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Private International Law (Prof.

Magallona)
COMPILATION OF CASES
Introductory Part
I. Relationship of Private International Law to Public International Law
II. State Jurisdiction in General
III. Philippine Jurisdiction – General Considerations

ASAALI VS COMMISSIONER OF CUSTOMS

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-24170 December 16, 1968

ILLUH ASAALI, HATIB ABDURASID, INGKOH BANTALA, BASOK INGKIN, and


MOHAMMAD BANTALLA,petitioners,
vs.
THE COMMISSIONER OF CUSTOMS, respondent.

FERNANDO, J.:

The policy relentlessly adhered to and unhesitatingly pursued to minimize, if not to do away
entirely, with the evil and corruption that smuggling brings in its wake would be frustrated and
set at naught if the action taken by respondent Commissioner of Customs in this case, as
affirmed by the Court of Tax Appeals, were to be set aside and this appeal from the decision of
the latter were to succeed. Fortunately, the controlling principles of law do not call for a contrary
conclusion. It cannot be otherwise if the legitimate authority vested in the government were not
to be reduced to futility and impotence in the face of an admittedly serious malady, that at times
has assumed epidemic proportions.

The principal question raised by petitioners, owners of five sailing vessels and the cargo loaded
therein declared forfeited by respondent Commissioner of Customs for smuggling, is the validity
of their interception and seizure by customs officials on the high seas, the contention being
raised that importation had not yet begun and that the seizure was effected outside our territorial
waters..

Why such a plea could not be given the least credence without doing violence to common sense
and placing the law in disrepute would be apparent from a statement of the case and the
findings of facts as set forth in the decision now under review, of the Court of Tax Appeals,
dated November 19, 1964, the opinion being penned by the late Associate Judge Augusto M.
Luciano.

His opinion starts thus: "This is an appeal from the decision of the Acting Commissioner of
Customs in Customs Case No. 113, dated September 26, 1961, (Jolo Seizure Identification
Cases Nos. 38, 39, 40, 41 & 42) decreeing the forfeiture of five (5) sailing vessels (kumpits)
named 'Iroc-Iroc,' 'Lahat-lahat,' 'Liberal Wing III,' 'Sulu Area Command,' and 'Business,' with
their respective cargoes of blue seal cigarettes and rattan chairs for violation of Section 1363(a)
of the Revised Administrative Code and Section 20 of Republic Act No. 426 in relation with
Section 1363(f) of the Revised Administrative Code."1

The facts according to the above opinion "are not controverted." Thus: "It appears that on
September 10, 1950, at about noon time, a customs patrol team on board Patrol Boat ST-23
intercepted the five (5) sailing vessels in question on the high seas, between British North
Borneo and Sulu while they were heading towards Tawi-tawi, Sulu. After ordering the vessels to
stop, the customs officers boarded and found on board, 181 cases of 'Herald' cigarettes, 9
cases of 'Camel' cigarettes, and some pieces of rattan chairs. The sailing vessels are all of
Philippine registry, owned and manned by Filipino residents of Sulu, and of less than thirty (30)
tons burden. They came from Sandakan, British North Borneo, but did not possess any permit
from the Commissioner of Customs to engage in the importation of merchandise into any port of
the Sulu sea, as required by Section 1363(a) of the Revised Administrative Code. Their cargoes
were not covered by the required import license under Republic Act No. 426, otherwise known
as the Import Control Law."2

Respondent Commissioner of Customs, as noted at the outset, affirmed the decision rendered
by the Collector of Customs of Jolo, who found cause for forfeiture under the law of the vessels
and the cargo contained therein. He was, as also already made known, sustained by the Court
of Tax Appeals. Hence this petition for review.

The first two errors assigned by petitioners would impugn the jurisdiction of the Bureau of
Customs to institute seizure proceedings and thereafter to declare the forfeiture of the vessels in
question and their cargo. They would justify their stand thus: "In the light of the fact that the
vessels involved with the articles laden therein were apprehended and seized on the high seas,
beyond the territorial waters of the Philippines, the said vessels could not have touched any
place or port in the Philippines, whether a port or place of entry or not, consequently, the said
vessels could not have been engaged in the importation of the articles laden therein into any
Philippine port or place, whether a port or place of entry or not, to have incurred the liability of
forfeiture under Section 1363(a) of the Revised Administrative Code." 3

Such a contention was advanced by petitioners before the Court of Tax Appeals. It met the
repudiation that it deserved. Thus: "We perfectly see the point of the petitioners but considering
the circumstances surrounding the apprehension of the vessels in question, we believe that
Section 1363(a) of the Revised Administrative Code should be applied to the case at bar. It has
been established that the five vessels came from Sandakan, British North Borneo, a foreign
port, and when intercepted, all of them were heading towards Tawi-tawi, a domestic port within
the Sulu sea. Laden with foreign manufactured cigarettes, they did not possess the import
license required by Republic Act No. 426, nor did they carry a permit from the Commissioner of
Customs to engage in importation into any port in the Sulu sea. Their course announced loudly
their intention not merely to skirt along the territorial boundary of the Philippines but to come
within our limits and land somewhere in Tawi-tawi towards which their prows were pointed. As a
matter of fact, they were about to cross our aquatic boundary but for the intervention of a
customs patrol which, from all appearances, was more than eager to accomplish its mission." 4

The sense of realism and the vigorous language employed by the late Judge Luciano in
rejecting such a plea deserve to be quoted. Thus: "To entertain even for a moment the thought
that these vessels were probably not bound for a Philippine port would be too much a
concession even for a simpleton or a perennial optimist. It is quite irrational for Filipino sailors
manning five Philippine vessels to sneak out of the Philippines and go to British North Borneo,
and come a long way back laden with highly taxable goods only to turn about upon reaching the
brink of our territorial waters and head for another foreign port."5

1. We find no plausible reason not to accept in its entirety such a conclusion reached by the
Court of Tax Appeals. Nor, even if the persuasive element in the above view were not so
overwhelming, could we alter the decisive facts as found by it. For it is now beyond question
that its finding, if supported by substantial evidence, binds us, only questions of law being for us
to resolve. Where the issue raised belongs to the former category, we lack the power of review. 6

Moreover, for understandable reasons, we feel extreme reluctance to substitute our own
discretion for that of the Court of Tax Appeals in its appreciation of the relevant facts and its
appraisal of their significance. As we had occasion to state in a relatively recent decision: "Nor
as a matter of principle is it advisable for this Court to set aside the conclusion reached by an
agency such as the Court of Tax Appeals which is, by the very nature of its function, dedicated
exclusively to the study and consideration of tax problems and has necessarily developed an
expertise on the subject, ..., there has been an abuse or improvident exercise of its authority." 7

2. We thus could rest our decision affirming that of the Court of Tax Appeals on the above
consideration.

It might not be amiss however to devote some degree of attention to the legal points raised in
the above two assignment of errors, discussed jointly by petitioners-appellants, alleging the
absence of jurisdiction, the deprivation of property without due process of law and the
abatement of liability consequent upon the repeal of Republic Act No. 426. Not one of the
principles of law relied upon suffices to call for reversal of the action taken by the respondent
Commissioner of Customs, even if the facts presented a situation less conclusive against the
pretension of petitioners-appellants.

From the apprehension and seizure of the vessels in question on the high seas beyond the
territorial waters of the Philippines, the absence of jurisdiction of Commissioner of Customs is
predicated. Such contention of petitioners-appellants is without merit.

It is unquestioned that all vessels seized are of Philippine registry. The Revised Penal Code
leaves no doubt as to its applicability and enforceability not only within the Philippines, its
interior waters and maritime zone, but also outside of its jurisdiction against those committing
offense while on a Philippine ship ... 8 The principle of law that sustains the validity of such a
provision equally supplies a firm foundation for the seizure of the five sailing vessels found
thereafter to have violated the applicable provisions of the Revised Administrative Code. 9

Moreover, it is a well settled doctrine of International Law that goes back to Chief Justice
Marshall's opinion in Church v. Hubbart,10 an 1804 decision, that a state has the right to protect
itself and its revenues, a right not limited to its own territory but extending to the high seas. In
the language of Chief Justice Marshall: "The authority of a nation within its own territory is
absolute and exclusive. The seizure of a vessel within the range of its cannon by a foreign force
is an invasion of that territory, and is a hostile act which it is its duty to repel. But its power to
secure itself from injury may certainly be exercised beyond the limits of its territory."
The question asked in the brief of petitioners-appellants as to whether the seizure of the vessels
in question and the cargoes on the high seas and thus beyond the territorial waters of the
Philippines was legal must be answered in the affirmative.

4. The next question raised is the alleged denial of due process arising from such forfeiture and
seizure. The argument on the alleged lack of validity of the action taken by the Commissioner of
Customs is made to rest on the fact that the alleged offense imputed to petitioners-appellants is
a violation of Section 1363(a) and not Section 1363(f). The title of Section 1363 is clear,
"Property subject to forfeiture under customs laws." The first subsection thereof, (a) cover any
vessel including cargo unlawfully engaged in the importation of merchandise except a port of
entry. Subsection (f) speaks of any merchandise of any prohibited importation, the importation
of which is effected or attempted contrary to law and all other merchandise which in the opinion
of the Collector of Customs have been used are or were intended to be used as instrument in
the importation or exportation of the former.

From the above recital of the legal provisions relied upon, it would appear most clearly that the
due process question raised is insubstantial. Certainly, the facts on which the seizure was
based were not unknown to petitioners-appellants. On those facts the liability of the vessels and
merchandise under the above terms of the statute would appear to be undeniable. The action
taken then by the Commissioner of Customs was in accordance with law.

How could there be a denial of due process? There was nothing arbitrary about the manner in
which such seizure and forfeiture were effected. The right to a hearing of petitioners-appellants
was respected. They could not have been unaware of what they were doing. It would be an
affront to reason if under the above circumstances they could be allowed to raise in all
seriousness a due process question. Such a constitutional guaranty, basic and fundamental,
certainly should not be allowed to lend itself as an instrument for escaping a liability arising from
one's own nefarious acts.

5. Petitioners-appellants would further assail the validity of the action taken by the respondent
Commissioner of Customs by the plea that the repeal of Republic Act No. 426 abated whatever
liability could have been incurred thereunder. This argument raised before the Court of Tax
Appeals was correctly held devoid of any persuasive force. The decision under review cited our
opinion in Golay-Buchel & Cie v. Commissioner of Customs11 to the effect that the expiration of
the Import Control Law "did not produce the effect of declaring legal the importation of goods
which were illegally imported and the seizure and forfeiture thereof as ordered by the Collector
of Customs illegal or null and void."

Roxas v. Sayoc 12 announced that principle earlier. Thus: "Herein, we are concerned with the
effect of the expiration of a law, not with the abrogation of a law, and we hold the view that once
the Commissioner of Customs has acquired jurisdiction over the case, the mere expiration of
Republic Act No. 650 will not divest him of his jurisdiction thereon duly acquired while said law
was still in force. In other words, we believe that despite the expiration of Republic Act No. 650
the Commissioner of Customs retained his jurisdiction over the case and could continue to take
cognizance thereof until its final determination, for the main question brought in by the appeal
from the decision of the Collector of Customs was the legality or illegality of the decision of the
Collector of Customs, and that question could not have been abated by the mere expiration of
Republic Act No. 650. We firmly believe that the expiration of Republic Act No. 650 could not
have produced the effect (1) of declaring legal the importation of the cotton counterpanes which
were illegally imported, and (2) of declaring the seizure and forfeiture ordered by the Collector of
Customs illegal or null and void; in other words it could not have the effect of annulling or setting
aside the decision of the Collector of Customs which was rendered while the law was in force
and which should stand until it is revoked by the appellate tribunal."

As late as 1965, in Bombay Dept. Store v. Commissioner of Customs, 13 we had occasion to


reaffirm the doctrine in the above two decisions, the present Chief Justice, speaking for the
Court, stating that such expiration of the period of effectivity of Republic Act No. 650 "did not
have the effect of depriving the Commissioner of Customs of the jurisdiction, acquired by him
prior thereto, to act on cases of forfeiture pending before him, which are in the nature of
proceeding in rem...."

It is thus most evident that the Court of Tax Appeals had not in any wise refused to adhere
faithfully to controlling legal principles when it sustained the action taken by respondent
Commissioner of Customs. It would be a reproach and a reflection on the law if on the facts as
they had been shown to exist, the seizure and forfeiture of the vessels and cargo in question
were to be characterized as outside the legal competence of our government and violative of
the constitutional rights of petitioners-appellants. Fortunately, as had been made clear above,
that would be an undeserved reflection and an unwarranted reproach. The vigor of the war
against smuggling must not be hampered by a misreading of international law concepts and a
misplaced reliance on a constitutional guaranty that has not in any wise been infringed.

WHEREFORE, the decision of respondent Court of Tax Appeals of November 19, 1964, is
affirmed. With costs against petitioners-appellants.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Capistrano,
JJ., concur.

Footnotes
1
Decision of the Court of Tax Appeals, Brief for Petitioners-Appellants, pp. I-II.
2
Ibid, p. II.
3
Brief for Petitioners-Appellants, pp. 9-10.
4
Decision of the Court of Tax Appeals, Brief for Petitioners-Appellants, pp. VIII-IX.
5
Ibid, p. IX.
6
Cf. Sanchez v. Commissioner of Customs, 102 Phil. 37 (1957); Castro v. Collector of
Internal Revenue, L-12174, April 26, 1962; Yupangco & Sons. Inc. v. Commissioner of
Customs, L-22259, Jan. 19, 1966; Commissioner of Internal Revenue v. Priscilla Estate,
L-18282, May 29, 1964; Phil. Guaranty Co. v. Commissioner of Internal Revenue, L-
22074, Sept. 6, 1965; Republic v. Razon, L-17462, May 24, 1967; Balbas v. Domingo, L-
19804, Oct. 23, 1967.
7
Alhambra Cigar v. Commissioner of Internal Revenue, L-23226, Nov. 28, 1967.
8
Article 2, Revised Penal Code (Act No. 3815).
9
Section 1363 (a) and (f).
10
2 Cranch 187, 234.
11
106 Phil. 777, 783 (1959).
12
100 Phil. 448. 452-453 (1956).
13
L-20460, September 30.

US. VS LOOK CHAW

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

DECISION

July 12, 1911

G.R. No. L-5889

THE UNITED STATES, plaintiff-appellee,


vs.
LOOK CHAW (<i>alias</i> LUK CHIU), defendant-appellant.

Thos. D. Aitken for appellant.


Attorney-General Villamor for appellee.

Arellano, J.:

This case is a separate part of Case No. 5887 and bears No. 5889 on the general docket of this
court, and No. 377 on the docket of the Court of First Instance of Cebu.

The complaint in this case states:

That, on or about the 18th of August, 1909, within the boundaries of the municipality of Cebu of
this province and judicial district, the said Look Chaw (alias Luk Chiu) did, without having
obtained authorization from the Collector of Internal Revenue and without being authorized in
any manner and traffic in the same.
C.J. Milliron, an internal-revenue agent, testified that Vicente Base took to the governor of Cebu
a can of opium containing 200 grammes of the said drug, in order to show him that the accused
had sold opium to Base, and the governor called the witness in order that he might take part in
this case. After the accused was arrested, he confessed before the witness and the provincial
fiscal that he had sold to Vicente Base thirty cans of opium on the 15th of August, 1909, but that
he had received the price thereof, and that the money which was found in a box of his on board
the British steamship Erroll, P1,500 in amount, was obtained in Manila and was seized by the
captain of the vessel. According to the accused, he had purchased in Hongkong 137 cans of
opium for the purpose of introducing it as contraband into Mexico, the destination of the vessel,
but that as the latter changed its route touching first at Manila, the opium arrived at Cebu.

Vicente Base testified that he had negotiated with the accused with respect to the sale of the
three sacks of opium which were seized while in the latter's possession an were the subject
matter of the previous cause; that these three sacks were not taken ashore, because the
accused would not permit this to be done without previous delivery of the whole price of P1,000,
of which witness had only paid P533; that he therefore only took one can from one of the said
sacks.

The Court of First Instance of Cebu sentenced the accused to one year's imprisonment and the
payment of a fine of P2,000, with additional subsidiary imprisonment in case of insolvency, not
to exceed one-third of the principal penalty, and to the payment of the costs of the trial. It was
ordered in the judgment that the exhibits connected with the case should be confiscated, and
that, in case of an appeal, and even after the sentence had been served, the defendant should
not be released from custody, but delivered to the customs authorities for the purpose of the
enforcement of the existing immigration laws.

The defendant appealed and has alleged before this court that he can not punished in
accordance with section 15 of Act No. 1761, under which the complaint was drawn.

This said section 15 reads thus:

(a) No person shall import, cook, or prepare opium, or engage in the business of purchasing or
selling opium or of dealing or trafficking therein, unless he shall first have secured from the
Collector of Internal Revenue a license to transact such business and shall have paid the
license tax prescribed by this Act. . . .

To make an isolated sale, says the appellant, is not to engage in the business of selling. To
negotiate the sale of opium does not mean clandestinely to sell opium once.

In our opinion, the act defined in section 15 is distinct from that penalized in section 5; the act
referred to in the latter is any act of sale, while that concerned in the former relates to the
business of selling, in an habitual, professional manner, as one of an undertaking or occupation,
without license.

SEC. 5. (a) It shall be unlawful to sell, transfer, give, or deliver opium to any person except to a
duly licensed and practicing physician, pharmacist, or second-class pharmacist, or a duly
licensed dispensator of opium, or duly registered confirmed user of opium in a licensed opium
dispensary for consumption therein only, and in accordance with the provisions of this Act: . . .
(b) Any person violating the provisions of the preceding subsection shall be punished by a fine
not exceeding one thousand pesos, or by imprisonment for a period not exceeding one year, or
both such fine and imprisonment, in the discretion of the court: . . .

The crime concerned in this case, according to this section 5, is compromised within
the language of the complaint which charges the act of selling opium without the
authorization of the Collector of Internal Revenue fWClkY6.

The other ground of the appeal is that the confession of the accused were taken into
account for the purpose of his conviction. The trial court pronounced its sentence
after considering that "sufficient proof has been furnished by the evidence,' and the
evidence did not consist solely in the confession that the accused, on the day and at
the place mentioned in the complaint, contracted with Vicente Base for the sale of
the opium, the subject matter of the present prosecution; and as this finding does not
appear to be erroneous nor contrary to the conclusions reached from the evidence, it
is accepted by this court in order that thereby the judgment appealed from may be
dully affirmed, as we do affirm the same.

This disposes of the appeal; but, in the opinion of this court, the defense of double
jeopardy alleged by the accused in first instance, with exception to the order
disallowing it, can not but be taken into consideration, although in this instance, on
appeal, that defense was not reproduced with the allegation that its disallowance
was an error committed by the lower court in its judgment. This point appears to
involve a question of jurisdiction XqJLRkl.

Before separating the two causes, as related at the beginning of this decision, there
was but one single complaint and there would have been only one trial for the
possession of opium and for the sale of opium. But the defendant's counsel set up a
demurrer, arguing that the complaint was defective inasmuch as it charged two
distinct crimes, for according to the defense, it was alleged to be one crime to
possess opium and another different crime to sell opium; and the court deferred to
this pretension and ordered the filing of two complaints, one for the possession of
opium and another for the sale of opium; that for the possession of opium was the
one first tried by the lower court.

In answering the second complaint for the sale of opium, the defendant alleged that
he had already been in jeopardy.

The defendant was convicted yesterday," said his attorney, "for the violation of law
committed, of possessing opium, and has already been sentenced by this court to
five year's imprisonment and in addition to pay a fine of ten thousand pesos.
According to the principles of penal law, when a crime has been committed which is
necessary in order to commit another, the delinquent, of course, can not be punished
for the two crimes, but must suffer for the crime for which the greater penalty was
provided.
The court rejected this allegation: first, because the prosecution of two crimes
instead of one was brought about by the defense itself; and second, because, in the
opinion of the trial judge, if the defendant had first been convicted for selling opium,
he certainly would have been in jeopardy in the cause prosecuted for possessing
opium, for the reason that really one can not sell opium without possessing it, while,
if the terms are inverted, the same result does not follow, because one may posses
opium without selling it, and consequently in the present cause the allegation of
double jeopardy is an admissible.

True it is, we assert, that it is one crime to possess opium, punished by section 31 of
the Act, and another, to sell opium, penalized by section 5 of the same Act before
cited 6U7sE4.

And it is also true that when one single act constitutes two or more crimes, or when
one of them is a necessary means for the commission of the other, only the penalty
corresponding to the more serious crime shall be imposed, in its maximum degree,
and thus, he who smokes opium in a pipe, by one single act lays himself liable to
three penalties of the law, one of them, merely for the fact of possessing opium,
another, for the mere possession of a pipe in which opium is smoked, and the other,
for the act of smoking opium; but the penalties corresponding to these three crimes
ought not to be imposed upon the defendant in this case, and only the penalty for the
most serious of these crimes.

But the illegal possession of 137 cans of opium and the illegal sale of 30 cans of
opium, which are two acts confessed by the accused, are not one act which
constitutes two crimes, nor a crime which is a necessary means for the commission
of another. They are two isolated acts, punishable, each of them, in themselves.
Only in the event where all the amount of the opium possessed and seized be in its
totality the same as that which was possessed with the sole purpose of being
delivered as the matter or subject of a sale previously agree upon, could it be said, in
the opinion of this court, that the possession of the opium was a necessary means to
effect the delivery by reason of the sale, and that the sale agreed upon was the sole
reason for the possession of the opium seized. The possession of the quantity
contained in the pipe can not be considered as a different crime from that of smoking
opium in a pipe, nor the possession of the pipe, as a crime different from that of
smoking opium in a pipe. But if the person surprised in smoking opium in a pipe was
also surprised in the possession of the thirty cans sold by the accused, it could not
properly be inferred that the possession of these thirty cans, which in itself is a crime,
was a necessary means for the commission of the other crime of smoking opium in a
pipe, and that the person in whose possession the thirty cans were seized,
possessed the same solely and exclusively for the purpose of smoking opium in a
pipe. It might very well have been that he had acquired the drug for the purpose of
inhaling, injecting, chewing, swallowing, or other uses, and that only by chance did it
occur to him to try to smoke it in a pipe, on the very occasion when he was surprised,
this being the evident fact of the commission of the crime which can not, in its
essence, include the existence of thirty cans, not then contained in the pipe, each
can certainly being susceptible of other various uses, every one of which might by its
nature constitute a different crime.

We consider this doctrine equally applicable to crimes which are evils by their very
nature, as well as to those which are merely malum quia prohibitum; because it not
only aims at a more or less strict application of a penal precept which, undoubtedly,
in the practice of this court, usually tends toward the lesser severity and,
occasionally, the greatest benignity when the second class, or conventional crimes,
are concerned, but also because that doctrine is the logical result of the process of
the intelligence in the derivation of consequences from the principles constitute of the
nature of things.

Thus it is that we find the institution of this cause, and its separation from the
previous one, to be founded on law and juridical principles, and the judgment
appealed from, to be in accordance with right and equity, except with regard to the
amount of the penalty, which we reduce, in harmony with the provisions of section 5
aforementioned, to six months' imprisonment and a fine of P1,000 Philippine
currency i1dqd.

Therefore, with the understanding that the imprisonment and the fine imposed shall
be, respectively, six months and P1,000 Philippine Currency, we affirm, as to all the
rest, the judgment appealed from, with the costs of this instance against the
appellant. So ordered.

Torres, Mapa, and Johnson, JJ., concur.


Carson, J., concurs in the result. .

PEOPLE VS WONG CHENG

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-18924 October 19, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant,


vs.
WONG CHENG (alias WONG CHUN), defendant-appellee.

Attorney-General Villa-Real for appellant.


Eduardo Gutierrez Repide for appellee.
ROMUALDEZ, J.:

In this appeal the Attorney-General urges the revocation of the order of the Court of First
Instance of Manila, sustaining the demurrer presented by the defendant to the information that
initiated this case and in which the appellee is accused of having illegally smoked opium,
aboard the merchant vessel Changsa of English nationality while said vessel was anchored in
Manila Bay two and a half miles from the shores of the city.

The demurrer alleged lack of jurisdiction on the part of the lower court, which so held and
dismissed the case.

The question that presents itself for our consideration is whether such ruling is erroneous
or not; and it will or will not be erroneous according as said court has or has no jurisdiction over
said offense.

The point at issue is whether the courts of the Philippines have jurisdiction over crime, like
the one herein involved, committed aboard merchant vessels anchored in our jurisdiction
waters. 1awph!l.net

There are two fundamental rules on this particular matter in connection with International
Law; to wit, the French rule, according to which crimes committed aboard a foreign merchant
vessels should not be prosecuted in the courts of the country within whose territorial jurisdiction
they were committed, unless their commission affects the peace and security of the territory;
and the English rule, based on the territorial principle and followed in the United States,
according to which, crimes perpetrated under such circumstances are in general triable in the
courts of the country within territory they were committed. Of this two rules, it is the last one that
obtains in this jurisdiction, because at present the theories and jurisprudence prevailing in the
United States on this matter are authority in the Philippines which is now a territory of the United
States.

In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.],
116), Chief Justice Marshall said:

. . . When merchant vessels enter for the purposes of trade, it would be obviously
inconvenient and dangerous to society, and would subject the laws to continual
infraction, and the government to degradation, if such individuals or merchants did not
owe temporary and local allegiance, and were not amenable to the jurisdiction of the
country. . . .

In United States vs. Bull (15 Phil., 7), this court held:

. . . No court of the Philippine Islands had jurisdiction over an offense or crime


committed on the high seas or within the territorial waters of any other country, but when
she came within three miles of a line drawn from the headlands, which embrace the
entrance to Manila Bay, she was within territorial waters, and a new set of principles
became applicable. (Wheaton, International Law [Dana ed.], p. 255, note 105; Bonfils,
Le Droit Int., secs. 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were
then subject to the jurisdiction of the territorial sovereign subject to such limitations as
have been conceded by that sovereignty through the proper political agency. . . .
It is true that in certain cases the comity of nations is observed, as in Mali and Wildenhus
vs. Keeper of the Common Jail (120 U.., 1), wherein it was said that:

. . . The principle which governs the whole matter is this: Disorder which disturb
only the peace of the ship or those on board are to be dealt with exclusively by the
sovereignty of the home of the ship, but those which disturb the public peace may be
suppressed, and, if need be, the offenders punished by the proper authorities of the local
jurisdiction. It may not be easy at all times to determine which of the two jurisdictions a
particular act of disorder belongs. Much will undoubtedly depend on the attending
circumstances of the particular case, but all must concede that felonious homicide is a
subject for the local jurisdiction, and that if the proper authorities are proceeding with the
case in the regular way the consul has no right to interfere to prevent it.

Hence in United States vs. Look Chaw (18 Phil., 573), this court held that:

Although the mere possession of an article of prohibited use in the Philippine


Islands, aboard a foreign vessel in transit in any local port, does not, as a general rule,
constitute a crime triable by the courts of the Islands, such vessels being considered as
an extension of its own nationality, the same rule does not apply when the article, the
use of which is prohibited in the Islands, is landed from the vessels upon Philippine soil;
in such a case an open violation of the laws of the land is committed with respect to
which, as it is a violation of the penal law in force at the place of the commission of the
crime, no court other than that established in the said place has jurisdiction of the
offense, in the absence of an agreement under an international treaty.

As to whether the United States has ever consented by treaty or otherwise to renouncing
such jurisdiction or a part thereof, we find nothing to this effect so far as England is concerned,
to which nation the ship where the crime in question was committed belongs. Besides, in his
work "Treaties, Conventions, etc.," volume 1, page 625, Malloy says the following:

There shall be between the territories of the United States of America, and all the
territories of His Britanic Majesty in Europe, a reciprocal liberty of commerce. The
inhabitants of the two countries, respectively, shall have liberty freely and securely to
come with their ships and cargoes to all such places, ports and rivers, in the territories
aforesaid, to which other foreigners are permitted to come, to enter into the same, and to
remain and reside in any parts of the said territories, respectively; also to hire and
occupy houses and warehouses for the purposes of their commerce; and, generally, the
merchants and traders of each nation respectively shall enjoy the most complete
protection and security for their commerce, but subject always to the laws and statutes
of the two countries, respectively. (Art. 1, Commerce and Navigation Convention.)

We have seen that the mere possession of opium aboard a foreign vessel in transit was
held by this court not triable by or courts, because it being the primary object of our Opium Law
to protect the inhabitants of the Philippines against the disastrous effects entailed by the use of
this drug, its mere possession in such a ship, without being used in our territory, does not being
about in the said territory those effects that our statute contemplates avoiding. Hence such a
mere possession is not considered a disturbance of the public order.

But to smoke opium within our territorial limits, even though aboard a foreign merchant
ship, is certainly a breach of the public order here established, because it causes such drug to
produce its pernicious effects within our territory. It seriously contravenes the purpose that our
Legislature has in mind in enacting the aforesaid repressive statute. Moreover, as the Attorney-
General aptly observes:

. . . The idea of a person smoking opium securely on board a foreign vessel at


anchor in the port of Manila in open defiance of the local authorities, who are impotent to
lay hands on him, is simply subversive of public order. It requires no unusual stretch of
the imagination to conceive that a foreign ship may come into the port of Manila and
allow or solicit Chinese residents to smoke opium on board.

The order appealed from is revoked and the cause ordered remanded to the court of
origin for further proceedings in accordance with law, without special findings as to costs. So
ordered.

Araullo, C.J., Street, Malcolm, Avanceña, Villamor, Ostrand and Johns, JJ., concur.

US VS BULL

U.S. Supreme Court

Bull v. United States, 295 U.S. 247 (1935)

Bull v. United States

No. 649

Argued April 9, 1935

Decided April 29, 1935

295 U.S. 247

Syllabus

1. Moneys received by a deceased partner's estate as his share of profits earned by the firm
before he died, are taxable as his income and also are to be included as part of his estate in
computing the federal estate tax. P. 295 U. S. 254.

2. Where the articles of a personal service partnership having no invested capital provide that,
in the event of a partner's death, the survivors, if his representative does not object, shall be at
liberty to continue the business for a year, the estate in that case to share the profits or losses
as the deceased partner would if living, the profits coming to the estate from such continuation
of the business are not to be regarded as the fruits of a sale of any interest of the deceased to
the survivors, but are income of the estate, taxable as such; they are no part of the corpus of the
estate left by the decedent upon which the federal estate tax is to be computed. P. 295 U. S.
255.

3. Retention by the Government of money wrongfully exacted as taxes is immoral, and amounts
in law to a fraud on the taxpayer's rights. P. 295 U. S. 261.

4. A claim for recovery of money so held may not only be the subject of a suit in the Court of
Claims, but may be used by way of recoupment and credit in an action by the United States
arising out of the same transaction, and this even though an independent suit against the
Government to enforce the claim would be barred by the statute of limitations. P. 295 U. S. 261.

5. Recoupment is in the nature of a defense arising out of some feature of the transaction upon
which the plaintiff's action is grounded. Such a defense is never barred by the statute of
limitations so long as the main action itself is timely. P. 295 U. S. 262.

Page 295 U. S. 248

6. The Government wrongfully collected and retained an estate tax on moneys earned for and
paid to an estate in partnership transactions after the decedent's death, and which were not part
of the corpus of the estate and were properly taxable only as income of the estate. Before the
time allowed for claiming reimbursement had elapsed, the Government proceeded to assess
and collect an income tax on the identical moneys.

Held:

(1) That the taxpayer was entitled to recoup from the amount of the income tax the amount of
the unlawful estate tax by suit for the difference in the Court of Claims, although suit to recover
the unlawful tax independently had become barred. Pp. 295 U. S. 261-262.

(2) A complaint by which the taxpayer prayed judgment in the alternative, either for the amount
of the income tax or for what should have been credited against it on account of the estate tax,
was sufficient to put in suit the right to recoupment. P. 295 U. S. 263.

7. The Court of Claims is not bound by any special rules of pleading; all that is required is that
the petition shall contain a plain and concise statement of the fact relied on and give the United
States reasonable notice of the matters it is called upon to meet. P. 295 U. S. 263.

79 Ct.Cls. 133, 6 F.Supp. 141, reversed.

Certiorari, 294 U.S. 704, to review a judgment rejecting a claim for money unlawfully exacted as
taxes.

Page 295 U. S. 251


Certiorari, 294 U.S. 704, to review a judgment rejecting a claim for money unlawfully exacted as
taxes.

Page 295 U. S. 251

MR. JUSTICE ROBERTS delivered the opinion of the Court.

Archibald H. Bull died February 13, 1920. He had been a member of a partnership engaged in
the business of ship-brokers. The agreement of association provided that, in the event a partner
died, the survivors should continue the business for one year subsequent to his death, and his
estate should "receive the same interests, or participate in the losses to the same extent," as
the deceased partner would, if living,

"based on the usual method of ascertaining what the said profits or losses would be. . . . Or the
estate of the deceased partner shall have the option of withdrawing his interest from the firm
within thirty days after the probate of will . . . , and all adjustments of profits or losses shall be
made as of the date of such withdrawal."

The estate's representative did not exercise the option to withdraw in thirty days, and the
business was conducted until December 31, 1920, as contemplated by the agreement.

The enterprise required no capital, and none was ever invested by the partners. Bull's share of
profits from January 1, 1920, to the date of his death, February 13, 1920, was $24,124.20; he
had no other accumulated profits,

Page 295 U. S. 252

and no interest in any tangible property belonging to the firm. Profits accruing to the estate for
the period from the decedent's death to the end of 1920 were $212,718.79, $200,117.90 being
paid during the year and $12,601.70 during the first two months of 1921.

The Court of Claims found:

"When filing an estate tax return, the executor included the decedent's interest in the
partnership at a value of $24,124.20, which represented the decedent's share of the earnings
accrued to the date of death, whereas the Commissioner, in 1921, valued such interest at
$235,202.99, and subjected such increased value to the payment of an estate tax, which was
paid in June and August, 1921 . The last-mentioned amount was made up of the amount of
$24,124.20 plus the amount of $212,718.79 hereinbefore mentioned. The estate tax on this
increased amount was $41,517.45. [Footnote 1]"
"April 14, 1921, plaintiff filed an income tax return for the period February 13, 1920, to
December 31, 1920, for the estate of the decedent, which return did not include, as income, the
amount of $200,117.09 received as the share of the profits earned by the partnership during the
period for which the return was filed. The estate employed the cash receipts and disbursement
method of accounting."

"Thereafter, in July, 1925, the Commissioner determined that the sum of $200,117.09 received
in 1920 should have been returned by the executor as income to the estate for the period
February 13 to December 31, 1920, and notified plaintiff of a deficiency in income tax due from
the estate for that period of $261,212.65, which was due in part to the inclusion of that amount
as taxable income and in part to adjustments not here in controversy.

Page 295 U. S. 253

No deduction was allowed by the Commissioner from the amount of $200,117.09 on account of
the value of the decedent's interest in the partnership at his death."

6 F.Supp. 141, 142.

September 5, 1925, the executor appealed to the Board of Tax Appeals from the deficiency of
income tax so determined. The Board sustained the Commissioner's action in including the item
of $200,117.99 without any reduction on account of the value of the decedent's interest in the
partnership at the date of death, [Footnote 2] and determined a deficiency of $55,166.49, which,
with interest of $7,510.95, was paid April 14, 1928.

July 11, 1928, the executor filed a claim for refund of this amount, setting forth that the
$200,117.99, by reason of which the additional tax was assessed and paid, was corpus; that it
was so originally determined by the Commissioner and the estate tax assessed thereon was
paid by the executor, and that the subsequent assessment of an income tax against the estate
for the receipt of the same sum was erroneous. The claim was rejected May 8, 1929.
September 16, 1930, the executor brought suit in the Court of Claims, and in his petition, after
setting forth the facts as he alleged them to be, prayed judgment in the alternative: (1) for the
principal sum of $62,677.44, the amount paid April 14, 1928, as a deficiency of income tax
unlawfully assessed and collected; or (2) for the sum of $47,643.44 on the theory that, if the
sum of $200,117.99 was income for the year 1920 and taxable as such, the United States
should have credited against the income tax attributable to the receipt of this sum the
overpayment of estate tax resulting from including the amount in the taxable estate -- $34,035,
[Footnote 3] with interest thereon.

Page 295 U. S. 254


The Court of Claims held that the item was income, and properly so taxed. With respect to the
alternative relief sought, it said:

"We cannot consider whether the Commissioner correctly included the total amount received
from the business in the net estate of the decedent subject to estate tax, for the reason that the
suit was not timely instituted."

Judgment went for the United States. [Footnote 4] Because of the novelty and importance of the
question presented, we granted certiorari. [Footnote 5]

1. We concur in the view of the Court of Claims that the amount received from the partnership
as profits earned prior to Bull's death was income earned by him in his lifetime and taxable to
him as such, and that it was also corpus of his estate and as such to be included in his gross
estate for computation of estate tax. We also agree that the sums paid his estate as profits
earned after his death were not corpus, but income received by his executor, and to be
reckoned in computing income tax for the years 1920 and 1921. Where the effect of the contract
is that the deceased partner's estate shall leave his interest in the business and the surviving
partners shall acquire it by payments to the estate, the transaction is a sale, and payments
made to the estate are for the account of the survivors. It results that the surviving partners are
taxable upon firm profits, and the estate is not. [Footnote 6] Here, however, the survivors have
purchased nothing belonging to the decedent, who had made no investment in the business and
owned no tangible property connected with it. The portion of the profits paid his estate was
therefore income, and not corpus, and this is so whether we consider the executor a member of
the old firm for the remainder

Page 295 U. S. 255

of the year, or hold that the estate became a partner in a new association formed upon the
decedent's demise.

2. A serious and difficult issue is raised by the claim that the same receipt has been made the
basis of both income and estate tax, although the item cannot in the circumstances be both
income and corpus, and that the alternative prayer of the petition required the court to render a
judgment which would redress the illegality and injustice resulting from the erroneous inclusion
of the sum in the gross estate for estate tax. The respondent presents two arguments in
opposition, one addressed to the merits and the other to the bar of the statute of limitations.

On the merits, it is insisted that the government was entitled to both estate tax and income tax in
virtue of the right conferred on the estate by the partnership agreement and the fruits of it. The
position is that, as the contract gave Bull a valuable right which passed to his estate at his
death, the Commissioner correctly included it for estate tax. And the propriety of treating the
share of profits paid to the estate as income is said to be equally clear. The same sum of money
in different aspects may be the basis of both forms of tax. An example is found in this estate.
The decedent's share of profits accrued to the date of his death was $24,124.20. This was
income to him in his lifetime and his executor was bound to return it as such. But the sum was
paid to the executor by the surviving partners, and thus became an asset of the estate;
accordingly, the petitioner returned that amount as part of the gross estate for computation of
estate tax and the Commissioner properly treated it as such.

We are told that, since the right to profits is distinct from the profits actually collected, we cannot
now say more than that perhaps the Commissioner put too high a value on the contract right
when he valued it as equal to the amount

Page 295 U. S. 256

of profits received -- $212,718.99. This error, if error it was, the government says is now beyond
correction.

While, as we have said, the same sum may in different aspects be used for the computation of
both an income and an estate tax, this fact will not here serve to justify the Commissioner's
rulings. They were inconsistent. The identical money -- not a right to receive the amount, on the
one hand, and actual receipt resulting from that right on the other -- was the basis of two
assessments. The double taxation involved in this inconsistent treatment of that sum of money
is made clear by the lower court's finding we have quoted. The Commissioner assessed estate
tax on the total obtained by adding $24,124.20, the decedent's share of profits earned prior to
his death, and $212,718.79, the estate's share of profits earned thereafter. He treated the two
items as of like quality, considered them both as capital or corpus, and viewed neither as the
measure of value of a right passing from the decedent at death. No other conclusion may be
drawn from the finding of the Court of Claims.

In the light of the facts, it would not have been permissible to place a value of $212,718.99 or
any other value on the mere right of continuance of the partnership relation inuring to Bull's
estate. Had he lived, his share of profits would have been income. By the terms of the
agreement, his estate was to sustain precisely the same status quoad the firm as he had, in
respect of profits and losses. Since the partners contributed no capital and owned no tangible
property connected with the business, there is no justification for characterizing the right of a
living partner to his share of earnings as part of his capital, and if the right was not capital to
him, it could not be such to his estate. Let us suppose Bull had, while living, assigned his
interest in the firm, with his partners' consent, to a third person for a valuable consideration,
and, in making return of income, had valued or capitalized the right to profits which

Page 295 U. S. 257

he had thus sold, had deducted such valuation from the consideration received, and returned
the difference only as gain. We think the Commissioner would rightly have insisted that the
entire amount received was income.

Since the firm was a personal service concern and no tangible property was involved in its
transactions, if it had not been for the terms of the agreement, no accounting would have ever
been made upon Bull's death for anything other than his share of profits accrued to the date of
his death -- $24,124.20 -- and this would have been the only amount to be included in his estate
in connection with his membership in the firm. As respects the status after death, the form of the
stipulation is significant. The declaration is that the surviving partners "are to be at liberty" to
continue the business for a year, in the same relation with the deceased partner's estate as if it
were in fact the decedent himself still alive and a member of the firm. His personal
representative is given a veto which will prevent the continuance of the firm's business. The
purpose may well have been to protect the goodwill of the enterprise in the interest of the
survivors, and to afford them a reasonable time in which to arrange for their future activities. But
no sale of the decedent's interest or share in the goodwill can be spelled out. Indeed, the
government strenuously asserted, in supporting the treatment of the payments to the estate as
income, that the estate sold nothing to the surviving partners, and we agree. An analogous
situation would be presented if Bull had not died, but the partnership had terminated by
limitation on February 13, 1920, and the agreement had provided that, if Bull's partners so
desired, the relation should continue for another year. It could not successfully be contended
that, in such case, Bull's share of profit for the additional year was capital.

We think there was no estate tax due in respect of the $212,718.79 paid to the executor as
profits for the period subsequent to the decedent's death.

Page 295 U. S. 258

The government's second point is that, if the use of profits accruing to the estate in computing
estate tax was wrong, the statute of limitations bars correction of the error in the present action.
So the Court of Claims thought. We hold otherwise.

The petitioner included in his estate tax return, as the value of Bull's interest in the partnership,
only $24,124.20, the profit accrued prior to his death. The Commissioner added $212,718.79,
the sum received as profits after Bull's death, and determined the total represented the value of
the interest. The petitioner acquiesced and paid the tax assessed in full in August, 1921. He had
no reason to assume the Commissioner would adjudge the $212,718.79 income and taxable as
such. Nor was this done until July, 1925. The petitioner thereupon asserted, as we think
correctly, that the item could not be both corpus and income of the estate. The Commissioner
apparently held a contrary view. The petitioner appealed to the Board of Tax Appeals from the
proposed deficiency of income tax. His appeal was dismissed April 9, 1928. It was then too late
to file a claim for refund of overpayment of estate tax due to the error of inclusion in the estate of
its share of firm profits. [Footnote 7] Inability to obtain a refund or credit, or to sue the United
States, did not, however, alter the fact that, if the government should insist on payment of the
full deficiency of income tax, it would be in possession of some $41,000 in excess of the sum to
which it was justly entitled. Payment was demanded. The petitioner paid April 14, 1928, and, on
June 11, 1928, presented a claim for refund, in which he still insisted the amount in question
was corpus, had been so determined and estate tax paid on that basis, and should not be
classified for taxation as income. The claim was rejected May 8, 1929, and the present action
instituted September 16, 1930.

Page 295 U. S. 259

The fact that the petitioner relied on the Commissioner's assessment for estate tax, and
believed the inconsistent claim of deficiency of income tax was of no force, cannot avail to toll
the statute of limitations, which forbade the bringing of any action in 1930 for refund of the
estate tax payments made in 1921. As the income tax was properly collected, suit for the
recovery of any part of the amount paid on that account was futile. Upon what theory, then, may
the petitioner obtain redress in the present action for the unlawful retention of the money of the
estate? Before an answer can be given, the system of enforcing the government's claims for
taxes must be considered in its relation to the problem.

A tax is an exaction by the sovereign, and necessarily the sovereign has an enforceable claim
against everyone within the taxable class for the amount lawfully due from him. The statute
prescribes the rule of taxation. Some machinery must be provided for applying the rule to the
facts in each taxpayer's case in order to ascertain the amount due. The chosen instrumentality
for the purpose is an administrative agency whose action is called an assessment. The
assessment may be a valuation of property subject to taxation, which valuation is to be
multiplied by the statutory rate to ascertain the amount of tax. Or it may include the calculation
and fix the amount of tax payable, and assessments of federal estate and income taxes are of
this type. Once the tax is assessed, the taxpayer will owe the sovereign the amount when the
date fixed by law for payment arrives. Default in meeting the obligation calls for some procedure
whereby payment can be enforced. The statute might remit the government to an action at law
wherein the taxpayer could offer such defense as he had. A judgment against him might be
collected by the levy of an execution. But taxes are the lifeblood of government, and their
prompt and certain availability an imperious need. Time out of mind, therefore, the sovereign
has resorted to more drastic

Page 295 U. S. 260

means of collection. The assessment is given the force of a judgment, and if the amount
assessed is not paid when due, administrative officials may seize the debtor's property to satisfy
the debt.

In recognition of the fact that erroneous determinations and assessments will inevitably occur,
the statutes, in a spirit of fairness, invariably afford the taxpayer an opportunity at some stage to
have mistakes rectified. Often an administrative hearing is afforded before the assessment
becomes final; or administrative machinery is provided whereby an erroneous collection may be
refunded; in some instances, both administrative relief and redress by an action against the
sovereign in one of its courts are permitted methods of restitution of excessive or illegal
exaction. Thus, the usual procedure for the recovery of debts is reversed in the field of taxation.
Payment precedes defense, and the burden of proof, normally on the claimant, is shifted to the
taxpayer. The assessment supersedes the pleading, proof, and judgment necessary in an
action at law, and has the force of such a judgment. The ordinary defendant stands in judgment
only after a hearing. The taxpayer often is afforded his hearing after judgment and after
payment, and his only redress for unjust administrative action is the right to claim restitution. But
these reversals of the normal process of collecting a claim cannot obscure the fact that, after all,
what is being accomplished is the recovery of a just debt owed the sovereign. If that which the
sovereign retains was unjustly taken in violation of its own statute, the withholding is wrongful.
Restitution is owed the taxpayer. Nevertheless, he may be without a remedy. But we think this is
not true here.

In a proceeding for the collection of estate tax, the United States through a palpable mistake,
took more than it was entitled to. Retention of the money was against morality and conscience.
But claim for refund or credit

Page 295 U. S. 261

was not presented, or action instituted for restitution, within the period fixed by the statute of
limitations. If nothing further had occurred, congressional action would have been the sole
avenue of redress.
In July, 1925, the government brought a new proceeding arising out of the same transaction
involved in the earlier proceeding. This time, however, its claim was for income tax. The
taxpayer opposed payment in full by demanding recoupment of the amount mistakenly collected
as estate tax and wrongfully retained. Had the government instituted an action at law, the
defense would have been good. The United States, we have held, cannot, as against the claim
of an innocent party, hold his money which has gone into its treasury by means of the fraud of
their agent. United States v. State Bank, 96 U. S. 30. While here the money was taken through
mistake without any element of fraud, the unjust retention is immoral, and amounts in law to a
fraud on the taxpayer's rights. What was said in the State Bank case applies with equal force to
this situation.

"An action will lie whenever the defendant has received money which is the property of the
plaintiff, and which the defendant is obliged by natural justice and equity to refund. The form of
the indebtedness or the mode in which it was incurred is immaterial. . . . In these cases [cited in
the opinion] and many others that might be cited, the rules of law applicable to individuals were
applied to the United States."

Pp. 96 U. S. 35-36. [Footnote 8] A claim for recovery of money so held may not only be the
subject of a suit in the Court of Claims, as shown by the authority referred to, but may be used
by way of recoupment and credit in an action by the United States arising out of the same
transaction. 32 U. S. 16-17; 33 U. S. 163-164. In the

Page 295 U. S. 262

latter case, this language was used:

"No direct suit can be maintained against the United States; but when an action is brought by
the United States, to recover money in the hands of a party, who has a legal claim against them,
it would be a very rigid principle, to deny to him the right of setting up such claim in a court of
justice, and turn him round to an application to congress. If the right of the party is fixed by the
existing law, there can be no necessity for an application to congress, except for the purpose of
remedy. And no such necessity can exist when this right can properly be set up by way of
defence, to a suit by the United States. [Footnote 9]"

If the claim for income tax deficiency had been the subject of a suit, any counter-demand for
recoupment of the overpayment of estate tax could have been asserted by way of defense and
credit obtained, notwithstanding the statute of limitations had barred an independent suit against
the government therefor. This is because recoupment is in the nature of a defense arising out of
some feature of the transaction upon which the plaintiff's action is grounded. Such a defense is
never barred by the statute of limitations so long as the main action itself is timely. [Footnote 10]

The circumstance that both claims, the one for estate tax and the other for income tax, were
prosecuted to judgment and execution in summary form does not obscure the fact that, in
substance, the proceedings were actions to collect debts alleged to be due the United States. It
is

Page 295 U. S. 263

immaterial that in the second case, owing to the summary nature of the remedy, the taxpayer
was required to pay the tax and afterwards seek refundment. This procedural requirement does
not obliterate his substantial right to rely on his cross-demand for credit of the amount which, if
the United States had sued him for income tax, he could have recouped against his liability on
that score.

To the objection that the sovereign is not liable to respond to the petitioner the answer is that it
has given him a right of credit or refund, which, though he could not assert it in an action
brought by him in 1930, had accrued and was available to him, since it was actionable and not
barred in 1925 when the government proceeded against him for the collection of income tax.

The pleading was sufficient to put in issue the right to recoupment. The Court of Claims is not
bound by any special rules of pleading; [Footnote 11] all that is required is that the petition shall
contain a plain and concise statement of the facts relied on and give the United States
reasonable notice of the matters it is called upon to meet. [Footnote 12] And a prayer for
alternative relief, based upon the facts set out in the petition, may be the basis of the judgment
rendered. [Footnote 13]

We are of opinion that the petitioner was entitled to have credited against the deficiency of
income tax the amount of his overpayment of estate tax with interest, and that he should have
been given judgment accordingly. The judgment must be reversed, and the cause remanded for
further proceedings in conformity with this opinion.

Reversed.

[Footnote 1]

It will be noted there is an error in the figures set out in this finding, the total of the two smaller
sums being $236,842.99, but the discrepancy is not material to any issue in the case.

[Footnote 2]
Bull v. Commissioner, 7 B.T.A. 993.

[Footnote 3]

As appears from the quoted finding, the Court of Claims found the overpayment was
$41,517.45.

[Footnote 4]

6 F.Supp. 141.

[Footnote 5]

294 U.S. 704.

[Footnote 6]

Hill v. Commissioner, 38 F.2d 165; Pope v. Commissioner, 39 F.2d 420.

[Footnote 7]

Revenue Act of 1924, §§ 1012 and 281, 43 Stat. pp. 342 and 301; Revenue Act of 1926, §§
1112 and 319, 44 Stat. pp. 115 and 84.

[Footnote 8]

See also McKnight v. United States, 98 U. S. 179, 98 U. S. 186.

[Footnote 9]

@See also 74 U. S. 154.

[Footnote 10]

Williams v. Neely, 134 F. 1; Conner v. Smith, 88 Ala. 300, 7 So. 150; Stewart v. Simon, 111 Ark.
358, 163 S.W. 1135; Beecher v. Baldwin, 55 Conn. 419, 12 A. 401;Blackshear v. Dekle, 120
Ga. 766, 48 S.E. 311; Aultman & Co. v. Torrey, 55 Minn. 492, 57 N.W. 211; Kaup v.
Schinstock, 88 Neb. 95, 129 N.W. 184; Campbell v. Hughes, 73 Hun. 14, 25 N.Y.S. 1021.

[Footnote 11]

79 U. S. 254; District of Columbia v. Barnes,@ 197 U. S. 146, 197 U. S. 153-154.

[Footnote 12]

Merritt v. United States, 267 U. S. 338, 267 U. S. 341.

[Footnote 13]
United States v. Behan, 110 U. S. 338, 110 U. S. 347.

PERKINS VS DIZON

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. 46631 November 16, 1939

IDONAH SLADE PERKINS, petitioner,


vs.
ARSENIO P. DIZON, Judge of First Instance of Manila, EUGENE ARTHUR PERKINS, and
BENGUET CONSOLIDATED MINING COMPANY, respondents.

Alva J. Hill for petitioner.


Ross, Lawrence, Selph & Carrascoso for respondent Judge and Benguet Consolidated Mining
Company.
DeWitt, Perkins & Ponce Enrile for respondent Perkins.

MORAN, J.:

On July 6, 1938, respondent, Eugene Arthur Perkins, instituted an action in the Court of
First Instance of Manila against the Benguet Consolidated Mining Company for dividends
amounting to P71,379.90 on 52,874 shares of stock registered in his name, payment of which
was being withheld by the company; and, for the recognition of his right to the control and
disposal of said shares, to the exclusion of all others. To the complaint, the company filed its
answer alleging, by way of defense, that the withholding of such dividends and the non-
recognition of plaintiff's right to the disposal and control of the shares were due to certain
demands made with respect to said shares by the petitioner herein, Idonah Slade Perkins, and
by one George H. Engelhard. The answer prays that the adverse claimants be made parties to
the action and served with notice thereof by publication, and that thereafter all such parties be
required to interplead and settle the rights among themselves. On September 5, 1938, the trial
court ordered respondent Eugene Arthur Perkins to include in his complaint as parties
defendant petitioner, Idonah Slade Perkins, and George H. Engelhard. The complaint was
accordingly amended and in addition to the relief prayed for in the original complaint,
respondent Perkins prayed that petitioner Idonah Slade Perkins and George Engelhard be
adjudged without interest in the shares of stock in question and excluded from any claim they
assert thereon. Thereafter, summons by publication were served upon the non-resident
defendants, Idonah Slade Perkins and George H. Engelhard, pursuant to the order of the trial
court. On December 9, 1938, Engelhard filed his answer to the amended complaint, and on
December 10, 1938, petitioner Idonah Slade Perkins, through counsel, filed her pleading
entitled "objection to venue, motion to quash, and demurrer to jurisdiction" wherein she
challenged the jurisdiction of the lower court over her person. Petitioner's objection, motion and
demurrer having been overruled as well as her motion for reconsideration of the order of denial,
she now brought the present petition for certiorari, praying that the summons by publication
issued against her be declared null and void, and that, with respect to her, respondent Judge be
permanently prohibited from taking any action on the case.

The controlling issue here involved is whether or not the Court of First Instance of Manila
has acquired jurisdiction over the person of the present petitioner as a non-resident defendant,
or, notwithstanding the want of such jurisdiction, whether or not said court may validly try the
case. The parties have filed lengthy memorandums relying on numerous authorities, but the
principles governing the question are well settled in this jurisdiction.

Section 398 of our Code of Civil Procedure provides that when a non-resident defendant
is sued in the Philippine courts and it appears, by the complaint or by affidavits, that the action
relates to real or personal property within the Philippines in which said defendant has or claims
a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in
part, in excluding such person from any interest therein, service of summons maybe made by
publication.

We have fully explained the meaning of this provision in El Banco Español Filipino vs.
Palanca, 37 Phil., 921, wherein we laid down the following rules:

(1) In order that the court may validly try a case, it must have jurisdiction over the
subject-matter and over the persons of the parties. Jurisdiction over the subject-matter is
acquired by concession of the sovereign authority which organizes a court and
determines the nature and extent of its powers in general and thus fixes its jurisdiction
with reference to actions which it may entertain and the relief it may grant. Jurisdiction
over the persons of the parties is acquired by their voluntary appearance in court and
their submission to its authority, or by the coercive power of legal process exerted over
their persons.

(2) When the defendant is a non-resident and refuses to appear voluntary, the court
cannot acquire jurisdiction over his person even if the summons be served by
publication, for he is beyond the reach of judicial process. No tribunal established by one
State can extend its process beyond its territory so as to subject to its decisions either
persons or property located in another State. "There are many expressions in the
American reports from which it might be inferred that the court acquires personal
jurisdiction over the person of the defendant by publication and notice; but such is not
the case. In truth, the proposition that jurisdiction over the person of a non-resident
cannot be acquired by publication and notice was never clearly understood even in the
American courts until after the decision had been rendered by the Supreme Court of the
United States in the leading case of Pennoyer v. Neff (95 U.S., 714; 24 Law. ed., 565).
In the light of that decisions which have subsequently been rendered in that and other
courts, the proposition that jurisdiction over the person cannot be thus acquired by
publication and notice is no longer open to question; and it is now fully established that a
personal judgment upon constructive or substituted service against a non-resident who
does not appear is wholly invalid. This doctrine applies to all kinds of constructive or
substituted process, including service by publication and personal service outside of the
jurisdiction in which the judgment is rendered; and the only exception seems to be found
in the case where the non-resident defendant has expressly or impliedly consented to
the mode of service. (Note to Raher vs. Raher, 35 L. R. A. [N. S.], 292; see also L.R.A.
585; 35 L.R.A. [N.S.], 312.)

(3) The general rule, therefore, is that a suit against a non-resident cannot be
entertained by a Philippine court. Where, however, the action is in rem or quasi in rem in
connection with property located in the Philippines, the court acquires jurisdiction over
the res, and its jurisdiction over the person of the non-resident is non-essential. In order
that the court may exercise power over the res, it is not necessary that the court should
take actual custody of the property, potential custody thereof being sufficient. There is
potential custody when, from the nature of the action brought, the power of the court
over the property is impliedly recognized by law. "An illustration of what we term
potential jurisdiction over the res, is found in the proceeding to register the title of land
under our system for the registration of land. Here the court, without taking actual
physical control over the property , assumes, at the instance of some person claiming to
be owner, to exercise a jurisdiction in rem over the property and to adjudicate the title in
favor of the petitioner against all the world."

(4) As before stated, in an action in rem or quasi in rem against a non-resident


defendant, jurisdiction over his person is non-essential, and if the law requires in such
case that the summons upon the defendant be served by publication, it is merely to
satisfy the constitutional requirement of due process. If any be said, in this connection,
that "may reported cases can be cited in which it is assumed that the question of the
sufficiency of publication or notice in the case of this kind is a question affecting the
jurisdiction of the court, and the court is sometimes said to acquire jurisdiction by virtue
of the publication. This phraseology was undoubtedly originally adopted by the court
because of the analogy between service by publication and personal service of process
upon the defendant; and, as has already been suggested, prior to the decision
of Pennoyer v. Neff (supra), the difference between the legal effects of the two forms of
service was obscure. It is accordingly not surprising that the modes of expression which
had already been moulded into legal tradition before that case was decided have been
brought down to the present day. But it is clear that the legal principle here involved is
not affected by the peculiar languages in which the courts have expounded their
ideas."lawphi1.net

The reason for the rule that Philippine courts cannot acquire jurisdiction over the person
of a non-resident, as laid down by the Supreme Court of the United States in Pennoyer v. Neff,
supra, may be found in a recognized principle of public law to the effect that "no State can
exercise direct jurisdiction and authority over persons or property without its territory. Story,
Confl. L., ch. 2; Wheat, Int. L., pt. 2, ch. 2. The several States are of equal dignity and authority,
and the independence of one implies the exclusion of power from all others. And so it is laid
down by jurists, as an elementary principle, that the laws of one State have no operation outside
of its territory, except so far as is allowed by comity; and that no tribunal established by it can
extend its process beyond that territory so as to subject either persons or property to its
decisions. "Any exertion of authority of this sort beyond this limit," says Story, "is a mere nullity,
and incapable of binding such persons or property in any other tribunals." Story, Confl. L., sec.
539." (Pennoyer v. Neff, 95 U.S., 714; 24 Law. ed., 565, 568-569.).

When, however, the action relates to property located in the Philippines, the Philippine
courts may validly try the case, upon the principle that a "State, through its tribunals, may
subject property situated within its limits owned by non-residents to the payment of the demand
of its own citizens against them; and the exercise of this jurisdiction in no respect infringes upon
the sovereignty of the State where the owners are domiciled. Every State owes protection to its
citizens; and, when non-residents deal with them, it is a legitimate and just exercise of authority
to hold and appropriate any property owned by such non-residents to satisfy the claims of its
citizens. It is in virtue of the State's jurisdiction over the property of the non-resident situated
within its limits that its tribunals can inquire into the non-resident's obligations to its own citizens,
and the inquiry can then be carried only to the extent necessary to control the disposition of the
property. If the non-resident has no property in the State, there is nothing upon which the
tribunals can adjudicate." (Pennoyer v. Neff, supra.)

In the instant case, there can be no question that the action brought by Eugene Arthur
Perkins in his amended complaint against the petitioner, Idonah Slade Perkins, seeks to
exclude her from any interest in a property located in the Philippines. That property consists in
certain shares of stocks of the Benguet Consolidated Mining Company, a sociedad anonima,
organized in the Philippines under the provisions of the Spanish Code of Commerce, with its
principal office in the City of Manila and which conducts its mining activities therein. The situs of
the shares is in the jurisdiction where the corporation is created, whether the certificated
evidencing the ownership of those shares are within or without that jurisdiction. (Fletcher
Cyclopedia Corporations, Permanent ed. Vol. 11, p. 95). Under these circumstances, we hold
that the action thus brought is quasi in rem, for while the judgement that may be rendered
therein is not strictly a judgment in rem, "it fixes and settles the title to the property in
controversy and to that extent partakes of the nature of the judgment in rem." (50 C.J., p 503).
As held by the Supreme Court of the United States in Pennoyer v. Neff (supra);

It is true that, in a strict sense, a proceeding in rem is one taken directly against
property, and has for its object the disposition of the property, without reference to the
title of individual claimants; but , in a large and more general sense, the terms are
applied to actions between parties, where the direct object is to reach and dispose of
property owned by them, or of some interest therein.

The action being in quasi in rem, The Court of First Instance of Manila has jurisdiction
over the person of the non-resident. In order to satisfy the constitutional requirement of due
process, summons has been served upon her by publication. There is no question as to the
adequacy of publication made nor as to the mailing of the order of publication to the petitioner's
last known place of residence in the United States. But, of course, the action being quasi in
rem and notice having be made by publication, the relief that may be granted by the Philippine
court must be confined to the res, it having no jurisdiction to render a personal judgment against
the non-resident. In the amended complaint filed by Eugene Arthur Perkins, no money judgment
or other relief in personam is prayed for against the petitioner. The only relief sought therein is
that she be declared to be without any interest in the shares in controversy and that she be
excluded from any claim thereto.

Petitioner contends that the proceeding instituted against her is one of interpleading and
is therefore an action in personam. Section 120 of our Code of Civil Procedure provides that
whenever conflicting claims are or may be made upon a person for or relating to personal
property, or the performance of an obligation or any portion thereof, so that he may be made
subject to several actions by different persons, such person may bring an action against the
conflicting claimants, disclaiming personal interest in the controversy, and the court may order
them to interplead with one another and litigate their several claims among themselves, there
upon proceed to determine their several claims. Here, The Benguet Consolidated Mining
Company, in its answer to the complaint filed by Eugene Arthur Perkins, averred that in
connection with the shares of stock in question, conflicting claims were being made upon it by
said plaintiff, Eugene Arthur Perkins, his wife Idonah Slade Perkins, and one named George H.
Engelhard, and prayed that these last two be made parties to the action and served with
summons by publication, so that the three claimants may litigate their conflicting claims and
settle their rights among themselves. The court has not issued an order compelling the
conflicting claimants to interplead with one another and litigate their several claims among
themselves, but instead ordered the plaintiff to amend his complaint including the other two
claimants as parties defendant. The plaintiff did so, praying that the new defendants thus joined
be excluded fro any interest in the shares in question, and it is upon this amended complaint
that the court ordered the service of the summons by publication. It is therefore, clear that the
publication of the summons was ordered not in virtue of an interpleading, but upon the filing of
the amended complaint wherein an action quasi in rem is alleged.

Had not the complaint been amended, including the herein petitioner as an additional
defendant, and had the court, upon the filing of the answer of the Benguet Consolidated Mining
Company, issued an order under section 120 of the Code of Civil Procedure, calling the
conflicting claimants into court and compelling them to interplead with one another, such order
could not perhaps have validly been served by publication or otherwise, upon the non-resident
Idonah Slade Perkins, for then the proceeding would be purely one of interpleading. Such
proceeding is a personal action, for it merely seeks to call conflicting claimants into court so that
they may interplead and litigate their several claims among themselves, and no specific relief is
prayed for against them, as the interpleader have appeared in court, one of them pleads
ownership of the personal property located in the Philippines and seeks to exclude a non-
resident claimant from any interest therein, is a question which we do not decide not. Suffice it
to say that here the service of the summons by publication was ordered by the lower court by
virtue of an action quasi in rem against the non-resident defendant.

Respondents contend that, as the petitioner in the lower court has pleaded over the
subject-matter, she has submitted herself to its jurisdiction. We have noticed, however, that
these pleas have been made not as independent grounds for relief, but merely as additional
arguments in support of her contention that the lower court had no jurisdiction over the person.
In other words, she claimed that the lower court had no jurisdiction over her person not only
because she is a non-resident, but also because the court had no jurisdiction over the subject-
matter of the action and that the issues therein involved have already been decided by the New
York court and are being relitigated in the California court. Although this argument is obviously
erroneous, as neither jurisdiction over the subject-matter nor res adjudicata nor lis pendens has
anything to do with the question of jurisdiction over her person, we believe and so hold that the
petitioner has not, by such erroneous argument, submitted herself to the jurisdiction of the court.
Voluntary appearance cannot be implied from either a mistaken or superflous reasoning but
from the nature of the relief prayed for.

For all the foregoing, petition is hereby denied, with costs against petitioner.

Avanceña, C.J., Villa-Real, Imperial, Diaz and Concepcion, JJ., concur.

Part One – Nature and Function of Private International Law


I. Concept of Private International Law
II. Historical Perspective
III. Survey of General Theories and Modern Developments
IV. Sources of Private International Law
Part Two – Nature of Conflict Rules and Methods of Private International Law
I. Nature of Rules
II. Jurisdiction and Choice of Law
III. Characterization
IV. Preliminary Question
V. Renvoi

AZNAR VS 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 HUNDRED PESOS (P3,600.00),
Philippine Currency the same to be deposited in trust for the said Maria Helen
Christensen with the Davao Branch of the Philippine National Bank, and paid to her at
the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the
principal thereof as well as any interest which may have accrued thereon, is exhausted..

xxx xxx xxx

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

It is in accordance with the above-quoted provisions that the executor in his final account and
project of partition ratified the payment of only P3,600 to Helen Christensen Garcia and
proposed that the residue of the estate be transferred to his daughter, Maria Lucy Christensen.

Opposition to the approval of the project of partition was filed by Helen Christensen Garcia,
insofar as it deprives her (Helen) of her legitime as an acknowledged natural child, she having
been declared by Us in G.R. Nos. L-11483-84 an acknowledged natural child of the deceased
Edward E. Christensen. The legal grounds of opposition are (a) that the distribution should be
governed by the laws of the Philippines, and (b) that said order of distribution is contrary thereto
insofar as it denies to Helen Christensen, one of two acknowledged natural children, one-half of
the estate in full ownership. In amplification of the above grounds it was alleged that the law that
should govern the estate of the deceased Christensen should not be the internal law of
California alone, but the entire law thereof because several foreign elements are involved, that
the forum is the Philippines and even if the case were decided in California, Section 946 of the
California Civil Code, which requires that the domicile of the decedent should apply, should be
applicable. It was also alleged that Maria Helen Christensen having been declared an
acknowledged natural child of the decedent, she is deemed for all purposes legitimate from the
time of her birth.

The court below ruled that as Edward E. Christensen was a citizen of the United States and of
the State of California at the time of his death, the successional rights and intrinsic validity of the
provisions in his will are to be governed by the law of California, in accordance with which a
testator has the right to dispose of his property in the way he desires, because the right of
absolute dominion over his property is sacred and inviolable (In re McDaniel's Estate, 77 Cal.
Appl. 2d 877, 176 P. 2d 952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179,
Record on Appeal). Oppositor Maria Helen Christensen, through counsel, filed various motions
for reconsideration, but these were denied. Hence, this appeal.

The most important assignments of error are as follows:


I

THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE


SUPREME COURT THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF EDWARD
E. CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE IN
THE INHERITANCE.

II

THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE


THE EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES CALLING
FOR THE APPLICATION OF INTERNAL LAW.

III

THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL


LAW, PARTICULARLY UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE
TESTAMENTARY DISPOSITION OF THE DISTRIBUTION OF THE ESTATE OF THE
DECEASED EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE
PHILIPPINES.

IV

THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF


DISTRIBUTION SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE PHILIPPINE
LAWS.

THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS
HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN
FULL OWNERSHIP.

There is no question that Edward E. Christensen was a citizen of the United States and of the
State of California at the time of his death. But there is also no question that at the time of his
death he was domiciled in the Philippines, as witness the following facts admitted by the
executor himself in appellee's brief:

In the proceedings for admission of the will to probate, the facts of record show that the
deceased Edward E. Christensen was born on November 29, 1875 in New York City,
N.Y., U.S.A.; his first arrival in the Philippines, as an appointed school teacher, was on
July 1, 1901, on board the U.S. Army Transport "Sheridan" with Port of Embarkation as
the City of San Francisco, in the State of California, U.S.A. He stayed in the Philippines
until 1904.

In December, 1904, Mr. Christensen returned to the United States and stayed there for
the following nine years until 1913, during which time he resided in, and was teaching
school in Sacramento, California.
Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in
1928, he again departed the Philippines for the United States and came back here the
following year, 1929. Some nine years later, in 1938, he again returned to his own
country, and came back to the Philippines the following year, 1939.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be
admitted and approved by this Honorable Court, without prejudice to the parties
adducing other evidence to prove their case not covered by this stipulation of
facts. 1äwphï1.ñët

Being an American citizen, Mr. Christensen was interned by the Japanese Military
Forces in the Philippines during World War II. Upon liberation, in April 1945, he left for
the United States but returned to the Philippines in December, 1945. Appellees
Collective Exhibits "6", CFI Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CC-
Daney"; Exhs. "MM", "MM-l", "MM-2-Daney" and p. 473, t.s.n., July 21, 1953.)

In April, 1951, Edward E. Christensen returned once more to California shortly after the
making of his last will and testament (now in question herein) which he executed at his
lawyers' offices in Manila on March 5, 1951. He died at the St. Luke's Hospital in the City
of Manila on April 30, 1953. (pp. 2-3)

In arriving at the conclusion that the domicile of the deceased is the Philippines, we are
persuaded by the fact that he was born in New York, migrated to California and resided there for
nine years, and since he came to the Philippines in 1913 he returned to California very rarely
and only for short visits (perhaps to relatives), and considering that he appears never to have
owned or acquired a home or properties in that state, which would indicate that he would
ultimately abandon the Philippines and make home in the State of California.

Sec. 16. Residence is a term used with many shades of meaning from mere temporary
presence to the most permanent abode. Generally, however, it is used to denote
something more than mere physical presence. (Goodrich on Conflict of Laws, p. 29)

As to his citizenship, however, We find that the citizenship that he acquired in California when
he resided in Sacramento, California from 1904 to 1913, was never lost by his stay in the
Philippines, for the latter was a territory of the United States (not a state) until 1946 and the
deceased appears to have considered himself as a citizen of California by the fact that when he
executed his will in 1951 he declared that he was a citizen of that State; so that he appears
never to have intended to abandon his California citizenship by acquiring another. This
conclusion is in accordance with the following principle expounded by Goodrich in his Conflict of
Laws.

The terms "'residence" and "domicile" might well be taken to mean the same thing, a
place of permanent abode. But domicile, as has been shown, has acquired a technical
meaning. Thus one may be domiciled in a place where he has never been. And he may
reside in a place where he has no domicile. The man with two homes, between which he
divides his time, certainly resides in each one, while living in it. But if he went on
business which would require his presence for several weeks or months, he might
properly be said to have sufficient connection with the place to be called a resident. It is
clear, however, that, if he treated his settlement as continuing only for the particular
business in hand, not giving up his former "home," he could not be a domiciled New
Yorker. Acquisition of a domicile of choice requires the exercise of intention as well as
physical presence. "Residence simply requires bodily presence of an inhabitant in a
given place, while domicile requires bodily presence in that place and also an intention
to make it one's domicile." Residence, however, is a term used with many shades of
meaning, from the merest temporary presence to the most permanent abode, and it is
not safe to insist that any one use et the only proper one. (Goodrich, p. 29)

The law that governs the validity of his testamentary dispositions is defined in Article 16 of the
Civil Code of the Philippines, which is as follows:

ART. 16. Real property as well as personal property is subject to the law of the country
where it is situated.

