WILLS and SUCCESSION (Atty.
Lielanie Yangyang-Espejo) 1
ARTICLE 779
RODRIGUEZ v. BORJA
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21993 June 21, 1966
ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL.,
petitioners,
vs.
HON. JUAN DE BORJA, as Judge of the Court of First
Instance of Bulacan, Branch III,
ANATOLIA PANGILINAN and ADELAIDA JACALAN,
respondents.
Lorenzo Somulong for petitioners.
Torres and Torres for respondents.
REYES, J.B.L., J.:
Petitioners Angela, Maria, Abelardo and Antonio, surnamed
Rodriguez, petition this Court for a writ of certiorari and
prohibition to the Court of First Instance of Bulacan, for its
refusal to grant their motion to dismiss its Special Proceeding
No. 1331, which said Court is alleged to have taken
cognizance of without jurisdiction.
The facts and issues are succinctly narrated in the order of
the respondent court, dated June 13, 1963 (Petition, Annex
0), in this wise:
It is alleged in the motion to dismiss filed by Angela, Maria,
Abelardo and Antonio Rodriguez, through counsel, that this
Court "has no jurisdiction to try the above-entitled case in
view of the pendency of another action for the settlement of
the estate of the deceased Rev. Fr. Celestino Rodriguez in
the Court of First Instance of Rizal, namely, Sp. Proceedings
No. 3907 entitled 'In the matter of the Intestate Estate of the
deceased Rev. Fr. Celestino Rodriguez which was filed
ahead of the instant case".
The records show that Fr. Celestino Rodriguez died on
February 12, 1963 in the City of Manila; that on March 4,
1963, Apolonia Pangilinan and Adelaida Jacalan delivered to
the Clerk of Court of Bulacan a purported last will and
testament of Fr. Rodriguez; that on March 8, 1963, Maria
Rodriguez and Angela Rodriguez, through counsel filed a
petition for leave of court to allow them to examine the
alleged will; that on March 11, 1963 before the Court could
act on the petition, the same was withdrawn; that on March
12, 1963, aforementioned petitioners filed before the Court of
First Instance of Rizal a petition for the settlement of the
COMPILATION OF CASES (Page 2 of 9)
intestate estate of Fr. Rodriguez alleging, among other
things, that Fr. Rodriguez was a resident of Paraaque,
Rizal, and died without leaving a will and praying that Maria
Rodriguez be appointed as Special Administratrix of the
estate; and that on March 12, 1963 Apolonia Pangilinan and
Adelaida Jacalan filed a petition in this Court for the
probation of the will delivered by them on March 4, 1963. It
was stipulated by the parties that Fr. Rodriguez was born in
Paraaque, Rizal; that he was Parish priest of the Catholic
Church of Hagonoy, Bulacan, from the year 1930 up to the
time of his death in 1963; that he was buried in Paraaque,
and that he left real properties in Rizal, Cavite, Quezon City
and Bulacan.
The movants contend that since the intestate proceedings in
the Court of First Instance of Rizal was filed at 8:00 A.M. on
March 12, 1963 while the petition for probate was filed in the
Court of First Instance of Bulacan at 11:00 A.M. on the same
date, the latter Court has no jurisdiction to entertain the
petition for probate, citing as authority in support thereof the
case of Ongsingco Vda. de Borja vs. Tan and De Borja, G.R.
No. 7792, July 27, 1955.
The petitioners Pangilinan and Jacalan, on the other hand,
take the stand that the Court of First Instance of Bulacan
acquired jurisdiction over the case upon delivery by them of
the will to the Clerk of Court on March 4, 1963, and that the
case in this Court therefore has precedence over the case
filed in Rizal on March 12, 1963.
The Court of First Instance, as previously stated denied the
motion to dismiss on the ground that a difference of a few
hours did not entitle one proceeding to preference over the
other; that, as early as March 7, movants were aware of the
existence of the purported will of Father Rodriguez,
deposited in the Court of Bulacan, since they filed a petition
to examine the same, and that movants clearly filed the
intestate proceedings in Rizal "for no other purpose than to
prevent this Court (of Bulacan) from exercising jurisdiction
over the probate proceedings". Reconsideration having been
denied, movants, now petitioners, came to this Court, relying
principally on Rule 73, section 1 of the Rules of Court, and
invoking our ruling in Ongsingco vs. Tan and De Borja, L-
7792, July 27, 1955.
SECTION 1. Where estate of deceased persons settled. If
the decedent is an inhabitant of the Philippines at the time of
his death, whether a citizen or an alien, his will shall be
proved, or letters of administration granted, and his estate
settled, in the Court of First Instance in the province in which
he resides at the time of his death, and if he is an inhabitant
of a foreign country, the Court of First Instance of any
province which he had estate. The court first taking
cognizance of the settlement of the estate of a decedent,
shall exercise jurisdiction to the exclusion of all other courts.
The jurisdiction assumed by a court, as far as it depends on
the place of residence of the decedent, or of the location of
his estate, shall not be contested in a suit or proceeding,
except in an appeal from that court, in the original case, or
when the want of jurisdiction appears on the record.

We find this recourse to be untenable. The jurisdiction of the
Court of First Instance of Bulacan became vested upon the
delivery thereto of the will of the late Father Rodriguez on
March 4, 1963, even if no petition for its allowance was filed
until later, because upon the will being deposited the court
could, motu proprio, have taken steps to fix the time and
place for proving the will, and issued the corresponding
notices conformably to what is prescribed by section 3, Rule
76, of the Revised Rules of Court (Section 3, Rule 77, of the
old Rules):
SEC. 3. Court to appoint time for proving will. Notice thereof
to be published. When a will is delivered to, or a petition
for the allowance of a will is filed in, the Court having
jurisdiction, such Court shall fix a time and place for proving
the will when all concerned may appear to contest the
allowance thereof, and shall cause notice of such time and
place to be published three (3) weeks successively, previous
to the time appointed, in a newspaper of general circulation
in the province.
But no newspaper publication shall be made where the
petition for probate has been filed by the testator himself.
The use of the disjunctive in the words "when a will is
delivered to OR a petition for the allowance of a will is filed"
plainly indicates that the court may act upon the mere
deposit therein of a decedent's testament, even if no petition
for its allowance is as yet filed. Where the petition for probate
is made after the deposit of the will, the petition is deemed to
relate back to the time when the will was delivered. Since the
testament of Fr. Rodriguez was submitted and delivered to
the Court of Bulacan on March 4, while petitioners initiated
intestate proceedings in the Court of First Instance of Rizal
only on March 12, eight days later, the precedence and
exclusive jurisdiction of the Bulacan court is
incontestable.1wph1.t
But, petitioners object, section 3 of revised Rule 76 (old Rule
77) speaks of a will being delivered to "the Court having
jurisdiction," and in the case at bar the Bulacan court did not
have it because the decedent was domiciled in Rizal
province. We can not disregard Fr. Rodriguez's 33 years of
residence as parish priest in Hagonoy, Bulacan (1930-1963);
but even if we do so, and consider that he retained
throughout some animus revertendi to the place of his birth
in Paraaque, Rizal, that detail would not imply that the
Bulacan court lacked jurisdiction. As ruled in previous
decisions, the power to settle decedents' estates is conferred
by law upon all courts of first instance, and the domicile of
the testator only affects the venue but not the jurisdiction of
the Court (In re Kaw Singco, 74 Phil. 239; Reyes vs. Diaz, 73
Phil. 484; Bernabe vs. Vergara, 73 Phil. 676). Neither party
denies that the late Fr. Rodriguez is deceased, or that he left
personal property in Hagonoy, province of Bulacan (t.s.n. p.
46, hearing of June 11, 1963, Annex "H", Petition, Rec., p.
48). That is sufficient in the case before us.
In the Kaw Singco case (ante) this Court ruled that:
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 2
COMPILATION OF CASES (Page 2 of 9)
"... If we consider such question of residence as one
affecting the jurisdiction of the trial court over the subject-
matter, the effect shall be that the whole proceedings
including all decisions on the different incidents which have
arisen in court will have to be annulled and the same case
will have to be commenced anew before another court of the
same rank in another province. That this is of mischievous
effect in the prompt administration of justice is too obvious to
require comment. (Cf. Tanunchuan vs. Dy Buncio & Co.,
G.R. No. 48206, December 31, 1942). Furthermore, section
600 of Act No. 190, providing that the estate of a deceased
person shall be settled in the province where he had last
resided, could not have been intended as defining the
jurisdiction of the probate court over the subject matter,
because such legal provision is contained in a law of
procedure dealing merely with procedural matters, and, as
we have said time and again, procedure is one thing and
jurisdiction over the subject matter is another. (Attorney
General vs. Manila Railroad Company, 20 Phil. 523.) The
law of jurisdiction Act No. 136, Section 56, No. 5
confers upon Courts of First Instance jurisdiction over all
probate cases independently of the place of residence of the
deceased.1 Since, however, there are many Courts of First
Instance in the Philippines, the Law of Procedure, Act No.
190, section 600, fixes the venue or the place where each
case shall be brought. Thus, the place of residence of the
deceased is not an element of jurisdiction over the subject
matter but merely of venue. And it is upon this ground that in
the new Rules of Court the province where the estate of a
deceased person shall be settled is properly called "venue"
(Rule 75, section 1.) Motion for reconsideration is denied.
The estate proceedings having been initiated in the Bulacan
Court of First Instance ahead of any other, that court is
entitled to assume jurisdiction to the exclusion of all other
courts, even if it were a case of wrong venue by express
provisions of Rule 73 (old Rule 75) of the Rules of Court,
since the same enjoins that:
The Court first taking cognizance of the settlement of the
estate of a decedent shall exercise jurisdiction to the
exclusion of all other courts. (Sec. 1)
This disposition presupposes that two or more courts have
been asked to take cognizance of the settlement of the
estate. Of them only one could be of proper venue, yet the
rule grants precedence to that Court whose jurisdiction is first
invoked, without taking venue into account.
There are two other reasons that militate against the success
of petitioners. One is that their commencing intestate
proceedings in Rizal, after they learned of the delivery of the
decedent's will to the Court of Bulacan, was in bad faith,
patently done with a view to divesting the latter court of the
precedence awarded it by the Rules. Certainly the order of
priority established in Rule 73 (old Rule 75) was not
designed to convert the settlement of decedent's estates into
a race between applicants, with the administration of the
properties as the price for the fleetest.

The other reason is that, in our system of civil law, intestate
succession is only subsidiary or subordinate to the testate,
since intestacy only takes place in the absence of a valid
operative will. Says Article 960 of the Civil Code of the
Philippines:
ART. 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one
which has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of
all the property belonging to the testator. In such case, legal
succession shall take place only with respect to the property
in which the testator has not disposed;
(3) If the suspensive condition attached to the institution of
heir does not happen or is not fulfilled, or if the heir dies
before the testator, or repudiates the inheritance, there being
no substitution, and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding,
except in cases provided in this Code.
Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil.
307, "only after final decision as to the nullity of testate
succession could an intestate succession be instituted in the
form of pre-established action". The institution of intestacy
proceedings in Rizal may not thus proceed while the probate
of the purported will of Father Rodriguez is pending.
We rule that the Bulacan Court of First Instance was entitled
to priority in the settlement of the estate in question, and that
in refusing to dismiss the probate. proceedings, said court
did not commit any abuse of discretion. It is the proceedings
in the Rizal Court that should be discontinued.
Wherefore, the writ of certiorari applied for is denied. Costs
against petitioners Rodriguez.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 3
COMPILATION OF CASES (Page 2 of 9)
BALANAY, JR. v. MARTINEZ
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-39247 June 27, 1975
In the Matter of the Petition to Approve the Will of
Leodegaria Julian. FELIX BALANAY, JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the Court of
First Instance of Davao, Branch VI; AVELINA B.
ANTONIO and DELIA B. LANABAN, respondents.
Roberto M. Sarenas for petitioner.
Jose B. Guyo for private respondents.
AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari from the order of the
Court of First Instance of Davao dated February 28, 1974,
declaring illegal and void the will of his mother, Leodegaria
Julian, converting the testate proceeding into an intestate
proceeding and ordering the issuance of the corresponding
notice to creditors (Special Case No. 1808). The antecedents
of the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on
February 12, 1973 in Davao City at the age of sixty-seven.
She was survived by her husband, Felix Balanay, Sr., and by
their six legitimate children named Felix Balanay, Jr., Avelina
B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia
B. Lanaban and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a petition dated
February 27, 1973 for the probate of his mother's notarial will
dated September 5, 1970 which is written in English. In that
will Leodegaria Julian declared (a) that she was the owner of
the "southern half of nine conjugal lots (par. II); (b) that she
was the absolute owner of two parcels of land which she
inherited from her father (par. III), and (c) that it was her
desire that her properties should not be divided among her
heirs during her husband's lifetime and that their legitimes
should be satisfied out of the fruits of her properties (Par. IV).
Then, in paragraph V of the will she stated that after her
husband's death (he was eighty-two years old in 1973) her
paraphernal lands and all the conjugal lands (which she
described as "my properties") should be divided and
distributed in the manner set forth in that part of her will. She
devised and partitioned the conjugal lands as if they were all
owned by her. She disposed of in the will her husband's one
half share of the conjugal assets. *

Felix Balanay, Sr. and Avelina B. Antonio opposed the
probate of the will on the grounds of lack of testamentary
capacity, undue influence, preterition of the husband and
alleged improper partition of the conjugal estate. The
oppositors claimed that Felix Balanay, Jr. should collate
certain properties which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached
thereto an affidavit of Felix Balanay, Sr. dated April 18, 1973
wherein he withdrew his opposition to the probate of the will
and affirmed that he was interested in its probate. On the
same date Felix Balanay, Sr. signed an instrument captioned
"Conformation (sic) of Division and Renunciation of
Hereditary Rights" wherein he manifested that out of respect
for his wife's will he "waived and renounced' his hereditary
rights in her estate in favor of their six children. In that same
instrument he confirmed the agreement, which he and his
wife had perfected before her death, that their conjugal
properties would be partitioned in the manner indicated in
her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended
that the affidavit and "conformation" of Felix Balanay, Sr.
were void. The lower court in its order of June 18, 1973
"denied" the opposition and reset for hearing the probate of
the will. It gave effect to the affidavit and conformity of Felix
Balanay, Sr. In an order dated August 28, 1973 it appointed
its branch clerk of court as special administrator of the
decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower
court's order of June 18, 1973 on the grounds (a) that the
testatrix illegally claimed that she was the owner of the
southern half of the conjugal lots and (b) that she could not
partition the conjugal estate by allocating portions of the nine
lots to her children. Felix Balanay, Jr., through his counsel,
Hermenegildo Cabreros, opposed that motion. The lower
court denied it in its order of October 15, 1973.
In the meanwhile, another lawyer appeared in the case.
David O. Montaa, Sr., claiming to be the lawyer of petitioner
Felix Balanay, Jr. (his counsel of record was Atty. Cabreros),
filed a motion dated September 25, 1973 for "leave of court
to withdraw probate of alleged will of Leodegaria Julian and
requesting authority to proceed by intestate estate
proceeding." In that motion Montaa claimed to be the
lawyer not only of the petitioner but also of Felix Balanay,
Sr., Beatriz B. Solamo, Carolina B. Manguiob and Emilia B.
Pabaonon.
Montaa in his motion assailed the provision of the will which
partitioned the conjugal assets or allegedly effected a
compromise of future legitimes. He prayed that the probate
of the will be withdrawn and that the proceeding be
converted into an intestate proceeding. In another motion of
the same date he asked that the corresponding notice to
creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose
B. Guyo, in their comments dated October 15, 1973
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 4
COMPILATION OF CASES (Page 2 of 9)
manifested their conformity with the motion for the issuance
of a notice to creditors. They prayed that the will be declared
void for being contrary to law and that an intestacy be
declared.
The lower court, acting on the motions of Atty. Montaa,
assumed that the issuance of a notice to creditors was in
order since the parties had agreed on that point. It adopted
the view of Attys. Montaa and Guyo that the will was void.
So, in its order of February 28, 1974 it dismissed the petition
for the probate, converted the testate proceeding into an
intestate proceeding, ordered the issuance of a notice to
creditors and set the intestate proceeding for hearing on April
1 and 2, 1974. The lower court did not abrogate its prior
orders of June 18 and October 15, 1973. The notice to
creditors was issued on April 1, 1974 and published on May
2, 9 and 16 in the Davao Star in spite of petitioner's motion of
April 17, 1974 that its publication be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M.
Sarenas, in a verified motion dated April 15, 1974, asked for
the reconsideration of the lower court's order of February 28,
1974 on the ground that Atty. Montaa had no authority to
withdraw the petition for the allowance of the will. Attached to
the motion was a copy of a letter dated March 27, 1974
addressed to Atty. Montaa and signed by Felix Balanay, Jr.,
Beatriz V. Solamo, Carolina B. Manguiob and Emilia B.
Pabaonon, wherein they terminated Montaa's services and
informed him that his withdrawal of the petition for the
probate of the will was without their consent and was
contrary to their repeated reminder to him that their mother's
will was "very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban opposed the
motion for reconsideration. The lower court denied the
motion in its order of June 29, 1974. It clarified that it
declared the will void on the basis of its own independent
assessment of its provisions and not because of Atty.
Montaa's arguments.
The basic issue is whether the probate court erred in passing
upon the intrinsic validity of the will, before ruling on its
allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual
provisions of the will, which are of dubious legality, and
because of the motion to withdraw the petition for probate
(which the lower court assumed to have been filed with the
petitioner's authorization), the trial court acted correctly in
passing upon the will's intrinsic validity even before its formal
validity had been established. The probate of a will might
become an idle ceremony if on its face it appears to be
intrinsically void. Where practical considerations demand that
the intrinsic validity of the will be passed upon, even before it
is probated, the court should meet the issue (Nuguid vs.
Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with
Sumilang vs. Ramagosa, L-23135, December 26, 1967, 21
SCRA 1369; Cacho vs. Udan, L-19996, April 30, 1965, 13
SCRA 693).1wph1.t

But the probate court erred in declaring, in its order of
February 28, 1974 that the will was void and in converting
the testate proceeding into an intestate proceeding
notwithstanding the fact that in its order of June 18, 1973 , it
gave effect to the surviving husband's conformity to the will
and to his renunciation of his hereditary rights which
presumably included his one-half share of the conjugal
estate.
The rule is that "the invalidity of one of several dispositions
contained in a will does not result in the invalidity of the other
dispositions, unless it is to be presumed that the testator
would not have made such other dispositions if the first
invalid disposition had not been made" (Art. 792, Civil Code).
"Where some of the provisions of a will are valid and others
invalid, the valid parts will be upheld if they can be separated
from the invalid without defeating the intention of the testator
or interfering with the general testamentary scheme, or doing
injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern
half of the conjugal lands is contrary to law because,
although she was a coowner thereof, her share was inchoate
and proindiviso (Art. 143, Civil Code; Madrigal and Paterno
vs. Rafferty and Concepcion, 38 Phil. 414). But That illegal
declaration does not nullify the entire will. It may be
disregarded.
The provision of the will that the properties of the testatrix
should not be divided among her heirs during her husband's
lifetime but should be kept intact and that the legitimes
should be paid in cash is contrary to article 1080 of the Civil
Code which reads:
ART. 1080. Should a person make a partition of his estate by
an act inter vivos, or by will, such partition shall be
respected, insofar as it does not prejudice the legitime of the
compulsory heirs.
A parent who, in the interest of his or her family, to keep any
agricultural, industrial, or manufacturing enterprise intact,
may avail himself of the right granted him in this article, by
ordering that the legitime of the other children to whom the
property is not assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal
estate among her six children (her husband had renounced
his hereditary rights and his one-half conjugal share). She
did not assign the whole estate to one or more children as
envisaged in article 1080. Hence, she had no right to require
that the legitimes be paid in cash. On the other hand, her
estate may remain undivided only for a period of twenty
years. So, the provision that the estate should not be divided
during her husband's lifetime would at most be effective only
for twenty years from the date of her death unless there are
compelling reasons for terminating the coownership (Art.
1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights
and his one-half share of the conjugal partnership (Arts.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 5
COMPILATION OF CASES (Page 2 of 9)
179[1] and 1041, Civil Code) but insofar as said renunciation
partakes of a donation of his hereditary rights and his one-
half share in the conjugal estate (Art. 1060[1] Civil Code), it
should be subject to the limitations prescribed in articles 750
and 752 of the Civil Code. A portion of the estate should be
adjudicated to the widower for his support and maintenance.
Or at least his legitime should be respected.
Subject to the foregoing observations and the rules on
collation, the will is intrinsically valid and the partition therein
may be given effect if it does not prejudice the creditors and
impair the legitimes. The distribution and partition would
become effective upon the death of Felix Balanay, Sr. In the
meantime, the net income should be equitably divided
among the children and the surviving spouse.
It should be stressed that by reason of the surviving
husband's conformity to his wife's will and his renunciation of
his hereditary rights, his one-half conjugal share became a
part of his deceased wife's estate. His conformity had the
effect of validating the partition made in paragraph V of the
will without prejudice, of course, to the rights of the creditors
and the legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired
after the making of a will shall only pass thereby, as if the
testator had it at the time of making the will, should it
expressly appear by the will that such was his intention".
Under article 930 of the Civil Code "the legacy or devise of a
thing belonging to another person is void, if the testator
erroneously believed that the thing pertained to him. But if
the thing bequeathed, though not belonging to the testator
when he made the will, afterwards becomes his, by whatever
title, the disposition shall take effect."
In the instant case there is no doubt that the testatrix and her
husband intended to partition the conjugal estate in the
manner set forth in paragraph V of her will. It is true that she
could dispose of by will only her half of the conjugal estate
(Art. 170, Civil Code) but since the husband, after the
dissolution of the conjugal partnership, had assented to her
testamentary partition of the conjugal estate, such partition
has become valid, assuming that the will may be probated.
The instant case is different from the Nuguid case, supra,
where the testatrix instituted as heir her sister and preterited
her parents. Her will was intrinsically void because it
preterited her compulsory heirs in the direct line. Article 854
of the Civil Code provides that "the preterition or omission of
one, some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born
after the death of the testator, shall annul the institution of
heir; but the devises and legacies, shall be valid insofar as
they are not inofficious." Since the preterition of the parents
annulled the institution of the sister of the testatrix and there
were no legacies and devises, total intestacy resulted (.Art.
960[2], Civil Code).1wph1.t
In the instant case, the preterited heir was the surviving
spouse. His preterition did not produce intestacy. Moreover,
 WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 6
COMPILATION OF CASES (Page 2 of 9)

he signified his conformity to his wife's will and renounced clearly contemplates the appointment of an executor or
his hereditary rights. . regular administrator and not that of a special administrator.

It results that the lower court erred in not proceeding with the
probate of the will as contemplated in its uncancelled order
of June 18, 1973. Save in an extreme case where the will on
its face is intrinsically void, it is the probate court's duty to
pass first upon the formal validity of the will. Generally, the
probate of the will is mandatory (Art. 838, Civil Code;
Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249;
Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21
SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very existence of
a purported testament is in itself prima facie proof that the
supposed testator has willed that his estate should be
distributed in the manner therein provided, and it is
incumbent upon the state that, if legally tenable, such desire
be given effect independent of the attitude of the parties
affected thereby" (Resolution, Vda. de Precilla vs. Narciso,
L-27200, August 18, 1972, 46 SCRA 538, 565).
To give effect to the intention and wishes of the testatrix is
the first and principal law in the matter of testaments (Dizon-
Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554,
561). Testacy is preferable to intestacy. An interpretation that
will render a testamentary disposition operative takes
precedence over a construction that will nullify a provision of
the will (Arts. 788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in favor of testacy
especially where the will evinces an intention on the part of
the testator to dispose of practically his whole estate. So
compelling is the principle that intestacy should be avoided
and that the wishes of the testator should prevail that
sometimes the language of the will can be varied for the
purpose of giving it effect (Austria vs. Reyes, L-23079,
February 27, 1970, 31 SCRA 754, 762).
It is the executor or regular administrator who is supposed to
oppose the claims against the estate and to pay such claims
when duly allowed (See. 10, Rule 86 and sec. 1, Rule 88,
Rules of Court).
We also take this occasion to point out that the probate
court's appointment of its branch clerk of court as special
administrator (p. 30, Rollo) is not a salutary practice because
it might engender the suspicion that the probate Judge and
his clerk of court are in cahoots in milking the decedent's
estate. Should the branch clerk of court commit any abuse or
devastavit in the course of his administration, the probate
Judge might find it difficult to hold him to a strict
accountability. A court employee should devote his official
time to his official duties and should not have as a sideline
the administration of a decedent's estate.
WHEREFORE, the lower court's orders of February 28, and
June 29, 1974 are set aside and its order of June 18, 1973,
setting for hearing the petition for probate, is affirmed. The
lower court is directed to conduct further proceedings in
Special Case No. 1808 in consonance with this opinion.
Costs, against the private respondents.
SO ORDERED.
ARTICLE 780
BALANAY, JR. v. MARTINEZ
(See Page 2 of 9 Compilation)

As far as is legally possible, the expressed desire of the

testator must be followed and the dispositions of the
properties in his will should be upheld (Estorque vs.
Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546).

The law has a tender regard for the wishes of the testator as
expressed in his will because any disposition therein is better
than that which the law can make (Castro vs. Bustos, L-
25913, February 28, 1969, 27 SCRA 327, 341).

Two other errors of the lower court may be noticed. It erred

in issuing a notice to creditors although no executor or
regular administrator has been appointed. The record
reveals that it appointed a special administrator. A notice to
creditors is not in order if only a special administrator has
been appointed. Section 1, Rule 86 of the Rules of Court, in
providing that "immediately after granting letters of
testamentary or of administration, the court shall issue a
notice requiring all persons having money claims against the
decedent to file them in the office of the clerk of said court"

ARTICLE 783
RABADILLA v. CA
(See page 1 of 9 Compilation)
HERREROS v. GIL
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-3362 March 1, 1951
TESTATE estate of Carlos Gil, deceased. ISABEL
HERREROS VDA. DE GIL, administratrix-appellee,
vs.
PILAR GIL VDA. DE MURCIANO, oppositor-appellant.
Eligio C. Lagman for appellant.
Reyes, Albert and Agcaoili for appellee.
JUGO, J.:
The Court of First Instance of Manila admitted to probate the
alleged will and testament of the deceased Carlos Gil. The
oppositor Pilar Gil Vda. de Murciano appealed to this Court,
raising only question of law. Her counsel assigns the two
following alleged errors:
Primer Error. El Juzgado inferior erro al dejar de declarar
que el alegado testamento de Carlos Gil no ha sido otogar
de acuerdo con la ley.
Segundo Error. Erro finalmente a legalizar el referido
testamento.
The alleged will read as follows:
Primera Pagina (1)
EN EL NOMBRE DE DIOS, AMEN
Yo, Carlos Gil, de 66 aos de edad, residente de Porac,
Pampanga, I. F., hallandome sano y en pleno goce de mis
facultades intelectuales, libre y expontaneamente, sin
violencia, coaccion, dolo o influencia ilegal de persona
extraa, otorgo y ordeno este mi testamento y ultima
voluntad en castellano, idioma que poseo y entiendo, de la
manera siguiente:
1. Declaro que durante mi matrimonio con mi esposa la hoy
Isabel Herreros no tuvimos hijos;
2. Declaro que tengo propiedades situadas en Manila y en la
Provincia de Pampanga;
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 7
COMPILATION OF CASES (Page 2 of 9)
3. Doy y adjudico a mi querida esposa Isabel Herretos todos
mis bienes ya que muebles e inmuebles situados en Manila
y en Pampanga, bajo la condicion de que cuando esta
muera y si hayan bienes remanentes heredadas por ella de
mi, que dichos bienes remanentes se adjudicaran a Don
Carlos Worrel.
4. Nombro como albacea de mis bienes despues de mi
fallecimiento al Dr. Galicano Coronel a quien tengo absoluta
confianza, con relevacion de fianza;
En testimonio de todo lo cual, firmo este mi testamento y en
el margen izquierdo de cada una de sus dos paginas, utiles
con la clausula de atestiguamiento en presencia de los
testigos, quienes a su vez firmaron cada una de dichas
paginas y la clausula de atestiguamiento en mi presencia
cada uno de ellos con la de los demas, hoy en Porac,
Pampanga, I. F., el dia 27 de Mayo de mil novecientos
treinta y nueve.
CARLOS GIL
Testificacion:
Segunda Pagina (2)
Nosotros los que suscribimos, todos mayores de edad,
certificamos: que el testamento que precede este escrito en
la lengua castellana que conoce la testadora, compuesto de
dos paginas utiles con la clausula de atestiguamiento
paginadas correlativamente en letras y numeros en la parte
superior de la casilla, asi como todas las hojas del mismo,
en nuestra presencia y que cada uno de nosotros hemos
atestiguado y firmado dicho documento y todas las hojas del
mismo en presencia del testador y en la de cada uno de
nosotros.
(Fdo.) ALFREDO T. RIVERA
(Fdo.) RAMON MENDIOLA
(Fdo.) MARIANO OMAA
Regarding the correctness and accuracy of the above-copied
alleged will, the court below said:
. . . The only copy available is a printed form contained in the
record appeal in case G.R. No. L-254, entitled "Testate
Estate of Carlos Gil; Isabel Herreros Vda. de Gil, petitioner
and appellant vs. Roberto Toledo y Gil, oppositor and
appellee." Both parties are agreed that this is a true and
correct copy of the will. (P. 10, Record on Appeal).
The appeal being only on questions of law the above finding
of the court below cannot be disputed. The conclusions of
law reached by said court are based on it. Moreover, the

finding is correctly based on the evidence of record. The
parties agreed that said copy is true and correct. If it were
otherwise, they would not have so agreed, considering that
the defect is of an essential character and is fatal to the
validity of the attestation clause.
It will be noted that the attestation clause above quoted does
not state that the alleged testor signed the will. It declares
only that it was signed by the witnesses. This is a fatal
defect, for the precise purpose of the attestation clause is to
certify that the testator signed the will, this being the most
essential element of the clause. Without it there is no
attestation at all. It is said that the court may correct a mere
clerical error. This is too much of a clerical error for it effects
the very essence of the clause. Alleged errors may be
overlooked or correct only in matters of form which do not
affect the substance of the statement.
It is claimed that the correction may be made by inference. If
we cure a deficiency by means of inferences, when are we
going to stop making inferences to supply fatal deficiencies
in wills? Where are we to draw the line? Following that
procedure we would be making interpolations by inferences,
implication, and even by internal circumtantial evidence. This
would be done in the face of the clear, uniquivocal, language
of the statute as to how the attestation clause should be
made. It is to be supposed that the drafter of the alleged will
read the clear words of the statute when he prepared it. For
the court to supply alleged deficiencies would be against the
evident policy of the law. Section 618 of Act No. 190, before
it was amended, contained the following provision:
. . . But the absence of such form of attestation shall not
render the will invalid if it proven that the will was in fact
signed and attested as in this section provided.
However, Act No. 2645 of the Philippine Legislature, passed
on July 1, 1916, besides increasing the contents of the
attestation clause, entirely suppressed the above-quoted
provision. This would show that the purpose of the amending
act was to surround the execution of a will with greater
guarantees and solemnities. Could we, in view of this, hold
that the court can cure alleged deficiencies by inferences,
implications, and internal circumstantial evidence? Even in
ordinary cases the law requires certain requisities for the
conclusiveness of circumstantial evidence.
It is contended that the deficiency in the attestation clause is
cured by the last paragraph of the body of the alleged will,
which we have quoted above. At first glance, it is queer that
the alleged testator should have made an attestation clause,
which is the function of the witness. But the important point is
that he attests or certifies his own signature, or, to be
accurate, his signature certifies itself. It is evident that one
cannot certify his own signature, for it does not increase the
evidence of its authenticity. It would be like lifting one's self
by his own bootstraps. Consequently, the last paragraph of
the will cannot cure in any way the fatal defect of the
attestation clause of the witnesses. Adding zero to an
insufficient amount does not make it sufficient.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 8
COMPILATION OF CASES (Page 2 of 9)
It is said that the rules of statutory construction are
applicable to documents and wills. This is true, but said rules
apply to the body of the will, containing the testamentary
provisions, but not to the attestation clause, which must be
so clear that it should not require any construction.
The parties have cited pro and con several decisions of the
Supreme Court, some of which are said to be rather strict
and others liberal, in the interpretation of section 618 of Act
No. 190, as amended by Act No. 2645.
In the case of Gumban vs. Gorecho (50 Phil., 30, 31), the
court had the following to say:
1. WILLS; ALLOWANCE OR DISALLOWANCE; SECTIONS
618 AND 634 OF THE CODE OF CIVIL PROCEDURE
CONSTRUED. The right to dispose of the property by will
is governed entirely by statute. The law is here found in
section 618 of the Code of Civil Procedure, as amended. The
law not alone carefully makes use of the imperative, but
cautiously goes further and makes use of the negative, to
enforce legislative intention.
2. ID.; ID.; ATTESTATION. The Philippine authorities
relating to the attestation clause to wills reviewed. The cases
of Sao vs. Quintana ([1925], 48 Phil., 506), and Nayve vs.
Mojal and Aguilar ([1924], 47 Phil., 152), particularly
compared. The decision in In re Will of Quintana, supra,
adopted and reaffirmed. The decision in Nayve vs. Mojal and
Aguilar, supra, modified.
3. ID.; ID.; ID.; ID. The portion of section 618 of the Code
of Civil Procedure, as amended, which provides that "The
attestation clause 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" applied and
enforced.
4. ID.; ID.; ID.; ID. An attestation clause which does not
recite that the witnesses signed the will and each and every
page thereof on the left margin in the presence of the
testator is defective, and such a defect annuls the will. (Sano
vs. Quintana, supra.)
In the subsequent case of Quinto vs. Morata (54 Phil., 481,
482), Judge Manuel V. Moran, now Chief Justice of the
Supreme Court, in his decision made the following
pronouncement:
. . . En la clausula de atestiguamiento del testamento en
cuestion, se hace constar que los testadores firmaron el
testamento en presencia de los tres testigos instrumentales
y que estos firmaron el testamento los unos en presencia de
los otros, pero no se hace constar que dichos testigos
firmaron el testamento en presencia de los testadores, ni
que estos y aquellos firmaron todas y cada una de las

