decision2 of the Court of Appeals of 12 January 2001 in
CA-G.R. CV No. 47644. The Court of Appeals sustained
the Resolution3 of the Regional Trial Court of
Kabankalan, Negros Occidental, Branch 61 ("RTC-
Kabankalan"), admitting to probate the last will and
testament of Alipio Abada ("Abada").
The Antecedent Facts
Abada died sometime in May 1940.4 His widow Paula
Toray ("Toray") died sometime in September 1943. Both
died without legitimate children.
On 13 September 1968, Alipio C. Abaja ("Alipio") filed
with the then Court of First Instance of Negros
Occidental (now RTC-Kabankalan) a petition,5 docketed
as SP No. 070 (313-8668), for the probate of the last will
and testament ("will") of Abada. Abada allegedly named
as his testamentary heirs his natural children Eulogio
Abaja ("Eulogio") and Rosario Cordova. Alipio is the son
of Eulogio.
Nicanor Caponong ("Caponong") opposed the petition
on the ground that Abada left no will when he died in
1940. Caponong further alleged that the will, if Abada
really executed it, should be disallowed for the following
reasons: (1) it was not executed and attested as
required by law; (2) it was not intended as the last will
of the testator; and (3) it was procured by undue and
improper pressure and influence on the part of the
beneficiaries. Citing the same grounds invoked by
Caponong, the alleged intestate heirs of Abada, namely,
Joel, Julian, Paz, Evangeline, Geronimo, Humberto,
Teodora and Elena Abada ("Joel Abada, et al."), and Levi,
Leandro, Antonio, Florian, Hernani and Carmela Tronco
("Levi Tronco, et al."), also opposed the petition. The
oppositors are the nephews, nieces and grandchildren
of Abada and Toray.
On 13 September 1968, Alipio filed another
petition6 before the RTC-Kabankalan, docketed as SP No.
071 (312-8669), for the probate of the last will and
testament of Toray. Caponong, Joel Abada, et al., and
Levi Tronco, et al. opposed the petition on the same
grounds they cited in SP No. 070 (313-8668).
On 20 September 1968, Caponong filed a
petition7 before the RTC-Kabankalan, docketed as SP No.
069 (309), praying for the issuance in his name of letters
of administration of the intestate estate of Abada and
Toray.
In an Order dated 14 August 1981, the RTC-Kabankalan
admitted to probate the will of Toray. Since the
oppositors did not file any motion for reconsideration,
the order allowing the probate of Torays will became
final and executory.8
In an order dated 23 November 1990, the RTC-
Kabankalan designated Belinda Caponong-Noble
("Caponong-Noble") Special Administratrix of the estate
of Abada and Toray.9 Caponong-Noble moved for the
dismissal of the petition for probate of the will of Abada.
The RTC-Kabankalan denied the motion in an Order
dated 20 August 1991.10
Sometime in 1993, during the proceedings, Presiding
Judge Rodolfo S. Layumas discovered that in an Order
dated 16 March 1992, former Presiding Judge Edgardo
Catilo had already submitted the case for decision. Thus,
the RTC-Kabankalan rendered a Resolution dated 22
June 1994, as follows:
There having been sufficient notice to the heirs as
required by law; that there is substantial compliance
with the formalities of a Will as the law directs and that
the petitioner through his testimony and the deposition
of Felix Gallinero was able to establish the regularity of
the execution of the said Will and further, there being
no evidence of bad faith and fraud, or substitution of
the said Will, the Last Will and Testament of Alipio
Abada dated June 4, 1932 is admitted and allowed
probate.
As prayed for by counsel, Noel Abbellar11 is appointed
administrator of the estate of Paula Toray who shall
discharge his duties as such after letters of
administration shall have been issued in his favor and
after taking his oath and filing a bond in the amount of
Ten Thousand (10,000.00) Pesos.
Mrs. Belinda C. Noble, the present administratrix of the
estate of Alipio Abada shall continue discharging her
duties as such until further orders from this Court.
SO ORDERED.12
The RTC-Kabankalan ruled on the only issue raised by
the oppositors in their motions to dismiss the petition
for probate, that is, whether the will of Abada has an
attestation clause as required by law. The RTC-
Kabankalan further held that the failure of the
oppositors to raise any other matter forecloses all other
issues.
Not satisfied with the Resolution, Caponong-Noble filed
a notice of appeal.
In a Decision promulgated on 12 January 2001, the
Court of Appeals affirmed the Resolution of the RTC-
Kabankalan. The appellate court found that the RTC-
Kabankalan properly admitted to probate the will of
Abada.
Hence, the present recourse by Caponong-Noble.
The Issues
The petition raises the following issues:
1. What laws apply to the probate of the last
will of Abada;
2. Whether the will of Abada requires
acknowledgment before a notary public;13
3. Whether the will must expressly state that it
is written in a language or dialect known to the
testator;
4. Whether the will of Abada has an attestation
clause, and if so, whether the attestation clause
complies with the requirements of the
applicable laws;
5. Whether Caponong-Noble is precluded from
raising the issue of whether the will of Abada is
written in a language known to Abada;
6. Whether evidence aliunde may be resorted to
in the probate of the will of Abada.
The Ruling of the Court
The Court of Appeals did not err in sustaining the RTC-
Kabankalan in admitting to probate the will of Abada.
The Applicable Law
Abada executed his will on 4 June 1932. The laws in
force at that time are the Civil Code of 1889 or the Old
Civil Code, and Act No. 190 or the Code of Civil
Procedure14 which governed the execution of wills
before the enactment of the New Civil Code.
The matter in dispute in the present case is
the attestation clause in the will of Abada. Section 618
of the Code of Civil Procedure, as amended by Act No.
2645,15 governs the form of the attestation clause of
Abadas will.16Section 618 of the Code of Civil
Procedure, as amended, provides:
SEC. 618. Requisites of will. No will, except as provided
in the preceding section,17 shall be valid to pass any
estate, real or personal, nor charge or affect the same,
unless it be written in the language or dialect known by
the testator and signed by him, or by the testators
name written by some other person in his presence, and
by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the
testator and of each other. The testator or the person
requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, on the left
margin, and said pages shall be numbered correlatively
in letters placed on the upper part of each sheet. The
attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that
the testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of three witnesses,
and the latter witnessed and signed the will and all
pages thereof in the presence of the testator and of
each other.
Requisites of a Will under the Code of Civil Procedure
Under Section 618 of the Code of Civil Procedure, the
requisites of a will are the following:
(1) The will must be written in the language or
dialect known by the testator;
(2) The will must be signed by the testator, or by
the testators name written by some other
person in his presence, and by his express
direction;
(3) The will must be attested and subscribed by
three or more credible witnesses in the
presence of the testator and of each other;
(4) The testator or the person requested by him
to write his name and the instrumental
witnesses of the will must sign each and every
page of the will on the left margin;
(5) The pages of the will must be numbered
correlatively in letters placed on the upper part
of each sheet;
(6) The attestation shall state the number of
sheets or pages used, upon which the will is
written, and the fact that the testator signed the
will and every page of the will, or caused some
other person to write his name, under his
express direction, in the presence of three
witnesses, and the witnesses witnessed and
signed the will and all pages of the will in the
presence of the testator and of each other.
Caponong-Noble asserts that the will of Abada does not
indicate that it is written in a language or dialect known
to the testator. Further, she maintains that the will is not
acknowledged before a notary public. She cites in
particular Articles 804 and 805 of the Old Civil Code,
thus:
Art. 804. Every will must be in writing and executed in
[a] language or dialect known to the testator.
Art. 806. Every will must be acknowledged before a
notary public by the testator and the witnesses. xxx 18
Caponong-Noble actually cited Articles 804 and 806 of
the New Civil Code.19 Article 804 of the Old Civil Code is
about the rights and obligations of administrators of the
property of an absentee, while Article 806 of the Old
Civil Code defines a legitime.
Articles 804 and 806 of the New Civil Code are new
provisions. Article 804 of the New Civil Code is taken
from Section 618 of the Code of Civil
Procedure.20 Article 806 of the New Civil Code is taken
from Article 685 of the Old Civil Code 21 which provides:
Art. 685. The notary and two of the witnesses who
authenticate the will must be acquainted with the
testator, or, should they not know him, he shall be
identified by two witnesses who are acquainted with
him and are known to the notary and to the attesting
witnesses. The notary and the witnesses shall also
endeavor to assure themselves that the testator has, in
their judgment, the legal capacity required to make a
will.
Witnesses authenticating a will without the attendance
of a notary, in cases falling under Articles 700 and 701,
are also required to know the testator.
However, the Code of Civil Procedure22 repealed Article
685 of the Old Civil Code. Under the Code of Civil
Procedure, the intervention of a notary is not necessary
in the execution of any will.23 Therefore, Abadas will
does not require acknowledgment before a notary
public.1awphi1.nt
Caponong-Noble points out that nowhere in the will can
one discern that Abada knew the Spanish language. She
alleges that such defect is fatal and must result in the
disallowance of the will. On this issue, the Court of
Appeals held that the matter was not raised in the
motion to dismiss, and that it is now too late to raise the
issue on appeal. We agree with Caponong-Noble that
the doctrine of estoppel does not apply in probate
proceedings.24 In addition, the language used in the will
is part of the requisites under Section 618 of the Code
of Civil Procedure and the Court deems it proper to pass
upon this issue.
Nevertheless, Caponong-Nobles contention must still
fail. There is no statutory requirement to state in the will
itself that the testator knew the language or dialect
used in the will.25 This is a matter that a party may
establish by proof aliunde.26 Caponong-Noble further
argues that Alipio, in his testimony, has failed, among
others, to show that Abada knew or understood the
contents of the will and the Spanish language used in
the will. However, Alipio testified that Abada used to
gather Spanish-speaking people in their place. In these
gatherings, Abada and his companions would talk in the
Spanish language.27 This sufficiently proves that Abada
speaks the Spanish language.
The Attestation Clause of Abadas Will
A scrutiny of Abadas will shows that it has an
attestation clause. The attestation clause of Abadas will
reads:
Suscrito y declarado por el testador Alipio Abada como
su ultima voluntad y testamento en presencia de
nosotros, habiendo tambien el testador firmado en
nuestra presencia en el margen izquierdo de todas y
cada una de las hojas del mismo. Y en testimonio de
ello, cada uno de nosotros lo firmamos en presencia de
nosotros y del testador al pie de este documento y en el
margen izquierdo de todas y cada una de las dos hojas
de que esta compuesto el mismo, las cuales estan
paginadas correlativamente con las letras "UNO" y
"DOS en la parte superior de la carrilla.28
Caponong-Noble proceeds to point out several defects
in the attestation clause. Caponong-Noble alleges that
the attestation clause fails to state the number of pages
on which the will is written.
The allegation has no merit. The phrase "en el margen
izquierdo de todas y cada una de las dos hojas de que
esta compuesto el mismo" which means "in the left
margin of each and every one of the two pages
consisting of the same" shows that the will consists of
two pages. The pages are numbered correlatively with
the letters "ONE" and "TWO" as can be gleaned from
the phrase "las cuales estan paginadas
correlativamente con las letras "UNO" y "DOS."
Caponong-Noble further alleges that the attestation
clause fails to state expressly that the testator signed
the will and its every page in the presence of three
witnesses. She then faults the Court of Appeals for
applying to the present case the rule on substantial
compliance found in Article 809 of the New Civil Code. 29
The first sentence of the attestation clause reads:
"Suscrito y declarado por el testador Alipio Abada como
su ultima voluntad y testamento en presencia de
nosotros, habiendo tambien el testador firmado en
nuestra presencia en el margen izquierdo de todas y
cada una de las hojas del mismo." The English
translation is: "Subscribed and professed by the testator
Alipio Abada as his last will and testament in our
presence, the testator having also signed it in our
presence on the left margin of each and every one of
the pages of the same." The attestation clause clearly
states that Abada signed the will and its every page in
the presence of the witnesses.
However, Caponong-Noble is correct in saying that the
attestation clause does not indicate the number of
witnesses. On this point, the Court agrees with the
appellate court in applying the rule on substantial
compliance in determining the number of witnesses.
While the attestation clause does not state the number
of witnesses, a close inspection of the will shows that
three witnesses signed it.
This Court has applied the rule on substantial
compliance even before the effectivity of the New Civil
Code. In Dichoso de Ticson v. De Gorostiza,30 the Court
recognized that there are two divergent tendencies in
the law on wills, one being based on strict construction
and the other on liberal construction. In Dichoso, the
Court noted that Abangan v. Abangan,31 the basic case
on the liberal construction, is cited with approval in later
decisions of the Court.
In Adeva vda. De Leynez v. Leynez,32 the petitioner,
arguing for liberal construction of applicable laws,
enumerated a long line of cases to support her
argument while the respondent, contending that the
rule on strict construction should apply, also cited a long
series of cases to support his view. The Court, after
examining the cases invoked by the parties, held:
x x x It is, of course, not possible to lay down a general
rule, rigid and inflexible, which would be applicable to
all cases. More than anything else, the facts and
circumstances of record are to be considered in the
application of any given rule. If the surrounding
circumstances point to a regular execution of the will,
and the instrument appears to have been executed
substantially in accordance with the requirements of the
law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards
its admission to probate, although the document may
suffer from some imperfection of language, or other
non-essential defect. x x x.
An attestation clause is made for the purpose of
preserving, in permanent form, a record of the facts
attending the execution of the will, so that in case of
failure of the memory of the subscribing witnesses, or
other casualty, they may still be proved. (Thompson on
Wills, 2d ed., sec. 132.) A will, therefore, should not be
rejected where its attestation clause serves the purpose
of the law. x x x 331a\^/phi1.net
We rule to apply the liberal construction in the probate
of Abadas will. Abadas will clearly shows four
signatures: that of Abada and of three other persons. It
is reasonable to conclude that there are three witnesses
to the will. The question on the number of the
witnesses is answered by an examination of the will
itself and without the need for presentation of
evidence aliunde. The Court explained the extent and
limits of the rule on liberal construction, thus:
[T]he so-called liberal rule does not offer any puzzle or
difficulty, nor does it open the door to serious
consequences. The later decisions do tell us when and
where to stop; they draw the dividing line with
precision. They do not allow evidence aliunde to fill a
void in any part of the document or supply missing
details that should appear in the will
itself.l^vvphi1.net They only permit a probe into the
will, an exploration within its confines, to ascertain its
meaning or to determine the existence or absence of
the requisite formalities of law. This clear, sharp
limitation eliminates uncertainty and ought to banish
any fear of dire results.34 (Emphasis supplied)
The phrase "en presencia de nosotros" or "in our
presence" coupled with the signatures appearing on the
will itself and after the attestation clause could only
mean that: (1) Abada subscribed to and professed
before the three witnesses that the document was his
last will, and (2) Abada signed the will and the left
margin of each page of the will in the presence of these
three witnesses.
Finally, Caponong-Noble alleges that the attestation
clause does not expressly state the circumstances that
the witnesses witnessed and signed the will and all its
pages in the presence of the testator and of each other.
This Court has ruled:
Precision of language in the drafting of an attestation
clause is desirable. However, it is not imperative that a
parrot-like copy of the words of the statute be made. It
is sufficient if from the language employed it can
reasonably be deduced that the attestation clause
fulfills what the law expects of it.35
The last part of the attestation clause states "en
testimonio de ello, cada uno de nosotros lo firmamos en
presencia de nosotros y del testador." In English, this
means "in its witness, every one of us also signed in our
presence and of the testator." This clearly shows that
the attesting witnesses witnessed the signing of the will
of the testator, and that each witness signed the will in
the presence of one another and of the testator.
WHEREFORE, we AFFIRM the Decision of the Court of
Appeals of 12 January 2001 in CA-G.R. CV No. 47644.
SO ORDERED.
ART. 16
G.R. No. L-22595 November 1, 1927
Testate Estate of Joseph G. Brimo, JUAN MICIANO,
administrator, petitioner-appellee,
vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.
Camus and Delgado for appellee.
ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph
G. Brimo is in question in this case.
The judicial administrator of this estate filed a scheme
of partition. Andre Brimo, one of the brothers of the
deceased, opposed it. The court, however, approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial
of his participation in the inheritance; (3) the denial of
the motion for reconsideration of the order approving
the partition; (4) the approval of the purchase made by
the Pietro Lana of the deceased's business and the deed
of transfer of said business; and (5) the declaration that
the Turkish laws are impertinent to this cause, and the
failure not to postpone the approval of the scheme of
partition and the delivery of the deceased's business to
Pietro Lanza until the receipt of the depositions
requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the
partition in question puts into effect the provisions of
Joseph G. Brimo's will which are not in accordance with
the laws of his Turkish nationality, for which reason they
are void as being in violation or article 10 of the Civil
Code which, among other things, provides the following:
Nevertheless, legal and testamentary
successions, in respect to the order of
succession as well as to the amount of the
successional rights and the intrinsic validity of
their provisions, shall be regulated by the
national law of the person whose succession is
in question, whatever may be the nature of the
property or the country in which it may be
situated.
But the fact is that the oppositor did not prove that said
testimentary dispositions are not in accordance with the
Turkish laws, inasmuch as he did not present any
evidence showing what the Turkish laws are on the
matter, and in the absence of evidence on such laws,
they are presumed to be the same as those of the
Philippines. (Lim and Lim vs. Collector of Customs, 36
Phil., 472.)
It has not been proved in these proceedings what the
Turkish laws are. He, himself, acknowledges it when he
desires to be given an opportunity to present evidence
on this point; so much so that he assigns as an error of
the court in not having deferred the approval of the
scheme of partition until the receipt of certain
testimony requested regarding the Turkish laws on the
matter.
The refusal to give the oppositor another opportunity to
prove such laws does not constitute an error. It is
discretionary with the trial court, and, taking into
consideration that the oppositor was granted ample
opportunity to introduce competent evidence, we find
no abuse of discretion on the part of the court in this
particular. There is, therefore, no evidence in the record
that the national law of the testator Joseph G. Brimo
was violated in the testamentary dispositions in
question which, not being contrary to our laws in force,
must be complied with and executed. lawphil.net
Therefore, the approval of the scheme of partition in
this respect was not erroneous.
In regard to the first assignment of error which deals
with the exclusion of the herein appellant as a legatee,
inasmuch as he is one of the persons designated as such
in will, it must be taken into consideration that such
exclusion is based on the last part of the second clause
of the will, which says:
Second. I like desire to state that although by
law, I am a Turkish citizen, this citizenship having
been conferred upon me by conquest and not
by free choice, nor by nationality and, on the
other hand, having resided for a considerable
length of time in the Philippine Islands where I
succeeded in acquiring all of the property that I
now possess, it is my wish that the distribution
of my property and everything in connection
with this, my will, be made and disposed of in
accordance with the laws in force in the
Philippine islands, requesting all of my relatives
to respect this wish, otherwise, I annul and
cancel beforehand whatever disposition found
in this will favorable to the person or persons
who fail to comply with this request.
The institution of legatees in this will is conditional, and
the condition is that the instituted legatees must
respect the testator's will to distribute his property, not
in accordance with the laws of his nationality, but in
accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid,
any legatee who fails to comply with it, as the herein
oppositor who, by his attitude in these proceedings has
not respected the will of the testator, as expressed, is
prevented from receiving his legacy.
The fact is, however, that the said condition is void,
being contrary to law, for article 792 of the civil Code
provides the following:
Impossible conditions and those contrary to law
or good morals shall be considered as not
imposed and shall not prejudice the heir or
legatee in any manner whatsoever, even should
the testator otherwise provide.
And said condition is contrary to law because it
expressly ignores the testator's national law when,
according to article 10 of the civil Code above quoted,
such national law of the testator is the one to govern his
testamentary dispositions.
Said condition then, in the light of the legal provisions
above cited, is considered unwritten, and the institution
of legatees in said will is unconditional and
consequently valid and effective even as to the herein
oppositor.
It results from all this that the second clause of the will
regarding the law which shall govern it, and to the
condition imposed upon the legatees, is null and void,
being contrary to law.
All of the remaining clauses of said will with all their
dispositions and requests are perfectly valid and
effective it not appearing that said clauses are contrary
to the testator's national law.
Therefore, the orders appealed from are modified and it
is directed that the distribution of this estate be made in
such a manner as to include the herein appellant Andre
Brimo as one of the legatees, and the scheme of
partition submitted by the judicial administrator is
approved in all other respects, without any
pronouncement as to costs.
So ordered.
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
Subsequently, or on July 8, 1958, Amos G. Bellis died a
resident of San Antonio, Texas, U.S.A. His will was
admitted to probate in the Court of First Instance of
Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of
the will, paid all the bequests therein including the
amount of $240,000.00 in the form of shares of stock to
Mary E. Mallen and to the three (3) illegitimate children,
Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma
Bellis, various amounts totalling P40,000.00 each in
satisfaction of their respective legacies, or a total of
P120,000.00, which it released from time to time
according as the lower court approved and allowed the
various motions or petitions filed by the latter three
requesting partial advances on account of their
respective legacies.
On January 8, 1964, preparatory to closing its
administration, the executor submitted and filed its
"Executor's Final Account, Report of Administration and
Project of Partition" wherein it reported, inter alia, the
satisfaction of the legacy of Mary E. Mallen by the
delivery to her of shares of stock amounting to
$240,000.00, and the legacies of Amos Bellis, Jr., Maria
Cristina Bellis and Miriam Palma Bellis in the amount of
P40,000.00 each or a total of P120,000.00. In the project
of partition, the executor pursuant to the "Twelfth"
clause of the testator's Last Will and Testament
divided the residuary estate into seven equal portions
for the benefit of the testator's seven legitimate children
by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam
Palma Bellis filed their respective oppositions to the
project of partition on the ground that they were
deprived of their legitimes as illegitimate children and,
therefore, compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice
to him, proof of service of which is evidenced by the
registry receipt submitted on April 27, 1964 by the
executor.1
After the parties filed their respective memoranda and
other pertinent pleadings, the lower court, on April 30,
1964, issued an order overruling the oppositions and
approving the executor's final account, report and
administration and project of partition. Relying upon
Art. 16 of the Civil Code, it applied the national law of
the decedent, which in this case is Texas law, which did
not provide for legitimes.
Their respective motions for reconsideration having
been denied by the lower court on June 11, 1964,
oppositors-appellants appealed to this Court to raise the
issue of which law must apply Texas law or Philippine
law.
In this regard, the parties do not submit the case on, nor
even discuss, the doctrine of renvoi, applied by this
Court in Aznar v. Christensen Garcia, L-16749, January
31, 1963. Said doctrine is usually pertinent where the
decedent is a national of one country, and a domicile of
another. In the present case, it is not disputed that the
decedent was both a national of Texas and a domicile
thereof at the time of his death.2 So that even assuming
Texas has a conflict of law rule providing that the
domiciliary system (law of the domicile) should govern,
the same would not result in a reference back (renvoi)
to Philippine law, but would still refer to Texas law.
Nonetheless, if Texas has a conflicts rule adopting the
situs theory (lex rei sitae) calling for the application of
the law of the place where the properties are situated,
renvoi would arise, since the properties here involved
are found in the Philippines. In the absence, however, of
proof as to the conflict of law rule of Texas, it should not
be presumed different from ours.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 by
the law of the nation of the decedent.
Appellants would however counter that Art. 17,
paragraph three, of the Civil Code, stating that
Prohibitive laws concerning persons, their acts
or property, and those which have for their
object public order, public policy and good
customs shall not be rendered ineffective by
laws or judgments promulgated, or by
determinations or conventions agreed upon in a
foreign country.
prevails as the exception to Art. 16, par. 2 of the Civil
Code afore-quoted. This is not correct. Precisely,
Congress deleted the phrase, "notwithstanding the
provisions of this and the next preceding article" when
they incorporated Art. 11 of the old Civil Code as Art. 17
of the new Civil Code, while reproducing without
substantial change the second paragraph of Art. 10 of
the old Civil Code as Art. 16 in the new. It must have
been their purpose to make the second paragraph of
Art. 16 a specific provision in itself which must be
applied in testate and intestate succession. As further
indication of this legislative intent, Congress added a
new provision, under Art. 1039, which decrees that
capacity to succeed is to be governed by the national
law of the decedent.
It is therefore evident that whatever public policy or
good customs may be involved in our System of
legitimes, Congress has not intended to extend the
same to the succession of foreign nationals. For it has
specifically chosen to leave, inter alia, the amount of
successional rights, to the decedent's national law.
Specific provisions must prevail over general ones.
Appellants would also point out that the decedent
executed two wills one to govern his Texas estate and
the other his Philippine estate arguing from this that
he intended Philippine law to govern his Philippine
estate. Assuming that such was the decedent's intention
in executing a separate Philippine will, it would not alter
the law, for as this Court ruled in Miciano v. Brimo, 50
Phil. 867, 870, a provision in a foreigner's will to the
effect that his properties shall be distributed in
accordance with Philippine law and not with his national
law, is illegal and void, for his national law cannot be
ignored in regard to those matters that Article 10
now Article 16 of the Civil Code states said national
law should govern.
The parties admit that the decedent, Amos G. Bellis, was
a citizen of the State of Texas, U.S.A., and that under the
laws of Texas, there are no forced heirs or legitimes.
Accordingly, since the intrinsic validity of the provision
of the will and the amount of successional rights are to
be determined under Texas law, the Philippine law on
legitimes cannot be applied to the testacy of Amos G.
Bellis.
Wherefore, the order of the probate court is hereby
affirmed in toto, with costs against appellants. So
ordered.
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, and
who is now residing at No. 665 Rodger Young
Village, Los Angeles, California, U.S.A.
4. I further declare that I now have no living
ascendants, and no descendants except my
above named daughter, MARIA LUCY
CHRISTENSEN DANEY.
xxx xxx xxx
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 possessed at my death and which may
have come to me from any source whatsoever,
during her lifetime: ....
It is in accordance with the above-quoted provisions
that the executor in his final account and project of
partition ratified the payment of only P3,600 to Helen
Christensen Garcia and proposed that the residue of the
estate be transferred to his daughter, Maria Lucy
Christensen.
Opposition to the approval of the project of partition
was filed by Helen Christensen Garcia, insofar as it
deprives her (Helen) of her legitime as an acknowledged
natural child, she having been declared by Us in G.R.
Nos. L-11483-84 an acknowledged natural child of the
deceased Edward E. Christensen. The legal grounds of
opposition are (a) that the distribution should be
governed by the laws of the Philippines, and (b) that
said order of distribution is contrary thereto insofar as it
denies to Helen Christensen, one of two acknowledged
natural children, one-half of the estate in full ownership.
In amplification of the above grounds it was alleged that
the law that should govern the estate of the deceased
Christensen should not be the internal law of California
alone, but the entire law thereof because several
foreign elements are involved, that the forum is the
Philippines and even if the case were decided in
California, Section 946 of the California Civil Code, which
requires that the domicile of the decedent should apply,
should be applicable. It was also alleged that Maria
Helen Christensen having been declared an
acknowledged natural child of the decedent, she is
deemed for all purposes legitimate from the time of her
birth.
The court below ruled that as Edward E. Christensen
was a citizen of the United States and of the State of
California at the time of his death, the successional
rights and intrinsic validity of the provisions in his will
are to be governed by the law of California, in
accordance with which a testator has the right to
dispose of his property in the way he desires, because
the right of absolute dominion over his property is
sacred and inviolable (In re McDaniel's Estate, 77 Cal.
Appl. 2d 877, 176 P. 2d 952, and In re Kaufman, 117 Cal.
286, 49 Pac. 192, cited in page 179, Record on Appeal).
Oppositor Maria Helen Christensen, through counsel,
filed various motions for reconsideration, but these
were denied. Hence, this appeal.
The most important assignments of error are as follows:
I
THE LOWER COURT ERRED IN IGNORING THE DECISION
OF THE HONORABLE SUPREME COURT THAT HELEN IS
THE ACKNOWLEDGED NATURAL CHILD OF EDWARD E.
CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER
OF HER JUST SHARE IN THE INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY IGNORING
AND/OR FAILING TO RECOGNIZE THE EXISTENCE OF
SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES
CALLING FOR THE APPLICATION OF INTERNAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE
THAT UNDER INTERNATIONAL LAW, PARTICULARLY
UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY
OF THE TESTAMENTARY DISPOSITION OF THE
DISTRIBUTION OF THE ESTATE OF THE DECEASED
EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY
THE LAWS OF THE PHILIPPINES.
IV
THE LOWER COURT ERRED IN NOT DECLARING THAT
THE SCHEDULE OF DISTRIBUTION SUBMITTED BY THE
EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS.
V
THE LOWER COURT ERRED IN NOT DECLARING THAT
UNDER THE PHILIPPINE LAWS HELEN CHRISTENSEN
GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE
IN FULL OWNERSHIP.
There is no question that Edward E. Christensen was a
citizen of the United States and of the State of California
at the time of his death. But there is also no question
that at the time of his death he was domiciled in the
Philippines, as witness the following facts admitted by
the executor himself in appellee's brief:
In the proceedings for admission of the will to
probate, the facts of record show that the
deceased Edward E. Christensen was born on
November 29, 1875 in New York City, N.Y.,
U.S.A.; his first arrival in the Philippines, as an
appointed school teacher, was on July 1, 1901,
on board the U.S. Army Transport "Sheridan"
with Port of Embarkation as the City of San
Francisco, in the State of California, U.S.A. He
stayed in the Philippines until 1904.
In December, 1904, Mr. Christensen returned to
the United States and stayed there for the
following nine years until 1913, during which
time he resided in, and was teaching school in
Sacramento, California.
Mr. Christensen's next arrival in the Philippines
was in July of the year 1913. However, in 1928,
he again departed the Philippines for the United
States and came back here the following year,
1929. Some nine years later, in 1938, he again
returned to his own country, and came back to
the Philippines the following year, 1939.
Wherefore, the parties respectfully pray that the
foregoing stipulation of facts be admitted and
approved by this Honorable Court, without
prejudice to the parties adducing other
evidence to prove their case not covered by this
stipulation of facts. 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 renvoidoctrine, it will follow the latter
course, thus applying its own law.
This is one type of renvoi. A jural matter is
presented which the conflict-of-laws rule of the
forum refers to a foreign law, the conflict-of-
laws rule of which, in turn, refers the matter
back again to the law of the forum. This is renvoi
in the narrower sense. The German term for this
judicial process is 'Ruckverweisung.'" (Harvard
Law Review, Vol. 31, pp. 523-571.)
After a decision has been arrived at that a
foreign law is to be resorted to as governing a
particular case, the further question may arise:
Are the rules as to the conflict of laws contained
in such foreign law also to be resorted to? This
is a question which, while it has been
considered by the courts in but a few instances,
has been the subject of frequent discussion by
textwriters and essayists; and the doctrine
involved has been descriptively designated by
them as the "Renvoyer" to send back, or the
"Ruchversweisung", or the "Weiterverweisung",
since an affirmative answer to the question
postulated and the operation of the adoption of
the foreign law in toto would in many cases
result in returning the main controversy to be
decided according to the law of the forum. ...
(16 C.J.S. 872.)
Another theory, known as the "doctrine
of renvoi", has been advanced. The theory of
 the doctrine of 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 the express mandate thereof and as
above explained, i.e., apply the internal law for
residents therein, and its conflict-of-laws rule for those
domiciled abroad.
It is argued on appellees' behalf that the clause "if there
is no law to the contrary in the place where the property
is situated" in Sec. 946 of the California Civil Code refers
to Article 16 of the Civil Code of the Philippines and that
the law to the contrary in the Philippines is the provision
in said Article 16 that the national law of the deceased
should govern. This contention can not be sustained. As
explained in the various authorities cited above the
national law mentioned in Article 16 of our Civil Code is
the law on conflict of laws in the California Civil Code,
i.e., Article 946, which authorizes the reference or
return of the question to the law of the testator's
domicile. The conflict of laws rule in California, Article
946, Civil Code, precisely refers back the case, when a
decedent is not domiciled in California, to the law of his
domicile, the Philippines in the case at bar. The court of
the domicile can not and should not refer the case back
to California; such action would leave the issue
incapable of determination because the case will then
be like a football, tossed back and forth between the
two states, between the country of which the decedent
was a citizen and the country of his domicile. The
Philippine court must apply its own law as directed in
the conflict of laws rule of the state of the decedent, if
the question has to be decided, especially as the
application of the internal law of California provides no
legitime for children while the Philippine law, Arts.
887(4) and 894, Civil Code of the Philippines, makes
natural children legally acknowledged forced heirs of
the parent recognizing them.
The Philippine cases (In re Estate of Johnson, 39 Phil.
156; Riera vs. Palmaroli, 40 Phil. 105; Miciano vs. Brimo,
50 Phil. 867; Babcock Templeton vs. Rider Babcock, 52
Phil. 130; and Gibbs vs. Government, 59 Phil. 293.) cited
by appellees to support the decision can not possibly
apply in the case at bar, for two important reasons, i.e.,
the subject in each case does not appear to be a citizen
of a state in the United States but with domicile in the
Philippines, and it does not appear in each case that
there exists in the state of which the subject is a citizen,
a law similar to or identical with Art. 946 of the
California Civil Code.
We therefore find that as the domicile of the deceased
Christensen, a citizen of California, is the Philippines, the
validity of the provisions of his will depriving his
acknowledged natural child, the appellant, should be
governed by the Philippine Law, the domicile, pursuant
to Art. 946 of the Civil Code of California, not by the
internal law of California..
WHEREFORE, the decision appealed from is hereby
reversed and the case returned to the lower court with
instructions that the partition be made as the Philippine
law on succession provides. Judgment reversed, with
costs against appellees.
G.R. No. L-54919 May 30, 1984
POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity as the
Presiding Judge of Branch XXXVIII, Court of First
Instance of Manila and NENITA CAMPOS
PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari, seeking to
annul the order of the respondent judge of the Court of
First Instance of Manila, Branch XXXVIII, which admitted
to and allowed the probate of the last will and
testament of Adoracion C. Campos, after an ex-parte
presentation of evidence by herein private respondent.
On January 31, 1977, Adoracion C. Campos died, leaving
her father, petitioner Hermogenes Campos and her
sisters, private respondent Nenita C. Paguia, Remedios
C. Lopez and Marieta C. Medina as the surviving heirs.
As Hermogenes Campos was the only compulsory heir,
he executed an Affidavit of Adjudication under Rule 74,
Section I of the Rules of Court whereby he adjudicated
unto himself the ownership of the entire estate of the
deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C.
Paguia filed a petition for the reprobate of a will of the
deceased, Adoracion Campos, which was allegedly
executed in the United States and for her appointment
as administratrix of the estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an
American citizen at the time of her death and was a
permanent resident of 4633 Ditman Street,
Philadelphia, Pennsylvania, U.S.A.; that the testatrix died
in Manila on January 31, 1977 while temporarily
residing with her sister at 2167 Leveriza, Malate, Manila;
that during her lifetime, the testatrix made her last wig
and testament on July 10, 1975, according to the laws of
Pennsylvania, U.S.A., nominating Wilfredo Barzaga of
New Jersey as executor; that after the testatrix death,
her last will and testament was presented, probated,
allowed, and registered with the Registry of Wins at the
County of Philadelphia, U.S.A., that Clement L.
McLaughlin, the administrator who was appointed after
Dr. Barzaga had declined and waived his appointment as
executor in favor of the former, is also a resident of
Philadelphia, U.S.A., and that therefore, there is an
urgent need for the appointment of an administratrix to
administer and eventually distribute the properties of
the estate located in the Philippines.
On January 11, 1978, an opposition to the reprobate of
the will was filed by herein petitioner alleging among
other things, that he has every reason to believe that
the will in question is a forgery; that the intrinsic
provisions of the will are null and void; and that even if
pertinent American laws on intrinsic provisions are
invoked, the same could not apply inasmuch as they
would work injustice and injury to him.
On December 1, 1978, however, the petitioner through
his counsel, Atty. Franco Loyola, filed a Motion to
Dismiss Opposition (With Waiver of Rights or Interests)
stating that he "has been able to verify the veracity
thereof (of the will) and now confirms the same to be
truly the probated will of his daughter Adoracion."
Hence, an ex-partepresentation of evidence for the
reprobate of the questioned will was made.