However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country where said property may be found.

The application of this article in the case at bar requires the determination of the meaning of the
term "national law" is used therein.

There is no single American law governing the validity of testamentary provisions in the United
States, each state of the Union having its own private law applicable to its citizens only and in
force only within the state. The "national law" indicated in Article 16 of the Civil Code above
quoted can not, therefore, possibly mean or apply to any general American law. So it can refer
to no other than the private law of the State of California.

The next question is: What is the law in California governing the disposition of personal
property? The decision of the court below, sustains the contention of the executor-appellee that
under the California Probate Code, a testator may dispose of his property by will in the form and
manner he desires, citing the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952.
But appellant invokes the provisions of Article 946 of the Civil Code of California, which is as
follows:

If there is no law to the contrary, in the place where personal property is situated, it is
deemed to follow the person of its owner, and is governed by the law of his domicile.

The existence of this provision is alleged in appellant's opposition and is not denied. We have
checked it in the California Civil Code and it is there. Appellee, on the other hand, relies on the
case cited in the decision and testified to by a witness. (Only the case of Kaufman is correctly
cited.) It is argued on executor's behalf that as the deceased Christensen was a citizen of the
State of California, the internal law thereof, which is that given in the abovecited case, should
govern the determination of the validity of the testamentary provisions of Christensen's will, such
law being in force in the State of California of which Christensen was a citizen. Appellant, on the
other hand, insists that Article 946 should be applicable, and in accordance therewith and
following the doctrine of therenvoi, the question of the validity of the testamentary provision in
question should be referred back to the law of the decedent's domicile, which is the Philippines.

The theory of doctrine of renvoi has been defined by various authors, thus:
The problem has been stated in this way: "When the Conflict of Laws rule of the forum
refers a jural matter to a foreign law for decision, is the reference to the purely internal
rules of law of the foreign system; i.e., to the totality of the foreign law minus its Conflict
of Laws rules?"

On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi,
that is, applied the Conflict of Laws rule of Illinois which referred the matter back to
Michigan law. But once having determined the the Conflict of Laws principle is the rule
looked to, it is difficult to see why the reference back should not have been to Michigan
Conflict of Laws. This would have resulted in the "endless chain of references" which
has so often been criticized be legal writers. The opponents of the renvoi would have
looked merely to the internal law of Illinois, thus rejecting the renvoi or the reference
back. Yet there seems no compelling logical reason why the original reference should be
the internal law rather than to the Conflict of Laws rule. It is true that such a solution
avoids going on a merry-go-round, but those who have accepted the renvoi theory avoid
this inextricabilis circulas by getting off at the second reference and at that point applying
internal law. Perhaps the opponents of the renvoi are a bit more consistent for they look
always to internal law as the rule of reference.

Strangely enough, both the advocates for and the objectors to the renvoi plead that
greater uniformity will result from adoption of their respective views. And still more
strange is the fact that the only way to achieve uniformity in this choice-of-law problem is
if in the dispute the two states whose laws form the legal basis of the litigation disagree
as to whether the renvoi should be accepted. If both reject, or both accept the doctrine,
the result of the litigation will vary with the choice of the forum. In the case stated above,
had the Michigan court rejected the renvoi, judgment would have been against the
woman; if the suit had been brought in the Illinois courts, and they too rejected
the renvoi, judgment would be for the woman. The same result would happen, though
the courts would switch with respect to which would hold liability, if both courts accepted
the renvoi.

The Restatement accepts the renvoi theory in two instances: where the title to land is in
question, and where the validity of a decree of divorce is challenged. In these cases the
Conflict of Laws rule of the situs of the land, or the domicile of the parties in the divorce
case, is applied by the forum, but any further reference goes only to the internal law.
Thus, a person's title to land, recognized by the situs, will be recognized by every court;
and every divorce, valid by the domicile of the parties, will be valid everywhere.
(Goodrich, Conflict of Laws, Sec. 7, pp. 13-14.)

X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable


property in Massachusetts, England, and France. The question arises as to how this
property is to be distributed among X's next of kin.

Assume (1) that this question arises in a Massachusetts court. There the rule of the
conflict of laws as to intestate succession to movables calls for an application of the law
of the deceased's last domicile. Since by hypothesis X's last domicile was France, the
natural thing for the Massachusetts court to do would be to turn to French statute of
distributions, or whatever corresponds thereto in French law, and decree a distribution
accordingly. An examination of French law, however, would show that if a French court
were called upon to determine how this property should be distributed, it would refer the
distribution to the national law of the deceased, thus applying the Massachusetts statute
of distributions. So on the surface of things the Massachusetts court has open to it
alternative course of action: (a) either to apply the French law is to intestate succession,
or (b) to resolve itself into a French court and apply the Massachusetts statute of
distributions, on the assumption that this is what a French court would do. If it accepts
the so-called renvoidoctrine, it will follow the latter course, thus applying its own law.

This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of
the forum refers to a foreign law, the conflict-of-laws rule of which, in turn, refers the
matter back again to the law of the forum. This is renvoi in the narrower sense. The
German term for this judicial process is 'Ruckverweisung.'" (Harvard Law Review, Vol.
31, pp. 523-571.)

After a decision has been arrived at that a foreign law is to be resorted to as governing a
particular case, the further question may arise: Are the rules as to the conflict of laws
contained in such foreign law also to be resorted to? This is a question which, while it
has been considered by the courts in but a few instances, has been the subject of
frequent discussion by textwriters and essayists; and the doctrine involved has been
descriptively designated by them as the "Renvoyer" to send back, or the
"Ruchversweisung", or the "Weiterverweisung", since an affirmative answer to the
question postulated and the operation of the adoption of the foreign law in toto would in
many cases result in returning the main controversy to be decided according to the law
of the forum. ... (16 C.J.S. 872.)

Another theory, known as the "doctrine of renvoi", has been advanced. The theory of the
doctrine of renvoiis that the court of the forum, in determining the question before it,
must take into account the whole law of the other jurisdiction, but also its rules as to
conflict of laws, and then apply the law to the actual question which the rules of the other
jurisdiction prescribe. This may be the law of the forum. The doctrine of therenvoi has
generally been repudiated by the American authorities. (2 Am. Jur. 296)

The scope of the theory of renvoi has also been defined and the reasons for its application in a
country explained by Prof. Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918,
pp. 529-531. The pertinent parts of the article are quoted herein below:

The recognition of the renvoi theory implies that the rules of the conflict of laws are to be
understood as incorporating not only the ordinary or internal law of the foreign state or
country, but its rules of the conflict of laws as well. According to this theory 'the law of a
country' means the whole of its law.

xxx xxx xxx

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

(1) Every court shall observe the law of its country as regards the application of foreign
laws.

(2) Provided that no express provision to the contrary exists, the court shall respect:
(a) The provisions of a foreign law which disclaims the right to bind its nationals
abroad as regards their personal statute, and desires that said personal statute
shall be determined by the law of the domicile, or even by the law of the place
where the act in question occurred.

(b) The decision of two or more foreign systems of law, provided it be certain that
one of them is necessarily competent, which agree in attributing the
determination of a question to the same system of law.

xxx xxx xxx

If, for example, the English law directs its judge to distribute the personal estate of an
Englishman who has died domiciled in Belgium in accordance with the law of his
domicile, he must first inquire whether the law of Belgium would distribute personal
property upon death in accordance with the law of domicile, and if he finds that the
Belgian law would make the distribution in accordance with the law of nationality — that
is the English law — he must accept this reference back to his own law.

We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule
applied in In re Kaufman, Supra, its internal law. If the law on succession and the conflict of laws
rules of California are to be enforced jointly, each in its own intended and appropriate sphere,
the principle cited In re Kaufman should apply to citizens living in the State, but Article 946
should apply to such of its citizens as are not domiciled in California but in other jurisdictions.
The rule laid down of resorting to the law of the domicile in the determination of matters with
foreign element involved is in accord with the general principle of American law that the
domiciliary law should govern in most matters or rights which follow the person of the owner.

When a man dies leaving personal property in one or more states, and leaves a will
directing the manner of distribution of the property, the law of the state where he was
domiciled at the time of his death will be looked to in deciding legal questions about the
will, almost as completely as the law of situs is consulted in questions about the devise
of land. It is logical that, since the domiciliary rules control devolution of the personal
estate in case of intestate succession, the same rules should determine the validity of an
attempted testamentary dispostion of the property. Here, also, it is not that the
domiciliary has effect beyond the borders of the domiciliary state. The rules of the
domicile are recognized as controlling by the Conflict of Laws rules at the situs property,
and the reason for the recognition as in the case of intestate succession, is the general
convenience of the doctrine. The New York court has said on the point: 'The general
principle that a dispostiton of a personal property, valid at the domicile of the owner, is
valid anywhere, is one of the universal application. It had its origin in that international
comity which was one of the first fruits of civilization, and it this age, when business
intercourse and the process of accumulating property take but little notice of boundary
lines, the practical wisdom and justice of the rule is more apparent than ever. (Goodrich,
Conflict of Laws, Sec. 164, pp. 442-443.)

Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as
the national law is the internal law of California. But as above explained the laws of California
have prescribed two sets of laws for its citizens, one for residents therein and another for those
domiciled in other jurisdictions. Reason demands that We should enforce the California internal
law prescribed for its citizens residing therein, and enforce the conflict of laws rules for the
citizens domiciled abroad. If we must enforce the law of California as in comity we are bound to
go, as so declared in Article 16 of our Civil Code, then we must enforce the law of California in
accordance with the express mandate thereof and as above explained, i.e., apply the internal
law for residents therein, and its conflict-of-laws rule for those domiciled abroad.

It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place
where the property is situated" in Sec. 946 of the California Civil Code refers to Article 16 of the
Civil Code of the Philippines and that the law to the contrary in the Philippines is the provision in
said Article 16 that the national law of the deceased should govern. This contention can not be
sustained. As explained in the various authorities cited above the national law mentioned in
Article 16 of our Civil Code is the law on conflict of laws in the California Civil Code, i.e., Article
946, which authorizes the reference or return of the question to the law of the testator's
domicile. The conflict of laws rule in California, Article 946, Civil Code, precisely refers back the
case, when a decedent is not domiciled in California, to the law of his domicile, the Philippines
in the case at bar. The court of the domicile can not and should not refer the case back to
California; such action would leave the issue incapable of determination because the case will
then be like a football, tossed back and forth between the two states, between the country of
which the decedent was a citizen and the country of his domicile. The Philippine court must
apply its own law as directed in the conflict of laws rule of the state of the decedent, if the
question has to be decided, especially as the application of the internal law of California
provides no legitime for children while the Philippine law, Arts. 887(4) and 894, Civil Code of the
Philippines, makes natural children legally acknowledged forced heirs of the parent recognizing
them.

The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105;
Miciano vs. Brimo, 50 Phil. 867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs
vs. Government, 59 Phil. 293.) cited by appellees to support the decision can not possibly apply
in the case at bar, for two important reasons, i.e., the subject in each case does not appear to
be a citizen of a state in the United States but with domicile in the Philippines, and it does not
appear in each case that there exists in the state of which the subject is a citizen, a law similar
to or identical with Art. 946 of the California Civil Code.

We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the
Philippines, the validity of the provisions of his will depriving his acknowledged natural child, the
appellant, should be governed by the Philippine Law, the domicile, pursuant to Art. 946 of the
Civil Code of California, not by the internal law of California..

WHEREFORE, the decision appealed from is hereby reversed and the case returned to the
lower court with instructions that the partition be made as the Philippine law on succession
provides. Judgment reversed, with costs against appellees.

Padilla, Bautista Angelo, Concepcion, Reyes, Barrera, Paredes, Dizon, Regala and Makalintal,
JJ., concur.
Bengzon, C.J., took no part.

BELLIS VS 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.1äwphï1.ñët

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.1äwphï1.ñët

Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A.
His will was admitted to probate in the Court of First Instance of Manila on September 15, 1958.

The People's Bank and Trust Company, as executor of the will, paid all the bequests therein
including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the
three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis,
various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total
of P120,000.00, which it released from time to time according as the lower court approved and
allowed the various motions or petitions filed by the latter three requesting partial advances on
account of their respective legacies.

On January 8, 1964, preparatory to closing its administration, the executor submitted and filed
its "Executor's Final Account, Report of Administration and Project of Partition" wherein it
reported, inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of
shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina
Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In
the project of partition, the executor — pursuant to the "Twelfth" clause of the testator's Last Will
and Testament — divided the residuary estate into seven equal portions for the benefit of the
testator's seven legitimate children by his first and second marriages.

On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective
oppositions to the project of partition on the ground that they were deprived of their legitimes as
illegitimate children and, therefore, compulsory heirs of the deceased.

Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is
evidenced by the registry receipt submitted on April 27, 1964 by the executor. 1

After the parties filed their respective memoranda and other pertinent pleadings, the lower court,
on April 30, 1964, issued an order overruling the oppositions and approving the executor's final
account, report and administration and project of partition. Relying upon Art. 16 of the Civil
Code, it applied the national law of the decedent, which in this case is Texas law, which did not
provide for legitimes.

Their respective motions for reconsideration having been denied by the lower court on June 11,
1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply —
Texas law or Philippine law.

In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi,
applied by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine
is usually pertinent where the decedent is a national of one country, and a domicile of another.
In the present case, it is not disputed that the decedent was both a national of Texas and a
domicile thereof at the time of his death. 2 So that even assuming Texas has a conflict of law rule
providing that the domiciliary system (law of the domicile) should govern, the same would not
result in a reference back (renvoi) to Philippine law, but would still refer to Texas law.
Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the
application of the law of the place where the properties are situated, renvoi would arise, since
the properties here involved are found in the Philippines. In the absence, however, of proof as to
the conflict of law rule of Texas, it should not be presumed different from ours. 3Appellants'
position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even
mentioned it in their arguments. Rather, they argue that their case falls under the circumstances
mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code.

Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the
decedent, in intestate or testamentary successions, with regard to four items: (a) the order of
succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions of
the will; and (d) the capacity to succeed. They provide that —
ART. 16. Real property as well as personal property is subject to the law of the country
where it is situated.

However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may he the nature of the property and
regardless of the country wherein said property may be found.

ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.

Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that

Prohibitive laws concerning persons, their acts or property, and those which have for
their object public order, public policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.

prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct.
Precisely, Congressdeleted the phrase, "notwithstanding the provisions of this and the next
preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil
Code, while reproducing without substantial change the second paragraph of Art. 10 of the old
Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph
of Art. 16 a specific provision in itself which must be applied in testate and intestate succession.
As further indication of this legislative intent, Congress added a new provision, under Art. 1039,
which decrees that capacity to succeed is to be governed by the national law of the decedent.

It is therefore evident that whatever public policy or good customs may be involved in our
System of legitimes, Congress has not intended to extend the same to the succession of foreign
nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to
the decedent's national law. Specific provisions must prevail over general ones.

Appellants would also point out that the decedent executed two wills — one to govern his Texas
estate and the other his Philippine estate — arguing from this that he intended Philippine law to
govern his Philippine estate. Assuming that such was the decedent's intention in executing a
separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50
Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed
in accordance with Philippine law and not with his national law, is illegal and void, for his
national law cannot be ignored in regard to those matters that Article 10 — now Article 16 — of
the Civil Code states said national law should govern.

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A.,
and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the
intrinsic validity of the provision of the will and the amount of successional rights are to be
determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of
Amos G. Bellis.

Wherefore, the order of the probate court is hereby affirmed in toto, with costs against
appellants. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ.,
concur.

Footnotes
1
He later filed a motion praying that as a legal heir he be included in this case as one of
the oppositors-appellants; to file or adopt the opposition of his sisters to the project of
partition; to submit his brief after paying his proportionate share in the expenses incurred
in the printing of the record on appeal; or to allow him to adopt the briefs filed by his
sisters — but this Court resolved to deny the motion.
2
San Antonio, Texas was his legal residence.
3
Lim vs. Collector, 36 Phil. 472; In re Testate Estate of Suntay, 95 Phil. 500.

GIBBS VS GOVERNMENT

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-35694 December 23, 1933

ALLISON G. GIBBS, petitioner-appelle,


vs.
THE GOVERNMENT OF THE PHILIPPINE ISLANDS, oppositor-appellant.
THE REGISTER OF DEEDS OF THE CITY OF MANILA, respondent-appellant.

Office of the Solicitor-General Hilado for appellants.


Allison D. Gibbs in his own behalf.

BUTTE, J.:

This is an appeal from a final order of the Court of First Instance of Manila, requiring the register
of deeds of the City of Manila to cancel certificates of title Nos. 20880, 28336 and 28331,
covering lands located in the City of Manila, Philippine Islands, and issue in lieu thereof new
certificates of transfer of title in favor of Allison D. Gibbs without requiring him to present any
document showing that the succession tax due under Article XI of Chapter 40 of the
Administrative Code has been paid.

The said order of the court of March 10, 1931, recites that the parcels of land covered by said
certificates of title formerly belonged to the conjugal partnership of Allison D. Gibbs and Eva
Johnson Gibbs; that the latter died intestate in Palo Alto, California, on November 28, 1929; that
at the time of her death she and her husband were citizens of the State of California and
domiciled therein.

It appears further from said order that Allison D. Gibbs was appointed administrator of the state
of his said deceased wife in case No. 36795 in the same court, entitled "In the Matter of the
Intestate Estate of Eva Johnson Gibbs, Deceased"; that in said intestate proceedings, the said
Allison D. Gibbs, on September 22,1930, filed an ex parte petition in which he alleged "that the
parcels of land hereunder described belong to the conjugal partnership of your petitioner and his
wife, Eva Johnson Gibbs", describing in detail the three facts here involved; and further alleging
that his said wife, a citizen and resident of California, died on November 28,1929; that in
accordance with the law of California, the community property of spouses who are citizens of
California, upon the death of the wife previous to that of the husband, belongs absolutely to the
surviving husband without administration; that the conjugal partnership of Allison D. Gibbs and
Eva Johnson Gibbs, deceased, has no obligations or debts and no one will be prejudiced by
adjucating said parcels of land (and seventeen others not here involved) to be the absolute
property of the said Allison D. Gibbs as sole owner. The court granted said petition and on
September 22, 1930, entered a decree adjucating the said Allison D. Gibbs to be the sole and
absolute owner of said lands, applying section 1401 of the Civil Code of California. Gibbs
presented this decree to the register of deeds of Manila and demanded that the latter issue to
him a "transfer certificate of title".

Section 1547 of Article XI of Chapter 40 of the Administrative Code provides in part that:

Registers of deeds shall not register in the registry of property any document transferring
real property or real rights therein or any chattel mortgage, by way of gifts mortis causa,
legacy or inheritance, unless the payment of the tax fixed in this article and actually due
thereon shall be shown. And they shall immediately notify the Collector of Internal
Revenue or the corresponding provincial treasurer of the non payment of the tax
discovered by them. . . .

Acting upon the authority of said section, the register of deeds of the City of Manila, declined to
accept as binding said decree of court of September 22,1930, and refused to register the
transfer of title of the said conjugal property to Allison D. Gibbs, on the ground that the
corresponding inheritance tax had not been paid. Thereupon, under date of December 26,
1930, Allison D. Gibbs filed in the said court a petition for an order requiring the said register of
deeds "to issue the corresponding titles" to the petitioner without requiring previous payment of
any inheritance tax. After due hearing of the parties, the court reaffirmed said order of
September 22, 1930, and entered the order of March 10, 1931, which is under review on this
appeal.

On January 3, 1933, this court remanded the case to the court of origin for new trial upon
additional evidence in regard to the pertinent law of California in force at the time of the death of
Mrs. Gibbs, also authorizing the introduction of evidence with reference to the dates of the
acquisition of the property involved in this suit and with reference to the California law in force at
the time of such acquisition. The case is now before us with the supplementary evidence.

For the purposes of this case, we shall consider the following facts as established by the
evidence or the admissions of the parties: Allison D. Gibbs has been continuously, since the
year 1902, a citizen of the State of California and domiciled therein; that he and Eva Johnson
Gibbs were married at Columbus, Ohio, in July 1906; that there was no antenuptial marriage
contract between the parties; that during the existence of said marriage the spouses acquired
the following lands, among others, in the Philippine Islands, as conjugal property:lawphil.net

1. A parcel of land in the City of Manila represented by transfer certificate of title No. 20880,
dated March 16, 1920, and registered in the name of "Allison D. Gibbs casado con Eva Johnson
Gibbs".

2. A parcel of land in the City of Manila, represented by transfer certificate of title No. 28336,
dated May 14, 1927, in which it is certified "that spouses Allison D. Gibbs and Eva Johnson
Gibbs are the owners in fee simple" of the land therein described.

3. A parcel of land in the City of Manila, represented by transfer certificate of title No. 28331,
dated April 6, 1927, which it states "that Allison D. Gibbs married to Eva Johnson Gibbs" is the
owner of the land described therein; that said Eva Johnson Gibbs died intestate on November
28, 1929, living surviving her her husband, the appellee, and two sons, Allison J. Gibbs , now
age 25 and Finley J. Gibbs, now aged 22, as her sole heirs of law.

Article XI of Chapter 40 of the Administrative Code entitled "Tax on inheritances, legacies and
other acquisitionsmortis causa" provides in section 1536 that "Every transmission by virtue of
inheritance ... of real property ... shall be subject to the following tax." It results that the question
for determination in this case is as follows: Was Eva Johnson Gibbs at the time of her death the
owner of a descendible interest in the Philippine lands above-mentioned?

The appellee contends that the law of California should determine the nature and extent of the
title, if any, that vested in Eva Johnson Gibbs under the three certificates of title Nos. 20880,
28336 and 28331 above referred to, citing article 9 of the Civil Code. But that, even if the nature
and extent of her title under said certificates be governed by the law of the Philippine Islands,
the laws of California govern the succession to such title, citing the second paragraph of article
10 of the Civil Code.

Article 9 of the Civil Code is as follows:

The laws relating to family rights and duties, or to the status, condition, and legal
capacity of persons, are binding upon Spaniards even though they reside in a foreign
country." It is argued that the conjugal right of the California wife in community real
estate in the Philippine Islands is a personal right and must, therefore, be settled by the
law governing her personal status, that is, the law of California. But our attention has not
been called to any law of California that incapacitates a married woman from acquiring
or holding land in a foreign jurisdiction in accordance with the lex rei sitae. There is not
the slightest doubt that a California married woman can acquire title to land in a common
law jurisdiction like the State of Illinois or the District of Columbia, subject to the
common-law estate by the courtesy which would vest in her husband. Nor is there any
doubt that if a California husband acquired land in such a jurisdiction his wife would be
vested with the common law right of dower, the prerequisite conditions obtaining. Article
9 of the Civil Code treats of purely personal relations and status and capacity for juristic
acts, the rules relating to property, both personal and real, being governed by article 10
of the Civil Code. Furthermore, article 9, by its very terms, is applicable only to
"Spaniards" (now, by construction, to citizens of the Philippine Islands).
The Organic Act of the Philippine Islands (Act of Congress, August 29, 1916, known as
the "Jones Law") as regards the determination of private rights, grants practical
autonomy to the Government of the Philippine Islands. This Government, therefore, may
apply the principles and rules of private international law (conflicts of laws) on the same
footing as an organized territory or state of the United States. We should, therefore,
resort to the law of California, the nationality and domicile of Mrs. Gibbs, to ascertain the
norm which would be applied here as law were there any question as to her status.

But the appellant's chief argument and the sole basis of the lower court's decision rests upon
the second paragraph of article 10 of the Civil Code which is as follows:

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.

In construing the above language we are met at the outset with some difficulty by the
expression "the national law of the person whose succession is in question", by reason of the
rather anomalous political status of the Philippine Islands. (Cf. Manresa, vol. 1, Codigo Civil, pp.
103, 104.) We encountered no difficulty in applying article 10 in the case of a citizen of Turkey.
(Miciano vs. Brimo, 50 Phil., 867.) Having regard to the practical autonomy of the Philippine
Islands, as above stated, we have concluded that if article 10 is applicable and the estate in
question is that of a deceased American citizen, the succession shall be regulated in
accordance with the norms of the State of his domicile in the United States. (Cf. Babcock
Templeton vs. Rider Babcock, 52 Phil., 130, 137; In re Estate of Johnson, 39 Phil., 156, 166.)

The trial court found that under the law of California, upon the death of the wife, the entire
community property without administration belongs to the surviving husband; that he is the
absolute owner of all the community property from the moment of the death of his wife, not by
virtue of succession or by virtue of her death, but by virtue of the fact that when the death of the
wife precedes that of the husband he acquires the community property, not as an heir or as the
beneficiary of his deceased wife, but because she never had more than an inchoate interest or
expentancy which is extinguished upon her death. Quoting the case of Estate of Klumpke (167
Cal., 415, 419), the court said: "The decisions under this section (1401 Civil Code of California)
are uniform to the effect that the husband does not take the community property upon the death
of the wife by succession, but that he holds it all from the moment of her death as though
required by himself. ... It never belonged to the estate of the deceased wife."

The argument of the appellee apparently leads to this dilemma: If he takes nothing by
succession from his deceased wife, how can the second paragraph of article 10 be invoked?
Can the appellee be heard to say that there is a legal succession under the law of the Philippine
Islands and no legal succession under the law of California? It seems clear that the second
paragraph of article 10 applies only when a legal or testamentary succession has taken place in
the Philippines and in accordance with the law of the Philippine Islands; and the foreign law is
consulted only in regard to the order of succession or the extent of the successional rights; in
other words, the second paragraph of article 10 can be invoked only when the deceased was
vested with a descendible interest in property within the jurisdiction of the Philippine Islands.

In the case of Clarke vs. Clarke (178 U. S., 186, 191; 44 Law ed., 1028, 1031), the court said:
It is principle firmly established that to the law of the state in which the land is situated
we must look for the rules which govern its descent, alienation, and transfer, and for the
effect and construction of wills and other conveyances. (United States vs. Crosby, 7
Cranch, 115; 3 L. ed., 287; Clark vs. Graham, 6 Wheat., 577; 5 L. ed., 334; McGoon vs.
Scales, 9 Wall., 23; 19 L. ed., 545; Brine vs. Hartford F. Ins. Co., 96 U. S., 627; 24 L.
ed., 858.)" (See also Estate of Lloyd, 175 Cal., 704, 705.) This fundamental principle is
stated in the first paragraph of article 10 of our Civil Code as follows: "Personal property
is subject to the laws of the nation of the owner thereof; real property to the laws of the
country in which it is situated.

It is stated in 5 Cal. Jur., 478:

In accord with the rule that real property is subject to the lex rei sitae, the respective
rights of husband and wife in such property, in the absence of an antenuptial contract,
are determined by the law of the place where the property is situated, irrespective of the
domicile of the parties or to the place where the marriage was celebrated. (See
also Saul vs. His Creditors, 5 Martin [N. S.], 569; 16 Am. Dec., 212 [La.];
Heidenheimervs. Loring, 26 S. W., 99 [Texas].)

Under this broad principle, the nature and extent of the title which vested in Mrs. Gibbs at the
time of the acquisition of the community lands here in question must be determined in
accordance with the lex rei sitae.

It is admitted that the Philippine lands here in question were acquired as community property of
the conjugal partnership of the appellee and his wife. Under the law of the Philippine Islands,
she was vested of a title equal to that of her husband. Article 1407 of the Civil Code provides:

All the property of the spouses shall be deemed partnership property in the absence of
proof that it belongs exclusively to the husband or to the wife. Article 1395 provides:

"The conjugal partnership shall be governed by the rules of law applicable to the contract of
partnership in all matters in which such rules do not conflict with the express provisions of this
chapter." Article 1414 provides that "the husband may dispose by will of his half only of the
property of the conjugal partnership." Article 1426 provides that upon dissolution of the conjugal
partnership and after inventory and liquidation, "the net remainder of the partnership property
shall be divided share and share alike between the husband and wife, or their respective heirs."
Under the provisions of the Civil Code and the jurisprudence prevailing here, the wife, upon the
acquisition of any conjugal property, becomes immediately vested with an interest and title
therein equal to that of her husband, subject to the power of management and disposition which
the law vests in the husband. Immediately upon her death, if there are no obligations of the
decedent, as is true in the present case, her share in the conjugal property is transmitted to her
heirs by succession. (Articles 657, 659, 661, Civil Code; cf. also Coronel vs. Ona, 33 Phil., 456,
469.)

It results that the wife of the appellee was, by the law of the Philippine Islands, vested of a
descendible interest, equal to that of her husband, in the Philippine lands covered by certificates
of title Nos. 20880, 28336 and 28331, from the date of their acquisition to the date of her death.
That appellee himself believed that his wife was vested of such a title and interest in manifest
from the second of said certificates, No. 28336, dated May 14, 1927, introduced by him in
evidence, in which it is certified that "the spouses Allison D. Gibbs and Eva Johnson Gibbs are
the owners in fee simple of the conjugal lands therein described."

The descendible interest of Eva Johnson Gibbs in the lands aforesaid was transmitted to her
heirs by virtue of inheritance and this transmission plainly falls within the language of section
1536 of Article XI of Chapter 40 of the Administrative Code which levies a tax on inheritances.
(Cf. Re Estate of Majot, 199 N. Y., 29; 92 N. E., 402; 29 L. R. A. [N. S.], 780.) It is unnecessary
in this proceeding to determine the "order of succession" or the "extent of the successional
rights" (article 10, Civil Code, supra) which would be regulated by section 1386 of the Civil Code
of California which was in effect at the time of the death of Mrs. Gibbs.

The record does not show what the proper amount of the inheritance tax in this case would be
nor that the appellee (petitioner below) in any way challenged the power of the Government to
levy an inheritance tax or the validity of the statute under which the register of deeds refused to
issue a certificate of transfer reciting that the appellee is the exclusive owner of the Philippine
lands included in the three certificates of title here involved.

The judgment of the court below of March 10, 1931, is reversed with directions to dismiss the
petition, without special pronouncement as to the costs.

Avanceña, C. J., Malcolm, Villa-Real, Abad Santos, Hull, and Vickers, JJ., concur.
Street, J., dissents.

VI. Application of Foreign Law; Exceptions

QUERUBIN VS QUERUBIN
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-3693 July 29, 1950

MARGARET QUERUBIN, recurrente-apelante,


vs.
SILVESTRE QUERUBIN, recurrido-apelado.

Manuel A. Algiers in representation of appellant and appellant.


Maximino V. Bello in behalf of the defendant and appellee.

PAUL, J.:

Querubin is Caoayan Silvestre, Ilocos Sur, the Filipino parents. In 1926 he left the United States
for the purpose of study, but with the intention of returning later to his native country. He earned
the title of "Master of Arts and Sciences" in the "University of Southern California," institution
located in Los Angeles, California, where the Respondent began to live since 1934.

On October 20, 1943, Silvestre Querubin married the appellant, Margaret Cherubin, in
Albuquerque, New Mexico. As a result of this marriage was born Querubina Querubin, who, at
the time of the hearing of the case in the Court of First Instance of Ilocos Sur, was four years old
little more or less.

The appellant filed in 1948 a divorce against the appeal, based on "mental cruelty." On
February 7, 1948 the divorce was granted to the husband under a counterclaim filed by and
based on the infidelity of his wife. On April 5, 1949, and at the request of the defendant and
contrademandante (acting inthis appeal of habeas corpus), the Los Angeles Superior Court
issued an interlocutory injunction ordering that:

It is THEREFORE ordered, adjudge and decree That the interlocutory Judgement of divorce
hereinbefore Entered on February 27, 1948, in Book 1891, page 319, be and is hereby modified
the Same in the Following particulars in connection with the custody of the minor child of the
parties only:

(1) The care, custody and control of the minor child of the parties, Cherubim Cherubin, is hereby
Award to defendant and cross-complainants;

(2) Child Is Said to Be Maintained in a neutral home, subject to the right of reasonable visitation
on the part of Both parties to this action;

(3) Each party shall "Have the right to take Said Said child away from home But neutral plaintiff
and cross-defendant is restrained from Said Taking child to her place of residence;

(4) Each party is restrained from Molesting The Other, or in ANY WAY interfering with the
Other's right of reasonable visitation of Said child;

(5) Each party is restrained from Removing the child from the State of California Without first
Securing the permission of the court, Said parties restrained from weitere Are Keeping the child
out of the County of Los Angeles for More Than One Day Without Securing the first Consent of
the court.

The defendant came out of San Francisco on November 7, 1949, arriving at Manila on 25
November. In 27 months I get to Caoayan above, Ilocos Sur, where he now lives, taking with
them the girl Querubina, who brought to the Philippines because, as a parent, wanted to prevent
it from reaching her knowledge of the improper conduct of their own mother. The defendant
wanted his daughter to be educated in an environment of high moral character.

At the request of the appellant Margaret, the Superior Court of Los Angeles, California, on
November 30, 1949 amended its order of April 5, 1949, provides as follows:
Under interlocutory decree of March 7, 1949, the child, a girl now 3 1 / 2 years old, WAS
solicitada to deft husband, But the child WAS To Be Kept in a neutral home; Both parties Were
Given reasonable visitation and restrained Were Both Removing the child from out of the
state. Deft has taken the child with him to the Philippine Islands. At time of trial custody WAS
Apparently she denied Was Then pft Because living with Another Man. She is now married to
this man and They Have a well equipped home. Ptf Appears to Be a Devoted mother. She has
one child, the issue of her present marriage, and caring también That Was for a child
abandoned by Certain friends of hers. Regularly ptf's husband is employed and
Permanently. Witnesses Testifier in Behalf of the ptf in reference to her motherly Qualities and
the condition of her home. She visited the child in question sufficiently When the child WAS in
the neutral Brought her home and toys and Other articles.Service of the order to show cause
Was Made on deft's attorneys of record.

The interlocutory decree is modified so as to Provides that custody of the child Shall Be
Awarded to ptf and deft Shall Have the right of reasonable visitation. Deft ptf Shall pay for the
support of the child $ 30 Each month on the 1st day thereof, commencing Jan. 1950.

On the day of the hearing of this cause of habeas corpus Ilocos Sur, the defendant stated that I
never try to change his citizenship when he came to the country had a P2, 000 savings, that
three weeks after his arrival he received offers to teach with P250 monthly salary at the school
established by Dr. Sobrepeña in Villasis, Pangasinan, which has never been deprived of
parental rights by court order, or declared missing in the Philippines, or subject to civil
interdiction. According to the court a quo, the defendant is of irreproachable conduct.

On February 10, 1950 the appellant Margaret Cherubin, through its counsel, filed in the Court of
First Instance of Ilocos Sur an application for habeas corpus claiming custody of his daughter
Querubina, citing as grounds the court's interlocutory decree California he gave her such
care. After the corresponding view, the court a quo, on February 28, 1950 denied the
request. The appellant goes on appeal before this Court.

The appellant maintains that under Article 48 of Rule 39, Exhibit A-1 decree of Court of Los
Angeles, California, must be met in the Philippines. The operative part reads:

The interlocutory decree is modified so as to the custody of Provides that the child Shall Be
Awarded to ptf and deft Shall Have the right to reasonable visitation. Deft ptf Shall pay for the
support of the child $ 30 Each month on the 1st day thereof, commencing Jan. 1950.

An interlocutory decree concerning the custody of a child is not a final decision. By its very
nature is not fixed. Is subject to change as circumstances change. In the first decree gave the
father custody of the child. At the request of the father, was issued on 5 April decree banning
the key mother to the least because I was home again in adulterous relations with another
man. When he was not the defendant in Los Angeles, because they had come to the
Philippines, last amended the order and ordered that custody was entrusted to the appellant,
the appeal by paying her $ 30 a month for the support of the child. The pension is not fixed and
is increased or decreased as needs increase or decrease of the pensioner or as conditions
require that gives economicasdel.

Because the interlocutory decree, Exhibit A-1, is no final decision can not be fulfilled in the
Philippines request. In the U.S. itself can not be required compliance with an interlocutory order
in the court of another state.

The rule of Common Knowledge That is the definitive Judgement of a court of Another State
Between the parties on the Same Same cause of action, on the Merits of the case is
Conclusive, But It Must Be a definitive Judgement on the Merits only. Where the interlocutory
Merely Judgement is, the determination of the question by the court rendered it Which Did not
finally settle and adjudge the rights of the parties. "(National Park Bank vs.. Old Colony Trust
Co., 186 NYS, 717.)

Already Stated As the Minnesota decree, to the Extent That It is Not final and subject to
modification, is Entitled to the protection of the full faith and credit clause of the federal
Constitution and Must Be enforced in this state. If, pero, a part of the Minnesota decree in Not
final, pero is subject to modification by the court Which rendered it, Then Neither the United
States Constitution The Principles of comity rules compels the Courts of this state to enforce
That part of the decree ; for Other Than the court not one original decree Granting the
undertaker to administer relief Could Without Bringing about a Conflict of authority. (Levine vs.
Levine, 187 Pac., 609.)

A Judgement rendered by a Competent court, HAVING jurisdiction in one state, is Conclusive


on the Merits in the Courts of Every Other state, when to made the basis of an action and not
can be reinvestigate the Merits. Our own Supreme Court Holds so. Vs Cook. Thornhill, 13
Tex. 293, 65 Am Dec. 63. But Before Such a Judgement rendered in one state is Entitled To
Acceptance, in the Courts of Another State, as Conclusive on the Merits, It Must Be a Final
Judgement and Not Merely an interlocutory decree. Freeman on Judgement, Section 575,
Baugh vs. Baugh, 4 Bibb (7 Ky.) 556; Brinkley vs. Brinkley, 50 N.Y. 184, 10 Am Rep. 460;
Griggs, vs.Becker, 87 Wis.. 313, 58 N.W. 396. (Walker v.. Garland et al., 235 S.W., 1078.)

In general, a divorce decree entrusting the custody of a child of the marriage to one of the
spouses is respected by the courts of other states "at the time and under the Circumstances of
STI rendition But That Such a decree has no effects in controlling Another state as to facts or
Conditions Arising subsequently to the date of the decree, and the Courts of the state Latter
May, in Proper proceedings, the custody award upon proof of Otherwise Matters Subsequent to
the decree Which justify the change in the Interest of the child . (20 A.L.R., 815.)

In this case, circumstances have changed. Querubina is no longer in Los Angeles but Caoayan,
Ilocos Sur. Under the care of his father. There is an enormous distance from Los Angeles and
present address of the child and the cost of passage to that city would be very high, and it is still
possible that this was the scope of the appellant. There is no evidence that she is able to pay
the travel expenses of the minor and with the submission. She's not a pack of cigarettes that
can be mailed to Los Angeles.

No evidence that the circumstances that arose in November 1949 in Los Angeles, prevailed in
the state so far that was the case in the Court of First Instance of Ilocos Sur. Nor is there
evidence that the applicant has sufficient funds to cover the girl's journey from Caoayan
Querubina, Ilocos Sur, to Los Angeles, California, and to answer for their feeding, care and
education, and common ground that the father, more than anyone, is interested in the care and
education of his daughter, and have savings of more than P2, 000 deposited in a bank, we
believe the court a quo did not err in refusing the application.

The court could not, without sufficient evidence, have no remorse of conscience delivery of the
child to the appellant's counsel: it is their obligation to ensure the safety and welfare of it. It is
not just to solve the preferential right of the father and mother into custody. The vital and
momentous question of the future of the child is greater than every consideration. The State
ensures its citizens. Article 171 of the Civil Code provides that "The courts may deprive parents
of their parental rights, or suspend the exercise of this, if you will treat their children with
excessive harshness or if they give orders, advice or examples corrutores." In court against
Castillo and other (41 Jur Phil., 495), the Court stated that no errors the District Court to appoint
the grandmother as guardian of two children, instead of his mother who was convicted of
adultery.

Article 154 of the Civil Code provides that "The father and mother in his absence, have
legitimate authority over their unemancipated children." However, if it is improper exercise of
this power, the courts, as we have said, may deprive them of it and commend the Citizen of the
child to other institutions, as required by Article 6 of Rule 100, which is reproduction of Article
771 Act No. 190. In the case of Lozano against Martinez and De Vega (36 Jur Phil., 1040), in
which the first, in a habeas corpus, claiming against his wife custody of their child under 10
years, this Court, appeal, stated that the court a quo did not abuse the discretion afforded to it
by Article 771 of the Code of Civil Procedure to deny the request.This interpretation of the article
as a proper exercise of discretion of a court of first instance has been reaffirmed in the case of
Pelayo against Lavin (40 Jur Phil., 529).

In the submission, there is not even claim that the court a quo has abused its discretion. This
Court should not revoke his performance.

At the hearing of the case in the Court of First Instance of Ilocos Sur, the defendant stated that
he had brought his daughter to the Philippines because he wanted to prevent her knowing about
the misconduct and infidelity committed by the mother, preventing the saw live with the man
who had insulted his father. The defendant said he wanted his daughter to be bred in an
environment of high morale, and not indirectly punish the infidelity of the wife. Under the Divorce
Act No. 2710, the guilty spouse is not entitled to custody of minor children. Current legislation,
morality and public order interesesdel advise that the child must be outside the care of a mother
who has violated the oath of fidelity to her husband. We believe that this Court should not
enforce a decree issued by a foreign court, in contravention of our laws and the sound principles
of morality that inform our social fabric of family relationships.

In the case of Gonzales against Augusto Barretto Manuela Gonzales (58 Jur Phil., 72), were
asked by the applicant that the divorce obtained by defendant in Reno, Nevada, on November
28, 1927, be confirmed and ratified by the Court of First Instance of Manila. This court issued a
ruling on the basis of the request.Taking into account Article 9 of the Civil Code which provides
that "The laws concerning the rights and duties of the family or the state, condition and legal
capacity of people, forcing the Spanish (Filipino) even if they reside in a foreign country"
and Article 11 of the code that reads in part qye "... the prohibitive laws concerning persons,
their acts or property, and aimed at the public order and decency, not cease to have effect by
laws or judgments, or by rules or conventions acordades in a foreign country, "the Court, on
appeal, stated," Litigants, by mutual agreement can not compel courts to approve their own
acts, or to enable personal relationships citizens of these islands are affected by decrees of
foreign countries in a way that our Government believes it is contrary to public policy and moral
line, "and reversed the lower court decision.

The judgments of foreign courts can not prop in force in the Philippines they are contrary to the
laws, customs and public order.If such decisions, for the simple theory of reciprocity,
international comity and civility are sufficient basis for our courts to decide on the basis of the
same, then our courts would be in poor position of having to make decisions contrary to our
laws, customs and public order. This is absurd.

In Ingenohl against Olsen & Co. (47 Phil Jur., 199), discussed the alcanse of international
courtesy. Article 311 of the Code of Civil Procedure is now Article 48, Rule 39, was the basis for
action by Ingenohl. Asked in its petition that the Court of First Instance of Manila sentencing
according to the issued by the Supreme Court of Hongkong. After the corresponding view, the
court ruled in favor of the plaintiff with legal interest and costs. On appeal, alleging that the lower
court erred in not finding that the decision and ruling of the Supreme Court of Hongkong is
dictated and recorded as a result of a manifest error of fact and law. The Court stated that "It is
very clear principle that in the absence of a treaty or law, and under the comity and international
law, a conviction by a court of competent jurisdiction of a foreign country in which the parties
haveappeared and argued a case on the merits, will be recognized and enforced in any other
foreign country. " But taking into account Article 311 of the Code of Civil Procedure which
provides that "the sentence may be rejected by evidence of lack of competition, or have been
issued without prior notice to the party, or that there was collusion, fraud or manifest error of law
or fact, "concluded:" Under this Act when a person tries to enforce a foreign decision, the
defendant is entitled to exercise any such defense, and if I ever prove that any of them really
exist, destroy the purposes of sentencing. " Reversed the lower court decision and ruling stated
that "the ruling of the Court of Hong Kong against the defendant, constituted a manifest error of
fact and law, and, accordingly, should not be enforceable in the Philippines .

If the request is granted, the minor would be under his mother cuidadode Feud judicially
declared guilty of marital infidelity, would live together under one roof with the man who
dishonored her mother and offended his father would play and grow with the fruit of
love adultery of his mother would arrive at puberty with the idea that a woman who was
unfaithful to her husband is entitled to custody of his daughter. In such an environment can not
be raised to a girl in a proper way: if you come to know during her teens that her father has
been betrayed by his mother with the man she lives, that she would live under an impression of
moral inferiority of incalculable consequences and therefore would never be happy, and if,
under the influence of his mother, came to believe that infidelity of a wife is just one incident so
fleeting as changing touched, she would go for the road to perdition. And the moral education
that can give her stepfather can hardly be better.

If the request is denied, she would live with his father with the benefit of exclusive paternal care,
not the divided attention of a mother who has to attend to her husband, her two daughters and a
third girl, protected. For the welfare of the minor Querubina, which is what matters most in this
case, the custody of the father should be considered preferred.

In the United States itself, the cardinal point that the courts take into account is not the claim of
the parties or the strength of the interlocutory decree, but child welfare.

A consideration of all the facts and Circumstances That leads to the conclusion not does comity
require the Courts of this state, Regardless of the well-being of the child, to lend Their Aid to the
enforcement of the Iowa decree by Winifred Returning to the custody of her grandmother. A
child is not a chattel to Which title and the right of possession May Be secured by the decree of
court and Stock. Been Had the decree if rendered by a domestic court of Competent jurisdiction,
it conclusively ESTABLISHED Would Not Have the right to the custody of the child. In a
answered between rival claimants, this court Would Have Been free, notwithstanding the
decree, to award the custody Solely with an eye to the child's welfare. (State ex rel. Aldridge vs.
Aldridge, 204 NW 324.)

On habeas corpus by the mother to Obtain possession from the father of two Children aged four
and six years, Whose custody she Had Been Awarded Alleged her in divorce proceedings in
Another State, it Appeared That the mother WAS Without property, and Had No Means
of support staff save her earnings of $ 15 per month, WAS in poor health, and Lived with her
mother, in immoral surroundings, and the father That Was An industrious and sober man,
earnings $ 100 per month. Held, That the welfare of the Children Was the Only Thing To Be
Considered, and a Judgement Awarding custody to the mother Their Should Be Reversed. (Vs
Kentzler. Kentzler, 28 Pac., 370.)

The appellant, as a last resort, it invokes the comity of Nations.Reciprocity, comity is not
absolute. Applies when there is no treaty and equality legislation. Adopting the doctrine of
reciprocity when the foreign court has jurisdiction to hear the case, the parties appeared and
discussed the matter at the bottom. Sometimes granted as a privilege but not as strict law. The
courtesy requested has not been recognized by this Court when he declared that the rights and
duties of family, state, condition and legal capacity of persons are governed by the laws of the
Philippines and not those of America (against Gonzales Gonzales, supra) and not validated the
decision of the Supreme Court of Hong Kong because it was erroneous in its findings of fact
and law (Ingenohl against Olsen & Co., supra).

The reciprocity between the states of the American Union is not absolute. It is not unbreakable
rule. The several cases cited above demonstrate. That is another case:

On the question of comity, this court in the habeas corpus Said case of In re Stockman, 71
Mich. 180, 38 N.W. 876:

"Comity not can be Considered in a case like this, when to the future welfare of the child is the
vital question in the case. The good of the child is superior to all Other considerations. It is the
polar star to guide to the conclusion in all Cases of infants, whether the question is raised upon
a writ of habeas corpus or in a court of chancery. " (Ex parte Leu, 215 N.W., 384.)

We have seen that the interim order giving the custody of the child to the appellant is in conflict
with the express provisions of the laws in force in the Philippines. In the first decree and the
amendatory entrusted with the custody of the child's father and was banned in the amended
order, the mother carrying the child to his house because he was again in illegal relations with
another man. But the last amendatory decree contrary to the sense of justice, law and morality,
entrusted the custody of the child to which he was unfaithful wife because she was married to
whom he committed adultery. And under the doctrine of comity of Nations, the appellant
contends that must be met in the Philippines that decree. We believe that for various reasons
stated above, the claim is untenable.

It confirms the original ruling. The appellant shall pay the costs.

Ozaeta, Bengzon, Montemayor and Reyes, MM., Are satisfied.


Tuason, J., concurs in the result.

The Lawphil Project - Arellano Law Foundation

YEE BOO MANN VS REPUBLIC

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-1606 May 28, 1949

IN THE MATTER OF THE PETITION OF YEE BO MANN FOR PHILIPPINE CITIZENSHIP.


YEE BO MANN,petitioner-appellee,
vs.
THE REPUBLIC OF THE PHILIPPINES, oppositor-appellant.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Florencio Villamor for
appellant.
H.S. Hermosisima for appellee.

REYES, J.:

This is petition for naturalization.

Petitioner Yee Bo Mann was born in Canton, China, in 1898, of Chinese parents, who at an
earlier date had become naturalized citizens of the United States. In 1915 he immigrated to the
Philippines and located in the City of Cebu, where he has resided continuosly since then.
Studying in the public schools there and completing the primary and secondary courses,
including a four-year commercial course, he became a licensed public accountant in 1925 and
has since then engaged in the practice of that profession in addition to being a general
merchant and purchasing agent. In 1922 he married Helen Leu, an American citizen born in
Hawaii, and with her came to have two children, Nellie and Philip, born in 1924 and 1933,
respectively. Nellie took her primary course partly in Hongkong and partly in Cebu and was at
the time of the trial a high school.

Petitioner believes in the principles underlying the Philippine Constitution and can speak and
write English and the Cebu Visayan dialect. He is not a polygamist and has never been
convicted of any crime involving moral turpitude. He has a sister who is married to a Filipino,
Atty. Manuel Veloso, and he has no more relatives in China. Asked why he wanted to become a
Filipino citizen, he answered: "I have been here so long, I was educated here, I have so many
Filipino friends and I love them and they love me too." He says he has already decided to spend
the rest of his life in the Philippines.

The Court of First Instance of Cebu granted the petition, and the case is now here on appeal by
the Government on the ground that petitioner has failed to declare his intention to become a
Filipino citizen one year before the filing of his petition to prove at the trial that the laws of China
permit Filipinos to naturalize in that country.

As to the first ground, section 5 of the Revised Naturalization to declare his intention to become
a Filipino citizen one year before the application. But section 6 of the same law exempts from
that requirement, among others, those who have resided continuously in the Philippines for 30
years or more before the filing of their application, provided "that the applicant has given primary
and secondary education to all his children in the public schools or in private schools recognized
by the Government and not limited to any race or nationality." The Solicitor General construes
this proviso as requiring completion of both primary and secondary education by all the children
of the applicant. This court, however, has already held in other cases, among them that
of Rafael Roa Yrostorza vs. Republic of the Philippines,1 G.R. No. L-1394, that enrollment in the
proper school is sufficient compliance with the law. Petitioner's case comes within this ruling,
since his children are actually studying in school albeit they have not yet finished secondary
education.

As to the other ground of appeal, it appears that petitioner has presented in evidence a
translation of the Chinese naturalization law certified to be correct by the Chinese Consulate
General in Manila. The admissibility not conform to section 41, Rule 123 of the Rule of Court.
The objection is of no moment, since this Court has already accepted it as a fact in previous
naturalization cases that the laws China permit Filipinos to naturalize in that country.
In view of the foregoing, the decision appealed from is affirmed, without special pronouncement
as to costs.

Ozaeta, Paras, Feria, Pablo, Perfecto, Bengzon, Tuason and Montemayor, JJ., concur.
Reyes, J., I hereby certify that Chief Justice Moran voted for the affirmance of the judgment
below.

Footnotes
1
83 Phil., 727.

FLUEMER VS HIX
Facts:

The petitioner is a special administrator of the estate of Edward Hix. He alleged that the latter’s
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 that state govern. To this end, the petitioner submitted a
copy of Section 3868 of Acts 1882, c.84 as found in West Virginia Code, annotated by Hogg,
Charles E., vol.2 1914, p. 1690 and as certified to by the Director of National Library.
The Judge of the First Instance however denied the probate of the will on the grounds that Sec
300 and 301 of the Code of Civil Procedure were not complied with. Hence, this appeal.

Issue:

Is it necessary to prove in this jurisdiction the existence of such law in West Virginia as a
prerequisite to the allowance and recording of said will.

Held:

Yes. The laws of the 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. 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 Sec 30 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 Sec 301. No
evidence was introduced showing that the extract from the laws of West Virginia was in force at
the time alleged will was executed.
The court therefore did not err in denying the probate of the will. The existence of such law in
West Virginia must be proved.

MICIANO VS 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.

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.

Street, Malcolm, Avanceña, Villamor and Ostrand, JJ., concur.

SUNTAY VS 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 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
Goño and the subsequent assignment thereof by the assignees to Francisco Pascual and by
the latter to Federico C. Suntay, for the validity and legality of such assignments cannot be
threshed out in this proceedings which is concerned only with the probate of the will and
testament executed in the Philippines on November 1929 or of the foreign will allegedly
executed in Amoy on 4 January 1931 and claimed to have been probated in the municipal
district court of Amoy, Fookien province, Republic of China.

As to prescription, the dismissal of the petition for probate of the will on 7 February 1938 was no
bar to the filing of this petition on 18 June 1947, or before the expiration of ten years.

As to the lost will, section 6, Rule 77, provides:

No will shall be proved as a lost or destroyed will unless the execution and validity of the
same be established, and the will is proved to have been in existence at the time of the
death of the testator, or is shown to have been fraudulently or accidentally destroyed in
the lifetime of the testator without his knowledge, nor unless its provisions are clearly
and distinctly proved by at least two credible witnesses. When a lost will is proved, the
provisions thereof must be distinctly stated and certified by the judge, under the seal of
the court, and the certificate must be filed and recorded as other wills are filed and
recorded.

The witnesses who testified to the provisions of the lost will are Go Toh, an attesting witness,
Anastacio Teodoro and Ana Suntay. Manuel Lopez, who was an attesting witness to the lost
will, was dead at the time of the hearing of this alternative petition. In his deposition Go Toh
testifies that he was one of the witnesses to the lost will consisting of twenty-three sheets signed
by Jose B. Suntay at the bottom of the will and each and every page thereof in the presence of
Alberto Barretto, Manuel Lopez and himself and underneath the testator's signature the
attesting witnesses signed and each of them signed the attestation clause and each and every
page of the will in the presence of the testator and of the other witnesses (answers to the 31st,
41st, 42nd, 49th, 50th, 55th and 63rd interrogatories, Exhibit D-1), but did not take part in the
drafting thereof (answer to the 11th interrogatory, Id.); that he knew the contents of the will
written in Spanish although he knew very little of that language (answers to the 22nd and 23rd
interrogatories and to X-2 cross-interrogatory, Id.) and all he knows about the contends of the
lost will was revealed to him by Jose B. Suntay at the time it was executed (answers to the 25th
interrogatory and to X-4 and X-8 cross-interrogatories, Id.); that Jose B. Suntay told him that the
contents thereof are the same as those of the draft (Exhibit B) (answers to the 33rd
interrogatory and to X-8 cross-interrogatory, Id.) which he saw in the office of Alberto Barretto in
November 1929 when the will was signed (answers to the 69th, 72nd, and 74th
interrogatories, Id); that Alberto Barretto handed the draft and said to Jose B. Suntay: "You had
better see if you want any correction" (answers to the 81st, 82nd and 83rd interrogatories, Id.);
that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed
and executed" (answers to the 91st interrogatory, and to X-18 cross-interrogatory, Id.); that Mrs.
Suntay had the draft of the will (Exhibit B) translated into Chinese and he read the translation
(answers to the 67th interrogatory, Id.); that he did not read the will and did not compare it
(check it up) with the draft (Exhibit B) (answers to X-6 and X-20 cross-interrogatories, Id.).

Ana Suntay testifies that sometime in September 1934 in the house of her brother Apolonio
Suntay she learned that her father left a will "because of the arrival of my brother Manuel
Suntay, who was bringing along with him certain document and he told us or he was telling us
that it was the will of our father Jose B. Suntay which was taken from Go Toh. ..." (p. 524, t. s.
n., hearing of 24 February 1948); that she saw her brother Apolonio Suntay read the document
in her presence and of Manuel and learned of the adjudication made in the will by her father of
his estate, to wit: one-third to his children, one-third to Silvino and his mother and the other third
to Silvino, Apolonio, Concepcion and Jose, Jr. (pp. 526-8, 530-1, 542, t. s. n. Id.); that "after
Apolonio read that portion, then he turned over the document to Manuel, and he went away," (p.
528, t. s. n., Id.). On cross-examination, she testifies that she read the part of the will on
adjudication to know what was the share of each heir (pp. 530, 544, t. s. n., Id.) and on redirect
she testifies that she saw the signature of her father, Go Toh, Manuel Lopez and Alberto
Barretto (p. 546, t. s. n., Id.).

Anastacio Teodoro testifies that one day in November 1934 (p. 273, t. s. n., hearing of 19
January 1948), before the last postponement of the hearing granted by the Court, Go Toh
arrived at his law office in the De los Reyes Building and left an envelope wrapped in red
handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947); that he checked up the
signatures on the envelope Exhibit A with those on the will placed in the envelope (p. 33, t. s.
n., Id.); that the will was exactly the same as the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.).
If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro And returned
by the latter to the former because they could not agree on the amount of fees, the former
coming to the latter's office straight from the boat (p. 315, t. s. n., hearing of 19 January 1948)
that brought him to the Philippines from Amoy, and that delivery took place in November 1934
(p. 273, t. s. n., Id.), then the testimony of Ana Suntay that she saw and heard her brother
Apolonio Suntay read the will sometime in September 1934 (p. 524, t. s. n., hearing of 24
February 1948), must not be true.

Although Ana Suntay would be a good witness because she was testifying against her own
interest, still the fact remains that she did not read the whole will but only the adjudication (pp.
526-8, 530-1, 542, t. s. n., Id.) and saw only the signature, of her father and of the witnesses Go
Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n.,Id.). But her testimony on cross-
examination that she read the part of the will on adjudication is inconsistent with her testimony
in chief that after Apolonio had read that part of the will he turned over or handed the document
to Manuel who went away (p. 528, t. s. n., Id.).

If it is true that Go Toh saw the draft Exhibit B in the office of Alberto Barretto in November 1929
when the will was signed, then the part of his testimony that Alberto Barretto handed the draft to
Jose B. Suntay to whom he said: "You had better see if you want any correction" and that "after
checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed and
executed" cannot be true, for it was not the time for correcting the draft of the will, because it
must have been corrected before and all corrections and additions written in lead pencil must
have been inserted and copied in the final draft of the will which was signed on that occasion.
The bringing in for the draft (Exhibit B) on that occasion is just to fit it within the framework of the
appellant's theory. At any rate, all of Go Toh's testimony by deposition on the provisions of the
alleged lost will is hearsay, because he came to know or he learned to them from information
given him by Jose B. Suntay and from reading the translation of the draft (Exhibit B) into
Chinese.

Much stress is laid upon the testimony of Federico C. Suntay who testifies that he read the
supposed will or the alleged will of his father and that the share of the surviving widow,
according to the will, is two-thirds of the estate (p. 229, t. s. n., hearing of 24 October 1947). But
this witness testified to oppose the appointment of a co-administrator of the estate, for the
reason that he had acquired the interest of the surviving widow not only in the estate of her
deceased husband but also in the conjugal property (pp. 148, 205, 228, 229, 231, t. s. n., Id.)
Whether he read the original will or just the copy thereof (Exhibit B) is not clear. For him the
important point was that he had acquired all the share, participation and interest of the surviving
widow and of the only child by the second marriage in the estate of his deceased father. Be that
as it may, his testimony that under the will the surviving widow would take two-thirds of the
estate of the late Jose B. Suntay is at variance with Exhibit B and the testimony of Anastacio
Teodoro. According to the latter, the third for strict legitime is for the ten children; the third for
betterment is for Silvino, Apolonio, Concepcion and Jose Jr.; and the third for free disposal is for
the surviving widow and her child Silvino.

Hence, granting that there was a will duly executed by Jose B. Suntay placed in the envelope
(Exhibit A) and that it was in existence at the time of, and not revoked before, his death, still the
testimony of Anastacio Teodoro alone falls short of the legal requirement that the provisions of
the lost will must be "clearly and distinctly proved by at least two credible witnesses." Credible
witnesses mean competent witnesses and those who testify to facts from or upon hearsay are
neither competent nor credible witnesses.
On the other hand, Alberto Barretto testifies that in the early part of 1929 he prepared or drew
up two mills for Jose B. Suntay at the latter's request, the rough draft of the first will was in his
own handwriting, given to Manuel Lopez for the final draft or typing and returned to him; that
after checking up the final with the rough draft he tore it and returned the final draft to Manuel
Lopez; that this draft was in favor of all the children and the widow (pp. 392-4, 449, t. s. n.,
hearing of 21 February 1948); that two months later Jose B. Suntay and Manuel Lopez called
on him and the former asked him to draw up another will favoring more his wife and child
Silvino; that he had the rough draft of the second will typed (pp. 395, 449 t. s. n., Id.) and gave it
to Manuel Lopez (p. 396, t. s. n., Id.); that he did not sign as witness the second will of Jose B.
Suntay copied from the typewritten draft [Exhibit B] (p. 420, t. s. n., Id.); that the handwritten
insertions or additions in lead pencil to Exhibit B are not his (pp. 415-7 435-6, 457, t. s. n., Id.);
that the final draft of the first will made up of four or five pages (p. 400, t. s. n., Id.) was signed
and executed, two or three months after Suntay and Lopez had called on him (pp. 397-8, 403,
449, t. s. n., Id.) in his office at the Cebu Portland Cement in the China Banking Building on
Dasmariñas street by Jose B. Suntay, Manuel Lopez and a Chinaman who had all come from
Hagonoy (p. 398, t. s. n., Id.); that on that occasion they brought an envelope (Exhibit A) where
the following words were written: "Testamento de Jose B. Suntay" (pp. 399, 404, t. s. n., Id.);
that after the signing of the will it was placed inside the envelope (Exhibit A) together with an
inventory of the properties of Jose B. Suntay and the envelope was sealed by the signatures of
the testator and the attesting witnesses (pp. 398, 401, 441, 443, 461, t. s. n., Id.); that he again
saw the envelope (Exhibit A) in his house one Saturday in the later part of August 1934, brought
by Go Toh and it was then in perfect condition (pp. 405-6, 411, 440-2, t. s. n., Id.); that on the
following Monday Go Toh went to his law office bringing along with him the envelope (Exhibit A)
in the same condition; that he told Go Toh that he would charge P25,000 as fee for probating
the will (pp. 406, 440-2, Id.); that Go Toh did not leave the envelope (Exhibit A) either in his
house or in his law office (p. 407, t. s. n., Id.); that Go Toh said he wanted to keep it and on no
occasion did Go Toh leave it to him (pp. 409, 410, t. s. n., Id.).

The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert in connection with the
complaint for estafa filed against Manuel Suntay for the alleged snatching of the envelope
(Exhibit A), corroborates the testimony of Alberto Barretto to the effect that only one will was
signed by Jose B. Suntay at his office in which he (Alberto Barretto), Manuel Lopez and Go Toh
took part as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh testified before the same
assistant fiscal that he did not leave the will in the hands of Anastacio Teodoro (p. 26, t. s. n.,
Exhibit 6). He said, quoting his own words, "Because I can not give him this envelope even
though the contract (on fees) was signed. I have to bring that document to court or to anywhere
else myself." (p. 27, t. s. n., Exhibit 6).

As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on the
point in Rule 78. Section 1 of the rule provides:

Wills proved and allowed in a foreign country, according to the laws of such country,
may be allowed, filed, and recorded by the proper Court of First Instance in the
Philippines.

Section 2 provides:

When a copy of such will and the allowance thereof, duly authenticated, is filed with a
petition for allowance in the Philippines, by the executor or other person interested, in
the court having jurisdiction, such court shall fix a time and place for the hearing, and
cause notice thereof to be given as in case of an original will presented for allowance.

Section 3 provides:

If it appears at the hearing that the will should be allowed in the Philippines, the court
shall so allow it, and a certificate of its allowance, signed by the Judge, and attested by
the seal of the courts, to which shall be attached a copy of the will, shall be filed and
recorded by the clerk, and the will shall have the same effect as if originally proved and
allowed in such court.

The fact that the municipal district court of Amoy, China, is a probate court must be proved. The
law of China on procedure in the probate or allowance of wills must also be proved. The legal
requirements for the execution of a valid will in China in 1931 should also be established by
competent evidence. There is no proof on these points. The unverified answers to the questions
propounded by counsel for the appellant to the Consul General of the Republic of China set
forth in Exhibits R-1 and R-2, objected to by counsel for the appellee, are inadmissible, because
apart from the fact that the office of Consul General does not qualify and make the person who
holds it an expert on the Chinese law on procedure in probate matters, if the same be admitted,
the adverse party would be deprived of his right to confront and cross-examine the witness.
Consuls are appointed to attend to trade matters. Moreover, it appears that all the proceedings
had in the municipal district court of Amoy were for the purpose of taking the testimony of two
attesting witnesses to the will and that the order of the municipal district court of Amoy does not
purport to probate the will. In the absence of proof that the municipal district court of Amoy is a
probate court and on the Chinese law of procedure in probate matters, it may be presumed that
the proceedings in the matter of probating or allowing a will in the Chinese courts are the a
deposition or to a perpetuation of testimony, and even if it were so it does not measure same as
those provided for in our laws on the subject. It is a proceedings in rem and for the validity of
such proceedings personal notice or by publication or both to all interested parties must be
made. The interested parties in the case were known to reside in the Philippines. The evidence
shows that no such notice was received by the interested parties residing in the Philippines (pp.
474, 476, 481, 503-4, t. s. n., hearing of 24 February 1948). The proceedings had in the
municipal district court of Amoy, China, may be likened toe or come up to the standard of such
proceedings in the Philippines for lack of notice to all interested parties and the proceedings
were held at the back of such interested parties.

The order of the municipal district court of Amoy, China, which reads as follows:

ORDER:

SEE BELOW

The above minutes were satisfactorily confirmed by the interrogated parties, who declare
that there are no errors, after said minutes were loudly read and announced actually in
the court.

Done and subscribed on the Nineteenth day of the English month of the 35th year of the
Republic of China in the Civil Section of the Municipal District Court of Amoy, China.
HUANG KUANG CHENG
Clerk of Court

CHIANG TENG HWA


Judge

(Exhibit N-13, p. 89 Folder of Exhibits.).

does not purport to probate or allow the will which was the subject of the proceedings. In view
thereof, the will and the alleged probate thereof cannot be said to have been done in
accordance with the accepted basic and fundamental concepts and principles followed in the
probate and allowance of wills. Consequently, the authenticated transcript of proceedings held
in the municipal district court of Amoy, China, cannot be deemed and accepted as proceedings
leading to the probate or allowance of a will and, therefore, the will referred to therein cannot be
allowed, filed and recorded by a competent court of this country.

The decree appealed from is affirmed, without pronouncement as to costs.

Pablo, Bengzon, A. Reyes, Labrador and Concepcion, JJ., concur.

Separate Opinions

PARAS, C.J., dissenting:

As a preliminary statement we may well refer to the case of Maria Natividad Lim Billian,
petitioner and appellant, vs.Apolonio Suntay, Angel Suntay, Manuel Suntay, and Jose Suntay,
oppositors and appellees, 63 Phil., 793-797, in which the following decision was rendered by
this Court on November 25, 1936, holding that the will executed by Jose B. Suntay who died in
the City of Amoy, China, on May 14, 1934, was lost under the circumstances pointed out
therein, and ordering the return of the case to the Court of First Instance of Bulacan for further
proceedings:

On May 14, 1934, Jose B. Suntay died in the City of Amoy, China. He married twice, the
first time to Manuela T. Cruz with whom he had several children now residing in the
Philippines, and the second time to Maria Natividad Lim Billian with whom he had a son.

On the same date, May 14, 1934, Apolonio Suntay, eldest son of the deceased by his
first marriage, filed the latter's intestate in the Court of First Instance of Manila (civil case
No. 4892).

On October 15, 1934, and in the same court, Maria Natividad Lim Billian also instituted
the present proceedings for the probate of a will allegedly left by the deceased.

According to the petitioner, before the deceased died in China he left with her a sealed
envelope (Exhibit A) containing his will and, also another document (Exhibit B of the
petitioner) said to be a true copy of the original contained in the envelope. The will in the
envelope was executed in the Philippines, with Messrs. Go Toh, Alberto Barretto and
Manuel Lopez as attesting witnesses. On August 25, 1934, Go Toh, as attorney-in-fact
of the petitioner, arrived in the Philippines with the will in the envelope and its copy
Exhibit B. While Go Toh was showing this envelope to Apolonio Suntay and Angel
Suntay, children by first marriage of the deceased, they snatched and opened it and,
after getting its contents and throwing away the envelope, they fled.

Upon this allegation, the petitioner asks in this case that the brothers Apolonio, Angel,
Manuel and Jose Suntay, children by the first marriage of the deceased, who allegedly
have the document contained in the envelope which is the will of the deceased, be
ordered to present it in court, that a day be set for the reception of evidence on the will,
and that the petitioner be appointed executrix pursuant to the designation made by the
deceased in the will.

In answer to the court's order to present the alleged will, the brothers Apolonio, Angel,
Manuel and Jose Suntay stated that they did not have the said will and denied having
snatched it from Go Toh.

In view of the allegations of the petition and the answer of the brothers Apolonio, Angel,
Manuel and Jose Suntay, the questions raised herein are: The loss of the alleged will of
the deceased, whether Exhibit B accompanying the petition is an authentic copy thereof,
and whether it has been executed with all the essential and necessary formalities
required by law for its probate.

At the trial of the case on March 26, 1934, the petitioner put two witnesses upon the
stand, Go Toh and Tan Boon Chong, who corroborated the allegation that the brothers
Apolonio and Angel appropriated the envelope in the circumstances above-mentioned.
The oppositors have not adduced any evidence counter to the testimony of these two
witnesses. The court, while making no express finding on this fact, took it for granted in
its decision; but it dismissed the petition believing that the evidence is insufficient to
establish that the envelope seized from Go Toh contained the will of the deceased, and
that the said will was executed with all the essential and necessary formalities required
by law for its probate.

In our opinion, the evidence is sufficient to establish the loss of the document contained
in the envelope. Oppositors' answer admits that, according to Barretto, he prepared a
will of the deceased to which he later become a witness together with Go Toh and
Manuel Lopez, and that this will was placed in an envelope which was signed by the
deceased and by the instrumental witnesses. In court there was presented and attached
to the case an open and empty envelope signed by Jose B. Suntay, Alberto Barretto, Go
Toh and Manuel Lopez. It is thus undeniable that this envelope Exhibit A is the same
one that contained the will executed by the deceased-drafted by Barretto and with the
latter, Go Toh and Manuel Lopez as attesting witnesses. These tokens sufficiently point
to the loss of the will of the deceased, a circumstance justifying the presentation of
secondary evidence of its contents and of whether it was executed with all the essential
and necessary legal formalities.

The trial of this case was limited to the proof of loss of the will, and from what has taken
place we deduce that it was not petitioner's intention to raise, upon the evidence
adduced by her, the other points involved herein, namely, as we have heretofore
indicated, whether Exhibit B is a true copy of the will and whether the latter was
executed with all the formalities required by law for its probate. The testimony of Alberto
Barretto bears importantly in this connection.

Wherefore, the loss of the will executed by the deceased having been sufficiently
established, it is ordered that this case be remanded to the court of origin for further
proceedings in obedience to this decision, without any pronouncement as to the costs.
So ordered

On June 18, 1947, Silvino Suntay, the herein petitioner, filed a petition in the Court of First
Instance of Bulacan praying "that an order be issued (a) either directing the continuation of the
proceedings in the case remanded by the Supreme Court by virtue of its decision in G. R. No.
44276 and fixing a date for the reception of evidence of the contents of the will declared lost, or
the allowance, filing and recording of the will of the deceased which had been duly probated in
China, upon the presentation of the certificates and authentications required by Section 41, Rule
123 (Yu Chengco vs. Tiaoqui supra), or both proceedings concurrently and simultaneously; (b)
that letters of administration be issued to herein petitioner as co-administrator of the estate of
the deceased together with Federico Suntay; and (c) that such other necessary and proper
orders be issued which this Honorable Court deems appropriate in the premises." While this
petition was opposed by Federico C. Suntay, son of the deceased Jose B. Suntay with his first
wife, Manuela T. Cruz, the other children of the first marriage, namely, Ana Suntay, Aurora
Suntay, Concepcion Suntay, Lourdes Guevara Vda. de Suntay, Manuel Suntay and Emiliano
Suntay, filed the following answer stating that they had no opposition thereto; "Come now the
heirs Concepcion Suntay, Ana Suntay, Aurora Suntay, Lourdes Guevara Vda. de Suntay,
Manuel Suntay, and Emiliano Suntay, through their undersigned attorney, and, in answer to the
alternative petition filed in these proceedings by Silvino Suntay, through counsel, dated June 18,
1947, to this Honorable Court respectfully state that, since said alternative petition seeks only to
put into effect the testamentary disposition and wishes of their late father, they have no
opposition thereto."

