0807 Suc Cases

G.R. No. L-29901 August 31, 1977

a declaration of heirship adjudicating in her favor the pro-indiviso share of her son Juanito as a result of which Transfer Certificate of Title No. 31796 covering the whole Lot No. 399 was issued in her name. Then on March 5, 1966, Consolacion de la Torre died intestate leaving no direct heir either in the descending or ascending line except her brother and sisters.

IGNACIO FRIAS CHUA, DOMINADOR CHUA and REMEDIOS CHUA, petitioners, vs. THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL, BRANCH V and SUSANA DE LA TORRE, in her capacity as Administratrix of the Intestate Estate of Consolacion de la Torre, respondents.

In the "Intestate Estate of Consolacion de la Torre", docketed as Sp. Proc. No. 7839-A, the petitioners herein, Ignacio Frias Chua, of the first marriage and dominador and Remedios Chua, the supposed legitimate children of the deceased Lorenzo Frias Chua, also of the first marriage filed the complaint a quo 3 (subseqently segregated as a distinct suit and docketed as Civil Case No. 7839-A) on May 11, 1966 before the respondent Court of First Instance of Negros Occidental, Branch V, praying that the one-half (1/2) portion of Lot No. 399 which formerly belonged to Juanito Frias but which passed to Consolacion de la Torre upon the latter's death, be declaredas a reservable property for the reason that the lot in questionn was subject to reserval troncal pursuant to Article 981 of the New Civil Code, Private respondent as administratrix of the estate of individually the complaint of petitioners 4

Dominador G. Abaria and Primitivo Blanca for private respondent. Rodrigo O. Delfinado for petitioners.

MARTIN, J.:

On July 29, 1986, the respondent Court rendered a decision dismissing the complaint of petitioner. Hence this instant.

Petition for review of the decision of the respondent Court which dismissed the complaint of petitioners in Civil Case No. 7839-A, entitled "Ignacio Frias Chua, et al. vs. Susana de la Torre, Administratrix of the Intestate Estate of Consolacion de la Torre"

The pertinent provision of reserva troncal under the New Civil Code provides:

It appears that in the first marriage of Jose Frias Chua with Patricia S. Militar alias Sy Quio he sired three children, namely: Ignacio, Lorenzo and Manuel, all surnamed Frias Chua. When Patricia S. Militar died, Jose Frias Chua contracted a second marriage with Consolacion de la Torre with whom he had a child by the name of Juanita Frias Chua. Manuel Frias Chua died without leaving any issue. Then in 1929, Jose Frias Chua died intestate leaving his widow Consolacion de la Torre and his son Juanito Frias Chua of the second marriage and sons Ignacio Frias Chua and Lorenzo Frias Chua of his first marriage. In Intestate Proceeding No. 4816, the lower court issued an order dated January 15, 1931 1 adjudicating, among others, the one-half (1/2,) portion of Lot No. 399 and the sum of P8,000.00 in favor of Jose Frias Chua's widow, Consolacion de la Torre, the other half of Lot No. 399 in favor of Juanito Frias Chua, his son in the second marriage; P3,000.00 in favor of Lorenze Frias chua; and P1,550.00 in favor of Ignacio Frias, Chua, his sons of the first marriage. By virtue of said adjudication, Transfer Certificate of Title No. TR-980 (14483) 2 dated April 28, 1932 was issued by the Register of Deeds in the names of Consolacion de la Torre and Juanito Frias Chua as owners pro-indiviso of Lot No. 399.