On January 10, 1979, the respondent judge issued an
order, to wit:
At the hearing, it has been satisfactorily
established that Adoracion C. Campos,
in her lifetime, was a citizen of the
United States of America with a
permanent residence at 4633 Ditman
Street, Philadelphia, PA 19124, (Exhibit
D) that when alive, Adoracion C.
Campos executed a Last Will and
Testament in the county of Philadelphia,
Pennsylvania, U.S.A., according to the
laws thereat (Exhibits E-3 to E-3-b) that
while in temporary sojourn in the
Philippines, Adoracion C. Campos died
in the City of Manila (Exhibit C) leaving
property both in the Philippines and in
the United States of America; that the
Last Will and Testament of the late
Adoracion C. Campos was admitted and
granted probate by the Orphan's Court
Division of the Court of Common Pleas,
the probate court of the
Commonwealth of Pennsylvania, County
of Philadelphia, U.S.A., and letters of
administration were issued in favor of
Clement J. McLaughlin all in accordance
with the laws of the said foreign country
on procedure and allowance of wills
(Exhibits E to E-10); and that the
petitioner is not suffering from any
disqualification which would render her
unfit as administratrix of the estate in
the Philippines of the late Adoracion C.
Campos.
WHEREFORE, the Last Will and
Testament of the late Adoracion C.
Campos is hereby admitted to and
allowed probate in the Philippines, and
Nenita Campos Paguia is hereby
appointed Administratrix of the estate
of said decedent; let Letters of
Administration with the Will annexed
issue in favor of said Administratrix
upon her filing of a bond in the amount
 of P5,000.00 conditioned under the
provisions of Section I, Rule 81 of the
Rules of Court.
Another manifestation was filed by the petitioner on
April 14, 1979, confirming the withdrawal of his
opposition, acknowledging the same to be his voluntary
act and deed.
On May 25, 1979, Hermogenes Campos filed a petition
for relief, praying that the order allowing the will be set
aside on the ground that the withdrawal of his
opposition to the same was secured through fraudulent
means. According to him, the "Motion to Dismiss
Opposition" was inserted among the papers which he
signed in connection with two Deeds of Conditional
Sales which he executed with the Construction and
Development Corporation of the Philippines (CDCP). He
also alleged that the lawyer who filed the withdrawal of
the opposition was not his counsel-of-record in the
special proceedings case.
The petition for relief was set for hearing but the
petitioner failed to appear. He made several motions for
postponement until the hearing was set on May 29,
1980.
On May 18, 1980, petitioner filed another motion
entitled "Motion to Vacate and/or Set Aside the Order
of January 10, 1979, and/or dismiss the case for lack of
jurisdiction. In this motion, the notice of hearing
provided:
Please include this motion in your
calendar for hearing on May 29, 1980 at
8:30 in the morning for submission for
reconsideration and resolution of the
Honorable Court. Until this Motion is
resolved, may I also request for the
future setting of the case for hearing on
the Oppositor's motion to set aside
previously filed.
The hearing of May 29, 1980 was re-set by the court for
June 19, 1980. When the case was called for hearing on
this date, the counsel for petitioner tried to argue his
motion to vacate instead of adducing evidence in
support of the petition for relief. Thus, the respondent
judge issued an order dismissing the petition for relief
for failure to present evidence in support thereof.
Petitioner filed a motion for reconsideration but the
same was denied. In the same order, respondent judge
also denied the motion to vacate for lack of merit.
Hence, this petition.
Meanwhile, on June 6,1982, petitioner Hermogenes
Campos died and left a will, which, incidentally has been
questioned by the respondent, his children and forced
heirs as, on its face, patently null and void, and a
fabrication, appointing Polly Cayetano as the executrix
of his last will and testament. Cayetano, therefore, filed
a motion to substitute herself as petitioner in the instant
case which was granted by the court on September 13,
1982.
A motion to dismiss the petition on the ground that the
rights of the petitioner Hermogenes Campos merged
upon his death with the rights of the respondent and
her sisters, only remaining children and forced heirs was
denied on September 12, 1983.
Petitioner Cayetano persists with the allegations that
the respondent judge acted without or in excess of his
jurisdiction when:
1) He ruled the petitioner lost his
standing in court deprived the Right to
Notice (sic) upon the filing of the
Motion to Dismiss opposition with
waiver of rights or interests against the
estate of deceased Adoracion C.
Campos, thus, paving the way for the
hearing ex-parte of the petition for the
probate of decedent will.
2) He ruled that petitioner can waive,
renounce or repudiate (not made in a
public or authenticated instrument), or
by way of a petition presented to the
court but by way of a motion presented
prior to an order for the distribution of
the estate-the law especially providing
that repudiation of an inheritance must
be presented, within 30 days after it has
issued an order for the distribution of
the estate in accordance with the rules
of Court.
3) He ruled that the right of a forced
heir to his legitime can be divested by a
decree admitting a will to probate in
which no provision is made for the
forced heir in complete disregard of Law
of Succession
 4) He denied petitioner's petition for
Relief on the ground that no evidence
was adduced to support the Petition for
Relief when no Notice nor hearing was
set to afford petitioner to prove the
merit of his petition a denial of the
due process and a grave abuse of
discretion amounting to lack of
jurisdiction.
5) He acquired no jurisdiction over the
testate case, the fact that the Testator
at the time of death was a usual
resident of Dasmarias, Cavite,
consequently Cavite Court of First
Instance has exclusive jurisdiction over
the case (De Borja vs. Tan, G.R. No. L-
7792, July 1955).
The first two issues raised by the petitioner are
anchored on the allegation that the respondent judge
acted with grave abuse of discretion when he allowed
the withdrawal of the petitioner's opposition to the
reprobate of the will.
We find no grave abuse of discretion on the part of the
respondent judge. No proof was adduced to support
petitioner's contention that the motion to withdraw was
secured through fraudulent means and that Atty. Franco
Loyola was not his counsel of record. The records show
that after the firing of the contested motion, the
petitioner at a later date, filed a manifestation wherein
he confirmed that the Motion to Dismiss Opposition
was his voluntary act and deed. Moreover, at the time
the motion was filed, the petitioner's former counsel,
Atty. Jose P. Lagrosa had long withdrawn from the case
and had been substituted by Atty. Franco Loyola who in
turn filed the motion. The present petitioner cannot,
therefore, maintain that the old man's attorney of
record was Atty. Lagrosa at the time of filing the motion.
Since the withdrawal was in order, the respondent judge
acted correctly in hearing the probate of the will ex-
parte, there being no other opposition to the same.
The third issue raised deals with the validity of the
provisions of the will. As a general rule, the probate
court's authority is limited only to the extrinsic validity
of the will, the due execution thereof, the testatrix's
testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic
validity of the will normally comes only after the court
has declared that the will has been duly authenticated.
However, where practical considerations demand that
the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue.
(Maninang vs. Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since
the respondent judge allowed the reprobate of
Adoracion's will, Hermogenes C. Campos was divested
of his legitime which was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have
preterited the petitioner and thus, the respondent judge
should have denied its reprobate outright, the private
respondents have sufficiently established that
Adoracion was, at the time of her death, an American
citizen and a permanent resident of Philadelphia,
Pennsylvania, U.S.A. Therefore, under Article 16 par. (2)
and 1039 of the Civil Code which respectively provide:
Art. 16 par. (2).
xxx xxx xxx
However, intestate and testamentary
successions, both with respect to the
order of succession and to the amount
of successional rights and to the
intrinsic validity of testamentary
provisions, shall be regulated by the
national law of the person whose
succession is under consideration,
whatever may be the nature of the
property and regardless of the country
wherein said property may be found.
Art. 1039.
Capacity to succeed is governed by the
law of the nation of the decedent.
the law which governs Adoracion Campo's will is the law
of Pennsylvania, U.S.A., which is the national law of the
decedent. Although the parties admit that the
Pennsylvania law does not provide for legitimes and that
all the estate may be given away by the testatrix to a
complete stranger, the petitioner argues that such law
should not apply because it would be contrary to the
sound and established public policy and would run
counter to the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of
the provisions of the will, as provided for by Article
16(2) and 1039 of the Civil Code, the national law of the
decedent must apply. This was squarely applied in the
case of Bellis v. Bellis (20 SCRA 358) wherein we ruled:
It is therefore evident that whatever
public policy or good customs may be
involved in our system of legitimes,
Congress has not intended to extend
the same to the succession of foreign
nationals. For it has specifically chosen
to leave, inter alia, the amount of
successional rights, to the decedent's
national law. Specific provisions must
prevail over general ones.
xxx xxx xxx
The parties admit that the decedent,
Amos G. Bellis, was a citizen of the State
of Texas, U.S.A., and under the law of
Texas, there are no forced heirs or
legitimes. Accordingly, since the intrinsic
validity of the provision of the will and
the amount of successional rights are to
be determined under Texas law, the
Philippine Law on legitimes cannot be
applied to the testacy of Amos G. Bellis.
As regards the alleged absence of notice of hearing for
the petition for relief, the records wig bear the fact that
what was repeatedly scheduled for hearing on separate
dates until June 19, 1980 was the petitioner's petition
for relief and not his motion to vacate the order of
January 10, 1979. There is no reason why the petitioner
should have been led to believe otherwise. The court
even admonished the petitioner's failing to adduce
evidence when his petition for relief was repeatedly set
for hearing. There was no denial of due process. The
fact that he requested "for the future setting of the case
for hearing . . ." did not mean that at the next hearing,
the motion to vacate would be heard and given
preference in lieu of the petition for relief. Furthermore,
such request should be embodied in a motion and not
in a mere notice of hearing.
Finally, we find the contention of the petition as to the
issue of jurisdiction utterly devoid of merit. Under Rule
73, Section 1, of the Rules of Court, it is provided that:
SECTION 1. Where estate of deceased
persons settled. If the decedent is an
inhabitant of the Philippines at the time
of his death, whether a citizen or an
alien, his will shall be proved, or letters
of administration granted, and his
estate settled, in the Court of First
Instance in the province in which he
resided at the time of his death, and if
he is an inhabitant of a foreign country,
the Court of First Instance of any
province in which he had estate. The
court first taking cognizance of the
settlement of the estate of a decedent,
shall exercise jurisdiction to the
exclusion of all other courts. The
jurisdiction assumed by a court, so far
as it depends on the place of residence
of the decedent, or of the location of his
estate, shall not be contested in a suit
or proceeding, except in an appeal from
that court, in the original case, or when
the want of jurisdiction appears on the
record.
Therefore, the settlement of the estate of Adoracion
Campos was correctly filed with the Court of First
Instance of Manila where she had an estate since it was
alleged and proven that Adoracion at the time of her
death was a citizen and permanent resident of
Pennsylvania, United States of America and not a "usual
resident of Cavite" as alleged by the petitioner.
Moreover, petitioner is now estopped from questioning
the jurisdiction of the probate court in the petition for
relief. It is a settled rule that a party cannot invoke the
jurisdiction of a court to secure affirmative relief, against
his opponent and after failing to obtain such relief,
repudiate or question that same jurisdiction. (See
Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R.
No. 63 284, April 4, 1984).
WHEREFORE, the petition for certiorari and prohibition
is hereby dismissed for lack of merit.
SO ORDERED.
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
combined personal assets and that of
 the estate of Linnie Jane Hodges. (pp.
91-92. Appellee's Brief.)
xxx xxx xxx
Under date of April 20, 1961, C.N.
Hodges filed his third "Annual
Statement of Account by the Executor
for the Year 1960" of the estate of
Linnie Jane Hodges. In the "Statement
of Net Worth of Mr. C.N. Hodges and
the Estate of Linnie Jane Hodges" as of
December 31, 1960 annexed thereto,
C.N. Hodges reported that the
combined conjugal estate earned a net
income of P314,857.94, divided evenly
between him and the estate of Linnie
Jane Hodges. Pursuant to this, he filed
an "individual income tax return" for
calendar year 1960 on the estate of
Linnie Jane Hodges reporting, under
oath, the said estate as having earned
income of P157,428.97, exactly one-half
of the net income of his combined
personal assets and that of the estate of
Linnie Jane Hodges. (Pp. 92-93,
Appellee's Brief.)
Likewise the following:
In the petition for probate that he
(Hodges) filed, he listed the seven
brothers and sisters of Linnie Jane as
her "heirs" (see p. 2, Green ROA). The
order of the court admitting the will to
probate unfortunately omitted one of
the heirs, Roy Higdon (see p. 14, Green
ROA). Immediately, C.N. Hodges filed a
verified motion to have Roy Higdon's
name included as an heir, stating that
he wanted to straighten the records "in
order the heirs of deceased Roy Higdon
may not think or believe they were
omitted, and that they were really and
are interested in the estate of deceased
Linnie Jane Hodges. .
As an executor, he was bound to file tax
returns for the estate he was
administering under American law. He
did file such as estate tax return on
August 8, 1958. In Schedule "M" of such
return, he answered "Yes" to the
question as to whether he was
contemplating "renouncing the will". On
the question as to what property
interests passed to him as the surviving
spouse, he answered:
"None, except for
purposes of
administering the
Estate, paying debts,
taxes and other legal
charges. It is the
intention of the
surviving husband of
deceased to distribute
the remaining property
and interests of the
deceased in their
Community estate to
the devisees and
legatees named in the
will when the debts,
liabilities, taxes and
expenses of
administration are
finally determined and
paid."
Again, on August 9, 1962, barely four
months before his death, he executed
an "affidavit" wherein he ratified and
confirmed all that he stated in Schedule
"M" of his estate tax returns as to his
having renounced what was given him
by his wife's will.1
As appointed executor, C.N. Hodges
filed an "Inventory" dated May 12,
1958. He listed all the assets of his
conjugal partnership with Linnie Jane
Hodges on a separate balance sheet and
then stated expressly that her estate
which has come into his possession as
executor was "one-half of all the items"
listed in said balance sheet. (Pp. 89-90,
Appellee's Brief.)
Parenthetically, it may be stated, at this juncture, that
We are taking pains to quote wholly or at least,
extensively from some of the pleadings and orders
whenever We feel that it is necessary to do so for a
more comprehensive and clearer view of the important
and decisive issues raised by the parties and a more
accurate appraisal of their respective positions in regard
thereto.
The records of these cases do not show that anything
else was done in the above-mentioned Special
Proceedings No. 1307 until December 26, 1962, when
on account of the death of Hodges the day before, the
same lawyer, Atty. Leon P. Gellada, who had been
previously acting as counsel for Hodges in his capacity as
Executor of his wife's estate, and as such had filed the
aforequoted motions and manifestations, filed the
following:
URGENT EX-PARTE MOTION FOR THE
APPOINTMENT OF A
SPECIAL ADMINISTRATRIX
COMES the undersigned attorney for
the Executor in the above-entitled
proceedings, to the Honorable Court,
most respectfully states:
1. That in accordance with the Last Will
and Testament of Linnie Jane Hodges
(deceased), her husband, Charles
Newton Hodges was to act as Executor,
and in fact, in an order issued by this
Hon. Court dated June 28, 1957, the
said Charles Newton Hodges was
appointed Executor and had performed
the duties as such.
2. That last December 22, 1962, the said
Charles Newton Hodges was stricken ill,
and brought to the Iloilo Mission
Hospital for treatment, but
unfortunately, he died on December 25,
1962, as shown by a copy of the death
certificate hereto attached and marked
as Annex "A".
3. That in accordance with the
provisions of the last will and testament
of Linnie Jane Hodges, whatever real
and personal properties that may
remain at the death of her husband
Charles Newton Hodges, the said
properties shall be equally divided
among their heirs. That there are real
and personal properties left by Charles
Newton Hodges, which need to be
administered and taken care of.
4. That the estate of deceased Linnie
Jane Hodges, as well as that of Charles
Newton Hodges, have not as yet been
determined or ascertained, and there is
necessity for the appointment of a
general administrator to liquidate and
distribute the residue of the estate to
the heirs and legatees of both spouses.
That in accordance with the provisions
of Section 2 of Rule 75 of the Rules of
Court, the conjugal partnership of Linnie
Jane Hodges and Charles Newton
Hodges shall be liquidated in the testate
proceedings of the wife.
5. That the undersigned counsel, has
perfect personal knowledge of the
existence of the last will and testament
of Charles Newton Hodges, with similar
provisions as that contained in the last
will and testament of Linnie Jane
Hodges. However, said last will and
testament of Charles Newton Hodges is
kept inside the vault or iron safe in his
office, and will be presented in due time
before this honorable Court.
6. That in the meantime, it is imperative
and indispensable that, an
Administratrix be appointed for the
estate of Linnie Jane Hodges and a
Special Administratrix for the estate of
Charles Newton Hodges, to perform the
duties required by law, to administer,
collect, and take charge of the goods,
chattels, rights, credits, and estate of
both spouses, Charles Newton Hodges
and Linnie Jane Hodges, as provided for
in Section 1 and 2, Rule 81 of the Rules
of Court.
7. That there is delay in granting letters
testamentary or of administration,
because the last will and testament of
deceased, Charles Newton Hodges, is
still kept in his safe or vault, and in the
meantime, unless an administratrix
(and,) at the same time, a Special
Administratrix is appointed, the estate
of both spouses are in danger of being
lost, damaged or go to waste.
 8. That the most trusted employee of
both spouses Linnie Jane Hodges and
C.N. Hodges, who had been employed
for around thirty (30) years, in the
person of Miss Avelina Magno, (should)
be appointed Administratrix of the
estate of Linnie Jane Hodges and at the
same time Special Administratrix of the
estate of Charles Newton Hodges. That
the said Miss Avelina Magno is of legal
age, a resident of the Philippines, the
most fit, competent, trustworthy and
well-qualified person to serve the duties
of Administratrix and Special
Administratrix and is willing to act as
such.
9. That Miss Avelina Magno is also
willing to file bond in such sum which
the Hon. Court believes reasonable.
WHEREFORE, in view of all the
foregoing, it is most respectfully prayed
that, Miss AVELINA A. MAGNO be
immediately appointed Administratrix
of the estate of Linnie Jane Hodges and
as Special Administratrix of the estate of
Charles Newton Hodges, with powers
and duties provided for by law. That the
Honorable Court fix the reasonable
bond of P1,000.00 to be filed by Avelina
A. Magno.
(Annex "O", Petition.)
which respondent court readily acted on in its order of
even date thus: .
For the reasons alleged in the
Urgent Ex-parte Motion filed by counsel
for the Executor dated December 25,
1962, which the Court finds
meritorious, Miss AVELINA A. MAGNO,
is hereby appointed Administratrix of
the estate of Linnie Jane Hodges and as
Special Administratrix of the estate of
Charles Newton Hodges, in the latter
case, because the last will of said
Charles Newton Hodges is still kept in
his vault or iron safe and that the real
and personal properties of both spouses
may be lost, damaged or go to waste,
unless a Special Administratrix is
appointed.
Miss Avelina A. Magno is required to file
bond in the sum of FIVE THOUSAND
PESOS (P5,000.00), and after having
done so, let letters of Administration be
issued to her." (Annex "P", Petition.)
On December 29, 1962, however, upon
urgent ex-parte petition of respondent
Magno herself, thru Atty. Gellada,
Harold, R. Davies, "a representative of
the heirs of deceased Charles Newton
Hodges (who had) arrived from the
United States of America to help in the
administration of the estate of said
deceased" was appointed as Co-Special
Administrator of the estate of Hodges,
(pp. 29-33, Yellow - Record on Appeal)
only to be replaced as such co-special
administrator on January 22, 1963 by
Joe Hodges, who, according to the
motion of the same attorney, is "the
nephew of the deceased (who had)
arrived from the United States with
instructions from the other heirs of the
deceased to administer the properties
or estate of Charles Newton Hodges in
the Philippines, (Pp. 47-50, id.)
Meanwhile, under date of January 9, 1963, the same
Atty. Gellada filed in Special Proceedings 1672 a petition
for the probate of the will of Hodges, 2 with a prayer for
the issuance of letters of administration to the same Joe
Hodges, albeit the motion was followed on February 22,
1963 by a separate one asking that Atty. Fernando
Mirasol be appointed as his co-administrator. On the
same date this latter motion was filed, the court issued
the corresponding order of probate and letters of
administration to Joe Hodges and Atty. Mirasol, as
prayed for.
At this juncture, again, it may also be explained that just
as, in her will, Mrs. Hodges bequeathed her whole
estate to her husband "to have and to hold unto him,
my said husband, during his natural lifetime", she, at the
same time or in like manner, provided that "at the death
of my said husband I give devise and bequeath all of
the rest, residue and remainder of my estate, both real
and personal, wherever situated or located, to be
equally divided among my brothers and sisters, share
and share alike ". Accordingly, it became incumbent
upon Hodges, as executor of his wife's will, to duly
liquidate the conjugal partnership, half of which
constituted her estate, in order that upon the
eventuality of his death, "the rest, residue and
remainder" thereof could be determined and
correspondingly distributed or divided among her
brothers and sisters. And it was precisely because no
such liquidation was done, furthermore, there is the
issue of whether the distribution of her estate should be
governed by the laws of the Philippines or those of
Texas, of which State she was a national, and, what is
more, as already stated, Hodges made official and sworn
statements or manifestations indicating that as far as he
was concerned no "property interests passed to him as
surviving spouse "except for purposes of
administering the estate, paying debts, taxes and other
legal charges" and it was the intention of the surviving
husband of the deceased to distribute the remaining
property and interests of the deceased in their
Community Estate to the devisees and legatees named
in the will when the debts, liabilities, taxes and expenses
of administration are finally determined and paid", that
the incidents and controversies now before Us for
resolution arose. As may be observed, the situation that
ensued upon the death of Hodges became rather
unusual and so, quite understandably, the lower court's
actuations presently under review are apparently
wanting in consistency and seemingly lack proper
orientation.
Thus, We cannot discern clearly from the record before
Us the precise perspective from which the trial court
proceeded in issuing its questioned orders. And,
regretably, none of the lengthy briefs submitted by the
parties is of valuable assistance in clearing up the
matter.
To begin with, We gather from the two records on
appeal filed by petitioner, as appellant in the appealed
cases, one with green cover and the other with a yellow
cover, that at the outset, a sort of modus operandi had
been agreed upon by the parties under which the
respective administrators of the two estates were
supposed to act conjointly, but since no copy of the said
agreement can be found in the record before Us, We
have no way of knowing when exactly such agreement
was entered into and under what specific terms. And
while reference is made to said modus operandi in the
order of September 11, 1964, on pages 205-206 of the
Green Record on Appeal, reading thus:
The present incident is to hear the side
of administratrix, Miss Avelina A.
Magno, in answer to the charges
contained in the motion filed by Atty.
Cesar Tirol on September 3, 1964. In
answer to the said charges, Miss Avelina
A. Magno, through her counsel, Atty.
Rizal Quimpo, filed a written
manifestation.
After reading the manifestation here of
Atty. Quimpo, for and in behalf of the
administratrix, Miss Avelina A. Magno,
the Court finds that everything that
happened before September 3, 1964,
which was resolved on September 8,
1964, to the satisfaction of parties, was
simply due to a misunderstanding
between the representative of the
Philippine Commercial and Industrial
Bank and Miss Magno and in order to
restore the harmonious relations
between the parties, the Court ordered
the parties to remain in status quo as to
their modus operandi before September
1, 1964, until after the Court can have a
meeting with all the parties and their
counsels on October 3, as formerly
agreed upon between counsels, Attys.
Ozaeta, Gibbs and Ozaeta, Attys. Tirol
and Tirol and Atty. Rizal Quimpo.
In the meantime, the prayers of Atty.
Quimpo as stated in his manifestation
shall not be resolved by this Court until
October 3, 1964.
SO ORDERED.
there is nothing in the record indicating whatever
happened to it afterwards, except that again, reference
thereto was made in the appealed order of October 27,
1965, on pages 292-295 of the Green Record on Appeal,
as follows:
On record is an urgent motion to allow
PCIB to open all doors and locks in the
Hodges Office at 206-208 Guanco
Street, Iloilo City, to take immediate and
exclusive possession thereof and to
place its own locks and keys for security
purposes of the PCIB dated October 27,
1965 thru Atty. Cesar Tirol. It is alleged
in said urgent motion that
Administratrix Magno of the testate
estate of Linnie Jane Hodges refused to
open the Hodges Office at 206-208
Guanco Street, Iloilo City where PCIB
holds office and therefore PCIB is
suffering great moral damage and
prejudice as a result of said act. It is
prayed that an order be issued
authorizing it (PCIB) to open all doors
and locks in the said office, to take
immediate and exclusive possession
thereof and place thereon its own locks
and keys for security purposes;
instructing the clerk of court or any
available deputy to witness and
supervise the opening of all doors and
locks and taking possession of the PCIB.
A written opposition has been filed by
Administratrix Magno of even date (Oct.
27) thru counsel Rizal Quimpo stating
therein that she was compelled to close
the office for the reason that the PCIB
failed to comply with the order of this
Court signed by Judge Anacleto I.
Bellosillo dated September 11, 1964 to
the effect that both estates should
remain in status quo to their modus
operandi as of September 1, 1964.
To arrive at a happy solution of the
dispute and in order not to interrupt the
operation of the office of both estates,
the Court aside from the reasons stated
in the urgent motion and opposition
heard the verbal arguments of Atty.
Cesar Tirol for the PCIB and Atty. Rizal
Quimpo for Administratix Magno.
After due consideration, the Court
hereby orders Magno to open all doors
and locks in the Hodges Office at 206-
208 Guanco Street, Iloilo City in the
presence of the PCIB or its duly
authorized representative and deputy
clerk of court Albis of this branch not
later than 7:30 tomorrow morning
October 28, 1965 in order that the
office of said estates could operate for
business.
Pursuant to the order of this Court thru
Judge Bellosillo dated September 11,
1964, it is hereby ordered:
(a) That all cash collections should be
deposited in the joint account of the
estates of Linnie Jane Hodges and
estates of C.N. Hodges;
(b) That whatever cash collections that
had been deposited in the account of
either of the estates should be
withdrawn and since then deposited in
the joint account of the estate of Linnie
Jane Hodges and the estate of C.N.
Hodges;
(c) That the PCIB should countersign the
check in the amount of P250 in favor of
Administratrix Avelina A. Magno as her
compensation as administratrix of the
Linnie Jane Hodges estate chargeable to
the testate estate of Linnie Jane Hodges
only;
(d) That Administratrix Magno is hereby
directed to allow the PCIB to inspect
whatever records, documents and
papers she may have in her possession
in the same manner that Administrator
PCIB is also directed to allow
Administratrix Magno to inspect
whatever records, documents and
papers it may have in its possession;
(e) That the accountant of the estate of
Linnie Jane Hodges shall have access to
all records of the transactions of both
estates for the protection of the estate
of Linnie Jane Hodges; and in like
manner the accountant or any
authorized representative of the estate
of C.N. Hodges shall have access to the
records of transactions of the Linnie
Jane Hodges estate for the protection of
the estate of C.N. Hodges.
Once the estates' office shall have been
opened by Administratrix Magno in the
presence of the PCIB or its duly
authorized representative and deputy
clerk Albis or his duly authorized
representative, both estates or any of
the estates should not close it without
previous consent and authority from
this court.
 SO ORDERED.
As may be noted, in this order, the respondent court
required that all collections from the properties in the
name of Hodges should be deposited in a joint account
of the two estates, which indicates that seemingly the
so-called modus operandi was no longer operative, but
again there is nothing to show when this situation
started.
Likewise, in paragraph 3 of the petitioner's motion of
September 14, 1964, on pages 188-201 of the Green
Record on Appeal, (also found on pp. 83-91 of the
Yellow Record on Appeal) it is alleged that:
3. On January 24, 1964 virtually all of
the heirs of C.N. Hodges, Joe Hodges
and Fernando P. Mirasol acting as the
two co-administrators of the estate of
C.N. Hodges, Avelina A. Magno acting as
the administratrix of the estate of Linnie
Jane Hodges and Messrs. William Brown
and Ardell Young acting for all of the
Higdon family who claim to be the sole
beneficiaries of the estate of Linnie Jane
Hodges and various legal counsel
representing the aforementioned
parties entered into an amicable
agreement, which was approved by this
Honorable Court, wherein the parties
thereto agreed that certain sums of
money were to be paid in settlement of
different claims against the two estates
and that the assets (to the extent they
existed) of both estates would be
administered jointly by the PCIB as
administrator of the estate of C.N.
Hodges and Avelina A. Magno as
administratrix of the estate of Linnie
Jane Hodges, subject, however, to the
aforesaid October 5, 1963 Motion,
namely, the PCIB's claim to exclusive
possession and ownership of one
hundred percent (100%) (or, in the
alternative, seventy-five percent (75%)
of all assets owned by C.N. Hodges or
Linnie Jane Hodges situated in the
Philippines. On February 1, 1964 (pp.
934-935, CFI Rec., S.P. No. 1672) this
Honorable Court amended its order of
January 24, 1964 but in no way changed
its recognition of the afore-described
basic demand by the PCIB as
administrator of the estate of C.N.
Hodges to one hundred percent (100%)
of the assets claimed by both estates.
but no copy of the mentioned agreement of joint
administration of the two estates exists in the record,
and so, We are not informed as to what exactly are the
terms of the same which could be relevant in the
resolution of the issues herein.
On the other hand, the appealed order of November 3,
1965, on pages 313-320 of the Green Record on Appeal,
authorized payment by respondent Magno of, inter alia,
her own fees as administratrix, the attorney's fees of her
lawyers, etc., as follows:
Administratrix Magno thru Attys. Raul S.
Manglapus and Rizal. R. Quimpo filed a
Manifestation and Urgent Motion dated
June 10, 1964 asking for the approval of
the Agreement dated June 6, 1964
which Agreement is for the purpose of
retaining their services to protect and
defend the interest of the said
Administratrix in these proceedings and
the same has been signed by and bears
the express conformity of the attorney-
in-fact of the late Linnie Jane Hodges,
Mr. James L. Sullivan. It is further prayed
that the Administratrix of the Testate
Estate of Linnie Jane Hodges be directed
to pay the retailers fee of said lawyers,
said fees made chargeable as expenses
for the administration of the estate of
Linnie Jane Hodges (pp. 1641-1642, Vol.
V, Sp. 1307).
An opposition has been filed by the
Administrator PCIB thru Atty. Herminio
Ozaeta dated July 11, 1964, on the
ground that payment of the retainers
fee of Attys. Manglapus and Quimpo as
prayed for in said Manifestation and
Urgent Motion is prejudicial to the
100% claim of the estate of C. N.
Hodges; employment of Attys.
Manglapus and Quimpo is premature
and/or unnecessary; Attys. Quimpo and
Manglapus are representing conflicting
interests and the estate of Linnie Jane
Hodges should be closed and
terminated (pp. 1679-1684, Vol, V, Sp.
1307).
Atty. Leon P. Gellada filed a
memorandum dated July 28, 1964
asking that the Manifestation and
Urgent Motion filed by Attys.
Manglapus and Quimpo be denied
because no evidence has been
presented in support thereof. Atty.
Manglapus filed a reply to the
opposition of counsel for the
Administrator of the C. N. Hodges estate
wherein it is claimed that expenses of
administration include reasonable
counsel or attorney's fees for services to
the executor or administrator. As a
matter of fact the fee agreement dated
February 27, 1964 between the PCIB
and the law firm of Ozaeta, Gibbs &
Ozaeta as its counsel (Pp. 1280-1284,
Vol. V, Sp. 1307) which stipulates the
fees for said law firm has been
approved by the Court in its order dated
March 31, 1964. If payment of the fees
of the lawyers for the administratrix of
the estate of Linnie Jane Hodges will
cause prejudice to the estate of C. N.
Hodges, in like manner the very
agreement which provides for the
payment of attorney's fees to the
counsel for the PCIB will also be
prejudicial to the estate of Linnie Jane
Hodges (pp. 1801-1814, Vol. V, Sp.
1307).
Atty. Herminio Ozaeta filed a rejoinder
dated August 10, 1964 to the reply to
the opposition to the Manifestation and
Urgent Motion alleging principally that
the estates of Linnie Jane Hodges and C.
N. Hodges are not similarly situated for
the reason that C. N. Hodges is an heir
of Linnie Jane Hodges whereas the
latter is not an heir of the former for the
reason that Linnie Jane Hodges
predeceased C. N. Hodges (pp. 1839-
1848, Vol. V, Sp. 1307); that Attys.
Manglapus and Quimpo formally
entered their appearance in behalf of
Administratrix of the estate of Linnie
Jane Hodges on June 10, 1964 (pp.
1639-1640, Vol. V, Sp. 1307).
Atty. Manglapus filed a manifestation
dated December 18, 1964 stating
therein that Judge Bellosillo issued an
order requiring the parties to submit
memorandum in support of their
respective contentions. It is prayed in
this manifestation that the
Manifestation and Urgent Motion dated
June 10, 1964 be resolved (pp. 6435-
6439, Vol. VII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB
filed a counter- manifestation dated
January 5, 1965 asking that after the
consideration by the court of all
allegations and arguments and
pleadings of the PCIB in connection
therewith (1) said manifestation and
urgent motion of Attys. Manglapus and
Quimpo be denied (pp. 6442-6453, Vol.
VII, Sp. 1307). Judge Querubin issued an
order dated January 4, 1965 approving
the motion dated June 10, 1964 of the
attorneys for the administratrix of the
estate of Linnie Jane Hodges and
agreement annexed to said motion. The
said order further states: "The
Administratrix of the estate of Linnie
Jane Hodges is authorized to issue or
sign whatever check or checks may be
necessary for the above purpose and
the administrator of the estate of C. N.
Hodges is ordered to countersign the
same. (pp. 6518-6523, Vol VII, Sp.
1307).
Atty. Roman Mabanta, Jr. for the PCIB
filed a manifestation and motion dated
January 13, 1965 asking that the order
of January 4, 1965 which was issued by
Judge Querubin be declared null and
void and to enjoin the clerk of court and
the administratrix and administrator in
these special proceedings from all
proceedings and action to enforce or
comply with the provision of the
aforesaid order of January 4, 1965. In
support of said manifestation and
motion it is alleged that the order of
January 4, 1965 is null and void because
the said order was never delivered to
the deputy clerk Albis of Branch V (the
sala of Judge Querubin) and the alleged
order was found in the drawer of the
late Judge Querubin in his office when
said drawer was opened on January 13,
1965 after the death of Judge Querubin
by Perfecto Querubin, Jr., the son of the
judge and in the presence of Executive
Judge Rovira and deputy clerk Albis
(Sec. 1, Rule 36, New Civil Code) (Pp.
6600-6606, Vol. VIII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB
filed a motion for reconsideration dated
February 23, 1965 asking that the order
dated January 4, 1964 be reversed on
the ground that:
1. Attorneys retained must render
services to the estate not to the
personal heir;
2. If services are rendered to both, fees
should be pro-rated between them;
3. Attorneys retained should not
represent conflicting interests; to the
prejudice of the other heirs not
represented by said attorneys;
4. Fees must be commensurate to the
actual services rendered to the estate;
5. There must be assets in the estate to
pay for said fees (Pp. 6625-6636, Vol.
VIII, Sp. 1307).
Atty. Quimpo for Administratrix Magno
of the estate of Linnie Jane Hodges filed
a motion to submit dated July 15, 1965
asking that the manifestation and
urgent motion dated June 10, 1964 filed
by Attys. Manglapus and Quimpo and
other incidents directly appertaining
thereto be considered submitted for
consideration and approval (pp. 6759-
6765, Vol. VIII, Sp. 1307).
Considering the arguments and reasons
in support to the pleadings of both the
Administratrix and the PCIB, and of Atty.
Gellada, hereinbefore mentioned, the
Court believes that the order of January
4, 1965 is null and void for the reason
that the said order has not been filed
with deputy clerk Albis of this court
(Branch V) during the lifetime of Judge
Querubin who signed the said order.
However, the said manifestation and
urgent motion dated June 10, 1964 is
being treated and considered in this
instant order. It is worthy to note that in
the motion dated January 24, 1964 (Pp.
1149- 1163, Vol. V, Sp. 1307) which has
been filed by Atty. Gellada and his
associates and Atty. Gibbs and other
lawyers in addition to the stipulated
fees for actual services rendered.