After hearing, the Court of First Instance of Bulacan rendered on April 19, 1948, the following
decision:

This action is for the legalization of the alleged will of Jose B. Suntay, deceased.

In order to have a comprehensive understanding of this case, it is necessary to state the


background on which the alternative petition of the herein petitioner Silvino Suntay has
been based.

The decision of the Supreme Court (Exhibit O), in re will of the deceased Jose B.
Suntay, 63 Phil., 793-797, is hereunder produced:

(As quoted above)

The above quoted decision of the Supreme Court was promulgated on November 25,
1936 (Exhibit O).

The Clerk of the Court of Court of First Instance of Bulacan notified the parties of the
decision on December 15, 1936; and the case was set for hearing on February 12, 1937,
but it was transferred to March 29, 1937 (Exhibit O), on motion of the then petitioner
Maria Natividad Lim Billian (Exhibit F). Again, it was postponed until "further setting" in
the order of court dated March 18, 1937, upon motion of the petitioner (Exhibit H).

In the meantime, the deposition of Go Toh was being sought (Exhibit H).

The hearing of the case was again set for February 7, 1936, by order of the court dated
January 5, 1938, upon motion of Emiliano Suntay and Jose Suntay, Jr. On the same day
of the hearing which had been set, the petitioner, then, Maria Natividad Lim Billian, sent
a telegram from Amoy, China, addressed to the Court of First Instance of Bulacan
moving for the postponement of the hearing on the ground that Atty. Eriberto de Silva
who was representing her died (Exhibit K). The court, instead of granting the telegraphic
motion for postponement, dismissed the case in the order dated February 7, 1938
(Exhibit L).

On July 3, 1947, the petitioner Silvino Suntay filed a motion for the consolidation of the
intestate Estate of the deceased Jose B. Suntay, Special Proceeding No. 4892 and the
Testate Estate of Jose B. Suntay, Special Proceeding No. 4952, which latter case is the
subject of the said alternative petition. The motion for the merger and consolidation of
the two cases was granted on July 3, 1947.

That oppositor, Federico C. Suntay, in the Testate Proceeding filed a motion to dismiss
the alternative petition on November 14, 1947, which was denied by the court in its
resolution of November 22, 1947. The said oppositor not being satisfied with the ruling of
this court denying the motion to dismiss, filed before the Supreme Court a petition for a
writ of certiorari with preliminary injunction, which was dismissed for lack of merit on
January 27, 1948.

In obedience to the decision of the Supreme Court (Exhibit O) and upon the alternative
petition of Silvino Suntay, and, further, upon the dismissal of the petition for a writ
of certiorari with preliminary injunction, the court was constrained to proceed with the
hearing of the probate of the lost will, the draft of which is Exhibit B, or the admission
and recording of the will which had been probated in Amoy, China.

The evidence for the petitioner, Silvino Suntay, shows that Jose B. Suntay married twice;
first to Manuela T. Cruz who died on June 15, 1920 and had begotten with her Apolonio,
now deceased, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano and Jose,
Jr., all surnamed Suntay, and second, to Maria Natividad Lim Billian with whom he had
as the only child Silvino Suntay, the petitioner herein.

Some time in November 1929, Jose B. Suntay executed his last will and testament in the
office of Atty. Alberto Barretto in Manila, which was witnessed by Alberto Barretto,
Manuel Lopez and Go Toh. The will was prepared by said Alberto Barretto upon the
instance of Jose B. Suntay, and it was written in the Spanish language which was
understood and spoken by said testator. After the due execution of the will, that is
signing every page and the attestation clause by the testator and the witnesses in the
presence of each other, the will was placed inside the envelope (Exhibit A), sealed and
on the said envelope the testator and the three subscribing witnesses also signed, after
which it was delivered to Jose B. Suntay.
A year or so after the execution of the will, Jose B. Suntay together with his second wife
Maria Natividad Lim Billian and Silvino Suntay who was then of tender age went to
reside in Amoy, Fookien, China, where he died on May 14, 1934. The will was entrusted
to the widow, Maria Natividad Lim Billian.

Upon the death of Jose B. Suntay on May 14, 1934, Apolonio Suntay, the oldest son
now deceased, instituted the Intestate Proceedings No. 4892, upon the presumption that
no will existed. Maria Natividad Lim Billian who remained in Amoy, China, had with her
the will and she engaged the services of the law firm of Barretto and Teodoro for the
probate of the will. Upon the request of the said attorneys the will was brought to the
Philippines by Go Toh who was one of the attesting witnesses, and it was taken to the
law office of Barretto and Teodoro. The law firm of Barretto and Teodoro was composed
of Atty. Alberto Barretto and Judge Anastacio Teodoro. The probate of the will was
entrusted to the junior partner Judge Anastacio Teodoro; and, upon the presentation of
the sealed envelope to him, he opened it and examined the said will preparatory to the
filing of the petition for probate. There was a disagreement as to the fees to be paid by
Maria Natividad Lim Billian, and as she (through Go Toh) could not agree to pay,
P20,000 as fees, the will was returned to Go Toh by Judge Anastacio Teodoro after the
latter had kept it in his safe, in his office, for three days.

Subsequently, the will inside the envelope was snatched from Go Toh by Manuel Suntay
and Jose, Jr., which fact has been established in the decision of the Supreme Court at
the beginning of this decision. Go Toh could recover the envelope (Exhibit A) and the
piece of cloth with which the envelope was wrapped (Exhibit C).

The Testate Proceeding was filed nevertheless and in lien of the lost will a draft of the
will (Exhibit B) was presented as secondary evidence for probate. It was disallowed by
this court through Judge Buenaventura Ocampo, but on appeal the Supreme Court
remanded the case to this court for further proceeding (Exhibit C).

In the meantime, a Chinese will which was executed in Amoy Fookien, China, on
January 4, 1931, by Jose B. Suntay, written in Chinese characters (Exhibit P) was
discovered in Amoy, China, among the papers left by Jose B. Suntay, and said will had
been allowed to probate in the Amoy District Court, China, which is being also presented
by Silvino Suntay for allowance and recording in this court.

The said petition is opposed by Federico C. Suntay on the main ground that Maria
Natividad Lim Billian and Silvino Suntay have no more interest in the properties left by
Jose B. Suntay, because they have already sold their respective shares, interests and
participations. But such a ground of opposition is not of moment in the instant case,
because the proposition involved herein in the legalization of the lost will or the
allowance and recording of the will which had been probated in Amoy, China.

It is now incumbent upon this court to delve into the evidence whether or not Jose B.
Suntay, deceased, left a will (the draft of which is Exhibit B) and another will which was
executed and another will which was executed and probated in Amoy, China.

There is no longer any doubt that Jose B. Suntay while he was still residing in the
Philippines, had executed a will; such is the conclusion of the Supreme Court in its
decision (Exhibit O). That the will was snatched and it has never been produced in court
by those who snatched it, and consequently considered lost, is also an established fact.

The contention of the oppositor, Federico C. Suntay, is that the will that was executed by
Jose B. Suntay in the Philippines contained provisions which provided for equal
distribution of the properties among the heirs; hence, the draft (Exhibit B) cannot be
considered as secondary evidence, because it does not provide for equal distribution,
but if favors Maria Natividad Lim Billian and Silvino Suntay. He relies on the testimony of
Atty. Alberto Barretto who declared that the first will which he drafted and reduced into a
plain copy was the will that was executed by Jose B. Suntay and placed inside the
envelope (Exhibit A).

Granting that the first will which Atty. Alberto Barretto had drafted became the will of
Jose B. Suntay and it was snatched by, and, therefore, it had fallen into the hands of,
Manuel Suntay and the brothers of the first marriage, it stands to reason that said
Manuel Suntay and brothers would have been primarily interested in the production of
said will in court, for obvious reasons, namely, that they would have been favored. But it
was suppressed and "evidence willfully suppressed would be adverse if produced"
(Section 69 (e), Rule 123 of the Rules of Court). The contention, therefore, that the first
will which was drafted by Atty. Barretto was the one placed inside the envelope (Exhibit
A) is untenable.

It might be said in this connection that the draft of the will (Exhibit B) has been admitted
by Atty. Alberto Barretto as identical in substance and form to the second draft which he
prepared in typewriting; it differs only, according to him, in style. He denied that the
insertions in long hand in the said draft are in his own handwriting; however, Judge
Anastacio Teodoro averred that the said insertions are the handwriting of Atty. Alberto
Barretto. But when Atty. Alberto Barretto was asked to show any manuscript of his for
purposes of comparison, he declined to do so alleging that he did not have any
document in his possession showing his handwriting notwithstanding the fact that he
was testifying in his own house at 188 Sta. Mesa Boulevard, Manila. He further testified
that the first will be drafted contained four or five pages, but the second draft contained
twenty-three pages; that he declared in one breath that he did not read the will any more
when it was signed by the testator and the attesting witnesses because it would take up
much time, and in the same breath he declared that he checked it before it was signed;
and that he destroyed the draft of the first will which was in his own handwriting, but he
delivered the draft of the second will which he prepared to Jose B. Suntay in the
presence of Manuel Lopez, now deceased.

Whether or not the final plain copy of the draft of the will (Exhibit B) was executed by the
testator, Jose B. Suntay, and attested by the subscribing witnesses, Atty. Alberto
Barretto, Manuel Lopez and Go Toh, is the pivotal point in this instant case. Judge
Anastacio Teodoro testified that he opened the sealed envelope when it was given to
him by Go Toh preparatory to the presentation of the petition for the probate of the said
will. As the lawyer entrusted with that task, he had to examine the will and have it copied
to be reproduced or appended to the petition. He could not do otherwise if he is worth
salt as a good lawyer; he could not perform the stunt of "blind flying" in the judicial
firmament. Every step must be taken with certainty and precision under any
circumstances. He could not have talked about the attorney's fees with Go Toh, unless
he has not examined the will beforehand. And, declaring that it was the exact draft of the
will that was inside the envelope (Exhibit A), the testimony of Atty. Alberto Barretto to the
contrary notwithstanding.

The testimony of Judge Anastacio Teodoro is corroborated by Go Toh, one of the


attesting witnesses, in his deposition (Exhibit D-1).

Ana Suntay, one of the heirs and who would be affected adversely by the legalization of
the will in question, also testified on rebuttal that she saw the original will in the
possession of Manuel Suntay, immediately after the snatching. She read it and she
particularly remembers the manner in which the properties were to be distributed. Exhibit
B was shown to her on the witness stand and she declared that the provision regarding
the distribution of the properties in said Exhibit B is the same as that contained in the
original will. Said testimony of Ana Suntay, therefore, belies the testimony of Atty.
Alberto Barretto.

With respect to the proof of lost or destroyed will, Section 6 of Rule 77 provides as
follows:

"No will shall be proved as a lost or destroyed will unless the execution and validity of
the same be established, and the will is proved to have been in existence at the time of
the death of the testator, or it is shown to have been fraudulently or accidentally
destroyed in the lifetime of the testator without his knowledge, nor unless its provisions
are clearly and distinctly proved by at least two credible witnesses. When a lost will is
proved, the provisions thereof must be distinctly stated and certified by the judge, under
the seal of the court, and the certificate must be filed and recorded as other wills are filed
and recorded."

Section 8 of the same Rule provides as follows:

"If it appears at the time fixed for the hearing that the subscribing witnesses are dead or
insane, or that none of them resides in the Philippines the court may admit the testimony
of other witnesses to prove the sanity of the testator, and the due execution of the will;
and as evidence of the due execution of the will, it may admit proof of the handwriting of
the testator and of the subscribing witnesses, or any of them."

Manuel Lopez as one of the subscribing witnesses is dead. Atty. Alberto Barretto and Go
Toh are still living. The former testified during the hearing, while Go Toh's deposition was
introduced in evidence which was admitted. In the absence of the testimony of Manuel
Lopez, deceased, the testimony of Judge Anastacio Teodoro and Ana Suntay was
received.

It is an established fact that the will, draft of which is Exhibit B, was lost or destroyed;
that it was executed and valid and that it existed at the time of the death of Jose B.
Suntay. These circumstances also apply to the will (Exhibit P) which was executed in
Amoy, China.

The contents of the Chinese will is substantially the same as the draft (Exhibit B).
Granting that the will executed in the Philippines is non-existent as contended by the
oppositor, although the findings of this court is otherwise, the will executed and probated
in China should be allowed and recorded in this court. All the formalities of the law in
China had been followed in its execution, on account of which it was duly probated in the
Amoy District Court. There is no cogent reason, therefore, why it should not be admitted
and recorded in this jurisdiction.

The said will (Exhibit P) in Chinese characters is presented as an alternate in case the
will executed in the Philippines would not be allowed to probate, or as a corroborative
evidence that the will, the draft of which is Exhibit B, has been duly executed in the
Philippines by Jose B. Suntay.

Rule 78 of the Rules of Court covers the allowance of will proved outside of the
Philippines and administration of estate thereunder.

Section 1 of said rule provides:

"Wills proved and allowed in the United States, or any state or territory thereof, or in
foreign country, according to the laws of such state, territory, or country, may be allowed,
filed, and recorded by the proper Court of First Instance in the Philippines."

Section 2 of the same rule provides:

"When a copy of such will and the allowance thereof, duly authenticated, is filed with a
petition for allowance in the Philippines, by the executor or other person interested, in
the court having jurisdiction, such court shall fix a time and place for the hearing, and
cause notice thereof to be given as in case of an original will presented for allowance."

This court has delved deep into the evidence adduced during the hearing with that
penetrating scrutiny in order to discovery the real facts; it had used unsparingly the
judicial scapel; and it has winnowed the evidenced to separate the grain from the chaff.
All the facts lead to the inevitable conclusion that Jose B. Suntay, in his sound and
disposing mind and not acting under duress or undue influence, executed the will which
is lost, the draft of which is Exhibit B, with all the necessary formalities prescribed by law.
He, likewise, executed the second will (Exhibit P) in Amoy, China, which has been duly
probated in Amoy District Court,-a corroborative evidence that the testator really
executed the will. Copies of the said wills duly certified and under the seal of the court
are appended hereto, marked Exhibits B and P, and they form part of this decision.

In view of the foregoing considerations, the court is of the opinion and so declares that
the draft of the will (Exhibit B) is, to all legal intents and purposes, and testament of the
deceased Jose B. Suntay. With costs against the oppositor, Federico C. Suntay.

Oppositor Federico C. Suntay filed on May 20, 1948, a motion for new trial and to set aside the
decision rendered on April 19, 1948, to which the petitioner filed an opposition, followed by a
reply filed by the oppositor and an answer on the part of the petitioner. Without reopening the
case and receiving any new or additional evidence, the Court of First Instance of Bulacan, on
September 29, 1948, promulgated the following resolution setting aside his first decision and
disallowing the wills sought to be probated by the petitioner in his alternative petition filed on
June 18, 1947:

This is a motion for new trial and to set aside the decision legalizing the will of Jose B.
Suntay and allowing and recording another will executed by him in Amoy, China.
By virtue of this motion, this court is constrained to go over the evidence and the law
applicable thereto with the view of ascertaining whether or not the motion is well
founded. Both parties have presented extensive memoranda in support of their
respective contentions.

This court has gone over the evidence conscientiously, and it reiterates its findings of the
same facts in this resolution, whether or not the facts established by the petitioner,
Silvino Suntay, warrant the legalization of the lost will and the allowance and recording
of the will that was executed in Amoy, China, is therefore, the subject of this instant
motion.

A. As to the legalization of the Lost Will. — There is no question in the mind of this court
that the original will which Jose B. Suntay, deceased executed in the Philippines in the
year 1929 was lost (Exhibit O, Decision of the Supreme Court). The evidence adduced
by the petitioner during the hearing has established through the testimony of Judge
Anastacio Teodoro and that of Go Toh (an attesting witness) that the will was executed
by Jose B. Suntay, deceased, with all the formalities required by law. For the purpose of
legalizing an original and existing will, the evidence on record is sufficient as to the
execution and attesting in the manner required by law.

Section 8 of Rule 77 provides as follows:

"SEC. 8. Proof when witnesses dead or insane or do not reside in the Philippines. — If it
appears at the time fixed for the hearing that the subscribing witnesses are dead or
insane, or that none of them resides in the Philippines, the court may admit the
testimony of other witnesses to prove the sanity of the testator, and the due execution of
the will; and as evidence of the execution of the will, may admit proof of the handwriting
of the testator and of the subscribing witnesses, or any of them."

Section 11 of said rule also provides as follows:

"SEC. 11. Subscribing witnesses produced or accounted for where contest. — If the will
is contested, all the subscribing witnesses present in the Philippines and not insane,
must be produced and examined, and the death, absence, or insanity of any of them
must be satisfactorily shown to the court. If all or some of the subscribing witnesses are
present in the Philippines, but outside the province where the will has been filed, their
deposition must be taken. If all or some of the subscribing witnesses produced and
examined testify against the due execution of the will, or do not remember having
attested to it, or are otherwise of doubtful credibility, the will may be allowed if the court
is satisfied from the testimony of other witnesses and from all the evidence presented
that the will was executed and attested in the manner required by law."

The three attesting witnesses were Manuel Lopez, deceased Alberto Barretto and Go
Toh. The last two witnesses are still living; the former testified against and the latter in
favor. In other words, the attesting witness, Go Toh, only, testified in his deposition in
favor of the due execution of the will. Hence, the petitioner presented another witness,
Judge Anastacio Teodoro, to establish and prove the due execution of the said will. Ana
Suntay was also presented as a witness in rebuttal evidence. The testimony of Go Toh
in his deposition as an attesting witness, coupled with the testimony of Judge Anastacio
Teodoro who was able to examine the original will that was executed by Jose B. Suntay,
deceased, when it was given to him by Go Toh for the purpose of filing the petition in
court for its legalization, and could recognize the signatures of the testator as well as of
the three attesting witnesses on the said original will is sufficient to convince the court
that the original will was executed by the deceased Jose B. Suntay with all the
formalities required by law. The original will, therefore, if it was presented in court to
probate would be allowed to all legal intents and purposes. But it was not the original will
that was presented, because it was lost, but an alleged draft (Exhibit B) of the said
original will which does not bear the signature of the testator and any of the attesting
witness. The original will was duly executed with all the formalities required by law, but it
was unfortunately lost; and the curtain falls for the next setting.

The Court is now confronted with the legalization of the lost will — whether or not the
draft (Exhibit B) should be admitted as secondary evidence in lieu of the lost will and
allowed to probate.

Section 6. Rule 77 provides as follows:

"SEC. 6. Proof of lost or destroyed will — Certificate thereupon. — No will shall be


proved as a lost will or destroyed will unless the execution and validity of the same be
established, and the will is proved to have been in existence at the time of the death of
the testator, or is shown to have been fraudulently or accidentally destroyed in the
lifetime of the testator without his knowledge, nor unless its provisions are clearly and
distinctly proved by at least two credible witnesses. When a lost will is proved, the
provisions thereof must be distinctly stated and certified by the Judge, under the seal of
the court and the certificate must be filed and recorded as other wills are filed and
recorded." (Emphasis Court's)

From the above quoted provision of the law, it is clear that the petitioner should not only
establish the execution and validity of the will, its existence at the time of the death of the
testator or its fraudulent and accidental destruction in the lifetime of the testator without
his knowledge, but also must prove its provisions clearly and distinctly by at least two
credible witnesses. The exact language of the clause in the above quoted provision of
the law is "nor unless its provisions are clearly and distinctly proved by at least two
credible witnesses." The legalization of a lost will is not so easy, therefore, as that of an
original will. The question, therefore, is boiled down to, and projected on the screen, in a
very sharp focus; namely, the execution and validity must be established and the
provisions must be clearly and distinctly proved by at least credible witnesses.

Granting that the execution and validity of the lost will have been established through the
testimony of Judge Anastacio Teodoro and Go Toh, and perhaps superficially by the
rebuttal witness, Ana Suntay, does it follow that the provisions of the lost will have been
clearly and distinctly proved by at least two credible witnesses? A careful review of the
evidence has revealed that at most the only credible witness who testified as to the
provisions of the will was Judge Anastacio Teodoro, and yet he testified on the
provisions of the lost will with the draft (Exhibit B) in his hands while testifying. It may be
granted, however, that with or without the draft of the will (Exhibit B) in his hands, he
could have testified clearly and distinctly on the provisions of the said lost will, because
he had kept the will in his safe, in his office, for three days, after opening it, and he is
well versed in Spanish language in which the will as written. But did the attesting witness
Go Toh, testify in his deposition and prove clearly and distinctly the provisions of the lost
will? He did not, and he could not have done so even if he tried because the original will
was not read to him nor by him before or at the signing of the same. It was written in
Spanish and he did not and does not understand the Spanish language. Neither was
there any occasion for him to have the contents of the said will, after its execution and
sealing inside the envelope (Exhibit A), read to him because it was opened only when
Judge Teodoro had examined it and then subsequently snatched from Go Toh. Ana
Suntay on rebuttal did not, likewise, prove clearly and distinctly the provisions of the said
lost will because she has not had enough schooling and she does possess adequate
knowledge of the Spanish language as shown by the fact that she had to testify in
Tagalog on the witness standing.

It is evident, therefore, that although the petitioner has established the execution and
validity of the lost will, yet he had not proved clearly and distinctly the provisions of the
will by at least two credible witnesses.

B. As to the Allowance and Recording of the will Executed in Amoy, China. — Jose B.
Suntay, while he was residing in China during the remaining years of his life, executed
also a will, written in Chinese characters, the translation of which is marked Exhibit P. It
was allowed to probate in the District Court of Amoy, China. The question is whether or
not the said will should be allowed and recorded in this jurisdiction.

Section 1 of Rule 78 provides as follows:

"SEC. 1. Will proved outside Philippines any be allowed here. — Will proved and allowed
in the United States, or any state or territory thereof, or in a foreign country, according to
the laws of such state, territory, or country, may be allowed, filed, and recorded by the
proper court of First Instance in the Philippines."

Section 2 of the same Rule also provides:

"SEC. 2. Notice of hearing for allowance. — When a copy of such will and the allowance
thereof, duly authenticated, is filed with a petition for allowance in the Philippines by the
executor or other persons interested, in the Court having jurisdiction, such court shall fix
a time and place for the hearing, and cause notice thereof to be given as in case of an
original will presented for allowance."

Sections 41 and 42 of Rule 123 provides as follows:

"SEC. 41. Proof of Public or official record. — An official record or an entry therein, when
admissible for any purpose, may be evidenced by an official publication thereof or by a
copy attested by the officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate that such
officer has the custody. If the office in which the record is kept is within the United States
or its territory, the certificate may be made by a judge of a court of record of the district
or political subdivision in which the record is kept, authenticated by the seal of the court,
or may be made by any public officer having a seal of the office and having official duties
in the district or political subdivision in which the record is kept, authenticated by the seal
of his office. If the office in which the record is kept is in a foreign country, the certificate
may be made by a secretary of embassy or legation, consul general, consul, vice consul,
or consular agent or by any officer in the foreign service of the United States stationed in
the foreign country in which the record is kept, and authenticated by the seal of his
office."

F. "SEC. 42. What attestation of copy must state. — Whenever a copy of writing is
attested for the purpose of evidence, the attestation must state, in substance, that the
copy is a correct copy of the original, or a specific part thereof, as the case may be. The
attestation must be under the official seal of the attesting officer, if there be any, or if he
be the clerk of a court having a seal, under the seal of such court."

In the case of Yu Changco vs. Tiaoqui, 11 Phil. 598, 599, 600, our Supreme Court said:

"Section 637 of the Code of Civil Procedure says that will proved and allowed in a
foreign country, according to the laws of such country, may be allowed, filed, and
recorded in the Court of First Instance of the province in which the testator has real or
personal estate on which such will may operate; but section 638 requires that the proof
of the authenticity of a will executed in a foreign country must be duly"authenticated".
Such authentication, considered as a foreign judicial record, is prescribed by section
304, which requires the attestation of the clerk or of the legal keeper of the records with
the seal of the court annexed, if there be a seal, together with a certificate of the chief
judge or presiding magistrate that the signature of either of the functionaries attesting the
will is genuine, and, finally, the certification of the authenticity of the signature of such
judge or presiding magistrate, by the ambassador, minister, consul, vice consul or
consular agent of the United States in such foreign country. And, should the will be
considered, from an administrative point of view, as a mere official document 'of a
foreign country', it may be proved, 'by the original, or by a copy certified by the legal
keeper thereof, with a certificate, under the seal of the country or sovereign, that the
document is a valid and subsisting document of such country, and that the copy is duly
certified by the officer having the legal custody of the original. (Sec. 313, par. 8)."

In the case of Fluemer vs. Hix, 54 Phil. 610, 611, 612, and 613, our Supreme Court said:

"It is the theory of the petitioner that the alleged will was executed in Elkins, West
Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction, and that
the laws of West Virginia govern. To this end, there was submitted a copy of section
3868 of Acts 1882, c. 84 as found in West Virginia Code, Annotated, by Hogg, Charles
E., Vol. 2, 1914, p. 1690, and as certified to by the Director of the National Library. But
this was far from compliance with the law. The laws of a foreign jurisdiction do not prove
themselves in our courts. The courts of the Philippine Islands are not authorized to take
judicial notice of the laws of the various States of the American Union. Such laws must
be proved as facts. (In re Estate of Johnson (1918), 39 Phil., 156.) Here the
requirements of the law were not met. There was not showing that the book from which
an extract was taken was printed or published under the authority of the State of West
Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract
from the law attested by the certificate of the officer having charge of the original under
the seal of the State of West Virginia, as provided in section 301 of the Code of Civil
Procedure. No evidence was introduced to show that the extract from the laws of West
Virginia was in force at the time the alleged will was executed.
"It was also necessary for the petitioner to prove that the testator had his domicile in
West Virginia and not in the Philippine Islands. The only evidence introduced to establish
this fact consisted of the recitals in the alleged will and the testimony of the petitioner.

"While the appeal was pending submission in this court, the attorney for the appellant
presented an unverified petition asking the court to accept as part of the evidence the
documents attached to the petition. One of these documents discloses that a paper
writing purporting to be the last will and testament of Edward Randolph Hix, deceased,
was presented for probate on June 8, 1929, to the clerk of Randolph County, State of
West Virginia, in vacation, and was duly proven by the oaths of Dana Vansley and
Joseph L. Madden, the subscribing witnesses thereto, and ordered to be recorded and
filed. It was shown by another document that in vacation, on June 8, 1929, the clerk of
court of Randolph County, West Virginia, appointed Claude E. Maxwell as
administrator, cum testamento annexo, of the estate of Edward Randolph Hix, deceased
... However this may be no attempt has been made to comply with the provisions of
sections 637, 638, and 639 of the Code of Civil Procedure, for no hearing on the
question of the allowance of a will said to have been proved and allowed in West Virginia
has been requested. ... ."

Granting that the will of Jose B. Suntay which was executed in Amoy, China, was validly
done in accordance with the law of the Republic of China on the matter, is it necessary
to prove in this jurisdiction the existence of such law in China as a prerequisite to the
allowance and recording of said will? The answer is in the affirmative as enunciated in
Fluemer vs. Hix, supra, and in Yanez de Barnuevo vs. Fuster, 29 Phil., 606. In the latter
case, the Supreme Court said:

"A foreign law may be proved by the certificate of the officer having in charge of the
original, under the seal of the state or country. It may also be proved by an official copy
of the same published under the authority of the particular state and purporting to
contain such law. (Secs. 300 and 301, Act No. 190.), (Syllabus.)

The provisions of section 300 and 301 of the Code of Civil Procedure (Act No. 190) are
as follows:

"SEC. 300. Printed laws of the State or Country. — Books printed or published under the
authority of the United States, or one of the States of the United States, or a foreign
country, and purporting to contain statutes, codes, or other written law of such State or
country or proved to be commonly admitted in the tribunals of such State or country an
evidence of the written law thereof, are admissible in the Philippine Islands are evidence
of such law."

"SEC. 301. Attested copy of foreign laws. — A copy of the written law or other public
writing of any state or country, attested by the certificate of the officer having charge of
the original, under the seal of the state or country, is admissible as evidence of such law
or writing."

The petitioner has presented in evidence the certification of the Chinese Consul
General, Tsutseng T. Shen, of the existence of the law in China (Exhibit B-3), relative to
the execution and probate of the will executed by Jose B. Suntay in Amoy, China
(Exhibit P). Is that evidence admissible, in view of the provisions of Sections 41 and 42
of the Rules of the Rules of Court. Is the said certification of the Chinese Consul General
in the Philippines a substantial compliance with the provisions of the above mentioned
section 41 and 42 of our Rules of Court?

This court has its doubts as to the admissibility in evidence of the Chinese Consul
General in the Philippines of the existence of the laws of Republic of China relative to
the execution and probate of a will executed in China. Such law may exist in China, but

"An official record or an entry therein, when admissible for any purpose, may be
evidence by an official publication thereof or by a copy attested by the officer having the
legal custody of the record, or by his deputy, and accompanied, if the record is not kept
in the Philippines, with a certificate that such officer has the custody. ... If the office in
which the record is kept is in a foreign country, the certificate may be made by a
secretary of embassy or legation, consul general, consul, vice consul, or consular agent
or by any officer in the foreign service of the United States stationed in the foreign
country in which the record is kept, and authenticated by the seal of his office." (Sec. 41
of Rule 123.)

The law of the Republic of China is a public or official record and it must be proved in
this jurisdiction through the means prescribed by our Rules of Court. It is, therefore,
obvious that the Chinese Counsel General in the Philippines who certified as to the
existence of such law is not the officer having the legal custody of the record, nor is he a
deputy of such officer. And, if the office in which the record is kept is in a foreign country,
the certificate may be made by a secretary of embassy or legation, consul general,
consul, vice consul, or consular agent or by any officer in the foreign service of the
United States stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office.

It is clear, therefore, that the above provisions of the Rules of Court (Rule 123, sec. 41)
not having been complied with, the doubt of this court has been dissipated, and it is of
the opinion and so holds that the certification of the Chinese Consul General alone is not
admissible as evidence in the jurisdiction.

The evidence of record is not clear as to whether Jose B. Suntay, who was born in
China, but resided in the Philippines for a long time, has become a Filipino citizen by
naturalization, or he remained a citizen of the Republic of China. The record does not,
likewise, show with certainty whether or not he had changed his permanent domicile
from the Philippines to Amoy, China. His change of permanent domicile could only be
inferred. But the question of his permanent domicile pales into insignificance in view of
the overtowering fact that the law of China pertinent to the allowance and recording of
the said will in this jurisdiction has been satisfactorily established by the petitioner.

Both the petitioner and the oppositor have extensively urged in their respective
memorandum and in the oral argument in behalf of the oppositor the question of
estoppel. The consideration of the points raised by them would open the door to the
appreciation of the intrinsic validity of the provisions of the will which is not of moment at
the present stage of the proceeding. While the probate of a will is conclusive as to the
compliance with all formal requisites necessary to the lawful execution of the will, such
probate does not affect the intrinsic validity of the provisions of the will. With respect to
the latter the will in governed by the substantive law relative to descent and distribution.
(In re Johnson, 39 Phil., 157).

IN VIEW OF THE FOREGOING, and upon reconsideration, the previous decision


rendered in this case allowing the will (Exhibit B) and allowing and recording the foreign
will (Exhibit P) is set aside; and this court is of the opinion and so holds that the said two
wills should be, as they are hereby disallowed. Without special pronouncement as to
costs.

It is very significant that in the foregoing resolution, the Court of First Instance of Bulacan
"reiterates its finding of the same facts in this resolution," and merely proceeds to pose the sole
question "whether or not the facts established by the petitioner, Silvino Suntay, warrant the
legalization of the lost will and allowance and recording of the will that was executed in Amoy,
China." The somersault executed by the trial court is premised on the ground that "although the
petitioner has established the execution and validity of the lost will, yet he has not proved clearly
and distinctly the provisions of the will by the least two credible witnesses"; and that, assuming
that the will of Jose B. Suntay executed in Amoy, China, was in accordance with the law of the
Republic of China, the certification of the Chinese Consul General in the Philippines as the
existence of such law is not admissible evidence in this jurisdiction. In effect the resolution on
the motion for reconsideration promulgated by the trial court, and the decision of the majority
herein, adopt the position that the testimony of Judge Anastacio Teodoro as to the provisions of
the lost will, while credible and perhaps sufficient in extent, is not corroborated by the witnesses
Go Toh and Ana Suntay and, therefore, falls short of the requirement in section 6, Rule 77, of
the Rules of Court that the provisions of the lost will must be "clearly and distinctly proved by at
least two witnesses." That this requirement was obviously construed, to mean that the exact
provisions are to be established, may be deduced from the following dialogue between his
Honor, Judge Potenciano Pecson, and attorney Teofilo Sison, new counsel for oppositor
Federico C. Suntay, who appeared for the first time at the ex parte hearing of the oppositor's
motion for new trial on September 1, 1949:

COURT: However, Rule 77, Section 6, provides in proving a lost will, the provisions of
the lost will must be distinctly stated and certified by the Judge.

ATTY. TEOFILO SISON: Yes, Your Honor.

COURT: That presupposes that the judge could only certify to the exact provisions of the
will from the evidence presented.

ATTY. TEOFILO SISON: That is our contention, provided that provision is clearly
established by two credible witnesses so that the Court could state that in the decision,
we agree, that is the very point.

(t. s. n. 75, Session of Sept. 1, 1948)

The sound rule, however, as we have found it to be, as to the degree of proof required to
establish the contents of a lost or destroyed will, is that there is sufficient compliance if two
witnesses have substantiated the provisions affecting the disposition of the testator's properties;
and this is especially necessary to prevent the "perpetration of fraud by permitting a
presumption to supply the suppressed proof," to keep a wrong-doer from utilizing the rule as his
"most effective weapon," or to avoid the enjoyment of a "premium from the rascality of one
whose interests might suggest the destruction of a will."

Section 1865 of the Code requires that the provisions of a lost will must be clearly and
distinctly proved by at least two credible witnesses before it can be admitted to probate;
but this section must receive a liberal construction (Hook vs. Pratt, 8 Hun. 102-109) and
its spirit is complied with by holding that it applies only to those provisions which affect
the disposition of the testator's property and which are of the substance of the will.

The allegations of the contents of the will are general, and under ordinary
circumstances, would be in sufficient; but the fact alleged, if proven as alleged, would
certainly authorize the establishment of the will so far as its bequests are concerned. To
require that a copy of the will or the language of the bequests, in detail, should be
pleaded, where no copy has been preserved, and where the memory of the witnesses
does not hold the exact words, would not only deny the substance for mere form, but
would offer a premium upon the rascality of one whose interests might suggest the
destruction of a will. As said in Anderson vs.Irwin, 101 Ill. 411: "The instrument in
controversy having been destroyed without the fault of the defendant in error ... and
there not appearing to be any copy of it in existence, it would be equivalent to denying
the complainant relief altogether to require her to prove the very terms in which it was
conceived. All that could reasonably be required of her under the circumstances could
be to show in general terms the disposition which the testator made of his property by
the instruments; that it purported to be his will and was duly attested by the requisite
number of witnesses." In Allison vs. Allison, 7 Dana 91, it was said in speaking of the
character and extent of proof required in such a case:" nor is there any just ground to
object to the proof because the witnesses have not given the language of the will or the
substance thereof. They have given the substance of the different devises as to the
property or interest devised, and to whom devised and we would not stop, in the case of
a destroyed will, to scan with rigid scrutiny the form of the proof, provided we are
satisfied of the substance of its provisions." (Jose vs. Casler 139 Ind. 392, 38 N. E. 812).

The evidence in the case falls short of establishing the existence of such a writing,
except as it may be presumed, under the maxim Omnia preasumuntur in odium
spoliateris." There was evidence tending to show that the second will of Anne Lambie
was in the possession of Francis Lambie, and that it came to the hands of the
proponents, warranting the inference that it has been suppressed or destroyed. If from
this evidence the jury found such paper destroyed the law permits the presumption that it
was legally drawn and executed, notwithstanding the terms of the statute, which requires
the revoking instrument to be formally executed. If a will be lost, secondary evidence
may be given of its contents; if suppressed or destroyed, the same is true; and, if
necessary the law will prevent the perpetration of a fraud by permitting a presumption to
supply the suppressed proof. We cannot assent to the proposition that the statute is so
right as to be the wrongdoer's most effective weapons. The misconduct once established
to the satisfaction of the jury, it is no hardship to the wrongdoer to say. "Produce the
evidence in your possession, or we will presume that your opponent's contention is true."
When one deliberately destroys, or purposely induces another to destroy, a written
instrument subsequently become a matter of judicial inquiry between the spoliator and
an innocent party, the latter will not be required to make strict proof of the contents of
such instrument in order to establish a right founded thereon. Brook, Leg. Max. 576,
Preston vs. Preston, 132, Atl. 55, 61. (Re Lambie's Estate, 97 Mich, 55,56 N. W. 225)
Judged from the standard set forth in the foregoing authorities, and bearing in mind that the
circumstances of this case lead to the only conclusion that the loss of the will in question is of
course imputable to those whose interests are adverse to the petitioner and the widow Lim
Billian, we have no hesitancy in holding the view that the dispositions of the properties left by
the deceased Jose B. Suntay is provided in his will which was lost or snatched in the manner
recited in the decision of this Court in the case of Lim Billian vs. Suntay, 63 Phil., 798-797, had
been more than sufficiently proved by the testimony of Judge Anastacio Teodoro, Go Toh, and
Ana Suntay, supported conclusively by the draft of the lost will presented in evidence as Exhibit
"B", and even by the testimony of oppositor Federico C. Suntay himself.

It is to be recalled that the trial Judge, in his first decision of April 19, 1948, made the following
express findings with respect to the testimony of Judge Teodoro: "Judge Anastacio Teodoro
testified that he opened the sealed envelope when it was given to him by Go Toh preparatory to
the presentation of the petition for the probate of the said will. As the lawyer entrusted with that
task, he had to examine the will and have it copied to be reproduced or appended to the
petition. He could not do otherwise if he is worth his salt as a good lawyer. He could not perform
the stunt of "blind flying" in the judicial firmament. Every step must be taken with certainty and
precision under any circumstances. He could not have talked about the attorney's fees with Go
Toh, unless he has not examined the will beforehand. And, when he was shown Exhibit B, he
did not hesitate in declaring that it was the exact draft of the will that was inside the envelope
(Exhibit A), the testimony of Atty. Alberto Barretto to the contrary notwithstanding."

We should not forget, in this connection, that in the resolution on the motion for reconsideration
the trial Judge reiterated the findings in his decision, although as regards the testimony of Judge
Teodoro admittedly "the only credible witness who testified as to the provisions of the will," he
observed that Judge Teodoro had the draft Exhibit "B" in his hands while testifying. We cannot
see any justifying for the observation, assuming that Judge Teodoro consulted the draft, since
even the trial Judge granted that he "could have testified clearly and distinctly on the provisions
of the said lost will, because he had kept the will in his safe, in his office, for three days, after
opening it, and he is well versed in Spanish language in which the will was written." As a matter
of fact, however, it is not true that Judge Teodoro had the draft in question before him while
testifying as may be seen from the following passages of the transcript:

Q. And, have you read that will which was inside this envelope, Exhibit A? — "A. Yes.

Q. Do you remember more or less the contents of the will?

ATTY. FERRIN: With our objection, the best evidence is original will itself, Your Honor.

ATTY. RECTO: We are precisely proving by means of secondary evidence, the contents
of the will, because according to the Supreme Court, and that is a fact already decided,
that the will of Jose B. Suntay was lost and that is res adjudicata.

COURT: Witness may answer.

WITNESS: I remember the main features of the will because as I said I was the one
fighting for the postponement of the hearing of the intestate case because I was asked
by Don Alberto Barretto to secure the postponement until the will that was executed by
the deceased is sent here by the widow from China, with whom we communicated with
several letters, and when the will arrived. I had to check the facts as appearing in the
will, and examined fully in connection with the facts alleged in the intestate, and there
was a striking fact in the intestate that Apolonio Suntay has..

ATTY. FERRIN: (Interrupting) May we ask that the witness answer categorically the
questions of Atty. Recto, it seems that the answers of the witness are kilometric ...

ATTY. RECTO: Sometimes the question cannot be answered fully unless the witness
would relate and give all the facts.

COURT: The Attorney for the Administrator may move for the striking out of any
testimony that is not responsive to the question.

ATTY. FERRIN: That is why, our objection, the answer is out of the question.

COURT: Atty. Recto may propound another question.

ATTY. RECTO: I heard the witness was saying something and he has not finished the
sentence, and I want to ask the Court just to allow the witness to finish his sentence.

COURT: You may finish.

WITNESS: "A. There was a sentence, the point I was trying to check first was whether
the value of the estate left by the deceased was SIXTY THOUSAND PESOS
(P60,000.00) as Apolonio Suntay made it appear in his petition, and when I looked at the
original will, I found out that it was several hundred thousand pesos, several thousands
of pesos, hundreds of pesos, that was very striking fact to me because the petition for
intestate was for SIXTY THOUSAND PESOS (P60,000.00), and I came to know that it
was worth more than SEVEN HUNDRED THOUSAND (P700,000.00) PESOS.

Q. Do you remember, Judge, the disposition of the will, the main disposition of the will?
— "A. Yes, because our client were the widow, Maria Natividad Lim Billian, and his son,
Silvino, the only son in the second marriage, that was very important for me to know.

Q. How were the properties distributed according to that will?- "A. The properties were
distributed into three (3) parts, one part which we call legitima corta, were equally
distributed to the ten (10) children, nine (9) in the first marriage, and one (1) in the
second marriage with Maria Natividad Lim Billian. The other third, the betterment was
given to four (4) children, Concepcion, and Apolonio getting a quiet substantial share in
the betterment, around SIXTY THOUSAND (P60,000.00) for Concepcion, Apolonio the
amount of SEVENTY THOUSAND (70,000,00) PESOS or little over, and then about
ONE HUNDRED THOUSAND (P100,000.00) PESOS of the betterment in favor of
Silvino, the minor of the second marriage, and to Jose equal to Concepcion.

Q. So the betterment, as I understand from you went to four (4) children?-"A. Yes.

Q. Silvino in the second marriage, Concepcion, Apolonio and Jose in the first marriage?
— " A. Yes.
Q. What about the free disposal?-" A. The free disposal was disposed in favor of the
widow, Maria Natividad Lim Billian and Silvino, his minor son in equal parts..

Q. What about, if you remember, if there was something in the will in connection with
that particular of the usufruct of the widow? — "A. It was somewhat incorporated into the
assets of the estate left by the deceased.

Q. Do you remember the number of pages of which that will consisted? — "A. Twenty-
three (23) pages.

Q. Do you remember if the pages were signed by the testator? — "A. Yes, sir, it was
signed.

Q. And the foot of the testament or the end of the testament, was it signed by the
testator? — "A. Yes, sir, and the attestation clause was the last page signed by the three
instrumental witnesses, Alberto Barretto, one Chinaman Go Toh, and Manuel Lopez, my
former Justice of the Peace of Hagonoy.

Q. Do you remember if there witnesses signed on the different pages of the will? — "A.
Yes, sir, they signed with their name signatures.

Q. Showing you this document consisting of twenty-three (23) pages in Spanish and
which document appears already attached to this same testamentary proceedings and
already marked as EXHIBIT B, will you please tell the Court if and for instance on page
eight (8) of this document, pagina octavo, it says, there are handwritings in pencil, some
of which read as follows: "Los cinco-octavos (5/8) partes corresponds a mi hijo
Emiliano", can you recognize whose handwriting is that? — "A. From my best estimate it
is the handwriting of Don Alberto Barretto.

Q. About the end of the same page eight (8) pagina octavo, of the same document
Exhibit B, there is also the handwriting in pencil which reads: "La otra sexta parte (6.a)
corresponde a Bonifacio Lopez", can you recognize that handwriting? — "A. Yes, sir,
this is the handwriting of Don Alberto Barretto, and I wish to call the attention of the
Court to compare letter "B" which is in capital letter with the signature of Don Alberto
Barretto in the envelope, "Alberto Barretto" and stroke identifies one hand as having
written those words.

Q. Will you please go over cursorily this document, Exhibit B composed of twenty-three
(23) pages and please tell the Court if this document had anything to do with the will
which according to you was contained in the envelope, Exhibit A? — "A. This is exactly
the contents of the original will which I received and kept in my office inside the safe for
three (3) days, and I precisely took special case in the credits left by the deceased, and I
remember among them, were the De Leon family, and Sandiko, well known to me, and
then the disposition of the estate, divided into three (3) equal parts, and I noticed that
they are the contents of the will read.

His Honor, Judge Pecson, was positive in his first decision that "the testimony of Judge
Anastacio Teodoro is corroborated by Go Toh, one of the attesting witnesses, in his deposition
(Exhibit D-1)." Yet in setting aside his first decision, he remarked that Go Toh's testimony did
not prove clearly and distinctly the provision of the lost will, because: "He did not, and he could
not have done so even if he tried because the original will was not read to him nor by him before
or at the signing of the same. It was written in Spanish and he did not and does not understand
the Spanish language. Neither was there any occasion for him to have the contents of the said
will, after its execution and sealing inside the envelope (Exhibit A), read to him, because it was
opened only when Judge Teodoro had examined it and then subsequently snatched from Go
Toh."

The later position thus taken by Judge Pecson is palpably inconsistent with the following
unequivocal statements of Go Toh contained in hid disposition taken in Amoy, China, on April
17, 1938, and in oppositor's Exhibit "6":

26. State what you know of the contents of that will.

. . . . Regarding (1) expenditures (2) Philippine citizenship; (3) Distribution of estates


among children (4) Taking care of grave lot; (5) guardianship of Silvino Suntay and (6)
after paying his debts he will have approximately 720,000 pesos left. This amount will be
divided into three equal parts of 240,000 pesos each. The first part is to be divided
equally among the ten children born by the first and second wives and the second part
among the three sons Silvino Suntay, 75,000 approximately; Apolonio Suntay, 50,000
pesos approximately; Jose Suntay and Concepcion Suntay, 36,000 each approximately.
The third part is to be divided between Maria Lim Billian and Silvino Suntay; each will get
approximately 110,000 pesos. Silvino Suntay will get a total of 210,000 pesos
approximately, Maria Natividad Lim Billian a total of 290,000 approximately, and
Apolonio Suntay a total of 80,000 approximately, Concepcion Suntay and Jose Suntay
will get 60,000 pesos each approximately. The rest of the children will get approximately
29,000 each. The way of distribution of the property of Jose B. Suntay, movable and
immovable, and the outstanding debts to be collected was arranged by Jose B. Suntay.

xxx xxx xxx

78. On the occasion of the execution of the testament of Jose B. Suntay, state whether
or not you say Exhibit B — ... Yes.

79. In the affirmative case, state if you know who had the possession of Exhibit B and
the testament the first time you saw them on that occasion. — ... Yes, I know who had
possession of them.

80. Can you say whether or not Jose B. Suntay happened to get those documents later
on, on that same occasion? — ... He got them after the execution.

81. Please name the person who gave those documents to Mr. Suntay. — ... Alberto
Barretto gave the documents to Jose B. Suntay.

82. Did the person who gave those documents to Suntay say anything to him (Suntay) at
the time of giving them? — ... Yes.

83. If so what was it that he said, if he said any? — ... He said, "You had better see if
you want any correction."
84. What did Mr. Suntay do after those documents were given to him? — ... Jose B.
Suntay looked at them and then gave one copy to Manuel Lopez for checking.

85. State whether or not Mr. Suntay gave one of those documents to another man. — ...
Yes.

86. In the affirmative case, can you say which of the two documents was given and who
the man was? — ... Yes he gave Exhibit B to Manuel Lopez.

87. State whether or not Mr. Suntay said something to the man to whom he gave one of
those documents. — ... Yes.

88. In the affirmative case can you repeat more or less what Mr. Suntay said to that
man? — ... He told him to read it for checking.

89. State if you know what did the man do with one of those documents given to him. —
... He took it and read it for checking.

90. What did in turn Mr. Suntay do with the other one left with him? — ... Jose B. Suntay
looked at the original and checked them.

91. What was done with those documents later on if there was anything done with them?
— ... After checking, Jose B. Suntay put Exhibit B in his pocket and had the original
signed and executed.

92. What was done with the testament of Jose B. Suntay after it was signed by the
testator and its witnesses? — ... It was taken away by Jose B. Suntay. (Exhibit D, D-1.)

Q. Did you know the contents of this envelope? — "A. I knew that it was a will.

Q. But did you know the provisions of the will? — "A. It is about the distribution of the
property to the heirs.

Q. Did you know how the property was distributed according to the will? — "A. I know
that more than P500,000 was for the widow and her son, more than P100,000 for the
heirs that are in the family. (Exhibit "6", p. 28).

Q. You stated that you were one of the witnesses to the will and that the will was written
in Spanish. Was it written in typewriting or in handwriting of somebody? — "A. That will
was written in typewriting.

Q. Did you read the contents of that will, or do you know the contents of that will? — A.
No, sir, because I do not know Spanish.

Q. How do you know that it was the will of Jose B. Suntay ? — "A. Because I was one of
the signers and I saw it." (Exhibit "6", p. 19.)

22. Do you understand the language in which that will was written? — ... I know a little
Spanish.
23. Do you talk or write that language? I can write and talk a little Spanish. (Exhibits D,
D-1.)

As to Ana Suntay's corroborating testimony, Judge Pecson aptly made the following findings:
"Ana Suntay, one of the heirs and who would be affected adversely by the legalization of the will
in question, also testified on rebuttal that she saw the original will in the possession of Manuel
Suntay immediately after the snatching. She read it and she particularly remembers the manner
in which the properties were to be distributed. Exhibit B was shown to her on the witness stand
and she declared that the provision regarding the distribution of the properties in said Exhibit B
is the same as that contained in the original will. Said testimony of Ana Suntay, therefore, belies
the testimony of Atty. Alberto Barretto." And yet in the resolution on the motion for new trial, the
trial Judge had to state that "Ana Suntay on rebuttal did not, likewise, prove clearly and distinctly
the provisions of the said lost will, because she has not had enough schooling and she does not
possess adequate knowledge of the Spanish language as shown by the fact that she had to
testify in Tagalog on the witness stand." The potent error committed by Judge Pecson in
reversing his views as regards Ana's testimony, is revealed readily in the following portions of
the transcript:

P. Cuantas paginas tenia aquel documento a que usted se refiere? — "R.


Probablemente seria mas de veinte (20) paginas.

P. No serian treinta (30) paginas? — "Abogado Recto: La testigo ha contestado ya que


mas de veinte (20).

Juzgado: Se estima

Abogado Mejia:

P. Usted personalmente leyo el documento" — "R. Yo leyo mi hermano en presencia


mia.

P. La pregunta es, si usted personalmente ha leido el documento? — " R. Si, lo he visto.

P. No solamente le pregunto a usted si Vd. ha visto el testamento sino si usted ha leido


personalmente el testamento? — "R. Si la parte de la adjudicacion lo he leido para
asegurarme a que porcion corresponde a cada uno de nosotros.

P. Puede usted repetir poco mas o menos esa porcion a que se hacia la distribucion del
alegado testamento? — "R. Como ya he declarado, que las propiedades de mi difunto
padre se habian dividido en tres partes, una tercera parte se nos adjudica a nosotros
diez (1) hijos en primeros nupcias y segunda nupcia, la segunda tercera parte los
adjudica a la viuda y a Silvino, y la otra tercera parte se lo adjudica a sus hijos como
mejora a Silvino, Apolonio, Concepcion y Jose.

P. Eso, tal como usted personalmente lo leyo en el documento? — "R. Si Señor.

P. Quiere usted tener la bondad, señora, de repetir poco mas o menos las palabras en
ese documento que se distribuia las propiedades del defundo padre usted como usted
relata aqui? "Abogado Recto: Objetamos a la pregunta por falta de base, porque elle
solamente se fijo en la parte como se distribuian las propiedades pero no ha dicho la
testigo que ella lo ha puesto de memoria, ni Vd. ha preguntado en que lenguaje estaba
escrito el testamento ...

Juzgado: Se estima.

Abogado Mejia:

P. Sabe usted en que lenguaje estaba redactado el documento que usted leyo
personalmente? — "R. En Castellano.

P. Puede usted repetirnos ahora en Castellano algunas frases o palabras como se hizo
la distribucion en aquel supuesto testamento? —

Abogado Recto: Objecion, por falta de base, uno puede entender el español y sin
embargo no podra repetir lo que ha leido, y no se sabe todavia si ha estudiado el
español bastante hasta el punto de poder hablarlo.

Juzgado: Se estima.

Abogado Mejia

P. Usted dijo que estaba puesto en castellano el supuesto testamento que Vda. leyo,
usted poso el castellano? — "R. Yo entiendo el castellano, pero no puedo hablar bien.

P. Usted estudio el castellano en algun colegio? — "Rj. Si, señor, En Sta. Catalina.

P. Cuantos años? — "R. Nuestros estudios no han sido continuous porque mi padre nos
ingresaba en el colegio y despues nos sacaba para estar afuera, y no era continuo
nuestro estudio.

P. Pero en total, como cuantos meses o años estaba usted en el colegio aprendiendo el
castelano? — "R. Unos cuatro o cinco años.

P. Entonces usted puede leer el castellano con facilidad, señora? — "R. Si, castellano
sencillo puedo entender y lo puedo leer.

P. Usted entiende las preguntas que se le dirigian aqui en castellano sin interpretacion o
sin el interprete? — "R. Si, Señor.

P. Puede usted contestar en castellano? — "R. Bueno, pero como de contestar, por eso
quiero que la pregunta se me traduzca antes. asi puedo contestar debidamente. (t.s.n.
pp. 533-534.)

We are really at a loss to understand why, without any change whatsoever in the evidence, the
trial Judge reversed his first decision, particularly when he announced therein that "it is now
incumbent upon this court to delve into the evidence whether or not Jose B. Suntay, deceased,
left a will (the draft of which is Exhibit B) and another will which was executed and probated in
Amoy, China." His action is indeed surprising when we take into account the various
circumstancial features presently to be stated, that clearly confirm the testimony of Judge
Anastacio Teodoro, G. Toh and Ana Suntay, or otherwise constitute visible indicia of oppositor's
desire to frustrate the wishes of his father, Jose B. Suntay.

In our opinion the most important piece of evidence in favor of the petitioner's case is the draft
of the lost will, Exhibit "B." Its authenticity cannot be seriously questioned, because according to
the trial Judge himself, oppositor's own witness, Atty. Alberto Barretto, admitted it to be
"identical in substance and form to the second draft which he prepared in typewriting." Indeed,
all the "A's" and "B's" in the handwritten insertions of the draft are very similar to those in
Barretto's admittedly genuine signature on the envelope, Exhibit "A." The finding of Judge
Pecson on the point in his first decision (reiterated expressly in the resolution on the motion for
new trial), should control, not only because it is in accordance with the evidence but because
the oppositor had failed and did not even attempt to have the trial Judge reconsider or reverse
his factual conclusions. The draft, Exhibit "B," having been positively identified by the witnesses
for the petitioner to be an exact copy of the lost will of Jose B. Suntay, is therefore conclusive.
Oppositor's effort to show that said draft was never signed in final form, and was thought of
merely to deceive petitioner's mother, Lim Billian, and that the will actually executed and put in
the envelope, Exhibit "A", provided that the testator's estate would be divided equally among his
heirs, as in the case of intestacy, was necessarily futile because, if this allegation is true, the will
would not have been "snatched" from Go Toh — and the loss certainly cannot be imputed to the
widow Lim Billian or the petitioner; the snatched will would have been produced to put an end to
petitioner's and his mother's claim for greater inheritance or participation under the lost will; and
the envelope containing the first will providing for equal shares, would not have been entrusted
to the care and custody of the widow Lim Billian.

It is very noteworthy that out of the nine children of the first marriage, only Angel, Jose and
Federico Suntay had opposed the probate of the will in question; the rest, namely, Ana, Aurora,
Concepcion, Lourdes, Manuel and Emiliano Suntay, having expressly manifested in their
answer that they had no opposition thereto, since the petitioner's alternative petition "seeks only
to put into effect the testamentary disposition and wishes of their late father." This attitude is
significantly an indication of the justness of petitioner's claim, because it would have been to
their greater advantage if they had sided with oppositor Federico Suntay in his theory of equal
inheritance for all the children of Jose B. Suntay. Under the lost will or its draft Exhibit "B", each
of the Suntay children would receive only some P 25,000.00, whereas in case of intestacy or
under the alleged will providing for equal shares, each of them would receive some
P100,000.00. And yet the Suntay children other than Angel, Jose and Federico had chosen to
give their conformity to the alternative petition in this case.

Another unequivocal confirmation of the lost will is the will which Jose B. Suntay executed in
Amoy, Fookien, China, on January 4, 1931, and probated in Amoy District Court, China,
containing virtually the same provisions as those in the draft Exhibit "B". What better evidence is
there of an man's desire or insistence to express his last wishes than the execution of a will
reiterating the same provisions contained in an earlier will. Assuming that the Chinese will
cannot be probated in the jurisdiction, its probative value as corroborating evidence cannot be
ignored.

Oppositor himself had admitted having read the will in question under which the widow Lim
Billian was favored; and this again in a way goes to corroborate the evidence for the petitioner
as to the contents of the will sought to be probated.

COURT:
Q. Have you read the supposed will or the alleged will of your father? — "A. Yes, sir.

COURT:

Q. Can you tell the court the share or participation in the inheritance of Maria Natividad
Lim Billian according to the will? —

A. Yes sir, she will inherit, I think, two-thirds (2/3) of the estate, in other words she is the
most favored in the will, so when they sold that, they sold everything, they are selling
everything even the conjugal property. (t. s. n. 228-229.)

The decision of the majority leans heavily on the testimony of Atty. Alberto Barretto, forgetful
perhaps of the fact that the trial Judge gave no credence to said witness. It should be repeated
that Judge Pecson reiterated in the resolution on the motion for new trial all his findings in the
first decision. If as Atty. Barretto testified, Lim Billian was entitled under the will actually signed
by Jose Suntay only to P10,000.00, in addition to properties in China value at P15,000.00, the
fees of P25,000.00 admittedly asked by him would absorb her entire inheritance; and this would
normally not be done by any law practitioner. Upon the other hand, there is evidence to the
effect that Atty. Barretto might have become hostile to the petitioner and his mother Lim Billian
in view of the latter's refusal to agree to the amount of P25,000.00 and her offer to pay only
P100.00. There is also evidence tending to show that as early as 1942, Atty. Barretto was paid
by oppositor Federico Suntay the sum of P16,000.00 which, although allegedly for services in
the testate proceedings, was paid out of the personal funds of said oppositors to supply Atty.
Barretto's needs. This circumstances perhaps further explains why the latter had to support the
side of Federico Suntay.

We have quoted in full the decision of this court in the "snatching" case and the first decision of
Judge Pecson in this case, both in the hope and in the belief (1) that the first would reveal the
manner by which those adversely affected had planned to prevent the last wishes of the
deceased Jose B. Suntay from being carried on, and (2) that the second, by the facts correctly
recited therein and by the force and accuracy of its logic would amply show the weakness and
utter lack of foundation of the resolution on the motion for reconsideration. We have set forth at
length pertinent portions of the testimony of various witnesses to demonstrate more plainly the
plausibility of the original decision of Judge Pecson, and the latter's consequent bad judgment in
having forced himself to accomplish a somersault, a feat which the majority, in my opinion, have
mistakenly commended. We have found this to be one of the cases of this court in which we
have had occasion to participate, where there can be absolutely no doubt as to the result —
outright reversal — for which, with due respect to the majority opinion, we vote without
hesitancy.

Montemayor and Jugo, JJ., concur.

RESOLUTION

5 November 1954

PADILLA, J.:
This is a motion for reconsideration of the decision promulgated on 31 July 1954, affirming the
decree of the Court of First Instance of Bulacan which disallowed the alleged last will and
testament executed in November 1929 and the alleged last will and testament executed in
Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay, without pronouncement as to
costs, on grounds that will presently be taken up and discussed.

Appellant points to an alleged error in the decision where it states that —

. . . This petition was denied because of the loss of said will after the filing of the petition
and before the hearing thereof, . . .

because according to him the "will was lost before not after (the) filing of the petition." This slight
error, if it is an error at all, does not, and cannot, after the conclusions and pronouncements
made in the judgment rendered in the case. In his alternative petition the appellant alleges:

4. That on October 15, 1934, Marian Natividad Lim Billian, the mother of herein
petitioner filed a petition in this court for the allowance and probate of a last will and
testament executed, and signed in the Philippines in the year 1929 by said deceased
Jose B. Suntay. (P. 3, amended record on appeal.)

If such will and testament was already lost or destroyed at the time of the filing of the petition by
Maria Natividad Lim Billian (15 October 1934), the appellant would have so stated and alleged.
If Anastacio Teodoro, a witness for the appellant, is to be believed when he testified —

. . . that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948), ... Go
Toh arrived at his law office in the De Los Reyes Building and left an envelope wrapped
in red handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 19470 . . .

and —

If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro and
returned by the latter to the former because they could not agree on the amount of fees,
...

then on 15 October 1934, the date of the filing of the petition, the will was not yet lost. And if the
facts alleged in paragraph 5 of the appellant's alternative petition which states:

That this Honorable Court, after hearing, denied the aforesaid petition for probate filed
by Maria Natividad Lim Billian in view of the loss and/or destruction of said
will subsequent to the filing of said petition and priorto the hearing thereof, and the
alleged insufficiency of the evidence adduced to established the loss and/or destruction
of the said will, (Emphasis supplied, P. 3, amended record on appeal.)

may be relied upon, then the alleged error pointed out by the appellant, if it is an error, is due to
the allegation in said paragraph of his alternative petition. Did the appellant allege the facts in
said paragraph with reckless abandon? Or, did the appellant make the allegation as erroneously
as that which he made in paragraph 10 of the alternative petition that "his will which was lost
and ordered probated by our Supreme Court in G. R. No. 44276, above referred to?" (P. 7,
amended record on appeal.) This Court did not order the probate of the will in said case
because if it did, there would have been no further and subsequent proceedings in the case
after the decision of this Court referred to had been rendered and had become final. Be that as
it may, whether the loss of the will was before or subsequent to the filing of the petition, as
already stated, the fact would not affect in the slightest degree the conclusions and
pronouncements made by this Court.

The appellant advances the postulate that the decision of this Court in the case of Lim Billian vs.
Suntay, G. R. No. 44276, 63 Phil., 793, constitutes res judicata on these points: (a) that only
one will was prepared by attorney Barretto, and (b) that the issue to be resolved by the trial
court was whether the draft (Exhibit B) is a true copy or draft of the snatched will, and contends
that these points already adjudged were overlooked in the majority opinion. The decision of this
Court in the case referred to does not constitute res judicata on the points adverted to by the
appellant. The only point decided in that case is that "the evidence is sufficient to establish the
loss of the document contained in the envelope." In the opinion of this Court, this circumstance
justified "the presentation of secondary evidence of its contents and of whether it was executed
with all the essential and necessary legal formalities." That is all that was decided. This Court
further said:

The trial of this case was limited to the proof of loss of the will, and from what has taken
place we deduce that it was not petitioner's intention to raise, upon the evidence
adduced by her, and other points involved herein, namely, as we have heretofore
indicated, whether Exhibit B is a true copy of the will and whether the latter was
executed with all the formalities required by law for its probate. The testimony of Alberto
Barretto bears importantly in this connection. (P. 796, supra.)

Appellant's contention that the question before the probate court was whether the draft (Exhibit
B) is a true copy or draft of the snatched will is a mistaken interpretation and view of the
decision of this Court in the case referred to, for if this Court did make that pronouncement,
which, of course, it did not, such pronouncement would be contrary to law and would have been
a grievous and irreparable mistake, because what the Court passed upon and decided in that
case, as already stated, is that there was sufficient evidence to prove the loss of the of the will
and that the next step was to prove by secondary evidence its due execution in accordance with
the formalities of the law and its contents, clearly and districtly, by the testimony of at least two
credible witnesses.1

The appellant invokes Rule 133 to argue that Rule 77 should not have been applied to the case
but the provisions of section 623 of the Code of Civil Procedure (Act No. 190), for the reason
that this case had been commenced before the Rules of Court took effect. But Rule 133 cited by
the appellant provides:

These rules shall take effect on July 1, 1940. They shall govern all cases brought after
they take effect, andalso all further proceedings in cases then pending, except to the
extent that in the opinion of the court their application would not be feasible or would
work injustice, in which event the former procedure shall apply.(Emphasis supplied.)

So, Rule 77 applies to this case because it was a further proceedings in a case then pending.
But even if section 623 of the Code of Civil Procedure were to be applied, still the evidence to
prove the contents and due execution of the will and the fact of its unauthorized destruction,
cancellation, or obliteration must be established "by full evidence to the satisfaction of the
Court." This requirement may even be more strict and exacting than the two-witness rule
provided for in section 6, Rule 77. The underlying reason for the exacting provisions found in
section 623 of Act No. 190 and section 6, Rule 77, the product of experience and wisdom, is to
prevent imposters from foisting, or at least to make for them difficult to foist, upon probate courts
alleged last wills or testaments that were never executed.

In commenting unfavorably upon the decree disallowing the lost will, both the appellant and the
dissenting opinion suffer from an infirmity born of a mistaken premise that all the conclusions
and pronouncements made by the probate court in the first decree which allowed the probate of
the lost will of the late Jose B. Suntay must be accepted by this Court. This is an error. It must
be borne in mind that this is not a petition for a writ of certiorari to review a judgment of the
Court of Appeals on questions of law where the findings of fact by said Court are binding upon
this Court. This is an appeal from the probate court, because the amount involved in the
controversy exceeds P50,000, and this Court in the exercise of its appellate jurisdiction must
review the evidence and the findings of fact and legal pronouncements made by the probate
court. If such conclusions and pronouncements are unjustified and erroneous this Court is in
duty bound to correct them. Not long after entering the first decree the probate court was
convinced that it had committed a mistake, so it set aside the decree and entered another. This
Court affirmed the last decree not precisely upon the facts found by the probate court but upon
facts found by it after a careful review and scrutiny of the evidence, parole and documentary.
After such review this Court has found that the provisions of the will had not been established
clearly and distinctly by at least two credible witnesses and that conclusion is unassailable
because it is solidly based on the established facts and in accordance with law.

The appellant and the dissent try to make much out of a pleading filed by five (5) children and
the widow of Apolonio Suntay, another child of the deceased by the first marriage, wherein they
state that —

. . . in answer to the alternative petition filed in these proceedings by Silvino Suntay,


through counsel, dated June 18, 1947, to this Honorable Court respectfully state that,
since said alternative petition seeks only to put into effect the testamentary disposition
and wishes of their late father, they have no opposition thereto. (Pp. 71-72, amended
record on appeal.)

Does that mean that they were consenting to the probate of the lost will? Of course not. If the
lost will sought to be probated in the alternative petition was really the will of their late father,
they, as good children, naturally had, could have, no objection to its probate. That is all that their
answer implies and means. But such lack of objection to the probate of the lost will does not
relieve the proponent thereof or the party interested in its probate from establishing its due
execution and proving clearly and distinctly the provisions thereof at least two credible
witnesses. It does not mean that they accept the draft Exhibit B as an exact and true copy of the
lost will and consent to its probate. Far from it. In the pleading copied in the dissent, which the
appellant has owned and used as argument in the motion for reconsideration, there is nothing
that may bolster up his contention. Even if all the children were agreeable to the probate of said
lost will, still the due execution of the lost will must be established and the provisions thereof
proved clearly and distinctly by at least two credible witnesses, as provided for in section 6, Rule
77. The appellant's effort failed to prove what is required by the rule. Even if the children of the
deceased by the first marriage, out of generosity, were willing to donate their shares in the
estate of their deceased father or parts thereof to their step mother and her only child, the
herein appellant, still the donation, if validly made, would not dispense with the proceedings for
the probate of the will in accordance with section 6, Rule 77, because the former may convey by
way of donation their shares in the state of their deceased father or parts thereof to the latter
only after the decree disallowing the will shall have been rendered and shall have become final.
If the lost will is allowed to probate there would be no room for such donation except of their
respective shares in the probated will.

The part of the deposition of Go Toh quoted in the motion for reconsideration which appellant
underscores does not refer to Go Toh but to Manuel Lopez. Even if Go Toh heard Manuel
Lopez read the draft (Exhibit B) for the purpose of checking it up with the original held and read
by Jose B. Suntay, Go Toh should not have understood the provisions of the will because he
knew very little of the Spanish language in which the will was written (answer to 22nd and 23rd
interrogatories and to X-2 cross-interrogatory). In fact, he testifies in his deposition that all he
knows about the contents of the lost will was revealed to him by Jose B. Suntay at the time it
was executed (answers to 25th interrogatory and to X-4 and X-8 cross-interrogatories); that
Jose B. Suntay told him that the contents thereof are the same as those of the draft [Exhibit B]
(answers to 33rd interrogatory and to X-8 cross-interrogatory); that Mrs. Suntay had the draft of
the will (Exhibit B) translated into Chinese and he read the translation (answer to the 67th
interrogatory); that he did not read the will and did not compare it (check it up) with the draft
[Exhibit B] (answers to X-6 and X-20 cross-interrogatories). We repeat that —

. . . all of Go Toh's testimony by deposition on the provisions of the alleged lost will is
hearsay, because he came to know or he learned of them from information given him by
Jose B. Suntay and from reading the translation of the draft (Exhibit B) into Chinese.

This finding cannot be contested and assailed.

The appellant does not understand how the Court came to the conclusion that Ana Suntay, a
witness for the appellant could not have read the part of the will on adjudication. According to
her testimony "she did not read the whole will but only the adjudication," which, this Court found,
"is inconsistent with her testimony in chief (to the effect) that "after Apolonio read that portion,
then he turned over the document of Manuel, and he went away." (P. 528, t. s. n., hearing of 24
February 1948.) And appellant asks the question: "Who went away? Was it Manuel or
Apolonio?" In answer to his own question the appellant says: "The more obvious inference is
that it was Apolonio and not Manuel who went away." This inference made by the appellant not
only is not obvious but it is also illogical, if it be borne in mind that Manuel came to the house of
Apolonio and it happened that Ana was there, according to her testimony. So the sentence "he
went away" in Ana's testimony must logically and reasonably refer to Manuel, who was a caller
or visitor in the house of his brother Apolonio and not to the latter who was in his house. If it was
Apolonio who "went away," counsel for the appellant could have brought that out by a single
question. As the evidence stands could it be said that the one who went away was Apolonio and
not Manuel? The obvious answer is that it was Manuel. That inference is the result of a straight
process of reasoning and clear thinking.

There is a veiled insinuation in the dissent that Alberto Barretto testified as he did because he
had been paid by Federico C. Suntay the sum of P16,000. Federico C. Suntay testifies on the
point thus —

Q. You mentioned in your direct testimony that you paid certain amount to Atty. Alberto
Barretto for services rendered, how much did you pay? — A. Around SIXTEEN
THOUSAND (P16,000.00).

Q. When did you make the payment? — A. During the Japanese time.
Q. Did you state that fact in any accounts you presented to the Court? — A. I do not
quite remember that.

. . . (P. 180, t. s. n., hearing of 24 October 1947.)

Q. When you made that payment, was (it) your intention to charge it to the state or to
collect it later from the estate? — A. Yes, sir.

Q. More or less when was such payment made, during the Japanese time, what
particular month and year, do you remember? — A. I think in 1942.

Q. And you said you paid him because of services he rendered? — A. Upon the order to
the Court.

Q. And those services were precisely because he made a will and he made a will which
was lost, the will of Jose B. Suntay? ... (P. 181, t. s. n., supra.) — A. I think I remember
correctly according to ex-Representative Vera who is the administrator whom I followed
at that time, that was paid according to the services rendered by Don Alberto Barretto
with regard to our case in the testamentaria but he also rendered services to my father.

Q. At least your Counsel said that there was an order of the Court ordering you to pay
that, do you have that copy of the order? — A. Yes, sir, I have, but I think that was
burned. (P. 184, t. s. n., supra.).