paginas del testamento los primeros en presencia de los
segundos y vice-versa.
En su virtud, se deniega la solicitud en la que se pide la
legalizacion del alegado testamento Exhibit A de Gregorio
Pueblo y Carmen Quinto, y se declara que Gregorio Pueblo
murio intestado.
The Supreme Court fully affirmed the decision, laying down
the following doctrine:
1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO
SUPPLY DEFECTS OF. The attestation clause must be
made in strict conformity with the requirements of section
618 of Act No. 190, as amended. Where said clause fails to
show on its face a full compliance with those requirements,
the defect constitutes sufficient ground for the disallowance
of the will. (Sano vs. Quintana, 48 Phil., 506; Gumban vs.
Gorecho, 50 Phil., 30). Evidence aliunde should not be
admitted to establish facts not appearing on the attestation
clause, and where said evidence has been admitted it should
not be given the effect intended. (Uy Coque vs. Navas L.
Sioca, 43 Phil., 405, 409.).
2. ID.; ID.; INTERPRETATION OF SECTION 618 OF ACT
NO. 190, AS AMENDED. Section 618 of Act No. 190, as
amended, should be given a strict interpretation in order to
give effect to the intention of the Legislature. Statutes
prescribing formalities to be observed in the execution of
wills are very strictly construed. Courts cannot supply the
defensive execution of will. (40 Cyc., p. 1079; Uy Coque vs.
Navas L. Sioca, supra.)
It is true that in subsequent decisions, the court has
somewhat relaxed the doctrine of the Gumban vs. Gorcho
case, supra, but not to the extent of validating an attestation
clause similar to that involved herein.
In the case of Aldaba vs. Roque (43 Phil., 378), the testatrix
signed the attestation clause which was complete, and it was
also signed by the two attesting witnesses. For this reason,
the court said:
In reality, it appears that it is the testatrix who makes the
declaration about the points contained in the above
described paragraph; however, as the witnesses, together
with the testatrix, have signed the said declaration, we are of
the opinion and so hold that the words above quoted of the
testament constitute a sufficient compliance with the
requirements of section 1 of Act No. 2645 which provides
that: . . . (p. 381, supra.)
The attestation clause involved herein is very different.
In the case of Dischoso de Ticson vs. De Gorotiza (57 Phil.,
437), it was held that:
An attestation clause to a will, copied from a form book and
reading: "We, the undersigned attesting witnesses, whose
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 9
COMPILATION OF CASES (Page 2 of 9)
residences are stated opposite our respective names, do
hereby certify that the testatrix, whose name is signed
hereinabove, has publish unto us the foregoing will
consisting of two pages as her Last Will and Testament, and
has signed the same in our presence, and in witness
whereof we have each signed the same and each page
thereof in the presence of said testatrix and in the presence
of each other," held not to be fatally defective and to conform
to the law.
This very different from the attestation clause in the case at
bar.
In the case of Grey vs. Fabie * (40 Off. Gaz., 1st
Supplement, 196, No. 3, May 23, 1939), the will was
objected to on the ground that, although the attestation
clause stated that "each of the pages of which the said will is
composed" was signed by the testatrix at the left margin and
at the foot of the fifth page, it did not state that the signature
was made in the presence of the witnesses. It was held,
however, that said deficiency was cured by the phrase "as
well as by each of us in the presence of the testatrix." The
words "as well as" indicate that the testatrix signed also in
the presence of the witnesses, for the phrase "as well as" in
this case is equivalent to "also." The language is clear and,
unlike the attestation clause in the present case, does not
necessitate any correction. In the body of the will the testatrix
stated that she signed in the presence of each and all of the
three witnesses. This was considered as a corroboration, but
it was unnecessary.
In the case of Leynez vs. Leynez (40 Off. Gaz., 3rd
Supplement, 51, 52, No. 7, October 18, 1939; 68 Phil., 745),
the attestation clause reads as follows:
Suscrito y declarado por el testador Valerio Leynez, como su
ultima voluntad y testamento en presencia de todos y cada
uno de nosotros, y a ruego de dicho testador, firmamos el
presente cada uno en presencia de los otros, o de los
demas y de la del mismo testsador, Valerio Leynez. El
testamento consta de dos (2) paginas solamente.
The objection was that the attestation clause did not state
that the testator and the witnesses signed each and every
page of the will. This fact , however, appears in the will itself.
It is clear, therefore, that in case of the will complied with all
the requisites for its due execution. In the instant case,
essential words were omitted.
In the case of Alcala vs. De Villa 1 (40 Off. Gaz., 14th
Supplement, 131, 134-135, No. 23, April 18, 1939), the
attestation clause reads as follows:
Hacemos constar que en la fecha y pueblo arriba
mencionadios otorgo el Sr. Emiliano Alcala su ultima
voluntad o testamentao compuesto de cuatro paginas
incluida ya esta clasula de atestiguamiento. Que estabamos
presentes en el momento de leer y ratificar el que el
testamento arriba mencionado es su ultima voluntad o
testamento compuesto de cuatro paginasen papel de

maquinilla. Que igualmente estabamos presentes cuando el
firmo este documento al pie del mismo y en el margen
izquierdo de cada pagina del testador tambien en presencia
suya y de cada uno de nosotros en cada pagina y en el
margen izquierdo de esta escritura o testamento. En su
testimonio firmamos abajo en prsencia del testador y de
cada uno de nosotros.
The above attestation clause is substantially perfect. The
only clerical error is that it says "testador" instead of
"testamento" in the phrase "cada pagina del testador." The
word "tambien" renders unnecessary the use of the verb
"firmamos."
In the case of Mendoza vs. Pilapil 2 (40 Off. Gaz., 1855, No.
9, June 27, 1941), the attestation clause did not state the
number of pages of the will. However, it was held that this
deficiency was cured by the will itself, which stated that it
consisted of three pages and in fact it had three pages.
In the case of Rallos vs. Rallos (44 Off. Gaz., 4938, 4940,
No. 12, October 23, 1947), decided by the Court of Appeals,
the attestation clause (translated in Spanish) reads as
follows:
Nosotros, los testigos, certificamos que este que hemos
firmado es el testamento y ultima voluntad, que se ha
redactado en cuatro paginas, de Numeriano Rallos, quien
despues de leer y de leer y de leerle el mencionado
testamento, y despues de que ella dio su conformidad, firmo
y marco con su dedo pulgar derecho en nuestra presencia y
en presencia de cada uno de nosotros, que asimismo cada
uno de nosotros, los testigos, firmamos enpresencia de la
testadora y en presencia de cada uno de nosotros.
It will be noticed that the only thing omitted is the statement
as to the signing of the testatrix and the witnesses of each
and every page of the will, but the omission is cured by the
fact that their signatures appear on every page. This
attestation clause is different from that involved in the
present case.
There is no reason why wills should not be executed by
complying substantially with the clear requisites of the law,
leaving it to the courts to supply essential elements. The right
to dispose of property by will is not natural but statutory, and
statutory requirements should be satisfied.
The right to make a testamentary disposition of one's
property is purely of statutory creation, and is available only
upon the compliance with the requirements of the statute.
The formalities which the Legislature has prescribed for the
execution of a will are essential to its validity, and cannot be
disregarded. The mode so prescribed is the measure for the
exercise of the right, and the heir can be deprived of his
inheritance only by a compliance with this mode. For the
purpose of determining whether a will has been properly
executed, the intention of the testator in executing it is
entitled to no consideration. For that purpose only intention
of the Legislature, as expressed in the language of the
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 10
COMPILATION OF CASES (Page 2 of 9)
statute, can be considered by the court, and whether the will
as presented, shows a compliance with the statute. Estate of
Walker, 110 Cal., 387, 42 Pac., 815, 30 L. R. A., 460, 52 Am.
St. Rep. 104. In re Seaman's Estate, 80 Pac., 700, 701.)
In interpreting the legislature's thought, courts have rigidly
opposed any exception tending to weaken the basic principle
underlying the law, the chief purpose of which is to see that
the testator's wishes are observed. It is possible, in some or
many cases, a decedent may have thought he had made a
will, but the statute says he had not. The question is not one
of his intention, but of what he actually did, or . . . failed to
do. . . . It may happen . . . that . . . wills . . . truly expressing
the intertions of the testator are made without observations
of the required forms; and whenever that happens, the
genuine intention is frustrated. . . . The Legislature . . . has
taught of it best and has therefore determined, to run the risk
of frustrating (that intention, . . . in preference to the risk of
giving effect to or facilitating the formation of spurious wills,
by the absence of forms. . . . The evil probably to arise by
giving to wills made without any form, . . ." or, in derogation
of testator's wishes, fraudulently imposing spurious wills on
his effect on his estate. Churchill's Estate, 260 Pac. 94, 101,
103 Atl. 533.
It has always been the policy of this court to sustain a will if it
is legally possible to do so, but we cannot break down the
legislative barriers protecting a man's property after death,
even if a situation may be presented apparently meritorious.
(In Re: Maginn, 30 A. L. R., pp. 419, 420.)
In view of the foregoing, the decision appealed from is
reversed, denying the probate of the alleged will and
declaring intestate the estate of the deceased Carlos Gil.
With costs against the appellee. It is so ordered.
MONTINOLA v. HERBOSA
(Court of Appeals Case)

MERZA v. PORRAS
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4888 May 25, 1953
JOSE MERZA, petitioner,
vs.
PEDRO LOPEZ PORRAS, respondent.
Primicias, Abad, Mencies & Castillo for petitioner.
Moises Ma. Buhain for respondent.
TUAZON , J.:
This is an appeal from the Court of Appeals which affirmed
an order of the Court of First Instance of Zambales denying
the probate of the last will and testament and
so-called codicil, identified as Exhibits A and B, of Pilar
Montealegre, deceased. The testatrix was survived by the
husband and collateral relatives, some of whom, along with
the husband, were disinherited in Exhibit B for the reasons
set forth therein.
The opposition to Exhibit A was predicated on alleged
defects of the attestation clause. Written in the local dialect
known to the testatrix, the attestation clause, as translated
into English in the record on appeal, reads:
The foregoing instrument consisting of three pages, on the
date above-mentioned, was executed, signed and published
by testatrix Pilar Montealegre and she declared that the said
instrument is her last will and testament; that in our presence
and also in the very presence of the said testatrix as likewise
in the presence of two witnesses and the testatrix each of us
three witnesses signed this a testament.
The opponent objected that this clause did not estate that
the tetratrix and the witnesses had signed each and every
page of the will or that she had signed the instrument in the
presence of the witnesses. The Appellate Court dismissed
the first objection, finding that "failure to estate in the
attestation clause in question that the testatrix and/or the
witnesses had signed each and every page of Exhibit A were
cured by the fact that each one of the page of the instrument
appears to be signed by the testatrix and the three attesting
witnesses (Nayve vs. Mojal, 47 Phil., 152, (1924); Ticson vs.
Gorostiza, 57 Phil., (1932); Leynes vs. Leynes, 40 Off. Gaz.,
3rd Suppl. (October 18, 1939), 510, 528; Rallos vs. Rallos,
44 Off. Gaz., 4938, 4940)." But granting the correctness of
the premise, the court held the second objection well taken
and thus concluded: "The question whether the testatrix had
signed in the presence of said witnesses can not be verified
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 11
COMPILATION OF CASES (Page 2 of 9)
upon physical examination of the instrument. Hence, the
absence of the require statement in said clause may not,
pursuant to the decisions of the Supreme Court, be offset by
proof aliunde even if admitted without any objection."
The premise of the conclusion is, in our opinion, incorrect.
It must be admitted that the attestation clause was very poor
drawn, its language exceedingly ungrammatical to the point
of being difficult to understand; but from a close examination
of the whole context in relation to its purpose the implication
seems clear that the testatrix signed in the presence of the
witnesses. Considering that the witnesses' only business at
hand was to sign and attest to the testatrix's signing of the
document, and that the only actors of the proceeding were
the maker and the witnesses acting and speaking collectively
and in the first person, the phrase "in our presence," used as
it was in connection with the process of signing, can not
imply anything but the testatrix signed before them. No other
inference is possible. The prepositional phrase "in our
presence" denotes an active verb and the verb a subject.
The verb could not be other than signed and the subject no
other than the testatrix.
The use of the word "also" is no less enlightening. It denotes
that, as each of the witnesses sign in the presence of the
testatrix and of one another, so the testatrix sign in similar or
like manner in their presence.
In consonance with the principle of the liberal interpretation,
adhered to in numerous later decision of this Court and
affirmed and translated into inactment in the new Civil Code
(Article 827), we are constrained to hold the attestation
clause under consideration sufficient and valid.
"Precision of language in the drafting of the attestation
clause is desirable. However, it is not imperative that a
parrot-like copy of the word of the statue 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." (Ticson vs. Gorostiza, supra.)
"It could have been the intention of the legislature in
providing for the essential safeguards in the execution of a
will to shackle the very right of the testamentary disposition
which the law recognizes and holds sacred." (Leynes vs.
Leynes, supra.)
With reference of Exhibit B the Court of Appeal agreed with
the trial court that the document having been executed one
day before Exhibit A could not be considered as a codicil
"because a codicil, as the word implies, is only an addition
to, or modification of, the will." The Court of Appeals added
that "the content of Exhibit B are couched in the language of
ordinarily used in a simple affidavit and as such, may not
have the legal effect and force to a testamentary disposition."
Furthermore, the Court of Appeals observed, disinheritance
"may not be made in any instrument other than the will of
Exhibit A, as expressly provided for in article 849 of the Civil
Code," and, "there being no disposition as to the

disinheritance of the oppositor, Pedro Lopez Porras (the
surviving spouse), in the said Exhibit A, it is quite clear that
he can not be disinherited in any other instrument including
Exhibit B, which is, as above stated, a simple affidavit."
Exhibit B does partake of the nature of a will. A will is defined
in article 667 of the Civil code of Spain as "the act by which a
persons dispose of all his property or a portion of it," and in
article 783 of the new Civil Code as "an act whereby a
person is permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of his estate, to
take effect after his death. Exhibit B comes within this
definition.
Being of testamentary character and having been made with
all the formalities of law, Exhibit B is entitled to probate as an
independent testementary desposition. In the absence of any
legal provision to the contrary and there is none in this
jurisdiction it is the general, well-established rule that two
separate and distinct wills may be probated if one does not
revoke the other (68 C.J., 885) and provided that the
statutory requirements relative to the execution of wills have
been complied with (Id. 881). As seen, Exhibit B embodied
all the requisites of a will, even free of such formal of literary
imperfections as are found in Exhibit A.
It also follows that Exhibit B is a legal and effective vehicle
for excluding lawful heirs from testate or intestate
succession. Article 849 of the Civil Code of Spain does not,
as the appealed decision seems to insinuate, require that the
disinheritance should be accomplished in the same
instrument by which the maker provides the disposition of his
or her property after his or death. This article merely provides
that "disinheritance can be affected only by a will (any will) in
which the legal cause upon which it is based is expressly
stated."
It is our judgment therefore that the instruments Exhibit A
and B admitted to probate, subject of courts to the right of
the disinherited person under particle 850 to contest the
disinheritance, and it is so ordered, with costs against the
appellee.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 12
COMPILATION OF CASES (Page 2 of 9)
VITUG v. CA
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 82027 March 29, 1990
ROMARICO G. VITUG, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and ROWENA
FAUSTINO-CORONA, respondents.
Rufino B. Javier Law Office for petitioner.
Quisumbing, Torres & Evangelista for private respondent.
SARMIENTO, J.:
This case is a chapter in an earlier suit decided by this Court
1 involving the probate of the two wills of the late Dolores
Luchangco Vitug, who died in New York, U. S.A., on
November 10, 1980, naming private respondent Rowena
Faustino-Corona executrix. In our said decision, we upheld
the appointment of Nenita Alonte as co-special administrator
of Mrs. Vitug's estate with her (Mrs. Vitug's) widower,
petitioner Romarico G. Vitug, pending probate.
On January 13, 1985, Romarico G. Vitug filed a motion
asking for authority from the probate court to sell certain
shares of stock and real properties belonging to the estate to
cover allegedly his advances to the estate in the sum of
P667,731.66, plus interests, which he claimed were personal
funds. As found by the Court of Appeals, 2 the alleged
advances consisted of P58,147.40 spent for the payment of
estate tax, P518,834.27 as deficiency estate tax, and
P90,749.99 as "increment thereto." 3 According to Mr. Vitug,
he withdrew the sums of P518,834.27 and P90,749.99 from
savings account No. 35342-038 of the Bank of America,
Makati, Metro Manila.
On April 12, 1985, Rowena Corona opposed the motion to
sell on the ground that the same funds withdrawn from
savings account No. 35342-038 were conjugal partnership
properties and part of the estate, and hence, there was
allegedly no ground for reimbursement. She also sought his
ouster for failure to include the sums in question for inventory
and for "concealment of funds belonging to the estate." 4
Vitug insists that the said funds are his exclusive property
having acquired the same through a survivorship agreement
executed with his late wife and the bank on June 19, 1970.
The agreement provides:

We hereby agree with each other and with the BANK OF
AMERICAN NATIONAL TRUST AND SAVINGS
ASSOCIATION (hereinafter referred to as the BANK), that all
money now or hereafter deposited by us or any or either of
us with the BANK in our joint savings current account shall
be the property of all or both of us and shall be payable to
and collectible or withdrawable by either or any of us during
our lifetime, and after the death of either or any of us shall
belong to and be the sole property of the survivor or
survivors, and shall be payable to and collectible or
withdrawable by such survivor or survivors.
We further agree with each other and the BANK that the
receipt or check of either, any or all of us during our lifetime,
or the receipt or check of the survivor or survivors, for any
payment or withdrawal made for our above-mentioned
account shall be valid and sufficient release and discharge of
the BANK for such payment or withdrawal. 5
The trial courts 6 upheld the validity of this agreement and
granted "the motion to sell some of the estate of Dolores L.
Vitug, the proceeds of which shall be used to pay the
personal funds of Romarico Vitug in the total sum of
P667,731.66 ... ." 7
On the other hand, the Court of Appeals, in the petition for
certiorari filed by the herein private respondent, held that the
above-quoted survivorship agreement constitutes a
conveyance mortis causa which "did not comply with the
formalities of a valid will as prescribed by Article 805 of the
Civil Code," 8 and secondly, assuming that it is a mere
donation inter vivos, it is a prohibited donation under the
provisions of Article 133 of the Civil Code. 9
The dispositive portion of the decision of the Court of
Appeals states:
WHEREFORE, the order of respondent Judge dated
November 26, 1985 (Annex II, petition) is hereby set aside
insofar as it granted private respondent's motion to sell
certain properties of the estate of Dolores L. Vitug for
reimbursement of his alleged advances to the estate, but the
same order is sustained in all other respects. In addition,
respondent Judge is directed to include provisionally the
deposits in Savings Account No. 35342-038 with the Bank of
America, Makati, in the inventory of actual properties
possessed by the spouses at the time of the decedent's
death. With costs against private respondent. 10
In his petition, Vitug, the surviving spouse, assails the
appellate court's ruling on the strength of our decisions in
Rivera v. People's Bank and Trust Co. 11 and Macam v.
Gatmaitan 12 in which we sustained the validity of
"survivorship agreements" and considering them as aleatory
contracts. 13
The petition is meritorious.
The conveyance in question is not, first of all, one of mortis
causa, which should be embodied in a will. A will has been
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 13
COMPILATION OF CASES (Page 2 of 9)
defined as "a personal, solemn, revocable and free act by
which a capacitated person disposes of his property and
rights and declares or complies with duties to take effect
after his death." 14 In other words, the bequest or device
must pertain to the testator. 15 In this case, the monies
subject of savings account No. 35342-038 were in the nature
of conjugal funds In the case relied on, Rivera v. People's
Bank and Trust Co., 16 we rejected claims that a survivorship
agreement purports to deliver one party's separate
properties in favor of the other, but simply, their joint
holdings:
xxx xxx xxx
... Such conclusion is evidently predicated on the assumption
that Stephenson was the exclusive owner of the funds-
deposited in the bank, which assumption was in turn based
on the facts (1) that the account was originally opened in the
name of Stephenson alone and (2) that Ana Rivera "served
only as housemaid of the deceased." But it not infrequently
happens that a person deposits money in the bank in the
name of another; and in the instant case it also appears that
Ana Rivera served her master for about nineteen years
without actually receiving her salary from him. The fact that
subsequently Stephenson transferred the account to the
name of himself and/or Ana Rivera and executed with the
latter the survivorship agreement in question although there
was no relation of kinship between them but only that of
master and servant, nullifies the assumption that Stephenson
was the exclusive owner of the bank account. In the
absence, then, of clear proof to the contrary, we must give
full faith and credit to the certificate of deposit which recites
in effect that the funds in question belonged to Edgar
Stephenson and Ana Rivera; that they were joint (and
several) owners thereof; and that either of them could
withdraw any part or the whole of said account during the
lifetime of both, and the balance, if any, upon the death of
either, belonged to the survivor. 17
xxx xxx xxx
In Macam v. Gatmaitan, 18 it was held:
xxx xxx xxx
This Court is of the opinion that Exhibit C is an aleatory
contract whereby, according to article 1790 of the Civil Code,
one of the parties or both reciprocally bind themselves to
give or do something as an equivalent for that which the
other party is to give or do in case of the occurrence of an
event which is uncertain or will happen at an indeterminate
time. As already stated, Leonarda was the owner of the
house and Juana of the Buick automobile and most of the
furniture. By virtue of Exhibit C, Juana would become the
owner of the house in case Leonarda died first, and
Leonarda would become the owner of the automobile and
the furniture if Juana were to die first. In this manner
Leonarda and Juana reciprocally assigned their respective
property to one another conditioned upon who might die first,
the time of death determining the event upon which the
 WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 14
COMPILATION OF CASES (Page 2 of 9)

acquisition of such right by the one or the other depended. the risk was the death of one party and survivorship of the
This contract, as any other contract, is binding upon the other.
parties thereto. Inasmuch as Leonarda had died before
Juana, the latter thereupon acquired the ownership of the However, as we have warned:
house, in the same manner as Leonarda would have
acquired the ownership of the automobile and of the furniture xxx xxx xxx
if Juana had died first. 19

But although the survivorship agreement is per se not

xxx xxx xxx
There is no showing that the funds exclusively belonged to
one party, and hence it must be presumed to be conjugal,
having been acquired during the existence of the marita.
relations. 20
Neither is the survivorship agreement a donation inter vivos,
for obvious reasons, because it was to take effect after the
death of one party. Secondly, it is not a donation between
the spouses because it involved no conveyance of a
spouse's own properties to the other.
It is also our opinion that the agreement involves no
modification petition of the conjugal partnership, as held by
the Court of Appeals, 21 by "mere stipulation" 22 and that it is
no "cloak" 23 to circumvent the law on conjugal property
relations. Certainly, the spouses are not prohibited by law to
invest conjugal property, say, by way of a joint and several
bank account, more commonly denominated in banking
parlance as an "and/or" account. In the case at bar, when the
spouses Vitug opened savings account No. 35342-038, they
merely put what rightfully belonged to them in a money-
making venture. They did not dispose of it in favor of the
other, which would have arguably been sanctionable as a
prohibited donation. And since the funds were conjugal, it
can not be said that one spouse could have pressured the
other in placing his or her deposits in the money pool.
contrary to law its operation or effect may be violative of the
law. For instance, if it be shown in a given case that such
agreement is a mere cloak to hide an inofficious donation, to
transfer property in fraud of creditors, or to defeat the
legitime of a forced heir, it may be assailed and annulled
upon such grounds. No such vice has been imputed and
established against the agreement involved in this case. 26
xxx xxx xxx
There is no demonstration here that the survivorship
agreement had been executed for such unlawful purposes,
or, as held by the respondent court, in order to frustrate our
laws on wills, donations, and conjugal partnership.
The conclusion is accordingly unavoidable that Mrs. Vitug
having predeceased her husband, the latter has acquired
upon her death a vested right over the amounts under
savings account No. 35342-038 of the Bank of America.
Insofar as the respondent court ordered their inclusion in the
inventory of assets left by Mrs. Vitug, we hold that the court
was in error. Being the separate property of petitioner, it
forms no more part of the estate of the deceased.
WHEREFORE, the decision of the respondent appellate
court, dated June 29, 1987, and its resolution, dated
February 9, 1988, are SET ASIDE.

No costs.
The validity of the contract seems debatable by reason of its
"survivor-take-all" feature, but in reality, that contract
imposed a mere obligation with a term, the term being death. SO ORDERED.
Such agreements are permitted by the Civil Code. 24

Under Article 2010 of the Code:

ART. 2010. By an aleatory contract, one of the parties or

both reciprocally bind themselves to give or to do something
in consideration of what the other shall give or do upon the
happening of an event which is uncertain, or which is to
occur at an indeterminate time.

Under the aforequoted provision, the fulfillment of an aleatory

contract depends on either the happening of an event which
is (1) "uncertain," (2) "which is to occur at an indeterminate
time." A survivorship agreement, the sale of a sweepstake
ticket, a transaction stipulating on the value of currency, and
insurance have been held to fall under the first category,
while a contract for life annuity or pension under Article 2021,
et sequentia, has been categorized under the second. 25 In
either case, the element of risk is present. In the case at bar,
 WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 15
COMPILATION OF CASES (Page 2 of 9)

SEANGIO v. REYES 1995, disinheriting one of the private respondents, Alfredo

Seangio, for cause. In view of the purported holographic will,
petitioners averred that in the event the decedent is found to
Republic of the Philippines
SUPREME COURT have left a will, the intestate proceedings are to be
automatically suspended and replaced by the proceedings
Manila
for the probate of the will.

SECOND DIVISION
On April 7, 1999, a petition for the probate of the holographic
will of Segundo, docketed as SP. Proc. No. 9993396, was
G.R. Nos. 140371-72 November 27, 2006
filed by petitioners before the RTC. They likewise reiterated
that the probate proceedings should take precedence over
DY YIENG SEANGIO, BARBARA D. SEANGIO and SP. Proc. No. 9890870 because testate proceedings take
VIRGINIA D. SEANGIO, Petitioners, precedence and enjoy priority over intestate proceedings.2
vs.
HON. AMOR A. REYES, in her capacity as Presiding
The document that petitioners refer to as Segundos
Judge, Regional Trial Court, National Capital Judicial
holographic will is quoted, as follows:
Region, Branch 21, Manila, ALFREDO D. SEANGIO,
ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS,
Kasulatan sa pag-aalis ng mana
VICTOR D. SEANGIO, ALFONSO D. SEANGIO, SHIRLEY
D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS and JAMES
D. SEANGIO, Respondents. Tantunin ng sinuman

Ako si Segundo Seangio Filipino may asawa naninirahan sa

DECISION
AZCUNA, J.:
This is a petition for certiorari1 with application for the
issuance of a writ of preliminary injunction and/or temporary
restraining order seeking the nullification of the orders, dated
August 10, 1999 and October 14, 1999, of the Regional Trial
Court of Manila, Branch 21 (the RTC), dismissing the petition
for probate on the ground of preterition, in the consolidated
cases, docketed as SP. Proc. No. 98-90870 and SP. Proc.
No. 99-93396, and entitled, "In the Matter of the Intestate
Estate of Segundo C. Seangio v. Alfredo D. Seangio, et al."
and "In the Matter of the Probate of the Will of Segundo C.
Seangio v. Dy Yieng Seangio, Barbara D. Seangio and
Virginia Seangio."
The facts of the cases are as follows:
465-A Flores St., Ermita, Manila at nagtatalay ng maiwanag
na pag-iisip at disposisyon ay tahasan at hayagang inaalisan
ko ng lahat at anumang mana ang paganay kong anak na si
Alfredo Seangio dahil siya ay naging lapastangan sa akin at
isan beses siya ng sasalita ng masama harapan ko at mga
kapatid niya na si Virginia Seangio labis kong kinasama ng
loob ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw
gayon gunit daratin ang araw na ako nasa ilalim siya at siya
nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng
akin pagalan para makapagutang na kuarta siya at kanya
asawa na si Merna de los Reyes sa China Bangking
Corporation na millon pesos at hindi ng babayad at hindi ng
babayad ito ay nagdulot sa aking ng malaking kahihiya sa
mga may-ari at stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang
asawa na mga custome[r] ng Travel Center of the Philippines
na pinagasiwaan ko at ng anak ko si Virginia.