However, the fee agreement dated
February 27, 1964, between the
Administrator of the estate of C. N.
Hodges and Atty. Gibbs which provides
for retainer fee of P4,000 monthly in
addition to specific fees for actual
appearances, reimbursement for
expenditures and contingent fees has
also been approved by the Court and
said lawyers have already been paid.
(pp. 1273-1279, Vol. V, Sp. Proc. 1307
pp. 1372-1373, Vol. V, Sp. Proc. 1307).
WHEREFORE, the order dated January 4,
1965 is hereby declared null and void.
The manifestation and motion dated
June 10, 1964 which was filed by the
attorneys for the administratrix of the
testate estate of Linnie Jane Hodges is
granted and the agreement annexed
thereto is hereby approved.
The administratrix of the estate of
Linnie Jane Hodges is hereby directed to
be needed to implement the approval
of the agreement annexed to the
motion and the administrator of the
estate of C. N. Hodges is directed to
countersign the said check or checks as
the case may be.
SO ORDERED.
thereby implying somehow that the court assumed the
existence of independent but simultaneous
administrations.
Be that as it may, again, it appears that on August 6,
1965, the court, acting on a motion of petitioner for the
approval of deeds of sale executed by it as administrator
of the estate of Hodges, issued the following order, also
on appeal herein:
Acting upon the motion for approval of
deeds of sale for registered land of the
PCIB, Administrator of the Testate Estate
of C. N. Hodges in Sp. Proc. 1672 (Vol.
VII, pp. 2244-2245), dated July 16, 1965,
filed by Atty. Cesar T. Tirol in
representation of the law firms of
Ozaeta, Gibbs and Ozaeta and Tirol and
Tirol and the opposition thereto of Atty.
Rizal R. Quimpo (Vol. VIII, pp. 6811-
6813) dated July 22, 1965 and
considering the allegations and reasons
therein stated, the court believes that
the deeds of sale should be signed
jointly by the PCIB, Administrator of the
Testate Estate of C. N. Hodges and
Avelina A. Magno, Administratrix of the
Testate Estate of Linnie Jane Hodges and
to this effect the PCIB should take the
necessary steps so that Administratrix
Avelina A. Magno could sign the deeds
of sale.
SO ORDERED. (p. 248, Green Record on
Appeal.)
Notably this order required that even the deeds
executed by petitioner, as administrator of the Estate of
Hodges, involving properties registered in his name,
should be co-signed by respondent Magno.3 And this
was not an isolated instance.
In her brief as appellee, respondent Magno states:
After the lower court had authorized
appellee Avelina A. Magno to execute
final deeds of sale pursuant to contracts
to sell executed by C. N. Hodges on
February 20, 1963 (pp. 45-46, Green
ROA), motions for the approval of final
deeds of sale (signed by appellee
Avelina A. Magno and the administrator
of the estate of C. N. Hodges, first Joe
Hodges, then Atty. Fernando Mirasol
and later the appellant) were approved
by the lower court upon petition of
appellee Magno's counsel, Atty. Leon P.
Gellada, on the basis of section 8 of
Rule 89 of the Revised Rules of Court.
Subsequently, the appellant, after it had
taken over the bulk of the assets of the
two estates, started presenting these
motions itself. The first such attempt
was a "Motion for Approval of Deeds of
Sale for Registered Land and
Cancellations of Mortgages" dated July
21, 1964 filed by Atty. Cesar T. Tirol,
counsel for the appellant, thereto
annexing two (2) final deeds of sale and
two (2) cancellations of mortgages
signed by appellee Avelina A. Magno
and D. R. Paulino, Assistant Vice-
President and Manager of the appellant
(CFI Record, Sp. Proc. No. 1307, Vol. V,
pp. 1694-1701). This motion was
approved by the lower court on July 27,
1964. It was followed by another
motion dated August 4, 1964 for the
approval of one final deed of sale again
signed by appellee Avelina A. Magno
and D. R. Paulino (CFI Record, Sp. Proc.
No. 1307. Vol. V, pp. 1825-1828), which
was again approved by the lower court
on August 7, 1964. The gates having
been opened, a flood ensued: the
appellant subsequently filed similar
motions for the approval of a multitude
of deeds of sales and cancellations of
mortgages signed by both the appellee
Avelina A. Magno and the appellant.
A random check of the records of
Special Proceeding No. 1307 alone will
show Atty. Cesar T. Tirol as having
presented for court approval deeds of
sale of real properties signed by both
appellee Avelina A. Magno and D. R.
Paulino in the following numbers: (a)
motion dated September 21, 1964 6
deeds of sale; (b) motion dated
November 4, 1964 1 deed of sale; (c)
motion dated December 1, 1964 4
deeds of sale; (d) motion dated
February 3, 1965 8 deeds of sale; (f)
motion dated May 7, 1965 9 deeds of
sale. In view of the very extensive
landholdings of the Hodges spouses and
the many motions filed concerning
deeds of sale of real properties
executed by C. N. Hodges the lower
court has had to constitute special
separate expedientes in Special
Proceedings Nos. 1307 and 1672 to
include mere motions for the approval
of deeds of sale of the conjugal
properties of the Hodges spouses.
As an example, from among the very
many, under date of February 3, 1965,
Atty. Cesar T. Tirol, as counsel for the
appellant, filed "Motion for Approval of
Deeds of Sale for Registered Land and
Cancellations of Mortgages" (CFI
Record, Sp. Proc. No. 1307, Vol. VIII, pp.
6570-6596) the allegations of which
read:
"1. In his lifetime, the late C. N. Hodges
executed "Contracts to Sell" real
property, and the prospective buyers
under said contracts have already paid
the price and complied with the terms
and conditions thereof;
"2. In the course of administration of
both estates, mortgage debtors have
already paid their debts secured by
chattel mortgages in favor of the late C.
N. Hodges, and are now entitled to
release therefrom;
"3. There are attached hereto
documents executed jointly by the
Administratrix in Sp. Proc. No. 1307 and
the Administrator in Sp. Proc. No. 1672,
consisting of deeds of sale in favor
Fernando Cano,
Bacolod City, Occ.
Negros
Fe Magbanua, Iloilo City
Policarpio M. Pareno, La
Paz, Iloilo City
Rosario T. Libre, Jaro,
Iloilo City
Federico B. Torres, Iloilo
City
Reynaldo T. Lataquin, La
Paz, Iloilo City
Anatolio T. Viray, Iloilo
City
Benjamin Rolando, Jaro,
Iloilo City
and cancellations of mortgages in favor
of
Pablo Manzano, Oton,
Iloilo
Ricardo M. Diana, Dao,
San Jose, Antique
Simplicio Tingson, Iloilo
City
Amado Magbanua,
Pototan, Iloilo
Roselia M. Baes, Bolo,
Roxas City
William Bayani, Rizal
Estanzuela, Iloilo City
Elpidio Villarete, Molo,
Iloilo City
Norma T. Ruiz, Jaro,
Iloilo City
"4. That the approval of
the aforesaid
documents will not
reduce the assets of the
estates so as to prevent
any creditor from
receiving his full debt or
diminish his dividend."
And the prayer of this motion is indeed
very revealing:
"WHEREFORE, it is respectfully prayed
that, under Rule 89, Section 8 of the
Rules of Court, this honorable court
approve the aforesaid deeds of sale and
cancellations of mortgages." (Pp. 113-
117, Appellee's Brief.)
None of these assertions is denied in Petitioner's reply
brief.
Further indicating lack of concrete perspective or
orientation on the part of the respondent court and its
hesitancy to clear up matters promptly, in its other
appealed order of November 23, 1965, on pages 334-
335 of the Green Record on Appeal, said respondent
court allowed the movant Ricardo Salas, President of
appellee Western Institute of Technology (successor of
Panay Educational Institutions, Inc.), one of the parties
with whom Hodges had contracts that are in question in
the appeals herein, to pay petitioner, as Administrator
of the estate of Hodges and/or respondent Magno, as
Administrator of the estate of Mrs. Hodges, thus:
 Considering that in both cases there is
as yet no judicial declaration of heirs
nor distribution of properties to
whomsoever are entitled thereto, the
Court believes that payment to both the
administrator of the testate estate of C.
N. Hodges and the administratrix of the
testate estate of Linnie Jane Hodges or
to either one of the two estates is
proper and legal.
WHEREFORE, movant Ricardo T. Salas
can pay to both estates or either of
them.
SO ORDERED.
(Pp. 334-335, Green Record on Appeal.)
On the other hand, as stated earlier, there were
instances when respondent Magno was given authority
to act alone. For instance, in the other appealed order
of December 19, 1964, on page 221 of the Green Record
on Appeal, the respondent court approved payments
made by her of overtime pay to some employees of the
court who had helped in gathering and preparing copies
of parts of the records in both estates as follows:
Considering that the expenses subject
of the motion to approve payment of
overtime pay dated December 10, 1964,
are reasonable and are believed by this
Court to be a proper charge of
administration chargeable to the testate
estate of the late Linnie Jane Hodges,
the said expenses are hereby
APPROVED and to be charged against
the testate estate of the late Linnie Jane
Hodges. The administrator of the
testate estate of the late Charles
Newton Hodges is hereby ordered to
countersign the check or checks
necessary to pay the said overtime pay
as shown by the bills marked Annex "A",
"B" and "C" of the motion.
SO ORDERED.
(Pp. 221-222, Green Record on Appeal.)
Likewise, the respondent court approved deeds of sale
executed by respondent Magno alone, as Administratrix
of the estate of Mrs. Hodges, covering properties in the
name of Hodges, pursuant to "contracts to sell"
executed by Hodges, irrespective of whether they were
executed by him before or after the death of his wife.
The orders of this nature which are also on appeal
herein are the following:
1. Order of March 30, 1966, on p. 137 of the Green
Record on Appeal, approving the deed of sale executed
by respondent Magno in favor of appellee Lorenzo
Carles on February 24, 1966, pursuant to a "contract to
sell" signed by Hodges on June 17, 1958, after the death
of his wife, which contract petitioner claims was
cancelled by it for failure of Carles to pay the
installments due on January 7, 1965.
2. Order of April 5, 1966, on pp. 139-140, id., approving
the deed of sale executed by respondent Magno in favor
of appellee Salvador Guzman on February 28, 1966
pursuant to a "contract to sell" signed by Hodges on
September 13, 1960, after the death of his wife, which
contract petitioner claims it cancelled on March 3, 1965
in view of failure of said appellee to pay the installments
on time.
3. Order of April 20, 1966, on pp. 167-168, id., approving
the deed of sale executed by respondent Magno in favor
of appellee Purificacion Coronado on March 28, 1966
pursuant to a "contract to sell" signed by Hodges on
August 14, 1961, after the death of his wife.
4. Order of April 20, 1966, on pp. 168-169, id., approving
the deed of sale executed by respondent Magno in favor
of appellee Florenia Barrido on March 28, 1966,
pursuant to a "contract to sell" signed by Hodges on
February 21, 1958, after the death of his wife.
5. Order of June 7, 1966, on pp. 184-185, id., approving
the deed of sale executed by respondent Magno in favor
of appellee Belcezar Causing on May 2, 1966, pursuant
to a "contract to sell" signed by Hodges on February 10,
1959, after the death of his wife.
6. Order of June 21, 1966, on pp. 211-212, id., approving
the deed of sale executed by respondent Magno in favor
of appellee Artheo Thomas Jamir on June 3, 1966,
pursuant to a "contract to sell" signed by Hodges on
May 26, 1961, after the death of his wife.
7. Order of June 21, 1966, on pp. 212-213, id., approving
the deed of sale executed by respondent Magno in favor
of appellees Graciano Lucero and Melquiades Batisanan
on June 6 and June 3, 1966, respectively, pursuant to
"contracts to sell" signed by Hodges on June 9, 1959 and
November 27, 1961, respectively, after the death of his
wife.
8. Order of December 2, 1966, on pp. 303-304, id.,
approving the deed of sale executed by respondent
Magno in favor of appellees Espiridion Partisala,
Winifredo Espada and Rosario Alingasa on September 6,
1966, August 17, 1966 and August 3, 1966, respectively,
pursuant to "contracts to sell" signed by Hodges on April
20, 1960, April 18, 1960 and August 25, 1958,
respectively, that is, after the death of his wife.
9. Order of April 5, 1966, on pp. 137-138, id., approving
the deed of sale executed by respondent Magno in favor
of appellee Alfredo Catedral on March 2, 1966, pursuant
to a "contract to sell" signed by Hodges on May 29,
1954, before the death of his wife, which contract
petitioner claims it had cancelled on February 16, 1966
for failure of appellee Catedral to pay the installments
due on time.
10. Order of April 5, 1966, on pp. 138-139, id., approving
the deed of sale executed by respondent Magno in favor
of appellee Jose Pablico on March 7, 1966, pursuant to a
"contract to sell" signed by Hodges on March 7, 1950,
after the death of his wife, which contract petitioner
claims it had cancelled on June 29, 1960, for failure of
appellee Pablico to pay the installments due on time.
11. Order of December 2, 1966, on pp. 303-304, id.,
insofar as it approved the deed of sale executed by
respondent Magno in favor of appellee Pepito Iyulores
on September 6, 1966, pursuant to a "contract to sell"
signed by Hodges on February 5, 1951, before the death
of his wife.
12. Order of January 3, 1967, on pp. 335-336, id.,
approving three deeds of sale executed by respondent
Magno, one in favor of appellees Santiago Pacaonsis and
two in favor of appellee Adelfa Premaylon on December
5, 1966 and November 3, 1966, respectively, pursuant to
separate "promises to sell" signed respectively by
Hodges on May 26, 1955 and January 30, 1954, before
the death of his wife, and October 31, 1959, after her
death.
In like manner, there were also instances when
respondent court approved deeds of sale executed by
petitioner alone and without the concurrence of
respondent Magno, and such approvals have not been
the subject of any appeal. No less than petitioner points
this out on pages 149-150 of its brief as appellant thus:
The points of fact and law pertaining to
the two abovecited assignments of
error have already been discussed
previously. In the first abovecited error,
the order alluded to was general, and as
already explained before, it was, as
admitted by the lower court itself,
superseded by the particular orders
approving specific final deeds of sale
executed by the appellee, Avelina A.
Magno, which are subject of this
appeal, as well as the particular orders
approving specific final deeds of sale
executed by the appellant, Philippine
Commercial and Industrial Bank, which
were never appealed by the appellee,
Avelina A. Magno, nor by any party for
that matter, and which are now
therefore final.
Now, simultaneously with the foregoing incidents,
others of more fundamental and all embracing
significance developed. On October 5, 1963, over the
signature of Atty. Allison J. Gibbs in representation of
the law firm of Ozaeta, Gibbs & Ozaeta, as counsel for
the co-administrators Joe Hodges and Fernando P.
Mirasol, the following self-explanatory motion was filed:
URGENT MOTION FOR
AN ACCOUNTING AND
DELIVERY TO
ADMINISTRATION OF
THE ESTATE OF C. N.
HODGES OF ALL OF THE
ASSETS OF THE
CONJUGAL
PARTNERSHIP OF THE
DECEASED LINNIE JANE
HODGES AND C N.
HODGES EXISTING AS
OF MAY 23, 1957 PLUS
ALL THE RENTS,
EMOLUMENTS AND
INCOME THEREFROM.
COMES NOW the co-administrator of
the estate of C. N. Hodges, Joe Hodges,
through his undersigned attorneys in
the above-entitled proceedings, and to
this Honorable Court respectfully
alleges:
 (1) On May 23, 1957 Linnie Jane Hodges executor is further
died in Iloilo City. authorized to execute
subsequent sales,
(2) On June 28, 1957 this Honorable conveyances, leases
Court admitted to probate the Last Will and mortgages of the
and Testament of the deceased Linnie properties left by the
Jane Hodges executed November 22, said deceased Linnie
1952 and appointed C. N. Hodges as Jane Hodges in
Executor of the estate of Linnie Jane consonance with the
Hodges (pp. 24-25, Rec. Sp. Proc. 1307). wishes contained in the
last will and testament
(3) On July 1, 1957 this Honorable Court of the latter."
issued Letters Testamentary to C. N.
Hodges in the Estate of Linnie Jane (p. 46, Rec. Sp. Proc.
Hodges (p. 30, Rec. Sp. Proc. 1307). 1307; emphasis
supplied.)
(4) On December 14, 1957 this
Honorable Court, on the basis of the (5) On April 21, 1959 this Honorable
following allegations in a Motion dated Court approved the inventory and
December 11, 1957 filed by Leon P. accounting submitted by C. N. Hodges
Gellada as attorney for the executor C. through his counsel Leon P. Gellada on
N. Hodges: April 14, 1959 wherein he alleged
among other things
"That herein Executor,
(is) not only part owner "That no person
of the properties left as interested in the
conjugal, but also, the Philippines of the time
successor to all the and place of examining
properties left by the the herein account, be
deceased Linnie Jane given notice, as herein
Hodges." executor is the only
devisee or legatee of
(p. 44, Rec. Sp. Proc. the deceased, in
1307; emphasis accordance with the
supplied.) last will and testament
already probated by the
issued the following order: Honorable Court."

"As prayed for by (pp. 77-78, Rec. Sp.

Attorney Gellada, Proc. 1307; emphasis
counsel for the supplied.).
Executory, for the
reasons stated in his (6) On July 30, 1960 this Honorable
motion dated Court approved the "Annual Statement
December 11, 1957 of Account" submitted by C. N. Hodges
which the court through his counsel Leon P. Gellada on
considers well taken, all July 21, 1960 wherein he alleged among
the sales, conveyances, other things:
leases and mortgages of
all properties left by the "That no person
deceased Linnie Jane interested in the
Hodges are hereby Philippines of the time
APPROVED. The said and place of examining
 the herein account, be "Administratrix of the estate of Linnie
given notice as herein Jane Hodges and as Special
executor is the only Administratrix of the estate of Charles
devisee or legatee of Newton Hodges, in the latter case,
the deceased Linnie because the last will of said Charles
Jane Hodges, in Newton Hodges is still kept in his vault
accordance with the or iron safe and that the real and
last will and testament personal properties of both spouses
of the deceased, may be lost, damaged or go to waste,
already probated by unless a Special Administratrix is
this Honorable Court." appointed."

(pp. 81-82. Rec. Sp. (p. 100. Rec. Sp. Proc. 1307)
Proc. 1307; emphasis
supplied.) (10) On December 26, 1962 Letters of
Administration were issued to Avelina
(7) On May 2, 1961 this Honorable court Magno pursuant to this Honorable
approved the "Annual Statement of Court's aforesaid Order of December
Account By The Executor for the Year 25, 1962
1960" submitted through Leon P.
Gellada on April 20, 1961 wherein he "With full authority to
alleged: take possession of all
the property of said
That no person deceased in any
interested in the province or provinces in
Philippines be given which it may be
notice, of the time and situated and to perform
place of examining the all other acts necessary
herein account, for the preservation of
as herein Executor is said property, said
the only devisee or Administratrix and/or
legatee of the deceased Special Administratrix
Linnie Jane Hodges, in having filed a bond
accordance with the satisfactory to the
last will and testament Court."
of the deceased,
already probated by (p. 102, Rec. Sp. Proc.
this Honorable Court. 1307)

(pp. 90-91. Rec. Sp.
Proc. 1307; emphasis
supplied.)
(8) On December 25, 1962, C.N. Hodges
died.
(9) On December 25, 1962, on the
Urgent Ex-parte Motion of Leon P.
Gellada filed only in Special Proceeding
No. 1307, this Honorable Court
appointed Avelina A. Magno
(11) On January 22, 1963 this Honorable
Court on petition of Leon P. Gellada of
January 21, 1963 issued Letters of
Administration to:
(a) Avelina A. Magno as Administratrix
of the estate of Linnie Jane Hodges;
(b) Avelina A. Magno as Special
Administratrix of the Estate of Charles
Newton Hodges; and
(c) Joe Hodges as Co-Special
Administrator of the Estate of Charles
Newton Hodges.
(p. 43, Rec. Sp. Proc. 1307)
(12) On February 20, 1963 this
Honorable Court on the basis of a
motion filed by Leon P. Gellada as legal
counsel on February 16, 1963 for
Avelina A. Magno acting as
Administratrix of the Estate of Charles
Newton Hodges (pp. 114-116, Sp. Proc.
1307) issued the following order:
"... se autoriza a aquella
(Avelina A. Magno) a
firmar escrituras de
venta definitiva de
propiedades cubiertas
por contratos para
vender, firmados, en
vida, por el finado
Charles Newton
Hodges, cada vez que el
precio estipulado en
cada contrato este
totalmente pagado. Se
autoriza igualmente a la
misma a firmar
escrituras de
cancelacion de hipoteca
tanto de bienes reales
como personales cada
vez que la
consideracion de cada
hipoteca este
totalmente pagada.
"Cada una de dichas
escrituras que se
otorguen debe ser
sometida para la
aprobacion de este
Juzgado."
(p. 117, Sp. Proc. 1307).
[Par 1 (c), Reply to
Motion For Removal of For Sale
Joe Hodges]
(13) On September l6, 1963 Leon P.
Gellada, acting as attorney for Avelina
A. Magno as Administratrix of the estate
of Linnie Jane Hodges, alleges:
3. That since January,
1963, both estates of
Linnie Jane Hodges and
Charles Newton Hodges
have been receiving in
full, payments for those
"contracts to sell"
entered into by C. N.
Hodges during his
lifetime, and the
purchasers have been
demanding the
execution of definite
deeds of sale in their
favor.
4. That hereto
attached are thirteen
(13) copies deeds of
sale executed by the
Administratrix and by
the co-administrator
(Fernando P. Mirasol) of
the estate of Linnie Jane
Hodges and Charles
Newton Hodges
respectively, in
compliance with the
terms and conditions of
the respective
"contracts to sell"
executed by the parties
thereto."
(14) The properties involved in the
aforesaid motion of September 16,
1963 are all registered in the name of
the deceased C. N. Hodges.
(15) Avelina A. Magno, it is alleged on
information and belief, has been
advertising in the newspaper in Iloilo
thusly:
Testate Estate of Linnie Jane Hodges and
Charles Newton Hodges.
All Real Estate or Personal Property will
be sold on First Come First Served Basis.
Avelina A. Magno
Administratrix
(16) Avelina A. Magno, it is alleged on
information and belief, has paid and still
is paying sums of money to sundry
persons.
(17) Joe Hodges through the
undersigned attorneys manifested
during the hearings before this
Honorable Court on September 5 and 6,
1963 that the estate of C. N. Hodges
was claiming all of the assets belonging
to the deceased spouses Linnie Jane
Hodges and C. N. Hodges situated in
Philippines because of the aforesaid
election by C. N. Hodges wherein he
claimed and took possession as sole
owner of all of said assets during the
administration of the estate of Linnie
Jane Hodges on the ground that he was
the sole devisee and legatee under her
Last Will and Testament.
(18) Avelina A. Magno has submitted no
inventory and accounting of her
administration as Administratrix of the
estate of Linnie Jane Hodges and Special
Administratrix of the estate of C. N.
Hodges. However, from manifestations
made by Avelina A. Magno and her legal
counsel, Leon P. Gellada, there is no
question she will claim that at least fifty
per cent (50%) of the conjugal assets of
the deceased spouses and the rents,
emoluments and income therefrom
belong to the Higdon family who are
named in paragraphs Fourth and Fifth of
the Will of Linnie Jane Hodges (p. 5, Rec.
Sp. Proc. 1307).
WHEREFORE, premises considered,
movant respectfully prays that this
Honorable Court, after due hearing,
order:
(1) Avelina A. Magno to submit an
inventory and accounting of all of the
funds, properties and assets of any
character belonging to the deceased
Linnie Jane Hodges and C. N. Hodges
which have come into her possession,
with full details of what she has done
with them;
(2) Avelina A. Magno to turn over and
deliver to the Administrator of the
estate of C. N. Hodges all of the funds,
properties and assets of any character
remaining in her possession;
(3) Pending this Honorable Court's
adjudication of the aforesaid issues,
Avelina A. Magno to stop, unless she
first secures the conformity of Joe
Hodges (or his duly authorized
representative, such as the undersigned
attorneys) as the Co-administrator and
attorney-in-fact of a majority of the
beneficiaries of the estate of C. N.
Hodges:
(a) Advertising the sale and the sale of
the properties of the estates:
(b) Employing personnel and paying
them any compensation.
(4) Such other relief as this Honorable
Court may deem just and equitable in
the premises. (Annex "T", Petition.)
Almost a year thereafter, or on September 14, 1964,
after the co-administrators Joe Hodges and Fernando P.
Mirasol were replaced by herein petitioner Philippine
Commercial and Industrial Bank as sole administrator,
pursuant to an agreement of all the heirs of Hodges
approved by the court, and because the above motion
of October 5, 1963 had not yet been heard due to the
absence from the country of Atty. Gibbs, petitioner filed
the following:
MANIFESTATION AND
MOTION, INCLUDING
MOTION TO SET FOR
HEARING AND RESOLVE
"URGENT MOTION FOR
AN ACCOUNTING AND
DELIVERY TO
ADMINISTRATORS OF
THE ESTATE OF C. N.
HODGES OF ALL THE
 ASSETS OF THE
CONJUGAL
PARTNERSHIP OF THE
DECEASED LINNIE JANE
HODGES AND C. N.
HODGES EXISTING AS
OF MAY 23, 1957 PLUS
ALL OF THE RENTS,
EMOLUMENTS AND
INCOME THEREFROM
OF OCTOBER 5, 1963.
COMES NOW Philippine Commercial
and Industrial Bank (hereinafter
referred to as PCIB), the administrator
of the estate of C. N. Hodges, deceased,
in Special Proceedings No. 1672,
through its undersigned counsel, and to
this Honorable Court respectfully
alleges that:
1. On October 5, 1963, Joe Hodges
acting as the co-administrator of the
estate of C. N. Hodges filed, through the
undersigned attorneys, an "Urgent
Motion For An Accounting and Delivery
To Administrator of the Estate of C. N.
Hodges of all Of The Assets Of The
Conjugal Partnership of The Deceased
Linnie Jane Hodges and C. N. Hodges
Existing as Of May, 23, 1957 Plus All Of
The Rents, Emoluments and Income
Therefrom" (pp. 536-542, CFI Rec. S. P.
No. 1672).
2. On January 24, 1964 this Honorable
Court, on the basis of an amicable
agreement entered into on January 23,
1964 by the two co-administrators of
the estate of C. N. Hodges and virtually
all of the heirs of C. N. Hodges (p. 912,
CFI Rec., S. P. No. 1672), resolved the
dispute over who should act as
administrator of the estate of C. N.
Hodges by appointing the PCIB as
administrator of the estate of C. N.
Hodges (pp. 905-906, CFI Rec. S. P. No.
1672) and issuing letters of
administration to the PCIB.
3. On January 24, 1964 virtually all of
the heirs of C. N. Hodges, Joe Hodges
and Fernando P. Mirasol acting as the
two co-administrators of the estate of C.
N. Hodges, Avelina A. Magno acting as
the administratrix of the estate of Linnie
Jane Hodges, and Messrs. William
Brown and Ardel Young Acting for all of
the Higdon family who claim to be the
sole beneficiaries of the estate of Linnie
Jane Hodges and various legal counsel
representing the aforenamed parties
entered into an amicable agreement,
which was approved by this Honorable
Court, wherein the parties thereto
agreed that certain sums of money
were to be paid in settlement of
different claims against the two estates
and that the assets (to the extent they
existed)of both estates would be
administrated jointly by the PCIB as
administrator of the estate of C. N.
Hodges and Avelina A. Magno as
administratrix of the estate of Linnie
Jane Hodges, subject, however, to the
aforesaid October 5, 1963 Motion,
namely, the PCIB's claim to exclusive
possession and ownership of one-
hundred percent (10017,) (or, in the
alternative, seventy-five percent [75%]
of all assets owned by C. N. Hodges or
Linnie Jane Hodges situated in the
Philippines. On February 1, 1964 (pp.
934-935, CFI Rec., S. P. No. 1672) this
Honorable Court amended its order of
January 24, 1964 but in no way changes
its recognition of the aforedescribed
basic demand by the PCIB as
administrator of the estate of C. N.
Hodges to one hundred percent (100%)
of the assets claimed by both estates.
4. On February 15, 1964 the PCIB filed a
"Motion to Resolve" the aforesaid
Motion of October 5, 1963. This
Honorable Court set for hearing on June
11, 1964 the Motion of October 5,
1963.
5. On June 11, 1964, because the
undersigned Allison J. Gibbs was absent
in the United States, this Honorable
Court ordered the indefinite
postponement of the hearing of the
Motion of October 5, 1963.
6. Since its appointment as
administrator of the estate of C. N.
Hodges the PCIB has not been able to
properly carry out its duties and
obligations as administrator of the
estate of C. N. Hodges because of the
following acts, among others, of Avelina
A. Magno and those who claim to act
for her as administratrix of the estate of
Linnie Jane Hodges:
(a) Avelina A. Magno
illegally acts as if she is
in exclusive control of
all of the assets in the
Philippines of both
estates including those
claimed by the estate of
C. N. Hodges as
evidenced in part by
her locking the
premises at 206-208
Guanco Street, Iloilo
City on August 31, 1964
and refusing to reopen
same until ordered to
do so by this Honorable
Court on September 7,
1964.
(b) Avelina A. Magno
illegally acts as though
she alone may decide
how the assets of the
estate of C.N. Hodges
should be administered,
who the PCIB shall
employ and how much
they may be paid as
evidenced in party by
her refusal to sign
checks issued by the
PCIB payable to the
undersigned counsel
pursuant to their fee
agreement approved by
this Honorable Court in
its order dated March
31, 1964.
(c) Avelina A. Magno
illegally gives access to
and turns over
possession of the
records and assets of
the estate of C.N.
Hodges to the attorney-
in-fact of the Higdon
Family, Mr. James L.
Sullivan, as evidenced in
part by the cashing of
his personal checks.
(d) Avelina A. Magno
illegally refuses to
execute checks
prepared by the PCIB
drawn to pay expenses
of the estate of C. N.
Hodges as evidenced in
part by the check drawn
to reimburse the PCIB's
advance of P48,445.50
to pay the 1964 income
taxes reported due and
payable by the estate of
C.N. Hodges.
7. Under and pursuant to the orders of
this Honorable Court, particularly those
of January 24 and February 1, 1964, and
the mandate contained in its Letters of
Administration issued on January 24,
1964 to the PCIB, it has
"full
authori
ty to
take
possess
ion of
all the
propert
y of the
deceas
ed C. N.
Hodges
"and to perform all
other acts necessary for
the preservation of said
property." (p. 914, CFI
Rec., S.P. No. 1672.)
8. As administrator of the estate of C. N.
Hodges, the PCIB claims the right to the
immediate exclusive possession and estate of C. N.
control of all of the properties, accounts Hodges (p. 102, CFI
receivables, court cases, bank accounts Rec., S.P. No. 1307).
and other assets, including the
documentary records evidencing same, (b) On December 29,
which existed in the Philippines on the 1962 this Honorable
date of C. N. Hodges' death, December Court appointed Harold
25, 1962, and were in his possession K. Davies as co-special
and registered in his name alone. The administrator of the
PCIB knows of no assets in the estate of C.N. Hodges
Philippines registered in the name of along with Avelina A.
Linnie Jane Hodges, the estate of Linnie Magno (pp. 108-111,
Jane Hodges, or, C. N. Hodges, Executor CFI Rec., S. P. No. 1307).
of the Estate of Linnie Jane Hodges on
December 25, 1962. All of the assets of (c) On January 22, 1963,
which the PCIB has knowledge are with the conformity of
either registered in the name of C. N. Avelina A. Magno,
Hodges, alone or were derived Harold K. Davies
therefrom since his death on December resigned in favor of Joe
25, 1962. Hodges (pp. 35-36, CFI
Rec., S.P. No. 1672) who
9. The PCIB as the current administrator thereupon was
of the estate of C. N. Hodges, deceased, appointed on January
succeeded to all of the rights of the 22, 1963 by this
previously duly appointed Honorable Court as
administrators of the estate of C. N. special co-administrator
Hodges, to wit: of the estate of C.N.
Hodges (pp. 38-40 & 43,
(a) On December 25, CFI Rec. S.P. No. 1672)
1962, date of C. N. along with Miss Magno
Hodges' death, this who at that time was
Honorable Court still acting as special co-
appointed Miss Avelina administratrix of the
A. Magno estate of C. N. Hodges.
simultaneously as:
(d) On February 22,
(i) Administratrix of the 1963, without objection
estate of Linnie Jane on the part of Avelina
Hodges (p. 102, CFI A. Magno, this
Rec., S.P. No. 1307) to Honorable Court
replace the deceased C. appointed Joe Hodges
N. Hodges who on May and Fernando P. Mirasol
28, 1957 was appointed as co-administrators of
Special Administrator the estate of C.N.
(p. 13. CFI Rec. S.P. No. Hodges (pp. 76-78, 81 &
1307) and on July 1, 85, CFI Rec., S.P. No.
1957 Executor of the 1672).
estate of Linnie Jane
Hodges (p. 30, CFI Rec., 10. Miss Avelina A. Magno, pursuant to
S. P. No. 1307). the orders of this Honorable Court of
December 25, 1962, took possession of
(ii) Special all Philippine Assets now claimed by the
Administratrix of the two estates. Legally, Miss Magno could
take possession of the assets registered Note: This accounting was approved by
in the name of C. N. Hodges alone only this Honorable Court on January 22,
in her capacity as Special Administratrix 1963 (p. 34, CFI Rec., S. P. No. 1672).
of the Estate of C.N. Hodges. With the
appointment by this Honorable Court (b) The accounting of
on February 22, 1963 of Joe Hodges and Joe Hodges and
Fernando P. Mirasol as the co- Fernando P. Mirasol as
administrators of the estate of C.N. of January 23, 1964,
Hodges, they legally were entitled to filed February 24, 1964
take over from Miss Magno the full and (pp. 990-1000, CFI Rec.
exclusive possession of all of the assets S.P. No. 1672 and pp.
of the estate of C.N. Hodges. With the 1806-1848, CFI Rec. S.P.
appointment on January 24, 1964 of the No. 1307).
PCIB as the sole administrator of the
estate of C.N. Hodges in substitution of Note: This accounting was approved by
Joe Hodges and Fernando P. Mirasol, this Honorable Court on March 3, 1964.
the PCIB legally became the only party
entitled to the sole and exclusive (c) The PCIB and its
possession of all of the assets of the undersigned lawyers
estate of C. N. Hodges. are aware of no report
or accounting
11. The PCIB's predecessors submitted submitted by Avelina A.
their accounting and this Honorable Magno of her acts as
Court approved same, to wit: administratrix of the
estate of Linnie Jane
(a) The accounting of Hodges or special
Harold K. Davies dated administratrix of the
January 18, 1963 (pp. estate of C.N. Hodges,
16-33, CFI Rec. S.P. No. unless it is the
1672); which shows or accounting of Harold K.
its face the: Davies as special co-
administrator of the
(i) Conformity of estate of C.N. Hodges
Avelina A. Magno acting dated January 18, 1963
as "Administratrix of to which Miss Magno
the Estate of Linnie Jane manifested her
Hodges and Special conformity (supra).
Administratrix of the
Estate of C. N. Hodges"; 12. In the aforesaid agreement of January 24, 1964,
Miss Avelina A. Magno agreed to receive P10,000.00
(ii) Conformity of Leslie
Echols, a Texas lawyer "for her services as
acting for the heirs of administratrix of the
C.N. Hodges; and estate of Linnie Jane
Hodges"
(iii) Conformity of
William Brown, a Texas and in addition she agreed to be
lawyer acting for the employed, starting February 1, 1964, at
Higdon family who
claim to be the only "a monthly salary of
heirs of Linnie Jane P500.00 for her services
Hodges (pp. 18, 25-33, as an employee of both
CFI Rec., S. P. No. 1672). estates."
24 ems.
13. Under the aforesaid agreement of
January 24, 1964 and the orders of this
Honorable Court of same date, the PCIB
as administrator of the estate of C. N.