So the sum of P16,000 was paid upon recommendation of the former administrator and order of
the probate court for services rendered by Alberto Barretto not only in the probate proceedings
that also for services rendered to his father. But if this sum of P16,000 paid to Alberto Barretto
upon recommendation of the previous administrator and order of the probate court for
professional services rendered in the probate proceedings and to the deceased in his lifetime be
taken against his truthfulness and veracity as to affect adversely his testimony, what about the
professional services of Anastacio Teodoro who appeared in this case as one of the attorneys
for the petitioner-appellant? (P. 2, t. s. n., hearing of 13 October 1947.)Would that not likewise
or by the same token affect his credibility? It is the latter's interest more compelling than the
former's?

For the foregoing reasons, the motion for reconsideration is denied.

Pablo, Bengzon, Reyes, A. and Concepcion, JJ., concur.

Paras, C.J., dissenting:

For the same reasons and considerations set forth in detail in my dissent promulgated on July
31, 1954, I vote to grant the motion for reconsideration.

Montemayor and Jugo, JJ., concur.


Footnotes
1
Section 6, Rule 77.

1. Proof of Foreign Law


PCIB VS 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 given the right to make any changes in the physical
properties of said estate, by sale or any part thereof which he may think best,
and the purchase of any other or additional property as he may think best; to
execute conveyances with or without general or special warranty, conveying in
fee simple or for any other term or time, any property which he may deem proper
to dispose of; to lease any of the real property for oil, gas and/or other minerals,
and all such deeds or leases shall pass the absolute fee simple title to the
interest so conveyed in such property as he may elect to sell. All rents,
emoluments and income from said estate shall belong to him, and he is further
authorized to use any part of the principal of said estate as he may need or
desire. It is provided herein, however, that he shall not sell or otherwise dispose
of any of the improved property now owned by us located at, in or near the City
of Lubbock, Texas, but he shall have the full right to lease, manage and enjoy the
same during his lifetime, above provided. He shall have the right to subdivide any
farm land and sell lots therein. and may sell unimproved town lots.
FOURTH: At the death of my said husband, Charles Newton Hodges, I give,
devise and bequeath all of the rest, residue and remainder of my estate, both
real and personal, wherever situated or located, to be equally divided among my
brothers and sisters, share and share alike, namely:

Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Saddie Rascoe, Era
Roman and Nimroy Higdon.

FIFTH: In case of the death of any of my brothers and/or sisters named in item
Fourth, above, prior to the death of my husband, Charles Newton Hodges, then it
is my will and bequest that the heirs of such deceased brother or sister shall take
jointly the share which would have gone to such brother or sister had she or he
survived.

SIXTH: I nominate and appoint my said husband, Charles Newton Hodges, to be


executor of this, my last will and testament, and direct that no bond or other
security be required of him as such executor.

SEVENTH: It is my will and bequest that no action be had in the probate court, in
the administration of my estate, other than that necessary to prove and record
this will and to return an inventory and appraisement of my estate and list of
claims. (Pp. 2-4, Petition.)

This will was subsequently probated in aforementioned Special Proceedings No. 1307 of
respondent court on June 28, 1957, with the widower Charles Newton Hodges being appointed
as Executor, pursuant to the provisions thereof.

Previously, on May 27, 1957, the said widower (hereafter to be referred to as Hodges) had been
appointed Special Administrator, in which capacity he filed a motion on the same date as
follows:

URGENT EX-PARTE MOTION TO ALLOW OR AUTHORIZE PETITIONER TO


CONTINUE THE BUSINESS IN WHICH HE WAS ENGAGED AND TO
PERFORM ACTS WHICH HE HAD BEEN DOING WHILE DECEASED WAS
LIVING

Come petitioner in the above-entitled special proceedings, thru his undersigned attorneys, to the
Hon. Court, most respectfully states:

1. — That Linnie Jane Hodges died leaving her last will and testament, a copy of
which is attached to the petition for probate of the same.

2. — That in said last will and testament herein petitioner Charles Newton
Hodges is directed to have the right to manage, control use and enjoy the estate
of deceased Linnie Jane Hodges, in the same way, a provision was placed in
paragraph two, the following: "I give, devise and bequeath all of the rest, residue
and remainder of my estate, to my beloved husband, Charles Newton Hodges, to
have and (to) hold unto him, my said husband, during his natural lifetime."
3. — That during the lifetime of Linnie Jane Hodges, herein petitioner was
engaged in the business of buying and selling personal and real properties, and
do such acts which petitioner may think best.

4. — That deceased Linnie Jane Hodges died leaving no descendants or


ascendants, except brothers and sisters and herein petitioner as executor
surviving spouse, to inherit the properties of the decedent.

5. — That the present motion is submitted in order not to paralyze the business
of petitioner and the deceased, especially in the purchase and sale of properties.
That proper accounting will be had also in all these transactions.

WHEREFORE, it is most respectfully prayed that, petitioner C. N. Hodges


(Charles Newton Hodges) be allowed or authorized to continue the business in
which he was engaged and to perform acts which he had been doing while
deceased Linnie Jane Hodges was living.

City of Iloilo, May 27, 1957. (Annex "D", Petition.)

which the respondent court immediately granted in the following order:

It appearing in the urgent ex-parte motion filed by petitioner C. N. Hodges, that


the business in which said petitioner and the deceased were engaged will be
paralyzed, unless and until the Executor is named and appointed by the Court,
the said petitioner is allowed or authorized to continue the business in which he
was engaged and to perform acts which he had been doing while the deceased
was living.

SO ORDERED.

City of Iloilo May 27, 1957. (Annex "E", Petition.)

Under date of December 11, 1957, Hodges filed as such Executor another motion thus:

MOTION TO APPROVE ALL SALES, CONVEYANCES, LEASES,


MORTGAGES THAT THE EXECUTOR HAD MADE FURTHER AND
SUBSEQUENT TRANSACTIONS WHICH THE EXECUTOR MAY DO IN
ACCORDANCE WITH THE LAST WISH OF THE DECEASED LINNIE JANE
HODGES.

Comes the Executor in the above-entitled proceedings, thru his undersigned


attorney, to the Hon. Court, most respectfully states:

1. — That according to the last will and testament of the deceased Linnie Jane
Hodges, the executor as the surviving spouse and legatee named in the will of
the deceased; has the right to dispose of all the properties left by the deceased,
portion of which is quoted as follows:
Second: I give, devise and bequeath all of the rest, residue and remainder of my
estate, both personal and real, wherever situated, or located, to my beloved
husband, Charles Newton Hodges, to have and to hold unto him, my said
husband, during his natural lifetime.

Third: I desire, direct and provide that my husband, Charles Newton Hodges,
shall have the right to manage, control, use and enjoy said estate during his
lifetime, and he is hereby given the right to make any changes in the physical
properties of said estate, by sale or any part thereof which he may think best,
and the purchase of any other or additional property as he may think best;
to execute conveyances with or without general or special warranty, conveying in
fee simple or for any other term or time, any property which he may deem proper
to dispose of; to lease any of the real property for oil, gas and/or other minerals,
and all such deeds or leases shall pass the absolute fee simple title to the
interest so conveyed in such property as he may elect to sell. All rents,
emoluments and income from said estate shall belong to him, and he is further
authorized to use any part of the principal of said estate as he may need or
desire. ...

2. — That herein Executor, is not only part owner of the properties left as
conjugal, but also, the successor to all the properties left by the deceased Linnie
Jane Hodges. That during the lifetime of herein Executor, as Legatee has the
right to sell, convey, lease or dispose of the properties in the Philippines. That
inasmuch as C.N. Hodges was and is engaged in the buy and sell of real and
personal properties, even before the death of Linnie Jane Hodges, a motion to
authorize said C.N. Hodges was filed in Court, to allow him to continue in the
business of buy and sell, which motion was favorably granted by the Honorable
Court.

3. — That since the death of Linnie Jane Hodges, Mr. C.N. Hodges had been
buying and selling real and personal properties, in accordance with the wishes of
the late Linnie Jane Hodges.

4. — That the Register of Deeds for Iloilo, had required of late the herein
Executor to have all the sales, leases, conveyances or mortgages made by him,
approved by the Hon. Court.

5. — That it is respectfully requested, all the sales, conveyances leases and


mortgages executed by the Executor, be approved by the Hon. Court. and
subsequent sales conveyances, leases and mortgages in compliances with the
wishes of the late Linnie Jane Hodges, and within the scope of the terms of the
last will and testament, also be approved;

6. — That the Executor is under obligation to submit his yearly accounts, and the
properties conveyed can also be accounted for, especially the amounts received.

WHEREFORE, it is most respectfully prayed that, all the sales, conveyances,


leases, and mortgages executed by the Executor, be approved by the Hon.
Court, and also the subsequent sales, conveyances, leases, and mortgages in
consonance with the wishes of the deceased contained in her last will and
testament, be with authorization and approval of the Hon. Court.

City of Iloilo, December 11, 1967.

(Annex "G", Petition.)

which again was promptly granted by the respondent court on December 14, 1957 as follows:

ORDER

As prayed for by Attorney Gellada, counsel for the Executor for the reasons
stated in his motion dated December 11, 1957, which the Court considers well
taken all the sales, conveyances, leases and mortgages of all properties left by
the deceased Linnie Jane Hodges executed by the Executor Charles N. Hodges
are hereby APPROVED. The said Executor is further authorized to execute
subsequent sales, conveyances, leases and mortgages of the properties left by
the said deceased Linnie Jane Hodges in consonance with the wishes conveyed
in the last will and testament of the latter.

So ordered.

Iloilo City. December 14, 1957.

(Annex "H", Petition.)

On April 14, 1959, in submitting his first statement of account as Executor for approval, Hodges
alleged:

Pursuant to the provisions of the Rules of Court, herein executor of the


deceased, renders the following account of his administration covering the period
from January 1, 1958 to December 31, 1958, which account may be found in
detail in the individual income tax return filed for the estate of deceased Linnie
Jane Hodges, to wit:

That a certified public accountant has examined the statement of net worth of the
estate of Linnie Jane Hodges, the assets and liabilities, as well as the income
and expenses, copy of which is hereto attached and made integral part of this
statement of account as Annex "A".

IN VIEW OF THE FOREGOING, it is most respectfully prayed that, the statement


of net worth of the estate of Linnie Jane Hodges, the assets and liabilities,
income and expenses as shown in the individual income tax return for the estate
of the deceased and marked as Annex "A", be approved by the Honorable Court,
as substantial compliance with the requirements of the Rules of Court.

That no person interested in the Philippines of the time and place of examining
the herein accounts be given notice, as herein executor is the only devisee or
legatee of the deceased, in accordance with the last will and testament already
probated by the Honorable court.

City of Iloilo April 14, 1959.

(Annex "I", Petition.)

The respondent court approved this statement of account on April 21, 1959 in its order worded
thus:

Upon petition of Atty. Gellada, in representation of the Executor, the statement of


net worth of the estate of Linnie Jane Hodges, assets and liabilities, income and
expenses as shown in the individual income tax return for the estate of the
deceased and marked as Annex "A" is approved.

SO ORDERED.

City of Iloilo April 21, 1959.

(Annex "J", Petition.)

His accounts for the periods January 1, 1959 to December 31, 1959 and January 1, 1960 to
December 31, 1960 were submitted likewise accompanied by allegations identical mutatis
mutandis to those of April 14, 1959, quoted above; and the respective orders approving the
same, dated July 30, 1960 and May 2, 1961, were substantially identical to the above-quoted
order of April 21, 1959. In connection with the statements of account just mentioned, the
following assertions related thereto made by respondent-appellee Magno in her brief do not
appear from all indications discernible in the record to be disputable:

Under date of April 14, 1959, C.N. Hodges filed his first "Account by the
Executor" of the estate of Linnie Jane Hodges. In the "Statement of Networth of
Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of December 31,
1958 annexed thereto, C.N. Hodges reported that the combined conjugal estate
earned a net income of P328,402.62, divided evenly between him and the estate
of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return"
for calendar year 1958 on the estate of Linnie Jane Hodges reporting, under
oath, the said estate as having earned income of P164,201.31, exactly one-half
of the net income of his combined personal assets and that of the estate of Linnie
Jane Hodges. (p. 91, Appellee's Brief.)

xxx xxx xxx

Under date of July 21, 1960, C.N. Hodges filed his second "Annual Statement of
Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement
of Networth of Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of
December 31, 1959 annexed thereto, C.N. Hodges reported that the combined
conjugal estate earned a net income of P270,623.32, divided evenly between
him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual
income tax return" for calendar year 1959 on the estate of Linnie Jane Hodges
reporting, under oath, the said estate as having earned income of P135,311.66,
exactly one-half of the net income of his combined personal assets and that of
the estate of Linnie Jane Hodges. (pp. 91-92. Appellee's Brief.)

xxx xxx xxx

Under date of April 20, 1961, C.N. Hodges filed his third "Annual Statement of
Account by the Executor for the Year 1960" of the estate of Linnie Jane Hodges.
In the "Statement of Net Worth of Mr. C.N. Hodges and the Estate of Linnie Jane
Hodges" as of December 31, 1960 annexed thereto, C.N. Hodges reported that
the combined conjugal estate earned a net income of P314,857.94, divided
evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he
filed an "individual income tax return" for calendar year 1960 on the estate of
Linnie Jane Hodges reporting, under oath, the said estate as having earned
income of P157,428.97, exactly one-half of the net income of his combined
personal assets and that of the estate of Linnie Jane Hodges. (Pp. 92-93,
Appellee's Brief.)

Likewise the following:

In the petition for probate that he (Hodges) filed, he listed the seven brothers and
sisters of Linnie Jane as her "heirs" (see p. 2, Green ROA). The order of the
court admitting the will to probate unfortunately omitted one of the heirs, Roy
Higdon (see p. 14, Green ROA). Immediately, C.N. Hodges filed a verified motion
to have Roy Higdon's name included as an heir, stating that he wanted to
straighten the records "in order the heirs of deceased Roy Higdon may not think
or believe they were omitted, and that they were really and are interested in the
estate of deceased Linnie Jane Hodges. .

As an executor, he was bound to file tax returns for the estate he was
administering under American law. He did file such as estate tax return on
August 8, 1958. In Schedule "M" of such return, he answered "Yes" to the
question as to whether he was contemplating "renouncing the will". On the
question as to what property interests passed to him as the surviving spouse, he
answered:

"None, except for purposes of administering the Estate, paying


debts, taxes and other legal charges. It is the intention of the
surviving husband of deceased to distribute the remaining
property and interests of the deceased in their Community estate
to the devisees and legatees named in the will when the debts,
liabilities, taxes and expenses of administration are finally
determined and paid."

Again, on August 9, 1962, barely four months before his death, he executed an
"affidavit" wherein he ratified and confirmed all that he stated in Schedule "M" of
his estate tax returns as to his having renounced what was given him by his
wife's will. 1

As appointed executor, C.N. Hodges filed an "Inventory" dated May 12, 1958. He
listed all the assets of his conjugal partnership with Linnie Jane Hodges on a
separate balance sheet and then stated expressly that her estate which has
come into his possession as executor was "one-half of all the items" listed in said
balance sheet. (Pp. 89-90, Appellee's Brief.)

Parenthetically, it may be stated, at this juncture, that We are taking pains to quote wholly or at
least, extensively from some of the pleadings and orders whenever We feel that it is necessary
to do so for a more comprehensive and clearer view of the important and decisive issues raised
by the parties and a more accurate appraisal of their respective positions in regard thereto.

The records of these cases do not show that anything else was done in the above-mentioned
Special Proceedings No. 1307 until December 26, 1962, when on account of the death of
Hodges the day before, the same lawyer, Atty. Leon P. Gellada, who had been previously acting
as counsel for Hodges in his capacity as Executor of his wife's estate, and as such had filed the
aforequoted motions and manifestations, filed the following:

URGENT EX-PARTE MOTION FOR THE APPOINTMENT OF A


SPECIAL ADMINISTRATRIX

COMES the undersigned attorney for the Executor in the above-entitled


proceedings, to the Honorable Court, most respectfully states:

1. That in accordance with the Last Will and Testament of Linnie Jane Hodges
(deceased), her husband, Charles Newton Hodges was to act as Executor, and
in fact, in an order issued by this Hon. Court dated June 28, 1957, the said
Charles Newton Hodges was appointed Executor and had performed the duties
as such.

2. That last December 22, 1962, the said Charles Newton Hodges was stricken
ill, and brought to the Iloilo Mission Hospital for treatment, but unfortunately, he
died on December 25, 1962, as shown by a copy of the death certificate hereto
attached and marked as Annex "A".

3. That in accordance with the provisions of the last will and testament of Linnie
Jane Hodges, whatever real and personal properties that may remain at the
death of her husband Charles Newton Hodges, the said properties shall be
equally divided among their heirs. That there are real and personal properties left
by Charles Newton Hodges, which need to be administered and taken care of.

4. That the estate of deceased Linnie Jane Hodges, as well as that of Charles
Newton Hodges, have not as yet been determined or ascertained, and there is
necessity for the appointment of a general administrator to liquidate and
distribute the residue of the estate to the heirs and legatees of both spouses.
That in accordance with the provisions of Section 2 of Rule 75 of the Rules of
Court, the conjugal partnership of Linnie Jane Hodges and Charles Newton
Hodges shall be liquidated in the testate proceedings of the wife.

5. That the undersigned counsel, has perfect personal knowledge of the


existence of the last will and testament of Charles Newton Hodges, with similar
provisions as that contained in the last will and testament of Linnie Jane Hodges.
However, said last will and testament of Charles Newton Hodges is kept inside
the vault or iron safe in his office, and will be presented in due time before this
honorable Court.

6. That in the meantime, it is imperative and indispensable that, an Administratrix


be appointed for the estate of Linnie Jane Hodges and a Special Administratrix
for the estate of Charles Newton Hodges, to perform the duties required by law,
to administer, collect, and take charge of the goods, chattels, rights, credits, and
estate of both spouses, Charles Newton Hodges and Linnie Jane Hodges, as
provided for in Section 1 and 2, Rule 81 of the Rules of Court.

7. That there is delay in granting letters testamentary or of administration,


because the last will and testament of deceased, Charles Newton Hodges, is still
kept in his safe or vault, and in the meantime, unless an administratrix (and,) at
the same time, a Special Administratrix is appointed, the estate of both spouses
are in danger of being lost, damaged or go to waste.

8. That the most trusted employee of both spouses Linnie Jane Hodges and C.N.
Hodges, who had been employed for around thirty (30) years, in the person of
Miss Avelina Magno, (should) be appointed Administratrix of the estate of Linnie
Jane Hodges and at the same time Special Administratrix of the estate of
Charles Newton Hodges. That the said Miss Avelina Magno is of legal age, a
resident of the Philippines, the most fit, competent, trustworthy and well-qualified
person to serve the duties of Administratrix and Special Administratrix and is
willing to act as such.

9. That Miss Avelina Magno is also willing to file bond in such sum which the
Hon. Court believes reasonable.

WHEREFORE, in view of all the foregoing, it is most respectfully prayed that,


Miss AVELINA A. MAGNO be immediately appointed Administratrix of the estate
of Linnie Jane Hodges and as Special Administratrix of the estate of Charles
Newton Hodges, with powers and duties provided for by law. That the Honorable
Court fix the reasonable bond of P1,000.00 to be filed by Avelina A. Magno.

(Annex "O", Petition.)

which respondent court readily acted on in its order of even date thus: .

For the reasons alleged in the Urgent Ex-parte Motion filed by counsel for the
Executor dated December 25, 1962, which the Court finds meritorious, Miss
AVELINA A. MAGNO, is hereby appointed Administratrix of the estate of Linnie
Jane Hodges and as Special Administratrix of the estate of Charles Newton
Hodges, in the latter case, because the last will of said Charles Newton Hodges
is still kept in his vault or iron safe and that the real and personal properties of
both spouses may be lost, damaged or go to waste, unless a Special
Administratrix is appointed.

Miss Avelina A. Magno is required to file bond in the sum of FIVE THOUSAND
PESOS (P5,000.00), and after having done so, let letters of Administration be
issued to her." (Annex "P", Petition.)
On December 29, 1962, however, upon urgent ex-parte petition of respondent
Magno herself, thru Atty. Gellada, Harold, R. Davies, "a representative of the
heirs of deceased Charles Newton Hodges (who had) arrived from the United
States of America to help in the administration of the estate of said deceased"
was appointed as Co-Special Administrator of the estate of Hodges, (pp. 29-33,
Yellow - Record on Appeal) only to be replaced as such co-special administrator
on January 22, 1963 by Joe Hodges, who, according to the motion of the same
attorney, is "the nephew of the deceased (who had) arrived from the United
States with instructions from the other heirs of the deceased to administer the
properties or estate of Charles Newton Hodges in the Philippines, (Pp. 47-50, id.)

Meanwhile, under date of January 9, 1963, the same Atty. Gellada filed in Special Proceedings
1672 a petition for the probate of the will of Hodges, 2 with a prayer for the issuance of letters of
administration to the same Joe Hodges, albeit the motion was followed on February 22, 1963 by
a separate one asking that Atty. Fernando Mirasol be appointed as his co-administrator. On the
same date this latter motion was filed, the court issued the corresponding order of probate and
letters of administration to Joe Hodges and Atty. Mirasol, as prayed for.

At this juncture, again, it may also be explained that just as, in her will, Mrs. Hodges bequeathed
her whole estate to her husband "to have and to hold unto him, my said husband, during his
natural lifetime", she, at the same time or in like manner, provided that "at the death of my said
husband — I give devise and bequeath all of the rest, residue and remainder of my estate, both
real and personal, wherever situated or located, to be equally divided among my brothers and
sisters, share and share alike —". Accordingly, it became incumbent upon Hodges, as executor
of his wife's will, to duly liquidate the conjugal partnership, half of which constituted her estate,
in order that upon the eventuality of his death, "the rest, residue and remainder" thereof could
be determined and correspondingly distributed or divided among her brothers and sisters. And it
was precisely because no such liquidation was done, furthermore, there is the issue of whether
the distribution of her estate should be governed by the laws of the Philippines or those of
Texas, of which State she was a national, and, what is more, as already stated, Hodges made
official and sworn statements or manifestations indicating that as far as he was concerned no
"property interests passed to him as surviving spouse — "except for purposes of administering
the estate, paying debts, taxes and other legal charges" and it was the intention of the surviving
husband of the deceased to distribute the remaining property and interests of the deceased in
their Community Estate to the devisees and legatees named in the will when the debts,
liabilities, taxes and expenses of administration are finally determined and paid", that the
incidents and controversies now before Us for resolution arose. As may be observed, the
situation that ensued upon the death of Hodges became rather unusual and so, quite
understandably, the lower court's actuations presently under review are apparently wanting in
consistency and seemingly lack proper orientation.

Thus, We cannot discern clearly from the record before Us the precise perspective from which
the trial court proceeded in issuing its questioned orders. And, regretably, none of the lengthy
briefs submitted by the parties is of valuable assistance in clearing up the matter.

To begin with, We gather from the two records on appeal filed by petitioner, as appellant in the
appealed cases, one with green cover and the other with a yellow cover, that at the outset, a
sort of modus operandi had been agreed upon by the parties under which the respective
administrators of the two estates were supposed to act conjointly, but since no copy of the said
agreement can be found in the record before Us, We have no way of knowing when exactly
such agreement was entered into and under what specific terms. And while reference is made
to said modus operandi in the order of September 11, 1964, on pages 205-206 of the Green
Record on Appeal, reading thus:

The present incident is to hear the side of administratrix, Miss Avelina A. Magno,
in answer to the charges contained in the motion filed by Atty. Cesar Tirol on
September 3, 1964. In answer to the said charges, Miss Avelina A. Magno,
through her counsel, Atty. Rizal Quimpo, filed a written manifestation.

After reading the manifestation here of Atty. Quimpo, for and in behalf of the
administratrix, Miss Avelina A. Magno, the Court finds that everything that
happened before September 3, 1964, which was resolved on September 8,
1964, to the satisfaction of parties, was simply due to a misunderstanding
between the representative of the Philippine Commercial and Industrial Bank and
Miss Magno and in order to restore the harmonious relations between the
parties, the Court ordered the parties to remain in status quo as to their modus
operandi before September 1, 1964, until after the Court can have a meeting with
all the parties and their counsels on October 3, as formerly agreed upon between
counsels, Attys. Ozaeta, Gibbs and Ozaeta, Attys. Tirol and Tirol and Atty. Rizal
Quimpo.

In the meantime, the prayers of Atty. Quimpo as stated in his manifestation shall
not be resolved by this Court until October 3, 1964.

SO ORDERED.

there is nothing in the record indicating whatever happened to it afterwards, except that again,
reference thereto was made in the appealed order of October 27, 1965, on pages 292-295 of
the Green Record on Appeal, as follows:

On record is an urgent motion to allow PCIB to open all doors and locks in the
Hodges Office at 206-208 Guanco Street, Iloilo City, to take immediate and
exclusive possession thereof and to place its own locks and keys for security
purposes of the PCIB dated October 27, 1965 thru Atty. Cesar Tirol. It is alleged
in said urgent motion that Administratrix Magno of the testate estate of Linnie
Jane Hodges refused to open the Hodges Office at 206-208 Guanco Street, Iloilo
City where PCIB holds office and therefore PCIB is suffering great moral damage
and prejudice as a result of said act. It is prayed that an order be issued
authorizing it (PCIB) to open all doors and locks in the said office, to take
immediate and exclusive possession thereof and place thereon its own locks and
keys for security purposes; instructing the clerk of court or any available deputy
to witness and supervise the opening of all doors and locks and taking
possession of the PCIB.

A written opposition has been filed by Administratrix Magno of even date (Oct.
27) thru counsel Rizal Quimpo stating therein that she was compelled to close
the office for the reason that the PCIB failed to comply with the order of this Court
signed by Judge Anacleto I. Bellosillo dated September 11, 1964 to the effect
that both estates should remain in status quo to their modus operandi as of
September 1, 1964.
To arrive at a happy solution of the dispute and in order not to interrupt the
operation of the office of both estates, the Court aside from the reasons stated in
the urgent motion and opposition heard the verbal arguments of Atty. Cesar Tirol
for the PCIB and Atty. Rizal Quimpo for Administratix Magno.

After due consideration, the Court hereby orders Magno to open all doors and
locks in the Hodges Office at 206-208 Guanco Street, Iloilo City in the presence
of the PCIB or its duly authorized representative and deputy clerk of court Albis
of this branch not later than 7:30 tomorrow morning October 28, 1965 in order
that the office of said estates could operate for business.

Pursuant to the order of this Court thru Judge Bellosillo dated September 11,
1964, it is hereby ordered:

(a) That all cash collections should be deposited in the joint account of the
estates of Linnie Jane Hodges and estates of C.N. Hodges;

(b) That whatever cash collections that had been deposited in the account of
either of the estates should be withdrawn and since then deposited in the joint
account of the estate of Linnie Jane Hodges and the estate of C.N. Hodges;

(c) That the PCIB should countersign the check in the amount of P250 in favor of
Administratrix Avelina A. Magno as her compensation as administratrix of the
Linnie Jane Hodges estate chargeable to the testate estate of Linnie Jane
Hodges only;

(d) That Administratrix Magno is hereby directed to allow the PCIB to inspect
whatever records, documents and papers she may have in her possession in the
same manner that Administrator PCIB is also directed to allow Administratrix
Magno to inspect whatever records, documents and papers it may have in its
possession;

(e) That the accountant of the estate of Linnie Jane Hodges shall have access to
all records of the transactions of both estates for the protection of the estate of
Linnie Jane Hodges; and in like manner the accountant or any authorized
representative of the estate of C.N. Hodges shall have access to the records of
transactions of the Linnie Jane Hodges estate for the protection of the estate of
C.N. Hodges.

Once the estates' office shall have been opened by Administratrix Magno in the
presence of the PCIB or its duly authorized representative and deputy clerk Albis
or his duly authorized representative, both estates or any of the estates should
not close it without previous consent and authority from this court.

SO ORDERED.

As may be noted, in this order, the respondent court required that all collections from the
properties in the name of Hodges should be deposited in a joint account of the two estates,
which indicates that seemingly the so-calledmodus operandi was no longer operative, but again
there is nothing to show when this situation started.
Likewise, in paragraph 3 of the petitioner's motion of September 14, 1964, on pages 188-201 of
the Green Record on Appeal, (also found on pp. 83-91 of the Yellow Record on Appeal) it is
alleged that:

3. On January 24, 1964 virtually all of the heirs of C.N. Hodges, Joe Hodges and
Fernando P. Mirasol acting as the two co-administrators of the estate of C.N.
Hodges, Avelina A. Magno acting as the administratrix of the estate of Linnie
Jane Hodges and Messrs. William Brown and Ardell Young acting for all of the
Higdon family who claim to be the sole beneficiaries of the estate of Linnie Jane
Hodges and various legal counsel representing the aforementioned parties
entered into an amicable agreement, which was approved by this Honorable
Court, wherein the parties thereto agreed that certain sums of money were to be
paid in settlement of different claims against the two estates and that the assets
(to the extent they existed) of both estates would be administered jointly by the
PCIB as administrator of the estate of C.N. Hodges and Avelina A. Magno as
administratrix of the estate of Linnie Jane Hodges, subject, however, to the
aforesaid October 5, 1963 Motion, namely, the PCIB's claim to exclusive
possession and ownership of one hundred percent (100%) (or, in the alternative,
seventy-five percent (75%) of all assets owned by C.N. Hodges or Linnie Jane
Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI Rec.,
S.P. No. 1672) this Honorable Court amended its order of January 24, 1964 but
in no way changed its recognition of the afore-described basic demand by the
PCIB as administrator of the estate of C.N. Hodges to one hundred percent
(100%) of the assets claimed by both estates.

but no copy of the mentioned agreement of joint administration of the two estates exists in the
record, and so, We are not informed as to what exactly are the terms of the same which could
be relevant in the resolution of the issues herein.

On the other hand, the appealed order of November 3, 1965, on pages 313-320 of the Green
Record on Appeal, authorized payment by respondent Magno of, inter alia, her own fees as
administratrix, the attorney's fees of her lawyers, etc., as follows:

Administratrix Magno thru Attys. Raul S. Manglapus and Rizal. R. Quimpo filed a
Manifestation and Urgent Motion dated June 10, 1964 asking for the approval of
the Agreement dated June 6, 1964 which Agreement is for the purpose of
retaining their services to protect and defend the interest of the said
Administratrix in these proceedings and the same has been signed by and bears
the express conformity of the attorney-in-fact of the late Linnie Jane Hodges, Mr.
James L. Sullivan. It is further prayed that the Administratrix of the Testate Estate
of Linnie Jane Hodges be directed to pay the retailers fee of said lawyers, said
fees made chargeable as expenses for the administration of the estate of Linnie
Jane Hodges (pp. 1641-1642, Vol. V, Sp. 1307).

An opposition has been filed by the Administrator PCIB thru Atty. Herminio
Ozaeta dated July 11, 1964, on the ground that payment of the retainers fee of
Attys. Manglapus and Quimpo as prayed for in said Manifestation and Urgent
Motion is prejudicial to the 100% claim of the estate of C. N. Hodges;
employment of Attys. Manglapus and Quimpo is premature and/or unnecessary;
Attys. Quimpo and Manglapus are representing conflicting interests and the
estate of Linnie Jane Hodges should be closed and terminated (pp. 1679-1684,
Vol, V, Sp. 1307).

Atty. Leon P. Gellada filed a memorandum dated July 28, 1964 asking that the
Manifestation and Urgent Motion filed by Attys. Manglapus and Quimpo be
denied because no evidence has been presented in support thereof. Atty.
Manglapus filed a reply to the opposition of counsel for the Administrator of the
C. N. Hodges estate wherein it is claimed that expenses of administration include
reasonable counsel or attorney's fees for services to the executor or
administrator. As a matter of fact the fee agreement dated February 27, 1964
between the PCIB and the law firm of Ozaeta, Gibbs & Ozaeta as its counsel
(Pp. 1280-1284, Vol. V, Sp. 1307) which stipulates the fees for said law firm has
been approved by the Court in its order dated March 31, 1964. If payment of the
fees of the lawyers for the administratrix of the estate of Linnie Jane Hodges will
cause prejudice to the estate of C. N. Hodges, in like manner the very agreement
which provides for the payment of attorney's fees to the counsel for the PCIB will
also be prejudicial to the estate of Linnie Jane Hodges (pp. 1801-1814, Vol. V,
Sp. 1307).

Atty. Herminio Ozaeta filed a rejoinder dated August 10, 1964 to the reply to the
opposition to the Manifestation and Urgent Motion alleging principally that the
estates of Linnie Jane Hodges and C. N. Hodges are not similarly situated for the
reason that C. N. Hodges is an heir of Linnie Jane Hodges whereas the latter is
not an heir of the former for the reason that Linnie Jane Hodges predeceased C.
N. Hodges (pp. 1839-1848, Vol. V, Sp. 1307); that Attys. Manglapus and Quimpo
formally entered their appearance in behalf of Administratrix of the estate of
Linnie Jane Hodges on June 10, 1964 (pp. 1639-1640, Vol. V, Sp. 1307).

Atty. Manglapus filed a manifestation dated December 18, 1964 stating therein
that Judge Bellosillo issued an order requiring the parties to submit memorandum
in support of their respective contentions. It is prayed in this manifestation that
the Manifestation and Urgent Motion dated June 10, 1964 be resolved (pp. 6435-
6439, Vol. VII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a counter- manifestation dated
January 5, 1965 asking that after the consideration by the court of all allegations
and arguments and pleadings of the PCIB in connection therewith (1) said
manifestation and urgent motion of Attys. Manglapus and Quimpo be denied (pp.
6442-6453, Vol. VII, Sp. 1307). Judge Querubin issued an order dated January
4, 1965 approving the motion dated June 10, 1964 of the attorneys for the
administratrix of the estate of Linnie Jane Hodges and agreement annexed to
said motion. The said order further states: "The Administratrix of the estate of
Linnie Jane Hodges is authorized to issue or sign whatever check or checks may
be necessary for the above purpose and the administrator of the estate of C. N.
Hodges is ordered to countersign the same. (pp. 6518-6523, Vol VII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a manifestation and motion dated
January 13, 1965 asking that the order of January 4, 1965 which was issued by
Judge Querubin be declared null and void and to enjoin the clerk of court and the
administratrix and administrator in these special proceedings from all
proceedings and action to enforce or comply with the provision of the aforesaid
order of January 4, 1965. In support of said manifestation and motion it is alleged
that the order of January 4, 1965 is null and void because the said order was
never delivered to the deputy clerk Albis of Branch V (the sala of Judge
Querubin) and the alleged order was found in the drawer of the late Judge
Querubin in his office when said drawer was opened on January 13, 1965 after
the death of Judge Querubin by Perfecto Querubin, Jr., the son of the judge and
in the presence of Executive Judge Rovira and deputy clerk Albis (Sec. 1, Rule
36, New Civil Code) (Pp. 6600-6606, Vol. VIII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a motion for reconsideration dated
February 23, 1965 asking that the order dated January 4, 1964 be reversed on
the ground that:

1. Attorneys retained must render services to the estate not to the personal heir;

2. If services are rendered to both, fees should be pro-rated between them;

3. Attorneys retained should not represent conflicting interests; to the prejudice of


the other heirs not represented by said attorneys;

4. Fees must be commensurate to the actual services rendered to the estate;

5. There must be assets in the estate to pay for said fees (Pp. 6625-6636, Vol.
VIII, Sp. 1307).

Atty. Quimpo for Administratrix Magno of the estate of Linnie Jane Hodges filed a
motion to submit dated July 15, 1965 asking that the manifestation and urgent
motion dated June 10, 1964 filed by Attys. Manglapus and Quimpo and other
incidents directly appertaining thereto be considered submitted for consideration
and approval (pp. 6759-6765, Vol. VIII, Sp. 1307).

Considering the arguments and reasons in support to the pleadings of both the
Administratrix and the PCIB, and of Atty. Gellada, hereinbefore mentioned, the
Court believes that the order of January 4, 1965 is null and void for the reason
that the said order has not been filed with deputy clerk Albis of this court (Branch
V) during the lifetime of Judge Querubin who signed the said order. However, the
said manifestation and urgent motion dated June 10, 1964 is being treated and
considered in this instant order. It is worthy to note that in the motion dated
January 24, 1964 (Pp. 1149- 1163, Vol. V, Sp. 1307) which has been filed by
Atty. Gellada and his associates and Atty. Gibbs and other lawyers in addition to
the stipulated fees for actual services rendered. However, the fee agreement
dated February 27, 1964, between the Administrator of the estate of C. N.
Hodges and Atty. Gibbs which provides for retainer fee of P4,000 monthly in
addition to specific fees for actual appearances, reimbursement for expenditures
and contingent fees has also been approved by the Court and said lawyers have
already been paid. (pp. 1273-1279, Vol. V, Sp. Proc. 1307 pp. 1372-1373, Vol. V,
Sp. Proc. 1307).

WHEREFORE, the order dated January 4, 1965 is hereby declared null and void.
The manifestation and motion dated June 10, 1964 which was filed by the
attorneys for the administratrix of the testate estate of Linnie Jane Hodges is
granted and the agreement annexed thereto is hereby approved.

The administratrix of the estate of Linnie Jane Hodges is hereby directed to be


needed to implement the approval of the agreement annexed to the motion and
the administrator of the estate of C. N. Hodges is directed to countersign the said
check or checks as the case may be.

SO ORDERED.

thereby implying somehow that the court assumed the existence of independent but
simultaneous administrations.

Be that as it may, again, it appears that on August 6, 1965, the court, acting on a motion of
petitioner for the approval of deeds of sale executed by it as administrator of the estate of
Hodges, issued the following order, also on appeal herein:

Acting upon the motion for approval of deeds of sale for registered land of the
PCIB, Administrator of the Testate Estate of C. N. Hodges in Sp. Proc. 1672 (Vol.
VII, pp. 2244-2245), dated July 16, 1965, filed by Atty. Cesar T. Tirol in
representation of the law firms of Ozaeta, Gibbs and Ozaeta and Tirol and Tirol
and the opposition thereto of Atty. Rizal R. Quimpo (Vol. VIII, pp. 6811-6813)
dated July 22, 1965 and considering the allegations and reasons therein stated,
the court believes that the deeds of sale should be signed jointly by the PCIB,
Administrator of the Testate Estate of C. N. Hodges and Avelina A. Magno,
Administratrix of the Testate Estate of Linnie Jane Hodges and to this effect the
PCIB should take the necessary steps so that Administratrix Avelina A. Magno
could sign the deeds of sale.

SO ORDERED. (p. 248, Green Record on Appeal.)

Notably this order required that even the deeds executed by petitioner, as administrator of the
Estate of Hodges, involving properties registered in his name, should be co-signed by
respondent Magno. 3 And this was not an isolated instance.

In her brief as appellee, respondent Magno states:

After the lower court had authorized appellee Avelina A. Magno to execute final
deeds of sale pursuant to contracts to sell executed by C. N. Hodges on
February 20, 1963 (pp. 45-46, Green ROA), motions for the approval of final
deeds of sale (signed by appellee Avelina A. Magno and the administrator of the
estate of C. N. Hodges, first Joe Hodges, then Atty. Fernando Mirasol and later
the appellant) were approved by the lower court upon petition of appellee
Magno's counsel, Atty. Leon P. Gellada, on the basis of section 8 of Rule 89 of
the Revised Rules of Court. Subsequently, the appellant, after it had taken over
the bulk of the assets of the two estates, started presenting these motions itself.
The first such attempt was a "Motion for Approval of Deeds of Sale for
Registered Land and Cancellations of Mortgages" dated July 21, 1964 filed by
Atty. Cesar T. Tirol, counsel for the appellant, thereto annexing two (2) final
deeds of sale and two (2) cancellations of mortgages signed by appellee Avelina
A. Magno and D. R. Paulino, Assistant Vice-President and Manager of the
appellant (CFI Record, Sp. Proc. No. 1307, Vol. V, pp. 1694-1701). This motion
was approved by the lower court on July 27, 1964. It was followed by another
motion dated August 4, 1964 for the approval of one final deed of sale again
signed by appellee Avelina A. Magno and D. R. Paulino (CFI Record, Sp. Proc.
No. 1307. Vol. V, pp. 1825-1828), which was again approved by the lower court
on August 7, 1964. The gates having been opened, a flood ensued: the appellant
subsequently filed similar motions for the approval of a multitude of deeds of
sales and cancellations of mortgages signed by both the appellee Avelina A.
Magno and the appellant.

A random check of the records of Special Proceeding No. 1307 alone will show
Atty. Cesar T. Tirol as having presented for court approval deeds of sale of real
properties signed by both appellee Avelina A. Magno and D. R. Paulino in the
following numbers: (a) motion dated September 21, 1964 — 6 deeds of sale; (b)
motion dated November 4, 1964 — 1 deed of sale; (c) motion dated December 1,
1964 — 4 deeds of sale; (d) motion dated February 3, 1965 — 8 deeds of sale;
(f) motion dated May 7, 1965 — 9 deeds of sale. In view of the very extensive
landholdings of the Hodges spouses and the many motions filed concerning
deeds of sale of real properties executed by C. N. Hodges the lower court has
had to constitute special separate expedientes in Special Proceedings Nos. 1307
and 1672 to include mere motions for the approval of deeds of sale of the
conjugal properties of the Hodges spouses.

As an example, from among the very many, under date of February 3, 1965, Atty.
Cesar T. Tirol, as counsel for the appellant, filed "Motion for Approval of Deeds of
Sale for Registered Land and Cancellations of Mortgages" (CFI Record, Sp.
Proc. No. 1307, Vol. VIII, pp. 6570-6596) the allegations of which read:

"1. In his lifetime, the late C. N. Hodges executed "Contracts to Sell" real
property, and the prospective buyers under said contracts have already paid the
price and complied with the terms and conditions thereof;

"2. In the course of administration of both estates, mortgage debtors have


already paid their debts secured by chattel mortgages in favor of the late C. N.
Hodges, and are now entitled to release therefrom;

"3. There are attached hereto documents executed jointly by the Administratrix in
Sp. Proc. No. 1307 and the Administrator in Sp. Proc. No. 1672, consisting of
deeds of sale in favor —

Fernando Cano, Bacolod City, Occ. Negros


Fe Magbanua, Iloilo City
Policarpio M. Pareno, La Paz, Iloilo City
Rosario T. Libre, Jaro, Iloilo City
Federico B. Torres, Iloilo City
Reynaldo T. Lataquin, La Paz, Iloilo City
Anatolio T. Viray, Iloilo City
Benjamin Rolando, Jaro, Iloilo City
and cancellations of mortgages in favor of —

Pablo Manzano, Oton, Iloilo


Ricardo M. Diana, Dao, San Jose, Antique
Simplicio Tingson, Iloilo City
Amado Magbanua, Pototan, Iloilo
Roselia M. Baes, Bolo, Roxas City
William Bayani, Rizal Estanzuela, Iloilo City
Elpidio Villarete, Molo, Iloilo City
Norma T. Ruiz, Jaro, Iloilo City

"4. That the approval of the aforesaid documents will not reduce
the assets of the estates so as to prevent any creditor from
receiving his full debt or diminish his dividend."

And the prayer of this motion is indeed very revealing:

"WHEREFORE, it is respectfully prayed that, under Rule 89, Section 8 of the


Rules of Court, this honorable court approve the aforesaid deeds of sale and
cancellations of mortgages." (Pp. 113-117, Appellee's Brief.)

None of these assertions is denied in Petitioner's reply brief.

Further indicating lack of concrete perspective or orientation on the part of the respondent court
and its hesitancy to clear up matters promptly, in its other appealed order of November 23,
1965, on pages 334-335 of the Green Record on Appeal, said respondent court allowed the
movant Ricardo Salas, President of appellee Western Institute of Technology (successor of
Panay Educational Institutions, Inc.), one of the parties with whom Hodges had contracts that
are in question in the appeals herein, to pay petitioner, as Administrator of the estate of Hodges
and/or respondent Magno, as Administrator of the estate of Mrs. Hodges, thus:

Considering that in both cases there is as yet no judicial declaration of heirs nor
distribution of properties to whomsoever are entitled thereto, the Court believes
that payment to both the administrator of the testate estate of C. N. Hodges and
the administratrix of the testate estate of Linnie Jane Hodges or to either one of
the two estates is proper and legal.

WHEREFORE, movant Ricardo T. Salas can pay to both estates or either of


them.

SO ORDERED.

(Pp. 334-335, Green Record on Appeal.)

On the other hand, as stated earlier, there were instances when respondent Magno was given
authority to act alone. For instance, in the other appealed order of December 19, 1964, on page
221 of the Green Record on Appeal, the respondent court approved payments made by her of
overtime pay to some employees of the court who had helped in gathering and preparing copies
of parts of the records in both estates as follows:
Considering that the expenses subject of the motion to approve payment of
overtime pay dated December 10, 1964, are reasonable and are believed by this
Court to be a proper charge of administration chargeable to the testate estate of
the late Linnie Jane Hodges, the said expenses are hereby APPROVED and to
be charged against the testate estate of the late Linnie Jane Hodges. The
administrator of the testate estate of the late Charles Newton Hodges is hereby
ordered to countersign the check or checks necessary to pay the said overtime
pay as shown by the bills marked Annex "A", "B" and "C" of the motion.

SO ORDERED.

(Pp. 221-222, Green Record on Appeal.)

Likewise, the respondent court approved deeds of sale executed by respondent Magno alone,
as Administratrix of the estate of Mrs. Hodges, covering properties in the name of Hodges,
pursuant to "contracts to sell" executed by Hodges, irrespective of whether they were executed
by him before or after the death of his wife. The orders of this nature which are also on appeal
herein are the following:

1. Order of March 30, 1966, on p. 137 of the Green Record on Appeal, approving the deed of
sale executed by respondent Magno in favor of appellee Lorenzo Carles on February 24, 1966,
pursuant to a "contract to sell" signed by Hodges on June 17, 1958, after the death of his wife,
which contract petitioner claims was cancelled by it for failure of Carles to pay the installments
due on January 7, 1965.

2. Order of April 5, 1966, on pp. 139-140, id., approving the deed of sale executed by
respondent Magno in favor of appellee Salvador Guzman on February 28, 1966 pursuant to a
"contract to sell" signed by Hodges on September 13, 1960, after the death of his wife, which
contract petitioner claims it cancelled on March 3, 1965 in view of failure of said appellee to pay
the installments on time.

3. Order of April 20, 1966, on pp. 167-168, id., approving the deed of sale executed by
respondent Magno in favor of appellee Purificacion Coronado on March 28, 1966 pursuant to a
"contract to sell" signed by Hodges on August 14, 1961, after the death of his wife.

4. Order of April 20, 1966, on pp. 168-169, id., approving the deed of sale executed by
respondent Magno in favor of appellee Florenia Barrido on March 28, 1966, pursuant to a
"contract to sell" signed by Hodges on February 21, 1958, after the death of his wife.

5. Order of June 7, 1966, on pp. 184-185, id., approving the deed of sale executed by
respondent Magno in favor of appellee Belcezar Causing on May 2, 1966, pursuant to a
"contract to sell" signed by Hodges on February 10, 1959, after the death of his wife.

6. Order of June 21, 1966, on pp. 211-212, id., approving the deed of sale executed by
respondent Magno in favor of appellee Artheo Thomas Jamir on June 3, 1966, pursuant to a
"contract to sell" signed by Hodges on May 26, 1961, after the death of his wife.

7. Order of June 21, 1966, on pp. 212-213, id., approving the deed of sale executed by
respondent Magno in favor of appellees Graciano Lucero and Melquiades Batisanan on June 6
and June 3, 1966, respectively, pursuant to "contracts to sell" signed by Hodges on June 9,
1959 and November 27, 1961, respectively, after the death of his wife.

8. Order of December 2, 1966, on pp. 303-304, id., approving the deed of sale executed by
respondent Magno in favor of appellees Espiridion Partisala, Winifredo Espada and Rosario
Alingasa on September 6, 1966, August 17, 1966 and August 3, 1966, respectively, pursuant to
"contracts to sell" signed by Hodges on April 20, 1960, April 18, 1960 and August 25, 1958,
respectively, that is, after the death of his wife.

9. Order of April 5, 1966, on pp. 137-138, id., approving the deed of sale executed by
respondent Magno in favor of appellee Alfredo Catedral on March 2, 1966, pursuant to a
"contract to sell" signed by Hodges on May 29, 1954, before the death of his wife, which
contract petitioner claims it had cancelled on February 16, 1966 for failure of appellee Catedral
to pay the installments due on time.

10. Order of April 5, 1966, on pp. 138-139, id., approving the deed of sale executed by
respondent Magno in favor of appellee Jose Pablico on March 7, 1966, pursuant to a "contract
to sell" signed by Hodges on March 7, 1950, after the death of his wife, which contract petitioner
claims it had cancelled on June 29, 1960, for failure of appellee Pablico to pay the installments
due on time.

11. Order of December 2, 1966, on pp. 303-304, id., insofar as it approved the deed of sale
executed by respondent Magno in favor of appellee Pepito Iyulores on September 6, 1966,
pursuant to a "contract to sell" signed by Hodges on February 5, 1951, before the death of his
wife.

12. Order of January 3, 1967, on pp. 335-336, id., approving three deeds of sale executed by
respondent Magno, one in favor of appellees Santiago Pacaonsis and two in favor of appellee
Adelfa Premaylon on December 5, 1966 and November 3, 1966, respectively, pursuant to
separate "promises to sell" signed respectively by Hodges on May 26, 1955 and January 30,
1954, before the death of his wife, and October 31, 1959, after her death.

In like manner, there were also instances when respondent court approved deeds of sale
executed by petitioner alone and without the concurrence of respondent Magno, and such
approvals have not been the subject of any appeal. No less than petitioner points this out on
pages 149-150 of its brief as appellant thus:

The points of fact and law pertaining to the two abovecited assignments of error
have already been discussed previously. In the first abovecited error, the order
alluded to was general, and as already explained before, it was, as admitted by
the lower court itself, superseded by the particular orders approving specific final
deeds of sale executed by the appellee, Avelina A. Magno, which are subject of
this appeal, as well as the particular orders approving specific final deeds of sale
executed by the appellant, Philippine Commercial and Industrial Bank, which
were never appealed by the appellee, Avelina A. Magno, nor by any party for that
matter, and which are now therefore final.

Now, simultaneously with the foregoing incidents, others of more fundamental and all embracing
significance developed. On October 5, 1963, over the signature of Atty. Allison J. Gibbs in
representation of the law firm of Ozaeta, Gibbs & Ozaeta, as counsel for the co-administrators
Joe Hodges and Fernando P. Mirasol, the following self-explanatory motion was filed:

URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO


ADMINISTRATION OF THE ESTATE OF C. N. HODGES OF ALL
OF THE ASSETS OF THE CONJUGAL PARTNERSHIP OF THE
DECEASED LINNIE JANE HODGES AND C N. HODGES
EXISTING AS OF MAY 23, 1957 PLUS ALL THE RENTS,
EMOLUMENTS AND INCOME THEREFROM.

COMES NOW the co-administrator of the estate of C. N. Hodges, Joe Hodges,


through his undersigned attorneys in the above-entitled proceedings, and to this
Honorable Court respectfully alleges:

(1) On May 23, 1957 Linnie Jane Hodges died in Iloilo City.

(2) On June 28, 1957 this Honorable Court admitted to probate the Last Will and
Testament of the deceased Linnie Jane Hodges executed November 22, 1952
and appointed C. N. Hodges as Executor of the estate of Linnie Jane Hodges
(pp. 24-25, Rec. Sp. Proc. 1307).

(3) On July 1, 1957 this Honorable Court issued Letters Testamentary to C. N.


Hodges in the Estate of Linnie Jane Hodges (p. 30, Rec. Sp. Proc. 1307).

(4) On December 14, 1957 this Honorable Court, on the basis of the following
allegations in a Motion dated December 11, 1957 filed by Leon P. Gellada as
attorney for the executor C. N. Hodges:

"That herein Executor, (is) not only part owner of the properties
left as conjugal, but also,the successor to all the properties left by
the deceased Linnie Jane Hodges."

(p. 44, Rec. Sp. Proc. 1307; emphasis supplied.)

issued the following order:

"As prayed for by Attorney Gellada, counsel for the Executory, for
the reasons stated in his motion dated December 11, 1957 which
the court considers well taken, all the sales, conveyances, leases
and mortgages of all properties left by the deceased Linnie Jane
Hodges are hereby APPROVED. The said executor is further
authorized to execute subsequent sales, conveyances, leases and
mortgages of the properties left by the said deceased Linnie Jane
Hodges in consonance with the wishes contained in the last will
and testament of the latter."

(p. 46, Rec. Sp. Proc. 1307; emphasis supplied.)


(5) On April 21, 1959 this Honorable Court approved the inventory and
accounting submitted by C. N. Hodges through his counsel Leon P. Gellada on
April 14, 1959 wherein he alleged among other things

"That no person interested in the Philippines of the time and place


of examining the herein account, be given notice, as herein
executor is the only devisee or legatee of the deceased, in
accordance with the last will and testament already probated by
the Honorable Court."

(pp. 77-78, Rec. Sp. Proc. 1307; emphasis supplied.).

(6) On July 30, 1960 this Honorable Court approved the "Annual Statement of
Account" submitted by C. N. Hodges through his counsel Leon P. Gellada on
July 21, 1960 wherein he alleged among other things:

"That no person interested in the Philippines of the time and place


of examining the herein account, be given notice as herein
executor is the only devisee or legatee of the deceased Linnie
Jane Hodges, in accordance with the last will and testament of the
deceased, already probated by this Honorable Court."

(pp. 81-82. Rec. Sp. Proc. 1307; emphasis supplied.)

(7) On May 2, 1961 this Honorable court approved the "Annual Statement of
Account By The Executor for the Year 1960" submitted through Leon P. Gellada
on April 20, 1961 wherein he alleged:

That no person interested in the Philippines be given notice, of the


time and place of examining the herein account, as herein
Executor is the only devisee or legatee of the deceased Linnie
Jane Hodges, in accordance with the last will and testament of the
deceased, already probated by this Honorable Court.

(pp. 90-91. Rec. Sp. Proc. 1307; emphasis supplied.)

(8) On December 25, 1962, C.N. Hodges died.

(9) On December 25, 1962, on the Urgent Ex-parte Motion of Leon P. Gellada
filed only in Special Proceeding No. 1307, this Honorable Court appointed
Avelina A. Magno

"Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix


of the estate of Charles Newton Hodges, in the latter case, because the last will
of said Charles Newton Hodges is still kept in his vault or iron safe and that the
real and personal properties of both spouses may be lost, damaged or go to
waste, unless a Special Administratrix is appointed."

(p. 100. Rec. Sp. Proc. 1307)


(10) On December 26, 1962 Letters of Administration were issued to Avelina
Magno pursuant to this Honorable Court's aforesaid Order of December 25, 1962

"With full authority to take possession of all the property of said


deceased in any province or provinces in which it may be situated
and to perform all other acts necessary for the preservation of said
property, said Administratrix and/or Special Administratrix having
filed a bond satisfactory to the Court."

(p. 102, Rec. Sp. Proc. 1307)

(11) On January 22, 1963 this Honorable Court on petition of Leon P. Gellada of
January 21, 1963 issued Letters of Administration to:

(a) Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges;

(b) Avelina A. Magno as Special Administratrix of the Estate of Charles Newton


Hodges; and

(c) Joe Hodges as Co-Special Administrator of the Estate of Charles Newton


Hodges.

(p. 43, Rec. Sp. Proc. 1307)

(12) On February 20, 1963 this Honorable Court on the basis of a motion filed by
Leon P. Gellada as legal counsel on February 16, 1963 for Avelina A. Magno
acting as Administratrix of the Estate of Charles Newton Hodges (pp. 114-116,
Sp. Proc. 1307) issued the following order:

"... se autoriza a aquella (Avelina A. Magno) a firmar escrituras de


venta definitiva de propiedades cubiertas por contratos para
vender, firmados, en vida, por el finado Charles Newton Hodges,
cada vez que el precio estipulado en cada contrato este
totalmente pagado. Se autoriza igualmente a la misma a firmar
escrituras de cancelacion de hipoteca tanto de bienes reales
como personales cada vez que la consideracion de cada hipoteca
este totalmente pagada.

"Cada una de dichas escrituras que se otorguen debe ser


sometida para la aprobacion de este Juzgado."

(p. 117, Sp. Proc. 1307).

[Par 1 (c), Reply to Motion For Removal of Joe Hodges]

(13) On September l6, 1963 Leon P. Gellada, acting as attorney for Avelina A.
Magno as Administratrix of the estate of Linnie Jane Hodges, alleges:
3. — That since January, 1963, both estates of Linnie Jane
Hodges and Charles Newton Hodges have been receiving in full,
payments for those "contracts to sell" entered into by C. N.
Hodges during his lifetime, and the purchasers have been
demanding the execution of definite deeds of sale in their favor.

4. — That hereto attached are thirteen (13) copies deeds of sale


executed by the Administratrix and by the co-administrator
(Fernando P. Mirasol) of the estate of Linnie Jane Hodges and
Charles Newton Hodges respectively, in compliance with the
terms and conditions of the respective "contracts to sell" executed
by the parties thereto."

(14) The properties involved in the aforesaid motion of September 16, 1963 are
all registered in the name of the deceased C. N. Hodges.

(15) Avelina A. Magno, it is alleged on information and belief, has been


advertising in the newspaper in Iloilo thusly:

For Sale

Testate Estate of Linnie Jane Hodges and Charles Newton Hodges.

All Real Estate or Personal Property will be sold on First Come First Served
Basis.

Avelin
a A.
Magno
Admini
stratrix

(16) Avelina A. Magno, it is alleged on information and belief, has paid and still is
paying sums of money to sundry persons.

(17) Joe Hodges through the undersigned attorneys manifested during the
hearings before this Honorable Court on September 5 and 6, 1963 that the estate
of C. N. Hodges was claiming all of the assets belonging to the deceased
spouses Linnie Jane Hodges and C. N. Hodges situated in Philippines because
of the aforesaid election by C. N. Hodges wherein he claimed and took
possession as sole owner of all of said assets during the administration of the
estate of Linnie Jane Hodges on the ground that he was the sole devisee and
legatee under her Last Will and Testament.

(18) Avelina A. Magno has submitted no inventory and accounting of her


administration as Administratrix of the estate of Linnie Jane Hodges and Special
Administratrix of the estate of C. N. Hodges. However, from manifestations made
by Avelina A. Magno and her legal counsel, Leon P. Gellada, there is no question
she will claim that at least fifty per cent (50%) of the conjugal assets of the
deceased spouses and the rents, emoluments and income therefrom belong to
the Higdon family who are named in paragraphs Fourth and Fifth of the Will of
Linnie Jane Hodges (p. 5, Rec. Sp. Proc. 1307).

WHEREFORE, premises considered, movant respectfully prays that this


Honorable Court, after due hearing, order:

(1) Avelina A. Magno to submit an inventory and accounting of all of the funds,
properties and assets of any character belonging to the deceased Linnie Jane
Hodges and C. N. Hodges which have come into her possession, with full details
of what she has done with them;

(2) Avelina A. Magno to turn over and deliver to the Administrator of the estate of
C. N. Hodges all of the funds, properties and assets of any character remaining
in her possession;

(3) Pending this Honorable Court's adjudication of the aforesaid issues, Avelina
A. Magno to stop, unless she first secures the conformity of Joe Hodges (or his
duly authorized representative, such as the undersigned attorneys) as the Co-
administrator and attorney-in-fact of a majority of the beneficiaries of the estate of
C. N. Hodges:

(a) Advertising the sale and the sale of the properties of the estates:

(b) Employing personnel and paying them any compensation.

(4) Such other relief as this Honorable Court may deem just and equitable in the
premises. (Annex "T", Petition.)

Almost a year thereafter, or on September 14, 1964, after the co-administrators Joe Hodges
and Fernando P. Mirasol were replaced by herein petitioner Philippine Commercial and
Industrial Bank as sole administrator, pursuant to an agreement of all the heirs of Hodges
approved by the court, and because the above motion of October 5, 1963 had not yet been
heard due to the absence from the country of Atty. Gibbs, petitioner filed the following:

MANIFESTATION AND MOTION, INCLUDING MOTION TO SET


FOR HEARING AND RESOLVE "URGENT MOTION FOR AN
ACCOUNTING AND DELIVERY TO ADMINISTRATORS OF THE
ESTATE OF C. N. HODGES OF ALL THE ASSETS OF THE
CONJUGAL PARTNERSHIP OF THE DECEASED LINNIE JANE
HODGES AND C. N. HODGES EXISTING AS OF MAY 23, 1957
PLUS ALL OF THE RENTS, EMOLUMENTS AND INCOME
THEREFROM OF OCTOBER 5, 1963.

COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to


as PCIB), the administrator of the estate of C. N. Hodges, deceased, in Special
Proceedings No. 1672, through its undersigned counsel, and to this Honorable
Court respectfully alleges that:

1. On October 5, 1963, Joe Hodges acting as the co-administrator of the estate


of C. N. Hodges filed, through the undersigned attorneys, an "Urgent Motion For
An Accounting and Delivery To Administrator of the Estate of C. N. Hodges of all
Of The Assets Of The Conjugal Partnership of The Deceased Linnie Jane
Hodges and C. N. Hodges Existing as Of May, 23, 1957 Plus All Of The Rents,
Emoluments and Income Therefrom" (pp. 536-542, CFI Rec. S. P. No. 1672).

2. On January 24, 1964 this Honorable Court, on the basis of an amicable


agreement entered into on January 23, 1964 by the two co-administrators of the
estate of C. N. Hodges and virtually all of the heirs of C. N. Hodges (p. 912, CFI
Rec., S. P. No. 1672), resolved the dispute over who should act as administrator
of the estate of C. N. Hodges by appointing the PCIB as administrator of the
estate of C. N. Hodges (pp. 905-906, CFI Rec. S. P. No. 1672) and issuing
letters of administration to the PCIB.

3. On January 24, 1964 virtually all of the heirs of C. N. Hodges, Joe Hodges and
Fernando P. Mirasol acting as the two co-administrators of the estate of C. N.
Hodges, Avelina A. Magno acting as the administratrix of the estate of Linnie
Jane Hodges, and Messrs. William Brown and Ardel Young Acting for all of the
Higdon family who claim to be the sole beneficiaries of the estate of Linnie Jane
Hodges and various legal counsel representing the aforenamed parties entered
into an amicable agreement, which was approved by this Honorable Court,
wherein the parties thereto agreed that certain sums of money were to be paid in
settlement of different claims against the two estates and that the assets (to the
extent they existed)of both estates would be administrated jointly by the PCIB as
administrator of the estate of C. N. Hodges and Avelina A. Magno as
administratrix of the estate of Linnie Jane Hodges, subject, however, to the
aforesaid October 5, 1963 Motion, namely, the PCIB's claim to exclusive
possession and ownership of one-hundred percent (10017,) (or, in the
alternative, seventy-five percent [75%] of all assets owned by C. N. Hodges or
Linnie Jane Hodges situated in the Philippines. On February 1, 1964 (pp. 934-
935, CFI Rec., S. P. No. 1672) this Honorable Court amended its order of
January 24, 1964 but in no way changes its recognition of the aforedescribed
basic demand by the PCIB as administrator of the estate of C. N. Hodges to one
hundred percent (100%) of the assets claimed by both estates.

4. On February 15, 1964 the PCIB filed a "Motion to Resolve" the aforesaid
Motion of October 5, 1963. This Honorable Court set for hearing on June 11,
1964 the Motion of October 5, 1963.

5. On June 11, 1964, because the undersigned Allison J. Gibbs was absent in
the United States, this Honorable Court ordered the indefinite postponement of
the hearing of the Motion of October 5, 1963.

6. Since its appointment as administrator of the estate of C. N. Hodges the PCIB


has not been able to properly carry out its duties and obligations as administrator
of the estate of C. N. Hodges because of the following acts, among others, of
Avelina A. Magno and those who claim to act for her as administratrix of the
estate of Linnie Jane Hodges:

(a) Avelina A. Magno illegally acts as if she is in exclusive control


of all of the assets in the Philippines of both estates including
those claimed by the estate of C. N. Hodges as evidenced in part
by her locking the premises at 206-208 Guanco Street, Iloilo City
on August 31, 1964 and refusing to reopen same until ordered to
do so by this Honorable Court on September 7, 1964.

(b) Avelina A. Magno illegally acts as though she alone may


decide how the assets of the estate of C.N. Hodges should be
administered, who the PCIB shall employ and how much they may
be paid as evidenced in party by her refusal to sign checks issued
by the PCIB payable to the undersigned counsel pursuant to their
fee agreement approved by this Honorable Court in its order dated
March 31, 1964.

(c) Avelina A. Magno illegally gives access to and turns over


possession of the records and assets of the estate of C.N. Hodges
to the attorney-in-fact of the Higdon Family, Mr. James L. Sullivan,
as evidenced in part by the cashing of his personal checks.

(d) Avelina A. Magno illegally refuses to execute checks prepared


by the PCIB drawn to pay expenses of the estate of C. N. Hodges
as evidenced in part by the check drawn to reimburse the PCIB's
advance of P48,445.50 to pay the 1964 income taxes reported
due and payable by the estate of C.N. Hodges.

7. Under and pursuant to the orders of this Honorable Court, particularly those of
January 24 and February 1, 1964, and the mandate contained in its Letters of
Administration issued on January 24, 1964 to the PCIB, it has

"full authority to take possession of all the property


of the deceased C. N. Hodges

"and to perform all other acts necessary for the preservation of


said property." (p. 914, CFI Rec., S.P. No. 1672.)

8. As administrator of the estate of C. N. Hodges, the PCIB claims the right to the
immediate exclusive possession and control of all of the properties, accounts
receivables, court cases, bank accounts and other assets, including the
documentary records evidencing same, which existed in the Philippines on the
date of C. N. Hodges' death, December 25, 1962, and were in his possession
and registered in his name alone. The PCIB knows of no assets in the
Philippines registered in the name of Linnie Jane Hodges, the estate of Linnie
Jane Hodges, or, C. N. Hodges, Executor of the Estate of Linnie Jane Hodges on
December 25, 1962. All of the assets of which the PCIB has knowledge are
either registered in the name of C. N. Hodges, alone or were derived therefrom
since his death on December 25, 1962.

9. The PCIB as the current administrator of the estate of C. N. Hodges,


deceased, succeeded to all of the rights of the previously duly appointed
administrators of the estate of C. N. Hodges, to wit:
(a) On December 25, 1962, date of C. N. Hodges' death, this
Honorable Court appointed Miss Avelina A. Magno simultaneously
as:

(i) Administratrix of the estate of Linnie Jane Hodges (p. 102, CFI
Rec., S.P. No. 1307) to replace the deceased C. N. Hodges who
on May 28, 1957 was appointed Special Administrator (p. 13. CFI
Rec. S.P. No. 1307) and on July 1, 1957 Executor of the estate of
Linnie Jane Hodges (p. 30, CFI Rec., S. P. No. 1307).

(ii) Special Administratrix of the estate of C. N. Hodges (p. 102,


CFI Rec., S.P. No. 1307).

(b) On December 29, 1962 this Honorable Court appointed Harold


K. Davies as co-special administrator of the estate of C.N. Hodges
along with Avelina A. Magno (pp. 108-111, CFI Rec., S. P. No.
1307).

(c) On January 22, 1963, with the conformity of Avelina A. Magno,


Harold K. Davies resigned in favor of Joe Hodges (pp. 35-36, CFI
Rec., S.P. No. 1672) who thereupon was appointed on January
22, 1963 by this Honorable Court as special co-administrator of
the estate of C.N. Hodges (pp. 38-40 & 43, CFI Rec. S.P. No.
1672) along with Miss Magno who at that time was still acting as
special co-administratrix of the estate of C. N. Hodges.

(d) On February 22, 1963, without objection on the part of Avelina


A. Magno, this Honorable Court appointed Joe Hodges and
Fernando P. Mirasol as co-administrators of the estate of C.N.
Hodges (pp. 76-78, 81 & 85, CFI Rec., S.P. No. 1672).

10. Miss Avelina A. Magno, pursuant to the orders of this Honorable Court of
December 25, 1962, took possession of all Philippine Assets now claimed by the
two estates. Legally, Miss Magno could take possession of the assets registered
in the name of C. N. Hodges alone only in her capacity as Special Administratrix
of the Estate of C.N. Hodges. With the appointment by this Honorable Court on
February 22, 1963 of Joe Hodges and Fernando P. Mirasol as the co-
administrators of the estate of C.N. Hodges, they legally were entitled to take
over from Miss Magno the full and exclusive possession of all of the assets of the
estate of C.N. Hodges. With the appointment on January 24, 1964 of the PCIB as
the sole administrator of the estate of C.N. Hodges in substitution of Joe Hodges
and Fernando P. Mirasol, the PCIB legally became the only party entitled to the
sole and exclusive possession of all of the assets of the estate of C. N. Hodges.

11. The PCIB's predecessors submitted their accounting and this Honorable
Court approved same, to wit:

(a) The accounting of Harold K. Davies dated January 18, 1963


(pp. 16-33, CFI Rec. S.P. No. 1672); which shows or its face the:
(i) Conformity of Avelina A. Magno acting as "Administratrix of the
Estate of Linnie Jane Hodges and Special Administratrix of the
Estate of C. N. Hodges";

(ii) Conformity of Leslie Echols, a Texas lawyer acting for the heirs
of C.N. Hodges; and

(iii) Conformity of William Brown, a Texas lawyer acting for the


Higdon family who claim to be the only heirs of Linnie Jane
Hodges (pp. 18, 25-33, CFI Rec., S. P. No. 1672).

Note: This accounting was approved by this Honorable Court on January 22,
1963 (p. 34, CFI Rec., S. P. No. 1672).

(b) The accounting of Joe Hodges and Fernando P. Mirasol as of


January 23, 1964, filed February 24, 1964 (pp. 990-1000, CFI
Rec. S.P. No. 1672 and pp. 1806-1848, CFI Rec. S.P. No. 1307).

Note: This accounting was approved by this Honorable Court on March 3, 1964.

(c) The PCIB and its undersigned lawyers are aware of no report
or accounting submitted by Avelina A. Magno of her acts as
administratrix of the estate of Linnie Jane Hodges or special
administratrix of the estate of C.N. Hodges, unless it is the
accounting of Harold K. Davies as special co-administrator of the
estate of C.N. Hodges dated January 18, 1963 to which Miss
Magno manifested her conformity (supra).

12. In the aforesaid agreement of January 24, 1964, Miss Avelina A. Magno agreed to receive
P10,000.00

"for her services as administratrix of the estate of Linnie Jane


Hodges"

and in addition she agreed to be employed, starting February 1, 1964, at

"a monthly salary of P500.00 for her services as an employee of


both estates."

24 ems.

13. Under the aforesaid agreement of January 24, 1964 and the orders of this
Honorable Court of same date, the PCIB as administrator of the estate of C. N.
Hodges is entitled to the exclusive possession of all records, properties and
assets in the name of C. N. Hodges as of the date of his death on December 25,
1962 which were in the possession of the deceased C. N. Hodges on that date
and which then passed to the possession of Miss Magno in her capacity as
Special Co-Administratrix of the estate of C. N. Hodges or the possession of Joe
Hodges or Fernando P. Mirasol as co-administrators of the estate of C. N.
Hodges.

14. Because of Miss Magno's refusal to comply with the reasonable request of
PCIB concerning the assets of the estate of C. N. Hodges, the PCIB dismissed
Miss Magno as an employee of the estate of C. N. Hodges effective August 31,
1964. On September 1, 1964 Miss Magno locked the premises at 206-208
Guanco Street and denied the PCIB access thereto. Upon the Urgent Motion of
the PCIB dated September 3, 1964, this Honorable Court on September 7, 1964
ordered Miss Magno to reopen the aforesaid premises at 206-208 Guanco Street
and permit the PCIB access thereto no later than September 8, 1964.

15. The PCIB pursuant to the aforesaid orders of this Honorable Court is again in
physical possession of all of the assets of the estate of C. N. Hodges. However,
the PCIB is not in exclusive control of the aforesaid records, properties and
assets because Miss Magno continues to assert the claims hereinabove outlined
in paragraph 6, continues to use her own locks to the doors of the aforesaid
premises at 206-208 Guanco Street, Iloilo City and continues to deny the PCIB
its right to know the combinations to the doors of the vault and safes situated
within the premises at 206-208 Guanco Street despite the fact that said
combinations were known to only C. N. Hodges during his lifetime.

16. The Philippine estate and inheritance taxes assessed the estate of Linnie
Jane Hodges were assessed and paid on the basis that C. N. Hodges is the sole
beneficiary of the assets of the estate of Linnie Jane Hodges situated in the
Philippines. Avelina A. Magno and her legal counsel at no time have questioned
the validity of the aforesaid assessment and the payment of the corresponding
Philippine death taxes.