On September 21, 1988, private respondents filed a petition

Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo
for the settlement of the intestate estate of the late Segundo
ng anak ko at hayanan kong inaalisan ng lahat at anoman
Seangio, docketed as Sp. Proc. No. 9890870 of the RTC,
mana na si Alfredo at si Alfredo Seangio ay hindi ko siya
and praying for the appointment of private respondent Elisa
anak at hindi siya makoha mana.
D. SeangioSantos as special administrator and guardian ad
litem of petitioner Dy Yieng Seangio.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod
ng Manila sa harap ng tatlong saksi. 3
Petitioners Dy Yieng, Barbara and Virginia, all surnamed
Seangio, opposed the petition. They contended that: 1) Dy
(signed)
Yieng is still very healthy and in full command of her
faculties; 2) the deceased Segundo executed a general
power of attorney in favor of Virginia giving her the power to Segundo Seangio
manage and exercise control and supervision over his
business in the Philippines; 3) Virginia is the most competent Nilagdaan sa harap namin
and qualified to serve as the administrator of the estate of
Segundo because she is a certified public accountant; and, (signed)
4) Segundo left a holographic will, dated September 20,

Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners motion, SP. Proc. No.
9890870 and SP. Proc. No. 9993396 were consolidated.4
On July 1, 1999, private respondents moved for the
dismissal of the probate proceedings 5 primarily on the
ground that the document purporting to be the holographic
will of Segundo does not contain any disposition of the
estate of the deceased and thus does not meet the definition
of a will under Article 783 of the Civil Code. According to
private respondents, the will only shows an alleged act of
disinheritance by the decedent of his eldest son, Alfredo, and
nothing else; that all other compulsory heirs were not named
nor instituted as heir, devisee or legatee, hence, there is
preterition which would result to intestacy. Such being the
case, private respondents maintained that while procedurally
the court is called upon to rule only on the extrinsic validity of
the will, it is not barred from delving into the intrinsic validity
of the same, and ordering the dismissal of the petition for
probate when on the face of the will it is clear that it contains
no testamentary disposition of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss
contending that: 1) generally, the authority of the probate
court is limited only to a determination of the extrinsic validity
of the will; 2) private respondents question the intrinsic and
not the extrinsic validity of the will; 3) disinheritance
constitutes a disposition of the estate of a decedent; and, 4)
the rule on preterition does not apply because Segundos will
does not constitute a universal heir or heirs to the exclusion
of one or more compulsory heirs.6
On August 10, 1999, the RTC issued its assailed order,
dismissing the petition for probate proceedings:
A perusal of the document termed as "will" by
oppositors/petitioners Dy Yieng Seangio, et al., clearly shows
that there is preterition, as the only heirs mentioned thereat
are Alfredo and Virginia. [T]he other heirs being omitted,
Article 854 of the New Civil Code thus applies. However,
insofar as the widow Dy Yieng Seangio is concerned, Article
854 does not apply, she not being a compulsory heir in the
direct line.
As such, this Court is bound to dismiss this petition, for to do
otherwise would amount to an abuse of discretion. The
Supreme Court in the case of Acain v. Intermediate
Appellate Court [155 SCRA 100 (1987)] has made its
position clear: "for respondents to have tolerated the
probate of the will and allowed the case to progress when,
on its face, the will appears to be intrinsically void would
have been an exercise in futility. It would have meant a
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 16
COMPILATION OF CASES (Page 2 of 9)
waste of time, effort, expense, plus added futility. The trial
court could have denied its probate outright or could have
passed upon the intrinsic validity of the testamentary
provisions before the extrinsic validity of the will was
resolved (underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend
Proceedings is hereby DENIED for lack of merit. Special
Proceedings No. 9993396 is hereby DISMISSED without
pronouncement as to costs.
SO ORDERED.7
Petitioners motion for reconsideration was denied by the
RTC in its order dated October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER
JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND DECIDED A QUESTION OF LAW
NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN
ISSUING THE QUESTIONED ORDERS, DATED 10
AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS
"A" AND "B" HEREOF) CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN
COMPLYING WITH SECTIONS 3 AND 4 OF RULE 76 OF
THE RULES OF COURT ON THE PROPER PROCEDURE
FOR SETTING THE CASE FOR INITIAL HEARING FOR
THE ESTABLISHMENT OF THE JURISDICTIONAL FACTS,
DISMISSED THE TESTATE CASE ON THE ALLEGED
GROUND THAT THE TESTATORS WILL IS VOID
ALLEGEDLY BECAUSE OF THE EXISTENCE OF
PRETERITION, WHICH GOES INTO THE INTRINSIC
VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS
A SETTLED RULE THAT THE AUTHORITY OF PROBATE
COURTS IS LIMITED ONLY TO A DETERMINATION OF
THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE
EXECUTION THEREOF, THE TESTATORS
TESTAMENTARY CAPACITY AND THE COMPLIANCE
WITH THE REQUISITES OR SOLEMNITIES PRESCRIBED
BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT
JUDGE HAS THE AUTHORITY TO RULE UPON THE
INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR,
IT IS INDUBITABLE FROM THE FACE OF THE
TESTATORS WILL THAT NO PRETERITON EXISTS AND
THAT THE WILL IS BOTH INTRINSICALLY AND
EXTRINSICALLY VALID; AND,

III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND
THE PROCEEDINGS IN THE INTESTATE CASE
CONSIDERING THAT IT IS A SETTLED RULE THAT
TESTATE PROCEEDINGS TAKE PRECEDENCE OVER
INTESTATE PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with Sections 3 and 4
of Rule 76 of the Rules of Court which respectively mandate
the court to: a) fix the time and place for proving the will
when all concerned may appear to contest the allowance
thereof, and cause notice of such time and place to be
published three weeks successively previous to the
appointed time in a newspaper of general circulation; and, b)
cause the mailing of said notice to the heirs, legatees and
devisees of the testator Segundo;
Second, the holographic will does not contain any institution
of an heir, but rather, as its title clearly states, Kasulatan ng
Pag-Aalis ng Mana, simply contains a disinheritance of a
compulsory heir. Thus, there is no preterition in the
decedents will and the holographic will on its face is not
intrinsically void;
Third, the testator intended all his compulsory heirs,
petitioners and private respondents alike, with the sole
exception of Alfredo, to inherit his estate. None of the
compulsory heirs in the direct line of Segundo were
preterited in the holographic will since there was no
institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the
holographic will that it is both intrinsically and extrinsically
valid, respondent judge was mandated to proceed with the
hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate
case will work injustice to petitioners, and will render
nugatory the disinheritance of Alfredo.
The purported holographic will of Segundo that was
presented by petitioners was dated, signed and written by
him in his own handwriting. Except on the ground of
preterition, private respondents did not raise any issue as
regards the authenticity of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana,
unmistakably showed Segundos intention of excluding his
eldest son, Alfredo, as an heir to his estate for the reasons
that he cited therein. In effect, Alfredo was disinherited by
Segundo.
For disinheritance to be valid, Article 916 of the Civil Code
requires that the same must be effected through a will
wherein the legal cause therefor shall be specified. With
regard to the reasons for the disinheritance that were stated
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 17
COMPILATION OF CASES (Page 2 of 9)
by Segundo in his document, the Court believes that the
incidents, taken as a whole, can be considered a form of
maltreatment of Segundo by his son, Alfredo, and that the
matter presents a sufficient cause for the disinheritance of a
child or descendant under Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for the
disinheritance of children and descendants, legitimate as
well as illegitimate:
(1) When a child or descendant has been found guilty of an
attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(2) When a child or descendant has accused the testator of a
crime for which the law prescribes imprisonment for six years
or more, if the accusation has been found groundless;
(3) When a child or descendant has been convicted of
adultery or concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator to make
a will or to change one already made;
(5) A refusal without justifiable cause to support the parents
or ascendant who disinherit such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child
or descendant;8
(7) When a child or descendant leads a dishonorable or
disgraceful life;
(8) Conviction of a crime which carries with it the penalty of
civil interdiction.
Now, the critical issue to be determined is whether the
document executed by Segundo can be considered as a
holographic will.
A holographic will, as provided under Article 810 of the Civil
Code, must be entirely written, dated, and signed by the
hand of the testator himself. It is subject to no other form,
and may be made in or out of the Philippines, and need not
be witnessed.
Segundos document, although it may initially come across
as a mere disinheritance instrument, conforms to the
formalities of a holographic will prescribed by law. It is
written, dated and signed by the hand of Segundo himself.
An intent to dispose mortis causa[9] can be clearly deduced
from the terms of the instrument, and while it does not make
an affirmative disposition of the latters property, the
disinheritance of Alfredo, nonetheless, is an act of disposition
in itself. In other words, the disinheritance results in the
disposition of the property of the testator Segundo in favor of
those who would succeed in the absence of Alfredo.10

Moreover, it is a fundamental principle that the intent or the
will of the testator, expressed in the form and within the limits
prescribed by law, must be recognized as the supreme law in
succession. All rules of construction are designed to
ascertain and give effect to that intention. It is only when the
intention of the testator is contrary to law, morals, or public
policy that it cannot be given effect.11
Holographic wills, therefore, being usually prepared by one
who is not learned in the law, as illustrated in the present
case, should be construed more liberally than the ones
drawn by an expert, taking into account the circumstances
surrounding the execution of the instrument and the intention
of the testator.12 In this regard, the Court is convinced that
the document, even if captioned as Kasulatan ng Pag-Aalis
ng Mana, was intended by Segundo to be his last
testamentary act and was executed by him in accordance
with law in the form of a holographic will. Unless the will is
probated,13 the disinheritance cannot be given effect.14
With regard to the issue on preterition,15 the Court believes
that the compulsory heirs in the direct line were not preterited
in the will. It was, in the Courts opinion, Segundos last
expression to bequeath his estate to all his compulsory heirs,
with the sole exception of Alfredo. Also, Segundo did not
institute an heir16 to the exclusion of his other compulsory
heirs. The mere mention of the name of one of the
petitioners, Virginia, in the document did not operate to
institute her as the universal heir. Her name was included
plainly as a witness to the altercation between Segundo and
his son, Alfredo.1wphi1
Considering that the questioned document is Segundos
holographic will, and that the law favors testacy over
intestacy, the probate of the will cannot be dispensed with.
Article 838 of the Civil Code provides that no will shall pass
either real or personal property unless it is proved and
allowed in accordance with the Rules of Court. Thus, unless
the will is probated, the right of a person to dispose of his
property may be rendered nugatory.17
In view of the foregoing, the trial court, therefore, should
have allowed the holographic will to be probated. It is settled
that testate proceedings for the settlement of the estate of
the decedent take precedence over intestate proceedings for
the same purpose.18
WHEREFORE, the petition is GRANTED. The Orders of the
Regional Trial Court of Manila, Branch 21, dated August 10,
1999 and October 14, 1999, are set aside. Respondent
judge is directed to reinstate and hear SP Proc. No. 99-
93396 for the allowance of the holographic will of Segundo
Seangio. The intestate case or SP. Proc. No. 98-90870 is
hereby suspended until the termination of the aforesaid
testate proceedings.
No costs.
SO ORDERED.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 18
COMPILATION OF CASES (Page 2 of 9)
ARTICLE 784
CASTAEDA v. ALEMANY
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 1439 March 19, 1904
ANTONIO CASTAEDA, plaintiff-appellee,
vs.
JOSE E. ALEMANY, defendant-appellant.
Ledesma, Sumulong and Quintos for appellant.
The court erred in holding that all legal formalities had been
complied with in the execution of the will of Doa Juana
Moreno, as the proof shows that the said will was not written
in the presence of under the express direction of the
testratrix as required by section 618 of the Code of Civil
Procedure.
Antonio V. Herrero for appellee.
The grounds upon which a will may be disallowed are limited
to those mentioned in section 634 of the Code of Civil
Procedure.
WILLARD, J.:
(1) The evidence in this case shows to our satisfaction that
the will of Doa Juana Moreno was duly signed by herself in
the presence of three witnesses, who signed it as witnesses
in the presence of the testratrix and of each other. It was
therefore executed in conformity with law.
There is nothing in the language of section 618 of the Code
of Civil Procedure which supports the claim of the appellants
that the will must be written by the testator himself or by
someone else in his presence and under his express
direction. That section requires (1) that the will be in writing
and (2) either that the testator sign it himself or, if he does
sign it, that it be signed by some one in his presence and by
his express direction. Who does the mechanical work of
writing the will is a matter of indifference. The fact, therefore,
that in this case the will was typewritten in the office of the
lawyer for the testratrix is of no consequence. The English
text of section 618 is very plain. The mistakes in translation
found in the first Spanish edition of the code have been
corrected in the second.
(2) To establish conclusively as against everyone, and once
for all, the facts that a will was executed with the formalities
required by law and that the testator was in a condition to

make a will, is the only purpose of the proceedings under the
new code for the probate of a will. (Sec. 625.) The judgment
in such proceedings determines and can determine nothing
more. In them the court has no power to pass upon the
validity of any provisions made in the will. It cannot decide,
for example, that a certain legacy is void and another one
valid. It could not in this case make any decision upon the
question whether the testratrix had the power to appoint by
will a guardian for the property of her children by her first
husband, or whether the person so appointed was or was
not a suitable person to discharge such trust.
All such questions must be decided in some other
proceeding. The grounds on which a will may be disallowed
are stated the section 634. Unless one of those grounds
appears the will must be allowed. They all have to do with
the personal condition of the testator at the time of its
execution and the formalities connected therewith. It follows
that neither this court nor the court below has any jurisdiction
in his proceedings to pass upon the questions raised by the
appellants by the assignment of error relating to the
appointment of a guardian for the children of the deceased.
It is claimed by the appellants that there was no testimony in
the court below to show that the will executed by the
deceased was the same will presented to the court and
concerning which this hearing was had. It is true that the
evidence does not show that the document in court was
presented to the witnesses and identified by them, as should
have been done. But we think that we are justified in saying
that it was assumed by all the parties during the trial in the
court below that the will about which the witnesses were
testifying was the document then in court. No suggestion of
any kind was then made by the counsel for the appellants
that it was not the same instrument. In the last question put
to the witness Gonzales the phrase "this will" is used by the
counsel for the appellants. In their argument in that court,
found on page 15 of the record, they treat the testimony of
the witnesses as referring to the will probate they were then
opposing.
The judgment of the court below is affirmed, eliminating
therefrom, however, the clause "el cual debera ejecutarse
fiel y exactamente en todas sus partes." The costs of this
instance will be charged against the appellants.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 19
COMPILATION OF CASES (Page 2 of 9)
ARTICLE 788
DIZON RIVERA v. DIZON
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-24561 June 30, 1970
MARINA DIZON-RIVERA, executrix-appellee,
vs.
ESTELA DIZON, TOMAS V. DIZON, BERNARDITA DIZON,
JOSEFINA DIZON, ANGELINA DIZON and LILIA DIZON,
oppositors-appellants.
Punzalan, Yabut & Eusebio for executrix-appellee.
Leonardo Abola for oppositors-appellants.
TEEHANKEE, J.:
Appeal from orders of the Court of First Instance of
Pampanga approving the Executrix-appellee's project of
partition instead of Oppositors-Appellants' proposed counter-
project of partition. 1
On January 28, 1961, the testatrix, Agripina J. Valdez, a
widow, died in Angeles, Pampanga, and was survived by
seven compulsory heirs, to wit, six legitimate children named
Estela Dizon, Tomas V. Dizon, Bernardita Dizon, Marina
Dizon (herein executrix-appellee), Angelina Dizon and
Josefina Dizon, and a legitimate granddaughter named Lilia
Dizon, who is the only legitimate child and heir of Ramon
Dizon, a pre-deceased legitimate son of the said decedent.
Six of these seven compulsory heirs (except Marina Dizon,
the executrix-appellee) are the oppositors-appellants.
The deceased testatrix left a last will executed on February
2, 1960 and written in the Pampango dialect. Named
beneficiaries in her will were the above-named compulsory
heirs, together with seven other legitimate grandchildren,
namely Pablo Rivera, Jr., Gilbert D. Garcia, Cayetano Dizon,
Francisco Rivera, Agripina Ayson, Jolly Jimenez and
Laureano Tiambon.
In her will, the testatrix divided, distributed and disposed of
all her properties appraised at P1,801,960.00 (except two
small parcels of land appraised at P5,849.60, household
furniture valued at P2,500.00, a bank deposit in the sum of
P409.95 and ten shares of Pampanga Sugar Development
Company valued at P350.00) among her above-named
heirs.

Testate proceedings were in due course commenced 2 and
by order dated March 13, 1961, the last will and testament of
the decedent was duly allowed and admitted to probate, and
the appellee Marina Dizon-Rivera was appointed executrix of
the testatrix' estate, and upon her filing her bond and oath of
office, letters testamentary were duly issued to her.
After the executrix filed her inventory of the estate, Dr.
Adelaido Bernardo of Angeles, Pampanga was appointed
commissioner to appraise the properties of the estate. He
filed in due course his report of appraisal and the same was
approved in toto by the lower court on December 12, 1963
upon joint petition of the parties.
The real and personal properties of the testatrix at the time of
her death thus had a total appraised value of P1,811,695.60,
and the legitime of each of the seven compulsory heirs
amounted to P129,362.11. 3 (/7 of the half of the estate
reserved for the legitime of legitimate children and
descendants). 4 In her will, the testatrix "commanded that her
property be divided" in accordance with her testamentary
disposition, whereby she devised and bequeathed specific
real properties comprising practically the entire bulk of her
estate among her six children and eight grandchildren. The
appraised values of the real properties thus respectively
devised by the testatrix to the beneficiaries named in her will,
are as follows:
1. Estela Dizon ....................................... P 98,474.80
2. Angelina Dizon .................................. 106,307.06
3. Bernardita Dizon .................................. 51,968.17
4. Josefina Dizon ...................................... 52,056.39
5. Tomas Dizon ....................................... 131,987.41
6. Lilia Dizon .............................................. 72,182.47
7. Marina Dizon ..................................... 1,148,063.71
8. Pablo Rivera, Jr. ...................................... 69,280.00
9. Lilia Dizon, Gilbert Garcia,
Cayetano Dizon, Francisco Rivera,
Agripina Ayson, Dioli or Jolly
Jimenez, Laureano Tiamzon ................. 72,540.00
Total Value ...................... P1,801,960.01
The executrix filed her project of partition dated February 5,
1964, in substance adjudicating the estate as follows:
(1) with the figure of P129,254.96 as legitime for a basis
Marina (exacultrix-appellee) and Tomas (appellant) are
admittedly considered to have received in the will more than
their respective legitime, while the rest of the appellants,
namely, Estela, Bernardita, Angelina, Josefina and Lilia
received less than their respective legitime;
(2) thus, to each of the latter are adjudicated the properties
respectively given them in the will, plus cash and/or
properties, to complete their respective legitimes to
P129,254.96; (3) on the other hand, Marina and Tomas are
adjudicated the properties that they received in the will less
the cash and/or properties necessary to complete the
prejudiced legitime mentioned in number 2 above;
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 20
COMPILATION OF CASES (Page 2 of 9)
(4) the adjudications made in the will in favor of the
grandchildren remain untouched.<re||an1w>
On the other hand oppositors submitted their own counter-
project of partition dated February 14, 1964, wherein they
proposed the distribution of the estate on the following basis:
(a) all the testamentary dispositions were proportionally
reduced to the value of one-half () of the entire estate, the
value of the said one-half () amounting to P905,534.78; (b)
the shares of the Oppositors-Appellants should consist of
their legitime, plus the devises in their favor proportionally
reduced; (c) in payment of the total shares of the appellants
in the entire estate, the properties devised to them plus other
properties left by the Testatrix and/or cash are adjudicated to
them; and (d) to the grandchildren who are not compulsory
heirs are adjudicated the properties respectively devised to
them subject to reimbursement by Gilbert D. Garcia, et al., of
the sums by which the devise in their favor should be
proportionally reduced.
Under the oppositors' counter-project of partition, the
testamentary disposition made by the testatrix of practically
her whole estate of P1,801,960.01, as above stated, were
proposed to be reduced to the amounts set forth after the
names of the respective heirs and devisees totalling one-half
thereof as follows:
1. Estela Dizon ........................................... P 49,485.56
2. Angelina Dizon ......................................... 53,421.42
3. Bernardita Dizon ....................................... 26,115.04
4. Josefina Dizon .......................................... 26,159.38
5. Tomas V. Dizon ......................................... 65,874.04
6. Lilia Dizon .................................................. 36,273.13
7. Marina Dizon ........................................... 576,938.82
8. Pablo Rivera, Jr. ......................................... 34,814.50
9. Grandchildren Gilbert Garcia et al .......... 36,452.80
T o t a l ................................................... P905,534.78
while the other half of the estate (P905,534.78) would be
deemed as constituting the legitime of the executrix-appellee
and oppositors-appellants, to be divided among them in
seven equal parts of P129,362.11 as their respective
legitimes.
The lower court, after hearing, sustained and approved the
executrix' project of partition, ruling that "(A)rticles 906 and
907 of the New Civil Code specifically provide that when the
legitime is impaired or prejudiced, the same shall be
completed and satisfied. While it is true that this process has
been followed and adhered to in the two projects of partition,
it is observed that the executrix and the oppositors differ in
respect to the source from which the portion or portions shall
be taken in order to fully restore the impaired legitime. The
proposition of the oppositors, if upheld, will substantially
result in a distribution of intestacy, which is in controversion
of Article 791 of the New Civil Code" adding that "the
testatrix has chosen to favor certain heirs in her will for
reasons of her own, cannot be doubted. This is legally

permissible within the limitation of the law, as aforecited."
With reference to the payment in cash of some P230,552.38,
principally by the executrix as the largest beneficiary of the
will to be paid to her five co-heirs, the oppositors (excluding
Tomas Dizon), to complete their impaired legitimes, the
lower court ruled that "(T)he payment in cash so as to make
the proper adjustment to meet with the requirements of the
law in respect to legitimes which have been impaired is, in
our opinion, a practical and valid solution in order to give
effect to the last wishes of the testatrix."
From the lower court's orders of approval, oppositors-
appellants have filed this appeal, and raise anew the
following issues: .
1. Whether or not the testamentary dispositions made in the
testatrix' will are in the nature of devises imputable to the
free portion of her estate, and therefore subject to reduction;
2. Whether the appellants are entitled to the devise plus their
legitime under Article 1063, or merely to demand completion
of their legitime under Article 906 of the Civil Code; and
3. Whether the appellants may be compelled to accept
payment in cash on account of their legitime, instead of
some of the real properties left by the Testatrix;
which were adversely decided against them in the
proceedings below.
The issues raised present a matter of determining the
avowed intention of the testatrix which is "the life and soul of
a will." 5 In consonance therewith, our Civil Code included the
new provisions found in Articles 788 and 791 thereof that "(I)f
a testamentary disposition admits of different interpretations,
in case of doubt, that interpretation by which the disposition
is to be operative shall be preferred" and "(T)he words of a
will are to receive an interpretation which will give to every
expression some effect, rather than one which will render
any of the expressions inoperative; and of two modes of
interpreting a will, that is to be preferred which will prevent
intestacy." In Villanueva vs. Juico 6 for violation of these rules
of interpretation as well as of Rule 123, section 59 of the old
Rules of Court, 7 the Court, speaking through Mr. Justice
J.B.L. Reyes, overturned the lower court's decision and
stressed that "the intention and wishes of the testator, when
clearly expressed in his will, constitute the fixed law of
interpretation, and all questions raised at the trial, relative to
its execution and fulfillment, must be settled in accordance
therewith, following the plain and literal meaning of the
testator's words, unless it clearly appears that his intention
was otherwise." 8
The testator's wishes and intention constitute the first and
principal law in the matter of testaments, and to paraphrase
an early decision of the Supreme Court of Spain, 9 when
expressed clearly and precisely in his last will amount to the
only law whose mandate must imperatively be faithfully
obeyed and complied with by his executors, heirs and
devisees and legatees, and neither these interested parties
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 21
COMPILATION OF CASES (Page 2 of 9)
nor the courts may substitute their own criterion for the
testator's will. Guided and restricted by these fundamental
premises, the Court finds for the appellee.
1. Decisive of the issues at bar is the fact that the testatrix'
testamentary disposition was in the nature of a partition of
her estate by will. Thus, in the third paragraph of her will,
after commanding that upon her death all her obligations as
well as the expenses of her last illness and funeral and the
expenses for probate of her last will and for the
administration of her property in accordance with law, be
paid, she expressly provided that "it is my wish and I
command that my property be divided" in accordance with
the dispositions immediately thereafter following, whereby
she specified each real property in her estate and
designated the particular heir among her seven compulsory
heirs and seven other grandchildren to whom she
bequeathed the same. This was a valid partition 10 of her
estate, as contemplated and authorized in the first paragraph
of Article 1080 of the Civil Code, providing that "(S)hould a
person make a partition of his estate by an act inter vivos or
by will, such partition shall be respected, insofar as it does
not prejudice the legitime of the compulsory heirs." This right
of a testator to partition his estate is subject only to the right
of compulsory heirs to their legitime. The Civil Code thus
provides the safeguard for the right of such compulsory
heirs:
ART. 906. Any compulsory heir to whom the testator has left
by any title less than the legitime belonging to him may
demand that the same be fully satisfied.
ART. 907. Testamentary dispositions that impair or diminish
the legitime of the compulsory heirs shall be reduced on
petition of the same, insofar as they may be inofficious or
excessive.
This was properly complied with in the executrix-appellee's
project of partition, wherein the five oppositors-appellants
namely Estela, Bernardita, Angelina, Josefina and Lilia, were
adjudicated the properties respectively distributed and
assigned to them by the testatrix in her will, and the
differential to complete their respective legitimes of
P129,362.11 each were taken from the cash and/or
properties of the executrix-appellee, Marina, and their co-
oppositor-appellant, Tomas, who admittedly were favored by
the testatrix and received in the partition by will more than
their respective legitimes.
2. This right of a testator to partition his estate by will was
recognized even in Article 1056 of the old Civil Code which
has been reproduced now as Article 1080 of the present Civil
Code. The only amendment in the provision was that Article
1080 "now permits any person (not a testator, as under the
old law) to partition his estate by act inter vivos." 11 This was
intended to repeal the then prevailing doctrine 12 that for a
testator to partition his estate by an act inter vivos, he must
first make a will with all the formalities provided by law.
Authoritative commentators doubt the efficacy of the
amendment 13 but the question does not here concern us, for

this is a clear case of partition by will, duly admitted to
probate, which perforce must be given full validity and effect.
Aside from the provisions of Articles 906 and 907 above
quoted, other codal provisions support the executrix-
appellee's project of partition as approved by the lower court
rather than the counter-project of partition proposed by
oppositors-appellants whereby they would reduce the
testamentary disposition or partition made by the testatrix to
one-half and limit the same, which they would consider as
mere devises or legacies, to one-half of the estate as the
disposable free portion, and apply the other half of the estate
to payment of the legitimes of the seven compulsory heirs.
Oppositors' proposal would amount substantially to a
distribution by intestacy and pro tanto nullify the testatrix' will,
contrary to Article 791 of the Civil Code. It would further run
counter to the provisions of Article 1091 of the Civil Code
that "(A) partition legally made confers upon each heir the
exclusive ownership of the property adjudicated to him."
3. In Habana vs. Imbo, 14 the Court upheld the distribution
made in the will of the deceased testator Pedro Teves of two
large coconut plantations in favor of his daughter,
Concepcion, as against adverse claims of other compulsory
heirs, as being a partition by will, which should be respected
insofar as it does not prejudice the legitime of the
compulsory heirs, in accordance with Article 1080 of the Civil
Code. In upholding the sale made by Concepcion to a
stranger of the plantations thus partitioned in her favor in the
deceased's will which was being questioned by the other
compulsory heirs, the Court ruled that "Concepcion Teves by
operation of law, became the absolute owner of said lots
because 'A partition legally made confers upon each heir the
exclusive ownership of the property adjudicated to him'
(Article 1091, New Civil Code), from the death of her
ancestors, subject to rights and obligations of the latter, and,
she can not be deprived of her rights thereto except by the
methods provided for by law (Arts. 657, 659, and 661, Civil
Code). 15 Concepcion Teves could, as she did, sell the lots in
question as part of her share of the proposed partition of the
properties, especially when, as in the present case, the sale
has been expressly recognized by herself and her co-heirs
..."
4. The burden of oppositors' contention is that the
testamentary dispositions in their favor are in the nature of
devises of real property, citing the testatrix' repeated use of
the words "I bequeath" in her assignment or distribution of
her real properties to the respective heirs. From this
erroneous premise, they proceed to the equally erroneous
conclusion that "the legitime of the compulsory heirs passes
to them by operation of law and that the testator can only
dispose of the free portion, that is, the remainder of the
estate after deducting the legitime of the compulsory heirs ...
and all testamentary dispositions, either in the nature of
institution of heirs or of devises or legacies, have to be taken
from the remainder of the testator's estate constituting the
free portion." 16
Oppositors err in their premises, for the adjudications and
assignments in the testatrix' will of specific properties to
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 22
COMPILATION OF CASES (Page 2 of 9)
specific heirs cannot be considered all devises, for it clearly
appear from the whole context of the will and the disposition
by the testatrix of her whole estate (save for some small
properties of little value already noted at the beginning of this
opinion) that her clear intention was to partition her whole
estate through her will. The repeated use of the words "I
bequeath" in her testamentary dispositions acquire no legal
significance, such as to convert the same into devises to be
taken solely from the free one-half disposable portion of the
estate. Furthermore, the testatrix' intent that her
testamentary dispositions were by way of adjudications to
the beneficiaries as heirs and not as mere devisees, and that
said dispositions were therefore on account of the respective
legitimes of the compulsory heirs is expressly borne out in
the fourth paragraph of her will, immediately following her
testamentary adjudications in the third paragraph in this
wise: "FOURTH: I likewise command that in case any of
those I named as my heirs in this testament any of them
shall die before I do, his forced heirs under the law enforced
at the time of my death shall inherit the properties I bequeath
to said deceased." 17
Oppositors' conclusions necessarily are in error. The
testamentary dispositions of the testatrix, being dispositions
in favor of compulsory heirs, do not have to be taken only
from the free portion of the estate, as contended, for the
second paragraph of Article 842 of the Civil Code precisely
provides that "(O)ne who has compulsory heirs may dispose
of his estate provided he does not contravene the provisions
of this Code with regard to the legitime of said heirs." And
even going by oppositors' own theory of bequests, the
second paragraph of Article 912 Civil Code covers precisely
the case of the executrix-appellee, who admittedly was
favored by the testatrix with the large bulk of her estate in
providing that "(T)he devisee who is entitled to a legitime
may retain the entire property, provided its value does not
exceed that of the disposable portion and of the share
pertaining to him as legitime." For "diversity of apportionment
is the usual reason for making a testament; otherwise, the
decedent might as well die intestate." 18 Fundamentally, of
course, the dispositions by the testatrix constituted a partition
by will, which by mandate of Article 1080 of the Civil Code
and of the other cited codal provisions upholding the primacy
of the testator's last will and testament, have to be respected
insofar as they do not prejudice the legitime of the other
compulsory heirs.
Oppositors' invoking of Article 1063 of the Civil Code that
"(P)roperty left by will is not deemed subject to collation, if
the testator has not otherwise provided, but the legitime shall
in any case remain unimpaired" and invoking of the
construction thereof given by some authorities that "'not
deemed subject to collation' in this article really means not
imputable to or chargeable against the legitime", while it may
have some plausibility 19 in an appropriate case, has no
application in the present case. Here, we have a case of a
distribution and partition of the entire estate by the testatrix,
without her having made any previous donations during her
lifetime which would require collation to determine the
legitime of each heir nor having left merely some properties
by will which would call for the application of Articles 1061 to