Hodges is entitled to the exclusive
possession of all records, properties and
assets in the name of C. N. Hodges as of
the date of his death on December 25,
1962 which were in the possession of
the deceased C. N. Hodges on that date
and which then passed to the
possession of Miss Magno in her
capacity as Special Co-Administratrix of
the estate of C. N. Hodges or the
possession of Joe Hodges or Fernando P.
Mirasol as co-administrators of the
estate of C. N. Hodges.
14. Because of Miss Magno's refusal to
comply with the reasonable request of
PCIB concerning the assets of the estate
of C. N. Hodges, the PCIB dismissed
Miss Magno as an employee of the
estate of C. N. Hodges effective August
31, 1964. On September 1, 1964 Miss
Magno locked the premises at 206-208
Guanco Street and denied the PCIB
access thereto. Upon the Urgent Motion
of the PCIB dated September 3, 1964,
this Honorable Court on September 7,
1964 ordered Miss Magno to reopen
the aforesaid premises at 206-208
Guanco Street and permit the PCIB
access thereto no later than September
8, 1964.
15. The PCIB pursuant to the aforesaid
orders of this Honorable Court is again
in physical possession of all of the assets
of the estate of C. N. Hodges. However,
the PCIB is not in exclusive control of
the aforesaid records, properties and
assets because Miss Magno continues
to assert the claims hereinabove
outlined in paragraph 6, continues to
use her own locks to the doors of the
aforesaid premises at 206-208 Guanco
Street, Iloilo City and continues to deny
the PCIB its right to know the
combinations to the doors of the vault
and safes situated within the premises
at 206-208 Guanco Street despite the
fact that said combinations were known
to only C. N. Hodges during his lifetime.
16. The Philippine estate and
inheritance taxes assessed the estate of
Linnie Jane Hodges were assessed and
paid on the basis that C. N. Hodges is
the sole beneficiary of the assets of the
estate of Linnie Jane Hodges situated in
the Philippines. Avelina A. Magno and
her legal counsel at no time have
questioned the validity of the aforesaid
assessment and the payment of the
corresponding Philippine death taxes.
17. Nothing further remains to be done
in the estate of Linnie Jane Hodges
except to resolve the aforesaid Motion
of October 5, 1963 and grant the PCIB
the exclusive possession and control of
all of the records, properties and assets
of the estate of C. N. Hodges.
18. Such assets as may have existed of
the estate of Linnie Jane Hodges were
ordered by this Honorable Court in
special Proceedings No. 1307 to be
turned over and delivered to C. N.
Hodges alone. He in fact took
possession of them before his death
and asserted and exercised the right of
exclusive ownership over the said assets
as the sole beneficiary of the estate of
Linnie Jane Hodges.
WHEREFORE, premises considered, the
PCIB respectfully petitions that this
Honorable court:
(1) Set the Motion of October 5, 1963
for hearing at the earliest possible date
with notice to all interested parties;
(2) Order Avelina A. Magno to submit an
inventory and accounting as
Administratrix of the Estate of Linnie
Jane Hodges and Co-Administratrix of
the Estate of C. N. Hodges of all of the
funds, properties and assets of any
character belonging to the deceased
Linnie Jane Hodges and C. N. Hodges
which have come into her possession,
 with full details of what she has done
with them;
(3) Order Avelina A. Magno to turn over
and deliver to the PCIB as administrator
of the estate of C. N. Hodges all of the
funds, properties and assets of any
character remaining in her possession;
(4) Pending this Honorable Court's
adjudication of the aforesaid issues,
order Avelina A. Magno and her
representatives to stop interferring with
the administration of the estate of C. N.
Hodges by the PCIB and its duly
authorized representatives;
(5) Enjoin Avelina A. Magno from
working in the premises at 206-208
Guanco Street, Iloilo City as an
employee of the estate of C. N. Hodges
and approve her dismissal as such by
the PCIB effective August 31, 1964;
(6) Enjoin James L. Sullivan, Attorneys
Manglapus and Quimpo and others
allegedly representing Miss Magno from
entering the premises at 206-208
Guanco Street, Iloilo City or any other
properties of C. N. Hodges without the
express permission of the PCIB;
(7) Order such other relief as this
Honorable Court finds just and
equitable in the premises. (Annex "U"
Petition.)
On January 8, 1965, petitioner also filed a motion for
"Official Declaration of Heirs of Linnie Jane Hodges
Estate" alleging:
COMES NOW Philippine Commercial and Industrial Bank
(hereinafter referred to as PCIB), as administrator of the
estate of the late C. N. Hodges, through the undersigned
counsel, and to this Honorable Court respectfully alleges
that:
1. During their marriage, spouses
Charles Newton Hodges and Linnie Jane
Hodges, American citizens originally
from the State of Texas, U.S.A., acquired
and accumulated considerable assets
and properties in the Philippines and in
the States of Texas and Oklahoma,
United States of America. All said
properties constituted their conjugal
estate.
2. Although Texas was the domicile of
origin of the Hodges spouses, this
Honorable Court, in its orders dated
March 31 and December 12, 1964 (CFI
Record, Sp. Proc. No. 1307, pp. ----; Sp.
Proc. No. 1672, p. ----), conclusively
found and categorically ruled that said
spouses had lived and worked for more
than 50 years in Iloilo City and had,
therefore, acquired a domicile of choice
in said city, which they retained until
the time of their respective deaths.
3. On November 22, 1952, Linnie Jane
Hodges executed in the City of Iloilo her
Last Will and Testament, a copy of
which is hereto attached as Annex "A".
The bequests in said will pertinent to
the present issue are the second, third,
and fourth provisions, which we quote
in full hereunder.
SECOND: I give, devise
and bequeath all of the
rest, residue and
remainder of my estate,
both personal and real,
wherever situated, or
located, to my husband,
Charles Newton
Hodges, to have and to
hold unto him, my said
husband during his
natural lifetime.
THIRD: I desire, direct
and provide that my
husband, Charles
Newton Hodges, shall
have the right to
manage, control, use
and enjoy said estate
during his lifetime, and
he is hereby given the
right to make any
changes in the physical
properties of said estate
by sale of any part
thereof which he think Hodges, I give, devise
best, and the purchase and bequeath all of the
of any other or rest, residue and
additional property as remainder of my estate
he may think best; to both real and personal,
execute conveyances wherever situated or
with or without general located, to be equally
or special warranty, divided among my
conveying in fee simple brothers and sisters,
or for any other term or share and share alike,
time, any property namely:
which he may deem
proper to dispose of; to "Esta Higdon, Emma
lease any of the real Howell, Leonard
property for oil, gas Higdon, Roy Higdon,
and/or other minerals, Sadie Rascoe, Era
and all such deeds or Boman and Nimray
leases shall pass the Higdon."
absolute fee simple title
to the interest so 4. On November 14, 1953, C. N. Hodges
conveyed in such executed in the City of Iloilo his Last Will
property as he may and Testament, a copy of which is
elect to sell. All rents, hereto attached as Annex "B ". In said
emoluments and Will, C. N. Hodges designated his wife,
income from said estate Linnie Jane Hodges, as his beneficiary
shall belong to him, and using the identical language she used in
he is further authorized the second and third provisos of her
to use any part of the Will, supra.
principal of said estate
as he may need or 5. On May 23, 1957 Linnie Jane Hodges
desire. It is provided died in Iloilo City, predeceasing her
herein, however, that husband by more than five (5) years. At
he shall not sell or the time of her death, she had no
otherwise dispose of forced or compulsory heir, except her
any of the improved husband, C. N. Hodges. She was
property now owned by survived also by various brothers and
us located at, in or near sisters mentioned in her Will (supra),
the City of Lubbock, which, for convenience, we shall refer to
Texas, but he shall have as the HIGDONS.
the full right to lease,
manage and enjoy the 6. On June 28, 1957, this Honorable
same during his Court admitted to probate the Last Will
lifetime, as above and Testament of the deceased Linnie
provided. He shall have Jane Hodges (Annex "A"), and
the right to sub-divide appointed C. N. Hodges as executor of
any farmland and sell her estate without bond. (CFI Record,
lots therein, and may Sp. Proc. No. 1307, pp. 24-25). On July
sell unimproved town 1, 1957, this Honorable Court issued
lots. letters testamentary to C. N. Hodges in
the estate of Linnie Jane Hodges. (CFI
FOURTH: At the death Record, Sp. Proc. No. 1307, p. 30.)
of my said husband,
Charles Newton
7. The Will of Linnie Jane Hodges, with
respect to the order of succession, the
amount of successional rights, and the
intrinsic of its testamentary provisions,
should be governed by Philippine laws
because:
(a) The testatrix, Linnie
Jane Hodges, intended
Philippine laws to
govern her Will;
(b) Article 16 of the Civil
Code provides that "the
national law of the
person whose
succession is under
consideration, whatever
may be the nature of
the property and
regardless of the
country wherein said
property may be
found", shall prevail.
However, the Conflict of
Law of Texas, which is
the "national law" of
the testatrix, Linnie
Jane Hodges, provide
that the domiciliary law
(Philippine law see upon the death of Linnie Jane Hodges
paragraph 2, supra)
should govern the
testamentary
dispositions and
successional rights over
movables (personal
properties), and the law
of the situs of the
property (also
Philippine law as to
properties located in
the Philippines) with
regards immovable (real
properties). Thus
applying the "Renvoi
Doctrine", as approved
and applied by our
Supreme Court in the
case of "In The Matter
Of The Testate Estate of
Eduard E. Christensen",
G.R. No.
L-16749, promulgated
January 31, 1963,
Philippine law should
apply to the Will of
Linnie Jane Hodges and
to the successional
rights to her estate
insofar as
her movable and immo
vable assets in the
Philippines are
concerned. We shall
not, at this stage,
discuss what law should
govern the assets of
Linnie Jane Hodges
located in Oklahoma
and Texas, because the
only assets in issue in
this motion are those
within the jurisdiction
of this motion Court in
the two above-
captioned Special
Proceedings.
8. Under Philippine and Texas law, the
conjugal or community estate of
spouses shall, upon dissolution, be
divided equally between them. Thus,
on May 23, 1957, one-half (1/2) of the
entirety of the assets of the Hodges
spouses constituting their conjugal
estate pertained automatically to
Charles Newton Hodges, not by way of
inheritance, but in his own right as
partner in the conjugal partnership. The
other one-half (1/2) portion of the
conjugal estate constituted the estate of
Linnie Jane Hodges. This is the only
portion of the conjugal estate capable
of inheritance by her heirs.
9. This one-half (1/2) portion of the
conjugal assets pertaining to Linnie Jane
Hodges cannot, under a clear and
specific provision of her Will, be
enhanced or increased by income,
earnings, rents, or emoluments accruing
after her death on May 23, 1957. Linnie
Jane Hodges' Will provides that "all
rents, emoluments and income from
said estate shall belong to him (C. N.
Hodges) and he is further authorized to
use any part of the principal of said
estate as he may need or desire."
(Paragraph 3, Annex "A".) Thus, by
specific provision of Linnie Jane Hodges'
Will, "all rents, emoluments and
income" must be credited to the one-
half (1/2) portion of the conjugal estate
pertaining to C. N. Hodges. Clearly,
therefore, the estate of Linnie Jane
Hodges, capable of inheritance by her
heirs, consisted exclusively of no more
than one-half (1/2) of the conjugal
estate, computed as of the time of her
death on May 23, 1957.
10. Articles 900, 995 and 1001 of the
New Civil Code provide that the
surviving spouse of a deceased leaving
no ascendants or descendants is
entitled, as a matter of right and by way
of irrevocable legitime, to at least one-
half (1/2) of the estate of the deceased,
and no testamentary disposition by the
deceased can legally and validly affect
this right of the surviving spouse. In
fact, her husband is entitled to said one-
half (1/2) portion of her estate by way
of legitime. (Article 886, Civil Code.)
Clearly, therefore, immediately upon
the death of Linnie Jane Hodges, C. N.
Hodges was the owner of at least three-
fourths (3/4) or seventy-five (75%)
percent of all of the conjugal assets of
the spouses, (1/2 or 50% by way of
conjugal partnership share and 1/4 or
25% by way of inheritance and legitime)
plus all "rents, emoluments and
income" accruing to said conjugal estate
from the moment of Linnie Jane
Hodges' death (see paragraph 9, supra).
11. The late Linnie Jane Hodges
designated her husband C.N. Hodges as
her sole and exclusive heir with full
authority to do what he pleased, as
exclusive heir and owner of all the
assets constituting her estate, except
only with regards certain properties
"owned by us, located at, in or near the
City of Lubbock, Texas". Thus, even
without relying on our laws of
succession and legitime, which we have
cited above, C. N. Hodges, by specific
testamentary designation of his wife,
was entitled to the entirely to his wife's
estate in the Philippines.
12. Article 777 of the New Civil Code
provides that "the rights of the
successor are transmitted from the
death of the decedent". Thus, title to
the estate of Linnie Jane Hodges was
transmitted to C. N. Hodges
immediately upon her death on May 23,
1957. For the convenience of this
Honorable Court, we attached hereto as
Annex "C" a graph of how the conjugal
estate of the spouses Hodges should be
divided in accordance with Philippine
law and the Will of Linnie Jane Hodges.
13. In his capacity as sole heir and
successor to the estate of Linnie Jane
Hodges as above-stated, C. N. Hodges,
shortly after the death of Linnie Jane
Hodges, appropriated to himself the
entirety of her estate. He operated all
the assets, engaged in business and
performed all acts in connection with
the entirety of the conjugal estate, in
his own name alone, just as he had
been operating, engaging and doing
while the late Linnie Jane Hodges was
still alive. Upon his death on December
25, 1962, therefore, all said conjugal
assets were in his sole possession and
control, and registered in his name
alone, not as executor, but as exclusive
owner of all said assets.
14. All these acts of C. N. Hodges were
authorized and sanctioned expressly
and impliedly by various orders of this
Honorable Court, as follows:
(a) In an Order dated May 27, 1957, this
Honorable Court ruled that C. N. Hodges
"is allowed or authorized to continue
the business in which he was engaged,
and to perform acts which he had been
doing while the deceased was living."
(CFI Record, Sp. Proc. No. 1307, p. 11.)
(b) On December 14, 1957, this
Honorable Court, on the basis of the
following fact, alleged in the verified
Motion dated December 11, 1957 filed
by Leon P. Gellada as attorney for the
executor C. N. Hodges:
That herein Executor, (is) not only part
owner of the properties left as conjugal,
but also, the successor to all the
properties left by the deceased Linnie
Jane Hodges.' (CFI Record, Sp. Proc. No.
1307, p. 44; emphasis supplied.)
issued the following order:
"As prayed for by Attorney Gellada,
counsel for the Executor, for the
reasons stated in his motion dated
December 11, 1957, which the Court
considers well taken, all the sales,
conveyances, leases and mortgages of
all the properties left by the deceased
Linnie Jane Hodges executed by the
Executor, Charles Newton Hodges are
hereby APPROVED. The said Executor is
further authorized to execute
subsequent sales, conveyances, leases
and mortgages of the properties left by
the said deceased Linnie Jane Hodges in
consonance with the wishes contained
in the last will and testament of the
latter." (CFI Record. Sp. Proc. No. 1307,
p. 46; emphasis supplied.)
24 ems
(c) On April 21, 1959, this Honorable
Court approved the verified inventory
and accounting submitted by C. N.
Hodges through his counsel Leon P.
Gellada on April 14, 1959 wherein he
alleged among other things,
"That no person
interested in the
Philippines of the time
and place of examining
the herein account, be
given notice, as herein
executor is the only
devisee or legatee of
the deceased, in
accordance with the
last will and testament
already probated by the
Honorable Court." (CFI
Record, Sp. Proc. No.
1307, pp. 77-78;
emphasis supplied.)
(d) On July 20, 1960, this Honorable
Court approved the verified "Annual
Statement of Account" submitted by C.
N. Hodges through his counsel Leon P.
Gellada on July 21, 1960 wherein he
alleged, among other things.
"That no person
interested in the
Philippines of the time
and place of examining
the herein account, be
given notice as herein
executor is the only
devisee or legatee of
the deceased Linnie
Jane Hodges, in
accordance with the
last will and testament
ofthe deceased, already
probated by this
Honorable Court." (CFI
Record, Sp. Proc. No.
1307, pp. 81-82;
emphasis supplied.)
(e) On May 2, 1961, this Honorable
Court approved the verified "Annual
Statement of Account By The Executor
For the Year 1960" submitted through
Leon P. Gellada on April 20, 1961
wherein he alleged:
"That no person interested in the
Philippines be given notice, ofthe time
and place of examining the herein
account, as herein executor is the only
devisee or legatee of the deceased
Linnie Jane Hodges, in accordance with
the last will and testament ofthe
deceased, already probated by this
Honorable Court." (CFI Record, Sp. Proc.
No. 1307, pp. 90-91; emphasis
supplied.)
15. Since C. N. Hodges was the sole and
exclusive heir of Linnie Jane Hodges, not
only by law, but in accordance with the
dispositions of her will, there was, in
fact, no need to liquidate the conjugal
estate of the spouses. The entirely of
said conjugal estate pertained to him
exclusively, therefore this Honorable
Court sanctioned and authorized, as
above-stated, C. N. Hodges to manage,
operate and control all the conjugal
assets as owner.
16. By expressly authorizing C. N.
Hodges to act as he did in connection
with the estate of his wife, this
Honorable Court has (1) declared C. N.
Hodges as the sole heir of the estate of
Linnie Jane Hodges, and (2) delivered
and distributed her estate to C. N.
Hodges as sole heir in accordance with
the terms and conditions of her Will.
Thus, although the "estate of Linnie
Jane Hodges" still exists as a legal and
juridical personality, it had no assets or
properties located in the Philippines
registered in its name whatsoever at the
time of the death of C. N. Hodges on
December 25, 1962.
17. The Will of Linnie Jane Hodges
(Annex "A"), fourth paragraph, provides
as follows:
"At the death of my said
husband, Charles
Newton Hodges, I give,
devise and bequeath all
of the rest, residue and
remainder of my estate
both real and personal,
wherever situated or
located, to be equally
divided among my
brothers and sisters,
share and share alike,
namely:
"Esta
Higdon,
Emma
Howell,
Leonar
d
Higdon,
Roy
Higdon,
Sadie
Rascoe,
Era
Boman
and
Nimray
Higdon.
"
Because of the facts hereinabove set
out there is no "rest, residue and
remainder", at least to the extent of the
Philippine assets, which remains to vest
in the HIGDONS, assuming this proviso
in Linnie Jane Hodges' Will is valid and
binding against the estate of C. N.
Hodges.
18. Any claims by the HIGDONS under
the above-quoted provision of Linnie
Jane Hodges' Will is without merit
because said provision is void and
invalid at least as to the Philippine
assets. It should not, in anyway, affect
the rights of the estate of C. N. Hodges
or his heirs to the properties, which C.
N. Hodges acquired by way of
inheritance from his wife Linnie Jane
Hodges upon her death.
(a) In spite of the
above-mentioned
provision in the Will of
Linnie Jane Hodges, C.
N. Hodges acquired, not
merely a usufructuary
right, but absolute title
and ownership to her
estate. In a recent case
involving a very similar
testamentary provision,
the Supreme Court held
that the heir first
designated acquired full
ownership of the
property bequeathed
by the will, not mere
usufructuary rights.
(Consolacion Florentino
de Crisologo, et al., vs. the Will of Linnie Jane
Manuel Singson, G. R. Hodges is not
No. L-13876, February fideicommissary
28, 1962.) substitution, because
there is clearly no
(b) Article 864, 872 and obligation on the part
886 of the New Civil of C. N. Hodges as the
Code clearly provide first heir designated, to
that no charge, preserve the properties
condition or for the substitute heirs.
substitution whatsoever (Consolacion Florentino
upon the legitime can de Crisologo et al. vs.
be imposed by a Manuel Singson, G. R.
testator. Thus, under No.
the provisions of L-13876.) At most, it is
Articles 900, 995 and a vulgar or simple substi
1001 of the New Civil tution. However, in
Code, the legitime of a order that
surviving spouse is 1/2 a vulgar or simple substi
of the estate of the tution can be valid,
deceased spouse. three alternative
Consequently, the conditions must be
above-mentioned present, namely, that
provision in the Will of the first designated heir
Linnie Jane Hodges is (1) should die before
clearly invalid insofar as the testator; or (2)
the legitime of C. N. should not wish to
Hodges was concerned, accept the inheritance;
which consisted of 1/2 or (3) should be
of the 1/2 portion of incapacitated to do so.
the conjugal estate, or None of these
1/4 of the entire conditions apply to C.
conjugal estate of the N. Hodges, and,
deceased. therefore, the
substitution provided
(c) There are generally for by the above-
only two kinds of quoted provision of the
substitution provided Will is not authorized by
for and authorized by the Code, and,
our Civil Code (Articles therefore, it is void.
857-870), namely, Manresa, commenting
(1) simple or on these kisses of
common substitution, substitution,
sometimes referred to meaningfully stated
as vulgar substitution that: "... cuando el
(Article 859), and (2) testador instituyeun
fideicommissary primer heredero, y por
substitution (Article fallecimiento de este
863). All other nombra otro u otros, ha
substitutions are merely de entenderse que
variations of these. The estas segundas
substitution provided designaciones solo han
for by paragraph four of de llegar a tener
 efectividad en el caso time to full custody and control of all
de que el primer the conjugal estate of the spouses.
instituido muera antes
que el testador, fuera o (b) The present proceedings, in which
no esta su verdadera two estates exist under separate
intencion. ...". (6 administration, where the
Manresa, 7 a ed., pag. administratrix of the Linnie Jane Hodges
175.) In other estate exercises an officious right to
words, when another object and intervene in matters
heir is designated to affecting exclusively the C. N. Hodges
inherit upon the death estate, is anomalous.
of a first heir, the
second designation can WHEREFORE, it is most respectfully
have effect only in case prayed that after trial and reception of
the first instituted heir evidence, this Honorable Court declare:
dies before the testator,
whether or not that 1. That the estate of Linnie Jane Hodges
was the true intention was and is composed exclusively of one-
of said testator. Since C. half (1/2) share in the conjugal estate of
N. Hodges did not die the spouses Hodges, computed as of
before Linnie Jane the date of her death on May 23, 1957;
Hodges, the provision
for substitution 2. That the other half of the conjugal
contained in Linnie Jane estate pertained exclusively to C. N.
Hodges' Willis void. Hodges as his share as partner in the
conjugal partnership;
(d) In view of the
invalidity of the 3. That all "rents, emoluments and
provision for income" of the conjugal estate accruing
substitution in the Will, after Linnie Jane Hodges' death pertains
C. N. Hodges' to C. N. Hodges;
inheritance to the
entirety of the Linnie 4. That C. N. Hodges was the sole and
Jane Hodges estate is exclusive heir of the estate of Linnie
irrevocable and final. Jane Hodges;

19. Be that as it may, at the time of C. N.
Hodges' death, the entirety of the
conjugal estate appeared and was
registered in him exclusively as owner.
Thus, the presumption is that all said
assets constituted his estate. Therefore
to his heirs upon termination of Special
(a) If the HIGDONS wish to enforce their
dubious rights as substituted heirs to
1/4 of the conjugal estate (the other 1/4
is covered by the legitime of C. N.
Hodges which can not be affected by
any testamentary disposition), their
remedy, if any, is to file their claim
against the estate of C. N. Hodges,
which should be entitled at the present
5. That, therefore, the entire conjugal
estate of the spouses located in the
Philippines, plus all the "rents,
emoluments and income" above-
mentioned, now constitutes the estate
of C. N. Hodges, capable of distribution
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 Hodges has already been printed,
in the administration of the C. N. published and posted (Sp. Proc. No.
Hodges estate. 1307, Folio I. pp. 34-40) and the
reglamentary period for filing such
PCIB further prays for such and other claims has long ago lapsed and expired
relief as may be deemed just and without any claims having been
equitable in the premises." asserted against the estate of Linnie
Jane Hodges, approved by the
(Record, pp. 265-277) Administrator/Administratrix of the said
estate, nor ratified by this Honorable
Before all of these motions of petitioner could be Court;
resolved, however, on December 21, 1965, private
respondent Magno filed her own "Motion for the 6. That the last will and testament of
Official Declaration of Heirs of the Estate of Linnie Jane Linnie Jane Hodges already admitted to
Hodges" as follows: probate contains an institution of heirs
in the following words:
COMES NOW the Administratrix of the
Estate of Linnie Jane Hodges and, "SECOND: I give, devise
through undersigned counsel, unto this and bequeath all of the
Honorable Court most respectfully rest, residue and
states and manifests: remainder of my estate,
both personal and real,
1. That the spouses Charles Newton wherever situated or
Hodges and Linnie Jane Hodges were located, to my beloved
American citizens who died at the City husband, Charles
of Iloilo after having amassed and Newton Hodges to have
accumulated extensive properties in the and to hold unto him,
Philippines; my said husband,
during his natural
2. That on November 22, 1952, Linnie lifetime.
Jane Hodges executed a last will and
testament (the original of this will now THIRD: I desire, direct
forms part of the records of these and provide that my
proceedings as Exhibit "C" and appears husband, Charles
as Sp. Proc. No. 1307, Folio I, pp. 17-18); Newton Hodges, shall
have the right to
3. That on May 23, 1957, Linnie Jane manage, control, use
Hodges died at the City of Iloilo at the and enjoy said estate
time survived by her husband, Charles during his lifetime, and,
Newton Hodges, and several relatives he is hereby given the
named in her last will and testament; right to make any
changes in the physical
4. That on June 28, 1957, a petition properties of said
therefor having been priorly filed and estate, by sale of any
duly heard, this Honorable Court issued part thereof which he
an order admitting to probate the last may think best, and the
will and testament of Linnie Jane purchase of any other
Hodges (Sp. Proc. No. 1307, Folio I, pp. or additional property
24-25, 26-28); as he may think best; to
execute conveyances
5. That the required notice to creditors with or without general
and to all others who may have any or special warranty,
claims against the decedent, Linnie Jane conveying in fee simple
or for any other term or share and share alike,
time, any property namely:
which he may deem
proper to dispose of; to Esta Higdon, Emma
lease any of the real Howell, Leonard
property for oil, gas Higdon, Roy Higdon,
and/or other minerals, Sadie Rascoe, Era
and all such deeds or Boman and Nimroy
leases shall pass the Higdon.
absolute fee simple title
to the interest so FIFTH: In case of the
conveyed in such death of any of my
property as he elect to brothers and/or sisters
sell. All rents, named in item Fourth,
emoluments and above, prior to the
income from said estate death of my husband,
shall belong to him, and Charles Newton
he is further authorized Hodges, then it is my
to use any part of the will and bequest that
principal of said estate the heirs of such
as he may need or deceased brother or
desire. It is provided sister shall take jointly
herein, however, that the share which would
he shall not sell or have gone to such
otherwise dispose of brother or sister had
any of the improved she or he survived."
property now owned by
us located at, in or near 7. That under the provisions of the last
the City of Lubbock will and testament already above-
Texas, but he shall have quoted, Linnie Jane Hodges gave a life-
the full right to lease, estate or a usufruct over all her estate
manage and enjoy the to her husband, Charles Newton
same during his Hodges, and a vested remainder-estate
lifetime, above or the naked title over the same estate
provided. He shall have to her relatives named therein;
the right to subdivide
any farm land and sell 8. That after the death of Linnie Jane
lots therein, and may Hodges and after the admission to
sell unimproved town probate of her last will and testament,
lots. but during the lifetime of Charles
Newton Hodges, the said Charles
FOURTH: At the death Newton Hodges with full and complete
of my said husband, knowledge of the life-estate or usufruct
Charles Newton conferred upon him by the will since he
Hodges, I give, devise was then acting as Administrator of the
and bequeath all of the estate and later as Executor of the will
rest, residue and of Linnie Jane Hodges, unequivocably
remainder of my estate, and clearly through oral and written
both real and personal, declarations and sworn public
wherever situated or statements, renounced, disclaimed and
located, to be equally repudiated his life-estate and usufruct
divided among my over the estate of Linnie Jane Hodges;
brothers and sisters,
9. That, accordingly, the only heirs left
to receive the estate of Linnie Jane
Hodges pursuant to her last will and
testament, are her named brothers and
sisters, or their heirs, to wit: Esta
Higdon, Emma Howell, Leonard Higdon,
Aline Higdon and David Higdon, the
latter two being the wife and son
respectively of the deceased Roy
Higdon, Sadie Rascoe Era Boman and
Nimroy Higdon, all of legal ages,
American citizens, with residence at the
State of Texas, United States of America;
10. That at the time of the death of
Linnie Jane Hodges on May 23, 1957,
she was the co-owner (together with
her husband Charles Newton Hodges)
of an undivided one-half interest in
their conjugal properties existing as of
that date, May 23, 1957, which
properties are now being administered
sometimes jointly and sometimes
separately by the Administratrix of the
estate of Linnie Jane Hodges and/or the
Administrator of the estate of C. N.
Hodges but all of which are under the
control and supervision of this
Honorable Court;
11. That because there was no
separation or segregation of the
interests of husband and wife in the
combined conjugal estate, as there has
been no such separation or segregation
up to the present, both interests have
continually earned exactly the same
amount of "rents, emoluments and
income", the entire estate having been
continually devoted to the business of
the spouses as if they were alive;
12. That the one-half interest of Linnie
Jane Hodges in the combined conjugal
estate was earning "rents, emoluments
and income" until her death on May 23,
1957, when it ceased to be saddled with
any more charges or expenditures
which are purely personal to her in
nature, and her estate kept on earning
such "rents, emoluments and income"
by virtue of their having been expressly
renounced, disclaimed and repudiated
by Charles Newton Hodges to whom
they were bequeathed for life under the
last will and testament of Linnie Jane
Hodges;
13. That, on the other hand, the one-
half interest of Charles Newton Hodges
in the combined conjugal estate existing
as of May 23, 1957, while it may have
earned exactly the same amount of
"rents, emoluments and income" as
that of the share pertaining to Linnie
Jane Hodges, continued to be burdened
by charges, expenditures, and other
dispositions which are purely personal
to him in nature, until the death of
Charles Newton Hodges himself on
December 25, 1962;
14. That of all the assets of the
combined conjugal estate of Linnie Jane
Hodges and Charles Newton Hodges as
they exist today, the estate of Linnie
Jane Hodges is clearly entitled to a
portion more than fifty percent (50%) as
compared to the portion to which the
estate of Charles Newton Hodges may
be entitled, which portions can be
exactly determined by the following
manner:
a. An inventory must be
made of the assets of
the combined conjugal
estate as they existed
on the death of Linnie
Jane Hodges on May 23,
1957 one-half of
these assets belong to
the estate of Linnie Jane
Hodges;
b. An accounting must
be made of the "rents,
emoluments and
income" of all these
assets again one-half
of these belong to the
estate of Linnie Jane
Hodges;
c. Adjustments must be
made, after making a
 deduction of charges, (Green Record on Appeal, pp. 382-391)
disbursements and
other dispositions made whereupon, instead of further pressing on its motion of
by Charles Newton January 8, 1965 aforequoted, as it had been doing
Hodges personally and before, petitioner withdrew the said motion and in
for his own personal addition to opposing the above motion of respondent
account from May 23, Magno, filed a motion on April 22, 1966 alleging in part
1957 up to December that:
25, 1962, as well as
other charges, 1. That it has received from the counsel
disbursements and for the administratrix of the supposed
other dispositions made estate of Linnie Jane Hodges a notice to
for him and in his behalf set her "Motion for Official Declaration
since December 25, of Heirs of the Estate of Linnie Jane
1962 up to the present; Hodges";

15. That there remains no other matter 2. That before the aforesaid motion
for disposition now insofar as the estate could be heard, there are matters
of Linnie Jane Hodges is concerned but pending before this Honorable Court,
to complete the liquidation of her such as:
estate, segregate them from the
conjugal estate, and distribute them to a. The examination
her heirs pursuant to her last will and already ordered by this
testament. Honorable Court of
documents relating to
WHEREFORE, premises considered, it is the allegation of Avelina
most respectfully moved and prayed Magno that Charles
that this Honorable Court, after a Newton Hodges
hearing on the factual matters raised by "through ... written
this motion, issue an order: declarations and sworn
public statements,
a. Declaring the following persons, to renounced, disclaimed
wit: Esta Higdon, Emma Howell, and repudiated life-
Leonard Higdon, Aline Higdon, David estate and usufruct
Higdon, Sadie Rascoe, Era Boman and over the estate of Linnie
Nimroy Higdon, as the sole heirs under Jane Hodges';
the last will and testament of Linnie
Jane Hodges and as the only persons b. That "Urgent Motion
entitled to her estate; for An Accounting and
Delivery to the Estate of
b. Determining the exact value of the C. N. Hodges of All the
estate of Linnie Jane Hodges in Assets of the Conjugal
accordance with the system enunciated Partnership of the
in paragraph 14 of this motion; Deceased Linnie Jane
Hodges and C. N.
c. After such determination ordering its Hodges Existing as of
segregation from the combined conjugal May 23, 1957 Plus All
estate and its delivery to the the Rents, Emoluments
Administratrix of the estate of Linnie and Income
Jane Hodges for distribution to the heirs Therefrom";
to whom they properly belong and
appertain.
 c. Various motions to
resolve the aforesaid
motion;
d. Manifestation of
September 14, 1964,
detailing acts of
interference of Avelina
Magno under color of
title as administratrix of
the Estate of Linnie Jane
Hodges;
which are all prejudicial, and which
involve no issues of fact, all facts
involved therein being matters of
record, and therefore require only the
resolution of questions of law;
3. That whatever claims any alleged
heirs or other persons may have could
be very easily threshed out in the
Testate Estate of Charles Newton
Hodges;
4. That the maintenance of two
separate estate proceedings and two
administrators only results in confusion
and is unduly burdensome upon the
Testate Estate of Charles Newton
Hodges, particularly because the bond
filed by Avelina Magno is grossly
insufficient to answer for the funds and
property which she has inofficiously
collected and held, as well as those
which she continues to inofficiously
collect and hold;
5. That it is a matter of record that such
state of affairs affects and
inconveniences not only the estate but
also third-parties dealing with it;"
(Annex "V", Petition.)
and then, after further reminding the court, by quoting
them, of the relevant allegations of its earlier motion of
September 14, 1964, Annex U, prayed that:
1. Immediately order Avelina Magno to
account for and deliver to the
administrator of the Estate of C. N.
Hodges all the assets of the conjugal
partnership of the deceased Linnie Jane
Hodges and C. N. Hodges, plus all the
rents, emoluments and income
therefrom;
2. Pending the consideration of this
motion, immediately order Avelina
Magno to turn over all her collections to
the administrator Philippine
Commercial & Industrial Bank;
3. Declare the Testate Estate of Linnie
Jane Hodges (Sp. Proc. No. 1307)
closed;
4. Defer the hearing and consideration
of the motion for declaration of heirs in
the Testate Estate of Linnie Jane Hodges
until the matters hereinabove set forth
are resolved.
(Prayer, Annex "V" of Petition.)
On October 12, 1966, as already indicated at the outset
of this opinion, the respondent court denied the
foregoing motion, holding thus:
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 estate of C. N.
Hodges.
A reply (Sp. 1672, Vol. X, pp. 4436-4444)
dated May 11, 1966 of the PCIB has
been filed alleging that the motion
dated April 22, 1966 of the PCIB is not
to seek deferment of the hearing and
consideration of the motion for official
declaration of heirs of Linnie Jane
Hodges but to declare the testate estate
of Linnie Jane Hodges closed and for
administratrix Magno to account for
and deliver to the PCIB all assets of the
conjugal partnership of the deceased
spouses which has come to her
possession plus all rents and income.
A rejoinder (Sp. 1672, Vol. X, pp. 4458-
4462) of administratrix Magno dated
May 19, 1966 has been filed alleging
that the motion dated December 11,
1957 only sought the approval of all
conveyances made by C. N. Hodges and
requested the Court authority for all
subsequent conveyances that will be
executed by C. N. Hodges; that the
order dated December 14, 1957 only
approved the conveyances made by C.