17. Nothing further remains to be done in the estate of Linnie Jane Hodges
except to resolve the aforesaid Motion of October 5, 1963 and grant the PCIB the
exclusive possession and control of all of the records, properties and assets of
the estate of C. N. Hodges.

18. Such assets as may have existed of the estate of Linnie Jane Hodges were
ordered by this Honorable Court in special Proceedings No. 1307 to be turned
over and delivered to C. N. Hodges alone. He in fact took possession of them
before his death and asserted and exercised the right of exclusive ownership
over the said assets as the sole beneficiary of the estate of Linnie Jane Hodges.

WHEREFORE, premises considered, the PCIB respectfully petitions that this


Honorable court:

(1) Set the Motion of October 5, 1963 for hearing at the earliest possible date
with notice to all interested parties;

(2) Order Avelina A. Magno to submit an inventory and accounting as


Administratrix of the Estate of Linnie Jane Hodges and Co-Administratrix of the
Estate of C. N. Hodges of all of the funds, properties and assets of any character
belonging to the deceased Linnie Jane Hodges and C. N. Hodges which have
come into her possession, with full details of what she has done with them;

(3) Order Avelina A. Magno to turn over and deliver to the PCIB as administrator
of the estate of C. N. Hodges all of the funds, properties and assets of any
character remaining in her possession;

(4) Pending this Honorable Court's adjudication of the aforesaid issues, order
Avelina A. Magno and her representatives to stop interferring with the
administration of the estate of C. N. Hodges by the PCIB and its duly authorized
representatives;

(5) Enjoin Avelina A. Magno from working in the premises at 206-208 Guanco
Street, Iloilo City as an employee of the estate of C. N. Hodges and approve her
dismissal as such by the PCIB effective August 31, 1964;

(6) Enjoin James L. Sullivan, Attorneys Manglapus and Quimpo and others
allegedly representing Miss Magno from entering the premises at 206-208
Guanco Street, Iloilo City or any other properties of C. N. Hodges without the
express permission of the PCIB;

(7) Order such other relief as this Honorable Court finds just and equitable in the
premises. (Annex "U" Petition.)

On January 8, 1965, petitioner also filed a motion for "Official Declaration of Heirs of Linnie Jane
Hodges Estate" alleging:

COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB), as
administrator of the estate of the late C. N. Hodges, through the undersigned counsel, and to
this Honorable Court respectfully alleges that:

1. During their marriage, spouses Charles Newton Hodges and Linnie Jane
Hodges, American citizens originally from the State of Texas, U.S.A., acquired
and accumulated considerable assets and properties in the Philippines and in the
States of Texas and Oklahoma, United States of America. All said properties
constituted their conjugal estate.

2. Although Texas was the domicile of origin of the Hodges spouses, this
Honorable Court, in its orders dated March 31 and December 12, 1964 (CFI
Record, Sp. Proc. No. 1307, pp. ----; Sp. Proc. No. 1672, p. ----), conclusively
found and categorically ruled that said spouses had lived and worked for more
than 50 years in Iloilo City and had, therefore, acquired a domicile of choice in
said city, which they retained until the time of their respective deaths.

3. On November 22, 1952, Linnie Jane Hodges executed in the City of Iloilo her
Last Will and Testament, a copy of which is hereto attached as Annex "A". The
bequests in said will pertinent to the present issue are the second, third,
and fourth provisions, which we quote in full hereunder.
SECOND: I give, devise and bequeath all of the rest, residue and
remainder of my estate, both personal and real, wherever
situated, or located, to my husband, Charles Newton Hodges, to
have and to hold unto him, my said husband during his natural
lifetime.

THIRD: I desire, direct and provide that my husband, Charles


Newton Hodges, shall have the right to manage, control, use and
enjoy said estate during his lifetime, and he is hereby given the
right to make any changes in the physical properties of said estate
by sale of any part thereof which he think best, and the purchase
of any other or additional property as he may think best; to
execute conveyances with or without general or special warranty,
conveying in fee simple or for any other term or time, any property
which he may deem proper to dispose of; to lease any of the real
property for oil, gas and/or other minerals, and all such deeds or
leases shall pass the absolute fee simple title to the interest so
conveyed in such property as he may elect to sell. All rents,
emoluments and income from said estate shall belong to him, and
he is further authorized to use any part of the principal of said
estate as he may need or desire. It is provided herein, however,
that he shall not sell or otherwise dispose of any of the improved
property now owned by us located at, in or near the City of
Lubbock, Texas, but he shall have the full right to lease, manage
and enjoy the same during his lifetime, as above provided. He
shall have the right to sub-divide any farmland and sell lots
therein, and may sell unimproved town lots.

FOURTH: At the death of my said husband, Charles Newton


Hodges, I give, devise and bequeath all of the rest, residue and
remainder of my estate both real and personal, wherever situated
or located, to be equally divided among my brothers and sisters,
share and share alike, namely:

"Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie


Rascoe, Era Boman and Nimray Higdon."

4. On November 14, 1953, C. N. Hodges executed in the City of Iloilo his Last
Will and Testament, a copy of which is hereto attached as Annex "B ". In said
Will, C. N. Hodges designated his wife, Linnie Jane Hodges, as his beneficiary
using the identical language she used in the second and third provisos of her
Will, supra.

5. On May 23, 1957 Linnie Jane Hodges died in Iloilo City, predeceasing her
husband by more than five (5) years. At the time of her death, she had no forced
or compulsory heir, except her husband, C. N. Hodges. She was survived also by
various brothers and sisters mentioned in her Will (supra), which, for
convenience, we shall refer to as the HIGDONS.
6. On June 28, 1957, this Honorable Court admitted to probate the Last Will and
Testament of the deceased Linnie Jane Hodges (Annex "A"), and appointed C.
N. Hodges as executor of her estate without bond. (CFI Record, Sp. Proc. No.
1307, pp. 24-25). On July 1, 1957, this Honorable Court issued letters
testamentary to C. N. Hodges in the estate of Linnie Jane Hodges. (CFI Record,
Sp. Proc. No. 1307, p. 30.)

7. The Will of Linnie Jane Hodges, with respect to the order of succession, the
amount of successional rights, and the intrinsic of its testamentary provisions,
should be governed by Philippine laws because:

(a) The testatrix, Linnie Jane Hodges, intended Philippine laws to


govern her Will;

(b) Article 16 of the Civil Code provides that "the national law of
the person whose succession is under consideration, whatever
may be the nature of the property and regardless of the country
wherein said property may be found", shall prevail. However, the
Conflict of Law of Texas, which is the "national law" of the
testatrix, Linnie Jane Hodges, provide that the domiciliary law
(Philippine law — see paragraph 2, supra) should govern the
testamentary dispositions and successional rights over movables
(personal properties), and the law of the situs of the property (also
Philippine law as to properties located in the Philippines) with
regards immovable (real properties). Thus applying the "Renvoi
Doctrine", as approved and applied by our Supreme Court in the
case of "In The Matter Of The Testate Estate of Eduard E.
Christensen", G.R. No.
L-16749, promulgated January 31, 1963, Philippine law should
apply to the Will of Linnie Jane Hodges and to the successional
rights to her estate insofar as her movable andimmovable assets
in the Philippines are concerned. We shall not, at this stage,
discuss what law should govern the assets of Linnie Jane Hodges
located in Oklahoma and Texas, because the only assets in issue
in this motion are those within the jurisdiction of this motion Court
in the two above-captioned Special Proceedings.

8. Under Philippine and Texas law, the conjugal or community estate of spouses
shall, upon dissolution, be divided equally between them. Thus, upon the death
of Linnie Jane Hodges on May 23, 1957, one-half (1/2) of the entirety of the
assets of the Hodges spouses constituting their conjugal estate pertained
automatically to Charles Newton Hodges, not by way of inheritance, but in his
own right as partner in the conjugal partnership. The other one-half (1/2) portion
of the conjugal estate constituted the estate of Linnie Jane Hodges. This is the
only portion of the conjugal estate capable of inheritance by her heirs.

9. This one-half (1/2) portion of the conjugal assets pertaining to Linnie Jane
Hodges cannot, under a clear and specific provision of her Will, be enhanced or
increased by income, earnings, rents, or emoluments accruing after her death on
May 23, 1957. Linnie Jane Hodges' Will provides that "all rents, emoluments and
income from said estate shall belong to him (C. N. Hodges) and he is further
authorized to use any part of the principal of said estate as he may need or
desire." (Paragraph 3, Annex "A".) Thus, by specific provision of Linnie Jane
Hodges' Will, "all rents, emoluments and income" must be credited to the one-
half (1/2) portion of the conjugal estate pertaining to C. N. Hodges. Clearly,
therefore, the estate of Linnie Jane Hodges, capable of inheritance by her heirs,
consisted exclusively of no more than one-half (1/2) of the conjugal estate,
computed as of the time of her death on May 23, 1957.

10. Articles 900, 995 and 1001 of the New Civil Code provide that the surviving
spouse of a deceased leaving no ascendants or descendants is entitled, as a
matter of right and by way of irrevocable legitime, to at least one-half (1/2) of the
estate of the deceased, and no testamentary disposition by the deceased can
legally and validly affect this right of the surviving spouse. In fact, her husband is
entitled to said one-half (1/2) portion of her estate by way of legitime. (Article 886,
Civil Code.) Clearly, therefore, immediately upon the death of Linnie Jane
Hodges, C. N. Hodges was the owner of at least three-fourths (3/4) or seventy-
five (75%) percent of all of the conjugal assets of the spouses, (1/2 or 50% by
way of conjugal partnership share and 1/4 or 25% by way of inheritance and
legitime) plus all "rents, emoluments and income" accruing to said conjugal
estate from the moment of Linnie Jane Hodges' death (see paragraph 9, supra).

11. The late Linnie Jane Hodges designated her husband C.N. Hodges as her
sole and exclusive heir with full authority to do what he pleased, as exclusive heir
and owner of all the assets constituting her estate, except only with regards
certain properties "owned by us, located at, in or near the City of Lubbock,
Texas". Thus, even without relying on our laws of succession and legitime, which
we have cited above, C. N. Hodges, by specific testamentary designation of his
wife, was entitled to the entirely to his wife's estate in the Philippines.

12. Article 777 of the New Civil Code provides that "the rights of the successor
are transmitted from the death of the decedent". Thus, title to the estate of Linnie
Jane Hodges was transmitted to C. N. Hodges immediately upon her death on
May 23, 1957. For the convenience of this Honorable Court, we attached hereto
as Annex "C" a graph of how the conjugal estate of the spouses Hodges should
be divided in accordance with Philippine law and the Will of Linnie Jane Hodges.

13. In his capacity as sole heir and successor to the estate of Linnie Jane
Hodges as above-stated, C. N. Hodges, shortly after the death of Linnie Jane
Hodges, appropriated to himself the entirety of her estate. He operated all the
assets, engaged in business and performed all acts in connection with the
entirety of the conjugal estate, in his own name alone, just as he had been
operating, engaging and doing while the late Linnie Jane Hodges was still
alive. Upon his death on December 25, 1962, therefore, all said conjugal assets
were in his sole possession and control, and registered in his name alone, not as
executor, but as exclusive owner of all said assets.

14. All these acts of C. N. Hodges were authorized and sanctioned expressly and
impliedly by various orders of this Honorable Court, as follows:
(a) In an Order dated May 27, 1957, this Honorable Court ruled that C. N.
Hodges "is allowed or authorized to continue the business in which he was
engaged, and to perform acts which he had been doing while the deceased was
living." (CFI Record, Sp. Proc. No. 1307, p. 11.)

(b) On December 14, 1957, this Honorable Court, on the basis of the following
fact, alleged in the verified Motion dated December 11, 1957 filed by Leon P.
Gellada as attorney for the executor C. N. Hodges:

That herein Executor, (is) not only part owner of the properties left as conjugal,
but also, the successor to all the properties left by the deceased Linnie Jane
Hodges.' (CFI Record, Sp. Proc. No. 1307, p. 44; emphasis supplied.)

issued the following order:

"As prayed for by Attorney Gellada, counsel for the Executor, for the reasons
stated in his motion dated December 11, 1957, which the Court considers well
taken, all the sales, conveyances, leases and mortgages of all the properties left
by the deceased Linnie Jane Hodges executed by the Executor, Charles Newton
Hodges are hereby APPROVED. The said Executor is further authorized to
execute subsequent sales, conveyances, leases and mortgages of the properties
left by the said deceased Linnie Jane Hodges in consonance with the wishes
contained in the last will and testament of the latter." (CFI Record. Sp. Proc. No.
1307, p. 46; emphasis supplied.)

24 ems

(c) On April 21, 1959, this Honorable Court approved the verified inventory and
accounting submitted by C. N. Hodges through his counsel Leon P. Gellada on
April 14, 1959 wherein he alleged among other things,

"That no person interested in the Philippines of the time and place


of examining the herein account, be given notice, as herein
executor is the only devisee or legatee of the deceased, in
accordance with the last will and testament already probated by
the Honorable Court." (CFI Record, Sp. Proc. No. 1307, pp. 77-78;
emphasis supplied.)

(d) On July 20, 1960, this Honorable Court approved the verified "Annual
Statement of Account" submitted by C. N. Hodges through his counsel Leon P.
Gellada on July 21, 1960 wherein he alleged, among other things.

"That no person interested in the Philippines of the time and place


of examining the herein account, be given notice as herein
executor is the only devisee or legatee of the deceased Linnie
Jane Hodges, in accordance with the last will and testament ofthe
deceased, already probated by this Honorable Court." (CFI
Record, Sp. Proc. No. 1307, pp. 81-82; emphasis supplied.)
(e) On May 2, 1961, this Honorable Court approved the verified "Annual
Statement of Account By The Executor For the Year 1960" submitted through
Leon P. Gellada on April 20, 1961 wherein he alleged:

"That no person interested in the Philippines be given notice, ofthe time and
place of examining the herein account, as herein executor is the only devisee or
legatee of the deceased Linnie Jane Hodges, in accordance with the last will and
testament ofthe deceased, already probated by this Honorable Court." (CFI
Record, Sp. Proc. No. 1307, pp. 90-91; emphasis supplied.)

15. Since C. N. Hodges was the sole and exclusive heir of Linnie Jane Hodges,
not only by law, but in accordance with the dispositions of her will, there was, in
fact, no need to liquidate the conjugal estate of the spouses. The entirely of said
conjugal estate pertained to him exclusively, therefore this Honorable Court
sanctioned and authorized, as above-stated, C. N. Hodges to manage, operate
and control all the conjugal assets as owner.

16. By expressly authorizing C. N. Hodges to act as he did in connection with the


estate of his wife, this Honorable Court has (1) declared C. N. Hodges as the
sole heir of the estate of Linnie Jane Hodges, and (2) delivered and distributed
her estate to C. N. Hodges as sole heir in accordance with the terms and
conditions of her Will. Thus, although the "estate of Linnie Jane Hodges" still
exists as a legal and juridical personality, it had no assets or properties located in
the Philippines registered in its name whatsoever at the time of the death of C. N.
Hodges on December 25, 1962.

17. The Will of Linnie Jane Hodges (Annex "A"), fourth paragraph, provides as
follows:

"At the death of my said husband, Charles Newton Hodges, I give,


devise and bequeath all of the rest, residue and remainder of my
estate both real and personal, wherever situated or located, to be
equally divided among my brothers and sisters, share and share
alike, namely:

"Esta Higdon, Emma Howell, Leonard Higdon, Roy


Higdon, Sadie Rascoe, Era Boman and Nimray
Higdon."

Because of the facts hereinabove set out there is no "rest, residue and
remainder", at least to the extent of the Philippine assets, which remains to vest
in the HIGDONS, assuming this proviso in Linnie Jane Hodges' Will is valid and
binding against the estate of C. N. Hodges.

18. Any claims by the HIGDONS under the above-quoted provision of Linnie
Jane Hodges' Will is without merit because said provision is void and invalid at
least as to the Philippine assets. It should not, in anyway, affect the rights of the
estate of C. N. Hodges or his heirs to the properties, which C. N. Hodges
acquired by way of inheritance from his wife Linnie Jane Hodges upon her death.
(a) In spite of the above-mentioned provision in the Will of Linnie
Jane Hodges, C. N. Hodges acquired, not merely a usufructuary
right, but absolute title and ownership to her estate. In a recent
case involving a very similar testamentary provision, the Supreme
Court held that the heir first designated acquired full ownership of
the property bequeathed by the will, not mere usufructuary rights.
(Consolacion Florentino de Crisologo, et al., vs. Manuel Singson,
G. R. No. L-13876, February 28, 1962.)

(b) Article 864, 872 and 886 of the New Civil Code clearly provide
that no charge, condition or substitution whatsoever upon the
legitime can be imposed by a testator. Thus, under the provisions
of Articles 900, 995 and 1001 of the New Civil Code, the legitime
of a surviving spouse is 1/2 of the estate of the deceased spouse.
Consequently, the above-mentioned provision in the Will of Linnie
Jane Hodges is clearly invalid insofar as the legitime of C. N.
Hodges was concerned, which consisted of 1/2 of the 1/2 portion
of the conjugal estate, or 1/4 of the entire conjugal estate of the
deceased.

(c) There are generally only two kinds of substitution provided for
and authorized by our Civil Code (Articles 857-870), namely,
(1) simple or common substitution, sometimes referred to
as vulgar substitution (Article 859), and (2) fideicommissary
substitution (Article 863). All other substitutions are merely
variations of these. The substitution provided for by paragraph
four of the Will of Linnie Jane Hodges is not fideicommissary
substitution, because there is clearly no obligation on the part of
C. N. Hodges as the first heir designated, to preserve the
properties for the substitute heirs. (Consolacion Florentino de
Crisologo et al. vs. Manuel Singson, G. R. No.
L-13876.) At most, it is a vulgar or simple substitution. However, in
order that a vulgar orsimple substitution can be valid, three
alternative conditions must be present, namely, that the first
designated heir (1) should die before the testator; or (2) should not
wish to accept the inheritance; or (3) should be incapacitated to do
so. None of these conditions apply to C. N. Hodges, and,
therefore, the substitution provided for by the above-quoted
provision of the Will is not authorized by the Code, and, therefore,
it is void. Manresa, commenting on these kisses of substitution,
meaningfully stated that: "... cuando el testador instituyeun primer
heredero, y por fallecimiento de este nombra otro u otros, ha de
entenderse que estas segundas designaciones solo han de llegar
a tener efectividad en el caso de que el primer instituido muera
antes que el testador, fuera o no esta su verdadera intencion. ...".
(6 Manresa, 7 a ed., pag. 175.) In other words, when another heir
is designated to inherit upon the death of a first heir, the second
designation can have effect only in case the first instituted heir
dies before the testator, whether or not that was the true intention
of said testator. Since C. N. Hodges did not die before Linnie Jane
Hodges, the provision for substitution contained in Linnie Jane
Hodges' Willis void.

(d) In view of the invalidity of the provision for substitution in the


Will, C. N. Hodges' inheritance to the entirety of the Linnie Jane
Hodges estate is irrevocable and final.

19. Be that as it may, at the time of C. N. Hodges' death, the entirety of the
conjugal estate appeared and was registered in him exclusively as owner. Thus,
the presumption is that all said assets constituted his estate. Therefore —

(a) If the HIGDONS wish to enforce their dubious rights as substituted heirs to
1/4 of the conjugal estate (the other 1/4 is covered by the legitime of C. N.
Hodges which can not be affected by any testamentary disposition), their
remedy, if any, is to file their claim against the estate of C. N. Hodges, which
should be entitled at the present time to full custody and control of all the
conjugal estate of the spouses.

(b) The present proceedings, in which two estates exist under separate
administration, where the administratrix of the Linnie Jane Hodges estate
exercises an officious right to object and intervene in matters affecting
exclusively the C. N. Hodges estate, is anomalous.

WHEREFORE, it is most respectfully prayed that after trial and reception of


evidence, this Honorable Court declare:

1. That the estate of Linnie Jane Hodges was and is composed exclusively of
one-half (1/2) share in the conjugal estate of the spouses Hodges, computed as
of the date of her death on May 23, 1957;

2. That the other half of the conjugal estate pertained exclusively to C. N. Hodges
as his share as partner in the conjugal partnership;

3. That all "rents, emoluments and income" of the conjugal estate accruing after
Linnie Jane Hodges' death pertains to C. N. Hodges;

4. That C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane
Hodges;

5. That, therefore, the entire conjugal estate of the spouses located in the
Philippines, plus all the "rents, emoluments and income" above-mentioned, now
constitutes the estate of C. N. Hodges, capable of distribution to his heirs upon
termination of Special Proceedings No. 1672;

6. That PCIB, as administrator of the estate of C. N. Hodges, is entitled to full and


exclusive custody, control and management of all said properties; and
7. That Avelina A. Magno, as administratrix of the estate of Linnie Jane Hodges,
as well as the HIGDONS, has no right to intervene or participate in the
administration of the C. N. Hodges estate.

PCIB further prays for such and other relief as may be deemed just and equitable
in the premises."

(Record, pp. 265-277)

Before all of these motions of petitioner could be resolved, however, on December 21, 1965,
private respondent Magno filed her own "Motion for the Official Declaration of Heirs of the
Estate of Linnie Jane Hodges" as follows:

COMES NOW the Administratrix of the Estate of Linnie Jane Hodges and,
through undersigned counsel, unto this Honorable Court most respectfully states
and manifests:

1. That the spouses Charles Newton Hodges and Linnie Jane Hodges were
American citizens who died at the City of Iloilo after having amassed and
accumulated extensive properties in the Philippines;

2. That on November 22, 1952, Linnie Jane Hodges executed a last will and
testament (the original of this will now forms part of the records of these
proceedings as Exhibit "C" and appears as Sp. Proc. No. 1307, Folio I, pp. 17-
18);

3. That on May 23, 1957, Linnie Jane Hodges died at the City of Iloilo at the time
survived by her husband, Charles Newton Hodges, and several relatives named
in her last will and testament;

4. That on June 28, 1957, a petition therefor having been priorly filed and duly
heard, this Honorable Court issued an order admitting to probate the last will and
testament of Linnie Jane Hodges (Sp. Proc. No. 1307, Folio I, pp. 24-25, 26-28);

5. That the required notice to creditors and to all others who may have any
claims against the decedent, Linnie Jane Hodges has already been printed,
published and posted (Sp. Proc. No. 1307, Folio I. pp. 34-40) and the
reglamentary period for filing such claims has long ago lapsed and expired
without any claims having been asserted against the estate of Linnie Jane
Hodges, approved by the Administrator/Administratrix of the said estate, nor
ratified by this Honorable Court;

6. That the last will and testament of Linnie Jane Hodges already admitted to
probate contains an institution of heirs in the following words:

"SECOND: I give, devise and bequeath all of the rest, residue and
remainder of my estate, both personal and real, wherever situated
or located, to my beloved husband, Charles Newton Hodges to
have and to hold unto him, my said husband, during his natural
lifetime.
THIRD: I desire, direct and provide that my husband, Charles
Newton Hodges, shall have the right to manage, control, use and
enjoy said estate during his lifetime, and, he is hereby given the
right to make any changes in the physical properties of said
estate, by sale of any part thereof which he may think best, and
the purchase of any other or additional property as he may think
best; to execute conveyances with or without general or special
warranty, conveying in fee simple or for any other term or time,
any property which he may deem proper to dispose of; to lease
any of the real property for oil, gas and/or other minerals, and all
such deeds or leases shall pass the absolute fee simple title to the
interest so conveyed in such property as he elect to sell. All rents,
emoluments and income from said estate shall belong to him, and
he is further authorized to use any part of the principal of said
estate as he may need or desire. It is provided herein, however,
that he shall not sell or otherwise dispose of any of the improved
property now owned by us located at, in or near the City of
Lubbock Texas, but he shall have the full right to lease, manage
and enjoy the same during his lifetime, above provided. He shall
have the right to subdivide any farm land and sell lots therein, and
may sell unimproved town lots.

FOURTH: At the death of my said husband, Charles Newton


Hodges, I give, devise and bequeath all of the rest, residue and
remainder of my estate, both real and personal, wherever situated
or located, to be equally divided among my brothers and sisters,
share and share alike, namely:

Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie


Rascoe, Era Boman and Nimroy Higdon.

FIFTH: In case of the death of any of my brothers and/or sisters


named in item Fourth, above, prior to the death of my husband,
Charles Newton Hodges, then it is my will and bequest that the
heirs of such deceased brother or sister shall take jointly the share
which would have gone to such brother or sister had she or he
survived."

7. That under the provisions of the last will and testament already above-quoted,
Linnie Jane Hodges gave a life-estate or a usufruct over all her estate to her
husband, Charles Newton Hodges, and a vested remainder-estate or the naked
title over the same estate to her relatives named therein;

8. That after the death of Linnie Jane Hodges and after the admission to probate
of her last will and testament, but during the lifetime of Charles Newton Hodges,
the said Charles Newton Hodges with full and complete knowledge of the life-
estate or usufruct conferred upon him by the will since he was then acting as
Administrator of the estate and later as Executor of the will of Linnie Jane
Hodges, unequivocably and clearly through oral and written declarations and
sworn public statements, renounced, disclaimed and repudiated his life-estate
and usufruct over the estate of Linnie Jane Hodges;

9. That, accordingly, the only heirs left to receive the estate of Linnie Jane
Hodges pursuant to her last will and testament, are her named brothers and
sisters, or their heirs, to wit: Esta Higdon, Emma Howell, Leonard Higdon, Aline
Higdon and David Higdon, the latter two being the wife and son respectively of
the deceased Roy Higdon, Sadie Rascoe Era Boman and Nimroy Higdon, all of
legal ages, American citizens, with residence at the State of Texas, United States
of America;

10. That at the time of the death of Linnie Jane Hodges on May 23, 1957, she
was the co-owner (together with her husband Charles Newton Hodges) of an
undivided one-half interest in their conjugal properties existing as of that date,
May 23, 1957, which properties are now being administered sometimes jointly
and sometimes separately by the Administratrix of the estate of Linnie Jane
Hodges and/or the Administrator of the estate of C. N. Hodges but all of which
are under the control and supervision of this Honorable Court;

11. That because there was no separation or segregation of the interests of


husband and wife in the combined conjugal estate, as there has been no such
separation or segregation up to the present, both interests have continually
earned exactly the same amount of "rents, emoluments and income", the entire
estate having been continually devoted to the business of the spouses as if they
were alive;

12. That the one-half interest of Linnie Jane Hodges in the combined conjugal
estate was earning "rents, emoluments and income" until her death on May 23,
1957, when it ceased to be saddled with any more charges or expenditures
which are purely personal to her in nature, and her estate kept on earning such
"rents, emoluments and income" by virtue of their having been expressly
renounced, disclaimed and repudiated by Charles Newton Hodges to whom they
were bequeathed for life under the last will and testament of Linnie Jane Hodges;

13. That, on the other hand, the one-half interest of Charles Newton Hodges in
the combined conjugal estate existing as of May 23, 1957, while it may have
earned exactly the same amount of "rents, emoluments and income" as that of
the share pertaining to Linnie Jane Hodges, continued to be burdened by
charges, expenditures, and other dispositions which are purely personal to him in
nature, until the death of Charles Newton Hodges himself on December 25,
1962;

14. That of all the assets of the combined conjugal estate of Linnie Jane Hodges
and Charles Newton Hodges as they exist today, the estate of Linnie Jane
Hodges is clearly entitled to a portion more than fifty percent (50%) as compared
to the portion to which the estate of Charles Newton Hodges may be entitled,
which portions can be exactly determined by the following manner:

a. An inventory must be made of the assets of the combined


conjugal estate as they existed on the death of Linnie Jane
Hodges on May 23, 1957 — one-half of these assets belong to the
estate of Linnie Jane Hodges;

b. An accounting must be made of the "rents, emoluments and


income" of all these assets — again one-half of these belong to
the estate of Linnie Jane Hodges;

c. Adjustments must be made, after making a deduction of


charges, disbursements and other dispositions made by Charles
Newton Hodges personally and for his own personal account from
May 23, 1957 up to December 25, 1962, as well as other charges,
disbursements and other dispositions made for him and in his
behalf since December 25, 1962 up to the present;

15. That there remains no other matter for disposition now insofar as the estate
of Linnie Jane Hodges is concerned but to complete the liquidation of her estate,
segregate them from the conjugal estate, and distribute them to her heirs
pursuant to her last will and testament.

WHEREFORE, premises considered, it is most respectfully moved and prayed


that this Honorable Court, after a hearing on the factual matters raised by this
motion, issue an order:

a. Declaring the following persons, to wit: Esta Higdon, Emma Howell, Leonard
Higdon, Aline Higdon, David Higdon, Sadie Rascoe, Era Boman and Nimroy
Higdon, as the sole heirs under the last will and testament of Linnie Jane Hodges
and as the only persons entitled to her estate;

b. Determining the exact value of the estate of Linnie Jane Hodges in


accordance with the system enunciated in paragraph 14 of this motion;

c. After such determination ordering its segregation from the combined conjugal
estate and its delivery to the Administratrix of the estate of Linnie Jane Hodges
for distribution to the heirs to whom they properly belong and appertain.

(Green Record on Appeal, pp. 382-391)

whereupon, instead of further pressing on its motion of January 8, 1965 aforequoted, as it had
been doing before, petitioner withdrew the said motion and in addition to opposing the above
motion of respondent Magno, filed a motion on April 22, 1966 alleging in part that:

1. That it has received from the counsel for the administratrix of the supposed
estate of Linnie Jane Hodges a notice to set her "Motion for Official Declaration
of Heirs of the Estate of Linnie Jane Hodges";

2. That before the aforesaid motion could be heard, there are matters pending
before this Honorable Court, such as:
a. The examination already ordered by this Honorable Court of
documents relating to the allegation of Avelina Magno that
Charles Newton Hodges "through ... written declarations and
sworn public statements, renounced, disclaimed and repudiated
life-estate and usufruct over the estate of Linnie Jane Hodges';

b. That "Urgent Motion for An Accounting and Delivery to the


Estate of C. N. Hodges of All the Assets of the Conjugal
Partnership of the Deceased Linnie Jane Hodges and C. N.
Hodges Existing as of May 23, 1957 Plus All the Rents,
Emoluments and Income Therefrom";

c. Various motions to resolve the aforesaid motion;

d. Manifestation of September 14, 1964, detailing acts of


interference of Avelina Magno under color of title as administratrix
of the Estate of Linnie Jane Hodges;

which are all prejudicial, and which involve no issues of fact, all facts involved
therein being matters of record, and therefore require only the resolution of
questions of law;

3. That whatever claims any alleged heirs or other persons may have could be
very easily threshed out in the Testate Estate of Charles Newton Hodges;

4. That the maintenance of two separate estate proceedings and two


administrators only results in confusion and is unduly burdensome upon the
Testate Estate of Charles Newton Hodges, particularly because the bond filed by
Avelina Magno is grossly insufficient to answer for the funds and property which
she has inofficiously collected and held, as well as those which she continues to
inofficiously collect and hold;

5. That it is a matter of record that such state of affairs affects and


inconveniences not only the estate but also third-parties dealing with it;" (Annex
"V", Petition.)

and then, after further reminding the court, by quoting them, of the relevant allegations of its
earlier motion of September 14, 1964, Annex U, prayed that:

1. Immediately order Avelina Magno to account for and deliver to the


administrator of the Estate of C. N. Hodges all the assets of the conjugal
partnership of the deceased Linnie Jane Hodges and C. N. Hodges, plus all the
rents, emoluments and income therefrom;

2. Pending the consideration of this motion, immediately order Avelina Magno to


turn over all her collections to the administrator Philippine Commercial &
Industrial Bank;

3. Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307)
closed;
4. Defer the hearing and consideration of the motion for declaration of heirs in the
Testate Estate of Linnie Jane Hodges until the matters hereinabove set forth are
resolved.
(Prayer, Annex "V" of Petition.)

On October 12, 1966, as already indicated at the outset of this opinion, the respondent court
denied the foregoing motion, holding thus:

ORDER

On record is a motion (Vol. X, Sp. 1672, pp. 4379-4390) dated April 22, 1966 of
administrator PCIB praying that (1) Immediately order Avelina Magno to account
for and deliver to the administrator of the estate of C. N. Hodges all assets of the
conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges,
plus all the rents, emoluments and income therefrom; (2) Pending the
consideration of this motion, immediately order Avelina Magno to turn over all her
collections to the administrator PCIB; (3) Declare the Testate Estate of Linnie
Jane Hodges (Sp. Proc. No. 1307) closed; and (4) Defer the hearing and
consideration of the motion for declaration of heirs in the Testate Estate of Linnie
Jane Hodges until the matters hereinabove set forth are resolved.

This motion is predicated on the fact that there are matters pending before this
court such as (a) the examination already ordered by this Honorable Court of
documents relating to the allegation of Avelina Magno that Charles Newton
Hodges thru written declaration and sworn public statements renounced,
disclaimed and repudiated his life-estate and usufruct over the estate of Linnie
Jane Hodges (b) the urgent motion for accounting and delivery to the estate of C.
N. Hodges of all the assets of the conjugal partnership of the deceased Linnie
Jane Hodges and C. N. Hodges existing as of May 23, 1957 plus all the rents,
emoluments and income therefrom; (c) various motions to resolve the aforesaid
motion; and (d) manifestation of September 14, 1964, detailing acts of
interference of Avelina Magno under color of title as administratrix of the estate of
Linnie Jane Hodges.

These matters, according to the instant motion, are all pre-judicial involving no
issues of facts and only require the resolution of question of law; that in the
motion of October 5, 1963 it is alleged that in a motion dated December 11, 1957
filed by Atty. Leon Gellada as attorney for the executor C. N. Hodges, the said
executor C. N. Hodges is not only part owner of the properties left as conjugal
but also the successor to all the properties left by the deceased Linnie Jane
Hodges.

Said motion of December 11, 1957 was approved by the Court in consonance
with the wishes contained in the last will and testament of Linnie Jane Hodges.

That on April 21, 1959 this Court approved the inventory and accounting
submitted by C. N. Hodges thru counsel Atty. Leon Gellada in a motion filed on
April 14, 1959 stating therein that executor C. N. Hodges is the only devisee or
legatee of Linnie Jane Hodges in accordance with the last will and testament
already probated by the Court.
That on July 13, 1960 the Court approved the annual statement of accounts
submitted by the executor C. N. Hodges thru his counsel Atty. Gellada on July
21, 1960 wherein it is stated that the executor, C. N. Hodges is the only devisee
or legatee of the deceased Linnie Jane Hodges; that on May 2, 1961 the Court
approved the annual statement of accounts submitted by executor, C. N. Hodges
for the year 1960 which was submitted by Atty. Gellada on April 20, 1961
wherein it is stated that executor Hodges is the only devisee or legatee of the
deceased Linnie Jane Hodges;

That during the hearing on September 5 and 6, 1963 the estate of C. N. Hodges
claimed all the assets belonging to the deceased spouses Linnie Jane Hodges
and C. N. Hodges situated in the Philippines; that administratrix Magno has
executed illegal acts to the prejudice of the testate estate of C. N. Hodges.

An opposition (Sp. 1672, Vol. X, pp. 4415-4421) dated April 27, 1966 of
administratrix Magno has been filed asking that the motion be denied for lack of
merit and that the motion for the official declaration of heirs of the estate of Linnie
Jane Hodges be set for presentation and reception of evidence.

It is alleged in the aforesaid opposition that the examination of documents which


are in the possession of administratrix Magno can be made prior to the hearing of
the motion for the official declaration of heirs of the estate of Linnie Jane Hodges,
during said hearing.

That the matters raised in the PCIB's motion of October 5, 1963 (as well as the
other motion) dated September 14, 1964 have been consolidated for the purpose
of presentation and reception of evidence with the hearing on the determination
of the heirs of the estate of Linnie Jane Hodges. It is further alleged in the
opposition that the motion for the official declaration of heirs of the estate of
Linnie Jane Hodges is the one that constitutes a prejudicial question to the
motions dated October 5 and September 14, 1964 because if said motion is
found meritorious and granted by the Court, the PCIB's motions of October 5,
1963 and September 14, 1964 will become moot and academic since they are
premised on the assumption and claim that the only heir of Linnie Jane Hodges
was C. N. Hodges.

That the PCIB and counsel are estopped from further questioning the
determination of heirs in the estate of Linnie Jane Hodges at this stage since it
was PCIB as early as January 8, 1965 which filed a motion for official declaration
of heirs of Linnie Jane Hodges that the claim of any heirs of Linnie Jane Hodges
can be determined only in the administration proceedings over the estate of
Linnie Jane Hodges and not that of C. N. Hodges, since the heirs of Linnie Jane
Hodges are claiming her estate and not the estate of C. N. Hodges.

A reply (Sp. 1672, Vol. X, pp. 4436-4444) dated May 11, 1966 of the PCIB has
been filed alleging that the motion dated April 22, 1966 of the PCIB is not to seek
deferment of the hearing and consideration of the motion for official declaration of
heirs of Linnie Jane Hodges but to declare the testate estate of Linnie Jane
Hodges closed and for administratrix Magno to account for and deliver to the
PCIB all assets of the conjugal partnership of the deceased spouses which has
come to her possession plus all rents and income.

A rejoinder (Sp. 1672, Vol. X, pp. 4458-4462) of administratrix Magno dated May
19, 1966 has been filed alleging that the motion dated December 11, 1957 only
sought the approval of all conveyances made by C. N. Hodges and requested
the Court authority for all subsequent conveyances that will be executed by C. N.
Hodges; that the order dated December 14, 1957 only approved the
conveyances made by C. N. Hodges; that C. N. Hodges represented by counsel
never made any claim in the estate of Linnie Jane Hodges and never filed a
motion to declare himself as the heir of the said Linnie Jane Hodges despite the
lapse of more than five (5) years after the death of Linnie Jane Hodges; that it is
further alleged in the rejoinder that there can be no order of adjudication of the
estate unless there has been a prior express declaration of heirs and so far no
declaration of heirs in the estate of Linnie Jane Hodges (Sp. 1307) has been
made.

Considering the allegations and arguments in the motion and of the PCIB as well
as those in the opposition and rejoinder of administratrix Magno, the Court finds
the opposition and rejoinder to be well taken for the reason that so far there has
been no official declaration of heirs in the testate estate of Linnie Jane Hodges
and therefore no disposition of her estate.

WHEREFORE, the motion of the PCIB dated April 22, 1966 is hereby DENIED.
(Annex "W", Petition)

In its motion dated November 24, 1966 for the reconsideration of this order, petitioner
alleged inter alia that:

It cannot be over-stressed that the motion of December 11, 1957 was based on
the fact that:

a. Under the last will and testament of the deceased, Linnie Jane
Hodges, the late Charles Newton Hodges was the sole heir
instituted insofar as her properties in the Philippines are
concerned;

b. Said last will and testament vested upon the said late Charles
Newton Hodges rights over said properties which, in sum, spell
ownership, absolute and in fee simple;

c. Said late Charles Newton Hodges was, therefore, "not only part
owner of the properties left as conjugal, but also, the successor to
all the properties left by the deceased Linnie Jane Hodges.

Likewise, it cannot be over-stressed that the aforesaid motion was granted by


this Honorable Court "for the reasons stated" therein.

Again, the motion of December 11, 1957 prayed that not only "all the sales,
conveyances, leases, and mortgages executed by" the late Charles Newton
Hodges, but also all "the subsequent sales, conveyances, leases, and mortgages
..." be approved and authorized. This Honorable Court, in its order of December
14, 1957, "for the reasons stated" in the aforesaid motion, granted the same, and
not only approved all the sales, conveyances, leases and mortgages of all
properties left by the deceased Linnie Jane Hodges executed by the late Charles
Newton Hodges, but also authorized "all subsequent sales, conveyances, leases
and mortgages of the properties left by the said deceased Linnie Jane Hodges.
(Annex "X", Petition)

and reiterated its fundamental pose that the Testate Estate of Linnie Jane Hodges had already
been factually, although not legally, closed with the virtual declaration of Hodges and
adjudication to him, as sole universal heir of all the properties of the estate of his wife, in the
order of December 14, 1957, Annex G. Still unpersuaded, on July 18, 1967, respondent court
denied said motion for reconsideration and held that "the court believes that there is no
justification why the order of October 12, 1966 should be considered or modified", and, on July
19, 1967, the motion of respondent Magno "for official declaration of heirs of the estate of Linnie
Jane Hodges", already referred to above, was set for hearing.

In consequence of all these developments, the present petition was filed on August 1, 1967
(albeit petitioner had to pay another docketing fee on August 9, 1967, since the orders in
question were issued in two separate testate estate proceedings, Nos. 1307 and 1672, in the
court below).

Together with such petition, there are now pending before Us for resolution herein, appeals from
the following:

1. The order of December 19, 1964 authorizing payment by respondent Magno of


overtime pay, (pp. 221, Green Record on Appeal) together with the subsequent
orders of January 9, 1965, (pp. 231-232, id.) October 27, 1965, (pp. 227, id.) and
February 15, 1966 (pp. 455-456, id.) repeatedly denying motions for
reconsideration thereof.

2. The order of August 6, 1965 (pp. 248, id.) requiring that deeds executed by
petitioner to be co-signed by respondent Magno, as well as the order of October
27, 1965 (pp. 276-277) denying reconsideration.

3. The order of October 27, 1965 (pp. 292-295, id.) enjoining the deposit of all
collections in a joint account and the same order of February 15, 1966 mentioned
in No. 1 above which included the denial of the reconsideration of this order of
October 27, 1965.

4. The order of November 3, 1965 (pp. 313-320, id.) directing the payment of
attorney's fees, fees of the respondent administratrix, etc. and the order of
February 16, 1966 denying reconsideration thereof.

5. The order of November 23, 1965 (pp. 334-335, id.) allowing appellee Western
Institute of Technology to make payments to either one or both of the
administrators of the two estates as well as the order of March 7, 1966 (p.
462, id.) denying reconsideration.
6. The various orders hereinabove earlier enumerated approving deeds of sale
executed by respondent Magno in favor of appellees Carles, Catedral, Pablito,
Guzman, Coronado, Barrido, Causing, Javier, Lucero and Batisanan, (see pp. 35
to 37 of this opinion), together with the two separate orders both dated December
2, 1966 (pp. 306-308, and pp. 308-309, Yellow Record on Appeal) denying
reconsideration of said approval.

7. The order of January 3, 1967, on pp. 335-336, Yellow Record on Appeal,


approving similar deeds of sale executed by respondent Magno, as those in No.
6, in favor of appellees Pacaonsis and Premaylon, as to which no motion for
reconsideration was filed.

8. Lastly, the order of December 2, 1966, on pp. 305-306, Yellow Record on


Appeal, directing petitioner to surrender to appellees Lucero, Batisanan, Javier,
Pablito, Barrido, Catedral, Causing, Guzman, and Coronado, the certificates of
title covering the lands involved in the approved sales, as to which no motion for
reconsideration was filed either.

Strictly speaking, and considering that the above orders deal with different matters, just as they
affect distinctly different individuals or persons, as outlined by petitioner in its brief as appellant
on pp. 12-20 thereof, there are, therefore, thirty-three (33) appeals before Us, for which reason,
petitioner has to pay also thirty-one (31) more docket fees.

It is as well perhaps to state here as elsewhere in this opinion that in connection with these
appeals, petitioner has assigned a total of seventy-eight (LXXVIII) alleged errors, the respective
discussions and arguments under all of them covering also the fundamental issues raised in
respect to the petition for certiorari and prohibition, thus making it feasible and more practical for
the Court to dispose of all these cases together. 4

The assignments of error read thus:

I to IV

THE ORDER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN


FAVOR OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION
PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, EXECUTED
BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND
OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE
CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM
DURING HIS LIFETIME.

V to VIII

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN


FAVOR OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION
PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, COVERING
PARCELS OF LAND FOR WHICH THEY HAVE NEVER PAID IN FULL IN
ACCORDANCE WITH THE ORIGINAL CONTRACTS TO SELL.

IX to XII
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF
OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES, PEPITO G.
IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND
ROSARIO ALINGASA, WHILE ACTING AS A PROBATE COURT.

XIII to XV

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN


FAVOR OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102),
SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104),
EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS
OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND
THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM
DURING HIS LIFETIME.

XVI to XVIII

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN


FAVOR OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102),
SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104)
COVERING PARCELS OF LAND FOR WHICH THEY HAVE NEVER PAID IN
FULL IN ACCORDANCE WITH THE ORIGINAL CONTRACTS TO SELL.

XIX to XXI

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF


OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES ADELFA
PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA
PREMAYLON (LOT NO. 104) WHILE ACTING AS A PROBATE COURT.

XXII to XXV

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN


FAVOR OF THE APPELLEES LORENZO CARLES, JOSE PABLICO, ALFREDO
CATEDRAL AND SALVADOR S. GUZMAN, EXECUTED BY THE APPELLEE,
AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE
DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL
COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

XXVI to XXIX

THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE


EXECUTED IN FAVOR OF THE APPELLEES, LORENZO CARLES, JOSE
PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN PURSUANT
TO CONTRACTS TO SPELL WHICH WERE CANCELLED AND RESCINDED.

XXX to XXXIV
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF
OWNERSHIP OVER REAL PROPERTY OF THE LORENZO CARLES, JOSE
PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN, WHILE
ACTING AS A PROBATE COURT.

XXXV to XXXVI

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN


FAVOR OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION
CORONADO, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO,
COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES
NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH
WERE EXECUTED BY HIM DURING HIS LIFETIME.

XXXVII to XXXVIII

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN


FAVOR OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION
CORONADO, ALTHOUGH THEY WERE IN ARREARS IN THE PAYMENTS
AGREED UPON IN THE ORIGINAL CONTRACT TO SELL WHICH THEY
EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, IN THE
AMOUNT OF P10,680.00 and P4,428.90, RESPECTIVELY.

XXXIX to XL

THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES


NEWTON HODGES, OF THE CONTRACTUAL RIGHT, EXERCISED
THROUGH HIS ADMINISTRATOR, THE INSTANT APPELLANT, TO CANCEL
THE CONTRACTS TO SELL OF THE APPELLEES, FLORENIA BARRIDO AND
PURIFICACION CORONADO.

XLI to XLIII

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN


FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR
AND MELQUIADES BATISANAN, EXECUTED BY THE APPELLEE, AVELINA
A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED,
CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING
WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

XLIV to XLVI

THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE IN


FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR
AND MELQUIADES BATISANAN, PURSUANT TO CONTRACTS TO SELL
EXECUTED BY THEM WITH THE DECEASED, CHARLES NEWTON HODGES,
THE TERMS AND CONDITIONS OF WHICH THEY HAVE NEVER COMPLIED
WITH.

XLVII to XLIX
THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES
NEWTON HODGES, OF HIS RIGHT, EXERCISED THROUGH HIS
ADMINISTRATION, THE INSTANT APPELLANT, TO CANCEL THE
CONTRACTS TO SELL OF THE APPELLEES, GRACIANO LUCERO, ARITEO
THOMAS JAMIR AND MELQUIADES BATISANAN, AND IN DETERMINING
THE RIGHTS OF THE SAID APPELLEES OVER REAL PROPERTY WHILE
ACTING AS A PROBATE COURT.

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN


FAVOR OF THE APPELLEE, BELCESAR CAUSING, EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED
BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS
TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS
LIFETIME.

LI

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN


FAVOR OF THE APPELLEE, BELCESAR CAUSING, ALTHOUGH HE WAS IN
ARREARS IN THE PAYMENTS AGREED UPON IN THE ORIGINAL
CONTRACT TO SELL WHICH HE EXECUTED WITH THE DECEASED,
CHARLES NEWTON HODGES, IN THE AMOUNT OF P2,337.50.

LII

THE LOWER COURT ERRED IN APPROVING THE DEED OF SALE IN FAVOR


OF THE APPELLEE, BELCESAR CAUSING, ALTHOUGH THE SAME WAS
NOT EXECUTED IN ACCORDANCE WITH THE RULES OF COURT.

LIII to LXI

THE LOWER COURT ERRED IN ORDERING THE APPELLANT, PHILIPPINE


COMMERCIAL AND INDUSTRIAL BANK TO SURRENDER THE OWNER'S
DUPLICATE CERTIFICATES OF TITLE OVER THE RESPECTIVE LOTS
COVERED BY THE DEEDS OF SALE EXECUTED BY THE APPELLEE,
AVELINA A. MAGNO, IN FAVOR OF THE OTHER APPELLEES, JOSE
PABLICO, ALFREDO CATEDRAL, SALVADOR S. GUZMAN, FLRENIA
BARRIDO, PURIFICACION CORONADO, BELCESAR CAUSING, ARITEO
THOMAS JAMIR, MAXIMA BATISANAN AND GRACIANO L. LUCERO.

LXII

THE LOWER COURT ERRED IN RESOLVING THE MOTION OF THE


APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER
3, 1965, WITHOUT ANY COPY THEREOF HAVING BEEN SERVED UPON
THE APPELLANT, PHILIPPINE COMMERCIAL & INDUSTRIAL BANK.

LXIII
THE LOWER COURT ERRED IN HEARING AND CONSIDERING THE MOTION
OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED
NOVEMBER 3rd, 1965, ON NOVEMBER 23, 1965, WHEN THE NOTICE FOR
THE HEARING THEREOF WAS FOR NOVEMBER 20, 1965.

LXIV

THE LOWER COURT ERRED IN GRANTING THE APPELLEE, WESTERN


INSTITUTE OF TECHNOLOGY A RELIEF OTHER THAN THAT PRAYED FOR
IN ITS MOTION, DATED NOVEMBER 3, 1965, IN THE ABSENCE OF A
PRAYER FOR GENERAL RELIEF CONTAINED THEREIN.

LXV

THE LOWER COURT ERRED IN ALLOWING THE APPELLEE, WESTERN


INSTITUTE OF TECHNOLOGY, TO CONTINUE PAYMENTS UPON A
CONTRACT TO SELL THE TERMS AND CONDITIONS OF WHICH IT HAS
FAILED TO FULFILL.

LXVI

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF THE


APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY OVER THE REAL
PROPERTY SUBJECT MATTER OF THE CONTRACT TO SELL IT EXECUTED
WITH THE DECEASED, CHARLES NEWTON HODGES, WHILE ACTING AS A
PROBATE COURT.

LXVII

LOWER COURT ERRED IN ALLOWING THE CONTINUATION OF PAYMENTS


BY THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, UPON A
CONTRACT TO SELL EXECUTED BY IT AND THE DECEASED, CHARLES
NEWTON HODGES, TO A PERSON OTHER THAN HIS LAWFULLY
APPOINTED ADMINISTRATOR.

LXVIII

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S


FEES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE
HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS
THEREOF.

LXIX

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S


FEES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF
THE DECEASED, LINNIE JANE HODGES.

LXX
THE LOWER COURT ERRED IN IMPLEMENTING THE ALLEGED
AGREEMENT BETWEEN THE HEIRS OF THE SUPPOSED ESTATE OF THE
DECEASED, LINNIE JANE HODGES, AND THEIR LAWYERS.

LXXI

THE LOWER COURT ERRED IN ORDERING THE PREMATURE


DISTRIBUTION OF ESTATE ASSETS TO ALLEGED HEIRS OR
BENEFICIARIES THEREOF, BY WAY OF RETAINER'S FEES.

LXXII

THE LOWER COURT ERRED IN ORDERING THAT ALL FINAL DEEDS OF


SALE EXECUTED PURSUANT TO CONTRACTS TO SELL ENTERED INTO BY
THE DECEASED, CHARLES NEWTON HODGES, DURING HIS LIFETIME, BE
SIGNED JOINTLY BY THE APPELLEE, AVELINA A. MAGNO, AND THE
APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, AND NOT
BY THE LATTER ONLY AS THE LAWFULLY APPOINTED ADMINISTRATOR
OF HIS ESTATE.

LXXIII

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL


EXPENSES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE
JANE HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS
THEREOF.

LXXIV

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL


EXPENSES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED
ESTATE OF THE DECEASED, LINNIE JANE HODGES.

LXXV

THE LOWER COURT ERRED IN ORDERING THE PREMATURE


DISTRIBUTION OF ESTATE ASSETS TO ALLEGED HEIRS OR
BENEFICIARIES THEREOF, BY WAY OF LEGAL EXPENSES.

LXXVI

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF


COMPENSATION TO THE PURPORTED ADMINISTRATRIX OF THE
SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, THE
INSTANT APPELLEE, AVELINA A. MAGNO, WHEN THERE IS NEITHER
SUCH ESTATE NOR ASSETS THEREOF.

LXXVII
THE LOWER COURT ERRED IN ORDERING THAT THE FUNDS OF THE
TESTATE ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, BE
PLACED IN A JOINT ACCOUNT OF THE APPELLANT, PHILIPPINE
COMMERCIAL AND INDUSTRIAL BANK, AND THE APPELLEE, AVELINA A.
MAGNO, WHO IS A COMPLETE STRANGER TO THE AFORESAID ESTATE.

LXXVIII

THE LOWER COURT ERRED IN ORDERING THAT THE APPELLEE, AVELINA


A. MAGNO, BE GIVEN EQUAL ACCESS TO THE RECORDS OF THE
TESTATE ESTATE OF THE DECEASED, CHARLES NEWTON HODGES,
WHEN SHE IS A COMPLETE STRANGER TO THE AFORESAID ESTATE. (Pp.
73-83, Appellant's Brief.)

To complete this rather elaborate, and unavoidably extended narration of the factual setting of
these cases, it may also be mentioned that an attempt was made by the heirs of Mrs. Hodges to
have respondent Magno removed as administratrix, with the proposed appointment of Benito J.
Lopez in her place, and that respondent court did actually order such proposed replacement,
but the Court declared the said order of respondent court violative of its injunction of August 8,
1967, hence without force and effect (see Resolution of September 8, 1972 and February 1,
1973). Subsequently, Atty. Efrain B. Trenas, one of the lawyers of said heirs, appeared no
longer for the proposed administrator Lopez but for the heirs themselves, and in a motion dated
October 26, 1972 informed the Court that a motion had been filed with respondent court for the
removal of petitioner PCIB as administrator of the estate of C. N. Hodges in Special
Proceedings 1672, which removal motion alleged that 22.968149% of the share of C. N.
Hodges had already been acquired by the heirs of Mrs. Hodges from certain heirs of her
husband. Further, in this connection, in the answer of PCIB to the motion of respondent Magno
to have it declared in contempt for disregarding the Court's resolution of September 8, 1972
modifying the injunction of August 8, 1967, said petitioner annexed thereto a joint manifestation
and motion, appearing to have been filed with respondent court, informing said court that in
addition to the fact that 22% of the share of C. N. Hodges had already been bought by the heirs
of Mrs. Hodges, as already stated, certain other heirs of Hodges representing 17.343750% of
his estate were joining cause with the heirs of Mrs. Hodges as against PCIB, thereby making
somewhat precarious, if not possibly untenable, petitioners' continuation as administrator of the
Hodges estate.

RESOLUTION OF ISSUES IN THE CERTIORARI AND


PROHIBITION CASES

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 certiorariand prohibition in view of the existence of the remedy of appeal which it
claims is proven by the very appeals now before Us. Such contention fails to take into account
that there is a common thread among the basic issues involved in all these thirty-three appeals
which, unless resolved in one single proceeding, will inevitably cause the proliferation of more or
less similar or closely related incidents and consequent eventual appeals. If for this
consideration alone, and without taking account anymore of the unnecessary additional effort,
expense and time which would be involved in as many individual appeals as the number of such
incidents, it is logical and proper to hold, as We do hold, that the remedy of appeal is not
adequate in the present cases. In determining whether or not a special civil action of certiorari or
prohibition may be resorted to in lieu of appeal, in instances wherein lack or excess of
jurisdiction or grave abuse of discretion is alleged, it is not enough that the remedy of appeal
exists or is possible. It is indispensable that taking all the relevant circumstances of the given
case, appeal would better serve the interests of justice. Obviously, the longer delay, augmented
expense and trouble and unnecessary repetition of the same work attendant to the present
multiple appeals, which, after all, deal with practically the same basic issues that can be more
expeditiously resolved or determined in a single special civil action, make the remedies
of certiorari and prohibition, pursued by petitioner, preferable, for purposes of resolving the
common basic issues raised in all of them, despite the conceded availability of appeal. Besides,
the settling of such common fundamental issues would naturally minimize the areas of conflict
between the parties and render more simple the determination of the secondary issues in each
of them. Accordingly, respondent Magno's objection to the present remedy of certiorari and
prohibition must be overruled.

We come now to the errors assigned by petitioner-appellant, Philippine Commercial & Industrial
Bank, (PCIB, for short) in the petition as well as in its main brief as appellant.

III

On Whether or Not There is Still Any Part of the Testate


Estate Mrs. Hodges that may be Adjudicated to her brothers
and sisters as her estate, of which respondent Magno is the
unquestioned Administratrix in special Proceedings 1307.

In the petition, it is the position of PCIB that the respondent court exceeded its jurisdiction or
gravely abused its discretion in further recognizing after December 14, 1957 the existence of the
Testate Estate of Linnie Jane Hodges and in sanctioning purported acts of administration
therein of respondent Magno. Main ground for such posture is that by the aforequoted order of
respondent court of said date, Hodges was already allowed to assert and exercise all his rights
as universal heir of his wife pursuant to the provisions of her will, quoted earlier, hence, nothing
else remains to be done in Special Proceedings 1307 except to formally close it. In other words,
the contention of PCIB is that in view of said order, nothing more than a formal declaration of
Hodges as sole and exclusive heir of his wife and the consequent formal unqualified
adjudication to him of all her estate remain to be done to completely close Special Proceedings
1307, hence respondent Magno should be considered as having ceased to be Administratrix of
the Testate Estate of Mrs. Hodges since then.

After carefully going over the record, We feel constrained to hold that such pose is patently
untenable from whatever angle it is examined.

To start with, We cannot find anywhere in respondent Order of December 14, 1957 the sense
being read into it by PCIB. The tenor of said order bears no suggestion at all to such effect. The
declaration of heirs and distribution by the probate court of the estate of a decedent is its most
important function, and this Court is not disposed to encourage judges of probate proceedings
to be less than definite, plain and specific in making orders in such regard, if for no other reason
than that all parties concerned, like the heirs, the creditors, and most of all the government, the
devisees and legatees, should know with certainty what are and when their respective rights
and obligations ensuing from the inheritance or in relation thereto would begin or cease, as the
case may be, thereby avoiding precisely the legal complications and consequent litigations
similar to those that have developed unnecessarily in the present cases. While it is true that in
instances wherein all the parties interested in the estate of a deceased person have already
actually distributed among themselves their respective shares therein to the satisfaction of
everyone concerned and no rights of creditors or third parties are adversely affected, it would
naturally be almost ministerial for the court to issue the final order of declaration and distribution,
still it is inconceivable that the special proceeding instituted for the purpose may be considered
terminated, the respective rights of all the parties concerned be deemed definitely settled, and
the executor or administrator thereof be regarded as automatically discharged and relieved
already of all functions and responsibilities without the corresponding definite orders of the
probate court to such effect.

Indeed, the law on the matter is specific, categorical and unequivocal. Section 1 of Rule 90
provides:

SECTION 1. When order for distribution of residue made. — When the debts,
funeral charges, and expenses of administration, the allowance to the widow and
inheritance tax, if any, chargeable to the estate in accordance with law have
been paid, the court, on the application of the executor or administrator, or of a
person interested in the estate, and after hearing upon notice, shall assign the
residue of the estate to the persons entitled to the same, naming them and the
proportions, or parts, to which each is entitled, and such persons may demand
and recover their respective shares from the executor or administrator, or any
other person having the same in his possession. If there is a controversy before
the court as to who are the lawful heirs of the deceased person or as to the
distributive shares to which each person is entitled under the law, the controversy
shall be heard and decided as in ordinary cases.

No distribution shall be allowed until the payment of the obligations above


mentioned has been made or provided for, unless the distributees, or any of
them give a bond, in a sum to be fixed by the court, conditioned for the payment
of said obligations within such time as the court directs.
These provisions cannot mean anything less than that in order that a proceeding for the
settlement of the estate of a deceased may be deemed ready for final closure, (1) there should
have been issued already an order of distribution or assignment of the estate of the decedent
among or to those entitled thereto by will or by law, but (2) such order shall not be issued until
after it is shown that the "debts, funeral expenses, expenses of administration, allowances,
taxes, etc. chargeable to the estate" have been paid, which is but logical and proper. (3)
Besides, such an order is usually issued upon proper and specific application for the purpose of
the interested party or parties, and not of the court.

... it is only after, and not before, the payment of all debts, funeral charges,
expenses of administration, allowance to the widow, and inheritance tax shall
have been effected that the court should make a declaration of heirs or of such
persons as are entitled by law to the residue. (Moran, Comments on the Rules of
Court, 2nd ed., Vol. II, p. 397, citing Capistrano vs. Nadurata, 49 Phil., 726;
Lopez vs. Lopez, 37 Off. Gaz., 3091.) (JIMOGA-ON v. BELMONTE, 84 Phil. 545,
548) (p. 86, Appellee's Brief)

xxx xxx xxx

Under Section 753 of the Code of Civil Procedure, (corresponding to Section 1,


Rule 90) what brings an intestate (or testate) proceeding to a close is the order of
distribution directing delivery of the residue to the persons entitled thereto after
paying the indebtedness, if any, left by the deceased. (Santiesteban vs.
Santiesteban, 68 Phil. 367, 370.)

In the cases at bar, We cannot discern from the voluminous and varied facts, pleadings and
orders before Us that the above indispensable prerequisites for the declaration of heirs and the
adjudication of the estate of Mrs. Hodges had already been complied with when the order of
December 14, 1957 was issued. As already stated, We are not persuaded that the proceedings
leading to the issuance of said order, constituting barely of the motion of May 27, 1957, Annex
D of the petition, the order of even date, Annex E, and the motion of December 11, 1957, Annex
H, all aforequoted, are what the law contemplates. We cannot see in the order of December 14,
1957, so much relied upon by the petitioner, anything more than an explicit approval of "all the
sales, conveyances, leases and mortgages of all the properties left by the deceased Linnie Jane
Hodges executed by the Executor Charles N. Hodges" (after the death of his wife and prior to
the date of the motion), plus a general advance authorization to enable said "Executor — to
execute subsequent sales, conveyances, leases and mortgages of the properties left the said
deceased Linnie Jane Hodges in consonance with wishes conveyed in the last will and
testament of the latter", which, certainly, cannot amount to the order of adjudication of the estate
of the decedent to Hodges contemplated in the law. In fact, the motion of December 11, 1957
on which the court predicated the order in question did not pray for any such adjudication at all.
What is more, although said motion did allege that "herein Executor (Hodges) is not only part
owner of the properties left as conjugal, but also, the successor to all the properties left by the
deceased Linnie Jane Hodges", it significantly added that "herein Executor, as Legatee (sic),
has the right to sell, convey, lease or dispose of the properties in the Philippines — during his
lifetime", thereby indicating that what said motion contemplated was nothing more than either
the enjoyment by Hodges of his rights under the particular portion of the dispositions of his
wife's will which were to be operative only during his lifetime or the use of his own share of the
conjugal estate, pending the termination of the proceedings. In other words, the authority
referred to in said motions and orders is in the nature of that contemplated either in Section 2 of
Rule 109 which permits, in appropriate cases, advance or partial implementation of the terms of
a duly probated will before final adjudication or distribution when the rights of third parties would
not be adversely affected thereby or in the established practice of allowing the surviving spouse
to dispose of his own share of he conjugal estate, pending its final liquidation, when it appears
that no creditors of the conjugal partnership would be prejudiced thereby, (see the Revised
Rules of Court by Francisco, Vol. V-B, 1970 ed. p. 887) albeit, from the tenor of said motions,
We are more inclined to believe that Hodges meant to refer to the former. In any event, We are
fully persuaded that the quoted allegations of said motions read together cannot be construed
as a repudiation of the rights unequivocally established in the will in favor of Mrs. Hodges'
brothers and sisters to whatever have not been disposed of by him up to his death.

Indeed, nowhere in the record does it appear that the trial court subsequently acted upon the
premise suggested by petitioner. On the contrary, on November 23, 1965, when the court
resolved the motion of appellee Western Institute of Technology by its order We have quoted
earlier, it categorically held that as of said date, November 23, 1965, "in both cases (Special
Proceedings 1307 and 1672) there is as yet no judicial declaration of heirs nor distribution of
properties to whomsoever are entitled thereto." In this connection, it may be stated further
against petitioner, by way of some kind of estoppel, that in its own motion of January 8, 1965,
already quoted in full on pages 54-67 of this decision, it prayed inter alia that the court declare
that "C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane Hodges", which
it would not have done if it were really convinced that the order of December 14, 1957 was
already the order of adjudication and distribution of her estate. That said motion was later
withdrawn when Magno filed her own motion for determination and adjudication of what should
correspond to the brothers and sisters of Mrs. Hodges does not alter the indubitable implication
of the prayer of the withdrawn motion.

It must be borne in mind that while it is true that Mrs. Hodges bequeathed her whole estate to
her husband and gave him what amounts to full powers of dominion over the same during his
lifetime, she imposed at the same time the condition that whatever should remain thereof upon
his death should go to her brothers and sisters. In effect, therefore, what was absolutely given to
Hodges was only so much of his wife's estate as he might possibly dispose of during his
lifetime; hence, even assuming that by the allegations in his motion, he did intend to adjudicate
the whole estate to himself, as suggested by petitioner, such unilateral act could not have
affected or diminished in any degree or manner the right of his brothers and sisters-in-law over
what would remain thereof upon his death, for surely, no one can rightly contend that the
testamentary provision in question allowed him to so adjudicate any part of the estate to himself
as to prejudice them. In other words, irrespective of whatever might have been Hodges'
intention in his motions, as Executor, of May 27, 1957 and December 11, 1957, the trial court's
orders granting said motions, even in the terms in which they have been worded, could not have
had the effect of an absolute and unconditional adjudication unto Hodges of the whole estate of
his wife. None of them could have deprived his brothers and sisters-in-law of their rights under
said will. And it may be added here that the fact that no one appeared to oppose the motions in
question may only be attributed, firstly, to the failure of Hodges to send notices to any of them,
as admitted in the motion itself, and, secondly, to the fact that even if they had been notified,
they could not have taken said motions to be for the final distribution and adjudication of the
estate, but merely for him to be able, pending such final distribution and adjudication, to either
exercise during his lifetime rights of dominion over his wife's estate in accordance with the
bequest in his favor, which, as already observed, may be allowed under the broad terms of
Section 2 of Rule 109, or make use of his own share of the conjugal estate. In any event, We do
not believe that the trial court could have acted in the sense pretended by petitioner, not only
because of the clear language of the will but also because none of the interested parties had
been duly notified of the motion and hearing thereof. Stated differently, if the orders of May 27,
1957 and December 4, 1957 were really intended to be read in the sense contended by
petitioner, We would have no hesitancy in declaring them null and void.

Petitioner cites the case of Austria vs. Ventenilla, G. R. No. L-10018, September 19, 1956,
(unreported but a partial digest thereof appears in 99 Phil. 1069) in support of its insistence that
with the orders of May 27 and December 14, 1957, the closure of Mrs. Hodges' estate has
become a mere formality, inasmuch as said orders amounted to the order of adjudication and
distribution ordained by Section 1 of Rule 90. But the parallel attempted to be drawn between
that case and the present one does not hold. There the trial court had in fact issued a clear,
distinct and express order of adjudication and distribution more than twenty years before the
other heirs of the deceased filed their motion asking that the administratrix be removed, etc. As
quoted in that decision, the order of the lower court in that respect read as follows:

En orden a la mocion de la administradora, el juzgado la encuentra procedente


bajo la condicion de que no se hara entrega ni adjudicacion de los bienes a los
herederos antes de que estos presten la fianza correspondiente y de acuerdo
con lo prescrito en el Art. 754 del Codigo de Procedimientos: pues, en autos no
aparece que hayan sido nombrados comisionados de avaluo y reclamaciones.
Dicha fianza podra ser por un valor igual al de los bienes que correspondan a
cada heredero segun el testamento. Creo que no es obice para la terminacion
del expediente el hecho de que la administradora no ha presentado hasta ahora
el inventario de los bienes; pues, segun la ley, estan exentos de esta formalidad
os administradores que son legatarios del residuo o remanente de los bienes y
hayan prestado fianza para responder de las gestiones de su cargo, y aparece
en el testamento que la administradora Alejandra Austria reune dicha condicion.

POR TODO LO EXPUESTO, el juzgado declara, 1.o: no haber lugar a la mocion


de Ramon Ventenilla y otros; 2.o, declara asimismo que los unicos herederos del
finado Antonio Ventenilla son su esposa Alejandra Austria, Maria Ventenilla,
hermana del testador, y Ramon Ventenilla, Maria Ventenilla, Ramon Soriano,
Eulalio Soriano, Jose Soriano, Gabriela Ventenilla, Lorenzo Ventenilla, Felicitas
Ventenilla, Eugenio Ventenilla y Alejandra Ventenilla, en representacion de los
difuntos Juan, Tomas, Catalino y Froilan, hermanos del testador, declarando,
ademas que la heredera Alejandra Austria tiene derecho al remanente de todos
los bienes dejados por el finado, despues de deducir de ellos la porcion que
corresponde a cada uno de sus coherederos, conforme esta mandado en las
clausulas 8.a, 9.a, 10.a, 11.a, 12.a y 13.a del testamento; 3.o, se aprueba el
pago hecho por la administradora de los gastos de la ultima enfermedad y
funerales del testador, de la donacion hecha por el testador a favor de la Escuela
a Publica del Municipio de Mangatarem, y de las misas en sufragio del alma del
finado; 4.o, que una vez prestada la fianza mencionada al principio de este auto,
se haga la entrega y adjudicacion de los bienes, conforme se dispone en el
testamento y se acaba de declarar en este auto; 5.o, y, finalmente, que
verificada la adjudicacion, se dara por terminada la administracion, revelandole
toda responsabilidad a la administradora, y cancelando su fianza.

ASI SE ORDENA.
Undoubtedly, after the issuance of an order of such tenor, the closure of any proceedings for the
settlement of the estate of a deceased person cannot be but perfunctory.

In the case at bar, as already pointed out above, the two orders relied upon by petitioner do not
appear ex-facie to be of the same tenor and nature as the order just quoted, and, what is more,
the circumstances attendant to its issuance do not suggest that such was the intention of the
court, for nothing could have been more violative of the will of Mrs. Hodges.

Indeed, to infer from Hodges' said motions and from his statements of accounts for the years
1958, 1959 and 1960, A Annexes I, K and M, respectively, wherein he repeatedly claimed that
"herein executor (being) the only devisee or legatee of the deceased, in accordance with the
last will and testament already probated," there is "no (other) person interested in the
Philippines of the time and place of examining herein account to be given notice", an intent to
adjudicate unto himself the whole of his wife's estate in an absolute manner and without regard
to the contingent interests of her brothers and sisters, is to impute bad faith to him, an
imputation which is not legally permissible, much less warranted by the facts of record herein.
Hodges knew or ought to have known that, legally speaking, the terms of his wife's will did not
give him such a right. Factually, there are enough circumstances extant in the records of these
cases indicating that he had no such intention to ignore the rights of his co-heirs. In his very
motions in question, Hodges alleged, thru counsel, that the "deceased Linnie Jane Hodges died
leaving no descendants and ascendants, except brothers and sisters and herein petitioner, as
surviving spouse, to inherit the properties of the decedent", and even promised that "proper
accounting will be had — in all these transactions" which he had submitted for approval and
authorization by the court, thereby implying that he was aware of his responsibilities vis-a-vis his
co-heirs. As alleged by respondent Magno in her brief as appellee:

Under date of April 14, 1959, C. N. Hodges filed his first "Account by the
Executor" of the estate of Linnie Jane Hodges. In the "Statement of Networth of
Mr. C. N. Hodges and the Estate of Linnie Jane Hodges" as of December 31,
1958 annexed thereto, C. N. Hodges reported that the combined conjugal estate
earned a net income of P328,402.62, divided evenly between him and the estate
of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return"
for calendar year 1958 on the estate of Linnie Jane Hodges reporting, under
oath, the said estate as having earned income of P164,201.31, exactly one-half
of the net income of his combined personal assets and that of the estate of Linnie
Jane Hodges. (p. 91, Appellee's Brief.)

Under date of July 21, 1960, C. N. Hodges filed his second "Annual Statement of
Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement
of Networth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges" as of
December 31, 1959 annexed thereto, C. N. Hodges reported that the combined
conjugal estate earned a net income of P270,623.32, divided evenly between
him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual
income tax return" for calendar year 1959 on the estate of Linnie Jane Hodges
reporting, under oath, the said estate as having earned income of P135,311.66,
exactly one-half of the net income of his combined personal assets and that of
the estate of Linnie Jane Hodges. (pp. 91-92, id.)