1063 of the Civil Code on collation. The amount of the
legitime of the heirs is here determined and undisputed.
5. With this resolution of the decisive issue raised by
oppositors-appellants, the secondary issues are likewise
necessarily resolved. Their right was merely to demand
completion of their legitime under Article 906 of the Civil
Code and this has been complied with in the approved
project of partition, and they can no longer demand a further
share from the remaining portion of the estate, as
bequeathed and partitioned by the testatrix principally to the
executrix-appellee.
Neither may the appellants legally insist on their legitime
being completed with real properties of the estate instead of
being paid in cash, per the approved project of partition. The
properties are not available for the purpose, as the testatrix
had specifically partitioned and distributed them to her heirs,
and the heirs are called upon, as far as feasible to comply
with and give effect to the intention of the testatrix as
solemnized in her will, by implementing her manifest wish of
transmitting the real properties intact to her named
beneficiaries, principally the executrix-appellee. The
appraisal report of the properties of the estate as filed by the
commissioner appointed by the lower court was approved in
toto upon joint petition of the parties, and hence, there
cannot be said to be any question and none is presented
as to fairness of the valuation thereof or that the legitime
of the heirs in terms of cash has been understated. The
plaint of oppositors that the purchasing value of the
Philippine peso has greatly declined since the testatrix' death
in January, 1961 provides no legal basis or justification for
overturning the wishes and intent of the testatrix. The
transmission of rights to the succession are transmitted from
the moment of death of the decedent (Article 777, Civil
Code) and accordingly, the value thereof must be reckoned
as of then, as otherwise, estates would never be settled if
there were to be a revaluation with every subsequent
fluctuation in the values of the currency and properties of the
estate. There is evidence in the record that prior to
November 25, 1964, one of the oppositors, Bernardita,
accepted the sum of P50,000.00 on account of her
inheritance, which, per the parties' manifestation, 20 "does
not in any way affect the adjudication made to her in the
projects of partition of either party as the same is a mere
advance of the cash that she should receive in both projects
of partition." The payment in cash by way of making the
proper adjustments in order to meet the requirements of the
law on non-impairment of legitimes as well as to give effect
to the last will of the testatrix has invariably been availed of
and sanctioned. 21 That her co-oppositors would receive their
cash differentials only now when the value of the currency
has declined further, whereas they could have received them
earlier, like Bernardita, at the time of approval of the project
of partition and when the peso's purchasing value was
higher, is due to their own decision of pursuing the present
appeal.
ACCORDINGLY, the orders appealed from are hereby
affirmed. Without cost.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 23
COMPILATION OF CASES (Page 2 of 9)
VDA. DE VILLANUEVA v. JUICO
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-15737 February 28, 1962
LEONOR VILLAFLOR VDA. DE VILLANUEVA, plaintiff-
appellant,
vs.
DELFIN N. JUICO, in his capacity as Judicial
Administrator of the testate estate of FAUSTA
NEPOMUCENO, defendant-appellee.
Amado G. Salazar for plaintiff-appellant.
Sycip, Salazar, Luna and Associates for defendant-appellee.
REYES, J.B.L., J.:
Subject to this direct appeal to us on points of law is the
decision of the Court of First Instance of Rizal, in its Civil
Case No. Q-2809, dismissing plaintiff-appellant's complaint
for the recovery of certain properties that were originally
owned by the plaintiff's granduncle, Nicolas Villaflor, and
which he granted to his widow, Doa Fausta Nepomuceno,
bequeathing to her "su uso y posesion mientras viva y no se
case en segundas nupcias".
The following facts appear of record: On October 9, 1908,
Don Nicolas Villaflor, a wealthy man of Castillejos,
Zambales, executed a will in Spanish in his own handwriting,
devising and bequeathing in favor of his wife, Dona Fausta
Nepomuceno, one-half of all his real and personal properties,
giving the other half to his brother Don Fausto Villaflor.
Clause 6th, containing the institution of heirs, reads as
follows: .
SEXTO En virtud de las facultades que me conceden las
leyes, instituyo per mis unicos y universales herederos de
todos mis derechos y acciones a mi hermano D. Fausto
Villaflor y a mi esposa Da. Fausta Nepomuceno para que
partan todos mis bienes que me pertenescan, en iguales
partes, para despues de mi muerte, exceptuando las
donaciones y legados que, abajo mi mas expontanea
voluntad, lo hago en la forma siguiente: .
SEPTIMO: Lego para dispues de mi muerte a mi esposa
Da. Fausta Nepomuceno, en prueba de mi amor y carino, los
bienes, alhajas y muebles que a continuacion se expresan; .
OCTAVO: Que estos legades disfrutaria mi referida
esposa Da. Fausta Nepomuceno su uso y posesion mientras

viva y no se case en segundas nupcias, de la contrario,
pasara a ser propiedad estos dichos legados de mi sobrina
nieta Leonor Villaflor.
The 12th clause of the will provided, however, that Clauses
6th and 7th thereof would be deemed annulled from the
moment he bore any child with Doa Fausta Nepomuceno.
Said Clause 12th reads as follows: .
DUODECIMO: Quedan anulados las parrafos 6.0 y 7.0 de
este testamento que tratan de institucion de herederos y los
legados que se haran despues de mi muerte a favor de mi
esposa, en el momento que podre tener la dicha de contrar
con hijo y hijos legitimos o legitimados, pues estos, conforme
a ley seran mis herederos.
Don Nicolas Villaflor died on March 3, 1922, without
begetting any child with his wife Doa Fausta Nepomuceno.
The latter, already a widow, thereupon instituted Special
Proceeding No. 203 of the Court of First Instance of
Zambales, for the settlement of her husband's estate and in
that proceeding, she was appointed judicial administratrix. In
due course of administration, she submitted a project of
partition, now Exhibit "E". In the order of November 24, 1924,
now exhibit "C", the probate court approved the project of
partition and declared the proceeding closed. As the project
of partition, Exhibit "E", now shows Doa Fausta
Nepomuceno received by virtue thereof the ownership and
possession of a considerable amount of real and personal
estate. By virtue also of the said project of partition, she
received the use and possession of all the real and personal
properties mentioned and referred to in Clause 7th of the will.
The order approving the project of partition (Exh. "C"),
however, expressly provided that approval thereof was "sin
perjuicio de lo dispuesto en la clausula 8.o del testamento de
Nicolas Villaflor." .
On May 1, 1956, Doa Fausta Nepomuceno died without
having contracted a second marriage, and without having
begotten any child with the deceased Nicolas Villaflor. Her
estate is now being settled in Special Proceeding No. Q-
1563 in the lower court, with the defendant Delfin N. Juico as
the duly appointed and qualified judicial administrator.
The plaintiff Leonor Villaflor Vda. de Villanueva is admitted to
be the same Leonor Villaflor mentioned by Don Nicolas
Villaflor in his will as his "sobrina nieta Leonor Villaflor".
Plaintiff Leonor Villaflor instituted the present action against
the administrator of the estate of the widow Fausta
Nepomuceno, on February 8, 1958, contending that upon
the widow's death, said plaintiff became vested with the
ownership of the real and personal properties bequeathed by
the late Nicolas Villaflor to clause 7 of his will, pursuant to its
eight (8th) clause. Defendant's position, adopted by the trial
court, is that the title to the properties aforesaid became
absolutely vested in the widow upon her death, on account
of the fact that she never remarried.
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COMPILATION OF CASES (Page 2 of 9)
We agree with appellant that the plain desire and intent of
the testator, as manifested in clause 8 of his testament, was
to invest his widow with only a usufruct or life tenure in the
properties described in the seventh clause, subject to the
further condition (admitted by the appellee) that if the widow
remarried, her rights would thereupon cease, even during
her own lifetime. That the widow was meant to have no more
than a life interest in those properties, even if she did not
remarry at all, is evident from the expressions used by the
deceased "uso y posesion mientras viva" (use and
possession while alive) in which the first half of the phrase
"uso y posesion" instead of "dominio" or "propiedad")
reinforces the second ("mientras viva"). The testator plainly
did not give his widow the full ownership of these particular
properties, but only the right to their possession and use (or
enjoyment) during her lifetime. This is in contrast with the
remainder of the estate in which she was instituted universal
heir together with the testator's brother (clause 6).
1wph1.t
SEXTO: En virtud de las facultades que me conceden las
leyes, instituyo por mis unicos y universales herederos de
todos mis derechos y acciones a mi hermano D. Fausto
Villaflor y a mi esposa Da. Fausta Nepomuceno para que
parten todos mis bienes que me pertenescan, en iguales
partes, para despues de mi muerte, exceptuando las
donaciones y legados que, abajo mi mas expontanea
voluntad, lo hago en la forma siguiente.
The court below, in holding that the appellant Leonor
Villaflor, as reversionary legatee, could succeed to the
properties bequeathed by clause 7 of the testament only in
the event that the widow remarried, has unwarrantedly
discarded the expression "mientras viva," and considered the
words "uso y posesion" as equivalent to "dominio"
(ownership). In so doing, the trial court violated Article 791 of
the Civil Code of the Philippines, as well as section 59 of
Rule 123 of the Rules of Court.
ART. 791. The words of a will are to receive an interpretation
which will give to every expression some effect, rather than
one which will render any of the expressions inoperative; and
of two modes of interpreting a will, that one is to be preferred
which will prevent intestacy." .
SEC. 59. Instrument construed so as to give effect to all
provisions. In the construction of an instrument where
there are several provisions or particulars, such a
construction is, if possible, to be adopted as will give effect to
all." .
Speculation as to the motives of the testator in imposing the
conditions contained in clause 7 of his testament should not
be allowed to obscure the clear and unambiguous meaning
of his plain words, which are over the primary source in
ascertaining his intent. It is well to note that if the testator had
intended to impose as sole condition the non-remarriage of
his widow, the words "uso y posesion mientras viva" would
have been unnecessary, since the widow could only remarry
during her own lifetime.

The Civil Code, in Article 790, p. 1 (Article 675 of the Code of
1889), expressly enjoins the following: .
ART. 790. The words of a will are to be taken in their
ordinary and grammatical sense, unless a clear intention to
use them in another sense can be gathered, and that other
can be ascertained." .
Technical words in a will are to be taken in their technical
sense, unless the context clearly indicates a contrary
intention, or unless it satisfactorily appears that the will was
drawn solely by the testator, and that he was unacquainted
with such technical sense. (675a)
In consonance with this rule, this Supreme Court has laid the
doctrine in In re Estate of Calderon, 26 Phil., 233, that the
intention and wishes of the testator, when clearly expressed
in his will, constitute the fixed law of interpretation, and all
questions raised at the trial, relative to its execution and
fulfillment, must be settled in accordance therewith, following
the plain and literal meaning of the testator's words, unless it
clearly appears that his intention was otherwise. The same
rule is adopted by the Supreme Court of Spain (TS. Sent. 20
Marzo 1918; 28 Mayo 1918; 30 Abril 1913; 16 Enero 1915;
23 Oct. 1925).
La voluntad del testador, clara, precisa y constantemente
expresada al ordenar su ultimo voluntad, es ley unica,
imperativa y obligatoria que han de obedecer y cumplir
fieldmente albaceas, legatarios y heredera, hoy sus
sucesores, sin que esa voluntad patente, que no ha
menester de interpretaciones, pues no ofrece la menor duda,
pueda sustituirse, pues no ofrece la menor duda, pueda
sustituirse por ningun otro criterio de alguna de los
interesados, ni tampoco por el judicial. (Tribunal Supremo of
Spain, Sent. 20 March 1918) .
The American decisions invoked by appellee in his brief
inapplicable, because they involve cases where the only
condition imposed on the legatee was that she should
remain a widow. As already shown, the testament of Don
Nicolas Villaflor clearly and unmistakably provided that his
widow should have the possession and use of the legacies
while alive and did not remarry. It necessarily follows that by
the express provisions of the 8th clause of his will, the
legacies should pass to the testator's "sobrinanieta",
appellant herein, upon the widow's death, even if the widow
never remarried in her lifetime. Consequently, the widow had
no right to retain or dispose of the aforesaid properties, and
her estate is accountable to the reversionary legatee for their
return, unless they had been lost due to fortuitous event, or
for their value should rights of innocent third parties have
intervened.
PREMISES CONSIDERED, the decision appealed from is
reversed, and the appellant Leonor Villaflor Vda. de
VILLANUEVA is declared entitled to the ownership and fruits
of the properties described in clause 7 of the will or
testament, from the date of the death of Doa Fausta
Nepomuceno. The records are ordered remanded to the
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 25
COMPILATION OF CASES (Page 2 of 9)
court of origin for liquidation, accounting and further
proceedings conformably to this decision. Costs against the
Administrator-appellee.
DEL ROSARIO v. DEL ROSARIO
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 1027 May 19, 1903
RAMON DEL ROSARIO, plaintiff-appellee,
vs.
CLEMENTE DEL ROSARIO, defendant-appellant.
Lucas Gonzalez for appellant.
Rodriguez and Foz for appellee.
WILLARD, J.:
I. Don Nicolas del Rosario died in this city on July 14, 1897,
leaving a last will, the eighth, ninth, eleventh, and eighteenth
clauses of which are as follows:
Eight. The testator declares that the 5,000 pesos which he
brought to his marriage he hereby bequeathes to his nephew
Enrique Gloria y Rosario and Ramon del Rosario, natural
children of his brother Clemente del Rosario, notwithstanding
the fact that they purport to be the issue of the marriage of
Escolastico Gloria and Rosendo del Rosario, successively.
Ninth. The testator declares that the said sum of 5,000 pesos
is to be divided, 3,000 pesos for the first named and 2,000
pesos for the second named, the delivery of the said sums to
be effected by the wife of the testator, provided that these
young men behave themselves as they have done up to the
present time, and do not cease to study until taking the
degree of bachelor of arts, and then take a business course,
if their health will permit, their support to be paid out of the
testamentary estate and they to live in the house of the
widow.
Eleventh. The testator declares that in a case the said young
men should be still engaged in study at the time of the death
of the testator's wife, they shall continue to be supported at
the expense of the testamentary estate, without deducting
such expenses from their legacies, if they should desire to
continue the same studies.
Eighteenth. The testator further states that although his wife
is at the present time fifty-five years of age, and
consequently is not likely to marry again, as she herself
says, nevertheless it is impossible that the opposite of what

she asserts might occur, and, if so, then it is to be regarded
as sufficient reason to authorize the young men Ramon and
Enrique, so often referred to, separate from their aunt, in
which event they are to be supported by the testamentary
estate on a small allowance of twenty-five pesos per month,
provided that they continue their studies or should be in poor
health, this without in any respect reducing the amount of
their shares.
Don Ramon del Rosario, one of the persons mentioned in
these clauses, brought this action in 1902 against Don
Clemente del Rosario, the then executor, asking, among
other things, that the said executor pay him an allowance
from the death of the widow of the testator at the rate of 75
pesos a month, and that the executor allow him to live in the
house in which the widow was living at that time.
The widow of the testator, Doa Honorata Valdez, died on
July 7, 1900.
The court below ordered judgment in respect to this
allowance, and the right to live in the house as prayed for by
the plaintiff. In this we think that the court erred.
While by the eight clause the support of the plaintiff and of
Don Enrique Gloria is charged against the estate, yet the
eleventh clause makes it plain that this unconditional right
was to last only during the lifetime of the widow. After her
death the right to this allowance is made to depend on the
continuance of their studies. That this is the correct
construction of the will is made more plain by the eighteenth
clause above quoted. In the case of their separation from
their aunt by her remarriage, they were entitled to the
specified allowance of 25 pesos a month only on condition
that they were pursuing their studies or were in poor health.
The court did not find that the plaintiff was still pursuing his
studies. On the contrary, he found that the plaintiff had
fulfilled the condition by obtaining the degree of bachelor of
arts in 1898.
The right to live in the house of the widow terminated at her
death.
II. The seventh clause of the will of Don Nicolas is as follows:
Seventh. The testator states that in the present condition of
his affairs he has acquired, during his married life, some tens
of thousands of dollars, of which one-half belongs to his wife
as her share of the profits of the conjugal partnership, and
the other half belongs to him as his share of such profits; but,
in view of the agreement entered into between the two
spouses, the property will not be partitioned, and upon the
death of the testator all the said property will pass to his wife,
in order that she may enjoy the revenue therefrom during her
lifetime, but without authority to convey any of such property,
inasmuch as she, being grateful for the benefit resulting to
her, binds herself in turn to deliver said property at her death
to the testator's brothers, Don Clemente del Rosario and
Don Rosendo del Rosario, and his sister, Doa Luisa del
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COMPILATION OF CASES (Page 2 of 9)
Rosario, who shall enjoy the revenue from the said property
during their respective lives, and shall then, in turn, transmit
the same to their male children, both those born in wedlock
and natural children who may be known.
This was later modified by a codicil, as follows:
That in seventh clause of said testament he desires and wills
that in the distribution of his property and that of his wife
among the male children of his brothers, Clemente and
Rosendo del Rosario, and those of his sister, Luisa del
Rosario, in such distribution his nephews Enrique Gloria and
Ramon del Rosario must be understood to be included, in
addition to the legacies mentioned in his said testament.
The thirteenth clause of his will was as follows:
The testator declares that in case Doa Luisa del Rosario
should die before or after the wife of the testator, then the
legacy due her by virtue of this will shall not pass in its
entirety to her male children, except as to the sum of 1,000
pesos, the remainder to pass to Don Enrique Gloria Rosario
and Don Ramon del Rosario, natural sons of Don Clemente
del Rosario, as already stated.
This was modified by the codicil as follows:
That in the thirteenth clause the testator provided that upon
the death of his sister, Luisa del Rosario, her male children
were to inherit from her up to the sum of 1,000 pesos, and
this he rectifies, for better understanding, to the effect that it
is his will that the remainder of all her portion should be
divided into equal parts, one-third to go to his brother Don
Clemente del Rosario and the other two-thirds to be divided
equally among his said nephews, Enrique Gloria and Ramon
del Rosario.
Doa Honorata Valdez made her will three days after that of
her husband. The seventh clause is as follows:
The testatrix declares that she institutes her beloved
husband, Don Nicolas del Rosario y Alejo, as her heir to all
the property which she may have at her death, and in the
unexpected case of the death of her said husband then she
institute as heirs her brothers-in-law, Don Rosendo and Don
Clemente del Rosario y Alejo, and her sister-in-law, Doa
Luisa del Rosario, who shall enjoy the usufruct during their
lifetime of all the revenue of the said property. Upon the
death of any of them, the property shall pass to the male
children of her said brothers-in-law and sister-in-law, the
issue of lawful marriage or natural children who may be
known; that upon the death of her sister-in-law, Doa Luisa,
then her share shall not pass in its entirety to her male
children, except the sum of 1,000 pesos, Enrique Gloria and
Don Ramon del Rosario, natural children of her brother-in-
law Don Clemente del Rosario.

Doa Luisa died one yea after Don Nicolas and two years
before the death of Doa Honorata, which, as has been said,
occurred on July, 7, 1900.
Don Enrique Gloria died on July 6, 1900.
Don Ramon del Rosario claims in this action that he is now
entitled, by virtue of both wills, to a certain part of the share
of the estates left to said Doa Luisa during her life, and he
asks that the defendant be directed to render accounts and
to proceed to the partition of the said estates. The
controversy between the parties upon this branch of the case
is as follows:
The defendant claims that the plaintiff is entitled to nothing
under the wills, because the gift to him was conditional, the
condition being that he should be the natural son of Don
Clemente, recognized by the latter as such in one of the
ways pointed out by the Civil Code; that he can not prove
such recognition, the parol evidence presented at the trial
being prohibited by said Code, and that he has therefore not
complied with the condition.
The plaintiff claims that such evidence was proper, that both
wills state that Don Ramon del Rosario is the natural son of
Don Clemente, and that in any event the bequests are made
to the plaintiff by name.
The court below, holding the parol evidence immaterial,
ordered judgment for the plaintiff as prayed for.
(1) So far as the disposition of that part of the inheritance left
in the aunt's will to Doa Luisa for life is concerned, the
question is free from doubt. It is distinctly declared that
Ramon del Rosario and Enrique Gloria shall take certain
parts of it after 1,000 pesos have been deducted. They are
pointed out by name as the legatees. It is true that they are
called the natural sons of Don Clemente. But this is merely a
further description of persons already well identified, and, if
false, can be rejected in accordance with the provision of
article 773 of the Civil Code, which by article 789 is
applicable to legatees.
(2) The ninth clause of the will of Doa Honorata is as
follows:
The testatrix bequeaths the sum of 3,000 pesos to her
nephews Enrique Gloria and Ramon del Rosario in equal
parts that is, 1,500 pesos each.
The plaintiff was entitled to one-half of this legacy in his own
right. This has been paid to him. Don Enrique Gloria died
before his the testatrix. By the provisions of articles 982 and
983 of the Civil Code the right of accretion exists as to the
other half in favor of the plaintiff and he is entitled to have it
paid to him.
(3) The will of Doa Honorata plainly declares that, on the
death of any one of the life tenants, the male children of such
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COMPILATION OF CASES (Page 2 of 9)
tenant shall inherit, and in respect to Doa Luisa it is
expressly declared that this shall take place whether she
dies before or after the testatrix. The derecho de acrecer did
not therefore exist in favor of the other two life tenants, Don
Clemente and Don Rosendo. "En la sucesion testada es ley
preferente la voluntad del testador, de modo que este
prohibiendo expresamente el derecho de acrecer,
nombrando sustitutos, o marcando el destino especial de
cada porcion vacante, excluye la aplicacion de los articulos
que vamos a examinar." (7 Manresa, Comentarios al Codigo
Civil, p. 276.)
This right does, however, exist in the share of Doa Luisa in
favor of the plaintiff, for the reasons stated in connection with
the legacy of 3,000 pesos.
(4) We have passed upon the rights of the plaintiff to the
share of Doa Luis under the will of Doa Honorata,
because the interest is expressly left to him (en concepto de
legado) as a legacy. This is controlling. (5 Manresa, 315.)
These or equivalent words are wanting in the will of Don
Nicolas. Applying article 668 of the Civil Code, we must hold
that any interest which the plaintiff may have taken in the
share of Doa Luisa under the will of Don Nicolas he took as
an heir and not as a legatee.
The distinction between the two is constantly maintained
throughout the Code, and their rights and obligations differ
materially. (Arts. 660, 668, 768, 790, 858, 891, 1003.)
(5) The legatee can demand his legacy from the heir or from
the executor, when the latter is authorized to give it. (Art.
885.) The powers given to the executors by the will of Doa
Honorata are contained in the fourteenth clause, which is as
follows:
The testatrix appoints as the executors of her will, in the first
place, her beloved husband, Nicolas del Rosario y Alejo, in
the second place her brother-in-law Clemente del Rosario, in
the third place her brother-in-law Rosendo del Rosario, in the
fourth place Don Ramon del Rosario when he shall attain his
majority, all of them without bond and free from the obligation
of terminating the administration within the legal term. At her
death they shall take possession of all such goods and
things as may be her property, and are hereby authorized
fully and as required by law to prepare an inventory of said
property, and to effect the division and partition of the estate
among her heirs. She also authorizes them to execute and
sign deeds of partition, sales with a resolutory condition,
cancellations, receipts, acquittances, and such other
documents as may be necessary.
The twenty-first clause of the will of Don Nicolas is
substantially the same. Each will prohibited any judicial
intervention in the settlement of the estates.
The clause in the will of Doa Honorata which is a copy of
that in the will of Don Nicolas is as follows:

The testatrix declares that she expressly prohibits any
judicial intervention in this her will, although minors,
absentees, or persons under disability be interested therein,
as it is her wish and will that all the proceedings be
conducted extrajudicially, and in case a family council should
be necessary, she designates the persons who, in
accordance with the provisions of the Civil Code now in
force, should form such council, or else leaves their
appointment to the discretion of her executors.
If the executor was not authorized to pay these legacies, the
heirs must pay them.
The life tenants and the heirs who take the remainder under
these wills are numerous. If they did not pay the legacies and
did not agree upon an administrator, judicial intervention
would be necessary, the very thing which the testators had
expressly prohibited. The important power of making the
partition was attempted to be given to the executors. In view
of these considerations and a study of the whole will, we hold
that the executors are given power to pay the legacies.
The action, therefore, was properly directed against the
executor so far as it related to the allowance and the legacy
of 3,000 pesos. As to these legacies, the action may be
supported also under article 902, 2, which allows executors
to pay money legacies.
It was also properly directed against him, so far as it related
to the share to which the plaintiff is entitled under the will of
Doa Honorata in the portion to Doa Luisa for life.
The provisions of articles 1025-1027 are no obstacle to this
suit. That an inventory is being formed, or that the creditors
have not been paid, is a matter of defense which should
have been set up in the answer.
It was not properly directed against him in so far as it related
to the similar share left to him by the will of Don Nicolas. He
took that as heir and not a legatee, and the heir can maintain
no such action against the executor.
The fact that the plaintiff under the will of Doa Honorata is a
legatee of an aliquot part of the estate, having become
entitled to receive one-third of it on the death of Doa Luisa,
does not prevent him from maintaining this action against the
executor. Though such a legatee closely resembles an heir,
yet, like all other legatees, he must seek his share from the
heir or executor. (6 Manresa, 561.)
(6) While in this action he has a right to have his interest as
legatee declared, yet it can not be delivered to him without a
partition of the estate.
It remains to be considered whether the executor has power
to make the partition. Such power is expressly given by the
will. This provision is, however, void under the terms of
article 1057 of the Civil Code, which is as follows:
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COMPILATION OF CASES (Page 2 of 9)
The testator may, by an act inter vivos or causa mortis,
intrust the mere power of making the division after his death
to any person who is not one of the coheirs.
The provisions of this and the foregoing articles shall be
observed even should there be a minor or a person subject
to guardianship among the coheirs; but the trustee must in
such case make an inventory of the property of the
inheritance, citing the coheirs, the creditors, and the
legatees.
Don Clemente, the executor, against whom the action was
directed, was not only an heir as a life tenant but also in the
fee after his death of Don Rosendo if the latter died without
issue. Upon the death of the widow, Doa Luisa then being
dead, it became his duty to divide the estate into three parts,
or at least to set off the third, which was to pass to the
plaintiff by the death of the widow and Doa Luisa. In this
partition he was directly interested, for, with his brother Don
Rosendo, he had a life interest in the part of the estate not
set off to the plaintiff. Article 1057 prohibited an heir from
being contador for this very reason, namely, that the partition
should be made impartially.
Although the executor has no power to make the partition,
the heirs can do so. Arts. 1058-1060, Civil Code.)
The plaintiff is not bound to remain a co-owner with the other
heirs. Being a legatee of an aliqout part, he has the same
right to seek a partition that an heir has. (7 Manresa, 578;
art. 1051, Codigo Civil.) But in so seeking it he must make
parties to his suit all persons interested in the estate (7
Manresa, 577). This he has not done in this suit, and he
consequently is not entitled to the partition ordered by the
court below.
(7) We have held that the only thing that can be decided in
this case is the rights of the plaintiff as legatee.
The court below ordered the executor to render accounts of
his administration of both estates.
As to the estate of Don Nicolas, the only thing here in
question is the right to the allowance. As we hold that the
plaintiff is not entitled to it, he is not entitled to any statement
of accounts as such pretended legatee.
As to the estate of Doa Honorata, he is entitled to be paid a
legacy of 1,500 pesos. Article 907 requires the executor to
render accounts to the heir, not to the legatee; and although
by article 789 all of the provisions of Chapter II (in which both
articles are found) relating to heirs are made applicable to
legatees, we can not hold that this requires an executor to
submit his accounts to one who has no interest in the estate
except to a money legacy when there is no suggestion that it
will not be paid when the right to it is established.
In respect to the share of Doa Luisa, there is reason for
saying that a legatee on an aliquot part is entitled to an
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COMPILATION OF CASES (Page 2 of 9)

accounting. But, inasmuch as in this case there can be no
final determination of the rights of the parties interested in
the estate, because they are not all parties to this suit, the
executor should not in this suit be ordered to submit his
accounts.
(8) The plaintiff in his complaint has limited himself to
claiming the allowance, his rights to the share of Doa Luisa,
and the legacies left to him.
The question as to whether he would be entitled to any part
of the share of Don Clemente upon the latter's death, under
the seventh clause of the two wills, was not presented by the
complaint nor passed upon by the court and is not before us
for decision.
(9) The result of the foregoing considerations is:
1. The plaintiff is not entitled to any allowance under either
will.
2. He is not entitled to live in the house No. 128 Calle Clavel.
3. He is entitled to be paid, under the ninth clause of the will
of Doa Honorata, the sum of 1,500 pesos, in addition to the
1,500 pesos already received under that clause.
4. He is entitled to the share of the estate left by the will of
Doa Honorata to Doa Luisa during her life, after deducting
1,000 pesos.
According to the American authorities, if a trustee refuses to
appeal, the beneficiary may do so in his name.
That the son of Don Clemente has a direct interest in the
question of the allowance of 75 pesos a month to the plaintiff
is plain. We have held that in respect to this allowance the
executor represents the estate and the judgment against him
binds it.
It would be manifestly unjust to allow an executor, with
perhaps only a slight personal interest in an estate, by
withdrawing an appeal, to fasten upon the estate a claim
which, as we hold, it should not bear.
IV. At the argument of this case on the merits, after the
appellant had closed, the respondent made the point for the
first time that the appellant's brief contained no assignment
of errors.
This is true. But a full assignment of errors is found in the bill
of exceptions at pages 14 and 15. The appellee answered
the brief of the appellant without making any suggestion of
this mistake. He has been in no way prejudiced by it, and we
can not affirm the judgment on this ground.
The judgment of the court below is reversed and the case
remanded with directions to the court below to enter
judgment in accordance with this opinion. The costs of this
instance will be equally divided between the parties. So
ordered.

5. This share can not be set off to him in this suit, but only in BALANAY, JR. v. MARTINEZ
a proceeding to which all persons interested in the estate are
parties. (See Page 2 of 9 Compilation)

6. His interest in the share left to Doa Luis during her life by
the will of Don Nicolas can not be determined in this suit.

7. The executor can not be required to render in this suit his

accounts as such executor.

8. The plaintiff's rights under the seventh clause of the two

wills, to the share left to Don Clemente for life are not before
us for decision.

III. After judgment had been rendered in the court below and
a bill of exceptions allowed, but before the record had been
sent to this court, Don Clemente del Rosario, the defendant,
died. After his death Don Rosendo del Rosario, who was
named in both wills to succeed to the executorship on the
death of Don Clemente, appeared in the court below and
withdrew the appeal and bill of exceptions. Thereupon the
widow of Don Clemente, for herself and in representation of
the minor son of her late husband, asked and was granted
leave to prosecute the appeal.

This ruling was correct. According to the Spanish authorities,

anyone legally affected by the judgment might appeal.