N. Hodges; that C. N. Hodges
represented by counsel never made any
claim in the estate of Linnie Jane
Hodges and never filed a motion to
declare himself as the heir of the said
Linnie Jane Hodges despite the lapse of
more than five (5) years after the death
of Linnie Jane Hodges; that it is further
alleged in the rejoinder that there can
be no order of adjudication of the
estate unless there has been a prior
express declaration of heirs and so far
no declaration of heirs in the estate of
Linnie Jane Hodges (Sp. 1307) has been
made.
Considering the allegations and
arguments in the motion and of the
PCIB as well as those in the opposition
and rejoinder of administratrix Magno,
the Court finds the opposition and
rejoinder to be well taken for the reason
that so far there has been no official
declaration of heirs in the testate estate
of Linnie Jane Hodges and therefore no
disposition of her estate.
WHEREFORE, the motion of the PCIB
dated April 22, 1966 is hereby DENIED.
(Annex "W", Petition)
In its motion dated November 24, 1966 for the
reconsideration of this order, petitioner alleged inter
alia that:
It cannot be over-stressed that the
motion of December 11, 1957 was
based on the fact that:
a. Under the last will
and testament of the
deceased, Linnie Jane
Hodges, the late Charles
Newton Hodges was
the sole heir instituted
insofar as her
properties in the
Philippines are
concerned;
 b. Said last will and
testament vested upon
the said late Charles
Newton Hodges rights
over said properties
which, in sum, spell
ownership, absolute
and in fee simple;
c. Said late Charles
Newton Hodges was,
therefore, "not only
part owner of the
properties left as
conjugal, but also, the
successor to all the
properties left by the
deceased Linnie Jane
Hodges.
Likewise, it cannot be over-stressed that
the aforesaid motion was granted by
this Honorable Court "for the reasons
stated" therein.
Again, the motion of December 11,
1957 prayed that not only "all the sales,
conveyances, leases, and mortgages
executed by" the late Charles Newton
Hodges, but also all "the subsequent
sales, conveyances, leases, and
mortgages ..." be approved and
authorized. This Honorable Court, in its
order of December 14, 1957, "for the
reasons stated" in the aforesaid motion,
granted the same, and not only
approved all the sales, conveyances,
leases and mortgages of all properties
left by the deceased Linnie Jane Hodges
executed by the late Charles Newton
Hodges, but also authorized "all
subsequent sales, conveyances, leases
and mortgages of the properties left by
the said deceased Linnie Jane Hodges.
(Annex "X", Petition)
and reiterated its fundamental pose that the Testate
Estate of Linnie Jane Hodges had already been factually,
although not legally, closed with the virtual declaration
of Hodges and adjudication to him, as sole universal heir
of all the properties of the estate of his wife, in the
order of December 14, 1957, Annex G. Still
unpersuaded, on July 18, 1967, respondent court denied
said motion for reconsideration and held that "the court
believes that there is no justification why the order of
October 12, 1966 should be considered or modified",
and, on July 19, 1967, the motion of respondent Magno
"for official declaration of heirs of the estate of Linnie
Jane Hodges", already referred to above, was set for
hearing.
In consequence of all these developments, the present
petition was filed on August 1, 1967 (albeit petitioner
had to pay another docketing fee on August 9, 1967,
since the orders in question were issued in two separate
testate estate proceedings, Nos. 1307 and 1672, in the
court below).
Together with such petition, there are now pending
before Us for resolution herein, appeals from the
following:
1. The order of December 19, 1964
authorizing payment by respondent
Magno of overtime pay, (pp. 221, Green
Record on Appeal) together with the
subsequent orders of January 9, 1965,
(pp. 231-232,id.) October 27, 1965, (pp.
227, id.) and February 15, 1966 (pp.
455-456, id.) repeatedly denying
motions for reconsideration thereof.
2. The order of August 6, 1965 (pp.
248, id.) requiring that deeds executed
by petitioner to be co-signed by
respondent Magno, as well as the order
of October 27, 1965 (pp. 276-277)
denying reconsideration.
3. The order of October 27, 1965 (pp.
292-295, id.) enjoining the deposit of all
collections in a joint account and the
same order of February 15, 1966
mentioned in No. 1 above which
included the denial of the
reconsideration of this order of October
27, 1965.
4. The order of November 3, 1965 (pp.
313-320, id.) directing the payment of
attorney's fees, fees of the respondent
administratrix, etc. and the order of
February 16, 1966 denying
reconsideration thereof.
 5. The order of November 23, 1965 (pp.
334-335, id.) allowing appellee Western
Institute of Technology to make
payments to either one or both of the
administrators of the two estates as
well as the order of March 7, 1966 (p.
462, id.) denying reconsideration.
6. The various orders hereinabove
earlier enumerated approving deeds of
sale executed by respondent Magno in
favor of appellees Carles, Catedral,
Pablito, Guzman, Coronado, Barrido,
Causing, Javier, Lucero and Batisanan,
(see pp. 35 to 37 of this opinion),
together with the two separate orders
both dated December 2, 1966 (pp. 306-
308, and pp. 308-309, Yellow Record on
Appeal) denying reconsideration of said
approval.
7. The order of January 3, 1967, on pp.
335-336, Yellow Record on Appeal,
approving similar deeds of sale
executed by respondent Magno, as
those in No. 6, in favor of appellees
Pacaonsis and Premaylon, as to which
no motion for reconsideration was filed.
8. Lastly, the order of December 2,
1966, on pp. 305-306, Yellow Record on
Appeal, directing petitioner to
surrender to appellees Lucero,
Batisanan, Javier, Pablito, Barrido,
Catedral, Causing, Guzman, and
Coronado, the certificates of title
covering the lands involved in the
approved sales, as to which no motion
for reconsideration was filed either.
Strictly speaking, and considering that the above orders
deal with different matters, just as they affect distinctly
different individuals or persons, as outlined by
petitioner in its brief as appellant on pp. 12-20 thereof,
there are, therefore, thirty-three (33) appeals before Us,
for which reason, petitioner has to pay also thirty-one
(31) more docket fees.
It is as well perhaps to state here as elsewhere in this
opinion that in connection with these appeals,
petitioner has assigned a total of seventy-eight (LXXVIII)
alleged errors, the respective discussions and arguments
under all of them covering also the fundamental issues
raised in respect to the petition for certiorari and
prohibition, thus making it feasible and more practical
for the Court to dispose of all these cases together. 4
The assignments of error read thus:
I to IV
THE ORDER COURT ERRED IN
APPROVING THE FINAL DEEDS OF SALE
IN FAVOR OF THE APPELLEES, PEPITO G.
IYULORES, ESPIRIDION PARTISALA,
WINIFREDO C. ESPADA AND ROSARIO
ALINGASA, EXECUTED BY THE APPELLEE,
AVELINA A. MAGNO, COVERING
PARCELS OF LAND OWNED BY THE
DECEASED, CHARLES NEWTON HODGES,
AND THE CONTRACTS TO SELL
COVERING WHICH WERE EXECUTED BY
HIM DURING HIS LIFETIME.
V to VIII
THE LOWER COURT ERRED IN
APPROVING THE DEEDS OF SALE IN
FAVOR OF THE APPELLEES, PEPITO G.
IYULORES, ESPIRIDION PARTISALA,
WINIFREDO C. ESPADA AND ROSARIO
ALINGASA, COVERING PARCELS OF
LAND FOR WHICH THEY HAVE NEVER
PAID IN FULL IN ACCORDANCE WITH
THE ORIGINAL CONTRACTS TO SELL.
IX to XII
THE LOWER COURT ERRED IN
DETERMINING THE RIGHTS OF
OWNERSHIP OVER REAL PROPERTY OF
THE APPELLEES, PEPITO G. IYULORES,
ESPIRIDION PARTISALA, WINIFREDO C.
ESPADA AND ROSARIO ALINGASA,
WHILE ACTING AS A PROBATE COURT.
XIII to XV
THE LOWER COURT ERRED IN
APPROVING THE FINAL DEEDS OF SALE
IN FAVOR OF THE APPELLEES ADELFA
PREMAYLON (LOT NO. 102), SANTIAGO
PACAONSIS, AND ADELFA PREMAYLON
(LOT NO. 104), EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO,
COVERING PARCELS OF LAND OWNED
 BY THE DECEASED, CHARLES NEWTON
HODGES, AND THE CONTRACTS TO SELL
COVERING WHICH WERE EXECUTED BY
HIM DURING HIS LIFETIME.
XVI to XVIII
THE LOWER COURT ERRED IN
APPROVING THE DEEDS OF SALE IN
FAVOR OF THE APPELLEES ADELFA
PREMAYLON (LOT NO. 102), SANTIAGO
PACAONSIS, AND ADELFA PREMAYLON
(LOT NO. 104) COVERING PARCELS OF
LAND FOR WHICH THEY HAVE NEVER
PAID IN FULL IN ACCORDANCE WITH
THE ORIGINAL CONTRACTS TO SELL.
XIX to XXI
THE LOWER COURT ERRED IN
DETERMINING THE RIGHTS OF
OWNERSHIP OVER REAL PROPERTY OF
THE APPELLEES ADELFA PREMAYLON
(LOT NO. 102), SANTIAGO PACAONSIS,
AND ADELFA PREMAYLON (LOT NO. 104)
WHILE ACTING AS A PROBATE COURT.
XXII to XXV
THE LOWER COURT ERRED IN
APPROVING THE FINAL DEEDS OF SALE
IN FAVOR OF THE APPELLEES LORENZO
CARLES, JOSE PABLICO, ALFREDO
CATEDRAL AND SALVADOR S. GUZMAN,
EXECUTED BY THE APPELLEE, AVELINA
A. MAGNO, COVERING PARCELS OF
LAND OWNED BY THE DECEASED,
CHARLES NEWTON HODGES, AND THE
CONTRACTS TO SELL COVERING WHICH
WERE EXECUTED BY HIM DURING HIS
LIFETIME.
XXVI to XXIX
THE LOWER COURT ERRED IN
APPROVING THE FINAL DEED OF SALE
EXECUTED IN FAVOR OF THE APPELLEES,
LORENZO CARLES, JOSE PABLICO,
ALFREDO CATEDRAL AND SALVADOR S.
GUZMAN PURSUANT TO CONTRACTS TO
SPELL WHICH WERE CANCELLED AND
RESCINDED.
XXX to XXXIV
THE LOWER COURT ERRED IN
DETERMINING THE RIGHTS OF
OWNERSHIP OVER REAL PROPERTY OF
THE LORENZO CARLES, JOSE PABLICO,
ALFREDO CATEDRAL AND SALVADOR S.
GUZMAN, WHILE ACTING AS A PROBATE
COURT.
XXXV to XXXVI
THE LOWER COURT ERRED IN
APPROVING THE FINAL DEEDS OF SALE
IN FAVOR OF THE APPELLEES, FLORENIA
BARRIDO AND PURIFICACION
CORONADO, EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO,
COVERING PARCELS OF LAND OWNED
BY THE DECEASED, CHARLES NEWTON
HODGES, AND THE CONTRACTS TO SELL
COVERING WHICH WERE EXECUTED BY
HIM DURING HIS LIFETIME.
XXXVII to XXXVIII
THE LOWER COURT ERRED IN
APPROVING THE DEEDS OF SALE IN
FAVOR OF THE APPELLEES, FLORENIA
BARRIDO AND PURIFICACION
CORONADO, ALTHOUGH THEY WERE IN
ARREARS IN THE PAYMENTS AGREED
UPON IN THE ORIGINAL CONTRACT TO
SELL WHICH THEY EXECUTED WITH THE
DECEASED, CHARLES NEWTON HODGES,
IN THE AMOUNT OF P10,680.00 and
P4,428.90, RESPECTIVELY.
XXXIX to XL
THE LOWER COURT ERRED IN
DEPRIVING THE DECEASED, CHARLES
NEWTON HODGES, OF THE
CONTRACTUAL RIGHT, EXERCISED
THROUGH HIS ADMINISTRATOR, THE
INSTANT APPELLANT, TO CANCEL THE
CONTRACTS TO SELL OF THE APPELLEES,
FLORENIA BARRIDO AND PURIFICACION
CORONADO.
XLI to XLIII
 THE LOWER COURT ERRED IN
APPROVING THE FINAL DEEDS OF SALE
IN FAVOR OF THE APPELLEES,
GRACIANO LUCERO, ARITEO THOMAS
JAMIR AND MELQUIADES BATISANAN,
EXECUTED BY THE APPELLEE, AVELINA
A. MAGNO, COVERING PARCELS OF
LAND OWNED BY THE DECEASED,
CHARLES NEWTON HODGES, AND THE
CONTRACTS TO SELL COVERING WHICH
WERE EXECUTED BY HIM DURING HIS
LIFETIME.
XLIV to XLVI
THE LOWER COURT ERRED IN
APPROVING THE FINAL DEED OF SALE IN
FAVOR OF THE APPELLEES, GRACIANO
LUCERO, ARITEO THOMAS JAMIR AND
MELQUIADES BATISANAN, PURSUANT
TO CONTRACTS TO SELL EXECUTED BY
THEM WITH THE DECEASED, CHARLES
NEWTON HODGES, THE TERMS AND
CONDITIONS OF WHICH THEY HAVE
NEVER COMPLIED WITH.
XLVII to XLIX
THE LOWER COURT ERRED IN
DEPRIVING THE DECEASED, CHARLES
NEWTON HODGES, OF HIS RIGHT,
EXERCISED THROUGH HIS
ADMINISTRATION, THE INSTANT
APPELLANT, TO CANCEL THE
CONTRACTS TO SELL OF THE APPELLEES,
GRACIANO LUCERO, ARITEO THOMAS
JAMIR AND MELQUIADES BATISANAN,
AND IN DETERMINING THE RIGHTS OF
THE SAID APPELLEES OVER REAL
PROPERTY WHILE ACTING AS A
PROBATE COURT.
L LXII
THE LOWER COURT ERRED IN
APPROVING THE FINAL DEEDS OF SALE
IN FAVOR OF THE APPELLEE, BELCESAR
CAUSING, EXECUTED BY THE APPELLEE,
AVELINA A. MAGNO, COVERING
PARCELS OF LAND OWNED BY THE
DECEASED, CHARLES NEWTON HODGES,
AND THE CONTRACTS TO SELL
COVERING WHICH WERE EXECUTED BY
HIM DURING HIS LIFETIME.
LI
THE LOWER COURT ERRED IN
APPROVING THE DEEDS OF SALE IN
FAVOR OF THE APPELLEE, BELCESAR
CAUSING, ALTHOUGH HE WAS IN
ARREARS IN THE PAYMENTS AGREED
UPON IN THE ORIGINAL CONTRACT TO
SELL WHICH HE EXECUTED WITH THE
DECEASED, CHARLES NEWTON HODGES,
IN THE AMOUNT OF P2,337.50.
LII
THE LOWER COURT ERRED IN
APPROVING THE DEED OF SALE IN
FAVOR OF THE APPELLEE, BELCESAR
CAUSING, ALTHOUGH THE SAME WAS
NOT EXECUTED IN ACCORDANCE WITH
THE RULES OF COURT.
LIII to LXI
THE LOWER COURT ERRED IN
ORDERING THE APPELLANT, PHILIPPINE
COMMERCIAL AND INDUSTRIAL BANK
TO SURRENDER THE OWNER'S
DUPLICATE CERTIFICATES OF TITLE OVER
THE RESPECTIVE LOTS COVERED BY THE
DEEDS OF SALE EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO, IN
FAVOR OF THE OTHER APPELLEES, JOSE
PABLICO, ALFREDO CATEDRAL,
SALVADOR S. GUZMAN, FLRENIA
BARRIDO, PURIFICACION CORONADO,
BELCESAR CAUSING, ARITEO THOMAS
JAMIR, MAXIMA BATISANAN AND
GRACIANO L. LUCERO.
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 certiorariand 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 them6 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
Code7 should be applied. On the one hand, petitioner
claims that inasmuch as Mrs. Hodges was a resident of
the Philippines at the time of her death, under said
Article 16, construed in relation to the pertinent laws of
Texas and the principle of renvoi, what should be
applied here should be the rules of succession under
the Civil Code of the Philippines, and, therefore, her
estate could consist of no more than one-fourth of the
said conjugal properties, the other fourth being, as
already explained, the legitime of her husband (Art. 900,
Civil Code) which she could not have disposed of nor
burdened with any condition (Art. 872, Civil Code). On
the other hand, respondent Magno denies that Mrs.
Hodges died a resident of the Philippines, since
allegedly she never changed nor intended to change her
original residence of birth in Texas, United States of
America, and contends that, anyway, regardless of the
question of her residence, she being indisputably a
citizen of Texas, under said Article 16 of the Civil Code,
the distribution of her estate is subject to the laws of
said State which, according to her, do not provide for
any legitime, hence, the brothers and sisters of Mrs.
Hodges are entitled to the remainder of the whole of
her share of the conjugal partnership properties
consisting of one-half thereof. Respondent Magno
further maintains that, in any event, Hodges had
renounced his rights under the will in favor of his co-
heirs, as allegedly proven by the documents touching on
the point already mentioned earlier, the genuineness
and legal significance of which petitioner seemingly
questions. Besides, the parties are disagreed as to what
the pertinent laws of Texas provide. In the interest of
settling the estates herein involved soonest, it would be
best, indeed, if these conflicting claims of the parties
were determined in these proceedings. The Court
regrets, however, that it cannot do so, for the simple
reason that neither the evidence submitted by the
parties in the court below nor their discussion, in their
respective briefs and memoranda before Us, of their
respective contentions on the pertinent legal issues, of
grave importance as they are, appear to Us to be
adequate enough to enable Us to render an intelligent
comprehensive and just resolution. For one thing, there
is no clear and reliable proof of what in fact the possibly
applicable laws of Texas are. 7* Then also, the
genuineness of documents relied upon by respondent
Magno is disputed. And there are a number of still other
conceivable related issues which the parties may wish to
raise but which it is not proper to mention here. In
Justice, therefore, to all the parties concerned, these
and all other relevant matters should first be threshed
out fully in the trial court in the proceedings hereafter
to be held therein for the purpose of ascertaining and
adjudicating and/or distributing the estate of Mrs.
Hodges to her heirs in accordance with her duly
probated will.
To be more explicit, all that We can and do decide in
connection with the petition for certiorari and
prohibition are: (1) that regardless of which
corresponding laws are applied, whether of the
Philippines or of Texas, and taking for granted either of
the respective contentions of the parties as to
provisions of the latter,8 and regardless also of whether
or not it can be proven by competent evidence that
Hodges renounced his inheritance in any degree, it is
easily and definitely discernible from the inventory
submitted by Hodges himself, as Executor of his wife's
estate, that there are properties which should constitute
the estate of Mrs. Hodges and ought to be disposed of
or distributed among her heirs pursuant to her will in
said Special Proceedings 1307; (2) that, more
specifically, inasmuch as the question of what are the
pertinent laws of Texas applicable to the situation herein
is basically one of fact, and, considering that the sole
difference in the positions of the parties as to the effect
of said laws has reference to the supposed legitime of
Hodges it being the stand of PCIB that Hodges had
such a legitime whereas Magno claims the negative - it
is now beyond controversy for all future purposes of
these proceedings that whatever be the provisions
actually of the laws of Texas applicable hereto, the
estate of Mrs. Hodges is at least, one-fourth of the
conjugal estate of the spouses; the existence and effects
of foreign laws being questions of fact, and it being the
position now of PCIB that the estate of Mrs. Hodges,
pursuant to the laws of Texas, should only be one-fourth
of the conjugal estate, such contention constitutes an
admission of fact, and consequently, it would be in
estoppel in any further proceedings in these cases to
claim that said estate could be less, irrespective of what
might be proven later to be actually the provisions of
the applicable laws of Texas; (3) that Special Proceedings
1307 for the settlement of the testate estate of Mrs.
Hodges cannot be closed at this stage and should
proceed to its logical conclusion, there having been no
proper and legal adjudication or distribution yet of the
estate therein involved; and (4) that respondent Magno
remains and continues to be the Administratrix therein.
Hence, nothing in the foregoing opinion is intended to
resolve the issues which, as already stated, are not
properly before the Court now, namely, (1) whether or
not Hodges had in fact and in law waived or renounced
his inheritance from Mrs. Hodges, in whole or in part,
and (2) assuming there had been no such waiver,
whether or not, by the application of Article 16 of the
Civil Code, and in the light of what might be the
applicable laws of Texas on the matter, the estate of
Mrs. Hodges is more than the one-fourth declared
above. As a matter of fact, even our finding above about
the existence of properties constituting the estate of
Mrs. Hodges rests largely on a general appraisal of the
size and extent of the conjugal partnership gathered
from reference made thereto by both parties in their
briefs as well as in their pleadings included in the
records on appeal, and it should accordingly yield, as to
which exactly those properties are, to the more
concrete and specific evidence which the parties are
supposed to present in support of their respective
positions in regard to the foregoing main legal and
factual issues. In the interest of justice, the parties
should be allowed to present such further evidence in
relation to all these issues in a joint hearing of the two
probate proceedings herein involved. After all, the
court a quo has not yet passed squarely on these issues,
and it is best for all concerned that it should do so in the
first instance.
Relative to Our holding above that the estate of Mrs.
Hodges cannot be less than the remainder of one-fourth
of the conjugal partnership properties, it may be
mentioned here that during the deliberations, the point
was raised as to whether or not said holding might be
inconsistent with Our other ruling here also that, since
there is no reliable evidence as to what are the
applicable laws of Texas, U.S.A. "with respect to the
order of succession and to the amount of successional
rights" that may be willed by a testator which, under
Article 16 of the Civil Code, are controlling in the instant
cases, in view of the undisputed Texan nationality of the
deceased Mrs. Hodges, these cases should be returned
to the court a quo, so that the parties may prove what
said law provides, it is premature for Us to make any
specific ruling now on either the validity of the
testamentary dispositions herein involved or the
amount of inheritance to which the brothers and sisters
of Mrs. Hodges are entitled. After nature reflection, We
are of the considered view that, at this stage and in the
state of the records before Us, the feared inconsistency
is more apparent than real. Withal, it no longer lies in
the lips of petitioner PCIB to make any claim that under
the laws of Texas, the estate of Mrs. Hodges could in any
event be less than that We have fixed above.
It should be borne in mind that as above-indicated, the
question of what are the laws of Texas governing the
matters herein issue is, in the first instance, one of fact,
not of law. Elementary is the rule that foreign laws may
not be taken judicial notice of and have to be proven
like any other fact in dispute between the parties in any
proceeding, with the rare exception in instances when
the said laws are already within the actual knowledge of
the court, such as when they are well and generally
known or they have been actually ruled upon in other
cases before it and none of the parties concerned do
not claim otherwise. (5 Moran, Comments on the Rules
of Court, p. 41, 1970 ed.) In Fluemer vs. Hix, 54 Phil. 610,
it was held:
It is the theory of the petitioner that the alleged will was
executed in Elkins West Virginia, on November 3, 1925,
by Hix who had his residence in that jurisdiction, and
that the laws of West Virginia govern. To this end, there
was submitted a copy of section 3868 of Acts 1882, c. 84
as found in West Virginia Code, Annotated, by Hogg
Charles E., vol. 2, 1914, p. 1960, and as certified to by
the Director of the National Library. But this was far
from a compliance with the law. The laws of a foreign
jurisdiction do not prove themselves in our courts. The
courts of the Philippine Islands are not authorized to
take judicial notice of the laws of the various States of
the American Union. Such laws must be proved as facts.
(In re Estate of Johnson [1918], 39 Phil., 156.) Here the
requirements of the law were not met. There was no
showing that the book from which an extract was taken
was printed or published under the authority of the
State of West Virginia, as provided in section 300 of the
Code of Civil Procedure. Nor was the extract from the
law attested by the certificate of the officer having
charge of the original, under the seal of the State of
West Virginia, as provided in section 301 of the Code of
Civil Procedure. No evidence was introduced to show
that the extract from the laws of West Virginia was in
force at the time the alleged will was executed."
No evidence of the nature thus suggested by the Court
may be found in the records of the cases at bar. Quite to
the contrary, the parties herein have presented
opposing versions in their respective pleadings and
memoranda regarding the matter. And even if We took
into account that in Aznar vs. Garcia, the Court did make
reference to certain provisions regarding succession in
the laws of Texas, the disparity in the material dates of
that case and the present ones would not permit Us to
indulge in the hazardous conjecture that said provisions
have not been amended or changed in the meantime.
On the other hand, in In re Estate of Johnson, 39 Phil.
156, We held:
Upon the other point as to whether
the will was executed in conformity with
the statutes of the State of Illinois we
note that it does not affirmatively
appear from the transcription of the
testimony adduced in the trial court
that any witness was examined with
reference to the law of Illinois on the
subject of the execution of will. The trial
judge no doubt was satisfied that the
will was properly executed by examining
section 1874 of the Revised Statutes of
Illinois, as exhibited in volume 3 of Starr
& Curtis's Annotated Illinois Statutes,
2nd ed., p. 426; and he may have
assumed that he could take judicial
notice of the laws of Illinois under
section 275 of the Code of Civil
Procedure. If so, he was in our opinion
mistaken. That section authorizes the
courts here to take judicial notice,
among other things, of the acts of the
legislative department of the United
States. These words clearly have
reference to Acts of the Congress of the
United States; and we would hesitate to
hold that our courts can, under this
provision, take judicial notice of the
multifarious laws of the various
American States. Nor do we think that
any such authority can be derived from
the broader language, used in the same
section, where it is said that our courts
may take judicial notice of matters of
public knowledge "similar" to those
therein enumerated. The proper rule we
think is to require proof of the statutes
of the States of the American Union
whenever their provisions are
determinative of the issues in any action
litigated in the Philippine courts.
Nevertheless, even supposing that the
trial court may have erred in taking
judicial notice of the law of Illinois on
the point in question, such error is not
now available to the petitioner, first,
because the petition does not state any
fact from which it would appear that
the law of Illinois is different from what
the court found, and, secondly, because
the assignment of error and argument
for the appellant in this court raises no
question based on such supposed error.
Though the trial court may have acted
upon pure conjecture as to the law
prevailing in the State of Illinois, its
judgment could not be set aside, even
upon application made within six
months under section 113 of the Code
of Civil Procedure, unless it should be
made to appear affirmatively that the
conjecture was wrong. The petitioner, it
is true, states in general terms that the
will in question is invalid and
inadequate to pass real and personal
property in the State of Illinois, but this
is merely a conclusion of law. The
affidavits by which the petition is
accompanied contain no reference to
the subject, and we are cited to no
authority in the appellant's brief which
might tend to raise a doubt as to the
correctness of the conclusion of the trial
court. It is very clear, therefore, that this
point cannot be urged as of serious
moment.
It is implicit in the above ruling that when, with respect
to certain aspects of the foreign laws concerned, the
parties in a given case do not have any controversy or
are more or less in agreement, the Court may take it for
granted for the purposes of the particular case before it
that the said laws are as such virtual agreement
indicates, without the need of requiring the
presentation of what otherwise would be the
competent evidence on the point. Thus, in the instant
cases wherein it results from the respective contentions
of both parties that even if the pertinent laws of Texas
were known and to be applied, the amount of the
inheritance pertaining to the heirs of Mrs. Hodges is as
We have fixed above, the absence of evidence to the
effect that, actually and in fact, under said laws, it could
be otherwise is of no longer of any consequence, unless
the purpose is to show that it could be more. In other
words, since PCIB, the petitioner-appellant, concedes
that upon application of Article 16 of the Civil Code and
the pertinent laws of Texas, the amount of the estate in
controversy is just as We have determined it to be, and
respondent-appellee is only claiming, on her part, that it
could be more, PCIB may not now or later pretend
differently.
To be more concrete, on pages 20-21 of its petition
herein, dated July 31, 1967, PCIB states categorically:
Inasmuch as Article 16 of the Civil Code
provides that "intestate and
testamentary successions both with
respect to the order of succession and
to the amount of successional rights
and to the intrinsic validity of
testamentary provisions, shall be
regulated by the national law of the
person whose succession is under
consideration, whatever may be the
nature of the property and regardless of
the country wherein said property may
be found", while the law of Texas (the
Hodges spouses being nationals of
U.S.A., State of Texas), in its conflicts of
law rules, provides that the domiciliary
law (in this case Philippine law) governs
the testamentary dispositions and
successional rights over movables or
personal properties, while the law of
the situs (in this case also Philippine law
with respect to all Hodges properties
located in the Philippines), governs with
respect to immovable properties, and
applying therefore the 'renvoi doctrine'
as enunciated and applied by this
Honorable Court in the case of In re
Estate of Christensen (G.R. No. L-16749,
Jan. 31, 1963), there can be no question
that Philippine law governs the
testamentary dispositions contained in
the Last Will and Testament of the
deceased Linnie Jane Hodges, as well as
the successional rights to her estate,
both with respect to movables, as well
as to immovables situated in the
Philippines.
In its main brief dated February 26, 1968, PCIB asserts:
The law governing successional rights.
As recited above, there is no question
that the deceased, Linnie Jane Hodges,
was an American citizen. There is also
no question that she was a national of
the State of Texas, U.S.A. Again, there is
likewise no question that she had her
domicile of choice in the City of Iloilo,
Philippines, as this has already been
pronounced by the above-cited orders
of the lower court, pronouncements
which are by now res adjudicata (par.
[a], See. 49, Rule 39, Rules of Court; In
re Estate of Johnson, 39 Phil. 156).
Article 16 of the Civil Code provides:
"Real property as well as personal
property is subject to the law of the
country where it is situated.
However, intestate and testamentary
successions, both with respect to the
order of succession and to the amount
of successional rights and to the
intrinsic validity of testamentary
provisions, shall be regulated by the
national law of the person whose
succession is under consideration,
whatever may be the nature of the
property and regardless of the country
wherein said property may be found."
Thus the aforecited provision of the Civil
Code points towards the national law of
the deceased, Linnie Jane Hodges,
which is the law of Texas, as governing
succession "both with respect to the
order of succession and to the amount
of successional rights and to the
intrinsic validity of testamentary
provisions ...". But the law of Texas, in
its conflicts of law rules, provides that
the domiciliary law governs the
testamentary dispositions and
successional rights over movables or
personal property, while the law of the
situs governs with respect to immovable
property. Such that with respect to both
movable property, as well as immovable
property situated in the Philippines, the
law of Texas points to the law of the
Philippines.
Applying, therefore, the so-called
"renvoi doctrine", as enunciated and
applied by this Honorable Court in the
case of "In re Christensen" (G.R. No. L-
16749, Jan. 31, 1963), there can be no
question that Philippine law governs the
testamentary provisions in the Last Will
and Testament of the deceased Linnie
 Jane Hodges, as well as the successional
rights to her estate, both with respect
to movables, as well as immovables
situated in the Philippines.
The subject of successional rights.
Under Philippine law, as it is under the
law of Texas, the conjugal or community
property of the spouses, Charles
Newton Hodges and Linnie Jane
Hodges, upon the death of the latter, is
to be divided into two, one-half
pertaining to each of the spouses, as his
or her own property. Thus, upon the
death of Linnie Jane Hodges, one-half of
the conjugal partnership property
immediately pertained to Charles
Newton Hodges as his own share, and
not by virtue of any successional rights.
There can be no question about this.
Again, Philippine law, or more In the summary of its arguments in its memorandum
specifically, Article 900 of the Civil Code dated April 30, 1968, the following appears:
provides:
If the only survivor is
the widow or widower,
she or he shall be
entitled to one-half of
the hereditary estate of
the deceased spouse,
and the testator may
freely dispose of the
other half.
If the marriage between
the surviving spouse
and the testator was
solemnized in articulo
mortis, and the testator
died within three
months from the time
of the marriage, the
legitime of the surviving
spouse as the sole heir
shall be one-third of the
hereditary estate,
except when they have
been living as husband
and wife for more than
five years. In the latter
case, the legitime of the
surviving spouse shall
be that specified in the
preceding paragraph.
This legitime of the surviving spouse
cannot be burdened by a
fideicommisary substitution (Art. 864,
Civil code), nor by any charge,
condition, or substitution (Art, 872, Civil
code). It is clear, therefore, that in
addition to one-half of the conjugal
partnership property as his own
conjugal share, Charles Newton Hodges
was also immediately entitled to one-
half of the half conjugal share of the
deceased, Linnie Jane Hodges, or one-
fourth of the entire conjugal property,
as his legitime.
One-fourth of the conjugal property
therefore remains at issue.
Briefly, the position advanced by the
petitioner is:
a. That the Hodges spouses were
domiciled legally in the Philippines (pp.
19-20, petition). This is now a matter of
res adjudicata (p. 20, petition).
b. That under Philippine law, Texas law,
and the renvoi doctrine, Philippine law
governs the successional rights over the
properties left by the deceased, Linnie
Jane Hodges (pp. 20-21, petition).
c. That under Philippine as well as Texas
law, one-half of the Hodges properties
pertains to the deceased, Charles
Newton Hodges (p. 21, petition). This is
not questioned by the respondents.
d. That under Philippine law, the
deceased, Charles Newton Hodges,
automatically inherited one-half of the
remaining one-half of the Hodges
properties as his legitime (p. 21,
petition).
 e. That the remaining 25% of the
Hodges properties was inherited by the
deceased, Charles Newton Hodges,
under the will of his deceased spouse
(pp. 22-23, petition). Upon the death of
Charles Newton Hodges, the
substitution 'provision of the will of the
deceased, Linnie Jane Hodges, did not
operate because the same is void (pp.
23-25, petition).
f. That the deceased, Charles Newton
Hodges, asserted his sole ownership of
the Hodges properties and the probate
court sanctioned such assertion (pp. 25-
29, petition). He in fact assumed such
ownership and such was the status of
the properties as of the time of his
death (pp. 29-34, petition).
Of similar tenor are the allegations of PCIB in some of its
pleadings quoted in the earlier part of this option.
On her part, it is respondent-appellee Magno's posture
that under the laws of Texas, there is no system of
legitime, hence the estate of Mrs. Hodges should be
one-half of all the conjugal properties.
It is thus unquestionable that as far as PCIB is
concerned, the application to these cases of Article 16
of the Civil Code in relation to the corresponding laws of
Texas would result in that the Philippine laws on
succession should control. On that basis, as We have
already explained above, the estate of Mrs. Hodges is
the remainder of one-fourth of the conjugal partnership
properties, considering that We have found that there is
no legal impediment to the kind of disposition ordered
by Mrs. Hodges in her will in favor of her brothers and
sisters and, further, that the contention of PCIB that the
same constitutes an inoperative testamentary
substitution is untenable. As will be recalled, PCIB's
position that there is no such estate of Mrs. Hodges is
predicated exclusively on two propositions, namely: (1)
that the provision in question in Mrs. Hodges' testament
violates the rules on substitution of heirs under the Civil
Code and (2) that, in any event, by the orders of the trial
court of May 27, and December 14, 1957, the trial court
had already finally and irrevocably adjudicated to her
husband the whole free portion of her estate to the
exclusion of her brothers and sisters, both of which
poses, We have overruled. Nowhere in its pleadings,
briefs and memoranda does PCIB maintain that the
application of the laws of Texas would result in the other
heirs of Mrs. Hodges not inheriting anything under her
will. And since PCIB's representations in regard to the
laws of Texas virtually constitute admissions of fact
which the other parties and the Court are being made
to rely and act upon, PCIB is "not permitted to
contradict them or subsequently take a position
contradictory to or inconsistent with them." (5 Moran,
id, p. 65, citing Cunanan vs. Amparo, 80 Phil. 227; Sta.
Ana vs. Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018).
Accordingly, the only question that remains to be settled
in the further proceedings hereby ordered to be held in
the court below is how much more than as fixed above
is the estate of Mrs. Hodges, and this would depend on
(1) whether or not the applicable laws of Texas do
provide in effect for more, such as, when there is no
legitime provided therein, and (2) whether or not
Hodges has validly waived his whole inheritance from
Mrs. Hodges.