Under date of April 20, 1961, C. N. Hodges filed his third "Annual Statement of
Account by the Executor for the year 1960" of the estate of Linnie Jane Hodges.
In the "Statement of Net Worth of Mr. C. N. Hodges and the Estate of Linnie Jane
Hodges" as of December 31, 1960 annexed thereto, C. N. Hodges reported that
the combined conjugal estate earned a net income of P314,857.94, divided of
Linnie Jane Hodges. Pursuant to this, he filed an "individual evenly between him
and the estate income tax return" for calendar year 1960 on the estate of Linnie
Jane Hodges reporting, under oath, the said estate as having earned income of
P157,428.97, exactly one-half of the net income of his combined personal assets
and that of the estate of Linnie Jane Hodges. (pp. 92-93, id.)

In the petition for probate that he (Hodges) filed, he listed the seven brothers and
sisters of Linnie Jane as her "heirs" (see p. 2, Green ROA). The order of the
court admitting the will to probate unfortunately omitted one of the heirs, Roy
Higdon (see p. 14, Green ROA). Immediately, C. N. Hodges filed a verified
motion to have Roy Higdon's name included as an heir, stating that he wanted to
straighten the records "in order (that) the heirs of deceased Roy Higdon may not
think or believe they were omitted, and that they were really and are interested in
the estate of deceased Linnie Jane Hodges".

Thus, he recognized, if in his own way, the separate identity of his wife's estate from his own
share of the conjugal partnership up to the time of his death, more than five years after that of
his wife. He never considered the whole estate as a single one belonging exclusively to himself.
The only conclusion one can gather from this is that he could have been preparing the basis for
the eventual transmission of his wife's estate, or, at least, so much thereof as he would not have
been able to dispose of during his lifetime, to her brothers and sisters in accordance with her
expressed desire, as intimated in his tax return in the United States to be more extensively
referred to anon. And assuming that he did pay the corresponding estate and inheritance taxes
in the Philippines on the basis of his being sole heir, such payment is not necessarily
inconsistent with his recognition of the rights of his co-heirs. Without purporting to rule definitely
on the matter in these proceedings, We might say here that We are inclined to the view that
under the peculiar provisions of his wife's will, and for purposes of the applicable inheritance tax
laws, Hodges had to be considered as her sole heir, pending the actual transmission of the
remaining portion of her estate to her other heirs, upon the eventuality of his death, and
whatever adjustment might be warranted should there be any such remainder then is a matter
that could well be taken care of by the internal revenue authorities in due time.

It is to be noted that the lawyer, Atty. Leon P. Gellada, who signed the motions of May 27, 1957
and December 11, 1957 and the aforementioned statements of account was the very same one
who also subsequently signed and filed the motion of December 26, 1962 for the appointment of
respondent Magno as "Administratrix of the Estate of Mrs. Linnie Jane Hodges" wherein it was
alleged that "in accordance with the provisions of the last will and testament of Linnie Jane
Hodges, whatever real properties that may remain at the death of her husband, Charles Newton
Hodges, the said properties shall be equally divided among their heirs." And it appearing that
said attorney was Hodges' lawyer as Executor of the estate of his wife, it stands to reason that
his understanding of the situation, implicit in his allegations just quoted, could somehow be
reflective of Hodges' own understanding thereof.

As a matter of fact, the allegations in the motion of the same Atty. Gellada dated July 1, 1957, a
"Request for Inclusion of the Name of Roy Higdon in the Order of the Court dated July 19, 1957,
etc.", reference to which is made in the above quotation from respondent Magno's brief, are
over the oath of Hodges himself, who verified the motion. Said allegations read:
1. — That the Hon. Court issued orders dated June 29, 1957, ordering the
probate of the will.

2. — That in said order of the Hon. Court, the relatives of the deceased Linnie
Jane Hodges were enumerated. However, in the petition as well as in the
testimony of Executor during the hearing, the name Roy Higdon was mentioned,
but deceased. It was unintentionally omitted the heirs of said Roy Higdon who
are his wife Aline Higdon and son David Higdon, all of age, and residents of
Quinlan, Texas, U.S.A.

3. — That to straighten the records, and in order the heirs of deceased Roy
Higdon may not think or believe they were omitted, and that they were really and
are interested in the estate of deceased Linnie Jane Hodges, it is requested of
the Hon. Court to insert the names of Aline Higdon and David Higdon, wife and
son of deceased Roy Higdon in the said order of the Hon. Court dated June 29,
1957. (pars. 1 to 3, Annex 2 of Magno's Answer — Record, p. 260)

As can be seen, these italicized allegations indicate, more or less, the real attitude of Hodges in
regard to the testamentary dispositions of his wife.

In connection with this point of Hodges' intent, We note that there are documents, copies of
which are annexed to respondent Magno's answer, which purportedly contain Hodges' own
solemn declarations recognizing the right of his co-heirs, such as the alleged tax return he filed
with the United States Taxation authorities, identified as Schedule M, (Annex 4 of her answer)
and his supposed affidavit of renunciation, Annex 5. In said Schedule M, Hodges appears to
have answered the pertinent question thus:

2a. Had the surviving spouse the right to declare an election between (1) the
provisions made in his or her favor by the will and (11) dower, curtesy or a
statutory interest? (X) Yes ( ) No

2d. Does the surviving spouse contemplate renouncing the will and electing to
take dower, curtesy, or a statutory interest? (X) Yes ( ) No

3. According to the information and belief of the person or persons filing the
return, is any action described under question 1 designed or contemplated? ( )
Yes (X) No (Annex 4, Answer — Record, p. 263)

and to have further stated under the item, "Description of property interests passing to surviving
spouse" the following:

None, except for purposes of administering the Estate, paying debts, taxes and
other legal charges. It is the intention of the surviving husband of deceased to
distribute the remaining property and interests of the deceased in their
Community Estate to the devisees and legatees named in the will when the
debts, liabilities, taxes and expenses of administration are finally determined and
paid. (Annex 4, Answer — Record, p. 263)

In addition, in the supposed affidavit of Hodges, Annex 5, it is stated:


I, C. N. Hodges, being duly sworn, on oath affirm that at the time the United
States Estate Tax Return was filed in the Estate of Linnie Jane Hodges on
August 8, 1958, I renounced and disclaimed any and all right to receive the rents,
emoluments and income from said estate, as shown by the statement contained
in Schedule M at page 29 of said return, a copy of which schedule is attached to
this affidavit and made a part hereof.

The purpose of this affidavit is to ratify and confirm, and I do hereby ratify and
confirm, the declaration made in Schedule M of said return and hereby formally
disclaim and renounce any right on my part to receive any of the said rents,
emoluments and income from the estate of my deceased wife, Linnie Jane
Hodges. This affidavit is made to absolve me or my estate from any liability for
the payment of income taxes on income which has accrued to the estate of
Linnie Jane Hodges since the death of the said Linnie Jane Hodges on May 23,
1957. (Annex 5, Answer — Record, p. 264)

Although it appears that said documents were not duly presented as evidence in the court
below, and We cannot, therefore, rely on them for the purpose of the present proceedings, still,
We cannot close our eyes to their existence in the record nor fail to note that their tenor jibes
with Our conclusion discussed above from the circumstances related to the orders of May 27
and December 14, 1957. 5 Somehow, these documents, considering they are supposed to be
copies of their originals found in the official files of the governments of the United States and of
the Philippines, serve to lessen any possible apprehension that Our conclusion from the other
evidence of Hodges' manifest intent vis-a-vis the rights of his co-heirs is without basis in fact.

Verily, with such eloquent manifestations of his good intentions towards the other heirs of his
wife, We find it very hard to believe that Hodges did ask the court and that the latter agreed that
he be declared her sole heir and that her whole estate be adjudicated to him without so much as
just annotating the contingent interest of her brothers and sisters in what would remain thereof
upon his demise. On the contrary, it seems to us more factual and fairer to assume that Hodges
was well aware of his position as executor of the will of his wife and, as such, had in mind the
following admonition made by the Court in Pamittan vs. Lasam, et al., 60 Phil., 908, at pp. 913-
914:

Upon the death of Bernarda in September, 1908, said lands continued to be


conjugal property in the hands of the defendant Lasam. It is provided in article
1418 of the Civil Code that upon the dissolution of the conjugal partnership, an
inventory shall immediately be made and this court in construing this provision in
connection with section 685 of the Code of Civil Procedure (prior to its
amendment by Act No. 3176 of November 24, 1924) has repeatedly held that in
the event of the death of the wife, the law imposes upon the husband the duty of
liquidating the affairs of the partnership without delay (desde luego) (Alfonso vs.
Natividad, 6 Phil., 240; Prado vs. Lagera, 7 Phil., 395; De la Rama vs. De la
Rama, 7 Phil., 745; Enriquez vs. Victoria, 10 Phil., 10; Amancio vs. Pardo, 13
Phil., 297; Rojas vs. Singson Tongson, 17 Phil., 476; Sochayseng vs. Trujillo, 31
Phil., 153; Molera vs. Molera, 40 Phil., 566; Nable Jose vs. Nable Jose, 41 Phil.,
713.)

In the last mentioned case this court quoted with approval the case
of Leatherwood vs. Arnold (66 Texas, 414, 416, 417), in which that court
discussed the powers of the surviving spouse in the administration of the
community property. Attention was called to the fact that the surviving husband,
in the management of the conjugal property after the death of the wife, was a
trustee of unique character who is liable for any fraud committed by him with
relation to the property while he is charged with its administration. In the
liquidation of the conjugal partnership, he had wide powers (as the law stood
prior to Act No. 3176) and the high degree of trust reposed in him stands out
more clearly in view of the fact that he was the owner of a half interest in his own
right of the conjugal estate which he was charged to administer. He could
therefore no more acquire a title by prescription against those for whom he was
administering the conjugal estate than could a guardian against his ward or a
judicial administrator against the heirs of estate. Section 38 of Chapter III of the
Code of Civil Procedure, with relation to prescription, provides that "this chapter
shall not apply ... in the case of a continuing and subsisting trust." The surviving
husband in the administration and liquidation of the conjugal estate occupies the
position of a trustee of the highest order and is not permitted by the law to hold
that estate or any portion thereof adversely to those for whose benefit the law
imposes upon him the duty of administration and liquidation. No liquidation was
ever made by Lasam — hence, the conjugal property which came into his
possession on the death of his wife in September, 1908, still remains conjugal
property, a continuing and subsisting trust. He should have made a liquidation
immediately (desde luego). He cannot now be permitted to take advantage of his
own wrong. One of the conditions of title by prescription (section 41, Code of Civil
Procedure) is possession "under a claim of title exclusive of any other right". For
a trustee to make such a claim would be a manifest fraud.

And knowing thus his responsibilities in the premises, We are not convinced that Hodges
arrogated everything unto himself leaving nothing at all to be inherited by his wife's brothers and
sisters.

PCIB insists, however, that to read the orders of May 27 and December 14, 1957, not as
adjudicatory, but merely as approving past and authorizing future dispositions made by Hodges
in a wholesale and general manner, would necessarily render the said orders void for being
violative of the provisions of Rule 89 governing the manner in which such dispositions may be
made and how the authority therefor and approval thereof by the probate court may be secured.
If We sustained such a view, the result would only be that the said orders should be declared
ineffective either way they are understood, considering We have already seen it is legally
impossible to consider them as adjudicatory. As a matter of fact, however, what surges
immediately to the surface, relative to PCIB's observations based on Rule 89, is that from such
point of view, the supposed irregularity would involve no more than some non-jurisdictional
technicalities of procedure, which have for their evident fundamental purpose the protection of
parties interested in the estate, such as the heirs, its creditors, particularly the government on
account of the taxes due it; and since it is apparent here that none of such parties are objecting
to said orders or would be prejudiced by the unobservance by the trial court of the procedure
pointed out by PCIB, We find no legal inconvenience in nor impediment to Our giving sanction
to the blanket approval and authority contained in said orders. This solution is definitely
preferable in law and in equity, for to view said orders in the sense suggested by PCIB would
result in the deprivation of substantive rights to the brothers and sisters of Mrs. Hodges,
whereas reading them the other way will not cause any prejudice to anyone, and, withal, will
give peace of mind and stability of rights to the innocent parties who relied on them in good
faith, in the light of the peculiar pertinent provisions of the will of said decedent.
Now, the inventory submitted by Hodges on May 12, 1958 referred to the estate of his wife as
consisting of "One-half of all the items designated in the balance sheet, copy of which is hereto
attached and marked as "Annex A"." Although, regrettably, no copy of said Annex A appears in
the records before Us, We take judicial notice, on the basis of the undisputed facts in these
cases, that the same consists of considerable real and other personal kinds of properties. And
since, according to her will, her husband was to be the sole owner thereof during his lifetime,
with full power and authority to dispose of any of them, provided that should there be any
remainder upon his death, such remainder would go to her brothers and sisters, and
furthermore, there is no pretension, much less any proof that Hodges had in fact disposed of all
of them, and, on the contrary, the indications are rather to the effect that he had kept them more
or less intact, it cannot truthfully be said that, upon the death of Hodges, there was no more
estate of Mrs. Hodges to speak of. It is Our conclusion, therefore, that properties do exist which
constitute such estate, hence Special Proceedings 1307 should not yet be closed.

Neither is there basis for holding that respondent Magno has ceased to be the Administratrix in
said proceeding. There is no showing that she has ever been legally removed as such, the
attempt to replace her with Mr. Benito Lopez without authority from the Court having been
expressly held ineffective by Our resolution of September 8, 1972. Parenthetically, on this last
point, PCIB itself is very emphatic in stressing that it is not questioning said respondent's status
as such administratrix. Indeed, it is not clear that PCIB has any standing to raise any objection
thereto, considering it is a complete stranger insofar as the estate of Mrs. Hodges is concerned.

It is the contention of PCIB, however, that as things actually stood at the time of Hodges' death,
their conjugal partnership had not yet been liquidated and, inasmuch as the properties
composing the same were thus commingled pro indiviso and, consequently, the properties
pertaining to the estate of each of the spouses are not yet identifiable, it is PCIB alone, as
administrator of the estate of Hodges, who should administer everything, and all that respondent
Magno can do for the time being is to wait until the properties constituting the remaining estate
of Mrs. Hodges have been duly segregated and delivered to her for her own administration.
Seemingly, PCIB would liken the Testate Estate of Linnie Jane Hodges to a party having a claim
of ownership to some properties included in the inventory of an administrator of the estate of a
decedent, (here that of Hodges) and who normally has no right to take part in the proceedings
pending the establishment of his right or title; for which as a rule it is required that an ordinary
action should be filed, since the probate court is without jurisdiction to pass with finality on
questions of title between the estate of the deceased, on the one hand, and a third party or even
an heir claiming adversely against the estate, on the other.

We do not find such contention sufficiently persuasive. As We see it, the situation obtaining
herein cannot be compared with the claim of a third party the basis of which is alien to the
pending probate proceedings. In the present cases what gave rise to the claim of PCIB of
exclusive ownership by the estate of Hodges over all the properties of the Hodges spouses,
including the share of Mrs. Hodges in the community properties, were the orders of the trial
court issued in the course of the very settlement proceedings themselves, more specifically, the
orders of May 27 and December 14, 1957 so often mentioned above. In other words, the root of
the issue of title between the parties is something that the court itself has done in the exercise of
its probate jurisdiction. And since in the ultimate analysis, the question of whether or not all the
properties herein involved pertain exclusively to the estate of Hodges depends on the legal
meaning and effect of said orders, the claim that respondent court has no jurisdiction to take
cognizance of and decide the said issue is incorrect. If it was within the competence of the court
to issue the root orders, why should it not be within its authority to declare their true significance
and intent, to the end that the parties may know whether or not the estate of Mrs. Hodges had
already been adjudicated by the court, upon the initiative of Hodges, in his favor, to the
exclusion of the other heirs of his wife instituted in her will?

At this point, it bears emphasis again that the main cause of all the present problems
confronting the courts and the parties in these cases was the failure of Hodges to secure, as
executor of his wife's estate, from May, 1957 up to the time of his death in December, 1962, a
period of more than five years, the final adjudication of her estate and the closure of the
proceedings. The record is bare of any showing that he ever exerted any effort towards the
early settlement of said estate. While, on the one hand, there are enough indications, as already
discuss that he had intentions of leaving intact her share of the conjugal properties so that it
may pass wholly to his co-heirs upon his death, pursuant to her will, on the other hand, by not
terminating the proceedings, his interests in his own half of the conjugal properties remained
commingled pro-indiviso with those of his co-heirs in the other half. Obviously, such a situation
could not be conducive to ready ascertainment of the portion of the inheritance that should
appertain to his co-heirs upon his death. Having these considerations in mind, it would be giving
a premium for such procrastination and rather unfair to his co-heirs, if the administrator of his
estate were to be given exclusive administration of all the properties in question, which would
necessarily include the function of promptly liquidating the conjugal partnership, thereby
identifying and segregating without unnecessary loss of time which properties should be
considered as constituting the estate of Mrs. Hodges, the remainder of which her brothers and
sisters are supposed to inherit equally among themselves.

To be sure, an administrator is not supposed to represent the interests of any particular party
and his acts are deemed to be objectively for the protection of the rights of everybody
concerned with the estate of the decedent, and from this point of view, it maybe said that even if
PCIB were to act alone, there should be no fear of undue disadvantage to anyone. On the other
hand, however, it is evidently implicit in section 6 of Rule 78 fixing the priority among those to
whom letters of administration should be granted that the criterion in the selection of the
administrator is not his impartiality alone but, more importantly, the extent of his interest in the
estate, so much so that the one assumed to have greater interest is preferred to another who
has less. Taking both of these considerations into account, inasmuch as, according to Hodges'
own inventory submitted by him as Executor of the estate of his wife, practically all their
properties were conjugal which means that the spouses have equal shares therein, it is but
logical that both estates should be administered jointly by representatives of both, pending their
segregation from each other. Particularly is such an arrangement warranted because the
actuations so far of PCIB evince a determined, albeit groundless, intent to exclude the other
heirs of Mrs. Hodges from their inheritance. Besides, to allow PCIB, the administrator of his
estate, to perform now what Hodges was duty bound to do as executor is to violate the spirit, if
not the letter, of Section 2 of Rule 78 which expressly provides that "The executor of an
executor shall not, as such, administer the estate of the first testator." It goes without saying that
this provision refers also to the administrator of an executor like PCIB here.

We are not unmindful of the fact that under Section 2 of Rule 73, "When the marriage is
dissolved by the death of the husband or wife, the community property shall be inventoried,
administered, and liquidated, and the debts thereof paid, in the testate or intestate proceedings
of the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated
in the testate or intestate proceedings of either." Indeed, it is true that the last sentence of this
provision allows or permits the conjugal partnership of spouses who are both deceased to be
settled or liquidated in the testate or intestate proceedings of either, but precisely because said
sentence allows or permits that the liquidation be made in either proceeding, it is a matter of
sound judicial discretion in which one it should be made. After all, the former rule referring to the
administrator of the husband's estate in respect to such liquidation was done away with by Act
3176, the pertinent provisions of which are now embodied in the rule just cited.

Thus, it can be seen that at the time of the death of Hodges, there was already the pending
judicial settlement proceeding of the estate of Mrs. Hodges, and, more importantly, that the
former was the executor of the latter's will who had, as such, failed for more than five years to
see to it that the same was terminated earliest, which was not difficult to do, since from ought
that appears in the record, there were no serious obstacles on the way, the estate not being
indebted and there being no immediate heirs other than Hodges himself. Such dilatory or
indifferent attitude could only spell possible prejudice of his co-heirs, whose rights to inheritance
depend entirely on the existence of any remainder of Mrs. Hodges' share in the community
properties, and who are now faced with the pose of PCIB that there is no such remainder. Had
Hodges secured as early as possible the settlement of his wife's estate, this problem would not
arisen. All things considered, We are fully convinced that the interests of justice will be better
served by not permitting or allowing PCIB or any administrator of the estate of Hodges exclusive
administration of all the properties in question. We are of the considered opinion and so hold
that what would be just and proper is for both administrators of the two estates to act conjointly
until after said estates have been segregated from each other.

At this juncture, it may be stated that we are not overlooking the fact that it is PCIB's contention
that, viewed as a substitution, the testamentary disposition in favor of Mrs. Hodges' brothers
and sisters may not be given effect. To a certain extent, this contention is correct. Indeed,
legally speaking, Mrs. Hodges' will provides neither for a simple or vulgar substitution under
Article 859 of the Civil Code nor for a fideicommissary substitution under Article 863 thereof.
There is no vulgar substitution therein because there is no provision for either (1) predecease of
the testator by the designated heir or (2) refusal or (3) incapacity of the latter to accept the
inheritance, as required by Article 859; and neither is there a fideicommissary substitution
therein because no obligation is imposed thereby upon Hodges to preserve the estate or any
part thereof for anyone else. But from these premises, it is not correct to jump to the conclusion,
as PCIB does, that the testamentary dispositions in question are therefore inoperative and
invalid.

The error in PCIB's position lies simply in the fact that it views the said disposition exclusively in
the light of substitutions covered by the Civil Code section on that subject, (Section 3, Chapter
2, Title IV, Book III) when it is obvious that substitution occurs only when another heir is
appointed in a will "so that he may enter into inheritance in default of the heir originally
instituted," (Article 857, id.) and, in the present case, no such possible default is contemplated.
The brothers and sisters of Mrs. Hodges are not substitutes for Hodges because, under her will,
they are not to inherit what Hodges cannot, would not or may not inherit, but what he would not
dispose of from his inheritance; rather, therefore, they are also heirs instituted simultaneously
with Hodges, subject, however, to certain conditions, partially resolutory insofar as Hodges was
concerned and correspondingly suspensive with reference to his brothers and sisters-in-law. It
is partially resolutory, since it bequeaths unto Hodges the whole of her estate to be owned and
enjoyed by him as universal and sole heir with absolute dominion over them 6 only during his
lifetime, which means that while he could completely and absolutely dispose of any portion
thereof inter vivos to anyone other than himself, he was not free to do so mortis causa, and all
his rights to what might remain upon his death would cease entirely upon the occurrence of that
contingency, inasmuch as the right of his brothers and sisters-in-law to the inheritance, although
vested already upon the death of Mrs. Hodges, would automatically become operative upon the
occurrence of the death of Hodges in the event of actual existence of any remainder of her
estate then.

Contrary to the view of respondent Magno, however, it was not the usufruct alone of her estate,
as contemplated in Article 869 of the Civil Code, that she bequeathed to Hodges during his
lifetime, but the full ownership thereof, although the same was to last also during his lifetime
only, even as there was no restriction whatsoever against his disposing or conveying the whole
or any portion thereof to anybody other than himself. The Court sees no legal impediment to this
kind of institution, in this jurisdiction or under Philippine law, except that it cannot apply to the
legitime of Hodges as the surviving spouse, consisting of one-half of the estate, considering that
Mrs. Hodges had no surviving ascendants nor descendants. (Arts. 872, 900, and 904, New Civil
Code.)

But relative precisely to the question of how much of Mrs. Hodges' share of the conjugal
partnership properties may be considered as her estate, the parties are in disagreement as to
how Article 16 of the Civil Code 7 should be applied. On the one hand, petitioner claims that
inasmuch as Mrs. Hodges was a resident of the Philippines at the time of her death, under said
Article 16, construed in relation to the pertinent laws of Texas and the principle ofrenvoi, what
should be applied here should be the rules of succession under the Civil Code of the
Philippines, and, therefore, her estate could consist of no more than one-fourth of the said
conjugal properties, the other fourth being, as already explained, the legitime of her husband
(Art. 900, Civil Code) which she could not have disposed of nor burdened with any condition
(Art. 872, Civil Code). On the other hand, respondent Magno denies that Mrs. Hodges died a
resident of the Philippines, since allegedly she never changed nor intended to change her
original residence of birth in Texas, United States of America, and contends that, anyway,
regardless of the question of her residence, she being indisputably a citizen of Texas, under
said Article 16 of the Civil Code, the distribution of her estate is subject to the laws of said State
which, according to her, do not provide for any legitime, hence, the brothers and sisters of Mrs.
Hodges are entitled to the remainder of the whole of her share of the conjugal partnership
properties consisting of one-half thereof. Respondent Magno further maintains that, in any
event, Hodges had renounced his rights under the will in favor of his co-heirs, as allegedly
proven by the documents touching on the point already mentioned earlier, the genuineness and
legal significance of which petitioner seemingly questions. Besides, the parties are disagreed as
to what the pertinent laws of Texas provide. In the interest of settling the estates herein involved
soonest, it would be best, indeed, if these conflicting claims of the parties were determined in
these proceedings. The Court regrets, however, that it cannot do so, for the simple reason that
neither the evidence submitted by the parties in the court below nor their discussion, in their
respective briefs and memoranda before Us, of their respective contentions on the pertinent
legal issues, of grave importance as they are, appear to Us to be adequate enough to enable
Us to render an intelligent comprehensive and just resolution. For one thing, there is no clear
and reliable proof of what in fact the possibly applicable laws of Texas are. 7* Then also, the
genuineness of documents relied upon by respondent Magno is disputed. And there are a
number of still other conceivable related issues which the parties may wish to raise but which it
is not proper to mention here. In Justice, therefore, to all the parties concerned, these and all
other relevant matters should first be threshed out fully in the trial court in the proceedings
hereafter to be held therein for the purpose of ascertaining and adjudicating and/or distributing
the estate of Mrs. Hodges to her heirs in accordance with her duly probated will.
To be more explicit, all that We can and do decide in connection with the petition
for certiorari and prohibition are: (1) that regardless of which corresponding laws are applied,
whether of the Philippines or of Texas, and taking for granted either of the respective
contentions of the parties as to provisions of the latter, 8 and regardless also of whether or not it
can be proven by competent evidence that Hodges renounced his inheritance in any degree, it
is easily and definitely discernible from the inventory submitted by Hodges himself, as Executor
of his wife's estate, that there are properties which should constitute the estate of Mrs. Hodges
and ought to be disposed of or distributed among her heirs pursuant to her will in said Special
Proceedings 1307; (2) that, more specifically, inasmuch as the question of what are the
pertinent laws of Texas applicable to the situation herein is basically one of fact, and,
considering that the sole difference in the positions of the parties as to the effect of said laws
has reference to the supposed legitime of Hodges — it being the stand of PCIB that Hodges
had such a legitime whereas Magno claims the negative - it is now beyond controversy for all
future purposes of these proceedings that whatever be the provisions actually of the laws of
Texas applicable hereto, the estate of Mrs. Hodges is at least, one-fourth of the conjugal estate
of the spouses; the existence and effects of foreign laws being questions of fact, and it being the
position now of PCIB that the estate of Mrs. Hodges, pursuant to the laws of Texas, should only
be one-fourth of the conjugal estate, such contention constitutes an admission of fact, and
consequently, it would be in estoppel in any further proceedings in these cases to claim that
said estate could be less, irrespective of what might be proven later to be actually the provisions
of the applicable laws of Texas; (3) that Special Proceedings 1307 for the settlement of the
testate estate of Mrs. Hodges cannot be closed at this stage and should proceed to its logical
conclusion, there having been no proper and legal adjudication or distribution yet of the estate
therein involved; and (4) that respondent Magno remains and continues to be the Administratrix
therein. Hence, nothing in the foregoing opinion is intended to resolve the issues which, as
already stated, are not properly before the Court now, namely, (1) whether or not Hodges had in
fact and in law waived or renounced his inheritance from Mrs. Hodges, in whole or in part, and
(2) assuming there had been no such waiver, whether or not, by the application of Article 16 of
the Civil Code, and in the light of what might be the applicable laws of Texas on the matter, the
estate of Mrs. Hodges is more than the one-fourth declared above. As a matter of fact, even our
finding above about the existence of properties constituting the estate of Mrs. Hodges rests
largely on a general appraisal of the size and extent of the conjugal partnership gathered from
reference made thereto by both parties in their briefs as well as in their pleadings included in the
records on appeal, and it should accordingly yield, as to which exactly those properties are, to
the more concrete and specific evidence which the parties are supposed to present in support of
their respective positions in regard to the foregoing main legal and factual issues. In the interest
of justice, the parties should be allowed to present such further evidence in relation to all these
issues in a joint hearing of the two probate proceedings herein involved. After all, the court a
quo has not yet passed squarely on these issues, and it is best for all concerned that it should
do so in the first instance.

Relative to Our holding above that the estate of Mrs. Hodges cannot be less than the remainder
of one-fourth of the conjugal partnership properties, it may be mentioned here that during the
deliberations, the point was raised as to whether or not said holding might be inconsistent with
Our other ruling here also that, since there is no reliable evidence as to what are the applicable
laws of Texas, U.S.A. "with respect to the order of succession and to the amount of
successional rights" that may be willed by a testator which, under Article 16 of the Civil Code,
are controlling in the instant cases, in view of the undisputed Texan nationality of the deceased
Mrs. Hodges, these cases should be returned to the court a quo, so that the parties may prove
what said law provides, it is premature for Us to make any specific ruling now on either the
validity of the testamentary dispositions herein involved or the amount of inheritance to which
the brothers and sisters of Mrs. Hodges are entitled. After nature reflection, We are of the
considered view that, at this stage and in the state of the records before Us, the feared
inconsistency is more apparent than real. Withal, it no longer lies in the lips of petitioner PCIB to
make any claim that under the laws of Texas, the estate of Mrs. Hodges could in any event be
less than that We have fixed above.

It should be borne in mind that as above-indicated, the question of what are the laws of Texas
governing the matters herein issue is, in the first instance, one of fact, not of law. Elementary is
the rule that foreign laws may not be taken judicial notice of and have to be proven like any
other fact in dispute between the parties in any proceeding, with the rare exception in instances
when the said laws are already within the actual knowledge of the court, such as when they are
well and generally known or they have been actually ruled upon in other cases before it and
none of the parties concerned do not claim otherwise. (5 Moran, Comments on the Rules of
Court, p. 41, 1970 ed.) In Fluemer vs. Hix, 54 Phil. 610, it was held:

It is the theory of the petitioner that the alleged will was executed in Elkins West Virginia, on
November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West
Virginia govern. To this end, there was submitted a copy of section 3868 of Acts 1882, c. 84 as
found in West Virginia Code, Annotated, by Hogg Charles E., vol. 2, 1914, p. 1960, and as
certified to by the Director of the National Library. But this was far from a compliance with the
law. The laws of a foreign jurisdiction do not prove themselves in our courts. The courts of the
Philippine Islands are not authorized to take judicial notice of the laws of the various States of
the American Union. Such laws must be proved as facts. (In re Estate of Johnson [1918], 39
Phil., 156.) Here the requirements of the law were not met. There was no showing that the book
from which an extract was taken was printed or published under the authority of the State of
West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract
from the law attested by the certificate of the officer having charge of the original, under the seal
of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No
evidence was introduced to show that the extract from the laws of West Virginia was in force at
the time the alleged will was executed."

No evidence of the nature thus suggested by the Court may be found in the records of the
cases at bar. Quite to the contrary, the parties herein have presented opposing versions in their
respective pleadings and memoranda regarding the matter. And even if We took into account
that in Aznar vs. Garcia, the Court did make reference to certain provisions regarding
succession in the laws of Texas, the disparity in the material dates of that case and the present
ones would not permit Us to indulge in the hazardous conjecture that said provisions have not
been amended or changed in the meantime.

On the other hand, in In re Estate of Johnson, 39 Phil. 156, We held:

Upon the other point — as to whether the will was executed in conformity with
the statutes of the State of Illinois — we note that it does not affirmatively appear
from the transcription of the testimony adduced in the trial court that any witness
was examined with reference to the law of Illinois on the subject of the execution
of will. The trial judge no doubt was satisfied that the will was properly executed
by examining section 1874 of the Revised Statutes of Illinois, as exhibited in
volume 3 of Starr & Curtis's Annotated Illinois Statutes, 2nd ed., p. 426; and he
may have assumed that he could take judicial notice of the laws of Illinois under
section 275 of the Code of Civil Procedure. If so, he was in our opinion mistaken.
That section authorizes the courts here to take judicial notice, among other
things, of the acts of the legislative department of the United States. These words
clearly have reference to Acts of the Congress of the United States; and we
would hesitate to hold that our courts can, under this provision, take judicial
notice of the multifarious laws of the various American States. Nor do we think
that any such authority can be derived from the broader language, used in the
same section, where it is said that our courts may take judicial notice of matters
of public knowledge "similar" to those therein enumerated. The proper rule we
think is to require proof of the statutes of the States of the American Union
whenever their provisions are determinative of the issues in any action litigated in
the Philippine courts.

Nevertheless, even supposing that the trial court may have erred in taking judicial
notice of the law of Illinois on the point in question, such error is not now
available to the petitioner, first, because the petition does not state any fact from
which it would appear that the law of Illinois is different from what the court found,
and, secondly, because the assignment of error and argument for the appellant
in this court raises no question based on such supposed error. Though the trial
court may have acted upon pure conjecture as to the law prevailing in the State
of Illinois, its judgment could not be set aside, even upon application made within
six months under section 113 of the Code of Civil Procedure, unless it should be
made to appear affirmatively that the conjecture was wrong. The petitioner, it is
true, states in general terms that the will in question is invalid and inadequate to
pass real and personal property in the State of Illinois, but this is merely a
conclusion of law. The affidavits by which the petition is accompanied contain no
reference to the subject, and we are cited to no authority in the appellant's brief
which might tend to raise a doubt as to the correctness of the conclusion of the
trial court. It is very clear, therefore, that this point cannot be urged as of serious
moment.

It is implicit in the above ruling that when, with respect to certain aspects of the foreign laws
concerned, the parties in a given case do not have any controversy or are more or less in
agreement, the Court may take it for granted for the purposes of the particular case before it
that the said laws are as such virtual agreement indicates, without the need of requiring the
presentation of what otherwise would be the competent evidence on the point. Thus, in the
instant cases wherein it results from the respective contentions of both parties that even if the
pertinent laws of Texas were known and to be applied, the amount of the inheritance pertaining
to the heirs of Mrs. Hodges is as We have fixed above, the absence of evidence to the effect
that, actually and in fact, under said laws, it could be otherwise is of no longer of any
consequence, unless the purpose is to show that it could be more. In other words, since PCIB,
the petitioner-appellant, concedes that upon application of Article 16 of the Civil Code and the
pertinent laws of Texas, the amount of the estate in controversy is just as We have determined
it to be, and respondent-appellee is only claiming, on her part, that it could be more, PCIB may
not now or later pretend differently.

To be more concrete, on pages 20-21 of its petition herein, dated July 31, 1967, PCIB states
categorically:

Inasmuch as Article 16 of the Civil Code provides that "intestate and


testamentary successions both with respect to the order of succession and to the
amount of successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property
and regardless of the country wherein said property may be found", while the law
of Texas (the Hodges spouses being nationals of U.S.A., State of Texas), in its
conflicts of law rules, provides that the domiciliary law (in this case Philippine
law) governs the testamentary dispositions and successional rights over
movables or personal properties, while the law of the situs (in this case also
Philippine law with respect to all Hodges properties located in the Philippines),
governs with respect to immovable properties, and applying therefore the 'renvoi
doctrine' as enunciated and applied by this Honorable Court in the case of In re
Estate of Christensen (G.R. No. L-16749, Jan. 31, 1963), there can be no
question that Philippine law governs the testamentary dispositions contained in
the Last Will and Testament of the deceased Linnie Jane Hodges, as well as the
successional rights to her estate, both with respect to movables, as well as to
immovables situated in the Philippines.

In its main brief dated February 26, 1968, PCIB asserts:

The law governing successional rights.

As recited above, there is no question that the deceased, Linnie Jane Hodges,
was an American citizen. There is also no question that she was a national of the
State of Texas, U.S.A. Again, there is likewise no question that she had her
domicile of choice in the City of Iloilo, Philippines, as this has already been
pronounced by the above-cited orders of the lower court, pronouncements which
are by now res adjudicata (par. [a], See. 49, Rule 39, Rules of Court; In re Estate
of Johnson, 39 Phil. 156).

Article 16 of the Civil Code provides:

"Real property as well as personal property is subject to the law of the country
where it is situated.

However, intestate and testamentary successions, both with respect to the order
of succession and to the amount of successional rights and to the intrinsic validity
of testamentary provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the nature of the
property and regardless of the country wherein said property may be found."

Thus the aforecited provision of the Civil Code points towards the national law of
the deceased, Linnie Jane Hodges, which is the law of Texas, as governing
succession "both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary provisions ...". But
the law of Texas, in its conflicts of law rules, provides that the domiciliary law
governs the testamentary dispositions and successional rights over movables or
personal property, while the law of the situs governs with respect to immovable
property. Such that with respect to both movable property, as well as immovable
property situated in the Philippines, the law of Texas points to the law of the
Philippines.
Applying, therefore, the so-called "renvoi doctrine", as enunciated and applied by
this Honorable Court in the case of "In re Christensen" (G.R. No. L-16749, Jan.
31, 1963), there can be no question that Philippine law governs the testamentary
provisions in the Last Will and Testament of the deceased Linnie Jane Hodges,
as well as the successional rights to her estate, both with respect to movables,
as well as immovables situated in the Philippines.

The subject of successional rights.

Under Philippine law, as it is under the law of Texas, the conjugal or community
property of the spouses, Charles Newton Hodges and Linnie Jane Hodges, upon
the death of the latter, is to be divided into two, one-half pertaining to each of the
spouses, as his or her own property. Thus, upon the death of Linnie Jane
Hodges, one-half of the conjugal partnership property immediately pertained to
Charles Newton Hodges as his own share, and not by virtue of any successional
rights. There can be no question about this.

Again, Philippine law, or more specifically, Article 900 of the Civil Code provides:

If the only survivor is the widow or widower, she or he shall be


entitled to one-half of the hereditary estate of the deceased
spouse, and the testator may freely dispose of the other half.

If the marriage between the surviving spouse and the testator was
solemnized in articulo mortis, and the testator died within three
months from the time of the marriage, the legitime of the surviving
spouse as the sole heir shall be one-third of the hereditary estate,
except when they have been living as husband and wife for more
than five years. In the latter case, the legitime of the surviving
spouse shall be that specified in the preceding paragraph.

This legitime of the surviving spouse cannot be burdened by a fideicommisary


substitution (Art. 864, Civil code), nor by any charge, condition, or substitution
(Art, 872, Civil code). It is clear, therefore, that in addition to one-half of the
conjugal partnership property as his own conjugal share, Charles Newton
Hodges was also immediately entitled to one-half of the half conjugal share of the
deceased, Linnie Jane Hodges, or one-fourth of the entire conjugal property, as
his legitime.

One-fourth of the conjugal property therefore remains at issue.

In the summary of its arguments in its memorandum dated April 30, 1968, the following
appears:

Briefly, the position advanced by the petitioner is:

a. That the Hodges spouses were domiciled legally in the Philippines (pp. 19-20,
petition). This is now a matter of res adjudicata (p. 20, petition).
b. That under Philippine law, Texas law, and the renvoi doctrine, Philippine law
governs the successional rights over the properties left by the deceased, Linnie
Jane Hodges (pp. 20-21, petition).

c. That under Philippine as well as Texas law, one-half of the Hodges properties
pertains to the deceased, Charles Newton Hodges (p. 21, petition). This is not
questioned by the respondents.

d. That under Philippine law, the deceased, Charles Newton Hodges,


automatically inherited one-half of the remaining one-half of the Hodges
properties as his legitime (p. 21, petition).

e. That the remaining 25% of the Hodges properties was inherited by the
deceased, Charles Newton Hodges, under the will of his deceased spouse (pp.
22-23, petition). Upon the death of Charles Newton Hodges, the substitution
'provision of the will of the deceased, Linnie Jane Hodges, did not operate
because the same is void (pp. 23-25, petition).

f. That the deceased, Charles Newton Hodges, asserted his sole ownership of
the Hodges properties and the probate court sanctioned such assertion (pp. 25-
29, petition). He in fact assumed such ownership and such was the status of the
properties as of the time of his death (pp. 29-34, petition).

Of similar tenor are the allegations of PCIB in some of its pleadings quoted in the earlier part of
this option.

On her part, it is respondent-appellee Magno's posture that under the laws of Texas, there is no
system of legitime, hence the estate of Mrs. Hodges should be one-half of all the conjugal
properties.

It is thus unquestionable that as far as PCIB is concerned, the application to these cases of
Article 16 of the Civil Code in relation to the corresponding laws of Texas would result in that the
Philippine laws on succession should control. On that basis, as We have already explained
above, the estate of Mrs. Hodges is the remainder of one-fourth of the conjugal partnership
properties, considering that We have found that there is no legal impediment to the kind of
disposition ordered by Mrs. Hodges in her will in favor of her brothers and sisters and, further,
that the contention of PCIB that the same constitutes an inoperative testamentary substitution is
untenable. As will be recalled, PCIB's position that there is no such estate of Mrs. Hodges is
predicated exclusively on two propositions, namely: (1) that the provision in question in Mrs.
Hodges' testament violates the rules on substitution of heirs under the Civil Code and (2) that, in
any event, by the orders of the trial court of May 27, and December 14, 1957, the trial court had
already finally and irrevocably adjudicated to her husband the whole free portion of her estate to
the exclusion of her brothers and sisters, both of which poses, We have overruled. Nowhere in
its pleadings, briefs and memoranda does PCIB maintain that the application of the laws of
Texas would result in the other heirs of Mrs. Hodges not inheriting anything under her will. And
since PCIB's representations in regard to the laws of Texas virtually constitute admissions of
fact which the other parties and the Court are being made to rely and act upon, PCIB is "not
permitted to contradict them or subsequently take a position contradictory to or inconsistent with
them." (5 Moran, id, p. 65, citing Cunanan vs. Amparo, 80 Phil. 227; Sta. Ana vs. Maliwat, L-
23023, Aug. 31, 1968, 24 SCRA 1018).
Accordingly, the only question that remains to be settled in the further proceedings hereby
ordered to be held in the court below is how much more than as fixed above is the estate of
Mrs. Hodges, and this would depend on (1) whether or not the applicable laws of Texas do
provide in effect for more, such as, when there is no legitime provided therein, and (2) whether
or not Hodges has validly waived his whole inheritance from Mrs. Hodges.

In the course of the deliberations, it was brought out by some members of the Court that to
avoid or, at least, minimize further protracted legal controversies between the respective heirs of
the Hodges spouses, it is imperative to elucidate on the possible consequences of dispositions
made by Hodges after the death of his wife from the mass of the unpartitioned estates without
any express indication in the pertinent documents as to whether his intention is to dispose of
part of his inheritance from his wife or part of his own share of the conjugal estate as well as of
those made by PCIB after the death of Hodges. After a long discussion, the consensus arrived
at was as follows: (1) any such dispositions made gratuitously in favor of third parties, whether
these be individuals, corporations or foundations, shall be considered as intended to be of
properties constituting part of Hodges' inheritance from his wife, it appearing from the tenor of
his motions of May 27 and December 11, 1957 that in asking for general authority to make sales
or other disposals of properties under the jurisdiction of the court, which include his own share
of the conjugal estate, he was not invoking particularly his right over his own share, but rather
his right to dispose of any part of his inheritance pursuant to the will of his wife; (2) as regards
sales, exchanges or other remunerative transfers, the proceeds of such sales or the properties
taken in by virtue of such exchanges, shall be considered as merely the products of "physical
changes" of the properties of her estate which the will expressly authorizes Hodges to make,
provided that whatever of said products should remain with the estate at the time of the death of
Hodges should go to her brothers and sisters; (3) the dispositions made by PCIB after the death
of Hodges must naturally be deemed as covering only the properties belonging to his estate
considering that being only the administrator of the estate of Hodges, PCIB could not have
disposed of properties belonging to the estate of his wife. Neither could such dispositions be
considered as involving conjugal properties, for the simple reason that the conjugal partnership
automatically ceased when Mrs. Hodges died, and by the peculiar provision of her will, under
discussion, the remainder of her share descended also automatically upon the death of Hodges
to her brothers and sisters, thus outside of the scope of PCIB's administration. Accordingly,
these construction of the will of Mrs. Hodges should be adhered to by the trial court in its final
order of adjudication and distribution and/or partition of the two estates in question.

THE APPEALS

A cursory examination of the seventy-eight assignments of error in appellant PCIB's brief would
readily reveal that all of them are predicated mainly on the contention that inasmuch as Hodges
had already adjudicated unto himself all the properties constituting his wife's share of the
conjugal partnership, allegedly with the sanction of the trial court per its order of December 14,
1957, there has been, since said date, no longer any estate of Mrs. Hodges of which appellee
Magno could be administratrix, hence the various assailed orders sanctioning her actuations as
such are not in accordance with law. Such being the case, with the foregoing resolution holding
such posture to be untenable in fact and in law and that it is in the best interest of justice that for
the time being the two estates should be administered conjointly by the respective
administrators of the two estates, it should follow that said assignments of error have lost their
fundamental reasons for being. There are certain matters, however, relating peculiarly to the
respective orders in question, if commonly among some of them, which need further
clarification. For instance, some of them authorized respondent Magno to act alone or without
concurrence of PCIB. And with respect to many of said orders, PCIB further claims that either
the matters involved were not properly within the probate jurisdiction of the trial court or that the
procedure followed was not in accordance with the rules. Hence, the necessity of dealing
separately with the merits of each of the appeals.

Indeed, inasmuch as the said two estates have until now remained commingled pro-indiviso,
due to the failure of Hodges and the lower court to liquidate the conjugal partnership, to
recognize appellee Magno as Administratrix of the Testate Estate of Mrs. Hodges which is still
unsegregated from that of Hodges is not to say, without any qualification, that she was therefore
authorized to do and perform all her acts complained of in these appeals, sanctioned though
they might have been by the trial court. As a matter of fact, it is such commingling pro-indivisoof
the two estates that should deprive appellee of freedom to act independently from PCIB, as
administrator of the estate of Hodges, just as, for the same reason, the latter should not have
authority to act independently from her. And considering that the lower court failed to adhere
consistently to this basic point of view, by allowing the two administrators to act independently of
each other, in the various instances already noted in the narration of facts above, the Court has
to look into the attendant circumstances of each of the appealed orders to be able to determine
whether any of them has to be set aside or they may all be legally maintained notwithstanding
the failure of the court a quo to observe the pertinent procedural technicalities, to the end only
that graver injury to the substantive rights of the parties concerned and unnecessary and
undesirable proliferation of incidents in the subject proceedings may be forestalled. In other
words, We have to determine, whether or not, in the light of the unusual circumstances extant in
the record, there is need to be more pragmatic and to adopt a rather unorthodox approach, so
as to cause the least disturbance in rights already being exercised by numerous innocent third
parties, even if to do so may not appear to be strictly in accordance with the letter of the
applicable purely adjective rules.

Incidentally, it may be mentioned, at this point, that it was principally on account of the confusion
that might result later from PCIB's continuing to administer all the community properties,
notwithstanding the certainty of the existence of the separate estate of Mrs. Hodges, and to
enable both estates to function in the meantime with a relative degree of regularity, that the
Court ordered in the resolution of September 8, 1972 the modification of the injunction issued
pursuant to the resolutions of August 8, October 4 and December 6, 1967, by virtue of which
respondent Magno was completely barred from any participation in the administration of the
properties herein involved. In the September 8 resolution, We ordered that, pending this
decision, Special Proceedings 1307 and 1672 should proceed jointly and that the respective
administrators therein "act conjointly — none of them to act singly and independently of each
other for any purpose." Upon mature deliberation, We felt that to allow PCIB to continue
managing or administering all the said properties to the exclusion of the administratrix of Mrs.
Hodges' estate might place the heirs of Hodges at an unduly advantageous position which could
result in considerable, if not irreparable, damage or injury to the other parties concerned. It is
indeed to be regretted that apparently, up to this date, more than a year after said resolution,
the same has not been given due regard, as may be gleaned from the fact that recently,
respondent Magno has filed in these proceedings a motion to declare PCIB in contempt for
alleged failure to abide therewith, notwithstanding that its repeated motions for reconsideration
thereof have all been denied soon after they were filed. 9

Going back to the appeals, it is perhaps best to begin first with what appears to Our mind to be
the simplest, and then proceed to the more complicated ones in that order, without regard to the
numerical sequence of the assignments of error in appellant's brief or to the order of the
discussion thereof by counsel.

Assignments of error numbers


LXXII, LXXVII and LXXVIII.

These assignments of error relate to (1) the order of the trial court of August 6, 1965 providing
that "the deeds of sale (therein referred to involving properties in the name of Hodges) should
be signed jointly by the PCIB, as Administrator of Testate Estate of C.N. Hodges, and Avelina A.
Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges, and to this effect, the
PCIB should take the necessary steps so that Administratrix Avelina A. Magno could sign the
deeds of sale," (p. 248, Green Rec. on Appeal) (2) the order of October 27, 1965 denying the
motion for reconsideration of the foregoing order, (pp. 276-277, id.) (3) the other order also
dated October 27, 1965 enjoining inter alia, that "(a) all cash collections should be deposited in
the joint account of the estate of Linnie Jane Hodges and estate of C. N. Hodges, (b) that
whatever cash collections (that) had been deposited in the account of either of the estates
should be withdrawn and since then (sic) deposited in the joint account of the estate of Linnie
Jane Hodges and the estate of C. N. Hodges; ... (d) (that) Administratrix Magno — allow the
PCIB to inspect whatever records, documents and papers she may have in her possession, in
the same manner that Administrator PCIB is also directed to allow Administratrix Magno to
inspect whatever records, documents and papers it may have in its possession" and "(e) that
the accountant of the estate of Linnie Jane Hodges shall have access to all records of the
transactions of both estates for the protection of the estate of Linnie Jane Hodges; and in like
manner, the accountant or any authorized representative of the estate of C. N. Hodges shall
have access to the records of transactions of the Linnie Jane Hodges estate for the protection of
the estate of C. N. Hodges", (pp. 292-295, id.) and (4) the order of February 15, 1966, denying,
among others, the motion for reconsideration of the order of October 27, 1965 last referred to.
(pp. 455-456, id.)

As may be readily seen, the thrust of all these four impugned orders is in line with the Court's
above-mentioned resolution of September 8, 1972 modifying the injunction previously issued on
August 8, 1967, and, more importantly, with what We have said the trial court should have
always done pending the liquidation of the conjugal partnership of the Hodges spouses. In fact,
as already stated, that is the arrangement We are ordering, by this decision, to be followed.
Stated differently, since the questioned orders provide for joint action by the two administrators,
and that is precisely what We are holding out to have been done and should be done until the
two estates are separated from each other, the said orders must be affirmed. Accordingly the
foregoing assignments of error must be, as they are hereby overruled.

Assignments of error Numbers LXVIII


to LXXI and LXXIII to LXXVI.

The orders complained of under these assignments of error commonly deal with expenditures
made by appellee Magno, as Administratrix of the Estate of Mrs. Hodges, in connection with her
administration thereof, albeit additionally, assignments of error Numbers LXIX to LXXI put into
question the payment of attorneys fees provided for in the contract for the purpose, as
constituting, in effect, premature advances to the heirs of Mrs. Hodges.

More specifically, assignment Number LXXIII refers to reimbursement of overtime pay paid to
six employees of the court and three other persons for services in copying the court records to
enable the lawyers of the administration to be fully informed of all the incidents in the
proceedings. The reimbursement was approved as proper legal expenses of administration per
the order of December 19, 1964, (pp. 221-222, id.) and repeated motions for reconsideration
thereof were denied by the orders of January 9, 1965, (pp. 231-232, id.) October 27, 1965, (p.
277, id.) and February 15, 1966. (pp. 455-456, id.) On the other hand, Assignments Numbers
LXVIII to LXXI, LXXIV and LXXV question the trial court's order of November 3, 1965 approving
the agreement of June 6, 1964 between Administratrix Magno and James L. Sullivan, attorney-
in-fact of the heirs of Mrs. Hodges, as Parties of the First Part, and Attorneys Raul Manglapus
and Rizal R. Quimpo, as Parties of the Second Part, regarding attorneys fees for said counsel
who had agreed "to prosecute and defend their interests (of the Parties of the First Part) in
certain cases now pending litigation in the Court of First Instance of Iloilo —, more specifically in
Special Proceedings 1307 and 1672 —" (pp. 126-129, id.) and directing Administratrix Magno
"to issue and sign whatever check or checks maybe needed to implement the approval of the
agreement annexed to the motion" as well as the "administrator of the estate of C. N. Hodges —
to countersign the said check or checks as the case maybe." (pp. 313-320, id.), reconsideration
of which order of approval was denied in the order of February 16, 1966, (p. 456,id.)
Assignment Number LXXVI imputes error to the lower court's order of October 27, 1965, already
referred to above, insofar as it orders that "PCIB should counter sign the check in the amount of
P250 in favor of Administratrix Avelina A. Magno as her compensation as administratrix of
Linnie Jane Hodges estate chargeable to the Testate Estate of Linnie Jane Hodges only." (p.
294, id.)

Main contention again of appellant PCIB in regard to these eight assigned errors is that there is
no such estate as the estate of Mrs. Hodges for which the questioned expenditures were made,
hence what were authorized were in effect expenditures from the estate of Hodges. As We have
already demonstrated in Our resolution above of the petition for certiorari and prohibition, this
posture is incorrect. Indeed, in whichever way the remaining issues between the parties in these
cases are ultimately resolved, 10 the final result will surely be that there are properties
constituting the estate of Mrs. Hodges of which Magno is the current administratrix. It follows,
therefore, that said appellee had the right, as such administratrix, to hire the persons whom she
paid overtime pay and to be paid for her own services as administratrix. That she has not yet
collected and is not collecting amounts as substantial as that paid to or due appellant PCIB is to
her credit.

Of course, she is also entitled to the services of counsel and to that end had the authority to
enter into contracts for attorney's fees in the manner she had done in the agreement of June 6,
1964. And as regards to the reasonableness of the amount therein stipulated, We see no
reason to disturb the discretion exercised by the probate court in determining the same. We
have gone over the agreement, and considering the obvious size of the estate in question and
the nature of the issues between the parties as well as the professional standing of counsel, We
cannot say that the fees agreed upon require the exercise by the Court of its inherent power to
reduce it.

PCIB insists, however, that said agreement of June 6, 1964 is not for legal services to the estate
but to the heirs of Mrs. Hodges, or, at most, to both of them, and such being the case, any
payment under it, insofar as counsels' services would redound to the benefit of the heirs, would
be in the nature of advances to such heirs and a premature distribution of the estate. Again, We
hold that such posture cannot prevail.
Upon the premise We have found plausible that there is an existing estate of Mrs. Hodges, it
results that juridically and factually the interests involved in her estate are distinct and different
from those involved in her estate of Hodges and vice versa. Insofar as the matters related
exclusively to the estate of Mrs. Hodges, PCIB, as administrator of the estate of Hodges, is a
complete stranger and it is without personality to question the actuations of the administratrix
thereof regarding matters not affecting the estate of Hodges. Actually, considering the obviously
considerable size of the estate of Mrs. Hodges, We see no possible cause for apprehension that
when the two estates are segregated from each other, the amount of attorney's fees stipulated
in the agreement in question will prejudice any portion that would correspond to Hodges' estate.

And as regards the other heirs of Mrs. Hodges who ought to be the ones who should have a say
on the attorney's fees and other expenses of administration assailed by PCIB, suffice it to say
that they appear to have been duly represented in the agreement itself by their attorney-in-fact,
James L. Sullivan and have not otherwise interposed any objection to any of the expenses
incurred by Magno questioned by PCIB in these appeals. As a matter of fact, as ordered by the
trial court, all the expenses in question, including the attorney's fees, may be paid without
awaiting the determination and segregation of the estate of Mrs. Hodges.

Withal, the weightiest consideration in connection with the point under discussion is that at this
stage of the controversy among the parties herein, the vital issue refers to the existence or non-
existence of the estate of Mrs. Hodges. In this respect, the interest of respondent Magno, as the
appointed administratrix of the said estate, is to maintain that it exists, which is naturally
common and identical with and inseparable from the interest of the brothers and sisters of Mrs.
Hodges. Thus, it should not be wondered why both Magno and these heirs have seemingly
agreed to retain but one counsel. In fact, such an arrangement should be more convenient and
economical to both. The possibility of conflict of interest between Magno and the heirs of Mrs.
Hodges would be, at this stage, quite remote and, in any event, rather insubstantial. Besides,
should any substantial conflict of interest between them arise in the future, the same would be a
matter that the probate court can very well take care of in the course of the independent
proceedings in Case No. 1307 after the corresponding segregation of the two subject estates.
We cannot perceive any cogent reason why, at this stage, the estate and the heirs of Mrs.
Hodges cannot be represented by a common counsel.

Now, as to whether or not the portion of the fees in question that should correspond to the heirs
constitutes premature partial distribution of the estate of Mrs. Hodges is also a matter in which
neither PCIB nor the heirs of Hodges have any interest. In any event, since, as far as the
records show, the estate has no creditors and the corresponding estate and inheritance taxes,
except those of the brothers and sisters of Mrs. Hodges, have already been paid, 11 no prejudice
can caused to anyone by the comparatively small amount of attorney's fees in question. And in
this connection, it may be added that, although strictly speaking, the attorney's fees of the
counsel of an administrator is in the first instance his personal responsibility, reimbursable later
on by the estate, in the final analysis, when, as in the situation on hand, the attorney-in-fact of
the heirs has given his conformity thereto, it would be idle effort to inquire whether or not the
sanction given to said fees by the probate court is proper.

For the foregoing reasons, Assignments of Error LXVIII to LXXI and LXXIII to LXXVI should be
as they are hereby overruled.
Assignments of error I to IV,
XIII to XV, XXII to XXV, XXXV
to XXX VI, XLI to XLIII and L.

These assignments of error deal with the approval by the trial court of various deeds of sale of
real properties registered in the name of Hodges but executed by appellee Magno, as
Administratrix of the Estate of Mrs. Hodges, purportedly in implementation of corresponding
supposed written "Contracts to Sell" previously executed by Hodges during the interim between
May 23, 1957, when his wife died, and December 25, 1962, the day he died. As stated on pp.
118-120 of appellant's main brief, "These are: the, contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Pepito G. Iyulores executed on February 5, 1961;
the contract to sell between the deceased, Charles Newton Hodges, and the appellant
Esperidion Partisala, executed on April 20, 1960; the contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Winifredo C. Espada, executed on April 18, 1960;
the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Rosario
Alingasa, executed on August 25, 1958; the contract to sell between the deceased, Charles
Newton Hodges, and the appellee, Lorenzo Carles, executed on June 17, 1958; the contract to
sell between the deceased, Charles Newton Hodges, and the appellee, Salvador S. Guzman,
executed on September 13, 1960; the contract to sell between the deceased, Charles Newton
Hodges, and the appellee, Florenia Barrido, executed on February 21, 1958; the contract to sell
between the deceased, Charles Newton Hodges, and the appellee, Purificacion Coronado,
executed on August 14, 1961; the contract to sell between the deceased, Charles Newton
Hodges, and the appellee, Graciano Lucero, executed on November 27, 1961; the contract to
sell between the deceased, Charles Newton Hodges, and the appellee, Ariteo Thomas Jamir,
executed on May 26, 1961; the contract to sell between the deceased, Charles Newton Hodges,
and the appellee, Melquiades Batisanan, executed on June 9, 1959; the contract to sell
between the deceased, Charles Newton Hodges, and the appellee, Belcezar Causing, executed
on February 10, 1959 and the contract to sell between the deceased, Charles Newton Hodges,
and the appellee, Adelfa Premaylon, executed on October 31, 1959, re Title No. 13815."

Relative to these sales, it is the position of appellant PCIB that, inasmuch as pursuant to the will
of Mrs. Hodges, her husband was to have dominion over all her estate during his lifetime, it was
as absolute owner of the properties respectively covered by said sales that he executed the
aforementioned contracts to sell, and consequently, upon his death, the implementation of said
contracts may be undertaken only by the administrator of his estate and not by the
administratrix of the estate of Mrs. Hodges. Basically, the same theory is invoked with particular
reference to five other sales, in which the respective "contracts to sell" in favor of these
appellees were executed by Hodges before the death of his wife, namely, those in favor of
appellee Santiago Pacaonsis, Alfredo Catedral, Jose Pablico, Western Institute of Technology
and Adelfa Premaylon.

Anent those deeds of sale based on promises or contracts to sell executed by Hodges after the
death of his wife, those enumerated in the quotation in the immediately preceding paragraph, it
is quite obvious that PCIB's contention cannot be sustained. As already explained earlier, 1 1* all
proceeds of remunerative transfers or dispositions made by Hodges after the death of his wife
should be deemed as continuing to be parts of her estate and, therefore, subject to the terms of
her will in favor of her brothers and sisters, in the sense that should there be no showing that
such proceeds, whether in cash or property have been subsequently conveyed or assigned
subsequently by Hodges to any third party by acts inter vivos with the result that they could not
thereby belong to him anymore at the time of his death, they automatically became part of the
inheritance of said brothers and sisters. The deeds here in question involve transactions which
are exactly of this nature. Consequently, the payments made by the appellees should be
considered as payments to the estate of Mrs. Hodges which is to be distributed and partitioned
among her heirs specified in the will.

The five deeds of sale predicated on contracts to sell executed Hodges during the lifetime of his
wife, present a different situation. At first blush, it would appear that as to them, PCIB's position
has some degree of plausibility. Considering, however, that the adoption of PCIB's theory would
necessarily have tremendous repercussions and would bring about considerable disturbance of
property rights that have somehow accrued already in favor of innocent third parties, the five
purchasers aforenamed, the Court is inclined to take a pragmatic and practical view of the legal
situation involving them by overlooking the possible technicalities in the way, the non-
observance of which would not, after all, detract materially from what should substantially
correspond to each and all of the parties concerned.

To start with, these contracts can hardly be ignored. Bona fide third parties are involved; as
much as possible, they should not be made to suffer any prejudice on account of judicial
controversies not of their own making. What is more, the transactions they rely on were
submitted by them to the probate court for approval, and from already known and recorded
actuations of said court then, they had reason to believe that it had authority to act on their
motions, since appellee Magno had, from time to time prior to their transactions with her, been
allowed to act in her capacity as administratrix of one of the subject estates either alone or
conjointly with PCIB. All the sales in question were executed by Magno in 1966 already, but
before that, the court had previously authorized or otherwise sanctioned expressly many of her
act as administratrix involving expenditures from the estate made by her either conjointly with or
independently from PCIB, as Administrator of the Estate of Hodges. Thus, it may be said that
said buyers-appellees merely followed precedents in previous orders of the court. Accordingly,
unless the impugned orders approving those sales indubitably suffer from some clearly fatal
infirmity the Court would rather affirm them.

It is quite apparent from the record that the properties covered by said sales are equivalent only
to a fraction of what should constitute the estate of Mrs. Hodges, even if it is assumed that the
same would finally be held to be only one-fourth of the conjugal properties of the spouses as of
the time of her death or, to be more exact, one-half of her estate as per the inventory submitted
by Hodges as executor, on May 12, 1958. In none of its numerous, varied and voluminous
pleadings, motions and manifestations has PCIB claimed any possibility otherwise. Such being
the case, to avoid any conflict with the heirs of Hodges, the said properties covered by the
questioned deeds of sale executed by appellee Magno may be treated as among those
corresponding to the estate of Mrs. Hodges, which would have been actually under her control
and administration had Hodges complied with his duty to liquidate the conjugal partnership.
Viewing the situation in that manner, the only ones who could stand to be prejudiced by the
appealed orders referred to in the assignment of errors under discussion and who could,
therefore, have the requisite interest to question them would be only the heirs of Mrs. Hodges,
definitely not PCIB.

It is of no moment in what capacity Hodges made the "contracts to sell' after the death of his
wife. Even if he had acted as executor of the will of his wife, he did not have to submit those
contracts to the court nor follow the provisions of the rules, (Sections 2, 4, 5, 6, 8 and 9 of Rule
89 quoted by appellant on pp. 125 to 127 of its brief) for the simple reason that by the very
orders, much relied upon by appellant for other purposes, of May 27, 1957 and December 14,
1957, Hodges was "allowed or authorized" by the trial court "to continue the business in which
he was engaged and to perform acts which he had been doing while the deceased was living",
(Order of May 27) which according to the motion on which the court acted was "of buying and
selling personal and real properties", and "to execute subsequent sales, conveyances, leases
and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance
with the wishes conveyed in the last will and testament of the latter." (Order of December 14) In
other words, if Hodges acted then as executor, it can be said that he had authority to do so by
virtue of these blanket orders, and PCIB does not question the legality of such grant of authority;
on the contrary, it is relying on the terms of the order itself for its main contention in these cases.
On the other hand, if, as PCIB contends, he acted as heir-adjudicatee, the authority given to him
by the aforementioned orders would still suffice.

As can be seen, therefore, it is of no moment whether the "contracts to sell" upon which the
deeds in question were based were executed by Hodges before or after the death of his wife. In
a word, We hold, for the reasons already stated, that the properties covered by the deeds being
assailed pertain or should be deemed as pertaining to the estate of Mrs. Hodges; hence, any
supposed irregularity attending the actuations of the trial court may be invoked only by her heirs,
not by PCIB, and since the said heirs are not objecting, and the defects pointed out not being
strictly jurisdictional in nature, all things considered, particularly the unnecessary disturbance of
rights already created in favor of innocent third parties, it is best that the impugned orders are
not disturbed.

In view of these considerations, We do not find sufficient merit in the assignments of error under
discussion.

Assignments of error V to VIII,


XVI to XVIII, XXVI to XXIX, XXXVII
to XXXVIII, XLIV to XLVI and LI.

All these assignments of error commonly deal with alleged non-fulfillment by the respective
vendees, appellees herein, of the terms and conditions embodied in the deeds of sale referred
to in the assignments of error just discussed. It is claimed that some of them never made full
payments in accordance with the respective contracts to sell, while in the cases of the others,
like Lorenzo Carles, Jose Pablico, Alfredo Catedral and Salvador S. Guzman, the contracts with
them had already been unilaterally cancelled by PCIB pursuant to automatic rescission clauses
contained in them, in view of the failure of said buyers to pay arrearages long overdue. But
PCIB's posture is again premised on its assumption that the properties covered by the deeds in
question could not pertain to the estate of Mrs. Hodges. We have already held above that, it
being evident that a considerable portion of the conjugal properties, much more than the
properties covered by said deeds, would inevitably constitute the estate of Mrs. Hodges, to
avoid unnecessary legal complications, it can be assumed that said properties form part of such
estate. From this point of view, it is apparent again that the questions, whether or not it was
proper for appellee Magno to have disregarded the cancellations made by PCIB, thereby
reviving the rights of the respective buyers-appellees, and, whether or not the rules governing
new dispositions of properties of the estate were strictly followed, may not be raised by PCIB
but only by the heirs of Mrs. Hodges as the persons designated to inherit the same, or perhaps
the government because of the still unpaid inheritance taxes. But, again, since there is no
pretense that any objections were raised by said parties or that they would necessarily be
prejudiced, the contentions of PCIB under the instant assignments of error hardly merit any
consideration.
Assignments of error IX to XII, XIX
to XXI, XXX to XXIV, XXXIX to XL,
XLVII to XLIX, LII and LIII to LXI.

PCIB raises under these assignments of error two issues which according to it are fundamental,
namely: (1) that in approving the deeds executed by Magno pursuant to contracts to sell already
cancelled by it in the performance of its functions as administrator of the estate of Hodges, the
trial court deprived the said estate of the right to invoke such cancellations it (PCIB) had made
and (2) that in so acting, the court "arrogated unto itself, while acting as a probate court, the
power to determine the contending claims of third parties against the estate of Hodges over real
property," since it has in effect determined whether or not all the terms and conditions of the
respective contracts to sell executed by Hodges in favor of the buyers-appellees concerned
were complied with by the latter. What is worse, in the view of PCIB, is that the court has taken
the word of the appellee Magno, "a total stranger to his estate as determinative of the issue".

Actually, contrary to the stand of PCIB, it is this last point regarding appellee Magno's having
agreed to ignore the cancellations made by PCIB and allowed the buyers-appellees to
consummate the sales in their favor that is decisive. Since We have already held that the
properties covered by the contracts in question should be deemed to be portions of the estate of
Mrs. Hodges and not that of Hodges, it is PCIB that is a complete stranger in these incidents.
Considering, therefore, that the estate of Mrs. Hodges and her heirs who are the real parties in
interest having the right to oppose the consummation of the impugned sales are not objecting,
and that they are the ones who are precisely urging that said sales be sanctioned, the
assignments of error under discussion have no basis and must accordingly be as they are
hereby overruled.

With particular reference to assignments LIII to LXI, assailing the orders of the trial court
requiring PCIB to surrender the respective owner's duplicate certificates of title over the
properties covered by the sales in question and otherwise directing the Register of Deeds of
Iloilo to cancel said certificates and to issue new transfer certificates of title in favor of the
buyers-appellees, suffice it to say that in the light of the above discussion, the trial court was
within its rights to so require and direct, PCIB having refused to give way, by withholding said
owners' duplicate certificates, of the corresponding registration of the transfers duly and legally
approved by the court.

Assignments of error LXII to LXVII

All these assignments of error commonly deal with the appeal against orders favoring appellee
Western Institute of Technology. As will be recalled, said institute is one of the buyers of real
property covered by a contract to sell executed by Hodges prior to the death of his wife. As of
October, 1965, it was in arrears in the total amount of P92,691.00 in the payment of its
installments on account of its purchase, hence it received under date of October 4, 1965 and
October 20, 1965, letters of collection, separately and respectively, from PCIB and appellee
Magno, in their respective capacities as administrators of the distinct estates of the Hodges
spouses, albeit, while in the case of PCIB it made known that "no other arrangement can be
accepted except by paying all your past due account", on the other hand, Magno merely said
she would "appreciate very much if you can make some remittance to bring this account up-to-
date and to reduce the amount of the obligation." (See pp. 295-311, Green R. on A.) On
November 3, 1965, the Institute filed a motion which, after alleging that it was ready and willing
to pay P20,000 on account of its overdue installments but uncertain whether it should pay PCIB
or Magno, it prayed that it be "allowed to deposit the aforesaid amount with the court pending
resolution of the conflicting claims of the administrators." Acting on this motion, on November
23, 1965, the trial court issued an order, already quoted in the narration of facts in this opinion,
holding that payment to both or either of the two administrators is "proper and legal", and so
"movant — can pay to both estates or either of them", considering that "in both cases (Special
Proceedings 1307 and 1672) there is as yet no judicial declaration of heirs nor distribution of
properties to whomsoever are entitled thereto."

The arguments under the instant assignments of error revolve around said order. From the
procedural standpoint, it is claimed that PCIB was not served with a copy of the Institute's
motion, that said motion was heard, considered and resolved on November 23, 1965, whereas
the date set for its hearing was November 20, 1965, and that what the order grants is different
from what is prayed for in the motion. As to the substantive aspect, it is contended that the
matter treated in the motion is beyond the jurisdiction of the probate court and that the order
authorized payment to a person other than the administrator of the estate of Hodges with whom
the Institute had contracted.

The procedural points urged by appellant deserve scant consideration. We must assume,
absent any clear proof to the contrary, that the lower court had acted regularly by seeing to it
that appellant was duly notified. On the other hand, there is nothing irregular in the court's
having resolved the motion three days after the date set for hearing the same. Moreover, the
record reveals that appellants' motion for reconsideration wherein it raised the same points was
denied by the trial court on March 7, 1966 (p. 462, Green R. on A.) Withal, We are not
convinced that the relief granted is not within the general intent of the Institute's motion.

Insofar as the substantive issues are concerned, all that need be said at this point is that they
are mere reiterations of contentions We have already resolved above adversely to appellants'
position. Incidentally, We may add, perhaps, to erase all doubts as to the propriety of not
disturbing the lower court's orders sanctioning the sales questioned in all these appeal s by
PCIB, that it is only when one of the parties to a contract to convey property executed by a
deceased person raises substantial objections to its being implemented by the executor or
administrator of the decedent's estate that Section 8 of Rule 89 may not apply and,
consequently, the matter has, to be taken up in a separate action outside of the probate court;
but where, as in the cases of the sales herein involved, the interested parties are in agreement
that the conveyance be made, it is properly within the jurisdiction of the probate court to give its
sanction thereto pursuant to the provisions of the rule just mentioned. And with respect to the
supposed automatic rescission clauses contained in the contracts to sell executed by Hodges in
favor of herein appellees, the effect of said clauses depend on the true nature of the said
contracts, despite the nomenclature appearing therein, which is not controlling, for if they
amount to actual contracts of sale instead of being mere unilateral accepted "promises to sell",
(Art. 1479, Civil Code of the Philippines, 2nd paragraph) thepactum commissorium or the
automatic rescission provision would not operate, as a matter of public policy, unless there has
been a previous notarial or judicial demand by the seller (10 Manresa 263, 2nd ed.) neither of
which have been shown to have been made in connection with the transactions herein involved.