ARTICLE 789
ESTATE OF RIGOR v. RIGOR
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-22036 April 30, 1979
TESTATE ESTATE OF THE LATE REVEREND FATHER
PASCUAL RIGOR. THE PARISH PRIEST OF THE ROMAN
CATHOLIC CHURCH OF VICTORIA, TARLAC, petitioner-
appellant,
vs.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA
ESCOBAR DE RIGOR and JOVITA ESCOBAR DE
FAUSTO, respondents-appellees.
D. Taedo, Jr. for appellants.
J. Palanca, Sr. for appellee.
AQUINO, J.:
This case is about the efficaciousness or enforceability of a
devise of ricelands located at Guimba, Nueva Ecija, with a
total area of around forty- four hectares That devise was
made in the will of the late Father Pascual Rigor, a native of
Victoria Tarlac, in favor of his nearest male relative who
would study for the priesthood.
The parish priest of Victoria, who claimed to be a trustee of
the said lands, appealed to this Court from the decision of
the Court of Appeals affirming the order of the probate court
declaring that the said devise was inoperative (Rigor vs.
Parish Priest of the Roman Catholic Church of Victoria,
Tarlac, CA-G.R. No. 24319-R, August 1, 1963).
The record discloses that Father Rigor, the parish priest of
Pulilan, Bulacan, died on August 9, 1935, leaving a will
executed on October 29, 1933 which was probated by the
Court of First Instance of Tarlac in its order of December 5,
1935. Named as devisees in the will were the testators
nearest relatives, namely, his three sisters: Florencia Rigor-
Escobar, Belina Rigor-Manaloto and Nestora Rigor-
Quiambao. The testator gave a devise to his cousin,
Fortunato Gamalinda.
In addition, the will contained the following controversial
bequest (paragraphing supplied to facilitate comprehension
of the testamentary provisions):
(Deleted In Spanish)
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 30
COMPILATION OF CASES (Page 2 of 9)
To implement the foregoing bequest, the administratix in
1940 submitted a project containing the following item:
5. LEGACY OF THE CHURCH
That it be adjudicated in favor of the legacy purported to be
given to the nearest male relative who shall take the
priesthood, and in the interim to be administered by the
actual Catholic Priest of the Roman Catholic Church of
Victoria, Tarlac, Philippines, or his successors, the real
properties hereinbelow indicated, to wit:
Title No. Lot No. Area in Has. Tax Dec. Ass. Value
T-6530 3663 1.6249 18740 P 340.00
T-6548 3445-C 24.2998 18730 7,290.00
T-6525 3670 6.2665 18736 1,880.00
T-6521 3666 11.9251 18733 3,580.00
Total amount and value 44.1163 P13,090.00
Judge Roman A. Cruz in his order of August 15, 1940,
approving the project of partition, directed that after payment
of the obligations of the estate (including the sum of
P3,132.26 due to the church of the Victoria parish) the
administratrix should deliver to the devisees their respective
shares.
It may be noted that the administratrix and Judge Cruz did
not bother to analyze the meaning and implications of Father
Rigor's bequest to his nearest male relative who would study
for the priesthood. Inasmuch as no nephew of the testator
claimed the devise and as the administratrix and the legal
heirs believed that the parish priest of Victoria had no right to
administer the ricelands, the same were not delivered to that
ecclesiastic. The testate proceeding remained pending.
About thirteen years after the approval of the project of
partition, or on February 19, 1954, the parish priest of
Victoria filed in the pending testate proceeding a petition
praying for the appointment of a new administrator
(succeeding the deceased administration Florencia Rigor),
who should deliver to the church the said ricelands, and
further praying that the possessors thereof be ordered to
render an accounting of the fruits. The probate court granted
the petition. A new administrator was appointed. On January
31, 1957 the parish priest filed another petition for the
delivery of the ricelands to the church as trustee.
The intestate heirs of Father Rigor countered with a petition
dated March 25, 1957 praying that the bequest be d
inoperative and that they be adjudged as the persons
entitled to the said ricelands since, as admitted by the parish
priest of Victoria, "no nearest male relative of" the testator
"has ever studied for the priesthood" (pp. 25 and 35, Record

on Appeal). That petition was opposed by the parish priest of
Victoria.
Finding that petition to be meritorious, the lower court,
through Judge Bernabe de Aquino, declared the bequest
inoperative and adjudicated the ricelands to the testator's
legal heirs in his order of June 28, 1957. The parish priest
filed two motions for reconsideration.
Judge De Aquino granted the respond motion for
reconsideration in his order of December 10, 1957 on the
ground that the testator had a grandnephew named Edgardo
G. Cunanan (the grandson of his first cousin) who was a
seminarian in the San Jose Seminary of the Jesuit Fathers in
Quezon City. The administrator was directed to deliver the
ricelands to the parish priest of Victoria as trustee.
The legal heirs appealed to the Court of Appeals. It reversed
that order. It held that Father Rigor had created a
testamentary trust for his nearest male relative who would
take the holy orders but that such trust could exist only for
twenty years because to enforce it beyond that period would
violate "the rule against perpetuities. It ruled that since no
legatee claimed the ricelands within twenty years after the
testator's death, the same should pass to his legal heirs,
citing articles 888 and 912(2) of the old Civil Code and article
870 of the new Civil Code.
The parish priest in this appeal contends that the Court of
Appeals erred in not finding that the testator created a public
charitable trust and in not liberally construing the
testamentary provisions so as to render the trust operative
and to prevent intestacy.
As refutation, the legal heirs argue that the Court of Appeals
d the bequest inoperative because no one among the
testator's nearest male relatives had studied for the
priesthood and not because the trust was a private charitable
trust. According to the legal heirs, that factual finding is
binding on this Court. They point out that appellant priest's
change of theory cannot be countenanced in this appeal .
In this case, as in cases involving the law of contracts and
statutory construction, where the intention of the contracting
parties or of the lawmaking body is to be ascertained, the
primary issue is the determination of the testator's intention
which is the law of the case (dicat testor et erit lex. Santos
vs. Manarang, 27 Phil. 209, 215; Rodriguez vs. Court of
Appeals, L-28734, March 28, 1969, 27 SCRA 546).
The will of the testator is the first and principal law in the
matter of testaments. When his intention is clearly and
precisely expressed, any interpretation must be in accord
with the plain and literal meaning of his words, except when
it may certainly appear that his intention was different from
that literally expressed (In re Estate of Calderon, 26 Phil.
333).
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 31
COMPILATION OF CASES (Page 2 of 9)
The intent of the testator is the cardinal rule in the
construction of wills." It is "the life and soul of a will It is "the
first greatest rule, the sovereign guide, the polestar, in giving
effect to a will". (See Dissent of Justice Moreland in Santos
vs. Manarang, 27 Phil. 209, 223, 237-8.)
One canon in the interpretation of the testamentary
provisions is that "the testator's intention is to be ascertained
from the words of the wilt taking into consideration the
circumstances under which it was made", but excluding the
testator's oral declarations as to his intention (Art. 789, Civil
Code of the Philippines).
To ascertain Father Rigor's intention, it may be useful to
make the following re-statement of the provisions of his will.
1. that he bequeathed the ricelands to anyone of his nearest
male relatives who would pursue an ecclesiastical career
until his ordination as a priest.
2. That the devisee could not sell the ricelands.
3. That the devisee at the inception of his studies in sacred
theology could enjoy and administer the ricelands, and once
ordained as a priest, he could continue enjoying and
administering the same up to the time of his death but the
devisee would cease to enjoy and administer the ricelands if
he discontinued his studies for the priesthood.
4. That if the devisee became a priest, he would be obligated
to celebrate every year twenty masses with prayers for the
repose of the souls of Father Rigor and his parents.
5. That if the devisee is excommunicated, he would be
divested of the legacy and the administration of the riceland
would pass to the incumbent parish priest of Victoria and his
successors.
6. That during the interval of time that there is no qualified
devisee as contemplated above, the administration of the
ricelands would be under the responsibility of the incumbent
parish priest of Victoria and his successors, and
7. That the parish priest-administrator of the ricelands would
accumulate annually the products thereof, obtaining or
getting from the annual produce five percent thereof for his
administration and the fees corresponding to the twenty
masses with prayers that the parish priest would celebrate
for each year, depositing the balance of the income of the
devise in the bank in the name of his bequest.
From the foregoing testamentary provisions, it may be
deduced that the testator intended to devise the ricelands to
his nearest male relative who would become a priest, who
was forbidden to sell the ricelands, who would lose the
devise if he discontinued his studies for the priesthood, or
having been ordained a priest, he was excommunicated, and
who would be obligated to say annually twenty masses with

prayers for the repose of the souls of the testator and his
parents.
On the other hand, it is clear that the parish priest of Victoria
would administer the ricelands only in two situations: one,
during the interval of time that no nearest male relative of the
testator was studying for the priesthood and two, in case the
testator's nephew became a priest and he was
excommunicated.
What is not clear is the duration of "el intervalo de tiempo
que no haya legatario acondicionado", or how long after the
testator's death would it be determined that he had a nephew
who would pursue an ecclesiastical vocation. It is that patent
ambiguity that has brought about the controversy between
the parish priest of Victoria and the testator's legal heirs.
Interwoven with that equivocal provision is the time when the
nearest male relative who would study for the priesthood
should be determined. Did the testator contemplate only his
nearest male relative at the time of his death? Or did he have
in mind any of his nearest male relatives at anytime after his
death?
We hold that the said bequest refers to the testator's nearest
male relative living at the time of his death and not to any
indefinite time thereafter. "In order to be capacitated to
inherit, the heir, devisee or legatee must be living at the
moment the succession opens, except in case of
representation, when it is proper" (Art. 1025, Civil Code).
The said testamentary provisions should be sensibly or
reasonably construed. To construe them as referring to the
testator's nearest male relative at anytime after his death
would render the provisions difficult to apply and create
uncertainty as to the disposition of his estate. That could not
have been his intention.
In 1935, when the testator died, his nearest leagal heirs were
his three sisters or second-degree relatives, Mrs. Escobar,
Mrs. Manaloto and Mrs. Quiambao. Obviously, when the
testator specified his nearest male relative, he must have
had in mind his nephew or a son of his sister, who would be
his third-degree relative, or possibly a grandnephew. But
since he could not prognosticate the exact date of his death
or state with certitude what category of nearest male relative
would be living at the time of his death, he could not specify
that his nearest male relative would be his nephew or
grandnephews (the son of his nephew or niece) and so he
had to use the term "nearest male relative".
It is contended by the legal heirs that the said devise was in
reality intended for Ramon Quiambao, the testator's nephew
and godchild, who was the son of his sister, Mrs. Quiambao.
To prove that contention, the legal heirs presented in the
lower court the affidavit of Beatriz Gamalinda, the maternal
grandmother of Edgardo Cunanan, who deposed that after
Father Rigor's death her own son, Valentin Gamalinda, Jr.,
did not claim the devise, although he was studying for the
priesthood at the San Carlos Seminary, because she
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 32
COMPILATION OF CASES (Page 2 of 9)
(Beatriz) knew that Father Rigor had intended that devise for
his nearest male relative beloning to the Rigor family (pp.
105-114, Record on Appeal).
Mrs. Gamalinda further deposed that her own grandchild,
Edgardo G. Cunanan, was not the one contemplated in
Father Rigor's will and that Edgardo's father told her that he
was not consulted by the parish priest of Victoria before the
latter filed his second motion for reconsideration which was
based on the ground that the testator's grandnephew,
Edgardo, was studying for the priesthood at the San Jose
Seminary.
Parenthetically, it should be stated at this juncture that
Edgardo ceased to be a seminarian in 1961. For that reason,
the legal heirs apprised the Court of Appeals that the probate
court's order adjudicating the ricelands to the parish priest of
Victoria had no more leg to stand on (p. 84, Appellant's
brief).
Of course, Mrs. Gamalinda's affidavit, which is tantamount to
evidence aliunde as to the testator's intention and which is
hearsay, has no probative value. Our opinion that the said
bequest refers to the testator's nephew who was living at the
time of his death, when his succession was opened and the
successional rights to his estate became vested, rests on a
judicious and unbiased reading of the terms of the will.
Had the testator intended that the "cualquier pariente mio
varon mas cercano que estudie la camera eclesiatica" would
include indefinitely anyone of his nearest male relatives born
after his death, he could have so specified in his will He must
have known that such a broad provision would suspend for
an unlimited period of time the efficaciousness of his
bequest.
What then did the testator mean by "el intervalo de tiempo
que no haya legatario acondicionado"? The reasonable view
is that he was referring to a situation whereby his nephew
living at the time of his death, who would like to become a
priest, was still in grade school or in high school or was not
yet in the seminary. In that case, the parish priest of Victoria
would administer the ricelands before the nephew entered
the seminary. But the moment the testator's nephew entered
the seminary, then he would be entitled to enjoy and
administer the ricelands and receive the fruits thereof. In that
event, the trusteeship would be terminated.
Following that interpretation of the will the inquiry would be
whether at the time Father Rigor died in 1935 he had a
nephew who was studying for the priesthood or who had
manifested his desire to follow the ecclesiastical career. That
query is categorically answered in paragraph 4 of appellant
priest's petitions of February 19, 1954 and January 31, 1957.
He unequivocally alleged therein that "not male relative of
the late (Father) Pascual Rigor has ever studied for the
priesthood" (pp. 25 and 35, Record on Appeal).
Inasmuch as the testator was not survived by any nephew
who became a priest, the unavoidable conclusion is that the
 WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 33
COMPILATION OF CASES (Page 2 of 9)

bequest in question was ineffectual or inoperative. Therefore, ARTICLE 791

the administration of the ricelands by the parish priest of
Victoria, as envisaged in the wilt was likewise inoperative. DIZON RIVERA v. DIZON

The appellant in contending that a public charitable trust was (See Page 2 of 9 Compilation)
constituted by the testator in is favor assumes that he was a
VDA. DE VILLAFLOR (VILLANUEVA) v. JUICO
trustee or a substitute devisee That contention is untenable.
A reading of the testamentary provisions regarding the
(See Page 2 of 9 Compilation)
disputed bequest not support the view that the parish priest
of Victoria was a trustee or a substitute devisee in the event
YAMBAO v. GONZALES
that the testator was not survived by a nephew who became
a priest.
Republic of the Philippines
It should be understood that the parish priest of Victoria SUPREME COURT
could become a trustee only when the testator's nephew Manila
living at the time of his death, who desired to become a
priest, had not yet entered the seminary or, having been EN BANC
ordained a priest, he was excommunicated. Those two
contingencies did not arise, and could not have arisen in this G.R. No. L-10763 April 29, 1961
case because no nephew of the testator manifested any
intention to enter the seminary or ever became a priest. DELFIN YAMBAO, plaintiff-appellant,
vs.
The Court of Appeals correctly ruled that this case is covered ANGELINA GONZALES, ET AL., defendants-appellees.
by article 888 of the old Civil Code, now article 956, which
provides that if "the bequest for any reason should be Marcial G. Mendiola for plaintiff-appellant.
inoperative, it shall be merged into the estate, except in Onofre P. Guevara for defendants-appellees.
cases of substitution and those in which the right of accretion
exists" ("el legado ... por qualquier causa, no tenga efecto se
refundira en la masa de la herencia, fuera de los casos de
sustitucion y derecho de acrecer").
BAUTISTA ANGELO, J.:

This case is also covered by article 912(2) of the old Civil

Code, now article 960 (2), which provides that legal
succession takes place when the will "does not dispose of all
that belongs to the testator." There being no substitution nor
accretion as to the said ricelands the same should be
distributed among the testator's legal heirs. The effect is as if
the testator had made no disposition as to the said ricelands.
The Civil Code recognizes that a person may die partly
testate and partly intestate, or that there may be mixed
succession. The old rule as to the indivisibility of the
testator's win is no longer valid. Thus, if a conditional legacy
does not take effect, there will be intestate succession as to
the property recovered by the said legacy (Macrohon Ong
Ham vs. Saavedra, 51 Phil. 267).
We find no merit in the appeal The Appellate Court's
decision is affirmed. Costs against the petitioner.
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.

SO ORDERED. The pertinent provisions of the will relied upon by appellant

read as follows:
DEL ROSARIO v. DEL ROSARIO
Dapat din naman malaman ng dalawa kong tagapagmana
(See Page 2 of 9 Compilation) na sila MARIA PABLO at ANGELINA GONZALES na sila ay
may dapat TUNGKULIN O GANGPANAN GAYA ng mga
RABADILLA v. CA
sumusunod:

(See Page 1 of 9 Compilation)

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 valued at more than P35,000. The will was duly executed in
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.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 34
COMPILATION OF CASES (Page 2 of 9)
ARTICLE 792
BALANAY, JR. v. MARTINEZ
(See Page 2 of 9 Compilation)
ARTICLE 795
IN RE: WILL OF RIOSA
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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
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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 35
COMPILATION OF CASES (Page 2 of 9)
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.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 36
COMPILATION OF CASES (Page 2 of 9)
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.
ENRIQUEZ v. ABADIA
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 37
COMPILATION OF CASES (Page 2 of 9)
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.

IBARLE v. PO
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 38
COMPILATION OF CASES (Page 2 of 9)
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.

TESTATE ESTATE OF THE LATE ALIPIO ABADA v.
ABAJA
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 39
COMPILATION OF CASES (Page 2 of 9)
("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 petition 7 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
(P10,000.00) 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. 16 Section 618 of the
Code of Civil Procedure, as amended, provides:
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 40
COMPILATION OF CASES (Page 2 of 9)
SEC. 618. Requisites of will. No will, except as provided in
the preceding section,17 shall be valid to pass any estate,
real or personal, nor charge or affect the same, unless it be
written in the language or dialect known by the testator and
signed by him, or by the testators name written by some
other person in his presence, and by his express direction,
and attested and subscribed by three or more credible
witnesses in the presence of the testator and of each other.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, on the left
margin, and said pages shall be numbered correlatively in
letters placed on the upper part of each sheet. The
attestation shall state the number of sheets or pages used,
upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the
presence of three witnesses, and the latter witnessed and
signed the will and all pages thereof in the presence of the
testator and of each other.
Requisites of a Will under the Code of Civil Procedure
Under Section 618 of the Code of Civil Procedure, the
requisites of a will are the following:
(1) The will must be written in the language or dialect known
by the testator;
(2) The will must be signed by the testator, or by the
testators name written by some other person in his
presence, and by his express direction;
(3) The will must be attested and subscribed by three or
more credible witnesses in the presence of the testator and
of each other;
(4) The testator or the person requested by him to write his
name and the instrumental witnesses of the will must sign
each and every page of the will on the left margin;
(5) The pages of the will must be numbered correlatively in
letters placed on the upper part of each sheet;
(6) The attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that the
testator signed the will and every page of the will, or caused
some other person to write his name, under his express
direction, in the presence of three witnesses, and the
witnesses witnessed and signed the will and all pages of the
will in the presence of the testator and of each other.
Caponong-Noble asserts that the will of Abada does not
indicate that it is written in a language or dialect known to the
testator. Further, she maintains that the will is not
acknowledged before a notary public. She cites in particular
Articles 804 and 805 of the Old Civil Code, thus:

Art. 804. Every will must be in writing and executed in [a]
language or dialect known to the testator.
Art. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. xxx18
Caponong-Noble actually cited Articles 804 and 806 of the
New Civil Code.19 Article 804 of the Old Civil Code is about
the rights and obligations of administrators of the property of
an absentee, while Article 806 of the Old Civil Code defines
a legitime.
Articles 804 and 806 of the New Civil Code are new
provisions. Article 804 of the New Civil Code is taken from
Section 618 of the Code of Civil Procedure.20 Article 806 of
the New Civil Code is taken from Article 685 of the Old Civil
Code21 which provides:
Art. 685. The notary and two of the witnesses who
authenticate the will must be acquainted with the testator, or,
should they not know him, he shall be identified by two
witnesses who are acquainted with him and are known to the
notary and to the attesting witnesses. The notary and the
witnesses shall also endeavor to assure themselves that the
testator has, in their judgment, the legal capacity required to
make a will.
Witnesses authenticating a will without the attendance of a
notary, in cases falling under Articles 700 and 701, are also
required to know the testator.
However, the Code of Civil Procedure22 repealed Article 685
of the Old Civil Code. Under the Code of Civil Procedure, the
intervention of a notary is not necessary in the execution of
any will.23 Therefore, Abadas will does not require
acknowledgment before a notary public.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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 41
COMPILATION OF CASES (Page 2 of 9)
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.
 WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 42
COMPILATION OF CASES (Page 2 of 9)

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
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.

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)

ARTICLE 16
MICIANO v. BRIMO
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 43
COMPILATION OF CASES (Page 2 of 9)
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.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 44
COMPILATION OF CASES (Page 2 of 9)
BELLIS v. BELLIS
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23678 June 6, 1967
TESTATE ESTATE OF AMOS G. BELLIS, deceased.
PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS,
oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors
appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees
E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of law,
from an order of the Court of First Instance of Manila dated
April 30, 1964, approving the project of partition filed by the
executor in Civil Case No. 37089 therein.1wph1.t
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State of
Texas and of the United States." By his first wife, Mary E.
Mallen, whom he divorced, he had five legitimate children:
Edward A. Bellis, George Bellis (who pre-deceased him in
infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis
Allsman; by his second wife, Violet Kennedy, who survived
him, he had three legitimate children: Edwin G. Bellis, Walter
S. Bellis and Dorothy Bellis; and finally, he had three
illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis
and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the
Philippines, in which he directed that after all taxes,
obligations, and expenses of administration are paid for, his
distributable estate should be divided, in trust, in the
following order and manner: (a) $240,000.00 to his first wife,
Mary E. Mallen; (b) P120,000.00 to his three illegitimate
children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma
Bellis, or P40,000.00 each and (c) after the foregoing two
items have been satisfied, the remainder shall go to his
seven surviving children by his first and second wives,
namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis

and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis,
and Dorothy E. Bellis, in equal shares.1wph1.t
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.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 45
COMPILATION OF CASES (Page 2 of 9)
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.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 46
COMPILATION OF CASES (Page 2 of 9)
TESTATE ESTATE OF CHRISTENSEN v. GARCIA
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-16749 January 31, 1963
IN THE MATTER OF THE TESTATE ESTATE OF
EDWARD E. CHRISTENSEN, DECEASED.
ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN,
Heir of the deceased, Executor and Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for oppositor-
appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court of First
Instance of Davao, Hon. Vicente N. Cusi, Jr., presiding, in
Special Proceeding No. 622 of said court, dated September
14, 1949, approving among things the final accounts of the
executor, directing the executor to reimburse Maria Lucy
Christensen the amount of P3,600 paid by her to Helen
Christensen Garcia as her legacy, and declaring Maria Lucy
Christensen entitled to the residue of the property to be
enjoyed during her lifetime, and in case of death without
issue, one-half of said residue to be payable to Mrs. Carrie
Louise C. Borton, etc., in accordance with the provisions of
the will of the testator Edward E. Christensen. The will was
executed in Manila on March 5, 1951 and contains the
following provisions:
3. I declare ... that I have but ONE (1) child, named MARIA
LUCY CHRISTENSEN (now Mrs. Bernard Daney), who was
born in the Philippines about twenty-eight years ago, 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
 WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 47
COMPILATION OF CASES (Page 2 of 9)

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..
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

xxx xxx xxx THE LOWER COURT ERRED IN IGNORING THE

DECISION OF THE HONORABLE SUPREME COURT
12. I hereby give, devise and bequeath, unto my well- THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD
beloved daughter, the said MARIA LUCY CHRISTENSEN OF EDWARD E. CHRISTENSEN AND, CONSEQUENTLY,
DANEY (Mrs. Bernard Daney), now residing as aforesaid at IN DEPRIVING HER OF HER JUST SHARE IN THE
No. 665 Rodger Young Village, Los Angeles, California, INHERITANCE.
U.S.A., all the income from the rest, remainder, and residue
of my property and estate, real, personal and/or mixed, of II
whatsoever kind or character, and wheresoever situated, of
which I may be possessed at my death and which may have
THE LOWER COURT ERRED IN ENTIRELY IGNORING
come to me from any source whatsoever, during her lifetime:
AND/OR FAILING TO RECOGNIZE THE EXISTENCE OF
....
SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES
CALLING FOR THE APPLICATION OF INTERNAL LAW.
It is in accordance with the above-quoted provisions that the
executor in his final account and project of partition ratified
III
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. THE LOWER COURT ERRED IN FAILING TO RECOGNIZE
THAT UNDER INTERNATIONAL LAW, PARTICULARLY
UNDER THE RENVOI DOCTRINE, THE INTRINSIC
Opposition to the approval of the project of partition was filed
VALIDITY OF THE TESTAMENTARY DISPOSITION OF
by Helen Christensen Garcia, insofar as it deprives her
THE DISTRIBUTION OF THE ESTATE OF THE
(Helen) of her legitime as an acknowledged natural child, she
DECEASED EDWARD E. CHRISTENSEN SHOULD BE
having been declared by Us in G.R. Nos. L-11483-84 an
GOVERNED BY THE LAWS OF THE PHILIPPINES.
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 IV
Philippines, and (b) that said order of distribution is contrary
thereto insofar as it denies to Helen Christensen, one of two THE LOWER COURT ERRED IN NOT DECLARING THAT
acknowledged natural children, one-half of the estate in full THE SCHEDULE OF DISTRIBUTION SUBMITTED BY THE
ownership. In amplification of the above grounds it was EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS.
alleged that the law that should govern the estate of the
deceased Christensen should not be the internal law of V
California alone, but the entire law thereof because several
foreign elements are involved, that the forum is the THE LOWER COURT ERRED IN NOT DECLARING THAT
Philippines and even if the case were decided in California, UNDER THE PHILIPPINE LAWS HELEN CHRISTENSEN
Section 946 of the California Civil Code, which requires that GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE
the domicile of the decedent should apply, should be ESTATE IN FULL OWNERSHIP.
applicable. It was also alleged that Maria Helen Christensen
having been declared an acknowledged natural child of the
There is no question that Edward E. Christensen was a
decedent, she is deemed for all purposes legitimate from the
citizen of the United States and of the State of California at
time of her birth.
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
The court below ruled that as Edward E. Christensen was a witness the following facts admitted by the executor himself
citizen of the United States and of the State of California at in appellee's brief:
the time of his death, the successional rights and intrinsic
validity of the provisions in his will are to be governed by the
In the proceedings for admission of the will to probate, the
law of California, in accordance with which a testator has the
facts of record show that the deceased Edward E.
right to dispose of his property in the way he desires,
Christensen was born on November 29, 1875 in New York
because the right of absolute dominion over his property is
City, N.Y., U.S.A.; his first arrival in the Philippines, as an
sacred and inviolable (In re McDaniel's Estate, 77 Cal. Appl.
appointed school teacher, was on July 1, 1901, on board the
2d 877, 176 P. 2d 952, and In re Kaufman, 117 Cal. 286, 49
U.S. Army Transport "Sheridan" with Port of Embarkation as
Pac. 192, cited in page 179, Record on Appeal). Oppositor

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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 48
COMPILATION OF CASES (Page 2 of 9)
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.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 49
COMPILATION OF CASES (Page 2 of 9)
Strangely enough, both the advocates for and the objectors
to the renvoi plead that greater uniformity will result from
adoption of their respective views. And still more strange is
the fact that the only way to achieve uniformity in this choice-
of-law problem is if in the dispute the two states whose laws
form the legal basis of the litigation disagree as to whether
the renvoi should be accepted. If both reject, or both accept
the doctrine, the result of the litigation will vary with the
choice of the forum. In the case stated above, had the
Michigan court rejected the renvoi, judgment would have
been against the woman; if the suit had been brought in the
Illinois courts, and they too rejected the renvoi, judgment
would be for the woman. The same result would happen,
though the courts would switch with respect to which would
hold liability, if both courts accepted the renvoi.
The Restatement accepts the renvoi theory in two instances:
where the title to land is in question, and where the validity of
a decree of divorce is challenged. In these cases the Conflict
of Laws rule of the situs of the land, or the domicile of the
parties in the divorce case, is applied by the forum, but any
further reference goes only to the internal law. Thus, a
person's title to land, recognized by the situs, will be
recognized by every court; and every divorce, valid by the
domicile of the parties, will be valid everywhere. (Goodrich,
Conflict of Laws, Sec. 7, pp. 13-14.)
X, a citizen of Massachusetts, dies intestate, domiciled in
France, leaving movable property in Massachusetts,
England, and France. The question arises as to how this
property is to be distributed among X's next of kin.
Assume (1) that this question arises in a Massachusetts
court. There the rule of the conflict of laws as to intestate
succession to movables calls for an application of the law of
the deceased's last domicile. Since by hypothesis X's last
domicile was France, the natural thing for the Massachusetts
court to do would be to turn to French statute of distributions,
or whatever corresponds thereto in French law, and decree a
distribution accordingly. An examination of French law,
however, would show that if a French court were called upon
to determine how this property should be distributed, it would
refer the distribution to the national law of the deceased, thus
applying the Massachusetts statute of distributions. So on
the surface of things the Massachusetts court has open to it
alternative course of action: (a) either to apply the French
law is to intestate succession, or (b) to resolve itself into a
French court and apply the Massachusetts statute of
distributions, on the assumption that this is what a French
court would do. If it accepts the so-called renvoi doctrine, it
will follow the latter course, thus applying its own law.
This is one type of renvoi. A jural matter is presented which
the conflict-of-laws rule of the forum refers to a foreign law,
the conflict-of-laws rule of which, in turn, refers the matter
back again to the law of the forum. This is renvoi in the
narrower sense. The German term for this judicial process is
'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-
571.)

After a decision has been arrived at that a foreign law is to
be resorted to as governing a particular case, the further
question may arise: Are the rules as to the conflict of laws
contained in such foreign law also to be resorted to? This is
a question which, while it has been considered by the courts
in but a few instances, has been the subject of frequent
discussion by textwriters and essayists; and the doctrine
involved has been descriptively designated by them as the
"Renvoyer" to send back, or the "Ruchversweisung", or the
"Weiterverweisung", since an affirmative answer to the
question postulated and the operation of the adoption of the
foreign law in toto would in many cases result in returning the
main controversy to be decided according to the law of the
forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine of renvoi", has been
advanced. The theory of the doctrine of renvoi is that the
court of the forum, in determining the question before it, must
take into account the whole law of the other jurisdiction, but
also its rules as to conflict of laws, and then apply the law to
the actual question which the rules of the other jurisdiction
prescribe. This may be the law of the forum. The doctrine of
the renvoi has generally been repudiated by the American
authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has also been defined and
the reasons for its application in a country explained by Prof.
Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-
1918, pp. 529-531. The pertinent parts of the article are
quoted herein below:
The recognition of the renvoi theory implies that the rules of
the conflict of laws are to be understood as incorporating not
only the ordinary or internal law of the foreign state or
country, but its rules of the conflict of laws as well. According
to this theory 'the law of a country' means the whole of its
law.
xxx xxx xxx
Von Bar presented his views at the meeting of the Institute of
International Law, at Neuchatel, in 1900, in the form of the
following theses:
(1) Every court shall observe the law of its country as
regards the application of foreign laws.
(2) Provided that no express provision to the contrary exists,
the court shall respect:
(a) The provisions of a foreign law which disclaims the right
to bind its nationals abroad as regards their personal statute,
and desires that said personal statute shall be determined by
the law of the domicile, or even by the law of the place where
the act in question occurred.
(b) The decision of two or more foreign systems of law,
provided it be certain that one of them is necessarily
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 50
COMPILATION OF CASES (Page 2 of 9)
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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 51
COMPILATION OF CASES (Page 2 of 9)
instructions that the partition be made as the Philippine law
on succession provides. Judgment reversed, with costs
against appellees.
CAYETANO v. LEONIDAS
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-54919 May 30, 1984
POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity as the
Presiding Judge of Branch XXXVIII, Court of First
Instance of Manila and NENITA CAMPOS PAGUIA,
respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari, seeking to annul the
order of the respondent judge of the Court of First Instance
of Manila, Branch XXXVIII, which admitted to and allowed
the probate of the last will and testament of Adoracion C.
Campos, after an ex-parte presentation of evidence by
herein private respondent.
On January 31, 1977, Adoracion C. Campos died, leaving
her father, petitioner Hermogenes Campos and her sisters,
private respondent Nenita C. Paguia, Remedios C. Lopez
and Marieta C. Medina as the surviving heirs. As
Hermogenes Campos was the only compulsory heir, he
executed an Affidavit of Adjudication under Rule 74, Section
I of the Rules of Court whereby he adjudicated unto himself
the ownership of the entire estate of the deceased Adoracion
Campos.
Eleven months after, on November 25, 1977, Nenita C.
Paguia filed a petition for the reprobate of a will of the
deceased, Adoracion Campos, which was allegedly
executed in the United States and for her appointment as
administratrix of the estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an
American citizen at the time of her death and was a
permanent resident of 4633 Ditman Street, Philadelphia,
Pennsylvania, U.S.A.; that the testatrix died in Manila on
January 31, 1977 while temporarily residing with her sister at
2167 Leveriza, Malate, Manila; that during her lifetime, the

testatrix made her last wig and testament on July 10, 1975,
according to the laws of Pennsylvania, U.S.A., nominating
Wilfredo Barzaga of New Jersey as executor; that after the
testatrix death, her last will and testament was presented,
probated, allowed, and registered with the Registry of Wins
at the County of Philadelphia, U.S.A., that Clement L.
McLaughlin, the administrator who was appointed after Dr.
Barzaga had declined and waived his appointment as
executor in favor of the former, is also a resident of
Philadelphia, U.S.A., and that therefore, there is an urgent
need for the appointment of an administratrix to administer
and eventually distribute the properties of the estate located
in the Philippines.
On January 11, 1978, an opposition to the reprobate of the
will was filed by herein petitioner alleging among other
things, that he has every reason to believe that the will in
question is a forgery; that the intrinsic provisions of the will
are null and void; and that even if pertinent American laws on
intrinsic provisions are invoked, the same could not apply
inasmuch as they would work injustice and injury to him.
On December 1, 1978, however, the petitioner through his
counsel, Atty. Franco Loyola, filed a Motion to Dismiss
Opposition (With Waiver of Rights or Interests) stating that
he "has been able to verify the veracity thereof (of the will)
and now confirms the same to be truly the probated will of
his daughter Adoracion." Hence, an ex-parte presentation 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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 52
COMPILATION OF CASES (Page 2 of 9)
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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 53
COMPILATION OF CASES (Page 2 of 9)
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.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 54
COMPILATION OF CASES (Page 2 of 9)
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.
PCIB v. ESCOLIN
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-27860 and L-27896 March 29, 1974
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK,
Administrator of the Testate Estate of Charles Newton
Hodges (Sp. Proc. No. 1672 of the Court of First Instance
of Iloilo), petitioner,
vs.
THE HONORABLE VENICIO ESCOLIN, Presiding Judge
of the Court of First Instance of Iloilo, Branch II, and
AVELINA A. MAGNO, respondents.
G.R. Nos. L-27936 & L-27937 March 29, 1974
TESTATE ESTATE OF THE LATE LINNIE JANE HODGES
(Sp. Proc. No. 1307). TESTATE ESTATE OF THE LATE
CHARLES NEWTON HODGES (Sp. Proc. No. 1672).
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK,
administrator-appellant,
vs.
LORENZO CARLES, JOSE PABLICO, ALFREDO
CATEDRAL, SALVADOR GUZMAN, BELCESAR
CAUSING, FLORENIA BARRIDO, PURIFICACION
CORONADO, GRACIANO LUCERO, ARITEO THOMAS
JAMIR, MELQUIADES BATISANAN, PEPITO IYULORES,
ESPERIDION PARTISALA, WINIFREDO ESPADA,
ROSARIO ALINGASA, ADELFA PREMAYLON,
SANTIAGO PACAONSIS, and AVELINA A. MAGNO, the
last as Administratrix in Sp. Proc. No. 1307, appellees,
WESTERN INSTITUTE OF TECHNOLOGY, INC., movant-
appellee.