In the course of the deliberations, it was brought out by
some members of the Court that to avoid or, at least,
minimize further protracted legal controversies between
the respective heirs of the Hodges spouses, it is
imperative to elucidate on the possible consequences of
dispositions made by Hodges after the death of his wife
from the mass of the unpartitioned estates without any
express indication in the pertinent documents as to
whether his intention is to dispose of part of his
inheritance from his wife or part of his own share of the
conjugal estate as well as of those made by PCIB after
the death of Hodges. After a long discussion, the
consensus arrived at was as follows: (1) any such
dispositions made gratuitously in favor of third parties,
whether these be individuals, corporations or
foundations, shall be considered as intended to be of
properties constituting part of Hodges' inheritance from
his wife, it appearing from the tenor of his motions of
May 27 and December 11, 1957 that in asking for
general authority to make sales or other disposals of
properties under the jurisdiction of the court, which
include his own share of the conjugal estate, he was not
invoking particularly his right over his own share, but
rather his right to dispose of any part of his inheritance
pursuant to the will of his wife; (2) as regards sales,
exchanges or other remunerative transfers, the
proceeds of such sales or the properties taken in by
virtue of such exchanges, shall be considered as merely
the products of "physical changes" of the properties of
her estate which the will expressly authorizes Hodges to
make, provided that whatever of said products should
remain with the estate at the time of the death of
Hodges should go to her brothers and sisters; (3) the
dispositions made by PCIB after the death of Hodges
must naturally be deemed as covering only the
properties belonging to his estate considering that being
only the administrator of the estate of Hodges, PCIB
could not have disposed of properties belonging to the
estate of his wife. Neither could such dispositions be
considered as involving conjugal properties, for the
simple reason that the conjugal partnership
automatically ceased when Mrs. Hodges died, and by
the peculiar provision of her will, under discussion, the
remainder of her share descended also automatically
upon the death of Hodges to her brothers and sisters,
thus outside of the scope of PCIB's administration.
Accordingly, these construction of the will of Mrs.
Hodges should be adhered to by the trial court in its
final order of adjudication and distribution and/or
partition of the two estates in question.
THE APPEALS
A cursory examination of the seventy-eight assignments
of error in appellant PCIB's brief would readily reveal
that all of them are predicated mainly on the contention
that inasmuch as Hodges had already adjudicated unto
himself all the properties constituting his wife's share of
the conjugal partnership, allegedly with the sanction of
the trial court per its order of December 14, 1957, there
has been, since said date, no longer any estate of Mrs.
Hodges of which appellee Magno could be
administratrix, hence the various assailed orders
sanctioning her actuations as such are not in accordance
with law. Such being the case, with the foregoing
resolution holding such posture to be untenable in fact
and in law and that it is in the best interest of justice
that for the time being the two estates should be
administered conjointly by the respective administrators
of the two estates, it should follow that said
assignments of error have lost their fundamental
reasons for being. There are certain matters, however,
relating peculiarly to the respective orders in question, if
commonly among some of them, which need further
clarification. For instance, some of them authorized
respondent Magno to act alone or without concurrence
of PCIB. And with respect to many of said orders, PCIB
further claims that either the matters involved were not
properly within the probate jurisdiction of the trial court
or that the procedure followed was not in accordance
with the rules. Hence, the necessity of dealing
separately with the merits of each of the appeals.
Indeed, inasmuch as the said two estates have until now
remained commingled pro-indiviso, due to the failure of
Hodges and the lower court to liquidate the conjugal
partnership, to recognize appellee Magno as
Administratrix of the Testate Estate of Mrs. Hodges
which is still unsegregated from that of Hodges is not to
say, without any qualification, that she was therefore
authorized to do and perform all her acts complained of
in these appeals, sanctioned though they might have
been by the trial court. As a matter of fact, it is such
commingling pro-indiviso of the two estates that should
deprive appellee of freedom to act independently from
PCIB, as administrator of the estate of Hodges, just as,
for the same reason, the latter should not have
authority to act independently from her. And
considering that the lower court failed to adhere
consistently to this basic point of view, by allowing the
two administrators to act independently of each other,
in the various instances already noted in the narration
of facts above, the Court has to look into the attendant
circumstances of each of the appealed orders to be able
to determine whether any of them has to be set aside or
they may all be legally maintained notwithstanding the
failure of the court a quo to observe the pertinent
procedural technicalities, to the end only that graver
injury to the substantive rights of the parties concerned
and unnecessary and undesirable proliferation of
incidents in the subject proceedings may be forestalled.
In other words, We have to determine, whether or not,
in the light of the unusual circumstances extant in the
record, there is need to be more pragmatic and to adopt
a rather unorthodox approach, so as to cause the least
disturbance in rights already being exercised by
numerous innocent third parties, even if to do so may
not appear to be strictly in accordance with the letter of
the applicable purely adjective rules.
Incidentally, it may be mentioned, at this point, that it
was principally on account of the confusion that might
result later from PCIB's continuing to administer all the
community properties, notwithstanding the certainty of
the existence of the separate estate of Mrs. Hodges, and
to enable both estates to function in the meantime with
a relative degree of regularity, that the Court ordered in
the resolution of September 8, 1972 the modification of
the injunction issued pursuant to the resolutions of
August 8, October 4 and December 6, 1967, by virtue of
which respondent Magno was completely barred from
any participation in the administration of the properties
herein involved. In the September 8 resolution, We
ordered that, pending this decision, Special Proceedings
1307 and 1672 should proceed jointly and that the
respective administrators therein "act conjointly
none of them to act singly and independently of each
other for any purpose." Upon mature deliberation, We
felt that to allow PCIB to continue managing or
administering all the said properties to the exclusion of
the administratrix of Mrs. Hodges' estate might place
the heirs of Hodges at an unduly advantageous position
which could result in considerable, if not irreparable,
damage or injury to the other parties concerned. It is
indeed to be regretted that apparently, up to this date,
more than a year after said resolution, the same has not
been given due regard, as may be gleaned from the fact
that recently, respondent Magno has filed in these
proceedings a motion to declare PCIB in contempt for
alleged failure to abide therewith, notwithstanding that
its repeated motions for reconsideration thereof have all
been denied soon after they were filed.9
Going back to the appeals, it is perhaps best to begin
first with what appears to Our mind to be the simplest,
and then proceed to the more complicated ones in that
order, without regard to the numerical sequence of the
assignments of error in appellant's brief or to the order
of the discussion thereof by counsel.
Assignments of error numbers
LXXII, LXXVII and LXXVIII.
These assignments of error relate to (1) the order of the
trial court of August 6, 1965 providing that "the deeds
of sale (therein referred to involving properties in the
name of Hodges) should be signed jointly by the PCIB, as
Administrator of Testate Estate of C.N. Hodges, and
Avelina A. Magno, as Administratrix of the Testate Estate
of Linnie Jane Hodges, and to this effect, the PCIB
should take the necessary steps so that Administratrix
Avelina A. Magno could sign the deeds of sale," (p. 248,
Green Rec. on Appeal) (2) the order of October 27, 1965
denying the motion for reconsideration of the foregoing
order, (pp. 276-277, id.) (3) the other order also dated
October 27, 1965 enjoining inter alia, that "(a) all cash
collections should be deposited in the joint account of
the estate of Linnie Jane Hodges and estate of C. N.
Hodges, (b) that whatever cash collections (that) had
been deposited in the account of either of the estates
should be withdrawn and since then (sic) deposited in
the joint account of the estate of Linnie Jane Hodges
and the estate of C. N. Hodges; ... (d) (that)
Administratrix Magno allow the PCIB to inspect
whatever records, documents and papers she may have
in her possession, in the same manner that
Administrator PCIB is also directed to allow
Administratrix Magno to inspect whatever records,
documents and papers it may have in its possession"
and "(e) that the accountant of the estate of Linnie Jane
Hodges shall have access to all records of the
transactions of both estates for the protection of the
estate of Linnie Jane Hodges; and in like manner, the
accountant or any authorized representative of the
estate of C. N. Hodges shall have access to the records
of transactions of the Linnie Jane Hodges estate for the
protection of the estate of C. N. Hodges", (pp. 292-
295, id.) and (4) the order of February 15, 1966,
denying, among others, the motion for reconsideration
of the order of October 27, 1965 last referred to. (pp.
455-456, id.)
As may be readily seen, the thrust of all these four
impugned orders is in line with the Court's above-
mentioned resolution of September 8, 1972 modifying
the injunction previously issued on August 8, 1967, and,
more importantly, with what We have said the trial
court should have always done pending the liquidation
of the conjugal partnership of the Hodges spouses. In
fact, as already stated, that is the arrangement We are
ordering, by this decision, to be followed. Stated
differently, since the questioned orders provide for joint
action by the two administrators, and that is precisely
what We are holding out to have been done and should
be done until the two estates are separated from each
other, the said orders must be affirmed. Accordingly the
foregoing assignments of error must be, as they are
hereby overruled.
Assignments of error Numbers LXVIII
to LXXI and LXXIII to LXXVI.
The orders complained of under these assignments of
error commonly deal with expenditures made by
appellee Magno, as Administratrix of the Estate of Mrs.
Hodges, in connection with her administration thereof,
albeit additionally, assignments of error Numbers LXIX
to LXXI put into question the payment of attorneys fees
provided for in the contract for the purpose, as
constituting, in effect, premature advances to the heirs
of Mrs. Hodges.
More specifically, assignment Number LXXIII refers to
reimbursement of overtime pay paid to six employees of
the court and three other persons for services in
copying the court records to enable the lawyers of the
administration to be fully informed of all the incidents in
the proceedings. The reimbursement was approved as
proper legal expenses of administration per the order of
December 19, 1964, (pp. 221-222, id.) and repeated
motions for reconsideration thereof were denied by the
orders of January 9, 1965, (pp. 231-232, id.) October 27,
1965, (p. 277, id.) and February 15, 1966. (pp. 455-
456, id.) On the other hand, Assignments Numbers
LXVIII to LXXI, LXXIV and LXXV question the trial court's
order of November 3, 1965 approving the agreement of
June 6, 1964 between Administratrix Magno and James
L. Sullivan, attorney-in-fact of the heirs of Mrs. Hodges,
as Parties of the First Part, and Attorneys Raul
Manglapus and Rizal R. Quimpo, as Parties of the
Second Part, regarding attorneys fees for said counsel
who had agreed "to prosecute and defend their
interests (of the Parties of the First Part) in certain cases
now pending litigation in the Court of First Instance of
Iloilo , more specifically in Special Proceedings 1307
and 1672 " (pp. 126-129, id.) and directing
Administratrix Magno "to issue and sign whatever check
or checks maybe needed to implement the approval of
the agreement annexed to the motion" as well as the
"administrator of the estate of C. N. Hodges to
countersign the said check or checks as the case
maybe." (pp. 313-320, id.), reconsideration of which
order of approval was denied in the order of February
16, 1966, (p. 456, id.) Assignment Number LXXVI
imputes error to the lower court's order of October 27,
1965, already referred to above, insofar as it orders that
"PCIB should counter sign the check in the amount of
P250 in favor of Administratrix Avelina A. Magno as her
compensation as administratrix of Linnie Jane Hodges
estate chargeable to the Testate Estate of Linnie Jane
Hodges only." (p. 294, id.)
Main contention again of appellant PCIB in regard to
these eight assigned errors is that there is no such
estate as the estate of Mrs. Hodges for which the
questioned expenditures were made, hence what were
authorized were in effect expenditures from the estate
of Hodges. As We have already demonstrated in Our
resolution above of the petition for certiorari and
prohibition, this posture is incorrect. Indeed, in
whichever way the remaining issues between the
parties in these cases are ultimately resolved, 10 the final
result will surely be that there are properties
constituting the estate of Mrs. Hodges of which Magno
is the current administratrix. It follows, therefore, that
said appellee had the right, as such administratrix, to
hire the persons whom she paid overtime pay and to be
paid for her own services as administratrix. That she has
not yet collected and is not collecting amounts as
substantial as that paid to or due appellant PCIB is to
her credit.
Of course, she is also entitled to the services of counsel
and to that end had the authority to enter into contracts
for attorney's fees in the manner she had done in the
agreement of June 6, 1964. And as regards to the
reasonableness of the amount therein stipulated, We
see no reason to disturb the discretion exercised by the
probate court in determining the same. We have gone
over the agreement, and considering the obvious size of
the estate in question and the nature of the issues
between the parties as well as the professional standing
of counsel, We cannot say that the fees agreed upon
require the exercise by the Court of its inherent power
to reduce it.
PCIB insists, however, that said agreement of June 6,
1964 is not for legal services to the estate but to the
heirs of Mrs. Hodges, or, at most, to both of them, and
such being the case, any payment under it, insofar as
counsels' services would redound to the benefit of the
heirs, would be in the nature of advances to such heirs
and a premature distribution of the estate. Again, We
hold that such posture cannot prevail.
Upon the premise We have found plausible that there is
an existing estate of Mrs. Hodges, it results that
juridically and factually the interests involved in her
estate are distinct and different from those involved in
her estate of Hodges and vice versa. Insofar as the
matters related exclusively to the estate of Mrs. Hodges,
PCIB, as administrator of the estate of Hodges, is a
complete stranger and it is without personality to
question the actuations of the administratrix thereof
regarding matters not affecting the estate of Hodges.
Actually, considering the obviously considerable size of
the estate of Mrs. Hodges, We see no possible cause for
apprehension that when the two estates are segregated
from each other, the amount of attorney's fees
stipulated in the agreement in question will prejudice
any portion that would correspond to Hodges' estate.
And as regards the other heirs of Mrs. Hodges who
ought to be the ones who should have a say on the
attorney's fees and other expenses of administration
assailed by PCIB, suffice it to say that they appear to
have been duly represented in the agreement itself by
their attorney-in-fact, James L. Sullivan and have not
otherwise interposed any objection to any of the
expenses incurred by Magno questioned by PCIB in
these appeals. As a matter of fact, as ordered by the
trial court, all the expenses in question, including the
attorney's fees, may be paid without awaiting the
determination and segregation of the estate of Mrs.
Hodges.
Withal, the weightiest consideration in connection with
the point under discussion is that at this stage of the
controversy among the parties herein, the vital issue
refers to the existence or non-existence of the estate of
Mrs. Hodges. In this respect, the interest of respondent
Magno, as the appointed administratrix of the said
estate, is to maintain that it exists, which is naturally
common and identical with and inseparable from the
interest of the brothers and sisters of Mrs. Hodges.
Thus, it should not be wondered why both Magno and
these heirs have seemingly agreed to retain but one
counsel. In fact, such an arrangement should be more
convenient and economical to both. The possibility of
conflict of interest between Magno and the heirs of Mrs.
Hodges would be, at this stage, quite remote and, in any
event, rather insubstantial. Besides, should any
substantial conflict of interest between them arise in the
future, the same would be a matter that the probate
court can very well take care of in the course of the
independent proceedings in Case No. 1307 after the
corresponding segregation of the two subject estates.
We cannot perceive any cogent reason why, at this
stage, the estate and the heirs of Mrs. Hodges cannot be
represented by a common counsel.
Now, as to whether or not the portion of the fees in
question that should correspond to the heirs constitutes
premature partial distribution of the estate of Mrs.
Hodges is also a matter in which neither PCIB nor the
heirs of Hodges have any interest. In any event, since, as
far as the records show, the estate has no creditors and
the corresponding estate and inheritance taxes, except
those of the brothers and sisters of Mrs. Hodges, have
already been paid, 11 no prejudice can caused to anyone
by the comparatively small amount of attorney's fees in
question. And in this connection, it may be added that,
although strictly speaking, the attorney's fees of the
counsel of an administrator is in the first instance his
personal responsibility, reimbursable later on by the
estate, in the final analysis, when, as in the situation on
hand, the attorney-in-fact of the heirs has given his
conformity thereto, it would be idle effort to inquire
whether or not the sanction given to said fees by the
probate court is proper.
For the foregoing reasons, Assignments of Error LXVIII to
LXXI and LXXIII to LXXVI should be as they are hereby
overruled.
Assignments of error I to IV,
XIII to XV, XXII to XXV, XXXV
to XXX VI, XLI to XLIII and L.
These assignments of error deal with the approval by
the trial court of various deeds of sale of real properties
registered in the name of Hodges but executed by
appellee Magno, as Administratrix of the Estate of Mrs.
Hodges, purportedly in implementation of
corresponding supposed written "Contracts to Sell"
previously executed by Hodges during the interim
between May 23, 1957, when his wife died, and
December 25, 1962, the day he died. As stated on pp.
118-120 of appellant's main brief, "These are: the,
contract to sell between the deceased, Charles Newton
Hodges, and the appellee, Pepito G. Iyulores executed
on February 5, 1961; the contract to sell between the
deceased, Charles Newton Hodges, and the appellant
Esperidion Partisala, executed on April 20, 1960; the
contract to sell between the deceased, Charles Newton
Hodges, and the appellee, Winifredo C. Espada,
executed on April 18, 1960; the contract to sell between
the deceased, Charles Newton Hodges, and the
appellee, Rosario Alingasa, executed on August 25,
1958; the contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Lorenzo
Carles, executed on June 17, 1958; the contract to sell
between the deceased, Charles Newton Hodges, and
the appellee, Salvador S. Guzman, executed on
September 13, 1960; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee,
Florenia Barrido, executed on February 21, 1958; the
contract to sell between the deceased, Charles Newton
Hodges, and the appellee, Purificacion Coronado,
executed on August 14, 1961; the contract to sell
between the deceased, Charles Newton Hodges, and
the appellee, Graciano Lucero, executed on November
27, 1961; the contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Ariteo
Thomas Jamir, executed on May 26, 1961; the contract
to sell between the deceased, Charles Newton Hodges,
and the appellee, Melquiades Batisanan, executed on
June 9, 1959; the contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Belcezar
Causing, executed on February 10, 1959 and the
contract to sell between the deceased, Charles Newton
Hodges, and the appellee, Adelfa Premaylon, executed
on October 31, 1959, re Title No. 13815."
Relative to these sales, it is the position of appellant
PCIB that, inasmuch as pursuant to the will of Mrs.
Hodges, her husband was to have dominion over all her
estate during his lifetime, it was as absolute owner of
the properties respectively covered by said sales that he
executed the aforementioned contracts to sell, and
consequently, upon his death, the implementation of
said contracts may be undertaken only by the
administrator of his estate and not by the administratrix
of the estate of Mrs. Hodges. Basically, the same theory
is invoked with particular reference to five other sales,
in which the respective "contracts to sell" in favor of
these appellees were executed by Hodges before the
death of his wife, namely, those in favor of appellee
Santiago Pacaonsis, Alfredo Catedral, Jose Pablico,
Western Institute of Technology and Adelfa Premaylon.
Anent those deeds of sale based on promises or
contracts to sell executed by Hodges after the death of
his wife, those enumerated in the quotation in the
immediately preceding paragraph, it is quite obvious
that PCIB's contention cannot be sustained. As already
explained earlier, 11* 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) thepactum 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.
G.R. No. 119064 August 22, 2000
NENG "KAGUI KADIGUIA" MALANG, petitioner,
vs.
HON. COROCOY MOSON, Presiding Judge of 5th Shari'a
District Court, Cotabato City, HADJI MOHAMMAD
ULYSSIS MALANG, HADJI ISMAEL MALINDATU
MALANG, FATIMA MALANG, DATULNA MALANG,
LAWANBAI MALANG, JUBAIDA KADO MALANG, NAYO
OMAL MALANG and MABAY GANAP
MALANG,respondents.
DECISION
GONZAGA-REYES, J.:
Presented for resolution in this special civil action
of certiorari is the issue of whether or not the regime of
conjugal partnership of gains governed the property
relationship of two Muslims who contracted marriage
prior to the effectivity of the Code of Muslim Personal
Laws of the Philippines (hereafter, "P.D. 1083" or
"Muslim Code"). The question is raised in connection
with the settlement of the estate of the deceased
husband.
Hadji Abdula Malang, a Muslim, contracted marriage
with Aida (Kenanday) Limba. They begot three sons
named Hadji Mohammad Ulyssis, Hadji Ismael
Malindatu and Datulna, and a daughter named
Lawanbai. Hadji Abdula Malang was engaged in farming,
tilling the land that was Aidas dowry (mahr or majar).
Thereafter, he bought a parcel of land in Sousa,
Cotabato. Hadji Abdula and Aida already had two
children when he married for the second time another
Muslim named Jubaida Kado in Kalumamis, Talayan,
Maguindanao. No child was born out of Hadji Abdulas
second marriage. When Aida, the first wife, was
pregnant with their fourth child, Hadji Abdula divorced
her.
In 1965, Hadji Abdula married another Muslim, Nayo H.
Omar but they were childless. Thereafter, Hadji Abdula
contracted marriage with Hadji Mabai (Mabay) H. Adziz
in Kalumamis, Talayan, Maguindanao and soon they had
a daughter named Fatima (Kueng). Hadji Abdula and
Hadji Mabai stayed in that place to farm while Hadji
Abdula engaged in the business of buying and selling of
rice, corn and other agricultural products. Not long after,
Hadji Abdula married three other Muslim women
named Saaga, Mayumbai and Sabai but he eventually
divorced them.
Hadji Abdula then migrated to Tambunan where, in
1972, he married petitioner Neng "Kagui Kadiguia"
Malang, his fourth wife, excluding the wives he had
divorced. They established residence in Cotabato City
but they were childless. For a living, they relied on
farming and on the business of buying and selling of
agricultural products. Hadji Abdula acquired vast tracts
of land in Sousa and Talumanis, Cotabato City, some of
which were cultivated by tenants. He deposited money
in such banks as United Coconut Planters Bank,
Metrobank and Philippine Commercial and Industrial
Bank.
On December 18, 1993, while he was living with
petitioner in Cotabato City, Hadji Abdula died without
leaving a will. On January 21, 1994, petitioner filed with
the Sharia District Court in Cotabato City a petition for
the settlement of his estate with a prayer that letters of
administration be issued in the name of her niece,
Tarhata Lauban.
Petitioner claimed in that petition that she was the wife
of Hadji Abdula; that his other legal heirs are his three
children named Teng Abdula, Keto Abdula and Kueng
Malang, and that he left seven (7) parcels of land, five
(5) of which are titled in Hadji Abdulas name "married
to Neng P. Malang," and a pick-up jeepney.
On February 7, 1994, the Sharia District Court ordered
the publication of the petition.1 After such
publication2 or on March 16, 1994, Hadji Mohammad
Ulyssis Malang ("Hadji Mohammad", for brevity), the
eldest son of Hadji Abdula, filed his opposition to the
petition. He alleged among other matters that his
fathers surviving heirs are as follows: (a) Jubaida
Malang, surviving spouse; (b) Nayo Malang, surviving
spouse; (c) Mabay Malang, surviving spouse; (d)
petitioner Neng Malang, surviving spouse; (e) oppositor
Hadji Mohammad Ulyssis Malang who is also known as
"Teng Abdula," son; (f) Hadji Ismael Malindatu Malang,
also known as "Keto Abdula," son, (g) Fatima Malang,
also known as "Kueng Malang," daughter; (h) Datulna
Malang, son, and (i) Lawanbai Malang, daughter.
Oppositor Hadji Mohammad Ulyssis Malang alleged that
since he and his brother, Hadji Ismael Malindatu
Malang, had helped their father in his business, then
they were more competent to be administrators of his
estate.3
On March 30, 1994, Jubaida Malang, Ismael Malindatu
Malang, Nayo Malang, Fatima Malang, Mabay Malang,
Datulna Malang and Lawanbai Malang filed an
opposition to the petition, adopting as their own the
written opposition of Hadji Mohammad.4
On April 7, 1994, the Sharia District Court issued an
Order appointing Hadji Mohammad administrator of his
fathers properties outside Cotabato City. The same
order named petitioner and Hadji Ismael Malindatu
Malang as joint administrators of the estate in Cotabato
City. Each administrator was required to post a bond in
the amount of P100,000.00.5 On April 13, 1994, letters
of administration were issued to Hadji Mohammad after
he had posted the required bond. He took his oath on
the same day.6 The following day, Hadji Ismael and
petitioner likewise filed their respective bonds and
hence, they were allowed to take their oath as
administrators.7
On April 25, 1994 and May 3, 1994, petitioner filed two
motions informing the court that Hadji Abdula had
outstanding deposits with nine (9) major
banks.8 Petitioner prayed that the managers of each of
those banks be ordered to submit a bank statement of
the outstanding deposit of Hadji Abdula. 9 The Sharia
District Court having granted the motions, 10 Assistant
Vice President Rockman O. Sampuha of United Coconut
Planters Bank informed the court that as of April 24,
1994, the outstanding deposit of Hadji Abdula
amounted to one million five hundred twenty thousand
four hundred pesos and forty-eight centavos
(1,520,400.48).11 The Senior Manager of the Cotabato
branch of Metrobank also certified that as of December
18, 1993, "Hadji Abdula Malang or Malindatu Malang"
had on savings deposit the balance of three hundred
seventy-eight thousand four hundred ninety-three pesos
and 32/100 centavos (P378,493.32).12 PCIB likewise
issued a certification that Hadji Abdula had a balance of
eight hundred fifty pesos (P850.00) in his current
account as of August 11, 1994.13
During the pendency of the case, petitioner suffered a
congestive heart failure that required immediate
medical treatment. On May 5, 1994, she filed a motion
praying that on account of her ailment, she be allowed
to withdraw from UCPB the amount of three hundred
thousand pesos (P300,000.00) that shall constitute her
advance share in the estate of Hadji Abdula. 14 After due
hearing, the Sharia District Court allowed petitioner to
withdraw the sum of two hundred fifty thousand pesos
(P250,000.00).15
On May 12, 1994, the Sharia District Court required
petitioner and Hadji Ismael as joint administrators to
submit an inventory and appraisal of all properties of
Hadji Abdula.16 In compliance therewith, Hadji Ismael
submitted an inventory showing that in Cotabato City,
Hadji Abdula had seven (7) residential lots with assessed
value ranging from P5,020.00 to P25,800.00, an
agricultural land with assessed value of P860.00, three
(3) one-storey residential buildings, and one (1) two-
storey residential building.17 All these properties were
declared for taxation purposes in Hadji Abdulas name.
For her part, petitioner submitted an inventory showing
that Hadji Abdula "married to Neng Malang" had seven
(7) residential lots with a total assessed value of
P243,840.00 in Cotabato City, an Isuzu pick-up jeepney
valued at P30,000.00 and bank deposits. 18
In the Memorandum that she filed with the
Sharia District Court, petitioner asserted that all the
properties located in Cotabato City, including the vehicle
and bank deposits, were conjugal properties in
accordance with Article 160 of the Civil Code and Article
116 of the Family Code while properties located outside
of Cotabato City were exclusive properties of the
decedent.19
On the other hand, the oppositors contended in their
own Memorandum that all the properties left by Hadji
Abdula were his exclusive properties for various
reasons. First, Hadji Abdula had no conjugal partnership
with petitioner because his having contracted eight (8)
marriages with different Muslim women was in violation
of the Civil Code that provided for a monogamous
marriage; a conjugal partnership presupposes a valid
civil marriage, not a bigamous marriage or a common-
law relationship. Second, the decedent adopted a
"complete separation of property regime" in his marital
relations; while his wives Jubaida Kado, Nayo Hadji Omal
and Mabay Ganap Hadji Adzis contributed to the
decedents properties, there is no evidence that
petitioner had contributed funds for the acquisition of
such properties. Third, the presumption that properties
acquired during the marriage are conjugal properties is
inapplicable because at the time he acquired the
properties, the decedent was married to four (4)
women. Fourth, the properties are not conjugal in
nature notwithstanding that some of these properties
were titled in the name of the decedent "married to
Neng Malang" because such description is not
conclusive of the conjugal nature of the property.
Furthermore, because petitioner admitted in her
verified petition that the properties belonged "to the
estate of decedent," she was estopped from claiming,
after formal offer of evidence, that the properties were
conjugal in nature just because some of the properties
were titled in Hadji Abdulas name "married to Neng
Malang." Fifth, if it is true that the properties were
conjugal properties, then these should have been
registered in the names of both petitioner and the
decedent.20
In its Order of September 26, 1994, the Sharia District
Court presided by Judge Corocoy D. Moson held that
there was no conjugal partnership of gains between
petitioner and the decedent primarily because the latter
married eight times. The Civil Code provision on
conjugal partnership cannot be applied if there is more
than one wife because "conjugal partnership
presupposes a valid civil marriage, not a plural marriage
or a common-law relationship." The court further found
that the decedent was "the chief, if not the sole,
breadwinner of his families" and that petitioner did not
contribute to the properties unlike the other wives
named Jubaida, Nayo and Mabay. The description
"married to Neng Malang" in the titles to the real
properties is no more than that -- the description of
the relationship between petitioner and the decedent.
Such description is insufficient to prove that the
properties belong to the conjugal partnership of gains.
The court stated:
In the instant case, decedent had four (4) wives at the
time he acquired the properties in question. To sustain
the contention of the petitioner that the properties are
her conjugal property with the decedent is doing
violence to the provisions of the Civil Code. Be it noted
that at the time of the marriage of the petitioner with
the decedent, there were already three (3) existing
marriages. Assuming for the moment that petitioner
and the decedent had agreed that the property regime
between them will be governed by the regime of
conjugal partnership property, that agreement is null
and void for it is against the law, public policy, public
order, good moral(s) and customs.
Under Islamic law, the regime of property relationship is
complete separation of property, in the absence of any
stipulation to the contrary in the marriage settlements
or any other contract (Article 38, P.D. 1083). There being
no evidence of such contrary stipulation or contract, this
Court concludes as it had begun, that the properties in
question, both real and personal, are not conjugal, but
rather, exclusive property of the decedent. 21
Thus, the Sharia District Court held that the Islamic law
should be applied in the distribution of the estate of
Hadji Abdula and accordingly disposed of the case as
follows:
WHEREFORE, premises considered, the Court orders the
following:
 1) That the estate shall pay the corresponding
estate tax, reimburse the funeral expenses in
the amount of P50,000.00, and the judicial
expenses in the amount of P2,040.80;
2) That the net estate, consisting of real and
personal properties, located in Talayan,
Maguindanao and in Cotabato City, is hereby
ordered to be distributed and adjudicated as
follows:
a) Jubaida Kado Malang
------------------------- 2/64 of the estate
b) Nayo Omar Malang
------------------------- 2/64 - do -
c) Mabai Aziz Malang
------------------------- 2/64 - do -
d) Neng "Kagui Kadiguia" Malang
------------------- 2/64 - do -
e) Mohammad Ulyssis
Malang-------------------------14/64 - do -
f) Ismael Malindatu
Malang---------------------------14/64 - do -
g) Datulna Malang -------------------------
14/64 - do -
h) Lawanbai Malang -------------------------
7/64 - do -
i) Fatima (Kueng) Malang
------------------------- 7/64 - do -
Total------------------------ 64/64
3) That the amount of P250,000.00 given to
Neng "Kagui Kadiguia" Malang by way of
advance be charged against her share and if her
share is not sufficient, to return the excess; and
4) That the heirs are hereby ordered to submit
to this court their Project of Partition for
approval, not later than three (3) months from
receipt of this order.
SO ORDERED.
On October 4, 1994, petitioner filed a motion for the
reconsideration of that Order. The oppositors objected
to that motion. On January 10, 1995, the Sharia District
Court denied petitioners motion for
reconsideration.22 Unsatisfied, petitioner filed a notice of
appeal.23 However, on January 19, 1995, she filed a
manifestation withdrawing the notice of appeal on the
strength of the following provisions of P.D. No. 1083:
Art. 145. Finality of Decisions The decisions of the
Sharia District Courts whether on appeal from the
ShariaCircuit Court or not shall be final. Nothing herein
contained shall affect the original and appellate
jurisdiction of the Supreme Court as provided in the
Constitution.
Petitioner accordingly informed the court that she
would be filing "an original action of certiorari with the
Supreme Court."24
On March 1, 1995, petitioner filed the instant petition
for certiorari with preliminary injunction and/or
restraining order. She contends that the Sharia District
Court gravely erred in: (a) ruling that when she married
Hadji Abdula Malang, the latter had three existing
marriages with Jubaida Kado Malang, Nayo Omar
Malang and Mabay Ganap Malang and therefore the
properties acquired during her marriage could not be
considered conjugal, and (b) holding that said properties
are not conjugal because under Islamic Law, the regime
of relationship is complete separation of property, in the
absence of stipulation to the contrary in the marriage
settlement or any other contract.25
As petitioner sees it, "the law applicable on issues of
marriage and property regime is the New Civil Code",
under which all property of the marriage is presumed to
belong to the conjugal partnership. The Sharia Court,
meanwhile, viewed the Civil Code provisions on conjugal
partnership as incompatible with plural marriage, which
is permitted under Muslim law, and held the applicable
property regime to be complete separation of property
under P.D. 1083.
Owing to the complexity of the issue presented, and the
fact that the case is one of first impression --- this is a
singular situation where the issue on what law governs
the property regime of a Muslim marriage celebrated
prior to the passage of the Muslim Code has been
elevated from a Sharia court for the Courts resolution
--- the Court decided to solicit the opinions of two amici
curiae, Justice Ricardo C. Puno26 and former
Congressman Michael O. Mastura27 . The Court extends
its warmest thanks to the amici curiae for their valuable
inputs in their written memoranda28 and in the hearing
of June 27, 2000.
Resolution of the instant case is made more difficult by
the fact that very few of the pertinent dates of birth,
death, marriage and divorce are established by the
record. This is because, traditionally, Muslims do not
register acts, events or judicial decrees affecting civil
status.29 It also explains why the evidence in the instant
case consisted substantially of oral testimonies.
What is not disputed is that: Hadji Abdula contracted a
total of eight marriages, counting the three which
terminated in divorce; all eight marriages were
celebrated during the effectivity of the Civil Code and
before the enactment of the Muslim Code; Hadji Abdula
divorced four wives --- namely, Aida, Saaga, Mayumbai
and Sabai --- all divorces of which took place before the
enactment of the Muslim Code; and, Hadji Abdula died
on December 18, 1993, after the Muslim Code and
Family Code took effect, survived by four wives (Jubaida,
Nayo, Mabay and Neng) and five children, four of whom
he begot with Aida and one with Mabay. It is also clear
that the following laws were in force, at some point or
other, during the marriages of Hadji Abdula: the Civil
Code, which took effect on August 30, 1950; Republic
Act No. 394 ("R.A. 394"), authorizing Muslim divorces,
which was effective from June 18, 1949 to June 13,
1969; the Muslim Code, which took effect February 4,
1977; and the Family Code, effective August 3, 1988.
Proceeding upon the foregoing, the Court has concluded
that the record of the case is simply inadequate for
purposes of arriving at a fair and complete resolution of
the petition. To our mind, any attempt at this point to
dispense with the basic issue given the scantiness of the
evidence before us could result in grave injustice to the
parties in this case, as well as cast profound implications
on Muslim families similarly or analogously situated to
the parties herein. Justice and accountability dictate a
remand; trial must reopen in order to supply the factual
gaps or, in Congressman Masturas words, "missing
links", that would be the bases for judgment and
accordingly, allow respondent court to resolve the
instant case. In ordering thus, however, we take it as an
imperative on our part to set out certain guidelines in
the interpretation and application of pertinent laws to
facilitate the task of respondent court.
It will also be recalled that the main issue presented by
the petition --- concerning the property regime
applicable to two Muslims married prior to the
effectivity of the Muslim Code --- was interposed in
relation to the settlement of the estate of the deceased
husband. Settlement of estates of Muslims whose civil
acts predate the enactment of the Muslim Code may
easily result in the application of the Civil Code and
other personal laws, thus convincing the Court that it is
but propitious to go beyond the issue squarely
presented and identify such collateral issues as are
required to be resolved in a settlement of estate case.
As amicus curiae Congressman Mastura puts it, the
Court does not often come by a case as the one herein,
and jurisprudence will be greatly enriched by a
discussion of the "watershed of collateral issues" that
this case presents.30
The Court has identified the following collateral issues,
which we hereby present in question form: (1) What law
governs the validity of a Muslim marriage celebrated
under Muslim rites before the effectivity of the Muslim
Code? (2) Are multiple marriages celebrated before the
effectivity of the Muslim Code valid? (3) How do the
Courts pronouncements in People vs. Subano, 73 Phil.