Consequently, We find no merit in the assignments of error


Number LXII to LXVII.

SUMMARY
Considering the fact that this decision is unusually extensive and that the issues herein taken up
and resolved are rather numerous and varied, what with appellant making seventy-eight
assignments of error affecting no less than thirty separate orders of the court a quo, if only to
facilitate proper understanding of the import and extent of our rulings herein contained, it is
perhaps desirable that a brief restatement of the whole situation be made together with our
conclusions in regard to its various factual and legal aspects. .

The instant cases refer to the estate left by the late Charles Newton Hodges as well as that of
his wife, Linnie Jane Hodges, who predeceased him by about five years and a half. In their
respective wills which were executed on different occasions, each one of them provided
mutually as follows: "I give, devise and bequeath all of the rest, residue and remainder (after
funeral and administration expenses, taxes and debts) of my estate, both real and personal,
wherever situated or located, to my beloved (spouse) to have and to hold unto (him/her) —
during (his/her) natural lifetime", subject to the condition that upon the death of whoever of them
survived the other, the remainder of what he or she would inherit from the other is "give(n),
devise(d) and bequeath(ed)" to the brothers and sisters of the latter.

Mrs. Hodges died first, on May 23, 1957. Four days later, on May 27, Hodges was appointed
special administrator of her estate, and in a separate order of the same date, he was "allowed or
authorized to continue the business in which he was engaged, (buying and selling personal and
real properties) and to perform acts which he had been doing while the deceased was living."
Subsequently, on December 14, 1957, after Mrs. Hodges' will had been probated and Hodges
had been appointed and had qualified as Executor thereof, upon his motion in which he
asserted that he was "not only part owner of the properties left as conjugal, but also, the
successor to all the properties left by the deceased Linnie Jane Hodges", the trial court ordered
that "for the reasons stated in his motion dated December 11, 1957, which the Court considers
well taken, ... all the sales, conveyances, leases and mortgages of all properties left by the
deceased Linnie Jane Hodges executed by the Executor, Charles Newton Hodges are hereby
APPROVED. The said Executor is further authorized to execute subsequent sales,
conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane
Hodges in consonance with the wishes contained in the last will and testament of the latter."

Annually thereafter, Hodges submitted to the court the corresponding statements of account of
his administration, with the particularity that in all his motions, he always made it point to urge
the that "no person interested in the Philippines of the time and place of examining the herein
accounts be given notice as herein executor is the only devisee or legatee of the deceased in
accordance with the last will and testament already probated by the Honorable Court." All said
accounts approved as prayed for.

Nothing else appears to have been done either by the court a quo or Hodges until December
25, 1962. Importantly to be the provision in the will of Mrs. Hodges that her share of the conjugal
partnership was to be inherited by her husband "to have and to hold unto him, my said husband,
during his natural lifetime" and that "at the death of my said husband, I give, devise and
bequeath all the rest, residue and remainder of my estate, both real and personal, wherever
situated or located, to be equally divided among my brothers and sisters, share and share
alike", which provision naturally made it imperative that the conjugal partnership be promptly
liquidated, in order that the "rest, residue and remainder" of his wife's share thereof, as of the
time of Hodges' own death, may be readily known and identified, no such liquidation was ever
undertaken. The record gives no indication of the reason for such omission, although relatedly,
it appears therein:
1. That in his annual statement submitted to the court of the net worth of C. N.
Hodges and the Estate of Linnie Jane Hodges, Hodges repeatedly and
consistently reported the combined income of the conjugal partnership and then
merely divided the same equally between himself and the estate of the deceased
wife, and, more importantly, he also, as consistently, filed corresponding
separate income tax returns for each calendar year for each resulting half of such
combined income, thus reporting that the estate of Mrs. Hodges had its own
income distinct from his own.

2. That when the court a quo happened to inadvertently omit in its order
probating the will of Mrs. Hodges, the name of one of her brothers, Roy Higdon
then already deceased, Hodges lost no time in asking for the proper correction
"in order that the heirs of deceased Roy Higdon may not think or believe they
were omitted, and that they were really interested in the estate of the deceased
Linnie Jane Hodges".

3. That in his aforementioned motion of December 11, 1957, he expressly stated


that "deceased Linnie Jane Hodges died leaving no descendants or ascendants
except brothers and sisters and herein petitioner as the surviving spouse, to
inherit the properties of the decedent", thereby indicating that he was not
excluding his wife's brothers and sisters from the inheritance.

4. That Hodges allegedly made statements and manifestations to the United


States inheritance tax authorities indicating that he had renounced his
inheritance from his wife in favor of her other heirs, which attitude he is supposed
to have reiterated or ratified in an alleged affidavit subscribed and sworn to here
in the Philippines and in which he even purportedly stated that his reason for so
disclaiming and renouncing his rights under his wife's will was to "absolve (him)
or (his) estate from any liability for the payment of income taxes on income which
has accrued to the estate of Linnie Jane Hodges", his wife, since her death.

On said date, December 25, 1962, Hodges died. The very next day, upon motion of herein
respondent and appellee, Avelina A. Magno, she was appointed by the trial court as
Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings No. 1307
and as Special Administratrix of the estate of Charles Newton Hodges, "in the latter case,
because the last will of said Charles Newton Hodges is still kept in his vault or iron safe and that
the real and personal properties of both spouses may be lost, damaged or go to waste, unless
Special Administratrix is appointed," (Order of December 26, 1962, p. 27, Yellow R. on A.)
although, soon enough, on December 29, 1962, a certain Harold K. Davies was appointed as
her Co-Special Administrator, and when Special Proceedings No. 1672, Testate Estate of
Charles Newton Hodges, was opened, Joe Hodges, as next of kin of the deceased, was in due
time appointed as Co-Administrator of said estate together with Atty. Fernando P. Mirasol, to
replace Magno and Davies, only to be in turn replaced eventually by petitioner PCIB alone.

At the outset, the two probate proceedings appear to have been proceeding jointly, with each
administrator acting together with the other, under a sort of modus operandi. PCIB used to
secure at the beginning the conformity to and signature of Magno in transactions it wanted to
enter into and submitted the same to the court for approval as their joint acts. So did Magno do
likewise. Somehow, however, differences seem to have arisen, for which reason, each of them
began acting later on separately and independently of each other, with apparent sanction of the
trial court. Thus, PCIB had its own lawyers whom it contracted and paid handsomely, conducted
the business of the estate independently of Magno and otherwise acted as if all the properties
appearing in the name of Charles Newton Hodges belonged solely and only to his estate, to the
exclusion of the brothers and sisters of Mrs. Hodges, without considering whether or not in fact
any of said properties corresponded to the portion of the conjugal partnership pertaining to the
estate of Mrs. Hodges. On the other hand, Magno made her own expenditures, hired her own
lawyers, on the premise that there is such an estate of Mrs. Hodges, and dealth with some of
the properties, appearing in the name of Hodges, on the assumption that they actually
correspond to the estate of Mrs. Hodges. All of these independent and separate actuations of
the two administrators were invariably approved by the trial court upon submission. Eventually,
the differences reached a point wherein Magno, who was more cognizant than anyone else
about the ins and outs of the businesses and properties of the deceased spouses because of
her long and intimate association with them, made it difficult for PCIB to perform normally its
functions as administrator separately from her. Thus, legal complications arose and the present
judicial controversies came about.

Predicating its position on the tenor of the orders of May 27 and December 14, 1957 as well as
the approval by the court a quo of the annual statements of account of Hodges, PCIB holds to
the view that the estate of Mrs. Hodges has already been in effect closed with the virtual
adjudication in the mentioned orders of her whole estate to Hodges, and that, therefore, Magno
had already ceased since then to have any estate to administer and the brothers and sisters of
Mrs. Hodges have no interests whatsoever in the estate left by Hodges. Mainly upon such
theory, PCIB has come to this Court with a petition for certiorari and prohibition praying that the
lower court's orders allowing respondent Magno to continue acting as administratrix of the
estate of Mrs. Hodges in Special Proceedings 1307 in the manner she has been doing, as
detailed earlier above, be set aside. Additionally, PCIB maintains that the provision in Mrs.
Hodges' will instituting her brothers and sisters in the manner therein specified is in the nature of
a testamentary substitution, but inasmuch as the purported substitution is not, in its view, in
accordance with the pertinent provisions of the Civil Code, it is ineffective and may not be
enforced. It is further contended that, in any event, inasmuch as the Hodges spouses were both
residents of the Philippines, following the decision of this Court in Aznar vs. Garcia, or the case
of Christensen, 7 SCRA 95, the estate left by Mrs. Hodges could not be more than one-half of
her share of the conjugal partnership, notwithstanding the fact that she was citizen of Texas,
U.S.A., in accordance with Article 16 in relation to Articles 900 and 872 of the Civil Code.
Initially, We issued a preliminary injunction against Magno and allowed PCIB to act alone.

At the same time PCIB has appealed several separate orders of the trial court approving
individual acts of appellee Magno in her capacity as administratrix of the estate of Mrs. Hodges,
such as, hiring of lawyers for specified fees and incurring expenses of administration for
different purposes and executing deeds of sale in favor of her co-appellees covering properties
which are still registered in the name of Hodges, purportedly pursuant to corresponding
"contracts to sell" executed by Hodges. The said orders are being questioned on jurisdictional
and procedural grounds directly or indirectly predicated on the principal theory of appellant that
all the properties of the two estates belong already to the estate of Hodges exclusively.

On the other hand, respondent-appellee Magno denies that the trial court's orders of May 27
and December 14, 1957 were meant to be finally adjudicatory of the hereditary rights of Hodges
and contends that they were no more than the court's general sanction of past and future acts of
Hodges as executor of the will of his wife in due course of administration. As to the point
regarding substitution, her position is that what was given by Mrs. Hodges to her husband under
the provision in question was a lifetime usufruct of her share of the conjugal partnership, with
the naked ownership passing directly to her brothers and sisters. Anent the application of Article
16 of the Civil Code, she claims that the applicable law to the will of Mrs. Hodges is that of
Texas under which, she alleges, there is no system of legitime, hence, the estate of Mrs.
Hodges cannot be less than her share or one-half of the conjugal partnership properties. She
further maintains that, in any event, Hodges had as a matter of fact and of law renounced his
inheritance from his wife and, therefore, her whole estate passed directly to her brothers and
sisters effective at the latest upon the death of Hodges.

In this decision, for the reasons discussed above, and upon the issues just summarized, We
overrule PCIB's contention that the orders of May 27, 1957 and December 14, 1957 amount to
an adjudication to Hodges of the estate of his wife, and We recognize the present existence of
the estate of Mrs. Hodges, as consisting of properties, which, while registered in that name of
Hodges, do actually correspond to the remainder of the share of Mrs. Hodges in the conjugal
partnership, it appearing that pursuant to the pertinent provisions of her will, any portion of said
share still existing and undisposed of by her husband at the time of his death should go to her
brothers and sisters share and share alike. Factually, We find that the proven circumstances
relevant to the said orders do not warrant the conclusion that the court intended to make
thereby such alleged final adjudication. Legally, We hold that the tenor of said orders furnish no
basis for such a conclusion, and what is more, at the time said orders were issued, the
proceedings had not yet reached the point when a final distribution and adjudication could be
made. Moreover, the interested parties were not duly notified that such disposition of the estate
would be done. At best, therefore, said orders merely allowed Hodges to dispose of portions of
his inheritance in advance of final adjudication, which is implicitly permitted under Section 2 of
Rule 109, there being no possible prejudice to third parties, inasmuch as Mrs. Hodges had no
creditors and all pertinent taxes have been paid.

More specifically, We hold that, on the basis of circumstances presently extant in the record,
and on the assumption that Hodges' purported renunciation should not be upheld, the estate of
Mrs. Hodges inherited by her brothers and sisters consists of one-fourth of the community
estate of the spouses at the time of her death, minus whatever Hodges had gratuitously
disposed of therefrom during the period from, May 23, 1957, when she died, to December 25,
1962, when he died provided, that with regard to remunerative dispositions made by him during
the same period, the proceeds thereof, whether in cash or property, should be deemed as
continuing to be part of his wife's estate, unless it can be shown that he had subsequently
disposed of them gratuitously.

At this juncture, it may be reiterated that the question of what are the pertinent laws of Texas
and what would be the estate of Mrs. Hodges under them is basically one of fact, and
considering the respective positions of the parties in regard to said factual issue, it can already
be deemed as settled for the purposes of these cases that, indeed, the free portion of said
estate that could possibly descend to her brothers and sisters by virtue of her will may not be
less than one-fourth of the conjugal estate, it appearing that the difference in the stands of the
parties has reference solely to the legitime of Hodges, PCIB being of the view that under the
laws of Texas, there is such a legitime of one-fourth of said conjugal estate and Magno
contending, on the other hand, that there is none. In other words, hereafter, whatever might
ultimately appear, at the subsequent proceedings, to be actually the laws of Texas on the matter
would no longer be of any consequence, since PCIB would anyway be in estoppel already to
claim that the estate of Mrs. Hodges should be less than as contended by it now, for admissions
by a party related to the effects of foreign laws, which have to be proven in our courts like any
other controverted fact, create estoppel.

In the process, We overrule PCIB's contention that the provision in Mrs. Hodges' will in favor of
her brothers and sisters constitutes ineffective hereditary substitutions. But neither are We
sustaining, on the other hand, Magno's pose that it gave Hodges only a lifetime usufruct. We
hold that by said provision, Mrs. Hodges simultaneously instituted her brothers and sisters as
co-heirs with her husband, with the condition, however, that the latter would have complete
rights of dominion over the whole estate during his lifetime and what would go to the former
would be only the remainder thereof at the time of Hodges' death. In other words, whereas they
are not to inherit only in case of default of Hodges, on the other hand, Hodges was not obliged
to preserve anything for them. Clearly then, the essential elements of testamentary substitution
are absent; the provision in question is a simple case of conditional simultaneous institution of
heirs, whereby the institution of Hodges is subject to a partial resolutory condition the operative
contingency of which is coincidental with that of the suspensive condition of the institution of his
brothers and sisters-in-law, which manner of institution is not prohibited by law.

We also hold, however, that the estate of Mrs. Hodges inherited by her brothers and sisters
could be more than just stated, but this would depend on (1) whether upon the proper
application of the principle of renvoi in relation to Article 16 of the Civil Code and the pertinent
laws of Texas, it will appear that Hodges had no legitime as contended by Magno, and (2)
whether or not it can be held that Hodges had legally and effectively renounced his inheritance
from his wife. Under the circumstances presently obtaining and in the state of the record of
these cases, as of now, the Court is not in a position to make a final ruling, whether of fact or of
law, on any of these two issues, and We, therefore, reserve said issues for further proceedings
and resolution in the first instance by the court a quo, as hereinabove indicated. We reiterate,
however, that pending such further proceedings, as matters stand at this stage, Our considered
opinion is that it is beyond cavil that since, under the terms of the will of Mrs. Hodges, her
husband could not have anyway legally adjudicated or caused to be adjudicated to himself her
whole share of their conjugal partnership, albeit he could have disposed any part thereof during
his lifetime, the resulting estate of Mrs. Hodges, of which Magno is the uncontested
administratrix, cannot be less than one-fourth of the conjugal partnership properties, as of the
time of her death, minus what, as explained earlier, have beengratuitously disposed of
therefrom, by Hodges in favor of third persons since then, for even if it were assumed that, as
contended by PCIB, under Article 16 of the Civil Code and applying renvoi the laws of the
Philippines are the ones ultimately applicable, such one-fourth share would be her free
disposable portion, taking into account already the legitime of her husband under Article 900 of
the Civil Code.

The foregoing considerations leave the Court with no alternative than to conclude that in
predicating its orders on the assumption, albeit unexpressed therein, that there is an estate of
Mrs. Hodges to be distributed among her brothers and sisters and that respondent Magno is the
legal administratrix thereof, the trial court acted correctly and within its jurisdiction. Accordingly,
the petition for certiorari and prohibition has to be denied. The Court feels however, that pending
the liquidation of the conjugal partnership and the determination of the specific properties
constituting her estate, the two administrators should act conjointly as ordered in the Court's
resolution of September 8, 1972 and as further clarified in the dispositive portion of its decision.

Anent the appeals from the orders of the lower court sanctioning payment by appellee Magno,
as administratrix, of expenses of administration and attorney's fees, it is obvious that, with Our
holding that there is such an estate of Mrs. Hodges, and for the reasons stated in the body of
this opinion, the said orders should be affirmed. This We do on the assumption We find justified
by the evidence of record, and seemingly agreed to by appellant PCIB, that the size and value
of the properties that should correspond to the estate of Mrs. Hodges far exceed the total of the
attorney's fees and administration expenses in question.

With respect to the appeals from the orders approving transactions made by appellee Magno,
as administratrix, covering properties registered in the name of Hodges, the details of which are
related earlier above, a distinction must be made between those predicated on contracts to sell
executed by Hodges before the death of his wife, on the one hand, and those premised on
contracts to sell entered into by him after her death. As regards the latter, We hold that
inasmuch as the payments made by appellees constitute proceeds of sales of properties
belonging to the estate of Mrs. Hodges, as may be implied from the tenor of the motions of May
27 and December 14, 1957, said payments continue to pertain to said estate, pursuant to her
intent obviously reflected in the relevant provisions of her will, on the assumption that the size
and value of the properties to correspond to the estate of Mrs. Hodges would exceed the total
value of all the properties covered by the impugned deeds of sale, for which reason, said
properties may be deemed as pertaining to the estate of Mrs. Hodges. And there being no
showing that thus viewing the situation, there would be prejudice to anyone, including the
government, the Court also holds that, disregarding procedural technicalities in favor of a
pragmatic and practical approach as discussed above, the assailed orders should be affirmed.
Being a stranger to the estate of Mrs. Hodges, PCIB has no personality to raise the procedural
and jurisdictional issues raised by it. And inasmuch as it does not appear that any of the other
heirs of Mrs. Hodges or the government has objected to any of the orders under appeal, even
as to these parties, there exists no reason for said orders to be set aside.

DISPOSITIVE PART

IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING


the petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-37 and
the other thirty-one numbers hereunder ordered to be added after payment of the corresponding
docket fees, all the orders of the trial court under appeal enumerated in detail on pages 35 to 37
and 80 to 82 of this decision; the existence of the Testate Estate of Linnie Jane Hodges, with
respondent-appellee Avelina A. Magno, as administratrix thereof is recognized, and it is
declared that, until final judgment is ultimately rendered regarding (1) the manner of applying
Article 16 of the Civil Code of the Philippines to the situation obtaining in these cases and (2)
the factual and legal issue of whether or not Charles Newton Hodges had effectively and legally
renounced his inheritance under the will of Linnie Jane Hodges, the said estate consists of one-
fourth of the community properties of the said spouses, as of the time of the death of the wife on
May 23, 1957, minus whatever the husband had already gratuitously disposed of in favor of
third persons from said date until his death, provided, first, that with respect to remunerative
dispositions, the proceeds thereof shall continue to be part of the wife's estate, unless
subsequently disposed of gratuitously to third parties by the husband, and second, that should
the purported renunciation be declared legally effective, no deductions whatsoever are to be
made from said estate; in consequence, the preliminary injunction of August 8, 1967, as
amended on October 4 and December 6, 1967, is lifted, and the resolution of September 8,
1972, directing that petitioner-appellant PCIB, as Administrator of the Testate Estate of Charles
Newton Hodges, in Special Proceedings 1672, and respondent-appellee Avelina A. Magno, as
Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings 1307, should
act thenceforth always conjointly, never independently from each other, as such administrators,
is reiterated, and the same is made part of this judgment and shall continue in force, pending
the liquidation of the conjugal partnership of the deceased spouses and the determination and
segregation from each other of their respective estates, provided, that upon the finality of this
judgment, the trial court should immediately proceed to the partition of the presently combined
estates of the spouses, to the end that the one-half share thereof of Mrs. Hodges may be
properly and clearly identified; thereafter, the trial court should forthwith segregate the
remainder of the one-fourth herein adjudged to be her estate and cause the same to be turned
over or delivered to respondent for her exclusive administration in Special Proceedings 1307,
while the other one-fourth shall remain under the joint administration of said respondent and
petitioner under a joint proceedings in Special Proceedings 1307 and 1672, whereas the half
unquestionably pertaining to Hodges shall be administered by petitioner exclusively in Special
Proceedings 1672, without prejudice to the resolution by the trial court of the pending motions
for its removal as administrator 12; and this arrangement shall be maintained until the final
resolution of the two issues of renvoi and renunciation hereby reserved for further hearing and
determination, and the corresponding complete segregation and partition of the two estates in
the proportions that may result from the said resolution.

Generally and in all other respects, the parties and the court a quo are directed to adhere
henceforth, in all their actuations in Special Proceedings 1307 and 1672, to the views passed
and ruled upon by the Court in the foregoing opinion.

Appellant PCIB is ordered to pay, within five (5) days from notice hereof, thirty-one additional
appeal docket fees, but this decision shall nevertheless become final as to each of the parties
herein after fifteen (15) days from the respective notices to them hereof in accordance with the
rules.

Costs against petitioner-appellant PCIB.

Zaldivar, Castro, Esguerra and Fernandez, JJ., concur.

Makasiar, Antonio, Muñoz Palma and Aquino, JJ., concur in the result.

Separate Opinions

FERNANDO, J., concurring:

I concur on the basis of the procedural pronouncements in the opinion.

TEEHANKEE, J., concurring:


I concur in the result of dismissal of the petition for certiorari and prohibition in Cases L-27860
and L-27896 and with the affirmance of the appealed orders of the probate court in Cases L-
27936-37.

I also concur with the portion of the dispositive part of the judgment penned by Mr. Justice
Barredo decreeing thelifting of the Court's writ of preliminary injunction of August 8, 1967 as
amended on October 4, and December 6, 1967 1 and ordering in lieu thereof that the Court's
resolution of September 8, 1972 2 which directed thatpetitioner-appellant PCIB as administrator
of C. N. (Charles Newton) Hodges' estate (Sp. Proc. No. 1672 and respondent-appellee Avelina
A. Magno as administratrix of Linnie Jane Hodges' estate (Sp. Proc. No. 1307) should act
always conjointly never independently from each other, as such administrators, is reiterated and
shall continue in force and made part of the judgment.

It is manifest from the record that petitioner-appellant PCIB's primal contention in the cases at
bar belatedly filedby it with this Court on August 1, 1967 (over ten (10) years after Linnie Jane
Hodges' death on May 23, 1957 and (over five (5) years after her husband C.N. Hodges' death
on December 25, 1962 — during which time both estates have been pending settlement and
distribution to the decedents' respective rightful heirs all this time up to now) — that the probate
court per its order of December 14, 1957 (supplementing an earlier order of May 25, 1957) 3 in
granting C. N. Hodges' motion as Executor of his wife Linnie's estate to continue their
"business of buying and selling personal and real properties" and approving "all sales,
conveyances, leases and mortgages" made and to be made by him as such executor under his
obligation to submit his yearly accounts in effect declared him as sole heir of his wife's estate
and nothing remains to be done except to formally close her estate (Sp. Proc. No. 1307) as her
estate was thereby merged with his own so that nothing remains of it that may be adjudicated to
her brothers and sisters as her designated heirs after him, 4 — is wholly untenable and deserves
scant consideration.

Aside from having been put forth as an obvious afterthought much too late in the day, this
contention of PCIB that there no longer exists any separate estate of Linnie Jane Hodges after
the probate court's order of December 14, 1957 goes against the very acts and
judicial admissions of C.N. Hodges as her executor whereby he consistently recognized
the separate existence and identity of his wife's estate apart from his own separate estate and
from his own share of their conjugal partnership and estate and "never considered the whole
estate as a single one belonging exclusively to himself" during the entire period that he survived
her for over five (5) years up to the time of his own death on December 25, 1962 5 and against
the identical acts and judicial admissions of PCIB as administrator of C.N. Hodges' estate until
PCIB sought in 1966 to take over both estates as pertaining to its sole administration.

PCIB is now barred and estopped from contradicting or taking a belated position contradictory to
or inconsistent with its previous admissions 6 (as well as those of C.N. Hodges himself in his
lifetime and of whose estate PCIB is merely an administrator) recognizing the existence and
identity of Linnie Jane Hodges' separate estate and the legal rights and interests therein of her
brothers and sisters as her designated heirs in her will.

PCIB's petition for certiorari and prohibition to declare all acts of the probate court in Linnie Jane
Hodges' estate subsequent to its order of December 14, 1957 as "null and void for having been
issued without jurisdiction" must therefore be dismissed with the rejection of its belated and
untenable contention that there is no longer any estate of Mrs. Hodges of which respondent
Avelina Magno is the duly appointed and acting administratrix.
PCIB's appeal 7 from the probate court's various orders recognizing respondent Magno as
administratrix of Linnie's estate (Sp. Proc No. 1307) and sanctioning her acts of administration
of said estate and approving the sales contracts executed by her with the various individual
appellees, which involve basically the same primal issue raised in the petition as to whether
there still exists a separate estate of Linnie of which respondent-appellee Magno may continue
to be the administratrix, must necessarily fail — a result of the Court's main opinion at bar that
there does exist such an estate and that the two estates (husband's and wife's) must be
administered cojointlyby their respective administrators (PCIB and Magno).

The dispositive portion of the main opinion

The main opinion disposes that:

IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered


DISMISSING the petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING,
in G. R. Nos. L-27936-37 and the other thirty-one numbers hereunder ordered to
be added after payment of the corresponding docket fees, all the orders of the
trial court under appeal enumerated in detail on pages 35 to 37 and 80 to 82 of
this decision:

The existence of the Testate Estate of Linnie Jane Hodges, with respondent-
appellee Avelina A. Magno, as administratrix thereof is recognized, and

It is declared that, until final judgment is ultimately rendered regarding (1) the
manner of applying Article 16 of the Civil Code of the Philippines to the situation
obtaining in these cases and (2) the factual and legal issues of whether or not
Charles Newton Hodges has effectively and legally renounced his inheritance
under the will of Linnie Jane Hodges, the said estate consists of one-fourthof 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 deduction whatsoever are to be made from said
estate;

In consequence, the preliminary injunction of August 8, 1967, as amended on


October 4 and December 6, 1967, is lifted and the resolution of September 8,
1972, directing that petitioner-appellant PCIB, as Administrator of the Testate
Estate of Charles Newton Hodges in Special Proceedings 1672, and respondent-
appellee Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane
Hodges in Special Proceedings 1307, should act thenceforth always conjointly,
never independently from each other, as such administrators, is reiterated, and
the same is made part of this judgment and shall continue in
force, pending the liquidation of the conjugal partnership of the deceased
spouses and the determination and segregation from each other of their
respective estates; provided, that upon the finality of this judgment, the trial court
should immediately proceed to the partition of the presently combined estates of
the spouses, to the end that the one-half share thereof of Mrs. Hodges may be
properly and clearly identified;

Thereafter, the trial court should forthwith segregate the remainder of the one-
fourth herein adjudged to be her estate and cause the same to be turned over or
delivered to respondent for her exclusive administration in Special Proceedings
1307, while the other one-fourth shall remain under the joint administrative of
said respondent and petitioner under a joint proceedings in Special Proceedings
1307 and 1672, whereas the half unquestionably pertaining to Hodges shall
be administered bypetitioner exclusively in Special Proceedings 1672, without
prejudice to the resolution by the trial court of the pending motions for its
removal as administrator;

And this arrangement shall be maintained until the final resolution of the two
issues of renvoi andrenunciation hereby reserved for further hearing and
determination, and the corresponding completesegregation and partition of the
two estates in the proportions that may result from the said resolution.

Generally and in all other respects, the parties and the court a quo are directed to
adhere henceforth, in all their actuations in Special Proceedings 1307 and 1672,
to the views passed and ruled upon by the Court in the foregoing opinion. 8

Minimum estimate of Mrs. Hodges' estate:


One-fourth of conjugal properties.

The main opinion in declaring the existence of a separate estate of Linnie Jane Hodges which
shall pass to her brothers and sisters with right of representation (by their heirs) as her duly
designated heirs declares that her estate consists as a minimum (i.e. assuming (1) that under
Article 16 of the Philippine Civil Code C. N. Hodges as surviving husband was entitled to one-
half of her estate as legitime and (2) that he had not effectively and legallyrenounced his
inheritance under her will) 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," with the
proviso that proceeds of remunerative dispositions or sales for valuable consideration made by
C. N. Hodges after his wife Linnie's death shall continue to be part of her
estate unless subsequently disposed of by him gratuitously to third parties subject to the
condition, however, that if he is held to have validly and effectively renounced his inheritance
under his wife's will, no deductions of any dispositions made by Hodges even if gratuitously are
to be made from his wife Linnie's estate which shall passintact to her brothers and sisters as her
designated heirs called in her will to succeed to her estate upon the death of her husband C. N.
Hodges.

Differences with the main opinion

I do not share the main opinion's view that Linnie Jane Hodges instituted her husband as her
heir under her will "to have dominion over all her estate during his lifetime ... as absolute
owner of the properties ..." 9 and that she bequeathed "the whole of her estate to be owned and
enjoyed by him as universal and sole heir with absolute dominion over them 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." 10

As will be amplified hereinafter, I do not subscribe to such a view that Linnie Jane Hodges willed
"full and absolute ownership" and "absolute dominion" over her estate to her husband, but
rather that she named her husband C. N. Hodges and her brothers and sisters as instituted
heirs with a term under Article 885 of our Civil Code, to wit, Hodges as instituted heir with
a resolutory term whereunder his right to the succession ceased in diem upon arrival of
the resolutory term of his death on December 25, 1962 and her brothers and sisters as
instituted heirs with asuspensive term whereunder their right to the succession commenced ex
die upon arrival of the suspensive term of the death of C. N. Hodges on December 25, 1962.

Hence, while agreeing with the main opinion that the proceeds of all remunerative dispositions
made by C. N. Hodges after his wife's death remain an integral part of his wife's estate which
she willed to her brothers and sisters, I submit that C. N. Hodges could not validly
make gratuitous dispositions of any part or all of his wife's estate — "completely and absolutely
dispose of any portion thereof inter vivos to anyone other than himself" in the language of the
main opinion, supra — and thereby render ineffectual and nugatory her institution of her
brothers and sisters as her designated heirs to succeed to her whole estate "at the death of
(her) husband." If according to the main opinion, Hodges could not make such gratuitous
"complete and absolute dispositions" of his wife Linnie's estate "mortis causa," it would seem
that by the same token and rationale he was likewise proscribed by the will from making such
dispositions of Linnie's estate inter vivos.

I believe that the two questions of renvoi and renunciation should be


resolved preferentially and expeditiously by the probate court ahead of the partition and
segregation of the minimum one-fourth of the conjugal or community properties constituting
Linnie Jane Hodges' separate estate, which task considering that it is now seventeen (17) years
since Linnie Jane Hodges' death and her conjugal estate with C. N. Hodges has
remained unliquidated up to now might take a similar number of years to unravel with the
numerous items, transactions and details of the sizable estates involved.

Such partition of the minimum one-fourth would not be final, since if the two prejudicial
questions of renvoi andrenunciation were resolved favorably to Linnie's estate meaning to say
that if it should be held that C. N. Hodges is not entitled to any legitime of her estate and at any
rate he had totally renounced his inheritance under the will), then Linnie's estate would consist
not only of the minimum one-fourth but one-half of the conjugal or community properties of the
Hodges spouses, which would require again the partition and segregation of still another one-
fourth of said. properties to complete Linnie's separate estate.

My differences with the main opinion involve further the legal concepts, effects and
consequences of the testamentary dispositions of Linnie Jane Hodges in her will and the
question of the best to reach a solution of the pressing question of expediting the closing of the
estates which after all do not appear to involve any outstanding debts nor any dispute between
the heirs and should therefore be promptly settled now after all these years without any further
undue complications and delays and distributed to the heirs for their full enjoyment and benefit.
As no consensus appears to have been reached thereon by a majority of the Court, I propose to
state views as concisely as possible with the sole end in view that they may be of some
assistance to the probate court and the parties in reaching an expeditious closing and
settlement of the estates of the Hodges spouses.

Two Assumptions

As indicated above, the declaration of the minimum of Mrs. Hodges' estate as one-fourth of the
conjugal properties is based on two assumptions most favorable to C. N. Hodges' estate and his
heirs, namely (1) that the probate court must accept the renvoi or "reference back" 11 allegedly
provided by the laws of the State of Texas (of which state the Hodges spouses were citizens)
whereby the civil laws of the Philippines as the domicile of the Hodges spouses would govern
their succession notwithstanding the provisions of Article 16 of our Civil Code (which provides
that the national law of the decedents, in this case, of Texas, shall govern their succession) with
the result that her estate would consist of no more than one-fourth of the conjugal properties
since the legitime of her husband (the other one-fourth of said conjugal properties or one-half
of her estate, under Article 900 of our Civil Code) could not then be disposed of nor burdened
with any condition by her and (2) that C.N. Hodges had noteffectively and legally renounced his
inheritance under his wife's will.

These two assumptions are of course flatly disputed by respondent-appellee Magno as Mrs.
Hodges' administratrix, who avers that the law of the State of Texas governs her succession
and does not provide for and legitime, hence, her brothers and sisters are entitled to succeed to
the whole of her share of the conjugal properties which is one-half thereof and that in any event,
Hodges had totally renounced all his rights under the will.

The main opinion concedes that "(I)n 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." It observes however that this cannot be done due to the inadequacy of the
evidence submitted by the parties in the probate court and of the parties' discussion, viz, "there
is no clear and reliable proof of what the possibly applicable laws of Texas are. Then also, the
genuineness of the documents relied upon by respondent Magno [re Hodges' renunciation] is
disputed." 12

Hence, the main opinion expressly reserves resolution and determination on these two
conflicting claims and issues which it deems "are not properly before the Court
now," 13 and specifically holds that "(A)ccordingly, 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." 14

Suggested guidelines

Considering that the only unresolved issue has thus been narrowed down and in consonance
with the ruling spirit of our probate law calling for the prompt settlement of the estates of
deceased persons for the benefit of creditors and those entitled to the residue by way of
inheritance — considering that the estates have been long pending settlement since 1957 and
1962, respectively — it was felt that the Court should lay down specific guidelines for the
guidance of the probate court towards the end that it may expedite the closing of the protracted
estates proceedings below to the mutual satisfaction of the heirs and without need of a
dissatisfied party elevating its resolution of this only remaining issue once more to this Court
and dragging out indefinitely the proceedings.

After all, the only question that remains depends for its determination on the resolution of the
two questions ofrenvoi and renunciation, i.e. as to whether C. N. Hodges can claim
a legitime and whether he had renounced the inheritance. But as already indicated above, the
Court without reaching a consensus which would finally resolve the conflicting claims here and
now in this case opted that "these and other relevant matters should first be threshed out fully in
the trial court in the proceedings hereinafter to be held for the purpose of ascertaining and/or
distributing the estate of Mrs. Hodges to her heirs in accordance with her duly probated will." 15

The writer thus feels that laying down the premises and principles governing the nature, effects
and consequences of Linnie Jane Hodges' testamentary dispositions in relation to her conjugal
partnership and co-ownership of properties with her husband C. N. Hodges and "thinking out"
the end results, depending on whether the evidence directed to be formally received by the
probate court would bear out that under renvoi C. N. Hodges was or was not entitled to claim a
legitime of one-half of his wife Linnie's estate and/or that he had or had not effectively and
validly renounced his inheritance should help clear the decks, as it were, and assist the probate
court in resolving the only remaining question of how much more than the minimum one-fourth
of the community properties of the Hodges spouses herein finally determined should be
awarded as the separate estate of Linnie, particularly since the views expressed in the main
opinion have not gained a consensus of the Court. Hence, the following suggested guidelines,
which needless to state, represent the personal opinion and views of the writer:

1. To begin with, as pointed out in the main opinion, "according to Hodges' own inventory
submitted by him as executor of the estate of his wife, practically all their properties
were conjugal which means that the spouses haveequal shares therein." 16

2. Upon the death of Mrs. Hodges on May 23, 1957, and the dissolution thereby of the marriage,
the law imposed upon Hodges as surviving husband the duty of inventorying, administering and
liquidating the conjugal or community property. 17 Hodges failed to discharge this duty
of liquidating the conjugal partnership and estate. On the contrary, he sought and obtained
authorization from the probate court to continue the conjugal partnership'sbusiness of buying
and selling real and personal properties.

In his annual accounts submitted to the probate court as executor of Mrs. Hodges' estate,
Hodges thusconsistently reported the considerable combined income (in six figures) of
the conjugal partnership or coownershipand then divided the same equally between himself and
Mrs. Hodges' estate and as consistently filed separate income tax returns and paid the income
taxes for each resulting half of such combined income corresponding to his own and to Mrs.
Hodges' estate. 18 (Parenthetically, he could not in law do this, had he adjudicated Linnie's
entire estate to himself, thus supporting the view advanced even in the main opinion that
"Hodges waived not only his rights to the fruits but to the properties themselves." 19

By operation of the law of trust 20 as well as by his own acknowledgment and acts, therefore, all
transactions made by Hodges after his wife's death were deemed for and on behalf of
their unliquidated conjugal partnership andcommunity estate and were so reported and treated
by him.
3. With this premise established that all transactions of Hodges after his wife's death were for
and on behalf of their unliquidated conjugal partnership and community estate, share and share
alike, it should be clear that nogratuitous dispositions, if any, made by C. N. Hodges from his
wife Linnie's estate should be deducted from herseparate estate as held in the main opinion. On
the contrary, any such gratuitous dispositions should be charged to his own share of the
conjugal estate since he had no authority or right to make any gratuitous dispositions of Linnie's
properties to the prejudice of her brothers and sisters whom she called to her succession upon
his death, not to mention that the very authority obtained by him from the probate court per its
orders of May 25, and December 14, 1957 was to continue the conjugal partnership's business
of buying and selling real properties for the account of their unliquidated conjugal estate and co-
ownership, share and share alike and not to make anyfree dispositions of Linnie's estate.

4. All transactions as well after the death on December 25, 1962 of Hodges himself appear
perforce and necessarily to have been conducted, on the same premise, for and on behalf of
their unliquidated conjugal partnership and/or co-ownership, share and share alike — since the
conjugal partnership remained unliquidated — which is another way of saying that such
transactions, purchases and sales, mostly the latter, must be deemed in effect to have been
made for the respective estates of C. N. Hodges and of his wife Linnie Jane Hodges, as both
estates continued to have an equal stake and share in the conjugal partnership which was not
only leftunliquidated but continued as a co-ownership or joint business with the probate court's
approval by Hodges during the five-year period that he survived his wife.

This explains the probate court's action of requiring that deeds of sale executed by PCIB as
Hodges' estate's administrator be "signed jointly" by respondent Magno as Mrs. Hodges'
estate's administratrix, as well as its order authorizing payment by lot purchasers from the
Hodges to either estate, since "there is as yet no judicial declaration of heirs nor distribution of
properties to whomsoever are entitled thereto." 22

And this equally furnishes the rationale of the main opinion for continued conjoint administration
by the administrators of the two estates of the deceased spouses, "pending the liquidation of the
conjugal partnership,"23 since "it is but logical that both estates should be administered jointly by
the representatives of both, pending their segregation from each other. Particularly ... because
the actuations so far of PCIB evince a determined, albeit groundless, intent to exclude the other
heirs of Mrs. Hodges from their inheritance." 24 5. Antly by the representatives of both, pending
their segregation from each other. Particularly ... because the actuations so far of PCIB evince a
determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their
inheritance." 24

5. As stressed in the main opinion, the determination of the only unresolved issue of how much
more than the minimum of one-fourth of the community or conjugal properties of the Hodges
spouses pertains to Mrs. Hodges' estate depends on the twin questions
of renunciation and renvoi. It directed consequently that "a joint hearing of the two probate
proceedings herein involved" be held by the probate court for the reception of "further evidence"
in order to finally resolved these twin questions. 25

(a) On the question of renunciation, it is believed that all that the probate court has to do is to
receive formally in evidence the various documents annexed to respondent Magno's answer at
bar, 26 namely: Copy of the U.S. Estate Tax Return filed on August 8, 1958 by C. N. Hodges for
his wife Linnie's estate wherein he purportedly declared that he was renouncing his inheritance
under his wife's will in favor of her brothers and sisters as co-heirs designated with him and that
it was his "intention (as) surviving husband of the deceased to distribute the remaining property
and interests of the deceased in their community estate to the devisee and legatees named in
the will when the debts, liabilities, taxes and expenses of administration are finally determined
and paid;" 27 and

The affidavit of ratification of such renunciation (which places him in estoppel) allegedly
executed on August 9, 1962 by C. N. Hodges in Iloilo City wherein he reaffirmed that "...
on August 8, 1958, I renounced and disclaimed any and all right to receive the rents,
emoluments and income from said estate" and further declared that "(T)he 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." 28

(b) On the question of renvoi, all that remains for the probate court to do is to formally receive in
evidence duly authenticated copies of the laws of the State of Texas governing the succession
of Linnie Jane Hodges and her husband C. N. Hodges as citizens of said State at the time of
their respective deaths on May 23, 1957 andDecember 25, 1962. 29

6. The text and tenor of the declarations by C. N. Hodges of renunciation of his inheritance from
his wife in favor of her other named heirs in her will (her brothers and sisters and their
respective heirs) as ratified and reiteratedexpressly in his affidavit of renunciation executed four
years later for the avowed purpose of not being held liable for payment of income taxes on
income which has accrued to his wife's estate since her death indicate a valid and effective
renunciation.

Once the evidence has been formally admitted and its genuineness and legal effectivity
established by the probate court, the renunciation by C. N. Hodges must be given due effect
with the result that C. N. Hodges therefore acquired no part of his wife's one-half share of the
community properties since he removed himself as an heir by virtue of his renunciation. By
simple substitution then under Articles 857 and 859 of our Civil Code 30 and by virtue of the will's
institution of heirs, since "the heir originally instituted C. N. Hodges) does not become an
heir"31 by force of his renunciation, Mrs. Hodges' brothers and sisters whom she designated as
her heirs upon her husband's death are called immediately to her succession.

Consequently, the said community and conjugal properties would then pertain pro indiviso share
and share alike to their respective estates, with each estate, however, shouldering its own
expenses of administration, estate and inheritance taxes, if any remain unpaid, attorneys' fees
and other like expenses and the net remainder to be adjudicated directly to the decedents'
respective brothers and sisters (and their heirs) as the heirs duly designated in their respective
wills. The question of renvoi becomes immaterial since most laws and our
lawspermit such renunciation of inheritance.

7. If there were no renunciation (or the same may somehow be declared to have not been valid
and effective) by C. N. Hodges of his inheritance from his wife, however, what would be the
consequence?
(a) If the laws on succession of the State of Texas do provide for renvoi or "reference back" to
Philippine law as the domiciliary law of the Hodges' spouses governing their succession, then
petitioners' view that Mrs. Hodges' estate would consist only of the minimum of "one-fourth of
the community properties of the said spouses, as of the time of (her) death on May 23, 1957"
would have to be sustained and C. N. Hodges' estate would consist of three-fourths of the
community properties, comprising his own one-half (or two-fourths) share and the other fourth of
Mrs. Hodges' estate as the legitime granted him as surviving spouse by Philippine law (Article
900 of the Civil Code) which could not be disposed of nor burdened with any condition by Mrs.
Hodges as testatrix.

(b) If the laws on succession of the State of Texas do not provide for such renvoi and
respondent Magno's assertion is correct that the Texas law which would then prevail, provides
for no legitime for C. N. Hodges as the surviving spouse, then respondent Magno's assertion
that Mrs. Hodges' estate would consist of one-half of the community properties (with the other
half pertaining to C. N. Hodges) would have to be sustained. The community and conjugal
properties would then pertain share and share alike to their respective estates, with each estate
shouldering its own expenses of administration in the same manner stated in the last paragraph
of paragraph 6 hereof. .

8. As to the nature of the institution of heirs made by Mrs. Hodges in her will, the main opinion
holds that "(T)he brothers and sisters of Mrs. Hodges are not substitutes for Hodges; rather,
they are also heirs institutedsimultaneously with Hodges," but goes further and holds that "it was
not the usufruct alone of her estate ... 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 against his disposing or conveying the whole or any portion
thereof anybody other than himself" and describes Hodges "as universal and sole
heir with absolute dominion over Mrs. Hodges' estate (except over their Lubbock, Texas
property ), 32 adding that "Hodges was not obliged to preserve anything for them" (referring to
Mrs. Hodges' brothers and sisters as instituted co-heirs). 33

Contrary to this view of the main opinion, the writer submits that the provisions of Mrs. Hodges'
will did not grant to C.N. Hodges "full ownership" nor "absolute dominion" over her estate, such
that he could as "universal and sole heir" by the mere expedient of gratuitously disposing to
third persons her whole estate during his lifetime nullify her institution of her brothers and sisters
as his co-heirs to succeed to her whole estate "at the death of (her) husband," deprive them of
any inheritance and make his own brothers and sisters in effect sole heirs not only of his own
estate but of his wife's estate as well.

Thus, while Linnie Jane Hodges did not expressly name her brothers and sisters as substitutes
for Hodges because she willed that they would enter into the succession upon his death, still it
cannot be gainsaid, as the main opinion concedes, "that 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." 34

Hence, if Hodges is found to have validly renounced his inheritance, there would be a
substitution of heirs in fact and in law since Linnie's brothers and sisters as the heirs
"simultaneously instituted" with a suspensive term would be called immediately to her
succession instead of waiting for the arrival of suspensive term of Hodges' death, since as the
heir originally instituted he does not become an heir by force of his renunciation and therefore
they would "enter into the inheritance in default of the heir originally instituted" (Hodges) under
the provisions of Article 857 and 859 of our Civil Code, supra, 35 thus accelerating their
succession to her estate as a consequence of Hodges' renunciation.

Consequently, Linnie Jane Hodges willed that her husband C.N. Hodges would "during his
natural lifetime ...manage, control, use and enjoy said estate" and that only "all rents,
emoluments and income" alone shall belong to him. She further willed that while he
could sell and purchase properties of her estate, and "use any part of the principal estate," such
principal notwithstanding "any changes in the physical properties of said estate"(i.e. new
properties acquired or exchanged) would still pertain to her estate, which at the time of his
death would pass in full dominion to her brothers and sisters as the ultimate sole and universal
heirs of her estate. 36

The testatrix Linnie Jane Hodges in her will thus principally provided that "I give, devise and
bequeath all of the rest, residue and remainder of my estate, both personal and real ... to my
beloved husband, Charles Newton Hodges, to have and to hold with him ... during his natural
lifetime;" 37 that "(he) shall have the right to manage, control, use and enjoy said estate during
his lifetime, ... to make any changes in the physical properties of said estate, by sale ... and
the purchase of any other or additional property as he may think best ... . 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, ... he shall not sell or
otherwise dispose of any of the improved property now owned by us, located at ... City of
Lubbock, Texas ... . He shall have the right to subdivide any farmland and sell lots therein, and
may sell unimproved town lots;" 38 that "(A)t the death of my said husband, Charles Newton, I
give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and
real, ... 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 Roman and
Nimroy Higdon;" 39 and that "(I)n case of the death of any of my brothers and/or sisters ... prior
to the death of my husband ... 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." 40

Such provisions are wholly consistent with the view already fully expounded above that all
transactions and sales made by Hodges after his wife Linnie's death were by operation of the
law of trust as well as by his ownacknowledgment and acts deemed for and on behalf of
their unliquidated conjugal partnership and community estate, share and share alike, with the
express authorization of the probate court per its orders of May 25, and December 14, 1957
granting Hodges' motion to continue the conjugal partnership business of buying and selling real
estate even after her death. By the same token, Hodges could not conceivably be deemed to
have had any authority or right to dispose gratuitously of any portion of her estate to whose
succession she had called her brothers and sisters upon his death.

9. Such institutions of heirs with a term are expressly recognized and permitted under Book III,
Chapter 2, section 4 of our Civil Code dealing with "conditional testamentary dispositions and
testamentary dispositions with a term." 41

Thus, Article 885 of our Civil Code expressly provides that:

ART 885. The designation of the day or time when the effects of the institution of
an heir shallcommence or cease shall be valid.
In both cases, the legal heir shall be considered as called to the succession until
the arrival of the period or its expiration. But in the first case he shall not enter
into possession of the property until after having given sufficient security, with the
intervention of the instituted heir.

Accordingly, under the terms of Mrs. Hodges' will, her husband's right to the succession as the
instituted heir ceased in diem, i.e. upon the arrival of the resolutory term of his death on
December 25, 1962, while her brothers' and sisters' right to the succession also as instituted
heirs commenced ex die, i.e. upon the expiration of the suspensive term (as far as they were
concerned) of the death of C. N. Hodges on December 25, 1962 . 42

As stated in Padilla's treatise on the Civil Code, "A term is a period whose arrival is certain
although the exact date thereof may be uncertain. A term may have either a suspensive or a
resolutory effect. The designation of the day when the legacy "shall commence" is ex die, or a
term with a suspensive effect, from a certain day. The designation of the day when the legacy
"shall cease" is in diem or a term with a resolutory effect, until a certain day." He adds that "A
legacy based upon a certain age or upon the death of a person is not a condition but aterm. If
the arrival of the term would commence the right of the heir, it is suspensive. If the arrival of the
term would terminate his right, it is resolutory" and that "upon the arrival of the period, in case of
a suspensive term, theinstituted heir is entitled to the succession, and in case of a resolutory
term, his right terminates." 43

10. The sizable estates herein involved have now been pending settlement for a considerably
protracted period (of seventeen years counted from Linnie's death in 1957), and all that is left to
be done is to resolve the onlyremaining issue (involving the two questions
of renunciation and renvoi) hereinabove discussed in order to close up the estates and finally
effect distribution to the deceased spouses' respective brothers and sisters and their heirs as
the heirs duly instituted in their wills long admitted to probate. Hence, it is advisable for said
instituted heirs and their heirs in turn 44 to come to terms for the adjudication and distribution to
them pro-indiviso of the up to now unliquidated community properties of the estates of the
Hodges spouses (derived from their unliquidatedconjugal partnership) rather than to get bogged
down with the formidable task of physically segregating andpartitioning the two estates with the
numerous transactions, items and details and physical changes of properties involved. The
estates proceedings would thus be closed and they could then name their respective attorneys-
in-fact to work out the details of segregating, dividing or partitioning the unliquidated community
properties or liquidating them — which can be done then on their own without further need of
intervention on the part of the probate court as well as allow them meanwhile to enjoy and make
use of the income and cash and liquid assets of the estates in such manner as may be agreed
upon between them.

Such a settlement or modus vivendi between the heirs of the unliquidated two estates for the
mutual benefit of all of them should not prove difficult, considering that it appears as stated in
the main opinion that 22.968149% of the share or undivided estate of C. N. Hodges have
already been acquired by the heirs of Linnie Jane Hodges from certain heirs of her husband,
while certain other heirs representing 17.34375% of Hodges' estate were joining cause with
Linnie's heirs in their pending and unresolved motion for the removal of petitioner PCIB as
administrator of Hodges' estate, 45 apparently impatient with the situation which has apparently
degenerated into a running battle between the administrators of the two estates to the common
prejudice of all the heirs.
11. As earlier stated, the writer has taken the pain of suggesting these guidelines which may
serve to guide the probate court as well as the parties towards expediting the winding up and
closing of the estates and the distribution of the net estates to the instituted heirs and their
successors duly entitled thereto. The probate court should exert all effort towards this desired
objective pursuant to the mandate of our probate law, bearing in mind the Court's admonition in
previous cases that "courts of first instance should exert themselves to close up estate within
twelve months from the time they are presented, and they may refuse to allow any
compensation to executors and administrators who do not actively labor to that end, and they
may even adopt harsher measures."46

Timeliness of appeals and imposition of


thirty-one (31) additional docket fees

Two appeals were docketed with this Court, as per the two records on appeal submitted (one
with a green cover and the other with a yellow cover). As stated at the outset, these appeals
involve basically the same primal issue raised in the petition for certiorari as to whether there
still exists a separate estate of Linnie Jane Hodges which has to continue to be administered by
respondent Magno. Considering the main opinion's ruling in the affirmative and that her estate
and that of her husband (since they jointly comprise unliquidated community properties) must be
administered conjointly by their respective administrators (PCIB and Magno), the said appeals
(involving thirty-three different orders of the probate court approving sales contracts and other
acts of administration executed and performed by respondent Magno on behalf of Linnie's
estate) have been necessarily overruled by the Court's decision at bar.

(a) The "priority question" raised by respondent Magno as to the patent failure of the two
records on appeal to show on their face and state the material data that the appeals were timely
taken within the 30-day reglamentary period as required by Rule 41, section 6 of the Rules of
Court, has been brushed aside by the main opinion with the statement that it is "not necessary
to pass upon the timeliness of any of said appeals" since they "revolve around practically the
same main issues and ... it is admitted that some of them have been timely taken." 47 The main
opinion thus proceeded with the determination of the thirty-three appealed orders despite the
grave defect of the appellant PCIB's records on appeal and their failure to state the required
material data showing the timeliness of the appeals.

Such disposition of the question of timeliness deemed as "mandatory and jurisdictional" in a


number of cases merits the writer's concurrence in that the question raised has been
subordinated to the paramount considerations of substantial justice and a "liberal interpretation
of the rules" applied so as not to derogate and detract from the primary intent and purpose of
the rules, viz "the proper and just determination of a litigation" 48 — which calls for "adherence to
a liberal construction of the procedural rules in order to attain their objective of substantial
justice and of avoiding denials of substantial justice due to procedural technicalities." 49

Thus, the main opinion in consonance with the same paramount considerations of substantial
justice has likewise overruled respondents' objection to petitioner's taking the recourse of "the
present remedy of certiorari and prohibition" — "despite the conceded availability of appeal" —
on the ground that "there is a common thread among the basic issues involved in all these
thirty-three appeals — (which) deal with practically the same basic issues that can be more
expeditiously resolved or determined in a single special civil action . . . " 50
(b) Since the basic issues have been in effect resolved in the special civil action at bar (as
above stated) with the dismissal of the petition by virtue of the Court's judgment as to the
continued existence of a separate estate of Linnie Jane Hodges and the affirmance as a
necessary consequence of the appealed orders approving and sanctioning respondent Magno's
sales contracts and acts of administration, some doubt would arise as to the propriety of the
main opinion requiring the payment by PCIB of thirty-one (31) additional appeal docket fees.
This doubt is further enhanced by the question of whether it would make the cost of appeal
unduly expensive or prohibitive by requiring the payment of a separate appeal docket fee for
each incidental order questioned when the resolution of all such incidental questioned orders
involve basically one and the same main issue (in this case, the existence of a separate estate
of Linnie Jane Hodges) and can be more expeditiously resolved or determined in
a single special civil action" (for which a single docket fee is required) as stated in the main
opinion. 51Considering the importance of the basic issues and the magnitude of the estates
involved, however, the writer haspro hac vice given his concurrence to the assessment of the
said thirty-one (31) additional appeal docket fees.

MAKALINTAL, C.J., concurring:

I concur in the separate opinion of Justice Teehankee, which in turn agrees with the dispositive
portion of the main opinion of Justice Barredo insofar as it dismisses the petition
for certiorari and prohibition in Cases L-27860 and L-27896 and affirms the appealed orders of
the probate court in cases L-27936-37.

However, I wish to make one brief observation for the sake of accuracy. Regardless of whether
or not C. N. Hodges was entitled to a legitime in his deceased wife's estate — which question,
still to be decided by the said probate court, may depend upon what is the law of Texas and
upon its applicability in the present case — the said estate consists of one-half, not one-fourth,
of the conjugal properties. There is neither a minimum of one-fourth nor a maximum beyond
that. It is important to bear this in mind because the estate of Linnie Hodges consists of her
share in the conjugal properties, is still under administration and until now has not been
distributed by order of the court.

The reference in both the main and separate opinions to a one-fourth portion of the conjugal
properties as Linnie Hodges' minimum share is a misnomer and is evidently meant only to
indicate that if her husband should eventually be declared entitled to a legitime, then the
disposition made by Linnie Hodges in favor of her collateral relatives would be valid only as to
one-half of her share, or one-fourth of the conjugal properties, since the remainder, which
constitutes such legitime, would necessarily go to her husband in absolute ownership,
unburdened by any substitution, term or condition, resolutory or otherwise. And until the estate
is finally settled and adjudicated to the heirs who may be found entitled to it, the administration
must continue to cover Linnie's entire conjugal share.

Separate Opinions

FERNANDO, J., concurring:


I concur on the basis of the procedural pronouncements in the opinion.

TEEHANKEE, J., concurring:

I concur in the result of dismissal of the petition for certiorari and prohibition in Cases L-27860
and L-27896 and with the affirmance of the appealed orders of the probate court in Cases L-
27936-37.

I also concur with the portion of the dispositive part of the judgment penned by Mr. Justice
Barredo decreeing thelifting of the Court's writ of preliminary injunction of August 8, 1967 as
amended on October 4, and December 6, 1967 1 and ordering in lieu thereof that the Court's
resolution of September 8, 1972 2 which directed thatpetitioner-appellant PCIB as administrator
of C. N. (Charles Newton) Hodges' estate (Sp. Proc. No. 1672 and respondent-appellee Avelina
A. Magno as administratrix of Linnie Jane Hodges' estate (Sp. Proc. No. 1307) should act
always conjointly never independently from each other, as such administrators, is reiterated and
shall continue in force and made part of the judgment.

It is manifest from the record that petitioner-appellant PCIB's primal contention in the cases at
bar belatedly filedby it with this Court on August 1, 1967 (over ten (10) years after Linnie Jane
Hodges' death on May 23, 1957 and (over five (5) years after her husband C.N. Hodges' death
on December 25, 1962 — during which time both estates have been pending settlement and
distribution to the decedents' respective rightful heirs all this time up to now) — that the probate
court per its order of December 14, 1957 (supplementing an earlier order of May 25, 1957) 3 in
granting C. N. Hodges' motion as Executor of his wife Linnie's estate to continue their
"business of buying and selling personal and real properties" and approving "all sales,
conveyances, leases and mortgages" made and to be made by him as such executor under his
obligation to submit his yearly accounts in effect declared him as sole heir of his wife's estate
and nothing remains to be done except to formally close her estate (Sp. Proc. No. 1307) as her
estate was thereby merged with his own so that nothing remains of it that may be adjudicated to
her brothers and sisters as her designated heirs after him, 4 — is wholly untenable and deserves
scant consideration.

Aside from having been put forth as an obvious afterthought much too late in the day, this
contention of PCIB that there no longer exists any separate estate of Linnie Jane Hodges after
the probate court's order of December 14, 1957 goes against the very acts and
judicial admissions of C.N. Hodges as her executor whereby he consistently recognized
the separate existence and identity of his wife's estate apart from his own separate estate and
from his own share of their conjugal partnership and estate and "never considered the whole
estate as a single one belonging exclusively to himself" during the entire period that he survived
her for over five (5) years up to the time of his own death on December 25, 1962 5 and against
the identical acts and judicial admissions of PCIB as administrator of C.N. Hodges' estate until
PCIB sought in 1966 to take over both estates as pertaining to its sole administration.

PCIB is now barred and estopped from contradicting or taking a belated position contradictory to
or inconsistent with its previous admissions 6 (as well as those of C.N. Hodges himself in his
lifetime and of whose estate PCIB is merely an administrator) recognizing the existence and
identity of Linnie Jane Hodges' separate estate and the legal rights and interests therein of her
brothers and sisters as her designated heirs in her will.
PCIB's petition for certiorari and prohibition to declare all acts of the probate court in Linnie Jane
Hodges' estate subsequent to its order of December 14, 1957 as "null and void for having been
issued without jurisdiction" must therefore be dismissed with the rejection of its belated and
untenable contention that there is no longer any estate of Mrs. Hodges of which respondent
Avelina Magno is the duly appointed and acting administratrix.

PCIB's appeal 7 from the probate court's various orders recognizing respondent Magno as
administratrix of Linnie's estate (Sp. Proc No. 1307) and sanctioning her acts of administration
of said estate and approving the sales contracts executed by her with the various individual
appellees, which involve basically the same primal issue raised in the petition as to whether
there still exists a separate estate of Linnie of which respondent-appellee Magno may continue
to be the administratrix, must necessarily fail — a result of the Court's main opinion at bar that
there does exist such an estate and that the two estates (husband's and wife's) must be
administered cojointlyby their respective administrators (PCIB and Magno).

The dispositive portion of the main opinion

The main opinion disposes that:

IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered


DISMISSING the petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING,
in G. R. Nos. L-27936-37 and the other thirty-one numbers hereunder ordered to
be added after payment of the corresponding docket fees, all the orders of the
trial court under appeal enumerated in detail on pages 35 to 37 and 80 to 82 of
this decision:

The existence of the Testate Estate of Linnie Jane Hodges, with respondent-
appellee Avelina A. Magno, as administratrix thereof is recognized, and

It is declared that, until final judgment is ultimately rendered regarding (1) the
manner of applying Article 16 of the Civil Code of the Philippines to the situation
obtaining in these cases and (2) the factual and legal issues of whether or not
Charles Newton Hodges has effectively and legally renounced his inheritance
under the will of Linnie Jane Hodges, the said estate consists of one-fourthof 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 deduction whatsoever are to be made from said
estate;

In consequence, the preliminary injunction of August 8, 1967, as amended on


October 4 and December 6, 1967, is lifted and the resolution of September 8,
1972, directing that petitioner-appellant PCIB, as Administrator of the Testate
Estate of Charles Newton Hodges in Special Proceedings 1672, and respondent-
appellee Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane
Hodges in Special Proceedings 1307, should act thenceforth always conjointly,
never independently from each other, as such administrators, is reiterated, and
the same is made part of this judgment and shall continue in
force, pending the liquidation of the conjugal partnership of the deceased
spouses and the determination and segregation from each other of their
respective estates; provided, that upon the finality of this judgment, the trial court
should immediately proceed to the partition of the presently combined estates of
the spouses, to the end that the one-half share thereof of Mrs. Hodges may be
properly and clearly identified;

Thereafter, the trial court should forthwith segregate the remainder of the one-
fourth herein adjudged to be her estate and cause the same to be turned over or
delivered to respondent for her exclusive administration in Special Proceedings
1307, while the other one-fourth shall remain under the joint administrative of
said respondent and petitioner under a joint proceedings in Special Proceedings
1307 and 1672, whereas the half unquestionably pertaining to Hodges shall
be administered bypetitioner exclusively in Special Proceedings 1672, without
prejudice to the resolution by the trial court of the pending motions for its
removal as administrator;

And this arrangement shall be maintained until the final resolution of the two
issues of renvoi andrenunciation hereby reserved for further hearing and
determination, and the corresponding completesegregation and partition of the
two estates in the proportions that may result from the said resolution.

Generally and in all other respects, the parties and the court a quo are directed to
adhere henceforth, in all their actuations in Special Proceedings 1307 and 1672,
to the views passed and ruled upon by the Court in the foregoing opinion. 8

Minimum estimate of Mrs. Hodges' estate:


One-fourth of conjugal properties.

The main opinion in declaring the existence of a separate estate of Linnie Jane Hodges which
shall pass to her brothers and sisters with right of representation (by their heirs) as her duly
designated heirs declares that her estate consists as a minimum (i.e. assuming (1) that under
Article 16 of the Philippine Civil Code C. N. Hodges as surviving husband was entitled to one-
half of her estate as legitime and (2) that he had not effectively and legallyrenounced his
inheritance under her will) 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," with the
proviso that proceeds of remunerative dispositions or sales for valuable consideration made by
C. N. Hodges after his wife Linnie's death shall continue to be part of her
estate unless subsequently disposed of by him gratuitously to third parties subject to the
condition, however, that if he is held to have validly and effectively renounced his inheritance
under his wife's will, no deductions of any dispositions made by Hodges even if gratuitously are
to be made from his wife Linnie's estate which shall passintact to her brothers and sisters as her
designated heirs called in her will to succeed to her estate upon the death of her husband C. N.
Hodges.

Differences with the main opinion


I do not share the main opinion's view that Linnie Jane Hodges instituted her husband as her
heir under her will "to have dominion over all her estate during his lifetime ... as absolute
owner of the properties ..." 9 and that she bequeathed "the whole of her estate to be owned and
enjoyed by him as universal and sole heir with absolute dominion over them 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." 10

As will be amplified hereinafter, I do not subscribe to such a view that Linnie Jane Hodges willed
"full and absolute ownership" and "absolute dominion" over her estate to her husband, but
rather that she named her husband C. N. Hodges and her brothers and sisters as instituted
heirs with a term under Article 885 of our Civil Code, to wit, Hodges as instituted heir with
a resolutory term whereunder his right to the succession ceased in diem upon arrival of
the resolutory term of his death on December 25, 1962 and her brothers and sisters as
instituted heirs with asuspensive term whereunder their right to the succession commenced ex
die upon arrival of the suspensive term of the death of C. N. Hodges on December 25, 1962.

Hence, while agreeing with the main opinion that the proceeds of all remunerative dispositions
made by C. N. Hodges after his wife's death remain an integral part of his wife's estate which
she willed to her brothers and sisters, I submit that C. N. Hodges could not validly
make gratuitous dispositions of any part or all of his wife's estate — "completely and absolutely
dispose of any portion thereof inter vivos to anyone other than himself" in the language of the
main opinion, supra — and thereby render ineffectual and nugatory her institution of her
brothers and sisters as her designated heirs to succeed to her whole estate "at the death of
(her) husband." If according to the main opinion, Hodges could not make such gratuitous
"complete and absolute dispositions" of his wife Linnie's estate "mortis causa," it would seem
that by the same token and rationale he was likewise proscribed by the will from making such
dispositions of Linnie's estate inter vivos.

I believe that the two questions of renvoi and renunciation should be


resolved preferentially and expeditiously by the probate court ahead of the partition and
segregation of the minimum one-fourth of the conjugal or community properties constituting
Linnie Jane Hodges' separate estate, which task considering that it is now seventeen (17) years
since Linnie Jane Hodges' death and her conjugal estate with C. N. Hodges has
remained unliquidated up to now might take a similar number of years to unravel with the
numerous items, transactions and details of the sizable estates involved.

Such partition of the minimum one-fourth would not be final, since if the two prejudicial
questions of renvoi andrenunciation were resolved favorably to Linnie's estate meaning to say
that if it should be held that C. N. Hodges is not entitled to any legitime of her estate and at any
rate he had totally renounced his inheritance under the will), then Linnie's estate would consist
not only of the minimum one-fourth but one-half of the conjugal or community properties of the
Hodges spouses, which would require again the partition and segregation of still another one-
fourth of said. properties to complete Linnie's separate estate.
My differences with the main opinion involve further the legal concepts, effects and
consequences of the testamentary dispositions of Linnie Jane Hodges in her will and the
question of the best to reach a solution of the pressing question of expediting the closing of the
estates which after all do not appear to involve any outstanding debts nor any dispute between
the heirs and should therefore be promptly settled now after all these years without any further
undue complications and delays and distributed to the heirs for their full enjoyment and benefit.
As no consensus appears to have been reached thereon by a majority of the Court, I propose to
state views as concisely as possible with the sole end in view that they may be of some
assistance to the probate court and the parties in reaching an expeditious closing and
settlement of the estates of the Hodges spouses.

Two Assumptions

As indicated above, the declaration of the minimum of Mrs. Hodges' estate as one-fourth of the
conjugal properties is based on two assumptions most favorable to C. N. Hodges' estate and his
heirs, namely (1) that the probate court must accept the renvoi or "reference back" 11 allegedly
provided by the laws of the State of Texas (of which state the Hodges spouses were citizens)
whereby the civil laws of the Philippines as the domicile of the Hodges spouses would govern
their succession notwithstanding the provisions of Article 16 of our Civil Code (which provides
that the national law of the decedents, in this case, of Texas, shall govern their succession) with
the result that her estate would consist of no more than one-fourth of the conjugal properties
since the legitime of her husband (the other one-fourth of said conjugal properties or one-half
of her estate, under Article 900 of our Civil Code) could not then be disposed of nor burdened
with any condition by her and (2) that C.N. Hodges had noteffectively and legally renounced his
inheritance under his wife's will.

These two assumptions are of course flatly disputed by respondent-appellee Magno as Mrs.
Hodges' administratrix, who avers that the law of the State of Texas governs her succession
and does not provide for and legitime, hence, her brothers and sisters are entitled to succeed to
the whole of her share of the conjugal properties which is one-half thereof and that in any event,
Hodges had totally renounced all his rights under the will.

The main opinion concedes that "(I)n 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." It observes however that this cannot be done due to the inadequacy of the
evidence submitted by the parties in the probate court and of the parties' discussion, viz, "there
is no clear and reliable proof of what the possibly applicable laws of Texas are. Then also, the
genuineness of the documents relied upon by respondent Magno [re Hodges' renunciation] is
disputed." 12

Hence, the main opinion expressly reserves resolution and determination on these two
conflicting claims and issues which it deems "are not properly before the Court
now," 13 and specifically holds that "(A)ccordingly, 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." 14

Suggested guidelines
Considering that the only unresolved issue has thus been narrowed down and in consonance
with the ruling spirit of our probate law calling for the prompt settlement of the estates of
deceased persons for the benefit of creditors and those entitled to the residue by way of
inheritance — considering that the estates have been long pending settlement since 1957 and
1962, respectively — it was felt that the Court should lay down specific guidelines for the
guidance of the probate court towards the end that it may expedite the closing of the protracted
estates proceedings below to the mutual satisfaction of the heirs and without need of a
dissatisfied party elevating its resolution of this only remaining issue once more to this Court
and dragging out indefinitely the proceedings.

After all, the only question that remains depends for its determination on the resolution of the
two questions ofrenvoi and renunciation, i.e. as to whether C. N. Hodges can claim
a legitime and whether he had renounced the inheritance. But as already indicated above, the
Court without reaching a consensus which would finally resolve the conflicting claims here and
now in this case opted that "these and other relevant matters should first be threshed out fully in
the trial court in the proceedings hereinafter to be held for the purpose of ascertaining and/or
distributing the estate of Mrs. Hodges to her heirs in accordance with her duly probated will." 15

The writer thus feels that laying down the premises and principles governing the nature, effects
and consequences of Linnie Jane Hodges' testamentary dispositions in relation to her conjugal
partnership and co-ownership of properties with her husband C. N. Hodges and "thinking out"
the end results, depending on whether the evidence directed to be formally received by the
probate court would bear out that under renvoi C. N. Hodges was or was not entitled to claim a
legitime of one-half of his wife Linnie's estate and/or that he had or had not effectively and
validly renounced his inheritance should help clear the decks, as it were, and assist the probate
court in resolving the only remaining question of how much more than the minimum one-fourth
of the community properties of the Hodges spouses herein finally determined should be
awarded as the separate estate of Linnie, particularly since the views expressed in the main
opinion have not gained a consensus of the Court. Hence, the following suggested guidelines,
which needless to state, represent the personal opinion and views of the writer:

1. To begin with, as pointed out in the main opinion, "according to Hodges' own inventory
submitted by him as executor of the estate of his wife, practically all their properties
were conjugal which means that the spouses haveequal shares therein." 16

2. Upon the death of Mrs. Hodges on May 23, 1957, and the dissolution thereby of the marriage,
the law imposed upon Hodges as surviving husband the duty of inventorying, administering and
liquidating the conjugal or community property. 17 Hodges failed to discharge this duty
of liquidating the conjugal partnership and estate. On the contrary, he sought and obtained
authorization from the probate court to continue the conjugal partnership'sbusiness of buying
and selling real and personal properties.

In his annual accounts submitted to the probate court as executor of Mrs. Hodges' estate,
Hodges thusconsistently reported the considerable combined income (in six figures) of
the conjugal partnership or coownershipand then divided the same equally between himself and
Mrs. Hodges' estate and as consistently filed separate income tax returns and paid the income
taxes for each resulting half of such combined income corresponding to his own and to Mrs.
Hodges' estate. 18 (Parenthetically, he could not in law do this, had he adjudicated Linnie's
entire estate to himself, thus supporting the view advanced even in the main opinion that
"Hodges waived not only his rights to the fruits but to the properties themselves." 19
By operation of the law of trust 20 as well as by his own acknowledgment and acts, therefore, all
transactions made by Hodges after his wife's death were deemed for and on behalf of
their unliquidated conjugal partnership andcommunity estate and were so reported and treated
by him.