ART. 891. The ascendant who inheritts from his descendant any property which the latter may have acquired by gratuitous title from another ascendat, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and belong to the line from which said property came. Persuant to the foregoing provision, in order that a property may be impressed with a reservable character the following requisites must exist, to wit: (1) that the property was acquired by a descendant from an asscendant or from a brother or sister by gratuitous title; (2) that said descendant died without an issue; (3) that the property is inherited by another ascendant by operation of law; and (4) that there are relatives within the third degree belonging to the line from which said property came. 5 In the case before Us, all of the foregoing requisites are present. Thus, as borne out by the records, Juanoito Frias Chua of the second marriage died intestate in 1952; he died withour leaving any issue; his pro-indiviso of 1/2 share of Lot No. 399 was acquired by his mother, Consolacion de la Torre died, Juannnito Frias Chua who died intestate had relatives within the third degree. These relatives are Ignacio Frias Chua and Dominador Chua and Remidios Chua, the suppose legitimate children of the deceased Lorenzo Frias Chua, who are the petitioners herein.

On February 27, 1952, Juanito Frias Chua of the second marriage died intestate without any issue. After his death, his mother Consolacion de la Torre succeeded to his pro-indivisio share of Lot No. 399. In a week's time or on March 6, 1952, Consolacion de la Torre executed

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The crux of the problem in instant petition is focused on the first requisit of reserva troncal — whether the property in question was acquired by Juanito Frias Chua from his father Jose Frias Chua, gratuitously or not. In resolving this point, the respondent Court said:

P3971.20, sus intereses, costas y demas gastos resultantes del asunto civil No. 5300de este jusgado But the obligation of paying the Standard Oil Co. of New York the amount of P3,971.20 is imposed upon Consolacion de la Torre and Juanito Frias Chua not personally by the deceased Jose Frias Chua in his last will and testament but by an order of the court in the Testate Proceeding No.4816 dated January 15, 1931. As long as the transmission of the property to the heirs is free from any condition imposed by the deceased himself and the property is given out of pure generosity, itg is gratuitous. it does not matter if later the court orders one of the heirs, in this case Juanito Frias Chua, to pay the Standare oil co. of New York the amount of P3,971.20. This does not change the gratuitous nature of the transmission of the property to him. This being the case the lot in question is subject to reserva troncal under Art, 891 of the New Civil Code.

It appears from Exh. "3", which is part of Exh. "D", that the property in question was not acquired by Consolacion de la Torre and Juanito Frias Chua gratuitously but for a consideration, namely, that the legatees were to pay the interest and cost and other fees resulting from Civil Case No. 5300 of this Court. As such it is undeniable that the lot in question is not subject tot a reserva troncal, under Art. 891 of the New Civil Code, and as such the plaintiff's complaint must fail. We are not prepared to sustain the respondent Court's conclusion that the lot in question is not subject to areserva troncal under Art. 891 of the New Civil Code. It is, As explained by Manresa which this Court quoted with approval in Cabardo v. Villanueva, 44 Phil. 186, "The transmission is gratuitous or by gratuitous title when the recipient does not give anything in return." It matters not whether the property transmitted be or be not subject to any prior charges; what is essential is that the transmission be made gratuitously, or by an act of mere liberality of the person making it, without imposing any obligation on the part of the recipient; and that the person receiving the property gives or does nothing in return; or, as ably put by an eminent Filipino commentator, 6 "the essential thing is that the person who transmits it does so gratuitously, from pure generosity, without requiring from the transferee any prestation." It is evident from the record that the transmission of the property in question to Juanito Frias Chua of the second marriage upon the death of his father Jose Frias Chua was by means of a hereditary succession and therefore gratuitous. It is true that there is the order (Exh. "D") of the probate Court in Intestate Proceeding No. 4816 which estates in express terms;

It is contented that the distribution of the shares of the estate of Jose Frias Chua to the respondent heirs or legatees was agreed upon by the heirs in their project of partition based on the last will and testament of Jose Frias Chua. But petitioners claim that the supposed Last Will and Testament of Jose Frias Chua was never probated. The fact that the will was not probated was admitted in paragraph 6 of the respondents' answer. 7 There is nothing mentioned in the decision of the trial court in Civil Case No. 7839 A which is the subject of the present appeal nor in the order of January 15, 1931 of the trial court in the Testate Estate Proceeding No. 4816 nor in the private respondent's brief, that the Last Will and Testament of Jose Frias Chua has ever been probated. With the foregoing, it is easy to deduce that if the Last Will and Testament has in fact been probated there would have been no need for the testamentary heirs to prepare a project of partition among themselves. The very will itself could be made the basis for the adjudication of the estate as in fact they did in their project of partition with Juanito Frias Chua getting one-half of Lot 399 by inheritance as a sone of the deceased Jose Frias Chua by the latter's second marriage.