692 (1942), and People vs. Dumpo, 62 Phil. 246 (1935),
affect Muslim marriages celebrated before the
effectivity of the Muslim Code? (4) What laws govern
the property relationship of Muslim multiple marriages
celebrated before the Muslim Code? (5) What law
governs the succession to the estate of a Muslim who
died after the Muslim Code and the Family Code took
effect? (6) What laws apply to the dissolution of
property regimes in the cases of multiple marriages
entered into before the Muslim Code but dissolved (by
the husbands death) after the effectivity of the Muslim
Code? and (7) Are Muslim divorces effected before the
enactment of the Muslim Code valid?
The succeeding guidelines, which derive mainly from
the Compliance of amicus curiae Justice Puno, are
hereby laid down by the Court for the reference of
respondent court, and for the direction of the bench
and bar:
First Collateral Issue: The Law(s) Governing Validity of
Muslim Marriages Celebrated Before the Muslim Code
The time frame in which all eight marriages of Hadji
Abdula were celebrated was during the effectivity of the
Civil Code which, accordingly, governs the marriages.
Article 78 of the Civil Code31 recognized the right of
Muslims to contract marriage in accordance with their
customs and rites, by providing that ---
Marriages between Mohammedans or pagans who live
in the non-Christian provinces may be performed in
accordance with their customs, rites or practices. No
marriage license or formal requisites shall be necessary.
Nor shall the persons solemnizing these marriages be
obliged to comply with article 92.
However, thirty years after the approval of this Code, all
marriages performed between Muslims or other non-
Christians shall be solemnized in accordance with the
provisions of this Code. But the President of the
Philippines, upon recommendation of the Commissioner
of National Integration, may at any time before the
expiration of said period, by proclamation, make any of
said provisions applicable to the Muslims and non-
Christian inhabitants of any of the non-Christian
provinces.
Notably, before the expiration of the thirty-year period
after which Muslims are enjoined to solemnize their
marriages in accordance with the Civil Code, P.D. 1083
or the Muslim Code was passed into law. The enactment
of the Muslim Code on February 4, 1977 rendered
nugatory the second paragraph of Article 78 of the Civil
Code which provides that marriages between Muslims
thirty years after the approval of the Civil Code shall be
solemnized in accordance with said Code.
Second and Third Collateral Issues: The Validity of
Muslim Multiple Marriages Celebrated Before the
Muslim Code; The Effect of People vs.
Subano and People vs. Dumpo
Prior to the enactment of P.D. 1083, there was no law in
this jurisdiction which sanctioned multiple
marriages.32 It is also not to be disputed that the only
law in force governing marriage relations between
Muslims and non-Muslims alike was the Civil Code of
1950.
The Muslim Code, which is the first comprehensive
codification33 of Muslim personal laws,34 also provides in
respect of acts that transpired prior to its enactment:
Art. 186. Effect of code on past acts. --- (1) Acts executed
prior to the effectivity of this Code shall be governed by
the laws in force at the time of their execution, and
nothing herein except as otherwise specifically
provided, shall affect their validity or legality or operate
to extinguish any right acquired or liability incurred
thereby.
The foregoing provisions are consistent with the
principle that all laws operate prospectively, unless the
contrary appears or is clearly, plainly and unequivocably
expressed or necessarily implied;35 accordingly, every
case of doubt will be resolved against the retroactive
opertion of laws.36 Article 186 aforecited enunciates the
general rule of the Muslim Code to have its provisions
applied prospectively, and implicitly upholds the force
and effect of a pre-existing body of law, specifically, the
Civil Code --- in respect of civil acts that took place
before the Muslim Codes enactment.
Admittedly, an apparent antagonism arises when we
consider that what the provisions of the Civil Code
contemplate and nurture is a monogamous marriage.
"Bigamous or polygamous marriages" are considered
void and inexistent from the time of their
performance.37 The Family Code which superseded the
Civil Code provisions on marriage emphasizes that a
subsequent marriage celebrated before the registration
of the judgment declaring a prior marriage void shall
likewise be void.38 These provisions illustrate that the
marital relation perceived by the Civil Code is one that is
monogamous, and that subsequent marriages entered
into by a person with others while the first one is
subsisting is by no means countenanced.
Thus, when the validity of Muslim plural marriages
celebrated before the enactment of the Muslim Code
was touched upon in two criminal cases, the Court
applied the perspective in the Civil Code that only one
valid marriage can exist at any given time.
In People vs. Subano, supra, the Court convicted the
accused of homicide, not parricide, since ---
(f)rom the testimony of Ebol Subano, father of the
deceased, it appears that the defendant has three wives
and that the deceased was the last in point of time.
Although the practice of polygamy is approved by
custom among these non-Christians, polygamy,
however, is not sanctioned by the Marriage Law 39 ,
which merely recognizes tribal marriage rituals. The
deceased, under our law, is not thus the lawful wife of
the defendant and this precludes conviction for the
crime of parricide.
In People vs. Dumpo, supra, Mora Dumpo was
prosecuted for bigamy when, legally married to Moro
Hassan, she allegedly contracted a second marriage with
Moro Sabdapal. The Court acquitted her on the ground
that it was not duly proved that the alleged second
marriage had all the essential requisites to make it valid
were it not for the subsistence of the first marriage. As it
appears that the consent of the brides father is an
indispensable requisite to the validity of a Muslim
marriage, and as Mora Dumpos father categorically
affirmed that he did not give his consent to her union
with Moro Sabdapal, the Court held that such union
could not be a marriage otherwise valid were it not for
the existence of the first one, and resolved to acquit her
of the charge of bigamy.
The ruling in Dumpo indicates that, had it been proven
as a fact that the second marriage contained all the
essential requisites to make it valid, a conviction for
bigamy would have prospered. 40
Fourth Collateral Issue: Law(s) Governing Property
Relations of Muslim Marriages Celebrated Before the
Muslim Code
This is the main issue presented by the instant petition.
In keeping with our holding that the validity of the
marriages in the instant case is determined by the Civil
Code, we hold that it is the same Code that determines
and governs the property relations of the marriages in
this case, for the reason that at the time of the
celebration of the marriages in question the Civil Code
was the only law on marriage relations, including
property relations between spouses, whether Muslim or
non-Muslim. Inasmuch as the Family Code makes
substantial amendments to the Civil Code provisions on
property relations, some of its provisions are also
material, particularly to property acquired from and
after August 3, 1988.
Which law would govern depends upon: (1) when the
marriages took place; (2) whether the parties lived
together as husband and wife; and (3) when and how
the subject properties were acquired.
Following are the pertinent provisions of the Civil Code:
Art. 119. The future spouses may in the marriage
settlements agree upon absolute or relative community
of property, or upon complete separation of property, or
upon any other regime. In the absence of marriage
settlements, or when the same are void, the system of
relative community or conjugal partnership of gains as
established in this Code shall govern the property
relations between husband and wife.
Art. 135. All property brought by the wife to the
marriage, as well as all property she acquires during the
marriage, in accordance with article 148, is paraphernal.
Art. 136. The wife retains the ownership of the
paraphernal property.
Art. 142. By means of the conjugal partnership of gains
the husband and wife place in a common fund the fruits
of their separate property and the income from their
work or industry, and divide equally, upon the
dissolution of the marriage or of the partnership, the
net gains or benefits obtained indiscriminately by either
spouse during the marriage.
Art. 143. All property of the conjugal partnership of
gains is owned in common by the husband and wife.
The Civil Code also provides in Article 144:
When a man and a woman live together as husband and
wife, but they are not married, or their marriage is void
from the beginning, the property acquired by either or
both of them through their work or industry or their
wages and salaries shall be governed by the rules on co-
ownership.
In a long line of cases, this Court has interpreted the co-
ownership provided in Article 144 of the Civil Code to
require that the man and woman living together as
husband and wife without the benefit of marriage or
under a void marriage must not in any way be
incapacitated to marry.41 Situating these rulings to the
instant case, therefore, the co-ownership contemplated
in Article 144 of the Civil Code cannot apply to Hadji
Abdulas marriages celebrated subsequent to a valid and
legally existing marriage, since from the point of view of
the Civil Code Hadji Abdula is not capacitated to marry.
However, the wives in such marriages are not precluded
from proving that property acquired during their
cohabitation with Hadji Abdula is
their exclusive property, respectively.42 Absent such
proof, however, the presumption is that property
acquired during the subsistence of a valid marriage ---
and in the Civil Code, there can only be one validly
existing marriage at any given time --- is conjugal
property of such subsisting marriage. 43
With the effectivity of the Family Code on August 3,
1988, the following provisions of the said Code are
pertinent:
Art. 147. When a man and a woman who are
capacitated to marry each other live exclusively with
each other as husband and wife without the benefit of
marriage or under a void marriage, their wages and
salaries shall be owned by them in equal shares and the
property acquired by both of them through their work
or industry shall be governed by the rules on co-
ownership.
In the absence of proof to the contrary, properties
acquired while they lived together shall be presumed to
have been obtained by their joint efforts, work or
industry, and shall be owned by them in equal shares.
For purposes of this Article, a party who did not
participate in the acquisition of the other party of any
property shall be deemed to have contributed jointly in
the acquisition thereof if the formers efforts consisted
in the care and maintenance of the family and of the
household.
Neither party can encumber or dispose by acts inter
vivos of his or her share in the property acquired during
cohabitation and owned in common, without the
consent of the other, until after the termination of the
cohabitation.
When only one of the parties to a void marriage is in
good faith, the share of the party in bad faith in the co-
ownership shall be forfeited in favor of their common
children. In case of default or of waiver by any or all of
the common children or their descendants, each vacant
share shall belong to the respective surviving
descendants. In the absence of descendants, such share
shall belong to the innocent party. In all cases, the
forfeiture shall take place upon termination of the
cohabitation.
Art. 148. In cases of cohabitation not falling under the
preceding Article, only the properties acquired by both
of the parties through their actual joint contribution of
money, property, or industry shall be owned by them in
common in proportion to their respective contributions.
In the absence of proof to the contrary, their
contributions and corresponding shares are presumed
to be equal. The same rule and presumption shall apply
to joint deposits of money and evidences of credit.
If one of the parties is validly married to another, his or
her share in the co-ownership shall accrue to the
absolute community or conjugal partnership existing in
such valid marriage. If the party who acted in bad faith
is not validly married to another, his or her share shall
be forfeited in the manner provided in the last
paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply
even if both parties are in bad faith.
It will be noted that while the Civil Code merely requires
that the parties "live together as husband and wife" the
Family Code in Article 147 specifies that they
"live exclusively with each other as husband and wife."
Also, in contrast to Article 144 of the Civil Code as
interpreted by jurisprudence, Article 148 of the Family
Code allows for co-ownership in cases of cohabitation
where, for instance, one party has a pre-existing valid
marriage, provided that the parties prove their "actual
joint contribution of money, property, or industry" and
only to the extent of their proportionate interest
therein. The rulings in Juaniza vs. Jose, 89 SCRA
306, Camporodendo vs. Garcia, 102 Phil. 1055, and
related cases are embodied in the second paragraph of
Article 148, which declares that the share of the party
validly married to another shall accrue to the property
regime of such existing marriage.
Fifth and Sixth Collateral Issues: Law(s) on Succession
and Dissolution of Property Regimes
Hadji Abdula died intestate on December 16, 1993.
Thus, it is the Muslim Code which should determine the
identification of the heirs in the order of intestate
succession and the respective shares of the heirs.
Meanwhile, the status and capacity to succeed on the
part of the individual parties who entered into each and
every marriage ceremony will depend upon the law in
force at the time of the performance of the marriage
rite.
The status and capacity to succeed of the children will
depend upon the law in force at the time of conception
or birth of the child. If the child was conceived or born
during the period covered by the governance of the Civil
Code, the Civil Code provisions on the determination of
the legitimacy or illegitimacy of the child would appear
to be in point. Thus, the Civil Code provides:
Art. 255. Children born after one hundred and eighty
days following the celebration of the marriage, and
before three hundred days following its dissolution or
the separation of the spouses shall be presumed to be
legitimate.
Against this presumption no evidence shall be admitted
other than that of the physical impossibility of the
husbands having access to his wife within the first one
hundred and twenty days of the three hundred which
preceded the birth of the child.
This physical impossibility may be caused:
 (1) By the impotence of the husband;
(2) By the fact that the husband and wife were
living separately, in such a way that access was
not possible;
(3) By the serious illness of the husband.
Art. 256. The child shall be presumed legitimate,
although the mother may have declared against its
legitimacy or may have been sentenced as an
adulteress.
If the child was conceived or born during the period
covered by the governance of the Muslim Code, i.e.,
from February 4, 1977 up to the death of Hadji Abdula
on December 18, 1993, the Muslim Code determines
the legitimacy or illegitimacy of the child. Under the
Muslim Code:
Art. 58. Legitimacy, how established. --- Legitimacy of
filiation is established by the evidence of valid marriage
between the father and the mother at the time of the
conception of the child.
Art. 59. Legitimate children. ---
(1) Children conceived in lawful wedlock shall be
presumed to be legitimate. Whoever claims
illegitimacy of or impugns such filiation must
prove his allegation.
(2) Children born after six months following the
consummation of marriage or within two years
after the dissolution of the marriage shall be
presumed to be legitimate. Against this
presumption no evidence shall be admitted
other than that of physical impossibility of
access between the parents at or about the
time of the conception of the child.
Art. 60. Children of subsequent marriage. --- Should the
marriage be dissolved and the wife contracts another
marriage after the expiration of her idda, the child born
within six months from the dissolution of the prior
marriage shall be presumed to have been conceived
during the former marriage, and if born thereafter,
during the latter.
Art. 61. Pregnancy after dissolution. --- If, after the
dissolution of marriage, the wife believes that she is
pregnant by her former husband, she shall, within thirty
days from the time she became aware of her pregnancy,
notify the former husband or his heirs of that fact. The
husband or his heirs may ask the court to take measures
to prevent a simulation of birth.
Upon determination of status and capacity to succeed
based on the foregoing provisions, the provisions on
legal succession in the Muslim Code will apply. Under
Article 110 of the said Code, the sharers to an
inheritance include:
(a) The husband, the wife;
(b) The father, the mother, the grandfather, the
grandmother;
(c) The daughter and the sons daughter in the
direct line;
(d) The full sister, the consanguine sister, the
uterine sister and the uterine brother.
When the wife survives with a legitimate child or a child
of the decedents son, she is entitled to one-eighth of
the hereditary estate; in the absence of such
descendants, she shall inherit one-fourth of the
estate.44 The respective shares of the other sharers, as
set out in Article 110 abovecited, are provided for in
Articles 113 to 122 of P.D. 1083.
Seventh Collateral Issue: Muslim Divorces Before the
Effectivity of the Muslim Code
R.A. 394 authorized absolute divorce among Muslims
residing in non-Christian provinces, in accordance with
Muslim custom, for a period of 20 years from June 18,
1949 (the date of approval of R.A. 394) to June 13,
1969.45Thus, a Muslim divorce under R.A. 394 is valid if
it took place from June 18, 1949 to June 13, 1969.
From the seven collateral issues that we discussed, we
identify four corollary issues as to further situate the
points of controversy in the instant case for the
guidance of the lower court. Thus:
1. Which of the several marriages was validly
and legally existing at the time of the opening of
the succession of Hadji Abdula when he died in
1993? The validly and legally existing marriage
would be that marriage which was celebrated at
a time when there was no other subsisting
marriage standing undissolved by a valid divorce
or by death. This is because all of the marriages
were celebrated during the governance of the
Civil Code, under the rules of which only one
marriage can exist at any given time.
Whether or not the marriage was validly
dissolved by a Muslim divorce depends upon
the time frame and the applicable
law.1wphi1 A Muslim divorce under R.A. No.
394 is valid if it took place from June 18, 1949 to
June 13, 1969, and void if it took place from
June 14, 1969. 46
2. There being a dispute between the petitioner
and the oppositors as regards the heirship of
the children begotten from different marriages,
who among the surviving children are
legitimate and who are illegitimate?The
children conceived and born of a validly existing
marriage as determined by the first corollary
issue are legitimate. The fact and time of
conception or birth may be determined
by proof or presumption depending upon the
time frame and the applicable law.
3. What properties constituted the estate of
Hadji Abdula at the time of his death on
December 18, 1993? The estate of Hadji Abdula
consists of the following:
a. Properties acquired during the
existence of a valid marriage as
determined by the first corollary issue
are conjugal properties and should be
liquidated and divided between the
spouses under the Muslim Code, this
being the law in force at the time of
Hadji Abdulas death.
b. Properties acquired under the
conditions prescribed in Article 144 of
the Civil Code during the period August
30, 1950 to August 2, 1988 are conjugal
properties and should be liquidated and
divided between the spouses under the
Muslim Code. However, the wives other
than the lawful wife as determined
under the first corollary issue may
submit their respective evidence to
prove that any of such property is theirs
exclusively.
c. Properties acquired under the
conditions set out in Articles 147 and
148 of the Family Code during the
period from and after August 3, 1988
are governed by the rules on co-
ownership.
d. Properties acquired under conditions
not covered by the preceding
paragraphs and obtained from the
exclusive efforts or assets of Hadji
Abdula are his exclusive properties.
4. Who are the legal heirs of Hadji Abdula, and
what are their shares in intestacy? The following
are Hadji Abdulas legal heirs: (a) the lawful
wife, as determined under the first corollary
issue, and (2) the children, as determined under
the second corollary issue. The Muslim Code,
which was already in force at the time of Hadji
Abdulas death, will govern the determination of
their respective shares.
As we have indicated early on, the evidence in this case
is inadequate to resolve in its entirety the main,
collateral and corollary issues herein presented and a
remand to the lower court is in order. Accordingly,
evidence should be received to supply the following
proofs: (1) the exact dates of the marriages performed
in accordance with Muslim rites or practices; (2) the
exact dates of the dissolutions of the marriages
terminated by death or by divorce in accordance with
Muslim rites and practices, thus indicating which
marriage resulted in a conjugal partnership under the
criteria prescribed by the first, second, and third
collateral issues and the first corollary issue; (3) the
exact periods of actual cohabitation ("common life"
under a "common roof") of each of the marriages during
which time the parties lived together; (4) the
identification of specific properties acquired during each
of the periods of cohabitation referred to in paragraph 3
above, and the manner and source of acquisition,
indicating joint or individual effort, thus showing the
asset as owned separately, conjugally or in co-
ownership; and (5) the identities of the children
(legitimate or illegitimate) begotten from the several
unions, the dates of their respective conceptions or
births in relation to paragraphs 1 and 2 above, thereby
indicating their status as lawful heirs.
Amicus curiae Congressman Mastura agrees that since
the marriage of petitioner to decedent took place in
1972 the Civil Code is the law applicable on the issue of
marriage settlement, 47 but espouses that customs or
established practices among Muslims in Mindanao must
also be applied with the force of law to the instant
case.48 Congressman Masturas disquisition has proven
extremely helpful in impressing upon us the background
in which Islamic law and the Muslim Code need to be
interpreted, particularly the interconnectedness of law
and religion for Muslims49 and the impracticability of a
strict application of the Civil Code to plural marriages
recognized under Muslim law. 50Regrettably, the Court is
duty-bound to resolve the instant case applying such
laws and rights as are in existence at the time the
pertinent civil acts took place. Corollarily, we are unable
to supplant governing law with customs, albeit how
widely observed. In the same manner, we cannot supply
a perceived hiatus in P.D. 1083 concerning the
distribution of property between divorced spouses upon
one of the spouses death.51
WHEREFORE, the decision dated September 26, 1994 of
the Fifth Sharia District Court of Cotabato City in Special
Proceeding No. 94-40 is SET ASIDE, and the instant
petition is REMANDED for the reception of additional
evidence and the resolution of the issues of the case
based on the guidelines set out in this Decision.
SO ORDERED.
G.R. No. 124371 November 23, 2000
PAULA T. LLORENTE, petitioner,
vs.
COURT OF APPEALS and ALICIA F.
LLORENTE, respondents.
DECISION
PARDO, J.:
The Case
The case raises a conflict of laws issue.
What is before us is an appeal from the decision of the
Court of Appeals1 modifying that of the Regional Trial
Court, Camarines Sur, Branch 35, Iriga City 2 declaring
respondent Alicia F. Llorente (herinafter referred to as
"Alicia"), as co-owners of whatever property she and the
deceased Lorenzo N. Llorente (hereinafter referred to as
"Lorenzo") may have acquired during the twenty-five
(25) years that they lived together as husband and wife.
The Facts
The deceased Lorenzo N. Llorente was an enlisted
serviceman of the United States Navy from March 10,
1927 to September 30, 1957.3
On February 22, 1937, Lorenzo and petitioner Paula
Llorente (hereinafter referred to as "Paula") were
married before a parish priest, Roman Catholic Church,
in Nabua, Camarines Sur.4
Before the outbreak of the Pacific War, Lorenzo
departed for the United States and Paula stayed in the
conjugal home in barrio Antipolo, Nabua, Camarines
Sur.5
On November 30, 1943, Lorenzo was admitted to United
States citizenship and Certificate of Naturalization No.
5579816 was issued in his favor by the United States
District Court, Southern District of New York. 6
Upon the liberation of the Philippines by the American
Forces in 1945, Lorenzo was granted an accrued leave by
the U. S. Navy, to visit his wife and he visited the
Philippines.7 He discovered that his wife Paula was
pregnant and was "living in" and having an adulterous
relationship with his brother, Ceferino Llorente. 8
On December 4, 1945, Paula gave birth to a boy
registered in the Office of the Registrar of Nabua as
"Crisologo Llorente," with the certificate stating that the
child was not legitimate and the line for the fathers
name was left blank.9
Lorenzo refused to forgive Paula and live with her. In
fact, on February 2, 1946, the couple drew a written
agreement to the effect that (1) all the family
allowances allotted by the United States Navy as part of
Lorenzos salary and all other obligations for Paulas
daily maintenance and support would be suspended; (2)
they would dissolve their marital union in accordance
with judicial proceedings; (3) they would make a
separate agreement regarding their conjugal property
acquired during their marital life; and (4) Lorenzo would
not prosecute Paula for her adulterous act since she
voluntarily admitted her fault and agreed to separate
from Lorenzo peacefully. The agreement was signed by
both Lorenzo and Paula and was witnessed by Paulas
father and stepmother. The agreement was notarized by
Notary Public Pedro Osabel.10
Lorenzo returned to the United States and on November
16, 1951 filed for divorce with the Superior Court of the
State of California in and for the County of San Diego.
Paula was represented by counsel, John Riley, and
actively participated in the proceedings. On November
27, 1951, the Superior Court of the State of California,
for the County of San Diego found all factual allegations
to be true and issued an interlocutory judgment of
divorce.11
On December 4, 1952, the divorce decree became
final.12
In the meantime, Lorenzo returned to the Philippines.
On January 16, 1958, Lorenzo married Alicia F. Llorente
in Manila.13 Apparently, Alicia had no knowledge of the
first marriage even if they resided in the same town as
Paula, who did not oppose the marriage or
cohabitation.14
From 1958 to 1985, Lorenzo and Alicia lived together as
husband and wife.15 Their twenty-five (25) year union
produced three children, Raul, Luz and Beverly, all
surnamed Llorente.16
On March 13, 1981, Lorenzo executed a Last Will and
Testament. The will was notarized by Notary Public
Salvador M. Occiano, duly signed by Lorenzo with
attesting witnesses Francisco Hugo, Francisco Neibres
and Tito Trajano. In the will, Lorenzo bequeathed all his
property to Alicia and their three children, to wit:
"(1) I give and bequeath to my wife ALICIA R. FORTUNO
exclusively my residential house and lot, located at San
Francisco, Nabua, Camarines Sur, Philippines, including
ALL the personal properties and other movables or
belongings that may be found or existing therein;
"(2) I give and bequeath exclusively to my wife Alicia R.
Fortuno and to my children, Raul F. Llorente, Luz F.
Llorente and Beverly F. Llorente, in equal shares, all my
real properties whatsoever and wheresoever located,
specifically my real properties located at Barangay Aro-
Aldao, Nabua, Camarines Sur; Barangay Paloyon, Nabua,
Camarines Sur; Barangay Baras, Sitio Puga, Nabua,
Camarines Sur; and Barangay Paloyon, Sitio Nalilidong,
Nabua, Camarines Sur;
"(3) I likewise give and bequeath exclusively unto my
wife Alicia R. Fortuno and unto my children, Raul F.
Llorente, Luz F. Llorente and Beverly F. Llorente, in equal
shares, my real properties located in Quezon City
Philippines, and covered by Transfer Certificate of Title
No. 188652; and my lands in Antipolo, Rizal, Philippines,
covered by Transfer Certificate of Title Nos. 124196 and
165188, both of the Registry of Deeds of the province of
Rizal, Philippines;
"(4) That their respective shares in the above-
mentioned properties, whether real or personal
properties, shall not be disposed of, ceded, sold and
conveyed to any other persons, but could only be sold,
ceded, conveyed and disposed of by and among
themselves;
"(5) I designate my wife ALICIA R. FORTUNO to be the
sole executor of this my Last Will and Testament, and in
her default or incapacity of the latter to act, any of my
children in the order of age, if of age;
"(6) I hereby direct that the executor named herein or
her lawful substitute should served (sic) without bond;
"(7) I hereby revoke any and all my other wills, codicils,
or testamentary dispositions heretofore executed,
signed, or published, by me;
"(8) It is my final wish and desire that if I die, no
relatives of mine in any degree in the Llorentes Side
should ever bother and disturb in any manner
whatsoever my wife Alicia R. Fortunato and my children
with respect to any real or personal properties I gave
and bequeathed respectively to each one of them by
virtue of this Last Will and Testament."17
On December 14, 1983, Lorenzo filed with the Regional
Trial Court, Iriga, Camarines Sur, a petition for the
probate and allowance of his last will and testament
wherein Lorenzo moved that Alicia be appointed Special
Administratrix of his estate.18
On January 18, 1984, the trial court denied the motion
for the reason that the testator Lorenzo was still alive. 19
On January 24, 1984, finding that the will was duly
executed, the trial court admitted the will to probate. 20
On June 11, 1985, before the proceedings could be
terminated, Lorenzo died.21
On September 4, 1985, Paula filed with the same court a
petition22 for letters of administration over Lorenzos
estate in her favor. Paula contended (1) that she was
Lorenzos surviving spouse, (2) that the various property
were acquired during their marriage, (3) that Lorenzos
will disposed of all his property in favor of Alicia and her
children, encroaching on her legitime and 1/2 share in
the conjugal property.23
On December 13, 1985, Alicia filed in the testate
proceeding (Sp. Proc. No. IR-755), a petition for the
issuance of letters testamentary.24
On October 14, 1985, without terminating the testate
proceedings, the trial court gave due course to Paulas
petition in Sp. Proc. No. IR-888.25
On November 6, 13 and 20, 1985, the order was
published in the newspaper "Bicol Star". 26
On May 18, 1987, the Regional Trial Court issued a joint
decision, thus:
"Wherefore, considering that this court has so found
that the divorce decree granted to the late Lorenzo
Llorente is void and inapplicable in the Philippines,
therefore the marriage he contracted with Alicia
Fortunato on January 16, 1958 at Manila is likewise
void. This being so the petition of Alicia F. Llorente for
the issuance of letters testamentary is denied. Likewise,
she is not entitled to receive any share from the estate
even if the will especially said so her relationship with
Lorenzo having gained the status of paramour which is
under Art. 739 (1).
"On the other hand, the court finds the petition of Paula
Titular Llorente, meritorious, and so declares the
intrinsic disposition of the will of Lorenzo Llorente dated
March 13, 1981 as void and declares her entitled as
conjugal partner and entitled to one-half of their
conjugal properties, and as primary compulsory heir,
Paula T. Llorente is also entitled to one-third of the
estate and then one-third should go to the illegitimate
children, Raul, Luz and Beverly, all surname (sic)
Llorente, for them to partition in equal shares and also
entitled to the remaining free portion in equal shares.
"Petitioner, Paula Llorente is appointed legal
administrator of the estate of the deceased, Lorenzo
Llorente. As such let the corresponding letters of
administration issue in her favor upon her filing a bond
in the amount (sic) of P100,000.00 conditioned for her
to make a return to the court within three (3) months a
true and complete inventory of all goods, chattels,
rights, and credits, and estate which shall at any time
come to her possession or to the possession of any
other person for her, and from the proceeds to pay and
discharge all debts, legacies and charges on the same, or
such dividends thereon as shall be decreed or required
by this court; to render a true and just account of her
administration to the court within one (1) year, and at
any other time when required by the court and to
perform all orders of this court by her to be performed.
"On the other matters prayed for in respective petitions
for want of evidence could not be granted.
"SO ORDERED."27
In time, Alicia filed with the trial court a motion for
reconsideration of the aforequoted decision.28
On September 14, 1987, the trial court denied Alicias
motion for reconsideration but modified its earlier
decision, stating that Raul and Luz Llorente are not
children "legitimate or otherwise" of Lorenzo since they
were not legally adopted by him.29 Amending its decision
of May 18, 1987, the trial court declared Beverly
Llorente as the only illegitimate child of Lorenzo,
entitling her to one-third (1/3) of the estate and one-
third (1/3) of the free portion of the estate. 30
On September 28, 1987, respondent appealed to the
Court of Appeals.31
On July 31, 1995, the Court of Appeals promulgated its
decision, affirming with modification the decision of the
trial court in this wise:
"WHEREFORE, the decision appealed from is hereby
AFFIRMED with the MODIFICATION that Alicia is
declared as co-owner of whatever properties she and
the deceased may have acquired during the twenty-five
(25) years of cohabitation.
"SO ORDERED."32
On August 25, 1995, petitioner filed with the Court of
Appeals a motion for reconsideration of the decision. 33
On March 21, 1996, the Court of Appeals, 34 denied the
motion for lack of merit.
Hence, this petition.35
The Issue
Stripping the petition of its legalese and sorting through
the various arguments raised,36 the issue is simple. Who
are entitled to inherit from the late Lorenzo N. Llorente?
We do not agree with the decision of the Court of
Appeals. We remand the case to the trial court for ruling
on the intrinsic validity of the will of the deceased.
The Applicable Law
The fact that the late Lorenzo N. Llorente became an
American citizen long before and at the time of: (1) his
divorce from Paula; (2) marriage to Alicia; (3) execution
of his will; and (4) death, is duly established, admitted
and undisputed.
Thus, as a rule, issues arising from these incidents are
necessarily governed by foreign law.
The Civil Code clearly provides:
"Art. 15. Laws relating to family rights and duties, or to
the status, condition and legal capacity of persons
are binding upon citizens of the Philippines, even
though living abroad.
"Art. 16. Real property as well as personal property is
subject to the law of the country where it is situated.
"However, intestate and testamentary succession, both
with respect to the order of succession and to the
amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is
under consideration, whatever may be the nature of the
property and regardless of the country wherein said
property may be found." (emphasis ours)
True, foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to take
judicial notice of them. Like any other fact, they must be
alleged and proved.37
While the substance of the foreign law was pleaded, the
Court of Appeals did not admit the foreign law. The
Court of Appeals and the trial court called to the fore
the renvoi doctrine, where the case was "referred back"
to the law of the decedents domicile, in this case,
Philippine law.
We note that while the trial court stated that the law of
New York was not sufficiently proven, in the same
breath it made the categorical, albeit equally unproven
statement that "American law follows the domiciliary
theory hence, Philippine law applies when determining
the validity of Lorenzos will.38
First, there is no such thing as one American law.1wph!
1 The "national law" indicated in Article 16 of the Civil
Code cannot possibly apply to general American law.
There is no such law governing the validity of
testamentary provisions in the United States. Each State
of the union has its own law applicable to its citizens
and in force only within the State. It can therefore refer
to no other than the law of the State of which the
decedent was a resident.39 Second, there is no showing
that the application of the renvoi doctrine is called for or
required by New York State law.
The trial court held that the will was intrinsically invalid
since it contained dispositions in favor of Alice, who in
the trial courts opinion was a mere paramour. The trial
court threw the will out, leaving Alice, and her two
children, Raul and Luz, with nothing.
The Court of Appeals also disregarded the will. It
declared Alice entitled to one half (1/2) of whatever
property she and Lorenzo acquired during their
cohabitation, applying Article 144 of the Civil Code of
the Philippines.
The hasty application of Philippine law and the
complete disregard of the will, already probated as duly
executed in accordance with the formalities of
Philippine law, is fatal, especially in light of the factual
and legal circumstances here obtaining.
Validity of the Foreign Divorce
In Van Dorn v. Romillo, Jr.40 we held that owing to the
nationality principle embodied in Article 15 of the Civil
Code, only Philippine nationals are covered by the policy
against absolute divorces, the same being considered
contrary to our concept of public policy and morality. In
the same case, the Court ruled that aliens may obtain
divorces abroad, provided they are valid according to
their national law.
Citing this landmark case, the Court held in Quita v.
Court of Appeals,41 that once proven that respondent
was no longer a Filipino citizen when he obtained the
divorce from petitioner, the ruling in Van Dorn would
become applicable and petitioner could "very well lose
her right to inherit" from him.
In Pilapil v. Ibay-Somera,42 we recognized the divorce
obtained by the respondent in his country, the Federal
Republic of Germany. There, we stated that divorce and
its legal effects may be recognized in the Philippines
insofar as respondent is concerned in view of the
nationality principle in our civil law on the status of
persons.
For failing to apply these doctrines, the decision of the
Court of Appeals must be reversed.43 We hold that the
divorce obtained by Lorenzo H. Llorente from his first
wife Paula was valid and recognized in this jurisdiction
as a matter of comity. Now, the effects of this divorce (as
to the succession to the estate of the decedent) are
matters best left to the determination of the trial court.
Validity of the Will
The Civil Code provides:
"Art. 17. The forms and solemnities of contracts, wills,
and other public instruments shall be governed by the
laws of the country in which they are executed.
"When the acts referred to are executed before the
diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in their
execution." (underscoring ours)
The clear intent of Lorenzo to bequeath his property to
his second wife and children by her is glaringly shown in
the will he executed. We do not wish to frustrate his
wishes, since he was a foreigner, not covered by our
laws on "family rights and duties, status, condition and
legal capacity."44
Whether the will is intrinsically valid and who shall
inherit from Lorenzo are issues best proved by foreign
law which must be pleaded and proved. Whether the
will was executed in accordance with the formalities
required is answered by referring to Philippine law. In
fact, the will was duly probated.
As a guide however, the trial court should note that
whatever public policy or good customs may be involved
in our system of legitimes, Congress did not intend to
extend the same to the succession of foreign nationals.
Congress specifically left the amount of successional
rights to the decedent's national law. 45
Having thus ruled, we find it unnecessary to pass upon
the other issues raised.
The Fallo
WHEREFORE, the petition is GRANTED. The decision of
the Court of Appeals in CA-G. R. SP No. 17446
promulgated on July 31, 1995 is SET ASIDE.
In lieu thereof, the Court REVERSES the decision of the
Regional Trial Court and RECOGNIZES as VALID the
decree of divorce granted in favor of the deceased
Lorenzo N. Llorente by the Superior Court of the State of
California in and for the County of San Diego, made final
on December 4, 1952.
Further, the Court REMANDS the cases to the court of
origin for determination of the intrinsic validity of
Lorenzo N. Llorentes will and determination of the
parties successional rights allowing proof of foreign law
with instructions that the trial court shall proceed with
all deliberate dispatch to settle the estate of the
deceased within the framework of the Rules of Court.
No costs.
SO ORDERED.
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.
Pablo, Bengzon, Reyes, A. and Concepcion, JJ., concur.
G.R. No. 139868 June 8, 2006
ALONZO Q. ANCHETA, Petitioner,
vs.
CANDELARIA GUERSEY-DALAYGON, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Spouses Audrey ONeill (Audrey) and W. Richard
Guersey (Richard) were American citizens who have
resided in the Philippines for 30 years. They have an
adopted daughter, Kyle Guersey Hill (Kyle). On July 29,
1979, Audrey died, leaving a will. In it, she bequeathed
her entire estate to Richard, who was also designated as
executor.1 The will was admitted to probate before the
Orphans Court of Baltimore, Maryland, U.S.A, which
named James N. Phillips as executor due to Richards
renunciation of his appointment.2 The court also named
Atty. Alonzo Q. Ancheta (petitioner) of the Quasha
Asperilla Ancheta Pena & Nolasco Law Offices as
ancillary administrator.3
In 1981, Richard married Candelaria Guersey-Dalaygon
(respondent) with whom he has two children, namely,
Kimberly and Kevin.