3. With this premise established that all transactions of Hodges after his wife's death were for
and on behalf of their unliquidated conjugal partnership and community estate, share and share
alike, it should be clear that nogratuitous dispositions, if any, made by C. N. Hodges from his
wife Linnie's estate should be deducted from herseparate estate as held in the main opinion. On
the contrary, any such gratuitous dispositions should be charged to his own share of the
conjugal estate since he had no authority or right to make any gratuitous dispositions of Linnie's
properties to the prejudice of her brothers and sisters whom she called to her succession upon
his death, not to mention that the very authority obtained by him from the probate court per its
orders of May 25, and December 14, 1957 was to continue the conjugal partnership's business
of buying and selling real properties for the account of their unliquidated conjugal estate and co-
ownership, share and share alike and not to make anyfree dispositions of Linnie's estate.

4. All transactions as well after the death on December 25, 1962 of Hodges himself appear
perforce and necessarily to have been conducted, on the same premise, for and on behalf of
their unliquidated conjugal partnership and/or co-ownership, share and share alike — since the
conjugal partnership remained unliquidated — which is another way of saying that such
transactions, purchases and sales, mostly the latter, must be deemed in effect to have been
made for the respective estates of C. N. Hodges and of his wife Linnie Jane Hodges, as both
estates continued to have an equal stake and share in the conjugal partnership which was not
only leftunliquidated but continued as a co-ownership or joint business with the probate court's
approval by Hodges during the five-year period that he survived his wife.

This explains the probate court's action of requiring that deeds of sale executed by PCIB as
Hodges' estate's administrator be "signed jointly" by respondent Magno as Mrs. Hodges'
estate's administratrix, as well as its order authorizing payment by lot purchasers from the
Hodges to either estate, since "there is as yet no judicial declaration of heirs nor distribution of
properties to whomsoever are entitled thereto." 22

And this equally furnishes the rationale of the main opinion for continued conjoint administration
by the administrators of the two estates of the deceased spouses, "pending the liquidation of the
conjugal partnership,"23 since "it is but logical that both estates should be administered jointly by
the representatives of both, pending their segregation from each other. Particularly ... because
the actuations so far of PCIB evince a determined, albeit groundless, intent to exclude the other
heirs of Mrs. Hodges from their inheritance." 24 5. Antly by the representatives of both, pending
their segregation from each other. Particularly ... because the actuations so far of PCIB evince a
determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their
inheritance." 24

5. As stressed in the main opinion, the determination of the only unresolved issue of how much
more than the minimum of one-fourth of the community or conjugal properties of the Hodges
spouses pertains to Mrs. Hodges' estate depends on the twin questions
of renunciation and renvoi. It directed consequently that "a joint hearing of the two probate
proceedings herein involved" be held by the probate court for the reception of "further evidence"
in order to finally resolved these twin questions. 25
(a) On the question of renunciation, it is believed that all that the probate court has to do is to
receive formally in evidence the various documents annexed to respondent Magno's answer at
bar, 26 namely: Copy of the U.S. Estate Tax Return filed on August 8, 1958 by C. N. Hodges for
his wife Linnie's estate wherein he purportedly declared that he was renouncing his inheritance
under his wife's will in favor of her brothers and sisters as co-heirs designated with him and that
it was his "intention (as) surviving husband of the deceased to distribute the remaining property
and interests of the deceased in their community estate to the devisee and legatees named in
the will when the debts, liabilities, taxes and expenses of administration are finally determined
and paid;" 27 and

The affidavit of ratification of such renunciation (which places him in estoppel) allegedly
executed on August 9, 1962 by C. N. Hodges in Iloilo City wherein he reaffirmed that "...
on August 8, 1958, I renounced and disclaimed any and all right to receive the rents,
emoluments and income from said estate" and further declared that "(T)he 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." 28

(b) On the question of renvoi, all that remains for the probate court to do is to formally receive in
evidence duly authenticated copies of the laws of the State of Texas governing the succession
of Linnie Jane Hodges and her husband C. N. Hodges as citizens of said State at the time of
their respective deaths on May 23, 1957 andDecember 25, 1962. 29

6. The text and tenor of the declarations by C. N. Hodges of renunciation of his inheritance from
his wife in favor of her other named heirs in her will (her brothers and sisters and their
respective heirs) as ratified and reiteratedexpressly in his affidavit of renunciation executed four
years later for the avowed purpose of not being held liable for payment of income taxes on
income which has accrued to his wife's estate since her death indicate a valid and effective
renunciation.

Once the evidence has been formally admitted and its genuineness and legal effectivity
established by the probate court, the renunciation by C. N. Hodges must be given due effect
with the result that C. N. Hodges therefore acquired no part of his wife's one-half share of the
community properties since he removed himself as an heir by virtue of his renunciation. By
simple substitution then under Articles 857 and 859 of our Civil Code 30 and by virtue of the will's
institution of heirs, since "the heir originally instituted C. N. Hodges) does not become an
heir"31 by force of his renunciation, Mrs. Hodges' brothers and sisters whom she designated as
her heirs upon her husband's death are called immediately to her succession.

Consequently, the said community and conjugal properties would then pertain pro indiviso share
and share alike to their respective estates, with each estate, however, shouldering its own
expenses of administration, estate and inheritance taxes, if any remain unpaid, attorneys' fees
and other like expenses and the net remainder to be adjudicated directly to the decedents'
respective brothers and sisters (and their heirs) as the heirs duly designated in their respective
wills. The question of renvoi becomes immaterial since most laws and our
lawspermit such renunciation of inheritance.
7. If there were no renunciation (or the same may somehow be declared to have not been valid
and effective) by C. N. Hodges of his inheritance from his wife, however, what would be the
consequence?

(a) If the laws on succession of the State of Texas do provide for renvoi or "reference back" to
Philippine law as the domiciliary law of the Hodges' spouses governing their succession, then
petitioners' view that Mrs. Hodges' estate would consist only of the minimum of "one-fourth of
the community properties of the said spouses, as of the time of (her) death on May 23, 1957"
would have to be sustained and C. N. Hodges' estate would consist of three-fourths of the
community properties, comprising his own one-half (or two-fourths) share and the other fourth of
Mrs. Hodges' estate as the legitime granted him as surviving spouse by Philippine law (Article
900 of the Civil Code) which could not be disposed of nor burdened with any condition by Mrs.
Hodges as testatrix.

(b) If the laws on succession of the State of Texas do not provide for such renvoi and
respondent Magno's assertion is correct that the Texas law which would then prevail, provides
for no legitime for C. N. Hodges as the surviving spouse, then respondent Magno's assertion
that Mrs. Hodges' estate would consist of one-half of the community properties (with the other
half pertaining to C. N. Hodges) would have to be sustained. The community and conjugal
properties would then pertain share and share alike to their respective estates, with each estate
shouldering its own expenses of administration in the same manner stated in the last paragraph
of paragraph 6 hereof. .

8. As to the nature of the institution of heirs made by Mrs. Hodges in her will, the main opinion
holds that "(T)he brothers and sisters of Mrs. Hodges are not substitutes for Hodges; rather,
they are also heirs institutedsimultaneously with Hodges," but goes further and holds that "it was
not the usufruct alone of her estate ... 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 against his disposing or conveying the whole or any portion
thereof anybody other than himself" and describes Hodges "as universal and sole
heir with absolute dominion over Mrs. Hodges' estate (except over their Lubbock, Texas
property ), 32 adding that "Hodges was not obliged to preserve anything for them" (referring to
Mrs. Hodges' brothers and sisters as instituted co-heirs). 33

Contrary to this view of the main opinion, the writer submits that the provisions of Mrs. Hodges'
will did not grant to C.N. Hodges "full ownership" nor "absolute dominion" over her estate, such
that he could as "universal and sole heir" by the mere expedient of gratuitously disposing to
third persons her whole estate during his lifetime nullify her institution of her brothers and sisters
as his co-heirs to succeed to her whole estate "at the death of (her) husband," deprive them of
any inheritance and make his own brothers and sisters in effect sole heirs not only of his own
estate but of his wife's estate as well.

Thus, while Linnie Jane Hodges did not expressly name her brothers and sisters as substitutes
for Hodges because she willed that they would enter into the succession upon his death, still it
cannot be gainsaid, as the main opinion concedes, "that 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." 34
Hence, if Hodges is found to have validly renounced his inheritance, there would be a
substitution of heirs in fact and in law since Linnie's brothers and sisters as the heirs
"simultaneously instituted" with a suspensive term would be called immediately to her
succession instead of waiting for the arrival of suspensive term of Hodges' death, since as the
heir originally instituted he does not become an heir by force of his renunciation and therefore
they would "enter into the inheritance in default of the heir originally instituted" (Hodges) under
the provisions of Article 857 and 859 of our Civil Code, supra, 35 thus accelerating their
succession to her estate as a consequence of Hodges' renunciation.

Consequently, Linnie Jane Hodges willed that her husband C.N. Hodges would "during his
natural lifetime ...manage, control, use and enjoy said estate" and that only "all rents,
emoluments and income" alone shall belong to him. She further willed that while he
could sell and purchase properties of her estate, and "use any part of the principal estate," such
principal notwithstanding "any changes in the physical properties of said estate"(i.e. new
properties acquired or exchanged) would still pertain to her estate, which at the time of his
death would pass in full dominion to her brothers and sisters as the ultimate sole and universal
heirs of her estate. 36

The testatrix Linnie Jane Hodges in her will thus principally provided that "I give, devise and
bequeath all of the rest, residue and remainder of my estate, both personal and real ... to my
beloved husband, Charles Newton Hodges, to have and to hold with him ... during his natural
lifetime;" 37 that "(he) shall have the right to manage, control, use and enjoy said estate during
his lifetime, ... to make any changes in the physical properties of said estate, by sale ... and
the purchase of any other or additional property as he may think best ... . 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, ... he shall not sell or
otherwise dispose of any of the improved property now owned by us, located at ... City of
Lubbock, Texas ... . He shall have the right to subdivide any farmland and sell lots therein, and
may sell unimproved town lots;" 38 that "(A)t the death of my said husband, Charles Newton, I
give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and
real, ... 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 Roman and
Nimroy Higdon;" 39 and that "(I)n case of the death of any of my brothers and/or sisters ... prior
to the death of my husband ... 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." 40

Such provisions are wholly consistent with the view already fully expounded above that all
transactions and sales made by Hodges after his wife Linnie's death were by operation of the
law of trust as well as by his ownacknowledgment and acts deemed for and on behalf of
their unliquidated conjugal partnership and community estate, share and share alike, with the
express authorization of the probate court per its orders of May 25, and December 14, 1957
granting Hodges' motion to continue the conjugal partnership business of buying and selling real
estate even after her death. By the same token, Hodges could not conceivably be deemed to
have had any authority or right to dispose gratuitously of any portion of her estate to whose
succession she had called her brothers and sisters upon his death.

9. Such institutions of heirs with a term are expressly recognized and permitted under Book III,
Chapter 2, section 4 of our Civil Code dealing with "conditional testamentary dispositions and
testamentary dispositions with a term." 41
Thus, Article 885 of our Civil Code expressly provides that:

ART 885. The designation of the day or time when the effects of the institution of
an heir shallcommence or cease shall be valid.

In both cases, the legal heir shall be considered as called to the succession until
the arrival of the period or its expiration. But in the first case he shall not enter
into possession of the property until after having given sufficient security, with the
intervention of the instituted heir.

Accordingly, under the terms of Mrs. Hodges' will, her husband's right to the succession as the
instituted heir ceased in diem, i.e. upon the arrival of the resolutory term of his death on
December 25, 1962, while her brothers' and sisters' right to the succession also as instituted
heirs commenced ex die, i.e. upon the expiration of the suspensive term (as far as they were
concerned) of the death of C. N. Hodges on December 25, 1962 . 42

As stated in Padilla's treatise on the Civil Code, "A term is a period whose arrival is certain
although the exact date thereof may be uncertain. A term may have either a suspensive or a
resolutory effect. The designation of the day when the legacy "shall commence" is ex die, or a
term with a suspensive effect, from a certain day. The designation of the day when the legacy
"shall cease" is in diem or a term with a resolutory effect, until a certain day." He adds that "A
legacy based upon a certain age or upon the death of a person is not a condition but aterm. If
the arrival of the term would commence the right of the heir, it is suspensive. If the arrival of the
term would terminate his right, it is resolutory" and that "upon the arrival of the period, in case of
a suspensive term, theinstituted heir is entitled to the succession, and in case of a resolutory
term, his right terminates." 43

10. The sizable estates herein involved have now been pending settlement for a considerably
protracted period (of seventeen years counted from Linnie's death in 1957), and all that is left to
be done is to resolve the onlyremaining issue (involving the two questions
of renunciation and renvoi) hereinabove discussed in order to close up the estates and finally
effect distribution to the deceased spouses' respective brothers and sisters and their heirs as
the heirs duly instituted in their wills long admitted to probate. Hence, it is advisable for said
instituted heirs and their heirs in turn 44 to come to terms for the adjudication and distribution to
them pro-indiviso of the up to now unliquidated community properties of the estates of the
Hodges spouses (derived from their unliquidatedconjugal partnership) rather than to get bogged
down with the formidable task of physically segregating andpartitioning the two estates with the
numerous transactions, items and details and physical changes of properties involved. The
estates proceedings would thus be closed and they could then name their respective attorneys-
in-fact to work out the details of segregating, dividing or partitioning the unliquidated community
properties or liquidating them — which can be done then on their own without further need of
intervention on the part of the probate court as well as allow them meanwhile to enjoy and make
use of the income and cash and liquid assets of the estates in such manner as may be agreed
upon between them.

Such a settlement or modus vivendi between the heirs of the unliquidated two estates for the
mutual benefit of all of them should not prove difficult, considering that it appears as stated in
the main opinion that 22.968149% of the share or undivided estate of C. N. Hodges have
already been acquired by the heirs of Linnie Jane Hodges from certain heirs of her husband,
while certain other heirs representing 17.34375% of Hodges' estate were joining cause with
Linnie's heirs in their pending and unresolved motion for the removal of petitioner PCIB as
administrator of Hodges' estate, 45 apparently impatient with the situation which has apparently
degenerated into a running battle between the administrators of the two estates to the common
prejudice of all the heirs.

11. As earlier stated, the writer has taken the pain of suggesting these guidelines which may
serve to guide the probate court as well as the parties towards expediting the winding up and
closing of the estates and the distribution of the net estates to the instituted heirs and their
successors duly entitled thereto. The probate court should exert all effort towards this desired
objective pursuant to the mandate of our probate law, bearing in mind the Court's admonition in
previous cases that "courts of first instance should exert themselves to close up estate within
twelve months from the time they are presented, and they may refuse to allow any
compensation to executors and administrators who do not actively labor to that end, and they
may even adopt harsher measures."46

Timeliness of appeals and imposition of


thirty-one (31) additional docket fees

Two appeals were docketed with this Court, as per the two records on appeal submitted (one
with a green cover and the other with a yellow cover). As stated at the outset, these appeals
involve basically the same primal issue raised in the petition for certiorari as to whether there
still exists a separate estate of Linnie Jane Hodges which has to continue to be administered by
respondent Magno. Considering the main opinion's ruling in the affirmative and that her estate
and that of her husband (since they jointly comprise unliquidated community properties) must be
administered conjointly by their respective administrators (PCIB and Magno), the said appeals
(involving thirty-three different orders of the probate court approving sales contracts and other
acts of administration executed and performed by respondent Magno on behalf of Linnie's
estate) have been necessarily overruled by the Court's decision at bar.

(a) The "priority question" raised by respondent Magno as to the patent failure of the two
records on appeal to show on their face and state the material data that the appeals were timely
taken within the 30-day reglamentary period as required by Rule 41, section 6 of the Rules of
Court, has been brushed aside by the main opinion with the statement that it is "not necessary
to pass upon the timeliness of any of said appeals" since they "revolve around practically the
same main issues and ... it is admitted that some of them have been timely taken." 47 The main
opinion thus proceeded with the determination of the thirty-three appealed orders despite the
grave defect of the appellant PCIB's records on appeal and their failure to state the required
material data showing the timeliness of the appeals.

Such disposition of the question of timeliness deemed as "mandatory and jurisdictional" in a


number of cases merits the writer's concurrence in that the question raised has been
subordinated to the paramount considerations of substantial justice and a "liberal interpretation
of the rules" applied so as not to derogate and detract from the primary intent and purpose of
the rules, viz "the proper and just determination of a litigation" 48 — which calls for "adherence to
a liberal construction of the procedural rules in order to attain their objective of substantial
justice and of avoiding denials of substantial justice due to procedural technicalities." 49

Thus, the main opinion in consonance with the same paramount considerations of substantial
justice has likewise overruled respondents' objection to petitioner's taking the recourse of "the
present remedy of certiorari and prohibition" — "despite the conceded availability of appeal" —
on the ground that "there is a common thread among the basic issues involved in all these
thirty-three appeals — (which) deal with practically the same basic issues that can be more
expeditiously resolved or determined in a single special civil action . . . " 50

(b) Since the basic issues have been in effect resolved in the special civil action at bar (as
above stated) with the dismissal of the petition by virtue of the Court's judgment as to the
continued existence of a separate estate of Linnie Jane Hodges and the affirmance as a
necessary consequence of the appealed orders approving and sanctioning respondent Magno's
sales contracts and acts of administration, some doubt would arise as to the propriety of the
main opinion requiring the payment by PCIB of thirty-one (31) additional appeal docket fees.
This doubt is further enhanced by the question of whether it would make the cost of appeal
unduly expensive or prohibitive by requiring the payment of a separate appeal docket fee for
each incidental order questioned when the resolution of all such incidental questioned orders
involve basically one and the same main issue (in this case, the existence of a separate estate
of Linnie Jane Hodges) and can be more expeditiously resolved or determined in
a single special civil action" (for which a single docket fee is required) as stated in the main
opinion. 51Considering the importance of the basic issues and the magnitude of the estates
involved, however, the writer haspro hac vice given his concurrence to the assessment of the
said thirty-one (31) additional appeal docket fees.

MAKALINTAL, C.J., concurring:

I concur in the separate opinion of Justice Teehankee, which in turn agrees with the dispositive
portion of the main opinion of Justice Barredo insofar as it dismisses the petition
for certiorari and prohibition in Cases L-27860 and L-27896 and affirms the appealed orders of
the probate court in cases L-27936-37.

However, I wish to make one brief observation for the sake of accuracy. Regardless of whether
or not C. N. Hodges was entitled to a legitime in his deceased wife's estate — which question,
still to be decided by the said probate court, may depend upon what is the law of Texas and
upon its applicability in the present case — the said estate consists of one-half, not one-fourth,
of the conjugal properties. There is neither a minimum of one-fourth nor a maximum beyond
that. It is important to bear this in mind because the estate of Linnie Hodges consists of her
share in the conjugal properties, is still under administration and until now has not been
distributed by order of the court.

The reference in both the main and separate opinions to a one-fourth portion of the conjugal
properties as Linnie Hodges' minimum share is a misnomer and is evidently meant only to
indicate that if her husband should eventually be declared entitled to a legitime, then the
disposition made by Linnie Hodges in favor of her collateral relatives would be valid only as to
one-half of her share, or one-fourth of the conjugal properties, since the remainder, which
constitutes such legitime, would necessarily go to her husband in absolute ownership,
unburdened by any substitution, term or condition, resolutory or otherwise. And until the estate
is finally settled and adjudicated to the heirs who may be found entitled to it, the administration
must continue to cover Linnie's entire conjugal share.

Footnotes

1 Actually, the affidavit reads as follows:


"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 of respondent Avelina Magno, p. 264, L-27860 Rollo.)

2 The will of Hodges executed on November 14, 1953 contained mutually similar
dispositions as those of his wife as follows:

xxx xxx xxx

"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 the rest, residue and remainder of my
estate, both personal and real, wherever situated, or located, to my beloved wife,
Linnie Jane Hodges, to have and to hold unto her, my said wife, during her
natural lifetime.

THIRD: I desire, direct and provide that my wife, Linnie Jane Hodges, shall have
the right to manage, control, use and enjoy said estate during her lifetime, and
she is hereby given the right to make any changes in the physical properties of
said estate, by sale or any part thereof which she 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 she 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 she may elect to sell. All rents,
emoluments and income from said estate shall belong to her, and she is further
authorized to use any part of the principal of said estate as she may need or
desire. It is provided herein, however, that she 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 she shall have the full right to lease, manage and enjoy
the same during her lifetime, as above provided. She shall have the right to
subdivide any farm land and sell lots therein, and may sell unimproved town lots.

xxx xxx xxx


FIFTH: At the death of my beloved wife, Linnie Jane Hodges, I give, devise and
bequeath to the heirs of my half brother, Robert Hodges, who is now deceased, a
half brother's share of my estate.

SIXTH: At the death of my said wife, Linnie Jane Hodges, I give, devise and
bequeath to the heirs of my deceased full sister, Mattie Hodges Simpkins, a full
sister's share of my estate.

SEVENTH: At the death of my said wife, Linnie Jane Hodges, I give, devise and
bequeath to the heirs of my deceased half sister, Barbara O'dell, a half sister's
share of my estate.

EIGHT: At the death of my said wife, Linnie Jane Hodges, I give, devise and
bequeath to the heirs of my full brother, Joe Hodges, deceased, a full brother's
share of my estate. .

NINTH: At the death of my said wife, Linnie Jane Hodges, I give, devise and
bequeath to the heirs of my half brother, Willie Carver, deceased, a half brother's
share of my estate.

TENTH: At the death of my said wife, Linnie Jane 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 other full
brothers and full sisters, share and share alike, namely: J. A. Hodges, B. F.
Hodges, Laura Holland and Addie Elliot.

ELEVENTH: In case of the death of any of my full brothers and/or full sisters
named in Item Tenth above, prior to the death of my wife, Linnie Jane Hodges,
then it is my will and bequest that the heirs of such deceased full brother or full
sister shall take jointly the share which would have gone to such full brother or
full sister had he or she survived.

xxx xxx xxx

All erasures and interlineations made before signing."

3 None of the two records on appeal contains any copy of the motion and the
opposition upon which the court acted.

4 More specific factual details related to these appeals will be stated later in the
course of the distribution of the assignments of error.

5 It should be noted that in his affidavit, Hodges ratified and confirmed the
"declaration made in Schedule M (of the inheritance tax return he filed in the
U.S.)" wherein he declared that no property interests passed to him as the
surviving spouse, except for purposes of administration and distribution to the
devisees and legatees named in the will of his wife, and further disclaimed and
renounced any right on his part to receive rents, emoluments and income
therefrom because he wanted to be "absolved ... from liability for the payment of
income taxes on income that has accrued to the estate of" his wife. While We
cannot make any definite ruling on the point now, We might at least express the
impression that reading all these statements together, one can hardly escape the
conclusion that in the literal sense the idea conveyed by them is that Hodges
waived not only his rights to the fruits but to the properties themselves.

6 With the exception of the limitations referring to the Texas properties.

7 "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."
(Article 16, Civil Code.)

7* The question of what is the law of a foreign country is one of fact subject to
proof like any other factual issue. (Sy Joc Lien vs. Sy Quia, 16 Phil. 137; Ching
Huat vs. Co Heong 77 Phil. 988.)

8 PCIB claims that pursuant to the laws of Texas, Mrs. Hodges' estate is only
one-fourth of the conjugal estate, while, on the other hand, Magno contends that
under said laws, it is one-half of said estate since there is no legitime for the
surviving spouse provided in said laws.

9 The motion for contempt will be separately taken up in due time.

10 The issues We have expressly reserved for later resolution. (See pp. 111-114
of this opinion.)

11 If it should be found by the court later that Hodges did renounce his
inheritance from Mrs. Hodges, as seems to be indicated in the documents
mentioned in the opinion, Schedule M of the Inheritance Tax Return filed by
Hodges in the United States, Annex 4 of the Answer in G. R. Nos. L- 27860 & L-
27896, and the affidavit of Hodges, Annex 5 also of the same answer, it is likely
that Hodges did not have to pay any inheritance tax, and it would only be after
these proceedings are finally terminated with a judgment favorable to the
brothers and sisters of Mrs. Hodges that taxes could be assessed against them
according to their respective individual shares.

11* See page 114-I ante.

12 See page 89-A of this decision.

TEEHANKEE J., CONCURRING:

1 This writ enjoined respondent court from acting in Sp. Proc. No. 1307 (Testate
Estate of Linnie Jane Hodges) and respondent-appellee Avelina A. Magno from
interfering and intervening therein, pendingdetermination of the main issue raised
by petitioner-appellant PCIB as to whether or not Mrs. Hodges' estate continued
to exist as such so as to require the services of said Avelina A. Magno as
administratrix thereof in view of PCIB's contention that her (Mrs. Hodges') entire
estate had been adjudicated in 1957 by the probate court to her surviving
husband C. N. Hodges as "the only devisee or legatee" under her will, which
contention has now been rejected in the Court's decision at bar.

2 This resolution was based on "the inherent fairness of allowing the


administratrix of the estate of Mrs. Hodges [Avelina A. Magno]
to jointly administer the properties, rights and interests comprising both estates
[Linnie Jane Hodges' and that of her husband C. N. Hodges] until they are
separated from each other" in order to give adequate protection to the rights and
interests of their respective brothers and sisters as their designated heirs rather
than "if the whole [both] proceedings were to be under the administration of the
estate of Mr. Hodges [PCIB] to the exclusion of any representative of the heirs of
Mrs. Hodges."

3 See page 5 et seq of main opinion.

4 See page 91 et seq of main opinion.

5 See page 100 of main opinion.

6 "Sec. 2. Judicial Admissions. — Admissions made by the parties in the


pleadings, or in the course of the trial or other proceedings do not require proof
and can not be contradicted unless previously shown to have been made through
palpable mistake." (Rule 129). See also 5 Moran's 1970 Ed. 65 and cases cited.

7 See p. 114-1 et seq. of main opinion.

8 At pp., 136-137 of main opinion; paragraphing and emphasis supplied.

9 At page 121 of main opinion.

10 At pages 110-11 of main opinion.

11 See In re: Testate Estate of Edward E. Christiansen, deceased, Aznar vs.


Garcia, 7 SCRA 95, 103, 107 (1963).

12 At p. 112, main opinion. See also p. 103, where the main opinion refers to still
other documentsevidencing Hodges' renunciation and observes that "we cannot
close our eyes to their existence in the record." (emphasis supplied).

13 At p. 113, main opinion.

14 At p. 114-I, main opinion, emphasis supplied.

15 At page 112, main opinion.


16 At page 109, main opinion; emphasis supplied.

17 "SEC 2. Where estate settled upon dissolution of marriage. — 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." (Rule 73) 18 At pp. 129-130, main opinion.

19 At page 103, main opinion, fn. 5.

20 Pamittan vs. Lasam, 60 Phil. 908 (1934), where the Court stressed the "high
degree of trust" reposed in the surviving husband as "owner of a half interest in
his own right of the conjugal estate which he was charged to administer" and that
the conjugal property which thus comes into his possession upon his wife's death
"remains conjugal property, a continuing and subsisting trust" for as long as it
remains unliquidated.

21 Order of August 6, 1965, p. 248 Green Record on Appeal; see p. 30, main
opinion.

22 Appealed order of November 23, 1965 against Western Institute of


Technology, Inc. as purchaser-appellee, pp. 334-335, Green Rec. on App. see
pp. 33-34, main opinion.

23 At p. 137, main opinion.

24 At pp. 108-109, main opinion.

25 At p. 114, main opinion, which notes that "the question of what are the laws of
Texas governing the matter here in issue is . . . one of fact, not of law."

26 See p. 102 et seq. main opinion; Annexes 4 and 5 Answer, pp. 163-264
of Rollo.

27 Annex 4, Answer, p. 263 of Rollo; emphasis supplied. 28 Annex 5, Answer,


see p. 103, main opinion; emphasis supplied. 29 See pp. 114 et seq. main
opinion.

30 "ART. 857. Substitution is the appointment of another heir so that he may


enter into the inheritance in default of the heir originally instituted." (Civil Code)

"ART. 859. The testator may designate one or more persons to substitute the
heir or heirs instituted in case such heir or heirs should die before him, or should
not wish, or should be incapacitated to accept the inheritance.

"A simple substitution, without a statement of the cases to which it refers, shall
comprise the three mentioned in the preceding paragraph, unless the testator
has otherwise provided." (Civil Code, emphasis supplied)
31 6 Manresa 116, cited in III Padilla's Civil Code 1973 Ed., p. 241.

32 At pp. 110-112, main opinion; emphasis supplied.

33 At p. 134, main opinion.

34 At page 110, main opinion.

35 Text reproduced in fn. 30 hereof.

36 C.N. Hodges' own will contained identical provisions in favor of his wife, Linnie
Jane Hodges to "manage, control, use and enjoy (his)estate during her lifetime"
and making specific bequests of his whole estate to his full and half-brothers and
sisters in clauses Fifth to Tenth thereof all "at the death of my said wife, Linnie
Jane Hodges. "At p. 18 et seq. main opinion.

37 Second of seven clauses of will, emphasis supplied.

38 Third clause of will, idem.

39 Fourth clause of will, idem.

40 Fifth clause of will, idem.

41 Art. 871, Civil Code provides that "(T)he institution of an heir may he made
conditionally, or for a certain purpose or cause."

42 An analogous case is found in Crisologo vs. Singson, 4 SCRA 491 (1962)


where the testatrix provided that the property willed by her to a grandniece was
to pass to her brothers "to be effective or to take place upon the death of the
(grandniece)" — whether this happens before or after the testatrix's own death.

43 Padilla's Civil Code, 1973 Ed. p. 284. The main opinion at pp. 110-111 also
concedes the suspensive and resolutory effects of Mrs. Hodges' institution of
heirs.

44 Linnie Jane Hodges' brothers and sisters at her death on May 23, 1957 had
ages ranging from 62 to 74 yrs. (except for Nimroy Higdon who was then 50 yrs.
old) and most likely have all passed away or are already too old to enjoy their
inheritance. Green Rec. on Appeal, p. 2.

45 At page 89-a, main opinion.

46 Medina et al. vs. C. A., L-34760, September 28, 1973, citing Lizarraga Hnos.
vs. Abada, 40 Phil. 124 and other cases.

47 At p. 90, main opinion.


48 Ronquillo vs. Marasigan, 5 SCRA 304, cited in Berkenkotter vs. C.A., L-
36629, September 28, 1973, per Esguerra, J.

49 See the writer's concurring op. in Sison vs. Gatchalian, L-34709, June 15,
1973 and dissenting op. in Velasco vs. C.A., L-31018, June 29, 1973.

50 At pp. 90-91, main opinion.

51 At p. 91, main opinion.

IN RE JOHNSON

U.S. Supreme Court

In re Johnson, 167 U.S. 120 (1897)

In re Johnson

No. 13

Original

Submitted April 26, 1897

Decided May 10, 1897

167 U.S. 120

Syllabus

On July 24, 1896, a warrant was issued by a commissioner for the Southern District of the
Indian Territory to arrest Johnson upon the charge of rape, alleged to have been committed
upon one Pearl McCormick on the same day. Subsequently and on the 9th of October at a
regular term of the United States court for that district, he was indicted, and on the 17th of
October was arraigned, tried and convicted by a jury, and is now under sentence of death. On
July 26, the day following the commission of the offense, a warrant, issued by a commissioner
for the Eastern District of Texas charging him with the same crime was placed in the hands of
the marshal for that district, who demanded of the marshal of the

Page 167 U. S. 121

Southern District of the Indian Territory the surrender of the petitioner in obedience to said writ,
but the same was refused. It does not appear when this demand was made or whether it was
before or after the 1st day of September. It further appeared that, at the time of the commission
of the offense, the United States Court for the Eastern District of Texas was not in session, and
that no term of said court was held until the third Monday of November, after petitioner had been
tried, convicted, and sentenced to death. Held that if the petitioner was actually in the custody of
the marshal on the 1st of September, his subsequent indictment and trial were valid, though in
the first instance he might have been illegally arrested.

It is the settled doctrine of this Court that a court having possession of a person or property
cannot be deprived of the right to deal with such person or property until its jurisdiction is
exhausted, and that no other court has the right to interfere with such custody and possession.

This was a petition for a writ of habeas corpus to obtain the release of the petitioner from the
custody of the Marshal of the Southern District of the Indian Territory, who now holds him under
sentence of death for the crime of rape.

From the petition and the return to the rule to show cause, it appears that on July 24, 1896, a
warrant was issued by a commissioner for the Southern District of the Indian Territory to arrest
Johnson upon the charge of rape, alleged to have been committed upon one Pearl McCormick
on the same day; that subsequently, and on the 9th of October, at a regular term of the United
States court for that district, he was indicted, and on the 17th of October was arraigned, tried,
and convicted by a jury, and is now under sentence of death.

It further appears that on July 25th, the day following the commission of the offense, a warrant
issued by a commissioner for the Eastern District of Texas charging him with the same crime
was placed in the hands of the marshal for that district, who demanded of the marshal of the
Southern District of the Indian Territory the surrender of the petitioner in obedience to said writ,
but the same was refused. It does not appear when this demand was made or whether it was
before or after the 1st day of September. It further appeared that at the time of the commission
of the offense, the United States Court for the Eastern District of Texas was not in session, and
that no term of said court was held until

Page 167 U. S. 122

the third Monday of November, after petitioner had been tried, convicted and sentenced to
death.

Upon this state of facts, the petitioner claimed that the United States court for the Southern
District of the Indian Territory had no jurisdiction of the case, but that, under the provisions of an
act of Congress cited in the opinion, the court for the Eastern District of Texas retained
jurisdiction of all offenses committed within the Southern District of the Indian Territory where
the punishment was death or imprisonment at hard labor until September 1, 1896, and that the
United States Court for the Eastern District of Texas had sole and exclusive jurisdiction over his
offense.

In re Johnson, 167 U.S. 120 (1897)

In re Johnson

No. 13

Original

Submitted April 26, 1897

Decided May 10, 1897

167 U.S. 120

ORIGINAL

Syllabus

On July 24, 1896, a warrant was issued by a commissioner for the Southern District of the
Indian Territory to arrest Johnson upon the charge of rape, alleged to have been committed
upon one Pearl McCormick on the same day. Subsequently and on the 9th of October at a
regular term of the United States court for that district, he was indicted, and on the 17th of
October was arraigned, tried and convicted by a jury, and is now under sentence of death. On
July 26, the day following the commission of the offense, a warrant, issued by a commissioner
for the Eastern District of Texas charging him with the same crime was placed in the hands of
the marshal for that district, who demanded of the marshal of the

Page 167 U. S. 121

Southern District of the Indian Territory the surrender of the petitioner in obedience to said writ,
but the same was refused. It does not appear when this demand was made or whether it was
before or after the 1st day of September. It further appeared that, at the time of the commission
of the offense, the United States Court for the Eastern District of Texas was not in session, and
that no term of said court was held until the third Monday of November, after petitioner had been
tried, convicted, and sentenced to death. Held that if the petitioner was actually in the custody of
the marshal on the 1st of September, his subsequent indictment and trial were valid, though in
the first instance he might have been illegally arrested.
It is the settled doctrine of this Court that a court having possession of a person or property
cannot be deprived of the right to deal with such person or property until its jurisdiction is
exhausted, and that no other court has the right to interfere with such custody and possession.

This was a petition for a writ of habeas corpus to obtain the release of the petitioner from the
custody of the Marshal of the Southern District of the Indian Territory, who now holds him under
sentence of death for the crime of rape.

From the petition and the return to the rule to show cause, it appears that on July 24, 1896, a
warrant was issued by a commissioner for the Southern District of the Indian Territory to arrest
Johnson upon the charge of rape, alleged to have been committed upon one Pearl McCormick
on the same day; that subsequently, and on the 9th of October, at a regular term of the United
States court for that district, he was indicted, and on the 17th of October was arraigned, tried,
and convicted by a jury, and is now under sentence of death.

It further appears that on July 25th, the day following the commission of the offense, a warrant
issued by a commissioner for the Eastern District of Texas charging him with the same crime
was placed in the hands of the marshal for that district, who demanded of the marshal of the
Southern District of the Indian Territory the surrender of the petitioner in obedience to said writ,
but the same was refused. It does not appear when this demand was made or whether it was
before or after the 1st day of September. It further appeared that at the time of the commission
of the offense, the United States Court for the Eastern District of Texas was not in session, and
that no term of said court was held until

Page 167 U. S. 122

the third Monday of November, after petitioner had been tried, convicted and sentenced to
death.

Upon this state of facts, the petitioner claimed that the United States court for the Southern
District of the Indian Territory had no jurisdiction of the case, but that, under the provisions of an
act of Congress cited in the opinion, the court for the Eastern District of Texas retained
jurisdiction of all offenses committed within the Southern District of the Indian Territory where
the punishment was death or imprisonment at hard labor until September 1, 1896, and that the
United States Court for the Eastern District of Texas had sole and exclusive jurisdiction over his
offense.

MR. JUSTICE BROWN, after stating the facts in the foregoing language, delivered the opinion
of the court.
This case raises the question whether the United States Court for the Southern District of the
Indian Territory had jurisdiction to try and condemn the petitioner under the circumstances
above set forth.

The following statutes are pertinent in this connection: by the fifth section of the act "to establish
a United States court in the Indian Territory," etc., approved March 1, 1889, c. 333, 25 Stat. 783,
it is enacted

"that the court hereby established shall have exclusive original jurisdiction over all offenses
against the laws of the United States, committed within the Indian Territory as in this act
defined, not punishable by death or imprisonment at hard labor;"

by the seventeenth section, "that the Chickasaw Nation, and the portion of the Choctaw Nation,"
within certain described boundaries (including the locus of this crime),

"and all that portion of the Indian Territory not annexed to the District of Kansas by the Act
approved January 6, 1883, and not set apart and occupied by the five civilized tribes, shall, from
and after the passage of

Page 167 U. S. 123

this act, be annexed to and constitute a part of the Eastern Judicial District of the State of Texas
for judicial purposes."

The eighteenth section provides that sessions of said court shall be held twice in each year at
Paris,

"and the United States courts, herein provided to be held at Paris, shall have exclusive original
jurisdiction of all offenses committed against the laws of the United States within the limits of
that portion of the Indian Territory attached to the Eastern Judicial District of the State of Texas
by the provisions of this act of which jurisdiction is not given by this act to the court herein
established in the Indian Territory."

Taking these sections together, it is clear that jurisdiction was vested in the new court created
by the act over all minor offenses against the laws of the United States committed within the
Indian Territory, but that jurisdiction of all offenses punishable by death or by imprisonment at
hard labor was conferred upon the United States Court for the Eastern District of Texas over
that portion of the Indian Territory described in section seventeen.

This jurisdiction was expressly continued by section thirty-three of the Act of May 2, 1890, 26
Stat. 81, "to provide a temporary government for the Territory of Oklahoma."
On March 1, 1895, an act was passed "to provide for the appointment of additional judges of the
United States Court in the Indian Territory," etc. 28 Stat. 693. The ninth section of that act reads
as follows:

"SEC. 9. That the United States court in the Indian Territory shall have exclusive original
jurisdiction of all offenses committed in said territory of which the United States court in the
Indian Territory now has jurisdiction, and after the first day of September, 1896, shall have
exclusive original jurisdiction of all offenses against the laws of the United States committed in
said territory except such cases as the United States Court at Paris, Texas, Fort Smith,
Arkansas, and Fort Scott, Kansas, shall have acquired jurisdiction of before that time. . . ."

"All laws heretofore enacted conferring jurisdiction upon United States courts held in Arkansas,
Kansas, and Texas, outside of the limits of the Indian Territory, as defined by

Page 167 U. S. 124

law, as to offenses committed in said Indian Territory, as herein provided, are hereby repealed,
to take effect on September 1, 1896, and the jurisdiction now conferred by law upon said courts
is hereby given from and after the date aforesaid to the United States Court in the Indian
Territory, provided that in all criminal cases where said courts outside of the Indian Territory
shall have on September 1, 1896, acquired jurisdiction, they shall retain jurisdiction to try and
finally dispose of such cases."

The case evidently turns upon the construction of this last section. This section had three
purposes: first, to enable the United States Court in the Indian Territory to retain the jurisdiction
it then had under the fifth section of the Act of March 1, 1889, of all offenses against the laws of
the United States not punishable by death or by imprisonment at hard labor; second, to give it
jurisdiction after September 1, 1896, of all offenses whatever, except of such cases as the
courts in Texas, Arkansas, and Kansas had acquired jurisdiction before that time; third, to
repeal all laws conferring jurisdiction upon these courts after that date, and to vest jurisdiction of
the same upon United States courts in the Indian Territory, with a proviso repeating the
exception above indicated.

Now if the United States Court for the Eastern District of Texas had "acquired jurisdiction" of this
case, manifestly it was entitled to try the petitioner, but otherwise not. The fact that the crime
was committed on the 24th of July had no bearing upon the question, since jurisdiction was
vested in the United States Court in the Indian Territory not of crimes or offenses committed
after September first, but of all offenses in that territory of which the Texas court had not
acquired jurisdiction before that date. In this view, the date when the crime was committed is
wholly immaterial, and the case of Caha v. United States, 152 U. S. 211, is inapplicable.
Jurisdiction is acquired under this statute not by the commission of an offense, but by service of
process upon the person. 58 U. S. 215; 50 U. S. 348; Pennoyer v. Neff, 95 U. S. 714; Mexican
Central Railway

Page 167 U. S. 125

v. Pinkney, 149 U. S. 194. In this connection, jurisdiction of the "case" -- i.e. the crime -- is
indistinguishable from jurisdiction of the person who is charged with the crime.

We know of no reason why the rule so frequently applied in cases of conflicting jurisdiction
between federal and state courts should not determine this question. Ever since the case
of Ableman v. Booth, 21 How. 506, it has been the settled doctrine of this Court that a court
having possession of a person or property cannot be deprived of the right to deal with such
person or property until its jurisdiction is exhausted, and that no other court has the right to
interfere with such custody or possession. This rule was reaffirmed in Tarble's Case, 13 Wall.
397, in Robb v. Connolly, 111 U. S. 624, and in In re Spangler, 11 Mich. 298, and with reference
to personal property has been so often restated as to have become one of the maxims of the
law. Taylor v. Carryl, 20 How. 583; Freeman v. Howe, 24 How. 450; Ellis v. Davis, 109 U. S.
485; Krippendorf v. Hyde, 110 U. S. 276; Covell v. Heyman, 111 U. S. 176; Byers v.
McAuley, 149 U. S. 608; Moran v. Sturges, 154 U. S. 256; In re Chetwood, 165 U. S. 443.

The material facts of the case upon which the petitioner relies are that on July 25, a warrant was
issued by a United States Commissioner for the Eastern District of Texas charging him with the
crime for which a warrant had already been issued against him by a commissioner of the Indian
Territory, and upon which he seems to have been arrested by the marshal. A demand was
made by the Texas marshal upon the marshal of the Indian Territory, but neither the petition nor
the return to the rule to show cause shows that the demand was made before September first.
Assuming that the Commissioner for the Southern District of the Indian Territory exceeded his
authority in issuing and the marshal in executing his warrant of arrest, it does not follow that the
subsequent indictment and conviction were void. If the petitioner was in the actual custody of
the marshal on September first, his subsequent indictment and trial were valid though in the first
instance he might have been illegally arrested.

Page 167 U. S. 126

Thus, in 13 U. S. 402. Indeed, there are many authorities which go to the extent of holding
that, in criminal cases, a forcible abduction is no sufficient reason why the party should not
answer when brought within the jurisdiction of the court which has the right to try him for such
an offense, and presents no valid objection to his trial in such court. Kerr v. People, 119 U. S.
436, 119 U. S. 444; Ex Parte Scott (1829), 9 B. & C. 446; Lopez & Sattler's Case, 1 Dearsly &
Bell's Crown Cases 525; State v. Smith(1829), 1 Bailey 283; State v. Brewster (1835), 7 Vt.
118; Dow's Case (1851), 18 Penn.St. 37; State v. Ross & Mann (1866), 21 Ia. 467. Although it
has been frequently held that, if a defendant in a civil case be brought within the process of the
court by a trick or device, the service will be set aside, and he will be discharged from
custody.Union Sugar Refinery v. Mathiesson, 2 Cliff. 304; Wells v. Gurney, 8 B. & C.
769;Snelling v. Watrous, 2 Paige 315; Williams v. Bacon, 10 Wend. 636; Metcalf v. Clark, 41
Barb. 45; Stein v. Valkenburg, 3 B. & E. 65; Williams v. Reed, 5 Dutcher 385;Carpenter v.
Spooner, 2 Sand. 917; Pfiffner v. Krapfell, 28 Ia. 27; Moynahan v. Wilson,2 Flippen 130; Small
v. Montgomery, 17 F.8d 5; Kaufman v. Kennedy,@ 25 F.7d 5. The law will not permit a person
to be kidnapped or decoyed within the jurisdiction for the purpose of being compelled to answer
to a mere private claim, but in criminal cases, the interests of the public override that which is,
after all, a mere privilege from arrest.

Page 167 U. S. 127

But in this case, there was nothing of the kind. The crime was committed and the prisoner
arrested within the territory, and within the local jurisdiction of the territorial court. Had he been
arrested without warrant by the marshal, or even by a private individual, and detained in custody
until after the first of September, he might then have been indicted, although perhaps an action
might have lain against the person so arresting him for false imprisonment. If the jurisdiction of
the Texas court had attached, or, in the language of the statute, had been "acquired," before
September first, that would have been a good defense; but, as already stated, all that had been
done was to issue a warrant which was never served, and there is nothing to show that a
demand was made for the petitioner before the first of September. Whether, if such demand had
been made, that would have itself vested the Texas court with priority of jurisdiction is a
question we are not called upon to discuss. It is clear that the mere issue of a warrant was not
sufficient.

The petition must be

Denied.
COLLECTOR VS FISHER

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

G.R. No. L-11622 January 28, 1961

THE COLLECTOR OF INTERNAL REVENUE, petitioner,


vs.
DOUGLAS FISHER AND BETTINA FISHER, and the COURT OF TAX
APPEALS, respondents.

x---------------------------------------------------------x

G.R. No. L-11668 January 28, 1961.

DOUGLAS FISHER AND BETTINA FISHER, petitioner,


vs.
THE COLLECTOR OF INTERNAL REVENUE, and the COURT OF TAX
APPEALS, respondents.

BARRERA, J.:

This case relates to the determination and settlement of the hereditary estate left by the
deceased Walter G. Stevenson, and the laws applicable thereto. Walter G. Stevenson (born in
the Philippines on August 9, 1874 of British parents and married in the City of Manila on
January 23, 1909 to Beatrice Mauricia Stevenson another British subject) died on February 22,
1951 in San Francisco, California, U.S.A. whereto he and his wife moved and established their
permanent residence since May 10, 1945. In his will executed in San Francisco on May 22,
1947, and which was duly probated in the Superior Court of California on April 11, 1951,
Stevenson instituted his wife Beatrice as his sole heiress to the following real and personal
properties acquired by the spouses while residing in the Philippines, described and preliminary
assessed as follows:

Gross Estate
Real Property — 2 parcels of land in
Baguio, covered by T.C.T. Nos. 378 and
379 P43,500.00
Personal Property
(1) 177 shares of stock of Canacao
Estate at P10.00 each 1,770.00
(2) 210,000 shares of stock of Mindanao
Mother Lode Mines, Inc. at P0.38 per
share 79,800.00
(3) Cash credit with Canacao Estate Inc. 4,870.88
(4) Cash, with the Chartered Bank of
India, Australia & China 851.97
Total Gross Assets P130,792.85
On May 22, 1951, ancillary administration proceedings were instituted in the Court of First
Instance of Manila for the settlement of the estate in the Philippines. In due time Stevenson's
will was duly admitted to probate by our court and Ian Murray Statt was appointed ancillary
administrator of the estate, who on July 11, 1951, filed a preliminary estate and inheritance tax
return with the reservation of having the properties declared therein finally appraised at their
values six months after the death of Stevenson. Preliminary return was made by the ancillary
administrator in order to secure the waiver of the Collector of Internal Revenue on the
inheritance tax due on the 210,000 shares of stock in the Mindanao Mother Lode Mines Inc.
which the estate then desired to dispose in the United States. Acting upon said return, the
Collector of Internal Revenue accepted the valuation of the personal properties declared
therein, but increased the appraisal of the two parcels of land located in Baguio City by fixing
their fair market value in the amount of P52.200.00, instead of P43,500.00. After allowing the
deductions claimed by the ancillary administrator for funeral expenses in the amount of
P2,000.00 and for judicial and administration expenses in the sum of P5,500.00, the Collector
assessed the state the amount of P5,147.98 for estate tax and P10,875,26 or inheritance tax, or
a total of P16,023.23. Both of these assessments were paid by the estate on June 6, 1952.

On September 27, 1952, the ancillary administrator filed in amended estate and inheritance tax
return in pursuance f his reservation made at the time of filing of the preliminary return and for
the purpose of availing of the right granted by section 91 of the National Internal Revenue Code.

In this amended return the valuation of the 210,000 shares of stock in the Mindanao Mother
Lode Mines, Inc. was reduced from 0.38 per share, as originally declared, to P0.20 per share, or
from a total valuation of P79,800.00 to P42,000.00. This change in price per share of stock was
based by the ancillary administrator on the market notation of the stock obtaining at the San
Francisco California) Stock Exchange six months from the death of Stevenson, that is, As of
August 22, 1931. In addition, the ancillary administrator made claim for the following deductions:

Funeral expenses ($1,04326) P2,086.52


Judicial Expenses:
(a) Administrator's Fee P1,204.34
(b) Attorney's Fee 6.000.00
(c) Judicial and Administration
expenses as of August 9, 1952 1,400.05
8,604.39
Real Estate Tax for 1951 on
Baguio real properties (O.R. No.
B-1 686836) 652.50
Claims against the estate:
($5,000.00) P10,000.00 P10,000.00
Plus: 4% int. p.a. from Feb. 2 to
22, 1951 22.47 10,022.47
Sub-Total P21,365.88

In the meantime, on December 1, 1952, Beatrice Mauricia Stevenson assigned all her rights
and interests in the estate to the spouses, Douglas and Bettina Fisher, respondents herein.
On September 7, 1953, the ancillary administrator filed a second amended estate and
inheritance tax return (Exh. "M-N"). This return declared the same assets of the estate stated in
the amended return of September 22, 1952, except that it contained new claims for additional
exemption and deduction to wit: (1) deduction in the amount of P4,000.00 from the gross estate
of the decedent as provided for in Section 861 (4) of the U.S. Federal Internal Revenue Code
which the ancillary administrator averred was allowable by way of the reciprocity granted by
Section 122 of the National Internal Revenue Code, as then held by the Board of Tax Appeals in
case No. 71 entitled "Housman vs. Collector," August 14, 1952; and (2) exemption from the
imposition of estate and inheritance taxes on the 210,000 shares of stock in the Mindanao
Mother Lode Mines, Inc. also pursuant to the reciprocity proviso of Section 122 of the National
Internal Revenue Code. In this last return, the estate claimed that it was liable only for the
amount of P525.34 for estate tax and P238.06 for inheritance tax and that, as a consequence, it
had overpaid the government. The refund of the amount of P15,259.83, allegedly overpaid, was
accordingly requested by the estate. The Collector denied the claim. For this reason, action was
commenced in the Court of First Instance of Manila by respondents, as assignees of Beatrice
Mauricia Stevenson, for the recovery of said amount. Pursuant to Republic Act No. 1125, the
case was forwarded to the Court of Tax Appeals which court, after hearing, rendered decision
the dispositive portion of which reads as follows:

In fine, we are of the opinion and so hold that: (a) the one-half (½) share of the surviving
spouse in the conjugal partnership property as diminished by the obligations properly
chargeable to such property should be deducted from the net estate of the deceased
Walter G. Stevenson, pursuant to Section 89-C of the National Internal Revenue Code;
(b) the intangible personal property belonging to the estate of said Stevenson is exempt
from inheritance tax, pursuant to the provision of section 122 of the National Internal
Revenue Code in relation to the California Inheritance Tax Law but decedent's estate is
not entitled to an exemption of P4,000.00 in the computation of the estate tax; (c) for
purposes of estate and inheritance taxation the Baguio real estate of the spouses should
be valued at P52,200.00, and 210,000 shares of stock in the Mindanao Mother Lode
Mines, Inc. should be appraised at P0.38 per share; and (d) the estate shall be entitled
to a deduction of P2,000.00 for funeral expenses and judicial expenses of P8,604.39.

From this decision, both parties appealed.

The Collector of Internal Revenue, hereinafter called petitioner assigned four errors allegedly
committed by the trial court, while the assignees, Douglas and Bettina Fisher hereinafter called
respondents, made six assignments of error. Together, the assigned errors raise the following
main issues for resolution by this Court:

(1) Whether or not, in determining the taxable net estate of the decedent, one-half (½) of the net
estate should be deducted therefrom as the share of tile surviving spouse in accordance with
our law on conjugal partnership and in relation to section 89 (c) of the National Internal revenue
Code;

(2) Whether or not the estate can avail itself of the reciprocity proviso embodied in Section 122
of the National Internal Revenue Code granting exemption from the payment of estate and
inheritance taxes on the 210,000 shares of stock in the Mindanao Mother Lode Mines Inc.;

(3) Whether or not the estate is entitled to the deduction of P4,000.00 allowed by Section 861,
U.S. Internal Revenue Code in relation to section 122 of the National Internal Revenue Code;
(4) Whether or not the real estate properties of the decedent located in Baguio City and the
210,000 shares of stock in the Mindanao Mother Lode Mines, Inc., were correctly appraised by
the lower court;

(5) Whether or not the estate is entitled to the following deductions: P8,604.39 for judicial and
administration expenses; P2,086.52 for funeral expenses; P652.50 for real estate taxes; and
P10,0,22.47 representing the amount of indebtedness allegedly incurred by the decedent during
his lifetime; and

(6) Whether or not the estate is entitled to the payment of interest on the amount it claims to
have overpaid the government and to be refundable to it.

In deciding the first issue, the lower court applied a well-known doctrine in our civil law that in
the absence of any ante-nuptial agreement, the contracting parties are presumed to have
adopted the system of conjugal partnership as to the properties acquired during their marriage.
The application of this doctrine to the instant case is being disputed, however, by petitioner
Collector of Internal Revenue, who contends that pursuant to Article 124 of the New Civil Code,
the property relation of the spouses Stevensons ought not to be determined by the Philippine
law, but by the national law of the decedent husband, in this case, the law of England. It is
alleged by petitioner that English laws do not recognize legal partnership between spouses, and
that what obtains in that jurisdiction is another regime of property relation, wherein all properties
acquired during the marriage pertain and belong Exclusively to the husband. In further support
of his stand, petitioner cites Article 16 of the New Civil Code (Art. 10 of the old) to the effect that
in testate and intestate proceedings, the amount of successional rights, among others, is to be
determined by the national law of the decedent.

In this connection, let it be noted that since the mariage of the Stevensons in the Philippines
took place in 1909, the applicable law is Article 1325 of the old Civil Code and not Article 124 of
the New Civil Code which became effective only in 1950. It is true that both articles adhere to
the so-called nationality theory of determining the property relation of spouses where one of
them is a foreigner and they have made no prior agreement as to the administration disposition,
and ownership of their conjugal properties. In such a case, the national law of the husband
becomes the dominant law in determining the property relation of the spouses. There is,
however, a difference between the two articles in that Article 1241 of the new Civil Code
expressly provides that it shall be applicable regardless of whether the marriage was celebrated
in the Philippines or abroad while Article 1325 2 of the old Civil Code is limited to marriages
contracted in a foreign land.

It must be noted, however, that what has just been said refers to mixed marriages between a
Filipino citizen and a foreigner. In the instant case, both spouses are foreigners who married in
the Philippines. Manresa,3 in his Commentaries, has this to say on this point:

La regla establecida en el art. 1.315, se refiere a las capitulaciones otorgadas en


Espana y entre espanoles. El 1.325, a las celebradas en el extranjero cuando alguno de
los conyuges es espanol. En cuanto a la regla procedente cuando dos extranjeros se
casan en Espana, o dos espanoles en el extranjero hay que atender en el primer caso a
la legislacion de pais a que aquellos pertenezean, y en el segundo, a las reglas
generales consignadas en los articulos 9 y 10 de nuestro Codigo. (Emphasis supplied.)
If we adopt the view of Manresa, the law determinative of the property relation of the
Stevensons, married in 1909, would be the English law even if the marriage was celebrated in
the Philippines, both of them being foreigners. But, as correctly observed by the Tax Court, the
pertinent English law that allegedly vests in the decedent husband full ownership of the
properties acquired during the marriage has not been proven by petitioner. Except for a mere
allegation in his answer, which is not sufficient, the record is bereft of any evidence as to what
English law says on the matter. In the absence of proof, the Court is justified, therefore, in
indulging in what Wharton calls "processual presumption," in presuming that the law of England
on this matter is the same as our law. 4

Nor do we believe petitioner can make use of Article 16 of the New Civil Code (art. 10, old Civil
Code) to bolster his stand. A reading of Article 10 of the old Civil Code, which incidentally is the
one applicable, shows that it does not encompass or contemplate to govern the question of
property relation between spouses. Said article distinctly speaks of amount of successional
rights and this term, in speaks in our opinion, properly refers to the extent or amount of property
that each heir is legally entitled to inherit from the estate available for distribution. It needs to be
pointed out that the property relation of spouses, as distinguished from their successional rights,
is governed differently by the specific and express provisions of Title VI, Chapter I of our new
Civil Code (Title III, Chapter I of the old Civil Code.) We, therefore, find that the lower court
correctly deducted the half of the conjugal property in determining the hereditary estate left by
the deceased Stevenson.

On the second issue, petitioner disputes the action of the Tax Court in the exempting the
respondents from paying inheritance tax on the 210,000 shares of stock in the Mindanao Mother
Lode Mines, Inc. in virtue of the reciprocity proviso of Section 122 of the National Internal
Revenue Code, in relation to Section 13851 of the California Revenue and Taxation Code, on
the ground that: (1) the said proviso of the California Revenue and Taxation Code has not been
duly proven by the respondents; (2) the reciprocity exemptions granted by section 122 of the
National Internal Revenue Code can only be availed of by residents of foreign countries and not
of residents of a state in the United States; and (3) there is no "total" reciprocity between the
Philippines and the state of California in that while the former exempts payment of both estate
and inheritance taxes on intangible personal properties, the latter only exempts the payment of
inheritance tax..

To prove the pertinent California law, Attorney Allison Gibbs, counsel for herein respondents,
testified that as an active member of the California Bar since 1931, he is familiar with the
revenue and taxation laws of the State of California. When asked by the lower court to state the
pertinent California law as regards exemption of intangible personal properties, the witness cited
article 4, section 13851 (a) and (b) of the California Internal and Revenue Code as published in
Derring's California Code, a publication of the Bancroft-Whitney Company inc. And as part of his
testimony, a full quotation of the cited section was offered in evidence as Exhibits "V-2" by the
respondents.

It is well-settled that foreign laws do not prove themselves in our jurisdiction and our courts are
not authorized to take judicial notice of them.5 Like any other fact, they must be alleged and
proved.6

Section 41, Rule 123 of our Rules of Court prescribes the manner of proving foreign laws before
our tribunals. However, although we believe it desirable that these laws be proved in
accordance with said rule, we held in the case of Willamette Iron and Steel Works v. Muzzal, 61
Phil. 471, that "a reading of sections 300 and 301 of our Code of Civil Procedure (now section
41, Rule 123) will convince one that these sections do not exclude the presentation of other
competent evidence to prove the existence of a foreign law." In that case, we considered the
testimony of an attorney-at-law of San Francisco, California who quoted verbatim a section of
California Civil Code and who stated that the same was in force at the time the obligations were
contracted, as sufficient evidence to establish the existence of said law. In line with this view, we
find no error, therefore, on the part of the Tax Court in considering the pertinent California law
as proved by respondents' witness.

We now take up the question of reciprocity in exemption from transfer or death taxes, between
the State of California and the Philippines.F

Section 122 of our National Internal Revenue Code, in pertinent part, provides:

... And, provided, further, That no tax shall be collected under this Title in respect of
intangible personal property (a) if the decedent at the time of his death was a resident of
a foreign country which at the time of his death did not impose a transfer of tax or death
tax of any character in respect of intangible personal property of citizens of the
Philippines not residing in that foreign country, or (b) if the laws of the foreign country of
which the decedent was a resident at the time of his death allow a similar exemption
from transfer taxes or death taxes of every character in respect of intangible personal
property owned by citizens of the Philippines not residing in that foreign country."
(Emphasis supplied).

On the other hand, Section 13851 of the California Inheritance Tax Law, insofar as pertinent,
reads:.

"SEC. 13851, Intangibles of nonresident: Conditions. Intangible personal property is


exempt from the tax imposed by this part if the decedent at the time of his death was a
resident of a territory or another State of the United States or of a foreign state or
country which then imposed a legacy, succession, or death tax in respect to intangible
personal property of its own residents, but either:.

(a) Did not impose a legacy, succession, or death tax of any character in respect to
intangible personal property of residents of this State, or

(b) Had in its laws a reciprocal provision under which intangible personal property of a
non-resident was exempt from legacy, succession, or death taxes of every character if
the Territory or other State of the United States or foreign state or country in which the
nonresident resided allowed a similar exemption in respect to intangible personal
property of residents of the Territory or State of the United States or foreign state or
country of residence of the decedent." (Id.)

It is clear from both these quoted provisions that the reciprocity must be total, that is, with
respect to transfer or death taxes of any and every character, in the case of the Philippine law,
and to legacy, succession, or death taxes of any and every character, in the case of the
California law. Therefore, if any of the two states collects or imposes and does not exempt any
transfer, death, legacy, or succession tax of any character, the reciprocity does not work. This is
the underlying principle of the reciprocity clauses in both laws.
In the Philippines, upon the death of any citizen or resident, or non-resident with properties
therein, there are imposed upon his estate and its settlement, both an estate and an inheritance
tax. Under the laws of California, only inheritance tax is imposed. On the other hand, the
Federal Internal Revenue Code imposes an estate tax on non-residents not citizens of the
United States,7 but does not provide for any exemption on the basis of reciprocity. Applying
these laws in the manner the Court of Tax Appeals did in the instant case, we will have a
situation where a Californian, who is non-resident in the Philippines but has intangible personal
properties here, will the subject to the payment of an estate tax, although exempt from the
payment of the inheritance tax. This being the case, will a Filipino, non-resident of California, but
with intangible personal properties there, be entitled to the exemption clause of the California
law, since the Californian has not been exempted from every character of legacy, succession, or
death tax because he is, under our law, under obligation to pay an estate tax? Upon the other
hand, if we exempt the Californian from paying the estate tax, we do not thereby entitle a
Filipino to be exempt from a similar estate tax in California because under the Federal Law,
which is equally enforceable in California he is bound to pay the same, there being no
reciprocity recognized in respect thereto. In both instances, the Filipino citizen is always at a
disadvantage. We do not believe that our legislature has intended such an unfair situation to the
detriment of our own government and people. We, therefore, find and declare that the lower
court erred in exempting the estate in question from payment of the inheritance tax.

We are not unaware of our ruling in the case of Collector of Internal Revenue vs. Lara (G.R.
Nos. L-9456 & L-9481, prom. January 6, 1958, 54 O.G. 2881) exempting the estate of the
deceased Hugo H. Miller from payment of the inheritance tax imposed by the Collector of
Internal Revenue. It will be noted, however, that the issue of reciprocity between the pertinent
provisions of our tax law and that of the State of California was not there squarely raised, and
the ruling therein cannot control the determination of the case at bar. Be that as it may, we now
declare that in view of the express provisions of both the Philippine and California laws that the
exemption would apply only if the law of the other grants an exemption from legacy, succession,
or death taxes of every character, there could not be partial reciprocity. It would have to be total
or none at all.

With respect to the question of deduction or reduction in the amount of P4,000.00 based on the
U.S. Federal Estate Tax Law which is also being claimed by respondents, we uphold and
adhere to our ruling in the Lara case (supra) that the amount of $2,000.00 allowed under the
Federal Estate Tax Law is in the nature of a deduction and not of an exemption regarding which
reciprocity cannot be claimed under the provision of Section 122 of our National Internal
Revenue Code. Nor is reciprocity authorized under the Federal Law. .

On the issue of the correctness of the appraisal of the two parcels of land situated in Baguio
City, it is contended that their assessed values, as appearing in the tax rolls 6 months after the
death of Stevenson, ought to have been considered by petitioner as their fair market value,
pursuant to section 91 of the National Internal Revenue Code. It should be pointed out,
however, that in accordance with said proviso the properties are required to be appraised at
their fair market value and the assessed value thereof shall be considered as the fair market
value only when evidence to the contrary has not been shown. After all review of the record, we
are satisfied that such evidence exists to justify the valuation made by petitioner which was
sustained by the tax court, for as the tax court aptly observed:

"The two parcels of land containing 36,264 square meters were valued by the
administrator of the estate in the Estate and Inheritance tax returns filed by him at
P43,500.00 which is the assessed value of said properties. On the other hand,
defendant appraised the same at P52,200.00. It is of common knowledge, and this Court
can take judicial notice of it, that assessments for real estate taxation purposes are very
much lower than the true and fair market value of the properties at a given time and
place. In fact one year after decedent's death or in 1952 the said properties were sold for
a price of P72,000.00 and there is no showing that special or extraordinary
circumstances caused the sudden increase from the price of P43,500.00, if we were to
accept this value as a fair and reasonable one as of 1951. Even more, the counsel for
plaintiffs himself admitted in open court that he was willing to purchase the said
properties at P2.00 per square meter. In the light of these facts we believe and therefore
hold that the valuation of P52,200.00 of the real estate in Baguio made by defendant is
fair, reasonable and justified in the premises." (Decision, p. 19).

In respect to the valuation of the 210,000 shares of stock in the Mindanao Mother Lode Mines,
Inc., (a domestic corporation), respondents contend that their value should be fixed on the basis
of the market quotation obtaining at the San Francisco (California) Stock Exchange, on the
theory that the certificates of stocks were then held in that place and registered with the said
stock exchange. We cannot agree with respondents' argument. The situs of the shares of stock,
for purposes of taxation, being located here in the Philippines, as respondents themselves
concede and considering that they are sought to be taxed in this jurisdiction, consistent with the
exercise of our government's taxing authority, their fair market value should be taxed on the
basis of the price prevailing in our country.

Upon the other hand, we find merit in respondents' other contention that the said shares of
stock commanded a lesser value at the Manila Stock Exchange six months after the death of
Stevenson. Through Atty. Allison Gibbs, respondents have shown that at that time a share of
said stock was bid for at only P.325 (p. 103, t.s.n.). Significantly, the testimony of Atty. Gibbs in
this respect has never been questioned nor refuted by petitioner either before this court or in the
court below. In the absence of evidence to the contrary, we are, therefore, constrained to
reverse the Tax Court on this point and to hold that the value of a share in the said mining
company on August 22, 1951 in the Philippine market was P.325 as claimed by respondents..

It should be noted that the petitioner and the Tax Court valued each share of stock of P.38 on
the basis of the declaration made by the estate in its preliminary return. Patently, this should not
have been the case, in view of the fact that the ancillary administrator had reserved and availed
of his legal right to have the properties of the estate declared at their fair market value as of six
months from the time the decedent died..

On the fifth issue, we shall consider the various deductions, from the allowance or disallowance
of which by the Tax Court, both petitioner and respondents have appealed..

Petitioner, in this regard, contends that no evidence of record exists to support the allowance of
the sum of P8,604.39 for the following expenses:.

1) Administrator's fee P1,204.34


2) Attorney's fee 6,000.00
3) Judicial and Administrative expenses 2,052.55
Total Deductions P8,604.39
An examination of the record discloses, however, that the foregoing items were considered
deductible by the Tax Court on the basis of their approval by the probate court to which said
expenses, we may presume, had also been presented for consideration. It is to be supposed
that the probate court would not have approved said items were they not supported by evidence
presented by the estate. In allowing the items in question, the Tax Court had before it the
pertinent order of the probate court which was submitted in evidence by respondents. (Exh.
"AA-2", p. 100, record). As the Tax Court said, it found no basis for departing from the findings
of the probate court, as it must have been satisfied that those expenses were actually incurred.
Under the circumstances, we see no ground to reverse this finding of fact which, under Republic
Act of California National Association, which it would appear, that while still living, Walter G.
Stevenson obtained we are not inclined to pass upon the claim of respondents in respect to the
additional amount of P86.52 for funeral expenses which was disapproved by the court a quo for
lack of evidence.

In connection with the deduction of P652.50 representing the amount of realty taxes paid in
1951 on the decedent's two parcels of land in Baguio City, which respondents claim was
disallowed by the Tax Court, we find that this claim has in fact been allowed. What happened
here, which a careful review of the record will reveal, was that the Tax Court, in itemizing the
liabilities of the estate, viz:

1) Administrator's fee P1,204.34


2) Attorney's fee 6,000.00
3) Judicial and Administration expenses as of
August 9, 1952 2,052.55
Total P9,256.89

added the P652.50 for realty taxes as a liability of the estate, to the P1,400.05 for judicial and
administration expenses approved by the court, making a total of P2,052.55, exactly the same
figure which was arrived at by the Tax Court for judicial and administration expenses. Hence,
the difference between the total of P9,256.98 allowed by the Tax Court as deductions, and the
P8,604.39 as found by the probate court, which is P652.50, the same amount allowed for realty
taxes. An evident oversight has involuntarily been made in omitting the P2,000.00 for funeral
expenses in the final computation. This amount has been expressly allowed by the lower court
and there is no reason why it should not be. .

We come now to the other claim of respondents that pursuant to section 89(b) (1) in relation to
section 89(a) (1) (E) and section 89(d), National Internal Revenue Code, the amount of
P10,022.47 should have been allowed the estate as a deduction, because it represented an
indebtedness of the decedent incurred during his lifetime. In support thereof, they offered in
evidence a duly certified claim, presented to the probate court in California by the Bank of
California National Association, which it would appear, that while still living, Walter G.
Stevenson obtained a loan of $5,000.00 secured by pledge on 140,000 of his shares of stock in
the Mindanao Mother Lode Mines, Inc. (Exhs. "Q-Q4", pp. 53-59, record). The Tax Court
disallowed this item on the ground that the local probate court had not approved the same as a
valid claim against the estate and because it constituted an indebtedness in respect to
intangible personal property which the Tax Court held to be exempt from inheritance tax.

For two reasons, we uphold the action of the lower court in disallowing the deduction.
Firstly, we believe that the approval of the Philippine probate court of this particular
indebtedness of the decedent is necessary. This is so although the same, it is averred has been
already admitted and approved by the corresponding probate court in California, situs of the
principal or domiciliary administration. It is true that we have here in the Philippines only an
ancillary administration in this case, but, it has been held, the distinction between domiciliary or
principal administration and ancillary administration serves only to distinguish one administration
from the other, for the two proceedings are separate and independent. 8 The reason for the
ancillary administration is that, a grant of administration does not ex proprio vigore, have any
effect beyond the limits of the country in which it was granted. Hence, we have the requirement
that before a will duly probated outside of the Philippines can have effect here, it must first be
proved and allowed before our courts, in much the same manner as wills originally presented for
allowance therein.9 And the estate shall be administered under letters testamentary, or letters of
administration granted by the court, and disposed of according to the will as probated, after
payment of just debts and expenses of administration.10 In other words, there is a regular
administration under the control of the court, where claims must be presented and approved,
and expenses of administration allowed before deductions from the estate can be authorized.
Otherwise, we would have the actuations of our own probate court, in the settlement and
distribution of the estate situated here, subject to the proceedings before the foreign court over
which our courts have no control. We do not believe such a procedure is countenanced or
contemplated in the Rules of Court.

Another reason for the disallowance of this indebtedness as a deduction, springs from the
provisions of Section 89, letter (d), number (1), of the National Internal Revenue Code which
reads:

(d) Miscellaneous provisions — (1) No deductions shall be allowed in the case of a non-
resident not a citizen of the Philippines unless the executor, administrator or anyone of
the heirs, as the case may be, includes in the return required to be filed under section
ninety-three the value at the time of his death of that part of the gross estate of the non-
resident not situated in the Philippines."

In the case at bar, no such statement of the gross estate of the non-resident Stevenson not
situated in the Philippines appears in the three returns submitted to the court or to the office of
the petitioner Collector of Internal Revenue. The purpose of this requirement is to enable the
revenue officer to determine how much of the indebtedness may be allowed to be deducted,
pursuant to (b), number (1) of the same section 89 of the Internal Revenue Code which
provides:

(b) Deductions allowed to non-resident estates. — In the case of a non-resident not a


citizen of