San Juan, Africa, Gonzales and San Agustin for Philippine
Commercial and Industrial Bank.
Manglapus Law Office, Antonio Law Office and Rizal R.
Quimpo for private respondents and appellees Avelina A.
Magno, etc., et al.
BARREDO, J.:p
Certiorari and prohibition with preliminary injunction;
certiorari to "declare all acts of the respondent court in the
Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307 of
the Court of First Instance of Iloilo) subsequent to the order
of December 14, 1957 as null and void for having been
issued without jurisdiction"; prohibition to enjoin the
respondent court from allowing, tolerating, sanctioning, or
abetting private respondent Avelina A. Magno to perform or
do any acts of administration, such as those enumerated in
the petition, and from exercising any authority or power as
Regular Administratrix of above-named Testate Estate, by
entertaining manifestations, motion and pleadings filed by
her and acting on them, and also to enjoin said court from
allowing said private respondent to interfere, meddle or take
part in any manner in the administration of the Testate Estate
of Charles Newton Hodges (Sp. Proc. No. 1672 of the same
court and branch); with prayer for preliminary injunction,
which was issued by this Court on August 8, 1967 upon a
bond of P5,000; the petition being particularly directed
against the orders of the respondent court of October 12,
1966 denying petitioner's motion of April 22, 1966 and its
order of July 18, 1967 denying the motion for reconsideration
of said order.
Related to and involving basically the same main issue as
the foregoing petition, thirty-three (33) appeals from different
orders of the same respondent court approving or otherwise
sanctioning the acts of administration of the respondent
Magno on behalf of the testate Estate of Mrs. Hodges.
THE FACTS
On May 23, 1957, Linnie Jane Hodges died in Iloilo City
leaving a will executed on November 22, 1952 pertinently
providing as follows:
FIRST: I direct that all my just debts and funeral expenses be
first paid out of my estate.
SECOND: I give, devise and bequeath all of the rest, residue
and remainder of my estate, both personal and real,
wherever situated, or located, to my beloved husband,
Charles Newton Hodges, to have and to hold unto him, my
said husband, during his natural lifetime.
THIRD: I desire, direct and provide that my husband, Charles
Newton Hodges, shall have the right to manage, control, use
and enjoy said estate during his lifetime, and he is hereby
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 55
COMPILATION OF CASES (Page 2 of 9)
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.)
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 56
COMPILATION OF CASES (Page 2 of 9)
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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 57
COMPILATION OF CASES (Page 2 of 9)
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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 58
COMPILATION OF CASES (Page 2 of 9)
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.
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COMPILATION OF CASES (Page 2 of 9)
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,
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COMPILATION OF CASES (Page 2 of 9)
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
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COMPILATION OF CASES (Page 2 of 9)
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).
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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.)
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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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 64
COMPILATION OF CASES (Page 2 of 9)
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
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COMPILATION OF CASES (Page 2 of 9)
the death of his wife, which contract petitioner claims it had
cancelled on June 29, 1960, for failure of appellee Pablico to
pay the installments due on time.
11. Order of December 2, 1966, on pp. 303-304, id., insofar
as it approved the deed of sale executed by respondent
Magno in favor of appellee Pepito Iyulores on September 6,
1966, pursuant to a "contract to sell" signed by Hodges on
February 5, 1951, before the death of his wife.
12. Order of January 3, 1967, on pp. 335-336, id., approving
three deeds of sale executed by respondent Magno, one in
favor of appellees Santiago Pacaonsis and two in favor of
appellee Adelfa Premaylon on December 5, 1966 and
November 3, 1966, respectively, pursuant to separate
"promises to sell" signed respectively by Hodges on May 26,
1955 and January 30, 1954, before the death of his wife, and
October 31, 1959, after her death.
In like manner, there were also instances when respondent
court approved deeds of sale executed by petitioner alone
and without the concurrence of respondent Magno, and such
approvals have not been the subject of any appeal. No less
than petitioner points this out on pages 149-150 of its brief
as appellant thus:
The points of fact and law pertaining to the two abovecited
assignments of error have already been discussed
previously. In the first abovecited error, the order alluded to
was general, and as already explained before, it was, as
admitted by the lower court itself, superseded by the
particular orders approving specific final deeds of sale
executed by the appellee, Avelina A. Magno, which are
subject of this appeal, as well as the particular orders
approving specific final deeds of sale executed by the
appellant, Philippine Commercial and Industrial Bank, which
were never appealed by the appellee, Avelina A. Magno, nor
by any party for that matter, and which are now therefore
final.
Now, simultaneously with the foregoing incidents, others of
more fundamental and all embracing significance developed.
On October 5, 1963, over the signature of Atty. Allison J.
Gibbs in representation of the law firm of Ozaeta, Gibbs &
Ozaeta, as counsel for the co-administrators Joe Hodges
and Fernando P. Mirasol, the following self-explanatory
motion was filed:
URGENT MOTION FOR AN ACCOUNTING AND
DELIVERY TO ADMINISTRATION OF THE ESTATE OF C.
N. HODGES OF ALL OF THE ASSETS OF THE
CONJUGAL PARTNERSHIP OF THE DECEASED LINNIE
JANE HODGES AND C N. HODGES EXISTING AS OF
MAY 23, 1957 PLUS ALL THE RENTS, EMOLUMENTS
AND INCOME THEREFROM.
COMES NOW the co-administrator of the estate of C. N.
Hodges, Joe Hodges, through his undersigned attorneys in
the above-entitled proceedings, and to this Honorable Court
respectfully alleges:

(1) On May 23, 1957 Linnie Jane Hodges died in Iloilo City.
(2) On June 28, 1957 this Honorable Court admitted to
probate the Last Will and Testament of the deceased Linnie
Jane Hodges executed November 22, 1952 and appointed
C. N. Hodges as Executor of the estate of Linnie Jane
Hodges (pp. 24-25, Rec. Sp. Proc. 1307).
(3) On July 1, 1957 this Honorable Court issued Letters
Testamentary to C. N. Hodges in the Estate of Linnie Jane
Hodges (p. 30, Rec. Sp. Proc. 1307).
(4) On December 14, 1957 this Honorable Court, on the
basis of the following allegations in a Motion dated
December 11, 1957 filed by Leon P. Gellada as attorney for
the executor C. N. Hodges:
"That herein Executor, (is) not only part owner of the
properties left as conjugal, but also, the successor to all the
properties left by the deceased Linnie Jane Hodges."
(p. 44, Rec. Sp. Proc. 1307; emphasis supplied.)
issued the following order:
"As prayed for by Attorney Gellada, counsel for the
Executory, for the reasons stated in his motion dated
December 11, 1957 which the court considers well taken, all
the sales, conveyances, leases and mortgages of all
properties left by the deceased Linnie Jane Hodges are
hereby APPROVED. The said executor is further authorized
to execute subsequent sales, conveyances, leases and
mortgages of the properties left by the said deceased Linnie
Jane Hodges in consonance with the wishes contained in the
last will and testament of the latter."
(p. 46, Rec. Sp. Proc. 1307; emphasis supplied.)
(5) On April 21, 1959 this Honorable Court approved the
inventory and accounting submitted by C. N. Hodges through
his counsel Leon P. Gellada on April 14, 1959 wherein he
alleged among other things
"That no person interested in the Philippines of the time and
place of examining the herein account, be given notice, as
herein executor is the only devisee or legatee of the
deceased, in accordance with the last will and testament
already probated by the Honorable Court."
(pp. 77-78, Rec. Sp. Proc. 1307; emphasis supplied.).
(6) On July 30, 1960 this Honorable Court approved the
"Annual Statement of Account" submitted by C. N. Hodges
through his counsel Leon P. Gellada on July 21, 1960
wherein he alleged among other things:
"That no person interested in the Philippines of the time and
place of examining the herein account, be given notice as
herein executor is the only devisee or legatee of the
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 66
COMPILATION OF CASES (Page 2 of 9)
deceased Linnie Jane Hodges, in accordance with the last
will and testament of the deceased, already probated by this
Honorable Court."
(pp. 81-82. Rec. Sp. Proc. 1307; emphasis supplied.)
(7) On May 2, 1961 this Honorable court approved the
"Annual Statement of Account By The Executor for the Year
1960" submitted through Leon P. Gellada on April 20, 1961
wherein he alleged:
That no person interested in the Philippines be given notice,
of the time and place of examining the herein account, as
herein Executor is the only devisee or legatee of the
deceased Linnie Jane Hodges, in accordance with the last
will and testament of the deceased, already probated by this
Honorable Court.
(pp. 90-91. Rec. Sp. Proc. 1307; emphasis supplied.)
(8) On December 25, 1962, C.N. Hodges died.
(9) On December 25, 1962, on the Urgent Ex-parte Motion of
Leon P. Gellada filed only in Special Proceeding No. 1307,
this Honorable Court appointed Avelina A. Magno
"Administratrix of the estate of Linnie Jane Hodges and as
Special Administratrix of the estate of Charles Newton
Hodges, in the latter case, because the last will of said
Charles Newton Hodges is still kept in his vault or iron safe
and that the real and personal properties of both spouses
may be lost, damaged or go to waste, unless a Special
Administratrix is appointed."
(p. 100. Rec. Sp. Proc. 1307)
(10) On December 26, 1962 Letters of Administration were
issued to Avelina Magno pursuant to this Honorable Court's
aforesaid Order of December 25, 1962
"With full authority to take possession of all the property of
said deceased in any province or provinces in which it may
be situated and to perform all other acts necessary for the
preservation of said property, said Administratrix and/or
Special Administratrix having filed a bond satisfactory to the
Court."
(p. 102, Rec. Sp. Proc. 1307)
(11) On January 22, 1963 this Honorable Court on petition of
Leon P. Gellada of January 21, 1963 issued Letters of
Administration to:
(a) Avelina A. Magno as Administratrix of the estate of Linnie
Jane Hodges;
(b) Avelina A. Magno as Special Administratrix of the Estate
of Charles Newton Hodges; and

(c) Joe Hodges as Co-Special Administrator of the Estate of
Charles Newton Hodges.
(p. 43, Rec. Sp. Proc. 1307)
(12) On February 20, 1963 this Honorable Court on the basis
of a motion filed by Leon P. Gellada as legal counsel on
February 16, 1963 for Avelina A. Magno acting as
Administratrix of the Estate of Charles Newton Hodges (pp.
114-116, Sp. Proc. 1307) issued the following order:
"... se autoriza a aquella (Avelina A. Magno) a firmar
escrituras de venta definitiva de propiedades cubiertas por
contratos para vender, firmados, en vida, por el finado
Charles Newton Hodges, cada vez que el precio estipulado
en cada contrato este totalmente pagado. Se autoriza
igualmente a la misma a firmar escrituras de cancelacion de
hipoteca tanto de bienes reales como personales cada vez
que la consideracion de cada hipoteca este totalmente
pagada.
"Cada una de dichas escrituras que se otorguen debe ser
sometida para la aprobacion de este Juzgado."
(p. 117, Sp. Proc. 1307).
[Par 1 (c), Reply to Motion For Removal of Joe Hodges]
(13) On September l6, 1963 Leon P. Gellada, acting as
attorney for Avelina A. Magno as Administratrix of the estate
of Linnie Jane Hodges, alleges:
3. That since January, 1963, both estates of Linnie Jane
Hodges and Charles Newton Hodges have been receiving in
full, payments for those "contracts to sell" entered into by C.
N. Hodges during his lifetime, and the purchasers have been
demanding the execution of definite deeds of sale in their
favor.
4. That hereto attached are thirteen (13) copies deeds of
sale executed by the Administratrix and by the co-
administrator (Fernando P. Mirasol) of the estate of Linnie
Jane Hodges and Charles Newton Hodges respectively, in
compliance with the terms and conditions of the respective
"contracts to sell" executed by the parties thereto."
(14) The properties involved in the aforesaid motion of
September 16, 1963 are all registered in the name of the
deceased C. N. Hodges.
(15) Avelina A. Magno, it is alleged on information and belief,
has been advertising in the newspaper in Iloilo thusly:
For Sale
Testate Estate of Linnie Jane Hodges and Charles Newton
Hodges.
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COMPILATION OF CASES (Page 2 of 9)
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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 68
COMPILATION OF CASES (Page 2 of 9)
administrated jointly by the PCIB as administrator of the
estate of C. N. Hodges and Avelina A. Magno as
administratrix of the estate of Linnie Jane Hodges, subject,
however, to the aforesaid October 5, 1963 Motion, namely,
the PCIB's claim to exclusive possession and ownership of
one-hundred percent (10017,) (or, in the alternative, seventy-
five percent [75%] of all assets owned by C. N. Hodges or
Linnie Jane Hodges situated in the Philippines. On February
1, 1964 (pp. 934-935, CFI Rec., S. P. No. 1672) this
Honorable Court amended its order of January 24, 1964 but
in no way changes its recognition of the aforedescribed basic
demand by the PCIB as administrator of the estate of C. N.
Hodges to one hundred percent (100%) of the assets
claimed by both estates.
4. On February 15, 1964 the PCIB filed a "Motion to
Resolve" the aforesaid Motion of October 5, 1963. This
Honorable Court set for hearing on June 11, 1964 the Motion
of October 5, 1963.
5. On June 11, 1964, because the undersigned Allison J.
Gibbs was absent in the United States, this Honorable Court
ordered the indefinite postponement of the hearing of the
Motion of October 5, 1963.
6. Since its appointment as administrator of the estate of C.
N. Hodges the PCIB has not been able to properly carry out
its duties and obligations as administrator of the estate of C.
N. Hodges because of the following acts, among others, of
Avelina A. Magno and those who claim to act for her as
administratrix of the estate of Linnie Jane Hodges:
(a) Avelina A. Magno illegally acts as if she is in exclusive
control of all of the assets in the Philippines of both estates
including those claimed by the estate of C. N. Hodges as
evidenced in part by her locking the premises at 206-208
Guanco Street, Iloilo City on August 31, 1964 and refusing to
reopen same until ordered to do so by this Honorable Court
on September 7, 1964.
(b) Avelina A. Magno illegally acts as though she alone may
decide how the assets of the estate of C.N. Hodges should
be administered, who the PCIB shall employ and how much
they may be paid as evidenced in party by her refusal to sign
checks issued by the PCIB payable to the undersigned
counsel pursuant to their fee agreement approved by this
Honorable Court in its order dated March 31, 1964.
(c) Avelina A. Magno illegally gives access to and turns over
possession of the records and assets of the estate of C.N.
Hodges to the attorney-in-fact of the Higdon Family, Mr.
James L. Sullivan, as evidenced in part by the cashing of his
personal checks.
(d) Avelina A. Magno illegally refuses to execute checks
prepared by the PCIB drawn to pay expenses of the estate
of C. N. Hodges as evidenced in part by the check drawn to
reimburse the PCIB's advance of P48,445.50 to pay the
1964 income taxes reported due and payable by the estate
of C.N. Hodges.

7. Under and pursuant to the orders of this Honorable Court,
particularly those of January 24 and February 1, 1964, and
the mandate contained in its Letters of Administration issued
on January 24, 1964 to the PCIB, it has
"full authority to take possession of all the property of the
deceased C. N. Hodges
"and to perform all other acts necessary for the preservation
of said property." (p. 914, CFI Rec., S.P. No. 1672.)
8. As administrator of the estate of C. N. Hodges, the PCIB
claims the right to the immediate exclusive possession and
control of all of the properties, accounts receivables, court
cases, bank accounts and other assets, including the
documentary records evidencing same, which existed in the
Philippines on the date of C. N. Hodges' death, December
25, 1962, and were in his possession and registered in his
name alone. The PCIB knows of no assets in the Philippines
registered in the name of Linnie Jane Hodges, the estate of
Linnie Jane Hodges, or, C. N. Hodges, Executor of the
Estate of Linnie Jane Hodges on December 25, 1962. All of
the assets of which the PCIB has knowledge are either
registered in the name of C. N. Hodges, alone or were
derived therefrom since his death on December 25, 1962.
9. The PCIB as the current administrator of the estate of C.
N. Hodges, deceased, succeeded to all of the rights of the
previously duly appointed administrators of the estate of C.
N. Hodges, to wit:
(a) On December 25, 1962, date of C. N. Hodges' death, this
Honorable Court appointed Miss Avelina A. Magno
simultaneously as:
(i) Administratrix of the estate of Linnie Jane Hodges (p. 102,
CFI Rec., S.P. No. 1307) to replace the deceased C. N.
Hodges who on May 28, 1957 was appointed Special
Administrator (p. 13. CFI Rec. S.P. No. 1307) and on July 1,
1957 Executor of the estate of Linnie Jane Hodges (p. 30,
CFI Rec., S. P. No. 1307).
(ii) Special Administratrix of the estate of C. N. Hodges (p.
102, CFI Rec., S.P. No. 1307).
(b) On December 29, 1962 this Honorable Court appointed
Harold K. Davies as co-special administrator of the estate of
C.N. Hodges along with Avelina A. Magno (pp. 108-111, CFI
Rec., S. P. No. 1307).
(c) On January 22, 1963, with the conformity of Avelina A.
Magno, Harold K. Davies resigned in favor of Joe Hodges
(pp. 35-36, CFI Rec., S.P. No. 1672) who thereupon was
appointed on January 22, 1963 by this Honorable Court as
special co-administrator of the estate of C.N. Hodges (pp.
38-40 & 43, CFI Rec. S.P. No. 1672) along with Miss Magno
who at that time was still acting as special co-administratrix
of the estate of C. N. Hodges.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 69
COMPILATION OF CASES (Page 2 of 9)
(d) On February 22, 1963, without objection on the part of
Avelina A. Magno, this Honorable Court appointed Joe
Hodges and Fernando P. Mirasol as co-administrators of the
estate of C.N. Hodges (pp. 76-78, 81 & 85, CFI Rec., S.P.
No. 1672).
10. Miss Avelina A. Magno, pursuant to the orders of this
Honorable Court of December 25, 1962, took possession of
all Philippine Assets now claimed by the two estates. Legally,
Miss Magno could take possession of the assets registered
in the name of C. N. Hodges alone only in her capacity as
Special Administratrix of the Estate of C.N. Hodges. With the
appointment by this Honorable Court on February 22, 1963
of Joe Hodges and Fernando P. Mirasol as the co-
administrators of the estate of C.N. Hodges, they legally
were entitled to take over from Miss Magno the full and
exclusive possession of all of the assets of the estate of C.N.
Hodges. With the appointment on January 24, 1964 of the
PCIB as the sole administrator of the estate of C.N. Hodges
in substitution of Joe Hodges and Fernando P. Mirasol, the
PCIB legally became the only party entitled to the sole and
exclusive possession of all of the assets of the estate of C.
N. Hodges.
11. The PCIB's predecessors submitted their accounting and
this Honorable Court approved same, to wit:
(a) The accounting of Harold K. Davies dated January 18,
1963 (pp. 16-33, CFI Rec. S.P. No. 1672); which shows or its
face the:
(i) Conformity of Avelina A. Magno acting as "Administratrix
of the Estate of Linnie Jane Hodges and Special
Administratrix of the Estate of C. N. Hodges";
(ii) Conformity of Leslie Echols, a Texas lawyer acting for the
heirs of C.N. Hodges; and
(iii) Conformity of William Brown, a Texas lawyer acting for
the Higdon family who claim to be the only heirs of Linnie
Jane Hodges (pp. 18, 25-33, CFI Rec., S. P. No. 1672).
Note: This accounting was approved by this Honorable Court
on January 22, 1963 (p. 34, CFI Rec., S. P. No. 1672).
(b) The accounting of Joe Hodges and Fernando P. Mirasol
as of January 23, 1964, filed February 24, 1964 (pp. 990-
1000, CFI Rec. S.P. No. 1672 and pp. 1806-1848, CFI Rec.
S.P. No. 1307).
Note: This accounting was approved by this Honorable Court
on March 3, 1964.
(c) The PCIB and its undersigned lawyers are aware of no
report or accounting submitted by Avelina A. Magno of her
acts as administratrix of the estate of Linnie Jane Hodges or
special administratrix of the estate of C.N. Hodges, unless it
is the accounting of Harold K. Davies as special co-
administrator of the estate of C.N. Hodges dated January 18,

1963 to which Miss Magno manifested her conformity
(supra).
12. In the aforesaid agreement of January 24, 1964, Miss
Avelina A. Magno agreed to receive P10,000.00
"for her services as administratrix of the estate of Linnie Jane
Hodges"
and in addition she agreed to be employed, starting February
1, 1964, at
"a monthly salary of P500.00 for her services as an
employee of both estates."
24 ems.
13. Under the aforesaid agreement of January 24, 1964 and
the orders of this Honorable Court of same date, the PCIB as
administrator of the estate of C. N. Hodges is entitled to the
exclusive possession of all records, properties and assets in
the name of C. N. Hodges as of the date of his death on
December 25, 1962 which were in the possession of the
deceased C. N. Hodges on that date and which then passed
to the possession of Miss Magno in her capacity as Special
Co-Administratrix of the estate of C. N. Hodges or the
possession of Joe Hodges or Fernando P. Mirasol as co-
administrators of the estate of C. N. Hodges.
14. Because of Miss Magno's refusal to comply with the
reasonable request of PCIB concerning the assets of the
estate of C. N. Hodges, the PCIB dismissed Miss Magno as
an employee of the estate of C. N. Hodges effective August
31, 1964. On September 1, 1964 Miss Magno locked the
premises at 206-208 Guanco Street and denied the PCIB
access thereto. Upon the Urgent Motion of the PCIB dated
September 3, 1964, this Honorable Court on September 7,
1964 ordered Miss Magno to reopen the aforesaid premises
at 206-208 Guanco Street and permit the PCIB access
thereto no later than September 8, 1964.
15. The PCIB pursuant to the aforesaid orders of this
Honorable Court is again in physical possession of all of the
assets of the estate of C. N. Hodges. However, the PCIB is
not in exclusive control of the aforesaid records, properties
and assets because Miss Magno continues to assert the
claims hereinabove outlined in paragraph 6, continues to use
her own locks to the doors of the aforesaid premises at 206-
208 Guanco Street, Iloilo City and continues to deny the
PCIB its right to know the combinations to the doors of the
vault and safes situated within the premises at 206-208
Guanco Street despite the fact that said combinations were
known to only C. N. Hodges during his lifetime.
16. The Philippine estate and inheritance taxes assessed the
estate of Linnie Jane Hodges were assessed and paid on
the basis that C. N. Hodges is the sole beneficiary of the
assets of the estate of Linnie Jane Hodges situated in the
Philippines. Avelina A. Magno and her legal counsel at no
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 70
COMPILATION OF CASES (Page 2 of 9)
time have questioned the validity of the aforesaid
assessment and the payment of the corresponding
Philippine death taxes.
17. Nothing further remains to be done in the estate of Linnie
Jane Hodges except to resolve the aforesaid Motion of
October 5, 1963 and grant the PCIB the exclusive
possession and control of all of the records, properties and
assets of the estate of C. N. Hodges.
18. Such assets as may have existed of the estate of Linnie
Jane Hodges were ordered by this Honorable Court in
special Proceedings No. 1307 to be turned over and
delivered to C. N. Hodges alone. He in fact took possession
of them before his death and asserted and exercised the
right of exclusive ownership over the said assets as the sole
beneficiary of the estate of Linnie Jane Hodges.
WHEREFORE, premises considered, the PCIB respectfully
petitions that this Honorable court:
(1) Set the Motion of October 5, 1963 for hearing at the
earliest possible date with notice to all interested parties;
(2) Order Avelina A. Magno to submit an inventory and
accounting as Administratrix of the Estate of Linnie Jane
Hodges and Co-Administratrix of the Estate of C. N. Hodges
of all of the funds, properties and assets of any character
belonging to the deceased Linnie Jane Hodges and C. N.
Hodges which have come into her possession, with full
details of what she has done with them;
(3) Order Avelina A. Magno to turn over and deliver to the
PCIB as administrator of the estate of C. N. Hodges all of the
funds, properties and assets of any character remaining in
her possession;
(4) Pending this Honorable Court's adjudication of the
aforesaid issues, order Avelina A. Magno and her
representatives to stop interferring with the administration of
the estate of C. N. Hodges by the PCIB and its duly
authorized representatives;
(5) Enjoin Avelina A. Magno from working in the premises at
206-208 Guanco Street, Iloilo City as an employee of the
estate of C. N. Hodges and approve her dismissal as such
by the PCIB effective August 31, 1964;
(6) Enjoin James L. Sullivan, Attorneys Manglapus and
Quimpo and others allegedly representing Miss Magno from
entering the premises at 206-208 Guanco Street, Iloilo City
or any other properties of C. N. Hodges without the express
permission of the PCIB;
(7) Order such other relief as this Honorable Court finds just
and equitable in the premises. (Annex "U" Petition.)
On January 8, 1965, petitioner also filed a motion for "Official
Declaration of Heirs of Linnie Jane Hodges Estate" alleging:

COMES NOW Philippine Commercial and Industrial Bank
(hereinafter referred to as PCIB), as administrator of the
estate of the late C. N. Hodges, through the undersigned
counsel, and to this Honorable Court respectfully alleges
that:
1. During their marriage, spouses Charles Newton Hodges
and Linnie Jane Hodges, American citizens originally from
the State of Texas, U.S.A., acquired and accumulated
considerable assets and properties in the Philippines and in
the States of Texas and Oklahoma, United States of
America. All said properties constituted their conjugal estate.
2. Although Texas was the domicile of origin of the Hodges
spouses, this Honorable Court, in its orders dated March 31
and December 12, 1964 (CFI Record, Sp. Proc. No. 1307,
pp. ----; Sp. Proc. No. 1672, p. ----), conclusively found and
categorically ruled that said spouses had lived and worked
for more than 50 years in Iloilo City and had, therefore,
acquired a domicile of choice in said city, which they retained
until the time of their respective deaths.
3. On November 22, 1952, Linnie Jane Hodges executed in
the City of Iloilo her Last Will and Testament, a copy of which
is hereto attached as Annex "A". The bequests in said will
pertinent to the present issue are the second, third, and
fourth provisions, which we quote in full hereunder.
SECOND: I give, devise and bequeath all of the rest, residue
and remainder of my estate, both personal and real,
wherever situated, or located, to my husband, Charles
Newton Hodges, to have and to hold unto him, my said
husband during his natural lifetime.
THIRD: I desire, direct and provide that my husband, Charles
Newton Hodges, shall have the right to manage, control, use
and enjoy said estate during his lifetime, and he is hereby
given the right to make any changes in the physical
properties of said estate by sale of any part thereof which he
think best, and the purchase of any other or additional
property as he may think best; to execute conveyances with
or without general or special warranty, conveying in fee
simple or for any other term or time, any property which he
may deem proper to dispose of; to lease any of the real
property for oil, gas and/or other minerals, and all such
deeds or leases shall pass the absolute fee simple title to the
interest so conveyed in such property as he may elect to sell.
All rents, emoluments and income from said estate shall
belong to him, and he is further authorized to use any part of
the principal of said estate as he may need or desire. It is
provided herein, however, that he shall not sell or otherwise
dispose of any of the improved property now owned by us
located at, in or near the City of Lubbock, Texas, but he shall
have the full right to lease, manage and enjoy the same
during his lifetime, as above provided. He shall have the right
to sub-divide any farmland and sell lots therein, and may sell
unimproved town lots.
FOURTH: At the death of my said husband, Charles Newton
Hodges, I give, devise and bequeath all of the rest, residue
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 71
COMPILATION OF CASES (Page 2 of 9)
and remainder of my estate both real and personal, wherever
situated or located, to be equally divided among my brothers
and sisters, share and share alike, namely:
"Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon,
Sadie Rascoe, Era Boman and Nimray Higdon."
4. On November 14, 1953, C. N. Hodges executed in the
City of Iloilo his Last Will and Testament, a copy of which is
hereto attached as Annex "B ". In said Will, C. N. Hodges
designated his wife, Linnie Jane Hodges, as his beneficiary
using the identical language she used in the second and
third provisos of her Will, supra.
5. On May 23, 1957 Linnie Jane Hodges died in Iloilo City,
predeceasing her husband by more than five (5) years. At
the time of her death, she had no forced or compulsory heir,
except her husband, C. N. Hodges. She was survived also
by various brothers and sisters mentioned in her Will (supra),
which, for convenience, we shall refer to as the HIGDONS.
6. On June 28, 1957, this Honorable Court admitted to
probate the Last Will and Testament of the deceased Linnie
Jane Hodges (Annex "A"), and appointed C. N. Hodges as
executor of her estate without bond. (CFI Record, Sp. Proc.
No. 1307, pp. 24-25). On July 1, 1957, this Honorable Court
issued letters testamentary to C. N. Hodges in the estate of
Linnie Jane Hodges. (CFI Record, Sp. Proc. No. 1307, p.
30.)
7. The Will of Linnie Jane Hodges, with respect to the order
of succession, the amount of successional rights, and the
intrinsic of its testamentary provisions, should be governed
by Philippine laws because:
(a) The testatrix, Linnie Jane Hodges, intended Philippine
laws to govern her Will;
(b) Article 16 of the Civil Code provides that "the national law
of the person whose succession is under consideration,
whatever may be the nature of the property and regardless
of the country wherein said property may be found", shall
prevail. However, the Conflict of Law of Texas, which is the
"national law" of the testatrix, Linnie Jane Hodges, provide
that the domiciliary law (Philippine law see paragraph 2,
supra) should govern the testamentary dispositions and
successional rights over movables (personal properties), and
the law of the situs of the property (also Philippine law as to
properties located in the Philippines) with regards immovable
(real properties). Thus applying the "Renvoi Doctrine", as
approved and applied by our Supreme Court in the case of
"In The Matter Of The Testate Estate of Eduard E.
Christensen", G.R. No.
L-16749, promulgated January 31, 1963, Philippine law
should apply to the Will of Linnie Jane Hodges and to the
successional rights to her estate insofar as her movable and
immovable assets in the Philippines are concerned. We shall
not, at this stage, discuss what law should govern the assets
of Linnie Jane Hodges located in Oklahoma and Texas,
because the only assets in issue in this motion are those