On October 12, 1982, Audreys will was also admitted to
probate by the then Court of First Instance of Rizal,
Branch 25, Seventh Judicial District, Pasig, in Special
Proceeding No. 9625.4 As administrator of Audreys
estate in the Philippines, petitioner filed an inventory
and appraisal of the following properties: (1) Audreys
conjugal share in real estate with improvements located
at 28 Pili Avenue, Forbes Park, Makati, Metro Manila,
valued at P764,865.00 (Makati property); (2) a current
account in Audreys name with a cash balance
of P12,417.97; and (3) 64,444 shares of stock in A/G
Interiors, Inc. worth P64,444.00.5
On July 20, 1984, Richard died, leaving a will, wherein
he bequeathed his entire estate to respondent, save for
his rights and interests over the A/G Interiors, Inc.
shares, which he left to Kyle.6 The will was also admitted
to probate by the Orphans Court of Ann Arundel,
Maryland, U.S.A, and James N. Phillips was likewise
appointed as executor, who in turn, designated Atty.
William Quasha or any member of the Quasha Asperilla
Ancheta Pena & Nolasco Law Offices, as ancillary
administrator.
Richards will was then submitted for probate before the
Regional Trial Court of Makati, Branch 138, docketed as
Special Proceeding No. M-888.7 Atty. Quasha was
appointed as ancillary administrator on July 24, 1986. 8
On October 19, 1987, petitioner filed in Special
Proceeding No. 9625, a motion to declare Richard and
Kyle as heirs of Audrey.9 Petitioner also filed on October
23, 1987, a project of partition of Audreys estate, with
Richard being apportioned the undivided interest in
the Makati property, 48.333 shares in A/G Interiors, Inc.,
and P9,313.48 from the Citibank current account; and
Kyle, the undivided interest in the Makati property,
16,111 shares in A/G Interiors, Inc., and P3,104.49 in
cash.10
The motion and project of partition was granted and
approved by the trial court in its Order dated February
12, 1988.11 The trial court also issued an Order on April
7, 1988, directing the Register of Deeds of Makati to
cancel TCT No. 69792 in the name of Richard and to
issue a new title in the joint names of the Estate of W.
Richard Guersey ( undivided interest) and Kyle (
undivided interest); directing the Secretary of A/G
Interiors, Inc. to transfer 48.333 shares to the Estate of
W. Richard Guersey and 16.111 shares to Kyle; and
directing the Citibank to release the amount
of P12,417.97 to the ancillary administrator for
distribution to the heirs.12
Consequently, the Register of Deeds of Makati issued on
June 23, 1988, TCT No. 155823 in the names of the
Estate of W. Richard Guersey and Kyle.13
Meanwhile, the ancillary administrator in Special
Proceeding No. M-888 also filed a project of partition
wherein 2/5 of Richards undivided interest in the
Makati property was allocated to respondent,
while 3/5 thereof were allocated to Richards three
children. This was opposed by respondent on the
ground that under the law of the State of Maryland, "a
legacy passes to the legatee the entire interest of the
testator in the property subject of the legacy."14 Since
Richard left his entire estate to respondent, except for
his rights and interests over the A/G Interiors, Inc,
shares, then his entire undivided interest in the
Makati property should be given to respondent.
The trial court found merit in respondents opposition,
and in its Order dated December 6, 1991, disapproved
the project of partition insofar as it affects the Makati
property. The trial court also adjudicated Richards
entire undivided interest in the Makati property to
respondent.15
On October 20, 1993, respondent filed with the Court of
Appeals (CA) an amended complaint for the annulment
of the trial courts Orders dated February 12, 1988 and
April 7, 1988, issued in Special Proceeding No.
9625.16Respondent contended that petitioner willfully
breached his fiduciary duty when he disregarded the
laws of the State of Maryland on the distribution of
Audreys estate in accordance with her will. Respondent
argued that since Audrey devised her entire estate to
Richard, then the Makati property should be wholly
adjudicated to him, and not merely thereof, and since
Richard left his entire estate, except for his rights and
interests over the A/G Interiors, Inc., to respondent,
then the entire Makati property should now pertain to
respondent.
Petitioner filed his Answer denying respondents
allegations. Petitioner contended that he acted in good
faith in submitting the project of partition before the
trial court in Special Proceeding No. 9625, as he had no
knowledge of the State of Marylands laws on testate
and intestate succession. Petitioner alleged that he
believed that it is to the "best interests of the surviving
children that Philippine law be applied as they would
receive their just shares." Petitioner also alleged that
the orders sought to be annulled are already final and
executory, and cannot be set aside.
On March 18, 1999, the CA rendered the assailed
Decision annulling the trial courts Orders dated
February 12, 1988 and April 7, 1988, in Special
Proceeding No. 9625.17 The dispositive portion of the
assailed Decision provides:
WHEREFORE, the assailed Orders of February 12, 1998
and April 7, 1988 are hereby ANNULLED and, in lieu
thereof, a new one is entered ordering:
(a) The adjudication of the entire estate of
Audrey ONeill Guersey in favor of the estate of
W. Richard Guersey; and
(b) The cancellation of Transfer Certificate of
Title No. 15583 of the Makati City Registry and
the issuance of a new title in the name of the
estate of W. Richard Guersey.
SO ORDERED.18
Petitioner filed a motion for reconsideration, but this
was denied by the CA per Resolution dated August 27,
1999.19
Hence, the herein petition for review on certiorari under
Rule 45 of the Rules of Court alleging that the CA gravely
erred in not holding that:
A) THE ORDERS OF 12 FEBRUARY 1988 AND 07
APRIL 1988 IN SPECIAL PROCEEDINGS NO. 9625
"IN THE MATTER OF THE PETITION FOR
PROBATE OF THE WILL OF THE DECEASED
AUDREY GUERSEY, ALONZO Q. ANCHETA,
 ANCILLARY ADMINISTRATOR", ARE VALID AND
BINDING AND HAVE LONG BECOME FINAL AND
HAVE BEEN FULLY IMPLEMENTED AND
EXECUTED AND CAN NO LONGER BE ANNULLED.
B) THE ANCILLARY ADMINISTRATOR HAVING
ACTED IN GOOD FAITH, DID NOT COMMIT
FRAUD, EITHER EXTRINSIC OR INTRINSIC, IN THE
PERFORMANCE OF HIS DUTIES AS ANCILLARY
ADMINISTRATOR OF AUDREY ONEIL GUERSEYS
ESTATE IN THE PHILIPPINES, AND THAT NO
FRAUD, EITHER EXTRINSIC OR INTRINSIC, WAS
EMPLOYED BY [HIM] IN PROCURING SAID
ORDERS.20
Petitioner reiterates his arguments before the CA that
the Orders dated February 12, 1988 and April 7, 1988
can no longer be annulled because it is a final judgment,
which is "conclusive upon the administration as to all
matters involved in such judgment or order, and will
determine for all time and in all courts, as far as the
parties to the proceedings are concerned, all matters
therein determined," and the same has already been
executed.21
Petitioner also contends that that he acted in good faith
in performing his duties as an ancillary administrator. He
maintains that at the time of the filing of the project of
partition, he was not aware of the relevant laws of the
State of Maryland, such that the partition was made in
accordance with Philippine laws. Petitioner also imputes
knowledge on the part of respondent with regard to the
terms of Aubreys will, stating that as early as 1984, he
already apprised respondent of the contents of the will
and how the estate will be divided.22
Respondent argues that petitioners breach of his
fiduciary duty as ancillary administrator of Aubreys
estate amounted to extrinsic fraud. According to
respondent, petitioner was duty-bound to follow the
express terms of Aubreys will, and his denial of
knowledge of the laws of Maryland cannot stand
because petitioner is a senior partner in a prestigious
law firm and it was his duty to know the relevant laws.
Respondent also states that she was not able to file any
opposition to the project of partition because she was
not a party thereto and she learned of the provision of
Aubreys will bequeathing entirely her estate to Richard
only after Atty. Ancheta filed a project of partition in
Special Proceeding No. M-888 for the settlement of
Richards estate.
A decree of distribution of the estate of a deceased
person vests the title to the land of the estate in the
distributees, which, if erroneous may be corrected by a
timely appeal. Once it becomes final, its binding effect is
like any other judgment in rem.23 However, in
exceptional cases, a final decree of distribution of the
estate may be set aside for lack of jurisdiction or
fraud.24 Further, in Ramon v. Ortuzar,25 the Court ruled
that a party interested in a probate proceeding may
have a final liquidation set aside when he is left out by
reason of circumstances beyond his control or through
mistake or inadvertence not imputable to negligence. 26
The petition for annulment was filed before the CA on
October 20, 1993, before the issuance of the 1997 Rules
of Civil Procedure; hence, the applicable law is Batas
Pambansa Blg. 129 (B.P. 129) or the Judiciary
Reorganization Act of 1980. An annulment of judgment
filed under B.P. 129 may be based on the ground that a
judgment is void for want of jurisdiction or that the
judgment was obtained by extrinsic fraud. 27 For fraud to
become a basis for annulment of judgment, it has to be
extrinsic or actual,28 and must be brought within four
years from the discovery of the fraud. 29
In the present case, respondent alleged extrinsic fraud
as basis for the annulment of the RTC Orders dated
February 12, 1988 and April 7, 1988. The CA found merit
in respondents cause and found that petitioners failure
to follow the terms of Audreys will, despite the latters
declaration of good faith, amounted to extrinsic fraud.
The CA ruled that under Article 16 of the Civil Code, it is
the national law of the decedent that is applicable,
hence, petitioner should have distributed Aubreys
estate in accordance with the terms of her will. The CA
also found that petitioner was prompted to distribute
Audreys estate in accordance with Philippine laws in
order to equally benefit Audrey and Richard Guerseys
adopted daughter, Kyle Guersey Hill.
Petitioner contends that respondents cause of action
had already prescribed because as early as 1984,
respondent was already well aware of the terms of
Audreys will,30 and the complaint was filed only in 1993.
Respondent, on the other hand, justified her lack of
immediate action by saying that she had no opportunity
to question petitioners acts since she was not a party to
Special Proceeding No. 9625, and it was only after Atty.
Ancheta filed the project of partition in Special
Proceeding No. M-888, reducing her inheritance in the
estate of Richard that she was prompted to seek
another counsel to protect her interest.31
It should be pointed out that the prescriptive period for
annulment of judgment based on extrinsic fraud
commences to run from the discovery of the fraud or
fraudulent act/s. Respondents knowledge of the terms
of Audreys will is immaterial in this case since it is not
the fraud complained of. Rather, it is petitioners failure
to introduce in evidence the pertinent law of the State
of Maryland that is the fraudulent act, or in this case,
omission, alleged to have been committed against
respondent, and therefore, the four-year period should
be counted from the time of respondents discovery
thereof.
Records bear the fact that the filing of the project of
partition of Richards estate, the opposition thereto, and
the order of the trial court disallowing the project of
partition in Special Proceeding No. M-888 were all done
in 1991.32Respondent cannot be faulted for letting the
assailed orders to lapse into finality since it was only
through Special Proceeding No. M-888 that she came to
comprehend the ramifications of petitioners acts.
Obviously, respondent had no other recourse under the
circumstances but to file the annulment case. Since the
action for annulment was filed in 1993, clearly, the same
has not yet prescribed.
Fraud takes on different shapes and faces. In Cosmic
Lumber Corporation v. Court of Appeals, 33 the Court
stated that "man in his ingenuity and fertile imagination
will always contrive new schemes to fool the unwary."
There is extrinsic fraud within the meaning of Sec. 9 par.
(2), of B.P. Blg. 129, where it is one the effect of which
prevents a party from hearing a trial, or real contest, or
from presenting all of his case to the court, or where it
operates upon matters, not pertaining to the judgment
itself, but to the manner in which it was procured so
that there is not a fair submission of the controversy. In
other words, extrinsic fraud refers to any fraudulent act
of the prevailing party in the litigation which is
committed outside of the trial of the case, whereby the
defeated party has been prevented from exhibiting fully
his side of the case by fraud or deception practiced on
him by his opponent. Fraud is extrinsic where the
unsuccessful party has been prevented from exhibiting
fully his case, by fraud or deception practiced on him by
his opponent, as by keeping him away from court, a
false promise of a compromise; or where the defendant
never had any knowledge of the suit, being kept in
ignorance by the acts of the plaintiff; or where an
attorney fraudulently or without authority connives at
his defeat; these and similar cases which show that
there has never been a real contest in the trial or
hearing of the case are reasons for which a new suit
may be sustained to set aside and annul the former
judgment and open the case for a new and fair
hearing.34
The overriding consideration when extrinsic fraud is
alleged is that the fraudulent scheme of the prevailing
litigant prevented a party from having his day in court. 35
Petitioner is the ancillary administrator of Audreys
estate. As such, he occupies a position of the highest
trust and confidence, and he is required to exercise
reasonable diligence and act in entire good faith in the
performance of that trust. Although he is not a
guarantor or insurer of the safety of the estate nor is he
expected to be infallible, yet the same degree of
prudence, care and judgment which a person of a fair
average capacity and ability exercises in similar
transactions of his own, serves as the standard by which
his conduct is to be judged.36
Petitioners failure to proficiently manage the
distribution of Audreys estate according to the terms of
her will and as dictated by the applicable law amounted
to extrinsic fraud. Hence the CA Decision annulling the
RTC Orders dated February 12, 1988 and April 7, 1988,
must be upheld.
It is undisputed that Audrey Guersey was an American
citizen domiciled in Maryland, U.S.A. During the
reprobate of her will in Special Proceeding No. 9625, it
was shown, among others, that at the time of Audreys
death, she was residing in the Philippines but is
domiciled in Maryland, U.S.A.; her Last Will and
Testament dated August 18, 1972 was executed and
probated before the Orphans Court in Baltimore,
Maryland, U.S.A., which was duly authenticated and
certified by the Register of Wills of Baltimore City and
attested by the Chief Judge of said court; the will was
admitted by the Orphans Court of Baltimore City on
September 7, 1979; and the will was authenticated by
the Secretary of State of Maryland and the Vice Consul
of the Philippine Embassy.
Being a foreign national, the intrinsic validity of Audreys
will, especially with regard as to who are her heirs, is
governed by her national law, i.e., the law of the State of
Maryland, as provided in Article 16 of the Civil Code, to
wit:
Art. 16. Real property as well as personal property is
subject to the law of the country where it is situated.
However, intestate and testamentary succession, both
with respect to the order of succession and to the
amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is
under consideration, whatever may be the nature of
the property and regardless of the country wherein
said property may be found. (Emphasis supplied)
Article 1039 of the Civil Code further provides that
"capacity to succeed is governed by the law of the
nation of the decedent."
As a corollary rule, Section 4, Rule 77 of the Rules of
Court on Allowance of Will Proved Outside the
Philippines and Administration of Estate Thereunder,
states:
SEC. 4. Estate, how administered.When a will is thus
allowed, the court shall grant letters testamentary, or
letters of administration with the will annexed, and such
letters testamentary or of administration, shall extend to
all the estate of the testator in the Philippines. Such
estate, after the payment of just debts and expenses of
administration, shall be disposed of according to such
will, so far as such will may operate upon it; and the
residue, if any, shall be disposed of as is provided by law
in cases of estates in the Philippines belonging to
persons who are inhabitants of another state or country.
(Emphasis supplied)
While foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to take
judicial notice of them;37 however, petitioner, as
ancillary administrator of Audreys estate, was duty-
bound to introduce in evidence the pertinent law of the
State of Maryland.38
Petitioner admitted that he failed to introduce in
evidence the law of the State of Maryland on Estates
and Trusts, and merely relied on the presumption that
such law is the same as the Philippine law on wills and
succession. Thus, the trial court peremptorily applied
Philippine laws and totally disregarded the terms of
Audreys will. The obvious result was that there was no
fair submission of the case before the trial court or a
judicious appreciation of the evidence presented.
Petitioner insists that his application of Philippine laws
was made in good faith. The Court cannot accept
petitioners protestation. How can petitioner honestly
presume that Philippine laws apply when as early as the
reprobate of Audreys will before the trial court in 1982,
it was already brought to fore that Audrey was a U.S.
citizen, domiciled in the State of Maryland. As asserted
by respondent, petitioner is a senior partner in a
prestigious law firm, with a "big legal staff and a large
library."39 He had all the legal resources to determine
the applicable law. It was incumbent upon him to
exercise his functions as ancillary administrator with
reasonable diligence, and to discharge the trust reposed
on him faithfully. Unfortunately, petitioner failed to
perform his fiduciary duties.
Moreover, whether his omission was intentional or not,
the fact remains that the trial court failed to consider
said law when it issued the assailed RTC Orders dated
February 12, 1988 and April 7, 1988, declaring Richard
and Kyle as Audreys heirs, and distributing Audreys
estate according to the project of partition submitted by
petitioner. This eventually prejudiced respondent and
deprived her of her full successional right to the Makati
property.
In GSIS v. Bengson Commercial Bldgs., Inc.,40 the Court
held that when the rule that the negligence or mistake
of counsel binds the client deserts its proper office as an
aid to justice and becomes a great hindrance and chief
enemy, its rigors must be relaxed to admit exceptions
thereto and to prevent a miscarriage of justice, and the
court has the power to except a particular case from the
operation of the rule whenever the purposes of justice
require it.
The CA aptly noted that petitioner was remiss in his
responsibilities as ancillary administrator of Audreys
estate. The CA likewise observed that the distribution
made by petitioner was prompted by his concern over
Kyle, whom petitioner believed should equally benefit
from the Makati property. The CA correctly stated,
which the Court adopts, thus:
In claiming good faith in the performance of his duties
and responsibilities, defendant Alonzo H. Ancheta
invokes the principle which presumes the law of the
forum to be the same as the foreign law (Beam vs.
Yatco, 82 Phil. 30, 38) in the absence of evidence
adduced to prove the latter law (Slade Perkins vs.
Perkins, 57 Phil. 205, 210). In defending his actions in
the light of the foregoing principle, however, it appears
that the defendant lost sight of the fact that his primary
responsibility as ancillary administrator was to distribute
the subject estate in accordance with the will of Audrey
ONeill Guersey. Considering the principle established
under Article 16 of the Civil Code of the Philippines, as
well as the citizenship and the avowed domicile of the
decedent, it goes without saying that the defendant was
also duty-bound to prove the pertinent laws of
Maryland on the matter.
The record reveals, however, that no clear effort was
made to prove the national law of Audrey ONeill
Guersey during the proceedings before the court a quo.
While there is claim of good faith in distributing the
subject estate in accordance with the Philippine laws,
the defendant appears to put his actuations in a
different light as indicated in a portion of his direct
examination, to wit:
xxx
It would seem, therefore, that the eventual distribution
of the estate of Audrey ONeill Guersey was prompted
by defendant Alonzo H. Anchetas concern that the
subject realty equally benefit the plaintiffs adopted
daughter Kyle Guersey.
Well-intentioned though it may be, defendant Alonzo H.
Anchetas action appears to have breached his duties
and responsibilities as ancillary administrator of the
subject estate. While such breach of duty admittedly
cannot be considered extrinsic fraud under ordinary
circumstances, the fiduciary nature of the said
defendants position, as well as the resultant
frustration of the decedents last will, combine to
create a circumstance that is tantamount to extrinsic
fraud. Defendant Alonzo H. Anchetas omission to prove
the national laws of the decedent and to follow the
latters last will, in sum, resulted in the procurement of
the subject orders without a fair submission of the real
issues involved in the case.41 (Emphasis supplied)
This is not a simple case of error of judgment or grave
abuse of discretion, but a total disregard of the law as a
result of petitioners abject failure to discharge his
fiduciary duties. It does not rest upon petitioners
pleasure as to which law should be made applicable
under the circumstances. His onus is clear. Respondent
was thus excluded from enjoying full rights to the
Makati property through no fault or negligence of her
own, as petitioners omission was beyond her control.
She was in no position to analyze the legal implications
of petitioners omission and it was belatedly that she
realized the adverse consequence of the same. The end
result was a miscarriage of justice. In cases like this, the
courts have the legal and moral duty to provide judicial
aid to parties who are deprived of their rights. 42
The trial court in its Order dated December 6, 1991 in
Special Proceeding No. M-888 noted the law of the
State of Maryland on Estates and Trusts, as follows:
Under Section 1-301, Title 3, Sub-Title 3 of the
Annotated Code of the Public General Laws of Maryland
on Estates and Trusts, "all property of a decedent shall
be subject to the estate of decedents law, and upon his
death shall pass directly to the personal representative,
who shall hold the legal title for administration and
distribution," while Section 4-408 expressly provides
that "unless a contrary intent is expressly indicated in
the will, a legacy passes to the legatee the entire
interest of the testator in the property which is the
subject of the legacy". Section 7-101, Title 7, Sub-Title 1,
on the other hand, declares that "a personal
representative is a fiduciary" and as such he is "under
the general duty to settle and distribute the estate of
the decedent in accordance with the terms of the will
and the estate of decedents law as expeditiously and
with as little sacrifice of value as is reasonable under the
circumstances".43
In her will, Audrey devised to Richard her entire estate,
consisting of the following: (1) Audreys conjugal share
in the Makati property; (2) the cash amount
of P12,417.97; and (3) 64,444 shares of stock in A/G
Interiors, Inc. worth P64,444.00. All these properties
passed on to Richard upon Audreys death. Meanwhile,
Richard, in his will, bequeathed his entire estate to
respondent, except for his rights and interests over the
A/G Interiors, Inc. shares, which he left to Kyle. When
Richard subsequently died, the entire Makati property
should have then passed on to respondent. This, of
course, assumes the proposition that the law of the
State of Maryland which allows "a legacy to pass to the
legatee the entire estate of the testator in the property
which is the subject of the legacy," was sufficiently
proven in Special Proceeding No. 9625. Nevertheless,
the Court may take judicial notice thereof in view of the
ruling in Bohanan v. Bohanan.44 Therein, the Court took
judicial notice of the law of Nevada despite failure to
prove the same. The Court held, viz.:
We have, however, consulted the records of the case in
the court below and we have found that during the
hearing on October 4, 1954 of the motion of Magdalena
C. Bohanan for withdrawal of P20,000 as her share, the
foreign law, especially Section 9905, Compiled Nevada
Laws, was introduced in evidence by appellants' (herein)
counsel as Exhibit "2" (See pp. 77-79, Vol. II, and t.s.n.
pp. 24-44, Records, Court of First Instance). Again said
law was presented by the counsel for the executor and
admitted by the Court as Exhibit "B" during the hearing
of the case on January 23, 1950 before Judge Rafael
Amparo (see Records, Court of First Instance, Vol. 1).
In addition, the other appellants, children of the
testator, do not dispute the above-quoted provision of
the laws of the State of Nevada. Under all the above
circumstances, we are constrained to hold that the
pertinent law of Nevada, especially Section 9905 of the
Compiled Nevada Laws of 1925, can be taken judicial
notice of by us, without proof of such law having been
offered at the hearing of the project of partition.
In this case, given that the pertinent law of the State of
Maryland has been brought to record before the CA,
and the trial court in Special Proceeding No. M-888
appropriately took note of the same in disapproving the
proposed project of partition of Richards estate, not to
mention that petitioner or any other interested person
for that matter, does not dispute the existence or
validity of said law, then Audreys and Richards estate
should be distributed according to their respective wills,
and not according to the project of partition submitted
by petitioner. Consequently, the entire Makati property
belongs to respondent.
Decades ago, Justice Moreland, in his dissenting opinion
in Santos v. Manarang,45 wrote:
A will is the testator speaking after death. Its provisions
have substantially the same force and effect in the
probate court as if the testator stood before the court in
full life making the declarations by word of mouth as
they appear in the will. That was the special purpose of
the law in the creation of the instrument known as the
last will and testament. Men wished to speak after they
were dead and the law, by the creation of that
instrument, permitted them to do so x x x All doubts
must be resolved in favor of the testator's having meant
just what he said.
Honorable as it seems, petitioners motive in equitably
distributing Audreys estate cannot prevail over Audreys
and Richards wishes. As stated in Bellis v. Bellis: 46
x x x 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.47
Before concluding, the Court notes the fact that Audrey
and Richard Guersey were American citizens who
owned real property in the Philippines, although records
do not show when and how the Guerseys acquired the
Makati property.
Under Article XIII, Sections 1 and 4 of the 1935
Constitution, the privilege to acquire and exploit lands
of the public domain, and other natural resources of the
Philippines, and to operate public utilities, were
reserved to Filipinos and entities owned or controlled by
them. In Republic v. Quasha,48 the Court clarified that
the Parity Rights Amendment of 1946, which re-opened
to American citizens and business enterprises the right
in the acquisition of lands of the public domain, the
disposition, exploitation, development and utilization of
natural resources of the Philippines, does not include
the acquisition or exploitation of private agricultural
lands. The prohibition against acquisition of private
lands by aliens was carried on to the 1973 Constitution
under Article XIV, Section 14, with the exception of
private lands acquired by hereditary succession and
when the transfer was made to a former natural-born
citizen, as provided in Section 15, Article XIV. As it now
stands, Article XII, Sections 7 and 8 of the 1986
Constitution explicitly prohibits non-Filipinos from
acquiring or holding title to private lands or to lands of
the public domain, except only by way of legal
succession or if the acquisition was made by a former
natural-born citizen.
In any case, the Court has also ruled that if land is
invalidly transferred to an alien who subsequently
becomes a citizen or transfers it to a citizen, the flaw in
the original transaction is considered cured and the title
of the transferee is rendered valid.49 In this case, since
the Makati property had already passed on to
respondent who is a Filipino, then whatever flaw, if any,
that attended the acquisition by the Guerseys of the
Makati property is now inconsequential, as the objective
of the constitutional provision to keep our lands in
Filipino hands has been achieved.
WHEREFORE, the petition is denied. The Decision dated
March 18, 1999 and the Resolution dated August 27,
1999 of the Court of Appeals are AFFIRMED.
Petitioner is ADMONISHED to be more circumspect in
the performance of his duties as an official of the court.
No pronouncement as to costs.
SO ORDERED.
ART. 798
G.R. No. 108581 December 8, 1999
LOURDES L. DOROTHEO, petitioner,
vs.
COURT OF APPEALS, NILDA D. QUINTANA, for Herself
and as Attorney-in-Fact of VICENTE DOROTHEO and
JOSE DOROTHEO, respondents.
YNARES-SANTIAGO, J.:
May a last will and testament admitted to probate but
declared intrinsically void in an order that has become
final and executory still be given effect? This is the issue
that arose from the following antecedents:
Private respondents were the legitimate children of
Alejandro Dorotheo and Aniceta Reyes. The latter died
in 1969 without her estate being settled. Alejandro died
thereafter. Sometime in 1977, after Alejandro's death,
petitioner, who claims to have taken care of Alejandro
before he died, filed a special proceeding for the
probate of the latter's last will and testament. In 1981,
the court issued an order admitting Alejandro's will to
probate. Private respondents did not appeal from said
order. In 1983, they filed a "Motion To Declare The Will
Intrinsically Void." The trial court granted the motion
and issued an order, the dispositive portion of which
reads:
WHEREFORE, in view of the foregoing,
Order is hereby issued declaring
Lourdes Legaspi not the wife of the late
Alejandro Dorotheo, the provisions of
the last will and testament of Alejandro
Dorotheo as intrinsically void, and
declaring the oppositors Vicente
Dorotheo, Jose Dorotheo and Nilda
Dorotheo Quintana as the only heirs of
the late spouses Alejandro Dorotheo
and Aniceta Reyes, whose respective
estates shall be liquidated and
distributed according to the laws on
intestacy upon payment of estate and
other taxes due to the government.1
Petitioner moved for reconsideration arguing that she is
entitled to some compensation since she took care of
Alejandro prior to his death although she admitted that
they were not married to each other. Upon denial of her
motion for reconsideration, petitioner appealed to the
Court of Appeals, but the same was dismissed for failure
to file appellant's brief within the extended period
granted.2 This dismissal became final and executory on
February 3, 1989 and a corresponding entry of
judgment was forthwith issued by the Court of Appeals
on May 16, 1989. A writ of execution was issued by the
lower court to implement the final and executory Order.
Consequently, private respondents filed several motions
including a motion to compel petitioner to surrender to
them the Transfer Certificates of Titles (TCT) covering
the properties of the late Alejandro. When petitioner
refused to surrender the TCT's, private respondents filed
a motion for cancellation of said titles and for issuance
of new titles in their names. Petitioner opposed the
motion.
An Order was issued on November 29, 1990 by Judge
Zain B. Angas setting aside the final and executory Order
dated January 30, 1986, as well as the Order directing
the issuance of the writ of execution, on the ground that
the order was merely "interlocutory", hence not final in
character. The court added that the dispositive portion
of the said Order even directs the distribution of the
estate of the deceased spouses. Private respondents
filed a motion for reconsideration which was denied in
an Order dated February 1, 1991. Thus, private
respondents filed a petition before the Court of Appeals,
which nullified the two assailed Orders dated November
29, 1990 and February 1, 1991.
Aggrieved, petitioner instituted a petition for review
arguing that the case filed by private respondents
before the Court of Appeals was a petition under Rule
65 on the ground of grave abuse of discretion or lack of
jurisdiction. Petitioner contends that in issuing the two
assailed orders, Judge Angas cannot be said to have no
jurisdiction because he was particularly designated to
hear the case. Petitioner likewise assails the Order of
the Court of Appeals upholding the validity of the
January 30, 1986 Order which declared the intrinsic
invalidity of Alejandro's will that was earlier admitted to
probate.
Petitioner also filed a motion to reinstate her as
executrix of the estate of the late Alejandro and to
maintain the status quo or lease of the premises
thereon to third parties.3 Private respondents opposed
the motion on the ground that petitioner has no interest
in the estate since she is not the lawful wife of the late
Alejandro.
The petition is without merit. A final and executory
decision or order can no longer be disturbed or
reopened no matter how erroneous it may be. In setting
aside the January 30, 1986 Order that has attained
finality, the trial court in effect nullified the entry of
judgment made by the Court of Appeals. It is well
settled that a lower court cannot reverse or set aside
decisions or orders of a superior court, for to do so
would be to negate the hierarchy of courts and nullify
the essence of review. It has been ruled that a final
judgment on probated will, albeit erroneous, is binding
on the whole world. 4
It has been consistently held that if no appeal is taken in
due time from a judgment or order of the trial court, the
same attains finality by mere lapse of time. Thus, the
order allowing the will became final and the question
determined by the court in such order can no longer be
raised anew, either in the same proceedings or in a
different motion. The matters of due execution of the
will and the capacity of the testator acquired the
character of res judicata and cannot again be brought
into question, all juridical questions in connection
therewith being for once and forever closed. 5 Such final
order makes the will conclusive against the whole world
as to its extrinsic validity and due execution. 6
It should be noted that probate proceedings deals
generally with the extrinsic validity of the will sought to
be probated,7 particularly on three aspects:
n whether the will submitted is indeed, the
decedent's last will and testament;
n compliance with the prescribed formalities for
the execution of wills;
n the testamentary capacity of the testator; 8
n and the due execution of the last will and
testament.9
Under the Civil Code, due execution includes a
determination of whether the testator was of sound and
disposing mind at the time of its execution, that he had
freely executed the will and was not acting under
duress, fraud, menace or undue influence and that the
will is genuine and not a forgery, 10 that he was of the
proper testamentary age and that he is a person not
expressly prohibited by law from making a will. 11
The intrinsic validity is another matter and questions
regarding the same may still be raised even after the will
has been authenticated. 12 Thus, it does not necessarily
follow that an extrinsically valid last will and testament
is always intrinsically valid. Even if the will was validly
executed, if the testator provides for dispositions that
deprives or impairs the lawful heirs of their legitime or
rightful inheritance according to the laws on
succession, 13 the unlawful provisions/dispositions
thereof cannot be given effect. This is specially so when
the courts had already determined in a final and
executory decision that the will is intrinsically void. Such
determination having attained that character of finality
is binding on this Court which will no longer be
disturbed. Not that this Court finds the will to be
intrinsically valid, but that a final and executory decision
of which the party had the opportunity to challenge
before the higher tribunals must stand and should no
longer be reevaluated. Failure to avail of the remedies
provided by law constitutes waiver. And if the party
does not avail of other remedies despite its belief that it
was aggrieved by a decision or court action, then it is
deemed to have fully agreed and is satisfied with the
decision or order. As early as 1918, it has been declared
that public policy and sound practice demand that, at
the risk of occasional errors, judgments of courts must
at some point of time fixed by law 14 become final
otherwise there will be no end to litigation. Interes rei
publicae ut finis sit litium the very object of which the
courts were constituted was to put an end to
controversies. 15 To fulfill this purpose and to do so
speedily, certain time limits, more or less arbitrary, have
to be set up to spur on the slothful. 16 The only instance
where a party interested in a probate proceeding may
have a final liquidation set aside is when he is left out by
reason of circumstances beyond his control or through
mistake or inadvertence not imputable to
negligence, 17 which circumstances do not concur
herein.
Petitioner was privy to the suit calling for the
declaration of the intrinsic invalidity of the will, as she
precisely appealed from an unfavorable order
therefrom. Although the final and executory Order of
January 30, 1986 wherein private respondents were
declared as the only heirs do not bind those who are not
parties thereto such as the alleged illegitimate son of
the testator, the same constitutes res judicata with
respect to those who were parties to the probate
proceedings. Petitioner cannot again raise those matters
anew for relitigation otherwise that would amount to
forum-shopping. It should be remembered that forum
shopping also occurs when the same issue had already
been resolved adversely by some other court. 18 It is
clear from the executory order that the estates of
Alejandro and his spouse should be distributed proceedings for the settlement of his and that of his late
according to the laws of intestate succession. spouse's estate.

Petitioner posits that the January 30, 1986 Order is Petitioner's motion for appointment as administratrix is
merely interlocutory, hence it can still be set aside by rendered moot considering that she was not married to
the trial court. In support thereof, petitioner argues that the late Alejandro and, therefore, is not an heir.
"an order merely declaring who are heirs and the shares
to which set of heirs is entitled cannot be the basis of WHEREFORE, the petition is DENIED and the decision
execution to require delivery of shares from one person appealed from is AFFIRMED.
to another particularly when no project of partition has
been filed." 19 The trial court declared in the January 30, SO ORDERED.
1986 Order that petitioner is not the legal wife of
Alejandro, whose only heirs are his three legitimate
children (petitioners herein), and at the same time it
nullified the will. But it should be noted that in the same
Order, the trial court also said that the estate of the late
spouses be distributed according to the laws of
intestacy. Accordingly, it has no option but to implement
that order of intestate distribution and not to reopen
and again re-examine the intrinsic provisions of the
same will.

It can be clearly inferred from Article 960 of the Civil

Code, on the law of successional rights that testacy is
preferred to intestacy. 20 But before there could be
testate distribution, the will must pass the scrutinizing
test and safeguards provided by law considering that
the deceased testator is no longer available to prove the
voluntariness of his actions, aside from the fact that the
transfer of the estate is usually onerous in nature and
that no one is presumed to give Nemo praesumitur
donare. 21 No intestate distribution of the estate can be
done until and unless the will had failed to pass both its
extrinsic and intrinsic validity. If the will is extrinsically
void, the rules of intestacy apply regardless of the
intrinsic validity thereof. If it is extrinsically valid, the
next test is to determine its intrinsic validity that is
whether the provisions of the will are valid according to
the laws of succession. In this case, the court had ruled
that the will of Alejandro was extrinsically valid but the
intrinsic provisions thereof were void. Thus, the rules of
intestacy apply as correctly held by the trial court.

Furthermore, Alejandro's disposition in his will of the

alleged share in the conjugal properties of his late
spouse, whom he described as his "only beloved wife",
is not a valid reason to reverse a final and executory
order. Testamentary dispositions of properties not
belonging exclusively to the testator or properties which
are part of the conjugal regime cannot be given effect.
Matters with respect to who owns the properties that
were disposed of by Alejandro in the void will may still
be properly ventilated and determined in the intestate