within the jurisdiction of this motion Court in the two above-
captioned Special Proceedings.
8. Under Philippine and Texas law, the conjugal or
community estate of spouses shall, upon dissolution, be
divided equally between them. Thus, upon the death of
Linnie Jane Hodges on May 23, 1957, one-half (1/2) of the
entirety of the assets of the Hodges spouses constituting
their conjugal estate pertained automatically to Charles
Newton Hodges, not by way of inheritance, but in his own
right as partner in the conjugal partnership. The other one-
half (1/2) portion of the conjugal estate constituted the estate
of Linnie Jane Hodges. This is the only portion of the
conjugal estate capable of inheritance by her heirs.
9. This one-half (1/2) portion of the conjugal assets
pertaining to Linnie Jane Hodges cannot, under a clear and
specific provision of her Will, be enhanced or increased by
income, earnings, rents, or emoluments accruing after her
death on May 23, 1957. Linnie Jane Hodges' Will provides
that "all rents, emoluments and income from said estate shall
belong to him (C. N. Hodges) and he is further authorized to
use any part of the principal of said estate as he may need or
desire." (Paragraph 3, Annex "A".) Thus, by specific
provision of Linnie Jane Hodges' Will, "all rents, emoluments
and income" must be credited to the one-half (1/2) portion of
the conjugal estate pertaining to C. N. Hodges. Clearly,
therefore, the estate of Linnie Jane Hodges, capable of
inheritance by her heirs, consisted exclusively of no more
than one-half (1/2) of the conjugal estate, computed as of the
time of her death on May 23, 1957.
10. Articles 900, 995 and 1001 of the New Civil Code provide
that the surviving spouse of a deceased leaving no
ascendants or descendants is entitled, as a matter of right
and by way of irrevocable legitime, to at least one-half (1/2)
of the estate of the deceased, and no testamentary
disposition by the deceased can legally and validly affect this
right of the surviving spouse. In fact, her husband is entitled
to said one-half (1/2) portion of her estate by way of legitime.
(Article 886, Civil Code.) Clearly, therefore, immediately
upon the death of Linnie Jane Hodges, C. N. Hodges was
the owner of at least three-fourths (3/4) or seventy-five (75%)
percent of all of the conjugal assets of the spouses, (1/2 or
50% by way of conjugal partnership share and 1/4 or 25% by
way of inheritance and legitime) plus all "rents, emoluments
and income" accruing to said conjugal estate from the
moment of Linnie Jane Hodges' death (see paragraph 9,
supra).
11. The late Linnie Jane Hodges designated her husband
C.N. Hodges as her sole and exclusive heir with full authority
to do what he pleased, as exclusive heir and owner of all the
assets constituting her estate, except only with regards
certain properties "owned by us, located at, in or near the
City of Lubbock, Texas". Thus, even without relying on our
laws of succession and legitime, which we have cited above,
C. N. Hodges, by specific testamentary designation of his
wife, was entitled to the entirely to his wife's estate in the
Philippines.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 72
COMPILATION OF CASES (Page 2 of 9)
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:
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 73
COMPILATION OF CASES (Page 2 of 9)
"At the death of my said husband, Charles Newton Hodges, I
give, devise and bequeath all of the rest, residue and
remainder of my estate both real and personal, wherever
situated or located, to be equally divided among my brothers
and sisters, share and share alike, namely:
"Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon,
Sadie Rascoe, Era Boman and Nimray Higdon."
Because of the facts hereinabove set out there is no "rest,
residue and remainder", at least to the extent of the
Philippine assets, which remains to vest in the HIGDONS,
assuming this proviso in Linnie Jane Hodges' Will is valid
and binding against the estate of C. N. Hodges.
18. Any claims by the HIGDONS under the above-quoted
provision of Linnie Jane Hodges' Will is without merit
because said provision is void and invalid at least as to the
Philippine assets. It should not, in anyway, affect the rights of
the estate of C. N. Hodges or his heirs to the properties,
which C. N. Hodges acquired by way of inheritance from his
wife Linnie Jane Hodges upon her death.
(a) In spite of the above-mentioned provision in the Will of
Linnie Jane Hodges, C. N. Hodges acquired, not merely a
usufructuary right, but absolute title and ownership to her
estate. In a recent case involving a very similar testamentary
provision, the Supreme Court held that the heir first
designated acquired full ownership of the property
bequeathed by the will, not mere usufructuary rights.
(Consolacion Florentino de Crisologo, et al., vs. Manuel
Singson, G. R. No. L-13876, February 28, 1962.)
(b) Article 864, 872 and 886 of the New Civil Code clearly
provide that no charge, condition or substitution whatsoever
upon the legitime can be imposed by a testator. Thus, under
the provisions of Articles 900, 995 and 1001 of the New Civil
Code, the legitime of a surviving spouse is 1/2 of the estate
of the deceased spouse. Consequently, the above-
mentioned provision in the Will of Linnie Jane Hodges is
clearly invalid insofar as the legitime of C. N. Hodges was
concerned, which consisted of 1/2 of the 1/2 portion of the
conjugal estate, or 1/4 of the entire conjugal estate of the
deceased.
(c) There are generally only two kinds of substitution
provided for and authorized by our Civil Code (Articles 857-
870), namely, (1) simple or common substitution, sometimes
referred to as vulgar substitution (Article 859), and (2)
fideicommissary substitution (Article 863). All other
substitutions are merely variations of these. The substitution
provided for by paragraph four of the Will of Linnie Jane
Hodges is not fideicommissary substitution, because there is
clearly no obligation on the part of C. N. Hodges as the first
heir designated, to preserve the properties for the substitute
heirs. (Consolacion Florentino de Crisologo et al. vs. Manuel
Singson, G. R. No.
L-13876.) At most, it is a vulgar or simple substitution.
However, in order that a vulgar or simple substitution can be
valid, three alternative conditions must be present, namely,

that the first designated heir (1) should die before the
testator; or (2) should not wish to accept the inheritance; or
(3) should be incapacitated to do so. None of these
conditions apply to C. N. Hodges, and, therefore, the
substitution provided for by the above-quoted provision of
the Will is not authorized by the Code, and, therefore, it is
void. Manresa, commenting on these kisses of substitution,
meaningfully stated that: "... cuando el testador instituyeun
primer heredero, y por fallecimiento de este nombra otro u
otros, ha de entenderse que estas segundas designaciones
solo han de llegar a tener efectividad en el caso de que el
primer instituido muera antes que el testador, fuera o no esta
su verdadera intencion. ...". (6 Manresa, 7 a ed., pag. 175.)
In other words, when another heir is designated to inherit
upon the death of a first heir, the second designation can
have effect only in case the first instituted heir dies before
the testator, whether or not that was the true intention of said
testator. Since C. N. Hodges did not die before Linnie Jane
Hodges, the provision for substitution contained in Linnie
Jane Hodges' Willis void.
(d) In view of the invalidity of the provision for substitution in
the Will, C. N. Hodges' inheritance to the entirety of the
Linnie Jane Hodges estate is irrevocable and final.
19. Be that as it may, at the time of C. N. Hodges' death, the
entirety of the conjugal estate appeared and was registered
in him exclusively as owner. Thus, the presumption is that all
said assets constituted his estate. Therefore
(a) If the HIGDONS wish to enforce their dubious rights as
substituted heirs to 1/4 of the conjugal estate (the other 1/4
is covered by the legitime of C. N. Hodges which can not be
affected by any testamentary disposition), their remedy, if
any, is to file their claim against the estate of C. N. Hodges,
which should be entitled at the present time to full custody
and control of all the conjugal estate of the spouses.
(b) The present proceedings, in which two estates exist
under separate administration, where the administratrix of
the Linnie Jane Hodges estate exercises an officious right to
object and intervene in matters affecting exclusively the C. N.
Hodges estate, is anomalous.
WHEREFORE, it is most respectfully prayed that after trial
and reception of evidence, this Honorable Court declare:
1. That the estate of Linnie Jane Hodges was and is
composed exclusively of one-half (1/2) share in the conjugal
estate of the spouses Hodges, computed as of the date of
her death on May 23, 1957;
2. That the other half of the conjugal estate pertained
exclusively to C. N. Hodges as his share as partner in the
conjugal partnership;
3. That all "rents, emoluments and income" of the conjugal
estate accruing after Linnie Jane Hodges' death pertains to
C. N. Hodges;
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COMPILATION OF CASES (Page 2 of 9)
4. That C. N. Hodges was the sole and exclusive heir of the
estate of Linnie Jane Hodges;
5. That, therefore, the entire conjugal estate of the spouses
located in the Philippines, plus all the "rents, emoluments
and income" above-mentioned, now constitutes the estate of
C. N. Hodges, capable of distribution to his heirs upon
termination of Special Proceedings No. 1672;
6. That PCIB, as administrator of the estate of C. N. Hodges,
is entitled to full and exclusive custody, control and
management of all said properties; and
7. That Avelina A. Magno, as administratrix of the estate of
Linnie Jane Hodges, as well as the HIGDONS, has no right
to intervene or participate in the administration of the C. N.
Hodges estate.
PCIB further prays for such and other relief as may be
deemed just and equitable in the premises."
(Record, pp. 265-277)
Before all of these motions of petitioner could be resolved,
however, on December 21, 1965, private respondent Magno
filed her own "Motion for the Official Declaration of Heirs of
the Estate of Linnie Jane Hodges" as follows:
COMES NOW the Administratrix of the Estate of Linnie Jane
Hodges and, through undersigned counsel, unto this
Honorable Court most respectfully states and manifests:
1. That the spouses Charles Newton Hodges and Linnie
Jane Hodges were American citizens who died at the City of
Iloilo after having amassed and accumulated extensive
properties in the Philippines;
2. That on November 22, 1952, Linnie Jane Hodges
executed a last will and testament (the original of this will
now forms part of the records of these proceedings as
Exhibit "C" and appears as Sp. Proc. No. 1307, Folio I, pp.
17-18);
3. That on May 23, 1957, Linnie Jane Hodges died at the
City of Iloilo at the time survived by her husband, Charles
Newton Hodges, and several relatives named in her last will
and testament;
4. That on June 28, 1957, a petition therefor having been
priorly filed and duly heard, this Honorable Court issued an
order admitting to probate the last will and testament of
Linnie Jane Hodges (Sp. Proc. No. 1307, Folio I, pp. 24-25,
26-28);
5. That the required notice to creditors and to all others who
may have any claims against the decedent, Linnie Jane
Hodges has already been printed, published and posted (Sp.
Proc. No. 1307, Folio I. pp. 34-40) and the reglamentary
period for filing such claims has long ago lapsed and expired

without any claims having been asserted against the estate
of Linnie Jane Hodges, approved by the
Administrator/Administratrix of the said estate, nor ratified by
this Honorable Court;
6. That the last will and testament of Linnie Jane Hodges
already admitted to probate contains an institution of heirs in
the following words:
"SECOND: I give, devise and bequeath all of the rest,
residue and remainder of my estate, both personal and real,
wherever situated or located, to my beloved husband,
Charles Newton Hodges to have and to hold unto him, my
said husband, during his natural lifetime.
THIRD: I desire, direct and provide that my husband, Charles
Newton Hodges, shall have the right to manage, control, use
and enjoy said estate during his lifetime, and, he is hereby
given the right to make any changes in the physical
properties of said estate, by sale of any part thereof which he
may think best, and the purchase of any other or additional
property as he may think best; to execute conveyances with
or without general or special warranty, conveying in fee
simple or for any other term or time, any property which he
may deem proper to dispose of; to lease any of the real
property for oil, gas and/or other minerals, and all such
deeds or leases shall pass the absolute fee simple title to the
interest so conveyed in such property as he elect to sell. All
rents, emoluments and income from said estate shall belong
to him, and he is further authorized to use any part of the
principal of said estate as he may need or desire. It is
provided herein, however, that he shall not sell or otherwise
dispose of any of the improved property now owned by us
located at, in or near the City of Lubbock Texas, but he shall
have the full right to lease, manage and enjoy the same
during his lifetime, above provided. He shall have the right to
subdivide any farm land and sell lots therein, and may sell
unimproved town lots.
FOURTH: At the death of my said husband, Charles Newton
Hodges, I give, devise and bequeath all of the rest, residue
and remainder of my estate, both real and personal,
wherever situated or located, to be equally divided among
my brothers and sisters, share and share alike, namely:
Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon,
Sadie Rascoe, Era Boman and Nimroy Higdon.
FIFTH: In case of the death of any of my brothers and/or
sisters named in item Fourth, above, prior to the death of my
husband, Charles Newton Hodges, then it is my will and
bequest that the heirs of such deceased brother or sister
shall take jointly the share which would have gone to such
brother or sister had she or he survived."
7. That under the provisions of the last will and testament
already above-quoted, Linnie Jane Hodges gave a life-estate
or a usufruct over all her estate to her husband, Charles
Newton Hodges, and a vested remainder-estate or the naked
title over the same estate to her relatives named therein;
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COMPILATION OF CASES (Page 2 of 9)
8. That after the death of Linnie Jane Hodges and after the
admission to probate of her last will and testament, but
during the lifetime of Charles Newton Hodges, the said
Charles Newton Hodges with full and complete knowledge of
the life-estate or usufruct conferred upon him by the will
since he was then acting as Administrator of the estate and
later as Executor of the will of Linnie Jane Hodges,
unequivocably and clearly through oral and written
declarations and sworn public statements, renounced,
disclaimed and repudiated his life-estate and usufruct over
the estate of Linnie Jane Hodges;
9. That, accordingly, the only heirs left to receive the estate
of Linnie Jane Hodges pursuant to her last will and
testament, are her named brothers and sisters, or their heirs,
to wit: Esta Higdon, Emma Howell, Leonard Higdon, Aline
Higdon and David Higdon, the latter two being the wife and
son respectively of the deceased Roy Higdon, Sadie Rascoe
Era Boman and Nimroy Higdon, all of legal ages, American
citizens, with residence at the State of Texas, United States
of America;
10. That at the time of the death of Linnie Jane Hodges on
May 23, 1957, she was the co-owner (together with her
husband Charles Newton Hodges) of an undivided one-half
interest in their conjugal properties existing as of that date,
May 23, 1957, which properties are now being administered
sometimes jointly and sometimes separately by the
Administratrix of the estate of Linnie Jane Hodges and/or the
Administrator of the estate of C. N. Hodges but all of which
are under the control and supervision of this Honorable
Court;
11. That because there was no separation or segregation of
the interests of husband and wife in the combined conjugal
estate, as there has been no such separation or segregation
up to the present, both interests have continually earned
exactly the same amount of "rents, emoluments and
income", the entire estate having been continually devoted to
the business of the spouses as if they were alive;
12. That the one-half interest of Linnie Jane Hodges in the
combined conjugal estate was earning "rents, emoluments
and income" until her death on May 23, 1957, when it
ceased to be saddled with any more charges or expenditures
which are purely personal to her in nature, and her estate
kept on earning such "rents, emoluments and income" by
virtue of their having been expressly renounced, disclaimed
and repudiated by Charles Newton Hodges to whom they
were bequeathed for life under the last will and testament of
Linnie Jane Hodges;
13. That, on the other hand, the one-half interest of Charles
Newton Hodges in the combined conjugal estate existing as
of May 23, 1957, while it may have earned exactly the same
amount of "rents, emoluments and income" as that of the
share pertaining to Linnie Jane Hodges, continued to be
burdened by charges, expenditures, and other dispositions
which are purely personal to him in nature, until the death of
Charles Newton Hodges himself on December 25, 1962;

14. That of all the assets of the combined conjugal estate of
Linnie Jane Hodges and Charles Newton Hodges as they
exist today, the estate of Linnie Jane Hodges is clearly
entitled to a portion more than fifty percent (50%) as
compared to the portion to which the estate of Charles
Newton Hodges may be entitled, which portions can be
exactly determined by the following manner:
a. An inventory must be made of the assets of the combined
conjugal estate as they existed on the death of Linnie Jane
Hodges on May 23, 1957 one-half of these assets belong
to the estate of Linnie Jane Hodges;
b. An accounting must be made of the "rents, emoluments
and income" of all these assets again one-half of these
belong to the estate of Linnie Jane Hodges;
c. Adjustments must be made, after making a deduction of
charges, disbursements and other dispositions made by
Charles Newton Hodges personally and for his own personal
account from May 23, 1957 up to December 25, 1962, as
well as other charges, disbursements and other dispositions
made for him and in his behalf since December 25, 1962 up
to the present;
15. That there remains no other matter for disposition now
insofar as the estate of Linnie Jane Hodges is concerned but
to complete the liquidation of her estate, segregate them
from the conjugal estate, and distribute them to her heirs
pursuant to her last will and testament.
WHEREFORE, premises considered, it is most respectfully
moved and prayed that this Honorable Court, after a hearing
on the factual matters raised by this motion, issue an order:
a. Declaring the following persons, to wit: Esta Higdon,
Emma Howell, Leonard Higdon, Aline Higdon, David Higdon,
Sadie Rascoe, Era Boman and Nimroy Higdon, as the sole
heirs under the last will and testament of Linnie Jane Hodges
and as the only persons entitled to her estate;
b. Determining the exact value of the estate of Linnie Jane
Hodges in accordance with the system enunciated in
paragraph 14 of this motion;
c. After such determination ordering its segregation from the
combined conjugal estate and its delivery to the
Administratrix of the estate of Linnie Jane Hodges for
distribution to the heirs to whom they properly belong and
appertain.
(Green Record on Appeal, pp. 382-391)
whereupon, instead of further pressing on its motion of
January 8, 1965 aforequoted, as it had been doing before,
petitioner withdrew the said motion and in addition to
opposing the above motion of respondent Magno, filed a
motion on April 22, 1966 alleging in part that:
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COMPILATION OF CASES (Page 2 of 9)
1. That it has received from the counsel for the administratrix
of the supposed estate of Linnie Jane Hodges a notice to set
her "Motion for Official Declaration of Heirs of the Estate of
Linnie Jane Hodges";
2. That before the aforesaid motion could be heard, there are
matters pending before this Honorable Court, such as:
a. The examination already ordered by this Honorable Court
of documents relating to the allegation of Avelina Magno that
Charles Newton Hodges "through ... written declarations and
sworn public statements, renounced, disclaimed and
repudiated life-estate and usufruct over the estate of Linnie
Jane Hodges';
b. That "Urgent Motion for An Accounting and Delivery to the
Estate of C. N. Hodges of All the Assets of the Conjugal
Partnership of the Deceased Linnie Jane Hodges and C. N.
Hodges Existing as of May 23, 1957 Plus All the Rents,
Emoluments and Income Therefrom";
c. Various motions to resolve the aforesaid motion;
d. Manifestation of September 14, 1964, detailing acts of
interference of Avelina Magno under color of title as
administratrix of the Estate of Linnie Jane Hodges;
which are all prejudicial, and which involve no issues of fact,
all facts involved therein being matters of record, and
therefore require only the resolution of questions of law;
3. That whatever claims any alleged heirs or other persons
may have could be very easily threshed out in the Testate
Estate of Charles Newton Hodges;
4. That the maintenance of two separate estate proceedings
and two administrators only results in confusion and is
unduly burdensome upon the Testate Estate of Charles
Newton Hodges, particularly because the bond filed by
Avelina Magno is grossly insufficient to answer for the funds
and property which she has inofficiously collected and held,
as well as those which she continues to inofficiously collect
and hold;
5. That it is a matter of record that such state of affairs
affects and inconveniences not only the estate but also third-
parties dealing with it;" (Annex "V", Petition.)
and then, after further reminding the court, by quoting them,
of the relevant allegations of its earlier motion of September
14, 1964, Annex U, prayed that:
1. Immediately order Avelina Magno to account for and
deliver to the administrator of the Estate of C. N. Hodges all
the assets of the conjugal partnership of the deceased Linnie
Jane Hodges and C. N. Hodges, plus all the rents,
emoluments and income therefrom;

2. Pending the consideration of this motion, immediately
order Avelina Magno to turn over all her collections to the
administrator Philippine Commercial & Industrial Bank;
3. Declare the Testate Estate of Linnie Jane Hodges (Sp.
Proc. No. 1307) closed;
4. Defer the hearing and consideration of the motion for
declaration of heirs in the Testate Estate of Linnie Jane
Hodges until the matters hereinabove set forth are resolved.
(Prayer, Annex "V" of Petition.)
On October 12, 1966, as already indicated at the outset of
this opinion, the respondent court denied the foregoing
motion, holding thus:
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.
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COMPILATION OF CASES (Page 2 of 9)
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;
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COMPILATION OF CASES (Page 2 of 9)
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:
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COMPILATION OF CASES (Page 2 of 9)
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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 80
COMPILATION OF CASES (Page 2 of 9)
APPELLEES, FLORENIA BARRIDO AND PURIFICACION
CORONADO.
XLI to XLIII
THE LOWER COURT ERRED IN APPROVING THE FINAL
DEEDS OF SALE IN FAVOR OF THE APPELLEES,
GRACIANO LUCERO, ARITEO THOMAS JAMIR AND
MELQUIADES BATISANAN, EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO, COVERING PARCELS
OF LAND OWNED BY THE DECEASED, CHARLES
NEWTON HODGES, AND THE CONTRACTS TO SELL
COVERING WHICH WERE EXECUTED BY HIM DURING
HIS LIFETIME.
XLIV to XLVI
THE LOWER COURT ERRED IN APPROVING THE FINAL
DEED OF SALE IN FAVOR OF THE APPELLEES,
GRACIANO LUCERO, ARITEO THOMAS JAMIR AND
MELQUIADES BATISANAN, PURSUANT TO CONTRACTS
TO SELL EXECUTED BY THEM WITH THE DECEASED,
CHARLES NEWTON HODGES, THE TERMS AND
CONDITIONS OF WHICH THEY HAVE NEVER COMPLIED
WITH.
XLVII to XLIX
THE LOWER COURT ERRED IN DEPRIVING THE
DECEASED, CHARLES NEWTON HODGES, OF HIS
RIGHT, EXERCISED THROUGH HIS ADMINISTRATION,
THE INSTANT APPELLANT, TO CANCEL THE
CONTRACTS TO SELL OF THE APPELLEES, GRACIANO
LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES
BATISANAN, AND IN DETERMINING THE RIGHTS OF
THE SAID APPELLEES OVER REAL PROPERTY WHILE
ACTING AS A PROBATE COURT.
L
THE LOWER COURT ERRED IN APPROVING THE FINAL
DEEDS OF SALE IN FAVOR OF THE APPELLEE,
BELCESAR CAUSING, EXECUTED BY THE APPELLEE,
AVELINA A. MAGNO, COVERING PARCELS OF LAND
OWNED BY THE DECEASED, CHARLES NEWTON
HODGES, AND THE CONTRACTS TO SELL COVERING
WHICH WERE EXECUTED BY HIM DURING HIS
LIFETIME.
LI
THE LOWER COURT ERRED IN APPROVING THE DEEDS
OF SALE IN FAVOR OF THE APPELLEE, BELCESAR
CAUSING, ALTHOUGH HE WAS IN ARREARS IN THE
PAYMENTS AGREED UPON IN THE ORIGINAL
CONTRACT TO SELL WHICH HE EXECUTED WITH THE
DECEASED, CHARLES NEWTON HODGES, IN THE
AMOUNT OF P2,337.50.

LII
THE LOWER COURT ERRED IN APPROVING THE DEED
OF SALE IN FAVOR OF THE APPELLEE, BELCESAR
CAUSING, ALTHOUGH THE SAME WAS NOT EXECUTED
IN ACCORDANCE WITH THE RULES OF COURT.
LIII to LXI
THE LOWER COURT ERRED IN ORDERING THE
APPELLANT, PHILIPPINE COMMERCIAL AND
INDUSTRIAL BANK TO SURRENDER THE OWNER'S
DUPLICATE CERTIFICATES OF TITLE OVER THE
RESPECTIVE LOTS COVERED BY THE DEEDS OF SALE
EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, IN
FAVOR OF THE OTHER APPELLEES, JOSE PABLICO,
ALFREDO CATEDRAL, SALVADOR S. GUZMAN, FLRENIA
BARRIDO, PURIFICACION CORONADO, BELCESAR
CAUSING, ARITEO THOMAS JAMIR, MAXIMA
BATISANAN AND GRACIANO L. LUCERO.
LXII
THE LOWER COURT ERRED IN RESOLVING THE
MOTION OF THE APPELLEE, WESTERN INSTITUTE OF
TECHNOLOGY, DATED NOVEMBER 3, 1965, WITHOUT
ANY COPY THEREOF HAVING BEEN SERVED UPON
THE APPELLANT, PHILIPPINE COMMERCIAL & LXIX
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.
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COMPILATION OF CASES (Page 2 of 9)
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.
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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 82
COMPILATION OF CASES (Page 2 of 9)
Resolution of September 8, 1972 and February 1, 1973).
Subsequently, Atty. Efrain B. Trenas, one of the lawyers of
said heirs, appeared no longer for the proposed
administrator Lopez but for the heirs themselves, and in a
motion dated October 26, 1972 informed the Court that a
motion had been filed with respondent court for the removal
of petitioner PCIB as administrator of the estate of C. N.
Hodges in Special Proceedings 1672, which removal motion
alleged that 22.968149% of the share of C. N. Hodges had
already been acquired by the heirs of Mrs. Hodges from
certain heirs of her husband. Further, in this connection, in
the answer of PCIB to the motion of respondent Magno to
have it declared in contempt for disregarding the Court's
resolution of September 8, 1972 modifying the injunction of
August 8, 1967, said petitioner annexed thereto a joint
manifestation and motion, appearing to have been filed with
respondent court, informing said court that in addition to the
fact that 22% of the share of C. N. Hodges had already been
bought by the heirs of Mrs. Hodges, as already stated,
certain other heirs of Hodges representing 17.343750% of
his estate were joining cause with the heirs of Mrs. Hodges
as against PCIB, thereby making somewhat precarious, if not
possibly untenable, petitioners' continuation as administrator
of the Hodges estate.
RESOLUTION OF ISSUES IN THE CERTIORARI AND
PROHIBITION CASES
I
As to the Alleged Tardiness
of the Present Appeals
The priority question raised by respondent Magno relates to
the alleged tardiness of all the aforementioned thirty-three
appeals of PCIB. Considering, however, that these appeals
revolve around practically the same main issues and that it is
admitted that some of them have been timely taken, and,
moreover, their final results hereinbelow to be stated and
explained make it of no consequence whether or not the
orders concerned have become final by the lapsing of the
respective periods to appeal them, We do not deem it
necessary to pass upon the timeliness of any of said
appeals.
II
The Propriety Here of Certiorari and
Prohibition instead of Appeal
The other preliminary point of the same respondent is
alleged impropriety of the special civil action of certiorari and
prohibition in view of the existence of the remedy of appeal
which it claims is proven by the very appeals now before Us.
Such contention fails to take into account that there is a
common thread among the basic issues involved in all these
thirty-three appeals which, unless resolved in one single
proceeding, will inevitably cause the proliferation of more or
less similar or closely related incidents and consequent
eventual appeals. If for this consideration alone, and without

taking account anymore of the unnecessary additional effort,
expense and time which would be involved in as many
individual appeals as the number of such incidents, it is
logical and proper to hold, as We do hold, that the remedy of
appeal is not adequate in the present cases. In determining
whether or not a special civil action of certiorari or prohibition
may be resorted to in lieu of appeal, in instances wherein
lack or excess of jurisdiction or grave abuse of discretion is
alleged, it is not enough that the remedy of appeal exists or
is possible. It is indispensable that taking all the relevant
circumstances of the given case, appeal would better serve
the interests of justice. Obviously, the longer delay,
augmented expense and trouble and unnecessary repetition
of the same work attendant to the present multiple appeals,
which, after all, deal with practically the same basic issues
that can be more expeditiously resolved or determined in a
single special civil action, make the remedies of certiorari
and prohibition, pursued by petitioner, preferable, for
purposes of resolving the common basic issues raised in all
of them, despite the conceded availability of appeal.
Besides, the settling of such common fundamental issues
would naturally minimize the areas of conflict between the
parties and render more simple the determination of the
secondary issues in each of them. Accordingly, respondent
Magno's objection to the present remedy of certiorari and
prohibition must be overruled.
We come now to the errors assigned by petitioner-appellant,
Philippine Commercial & Industrial Bank, (PCIB, for short) in
the petition as well as in its main brief as appellant.
III
On Whether or Not There is Still Any Part of the Testate
Estate Mrs. Hodges that may be Adjudicated to her brothers
and sisters as her estate, of which respondent Magno is the
unquestioned Administratrix in special Proceedings 1307.
In the petition, it is the position of PCIB that the respondent
court exceeded its jurisdiction or gravely abused its
discretion in further recognizing after December 14, 1957 the
existence of the Testate Estate of Linnie Jane Hodges and in
sanctioning purported acts of administration therein of
respondent Magno. Main ground for such posture is that by
the aforequoted order of respondent court of said date,
Hodges was already allowed to assert and exercise all his
rights as universal heir of his wife pursuant to the provisions
of her will, quoted earlier, hence, nothing else remains to be
done in Special Proceedings 1307 except to formally close it.
In other words, the contention of PCIB is that in view of said
order, nothing more than a formal declaration of Hodges as
sole and exclusive heir of his wife and the consequent formal
unqualified adjudication to him of all her estate remain to be
done to completely close Special Proceedings 1307, hence
respondent Magno should be considered as having ceased
to be Administratrix of the Testate Estate of Mrs. Hodges
since then.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 83
COMPILATION OF CASES (Page 2 of 9)
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
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COMPILATION OF CASES (Page 2 of 9)
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:
(Deleted; In Spanish)
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.
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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.
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COMPILATION OF CASES (Page 2 of 9)
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
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COMPILATION OF CASES (Page 2 of 9)
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
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COMPILATION OF CASES (Page 2 of 9)
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
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COMPILATION OF CASES (Page 2 of 9)
conjugal which means that the spouses have equal shares
therein, it is but logical that both estates should be
administered jointly by representatives of both, pending their
segregation from each other. Particularly is such an
arrangement warranted because the actuations so far of
PCIB evince a determined, albeit groundless, intent to
exclude the other heirs of Mrs. Hodges from their
inheritance. Besides, to allow PCIB, the administrator of his
estate, to perform now what Hodges was duty bound to do
as executor is to violate the spirit, if not the letter, of Section
2 of Rule 78 which expressly provides that "The executor of
an executor shall not, as such, administer the estate of the
first testator." It goes without saying that this provision refers
also to the administrator of an executor like PCIB here.
We are not unmindful of the fact that under Section 2 of Rule
73, "When the marriage is dissolved by the death of the
husband or wife, the community property shall be
inventoried, administered, and liquidated, and the debts
thereof paid, in the testate or intestate proceedings of the
deceased spouse. If both spouses have died, the conjugal
partnership shall be liquidated in the testate or intestate
proceedings of either." Indeed, it is true that the last
sentence of this provision allows or permits the conjugal
partnership of spouses who are both deceased to be settled
or liquidated in the testate or intestate proceedings of either,
but precisely because said sentence allows or permits that
the liquidation be made in either proceeding, it is a matter of
sound judicial discretion in which one it should be made.
After all, the former rule referring to the administrator of the
husband's estate in respect to such liquidation was done
away with by Act 3176, the pertinent provisions of which are
now embodied in the rule just cited.
Thus, it can be seen that at the time of the death of Hodges,
there was already the pending judicial settlement proceeding
of the estate of Mrs. Hodges, and, more importantly, that the
former was the executor of the latter's will who had, as such,
failed for more than five years to see to it that the same was
terminated earliest, which was not difficult to do, since from
ought that appears in the record, there were no serious
obstacles on the way, the estate not being indebted and
there being no immediate heirs other than Hodges himself.
Such dilatory or indifferent attitude could only spell possible
prejudice of his co-heirs, whose rights to inheritance depend
entirely on the existence of any remainder of Mrs. Hodges'
share in the community properties, and who are now faced
with the pose of PCIB that there is no such remainder. Had
Hodges secured as early as possible the settlement of his
wife's estate, this problem would not arisen. All things
considered, We are fully convinced that the interests of
justice will be better served by not permitting or allowing
PCIB or any administrator of the estate of Hodges exclusive
administration of all the properties in question. We are of the
considered opinion and so hold that what would be just and
proper is for both administrators of the two estates to act
conjointly until after said estates have been segregated from
each other.

At this juncture, it may be stated that we are not overlooking
the fact that it is PCIB's contention that, viewed as a
substitution, the testamentary disposition in favor of Mrs.
Hodges' brothers and sisters may not be given effect. To a
certain extent, this contention is correct. Indeed, legally
speaking, Mrs. Hodges' will provides neither for a simple or
vulgar substitution under Article 859 of the Civil Code nor for
a fideicommissary substitution under Article 863 thereof.
There is no vulgar substitution therein because there is no
provision for either (1) predecease of the testator by the
designated heir or (2) refusal or (3) incapacity of the latter to
accept the inheritance, as required by Article 859; and
neither is there a fideicommissary substitution therein
because no obligation is imposed thereby upon Hodges to
preserve the estate or any part thereof for anyone else. But
from these premises, it is not correct to jump to the
conclusion, as PCIB does, that the testamentary dispositions
in question are therefore inoperative and invalid.
The error in PCIB's position lies simply in the fact that it
views the said disposition exclusively in the light of
substitutions covered by the Civil Code section on that
subject, (Section 3, Chapter 2, Title IV, Book III) when it is
obvious that substitution occurs only when another heir is
appointed in a will "so that he may enter into inheritance in
default of the heir originally instituted," (Article 857, id.) and,
in the present case, no such possible default is
contemplated. The brothers and sisters of Mrs. Hodges are
not substitutes for Hodges because, under her will, they are
not to inherit what Hodges cannot, would not or may not
inherit, but what he would not dispose of from his
inheritance; rather, therefore, they are also heirs instituted
simultaneously with Hodges, subject, however, to certain
conditions, partially resolutory insofar as Hodges was
concerned and correspondingly suspensive with reference to
his brothers and sisters-in-law. It is partially resolutory, since
it bequeaths unto Hodges the whole of her estate to be
owned and enjoyed by him as universal and sole heir with
absolute dominion over them 6 only during his lifetime, which
means that while he could completely and absolutely dispose
of any portion thereof inter vivos to anyone other than
himself, he was not free to do so mortis causa, and all his
rights to what might remain upon his death would cease
entirely upon the occurrence of that contingency, inasmuch
as the right of his brothers and sisters-in-law to the
inheritance, although vested already upon the death of Mrs.
Hodges, would automatically become operative upon the
occurrence of the death of Hodges in the event of actual
existence of any remainder of her estate then.
Contrary to the view of respondent Magno, however, it was
not the usufruct alone of her estate, as contemplated in
Article 869 of the Civil Code, that she bequeathed to Hodges
during his lifetime, but the full ownership thereof, although
the same was to last also during his lifetime only, even as
there was no restriction whatsoever against his disposing or
conveying the whole or any portion thereof to anybody other
than himself. The Court sees no legal impediment to this kind
of institution, in this jurisdiction or under Philippine law,
except that it cannot apply to the legitime of Hodges as the
surviving spouse, consisting of one-half of the estate,
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considering that Mrs. Hodges had no surviving ascendants
nor descendants. (Arts. 872, 900, and 904, New Civil Code.)
But relative precisely to the question of how much of Mrs.
Hodges' share of the conjugal partnership properties may be
considered as her estate, the parties are in disagreement as
to how Article 16 of the Civil Code 7 should be applied. On
the one hand, petitioner claims that inasmuch as Mrs.
Hodges was a resident of the Philippines at the time of her
death, under said Article 16, construed in relation to the
pertinent laws of Texas and the principle of renvoi, what
should be applied here should be the rules of succession
under the Civil Code of the Philippines, and, therefore, her
estate could consist of no more than one-fourth of the said
conjugal properties, the other fourth being, as already
explained, the legitime of her husband (Art. 900, Civil Code)
which she could not have disposed of nor burdened with any
condition (Art. 872, Civil Code). On the other hand,
respondent Magno denies that Mrs. Hodges died a resident
of the Philippines, since allegedly she never changed nor
intended to change her original residence of birth in Texas,
United States of America, and contends that, anyway,
regardless of the question of her residence, she being
indisputably a citizen of Texas, under said Article 16 of the
Civil Code, the distribution of her estate is subject to the laws
of said State which, according to her, do not provide for any
legitime, hence, the brothers and sisters of Mrs. Hodges are
entitled to the remainder of the whole of her share of the
conjugal partnership properties consisting of one-half
thereof. Respondent Magno further maintains that, in any
event, Hodges had renounced his rights under the will in
favor of his co-heirs, as allegedly proven by the documents
touching on the point already mentioned earlier, the
genuineness and legal significance of which petitioner
seemingly questions. Besides, the parties are disagreed as
to what the pertinent laws of Texas provide. In the interest of
settling the estates herein involved soonest, it would be best,
indeed, if these conflicting claims of the parties were
determined in these proceedings. The Court regrets,
however, that it cannot do so, for the simple reason that
neither the evidence submitted by the parties in the court
below nor their discussion, in their respective briefs and
memoranda before Us, of their respective contentions on the
pertinent legal issues, of grave importance as they are,
appear to Us to be adequate enough to enable Us to render
an intelligent comprehensive and just resolution. For one
thing, there is no clear and reliable proof of what in fact the
possibly applicable laws of Texas are. 7* Then also, the
genuineness of documents relied upon by respondent
Magno is disputed. And there are a number of still other
conceivable related issues which the parties may wish to
raise but which it is not proper to mention here. In Justice,
therefore, to all the parties concerned, these and all other
relevant matters should first be threshed out fully in the trial
court in the proceedings hereafter to be held therein for the
purpose of ascertaining and adjudicating and/or distributing
the estate of Mrs. Hodges to her heirs in accordance with her
duly probated will.
To be more explicit, all that We can and do decide in
connection with the petition for certiorari and prohibition are:

(1) that regardless of which corresponding laws are applied,
whether of the Philippines or of Texas, and taking for granted
either of the respective contentions of the parties as to
provisions of the latter, 8 and regardless also of whether or
not it can be proven by competent evidence that Hodges
renounced his inheritance in any degree, it is easily and
definitely discernible from the inventory submitted by Hodges
himself, as Executor of his wife's estate, that there are
properties which should constitute the estate of Mrs. Hodges
and ought to be disposed of or distributed among her heirs
pursuant to her will in said Special Proceedings 1307; (2)
that, more specifically, inasmuch as the question of what are
the pertinent laws of Texas applicable to the situation herein
is basically one of fact, and, considering that the sole
difference in the positions of the parties as to the effect of
said laws has reference to the supposed legitime of Hodges
it being the stand of PCIB that Hodges had such a
legitime whereas Magno claims the negative - it is now
beyond controversy for all future purposes of these
proceedings that whatever be the provisions actually of the
laws of Texas applicable hereto, the estate of Mrs. Hodges is
at least, one-fourth of the conjugal estate of the spouses; the
existence and effects of foreign laws being questions of fact,
and it being the position now of PCIB that the estate of Mrs.
Hodges, pursuant to the laws of Texas, should only be one-
fourth of the conjugal estate, such contention constitutes an
admission of fact, and consequently, it would be in estoppel
in any further proceedings in these cases to claim that said
estate could be less, irrespective of what might be proven
later to be actually the provisions of the applicable laws of
Texas; (3) that Special Proceedings 1307 for the settlement
of the testate estate of Mrs. Hodges cannot be closed at this
stage and should proceed to its logical conclusion, there
having been no proper and legal adjudication or distribution
yet of the estate therein involved; and (4) that respondent
Magno remains and continues to be the Administratrix
therein. Hence, nothing in the foregoing opinion is intended
to resolve the issues which, as already stated, are not
properly before the Court now, namely, (1) whether or not
Hodges had in fact and in law waived or renounced his
inheritance from Mrs. Hodges, in whole or in part, and (2)
assuming there had been no such waiver, whether or not, by
the application of Article 16 of the Civil Code, and in the light
of what might be the applicable laws of Texas on the matter,
the estate of Mrs. Hodges is more than the one-fourth
declared above. As a matter of fact, even our finding above
about the existence of properties constituting the estate of
Mrs. Hodges rests largely on a general appraisal of the size
and extent of the conjugal partnership gathered from
reference made thereto by both parties in their briefs as well
as in their pleadings included in the records on appeal, and it
should accordingly yield, as to which exactly those properties
are, to the more concrete and specific evidence which the
parties are supposed to present in support of their respective
positions in regard to the foregoing main legal and factual
issues. In the interest of justice, the parties should be
allowed to present such further evidence in relation to all
these issues in a joint hearing of the two probate
proceedings herein involved. After all, the court a quo has
not yet passed squarely on these issues, and it is best for all
concerned that it should do so in the first instance.
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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
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COMPILATION OF CASES (Page 2 of 9)
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
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COMPILATION OF CASES (Page 2 of 9)
Newton Hodges as his own share, and not by virtue of any
successional rights. There can be no question about this.
Again, Philippine law, or more specifically, Article 900 of the
Civil Code provides:
If the only survivor is the widow or widower, she or he shall
be entitled to one-half of the hereditary estate of the
deceased spouse, and the testator may freely dispose of the
other half.
If the marriage between the surviving spouse and the
testator was solemnized in articulo mortis, and the testator
died within three months from the time of the marriage, the
legitime of the surviving spouse as the sole heir shall be one-
third of the hereditary estate, except when they have been
living as husband and wife for more than five years. In the
latter case, the legitime of the surviving spouse shall be that
specified in the preceding paragraph.
This legitime of the surviving spouse cannot be burdened by
a fideicommisary substitution (Art. 864, Civil code), nor by
any charge, condition, or substitution (Art, 872, Civil code). It
is clear, therefore, that in addition to one-half of the conjugal
partnership property as his own conjugal share, Charles
Newton Hodges was also immediately entitled to one-half of
the half conjugal share of the deceased, Linnie Jane
Hodges, or one-fourth of the entire conjugal property, as his
legitime.
One-fourth of the conjugal property therefore remains at
issue.
In the summary of its arguments in its memorandum dated
April 30, 1968, the following appears:
Briefly, the position advanced by the petitioner is:
a. That the Hodges spouses were domiciled legally in the
Philippines (pp. 19-20, petition). This is now a matter of res
adjudicata (p. 20, petition).
b. That under Philippine law, Texas law, and the renvoi
doctrine, Philippine law governs the successional rights over
the properties left by the deceased, Linnie Jane Hodges (pp.
20-21, petition).
c. That under Philippine as well as Texas law, one-half of the
Hodges properties pertains to the deceased, Charles Newton
Hodges (p. 21, petition). This is not questioned by the
respondents.
d. That under Philippine law, the deceased, Charles Newton
Hodges, automatically inherited one-half of the remaining
one-half of the Hodges properties as his legitime (p. 21,
petition).
e. That the remaining 25% of the Hodges properties was
inherited by the deceased, Charles Newton Hodges, under

the will of his deceased spouse (pp. 22-23, petition). Upon
the death of Charles Newton Hodges, the substitution
'provision of the will of the deceased, Linnie Jane Hodges,
did not operate because the same is void (pp. 23-25,
petition).
f. That the deceased, Charles Newton Hodges, asserted his
sole ownership of the Hodges properties and the probate
court sanctioned such assertion (pp. 25-29, petition). He in
fact assumed such ownership and such was the status of the
properties as of the time of his death (pp. 29-34, petition).
Of similar tenor are the allegations of PCIB in some of its
pleadings quoted in the earlier part of this option.
On her part, it is respondent-appellee Magno's posture that
under the laws of Texas, there is no system of legitime,
hence the estate of Mrs. Hodges should be one-half of all the
conjugal properties.
It is thus unquestionable that as far as PCIB is concerned,
the application to these cases of Article 16 of the Civil Code
in relation to the corresponding laws of Texas would result in
that the Philippine laws on succession should control. On
that basis, as We have already explained above, the estate
of Mrs. Hodges is the remainder of one-fourth of the conjugal
partnership properties, considering that We have found that
there is no legal impediment to the kind of disposition
ordered by Mrs. Hodges in her will in favor of her brothers
and sisters and, further, that the contention of PCIB that the
same constitutes an inoperative testamentary substitution is
untenable. As will be recalled, PCIB's position that there is
no such estate of Mrs. Hodges is predicated exclusively on
two propositions, namely: (1) that the provision in question in
Mrs. Hodges' testament violates the rules on substitution of
heirs under the Civil Code and (2) that, in any event, by the
orders of the trial court of May 27, and December 14, 1957,
the trial court had already finally and irrevocably adjudicated
to her husband the whole free portion of her estate to the
exclusion of her brothers and sisters, both of which poses,
We have overruled. Nowhere in its pleadings, briefs and
memoranda does PCIB maintain that the application of the
laws of Texas would result in the other heirs of Mrs. Hodges
not inheriting anything under her will. And since PCIB's
representations in regard to the laws of Texas virtually
constitute admissions of fact which the other parties and the
Court are being made to rely and act upon, PCIB is "not
permitted to contradict them or subsequently take a position
contradictory to or inconsistent with them." (5 Moran, id, p.
65, citing Cunanan vs. Amparo, 80 Phil. 227; Sta. Ana vs.
Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018).
Accordingly, the only question that remains to be settled in
the further proceedings hereby ordered to be held in the
court below is how much more than as fixed above is the
estate of Mrs. Hodges, and this would depend on (1) whether
or not the applicable laws of Texas do provide in effect for
more, such as, when there is no legitime provided therein,
and (2) whether or not Hodges has validly waived his whole
inheritance from Mrs. Hodges.
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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
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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
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"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,
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it would be idle effort to inquire whether or not the sanction
given to said fees by the probate court is proper.
For the foregoing reasons, Assignments of Error LXVIII to
LXXI and LXXIII to LXXVI should be as they are hereby
overruled.
Assignments of error I to IV,
XIII to XV, XXII to XXV, XXXV
to XXX VI, XLI to XLIII and L.
These assignments of error deal with the approval by the trial
court of various deeds of sale of real properties registered in
the name of Hodges but executed by appellee Magno, as
Administratrix of the Estate of Mrs. Hodges, purportedly in
implementation of corresponding supposed written
"Contracts to Sell" previously executed by Hodges during the
interim between May 23, 1957, when his wife died, and
December 25, 1962, the day he died. As stated on pp. 118-
120 of appellant's main brief, "These are: the, contract to sell
between the deceased, Charles Newton Hodges, and the
appellee, Pepito G. Iyulores executed on February 5, 1961;
the contract to sell between the deceased, Charles Newton
Hodges, and the appellant Esperidion Partisala, executed on
April 20, 1960; the contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Winifredo C.
Espada, executed on April 18, 1960; the contract to sell
between the deceased, Charles Newton Hodges, and the
appellee, Rosario Alingasa, executed on August 25, 1958;
the contract to sell between the deceased, Charles Newton
Hodges, and the appellee, Lorenzo Carles, executed on
June 17, 1958; the contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Salvador S.
Guzman, executed on September 13, 1960; the contract to
sell between the deceased, Charles Newton Hodges, and
the appellee, Florenia Barrido, executed on February 21,
1958; the contract to sell between the deceased, Charles
Newton Hodges, and the appellee, Purificacion Coronado,
executed on August 14, 1961; the contract to sell between
the deceased, Charles Newton Hodges, and the appellee,
Graciano Lucero, executed on November 27, 1961; the
contract to sell between the deceased, Charles Newton
Hodges, and the appellee, Ariteo Thomas Jamir, executed
on May 26, 1961; the contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Melquiades
Batisanan, executed on June 9, 1959; the contract to sell
between the deceased, Charles Newton Hodges, and the
appellee, Belcezar Causing, executed on February 10, 1959
and the contract to sell between the deceased, Charles
Newton Hodges, and the appellee, Adelfa Premaylon,
executed on October 31, 1959, re Title No. 13815."
Relative to these sales, it is the position of appellant PCIB
that, inasmuch as pursuant to the will of Mrs. Hodges, her
husband was to have dominion over all her estate during his
lifetime, it was as absolute owner of the properties
respectively covered by said sales that he executed the
aforementioned contracts to sell, and consequently, upon his
death, the implementation of said contracts may be
undertaken only by the administrator of his estate and not by

the administratrix of the estate of Mrs. Hodges. Basically, the
same theory is invoked with particular reference to five other
sales, in which the respective "contracts to sell" in favor of
these appellees were executed by Hodges before the death
of his wife, namely, those in favor of appellee Santiago
Pacaonsis, Alfredo Catedral, Jose Pablico, Western Institute
of Technology and Adelfa Premaylon.
Anent those deeds of sale based on promises or contracts to
sell executed by Hodges after the death of his wife, those
enumerated in the quotation in the immediately preceding
paragraph, it is quite obvious that PCIB's contention cannot
be sustained. As already explained earlier, 1 1* all proceeds
of remunerative transfers or dispositions made by Hodges
after the death of his wife should be deemed as continuing to
be parts of her estate and, therefore, subject to the terms of
her will in favor of her brothers and sisters, in the sense that
should there be no showing that such proceeds, whether in
cash or property have been subsequently conveyed or
assigned subsequently by Hodges to any third party by acts
inter vivos with the result that they could not thereby belong
to him anymore at the time of his death, they automatically
became part of the inheritance of said brothers and sisters.
The deeds here in question involve transactions which are
exactly of this nature. Consequently, the payments made by
the appellees should be considered as payments to the
estate of Mrs. Hodges which is to be distributed and
partitioned among her heirs specified in the will.
The five deeds of sale predicated on contracts to sell
executed Hodges during the lifetime of his wife, present a
different situation. At first blush, it would appear that as to
them, PCIB's position has some degree of plausibility.
Considering, however, that the adoption of PCIB's theory
would necessarily have tremendous repercussions and
would bring about considerable disturbance of property rights
that have somehow accrued already in favor of innocent third
parties, the five purchasers aforenamed, the Court is inclined
to take a pragmatic and practical view of the legal situation
involving them by overlooking the possible technicalities in
the way, the non-observance of which would not, after all,
detract materially from what should substantially correspond
to each and all of the parties concerned.
To start with, these contracts can hardly be ignored. Bona
fide third parties are involved; as much as possible, they
should not be made to suffer any prejudice on account of
judicial controversies not of their own making. What is more,
the transactions they rely on were submitted by them to the
probate court for approval, and from already known and
recorded actuations of said court then, they had reason to
believe that it had authority to act on their motions, since
appellee Magno had, from time to time prior to their
transactions with her, been allowed to act in her capacity as
administratrix of one of the subject estates either alone or
conjointly with PCIB. All the sales in question were executed
by Magno in 1966 already, but before that, the court had
previously authorized or otherwise sanctioned expressly
many of her act as administratrix involving expenditures from
the estate made by her either conjointly with or
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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
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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
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COMPILATION OF CASES (Page 2 of 9)
supposed automatic rescission clauses contained in the
contracts to sell executed by Hodges in favor of herein
appellees, the effect of said clauses depend on the true
nature of the said contracts, despite the nomenclature
appearing therein, which is not controlling, for if they amount
to actual contracts of sale instead of being mere unilateral
accepted "promises to sell", (Art. 1479, Civil Code of the
Philippines, 2nd paragraph) the pactum commissorium or the
automatic rescission provision would not operate, as a
matter of public policy, unless there has been a previous
notarial or judicial demand by the seller (10 Manresa 263,
2nd ed.) neither of which have been shown to have been
made in connection with the transactions herein involved.
Consequently, We find no merit in the assignments of error
Number LXII to LXVII.
SUMMARY
Considering the fact that this decision is unusually extensive
and that the issues herein taken up and resolved are rather
numerous and varied, what with appellant making seventy-
eight assignments of error affecting no less than thirty
separate orders of the court a quo, if only to facilitate proper
understanding of the import and extent of our rulings herein
contained, it is perhaps desirable that a brief restatement of
the whole situation be made together with our conclusions in
regard to its various factual and legal aspects. .
The instant cases refer to the estate left by the late Charles
Newton Hodges as well as that of his wife, Linnie Jane
Hodges, who predeceased him by about five years and a
half. In their respective wills which were executed on
different occasions, each one of them provided mutually as
follows: "I give, devise and bequeath all of the rest, residue
and remainder (after funeral and administration expenses,
taxes and debts) of my estate, both real and personal,
wherever situated or located, to my beloved (spouse) to have
and to hold unto (him/her) during (his/her) natural
lifetime", subject to the condition that upon the death of
whoever of them survived the other, the remainder of what
he or she would inherit from the other is "give(n), devise(d)
and bequeath(ed)" to the brothers and sisters of the latter.
Mrs. Hodges died first, on May 23, 1957. Four days later, on
May 27, Hodges was appointed special administrator of her
estate, and in a separate order of the same date, he was
"allowed or authorized to continue the business in which he
was engaged, (buying and selling personal and real
properties) and to perform acts which he had been doing
while the deceased was living." Subsequently, on December
14, 1957, after Mrs. Hodges' will had been probated and
Hodges had been appointed and had qualified as Executor
thereof, upon his motion in which he asserted that he was
"not only part owner of the properties left as conjugal, but
also, the successor to all the properties left by the deceased
Linnie Jane Hodges", the trial court ordered that "for the
reasons stated in his motion dated December 11, 1957,
which the Court considers well taken, ... all the sales,
conveyances, leases and mortgages of all properties left by

the deceased Linnie Jane Hodges executed by the Executor,
Charles Newton Hodges are hereby APPROVED. The said
Executor is further authorized to execute subsequent sales,
conveyances, leases and mortgages of the properties left by
the said deceased Linnie Jane Hodges in consonance with
the wishes contained in the last will and testament of the
latter."
Annually thereafter, Hodges submitted to the court the
corresponding statements of account of his administration,
with the particularity that in all his motions, he always made it
point to urge the that "no person interested in the Philippines
of the time and place of examining the herein accounts be
given notice as herein executor is the only devisee or
legatee of the deceased in accordance with the last will and
testament already probated by the Honorable Court." All said
accounts approved as prayed for.
Nothing else appears to have been done either by the court
a quo or Hodges until December 25, 1962. Importantly to be
the provision in the will of Mrs. Hodges that her share of the
conjugal partnership was to be inherited by her husband "to
have and to hold unto him, my said husband, during his
natural lifetime" and that "at the death of my said husband, I
give, devise and bequeath all the rest, residue and
remainder of my estate, both real and personal, wherever
situated or located, to be equally divided among my brothers
and sisters, share and share alike", which provision naturally
made it imperative that the conjugal partnership be promptly
liquidated, in order that the "rest, residue and remainder" of
his wife's share thereof, as of the time of Hodges' own death,
may be readily known and identified, no such liquidation was
ever undertaken. The record gives no indication of the
reason for such omission, although relatedly, it appears
therein:
1. That in his annual statement submitted to the court of the
net worth of C. N. Hodges and the Estate of Linnie Jane
Hodges, Hodges repeatedly and consistently reported the
combined income of the conjugal partnership and then
merely divided the same equally between himself and the
estate of the deceased wife, and, more importantly, he also,
as consistently, filed corresponding separate income tax
returns for each calendar year for each resulting half of such
combined income, thus reporting that the estate of Mrs.
Hodges had its own income distinct from his own.
2. That when the court a quo happened to inadvertently omit
in its order probating the will of Mrs. Hodges, the name of
one of her brothers, Roy Higdon then already deceased,
Hodges lost no time in asking for the proper correction "in
order that the heirs of deceased Roy Higdon may not think or
believe they were omitted, and that they were really
interested in the estate of the deceased Linnie Jane
Hodges".
3. That in his aforementioned motion of December 11, 1957,
he expressly stated that "deceased Linnie Jane Hodges died
leaving no descendants or ascendants except brothers and
sisters and herein petitioner as the surviving spouse, to
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COMPILATION OF CASES (Page 2 of 9)
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
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COMPILATION OF CASES (Page 2 of 9)
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
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COMPILATION OF CASES (Page 2 of 9)
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
 WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 104
COMPILATION OF CASES (Page 2 of 9)

total value of all the properties covered by the impugned half share thereof of Mrs. Hodges may be properly and
deeds of sale, for which reason, said properties may be clearly identified; thereafter, the trial court should forthwith
deemed as pertaining to the estate of Mrs. Hodges. And segregate the remainder of the one-fourth herein adjudged
there being no showing that thus viewing the situation, there to be her estate and cause the same to be turned over or
would be prejudice to anyone, including the government, the delivered to respondent for her exclusive administration in
Court also holds that, disregarding procedural technicalities Special Proceedings 1307, while the other one-fourth shall
in favor of a pragmatic and practical approach as discussed remain under the joint administration of said respondent and
above, the assailed orders should be affirmed. Being a petitioner under a joint proceedings in Special Proceedings
stranger to the estate of Mrs. Hodges, PCIB has no 1307 and 1672, whereas the half unquestionably pertaining
personality to raise the procedural and jurisdictional issues to Hodges shall be administered by petitioner exclusively in
raised by it. And inasmuch as it does not appear that any of Special Proceedings 1672, without prejudice to the
the other heirs of Mrs. Hodges or the government has resolution by the trial court of the pending motions for its
objected to any of the orders under appeal, even as to these removal as administrator 12; and this arrangement shall be
parties, there exists no reason for said orders to be set maintained until the final resolution of the two issues of
aside. renvoi and renunciation hereby reserved for further hearing
and determination, and the corresponding complete
DISPOSITIVE PART segregation and partition of the two estates in the
proportions that may result from the said resolution.
IN VIEW OF ALL THE FOREGOING PREMISES, judgment
is hereby rendered DISMISSING the petition in G. R. Nos. L- Generally and in all other respects, the parties and the court
27860 and L-27896, and AFFIRMING, in G. R. Nos. L- a quo are directed to adhere henceforth, in all their
27936-37 and the other thirty-one numbers hereunder actuations in Special Proceedings 1307 and 1672, to the
ordered to be added after payment of the corresponding views passed and ruled upon by the Court in the foregoing
docket fees, all the orders of the trial court under appeal opinion.
enumerated in detail on pages 35 to 37 and 80 to 82 of this
decision; the existence of the Testate Estate of Linnie Jane Appellant PCIB is ordered to pay, within five (5) days from
Hodges, with respondent-appellee Avelina A. Magno, as notice hereof, thirty-one additional appeal docket fees, but
administratrix thereof is recognized, and it is declared that, this decision shall nevertheless become final as to each of
until final judgment is ultimately rendered regarding (1) the the parties herein after fifteen (15) days from the respective
manner of applying Article 16 of the Civil Code of the notices to them hereof in accordance with the rules.
Philippines to the situation obtaining in these cases and (2)
the factual and legal issue of whether or not Charles Newton Costs against petitioner-appellant PCIB.
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-

MALANG v. MOSON
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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.
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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 (P1,520,400.48).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
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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.
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COMPILATION OF CASES (Page 2 of 9)
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 Sharia Circuit
Court or not shall be final. Nothing herein contained shall
affect the original and appellate jurisdiction of the Supreme
Court as provided in the Constitution.
Petitioner accordingly informed the court that she would be
filing "an original action of certiorari with the Supreme
Court."24
On March 1, 1995, petitioner filed the instant petition for
certiorari with preliminary injunction and/or restraining order.
She contends that the Sharia District Court gravely erred in:
(a) ruling that when she married Hadji Abdula Malang, the
latter had three existing marriages with Jubaida Kado
Malang, Nayo Omar Malang and Mabay Ganap Malang and
therefore the properties acquired during her marriage could
not be considered conjugal, and (b) holding that said
properties are not conjugal because under Islamic Law, the
regime of relationship is complete separation of property, in
the absence of stipulation to the contrary in the marriage
settlement or any other contract.25
As petitioner sees it, "the law applicable on issues of
marriage and property regime is the New Civil Code", under
which all property of the marriage is presumed to belong to
the conjugal partnership. The Sharia Court, meanwhile,
viewed the Civil Code provisions on conjugal partnership as
incompatible with plural marriage, which is permitted under
Muslim law, and held the applicable property regime to be
complete separation of property under P.D. 1083.
Owing to the complexity of the issue presented, and the fact
that the case is one of first impression --- this is a singular
situation where the issue on what law governs the property
regime of a Muslim marriage celebrated prior to the passage
of the Muslim Code has been elevated from a Sharia court
for the Courts resolution --- the Court decided to solicit the
opinions of two amici curiae, Justice Ricardo C. 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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 108
COMPILATION OF CASES (Page 2 of 9)
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 Law39 , 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.
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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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 110
COMPILATION OF CASES (Page 2 of 9)
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.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 111
COMPILATION OF CASES (Page 2 of 9)
Art. 60. Children of subsequent marriage. --- Should the
marriage be dissolved and the wife contracts another
marriage after the expiration of her idda, the child born
within six months from the dissolution of the prior marriage
shall be presumed to have been conceived during the former
marriage, and if born thereafter, during the latter.
Art. 61. Pregnancy after dissolution. --- If, after the
dissolution of marriage, the wife believes that she is pregnant
by her former husband, she shall, within thirty days from the
time she became aware of her pregnancy, notify the former
husband or his heirs of that fact. The husband or his heirs
may ask the court to take measures to prevent a simulation
of birth.
Upon determination of status and capacity to succeed based
on the foregoing provisions, the provisions on legal
succession in the Muslim Code will apply. Under Article 110
of the said Code, the sharers to an inheritance include:
(a) The husband, the wife;
(b) The father, the mother, the grandfather, the grandmother;
(c) The daughter and the sons daughter in the direct line;
(d) The full sister, the consanguine sister, the uterine sister
and the uterine brother.
When the wife survives with a legitimate child or a child of
the decedents son, she is entitled to one-eighth of the
hereditary estate; in the absence of such descendants, she
shall inherit one-fourth of the estate.44 The respective shares
of the other sharers, as set out in Article 110 abovecited, are
provided for in Articles 113 to 122 of P.D. 1083.
Seventh Collateral Issue: Muslim Divorces Before the
Effectivity of the Muslim Code
R.A. 394 authorized absolute divorce among Muslims
residing in non-Christian provinces, in accordance with
Muslim custom, for a period of 20 years from June 18, 1949
(the date of approval of R.A. 394) to June 13, 1969. 45 Thus,
a Muslim divorce under R.A. 394 is valid if it took place from
June 18, 1949 to June 13, 1969.
From the seven collateral issues that we discussed, we
identify four corollary issues as to further situate the points of
controversy in the instant case for the guidance of the lower
court. Thus:
1. Which of the several marriages was validly and legally
existing at the time of the opening of the succession of Hadji
Abdula when he died in 1993? The validly and legally
existing marriage would be that marriage which was
celebrated at a time when there was no other subsisting
marriage standing undissolved by a valid divorce or by
death. This is because all of the marriages were celebrated

during the governance of the Civil Code, under the rules of
which only one marriage can exist at any given time.
Whether or not the marriage was validly dissolved by a
Muslim divorce depends upon the time frame and the
applicable law.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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 112
COMPILATION OF CASES (Page 2 of 9)
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. 50
Regrettably, 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.

LLORENTE v. CA
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 124371 November 23, 2000
PAULA T. LLORENTE, petitioner,
vs.
COURT OF APPEALS and ALICIA F. LLORENTE,
respondents.
DECISION
PARDO, J.:
The Case
The case raises a conflict of laws issue.
What is before us is an appeal from the decision of the Court
of Appeals1 modifying that of the Regional Trial Court,
Camarines Sur, Branch 35, Iriga City2 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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 113
COMPILATION OF CASES (Page 2 of 9)
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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 114
COMPILATION OF CASES (Page 2 of 9)
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.
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 115
COMPILATION OF CASES (Page 2 of 9)
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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 116
COMPILATION OF CASES (Page 2 of 9)
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.

TESTATE ESTATE OF SUNTAY
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-3087 and L-3088 July 31, 1954
In re: Testate Estate of the deceased JOSE B. SUNTAY.
SILVINO SUNTAY, petitioner-appellant,
vs.
In re: Intestate Estate of the deceased JOSE B. SUNTAY,
FEDERICO C. SUNTAY, administrator-appellee.
Claro M. Recto for appellant.
Sison and Aruego for appellee.
PADILLA, J.:
This is an appeal from a decree of the Court of First Instance
of Bulacan disallowing the alleged will and testament
executed in Manila on November 1929, and the alleged last
will and testament executed in Kulangsu, Amoy, China, on 4
January 1931, by Jose B. Suntay. The value of the estate left
by the deceased is more than P50,000.
On 14 May 1934 Jose B. Suntay, a Filipino citizen and
resident of the Philippines, died in the city of Amoy, Fookien
province, Republic of China, leaving real and personal
properties in the Philippines and a house in Amoy, Fookien
province, China, and children by the first marriage had with
the late Manuela T. Cruz namely, Apolonio, Concepcion,
Angel, Manuel, Federico, Ana, Aurora, Emiliano, and Jose,
Jr. and a child named Silvino by the second marriage had
with Maria Natividad Lim Billian who survived him. Intestate
proceedings were instituted in the Court of First Instance of
Bulacan (special proceedings No. 4892) and after hearing
letters of administration were issued to Apolonio Suntay.
After the latter's death Federico C. Suntay was appointed
administrator of the estate. On 15 October 1934 the surviving
widow filed a petition in the Court of First Instance of Bulacan
for the probate of a last will and testament claimed to have
been executed and signed in the Philippines on November
1929 by the late Jose B. Suntay. This petition was denied
because of the loss of said will after the filing of the petition
and before the hearing thereof and of the insufficiency of the
evidence to establish the loss of the said will. An appeal was
taken from said order denying the probate of the will and this
Court held the evidence before the probate court sufficient to
prove the loss of the will and remanded the case to the Court
of First Instance of Bulacan for the further proceedings (63
Phil., 793). In spite of the fact that a commission from the
probate court was issued on 24 April 1937 for the taking of
the deposition of Go Toh, an attesting witness to the will, on
7 February 1938 the probate court denied a motion for
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COMPILATION OF CASES (Page 2 of 9)
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.).
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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.).
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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.
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COMPILATION OF CASES (Page 2 of 9)
The decree appealed from is affirmed, without
pronouncement as to costs.
ARTICLE 798
DOROTHEO v. CA
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
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
WILLS and SUCCESSION (Atty. Lielanie Yangyang-Espejo) 121
COMPILATION OF CASES (Page 2 of 9)
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:
On whether the will submitted is indeed, the decedent's last
will and testament;
On compliance with the prescribed formalities for the
execution of wills;
8
On the testamentary capacity of the testator;
On 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
13
to the laws on succession, 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
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COMPILATION OF CASES (Page 2 of 9)

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 according to the laws of
intestate succession.
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 proceedings for the settlement of his and that of his
late spouse's estate.
Petitioner's motion for appointment as administratrix is
rendered moot considering that she was not married to the
late Alejandro and, therefore, is not an heir.
WHEREFORE, the petition is DENIED and the decision
appealed from is AFFIRMED.
SO ORDERED.

Petitioner posits that the January 30, 1986 Order is merely

interlocutory, hence it can still be set aside by the trial court.
In support thereof, petitioner argues that "an order merely
declaring who are heirs and the shares to which set of heirs
is entitled cannot be the basis of execution to require delivery
of shares from one person to another particularly when no
project of partition has been filed." 19 The trial court declared
in the January 30, 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