2. — Se adjudicada pro el presente a favor de Consolacion de la Torre, viuda, mayor de edad, y de su hiju, Juanito Frias Chua, menor de edad, todos residente de San Enrique, Negros Occidental, I.F.,como herederos del finado Jose Frias Chua Choo, estas propiadades: 14483

According to the record, Juanito Frias Chua died on February 27, 1952 without any issue. After his death his mother Consolation de la Torre succeeded to his one-half pro-indiviso share of Lot 399. This was, however, subject to the condition that the property was reservable in character under Art. 891 of the Civil Code in favor of relatives within the third degree of Jose Frias Chua from whom the property came. These relatives are the petitioner herein.

La parcela de terrenno concida por Lote No. 399 del Catsatro de la Carlota, Negros Occidental, de 191.954 metros cuadddrados y cubierto por el Certificado de Titulo No. 11759, en partes equales pro-indiviso; por con la obligscion de pagar a las Standard Oil Co. of New York la deuda de

It is claimed that the complaint of petitioners to recover the one-half portion of Lot 399 which originally belonged to Juanito Frias Chua has already prescribed when it was filed on May 11, 1966. We do not believe so. It must be remembered that the petitioners herein are claiming as reservees did not arise until the time the reservor, Consolacion de la Torre, died in March

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1966. When the petitioners therefore filed their complaint to recover the one-half (1/2) portion of Lot 399, they were very much in time to do so. G.R. No. L-13876

IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. The petitioners Ignacio Frias Chua, Dominador Chua and Remedios Chua are declared owners of 1/2 undivided portion of Lot 399; and the Register of Deeds of Negros Occidental is hereby ordered to cancel. Transfer Certificate of Title No. 31796 covering Lot No. 399 issued in the name of Consolacion de la Torre and to issue a new Certificate of Title in the names of Consolacion de la Torre, 1/2 undivided portion; Ignacio Frias Chua, 1/4 undivided portion; and Dominador Chua and Remedios Chua, 1/4 undivided portion, of said lot. Without pronouncement as to costs.

February 28, 1962

CONSOLACION FLORENTINO DE CRISOLOGO, vs. DR. MANUEL SINGSON, defendant-appellant. Felix V. Vergara B. Martinez for plaintiffs-appellees.

for

ET

AL., plaintiffs-appellees,

defendant-appellant.

DIZON, J.: Action for partition commenced by the spouses Consolacion Florentino and Francisco Crisologo against Manuel Singson in connection with a residential lot located a Plaridel St., Vigan, Ilocos Sur, with an area of approximately 193 square meters, and the improvements existing thereon, covered by Tax No. 10765-C. Their complaint alleged that Singson owned one-half pro-indiviso of said property and that Consolacion Florentino owned the other half by virtue of the provisions of the duly probated last will of Dña. Leona Singson, the original owner, and the project of partition submitted to, and approved by the Court of First Instance of Ilocos Sur in special Proceeding No. 453; that plaintiffs had made demands for the partition of said property, but defendant refused to accede thereto, thus compelling them to bring action.

SO ORDERED. Teehankee (Chairman), Makasiar, Muñ;oz Palma, Fernandez and Guerrero, JJ., concur.

Defendant's defense was that Consolacion Florentino was a mere usufructuary of, and not owner of one-half pro-indiviso of the property in question, and that, therefore, she was not entitled to demand partition thereof. After trial upon the issue thus posed, the lower court rendered judgment as follows: 1. Declaring that the plaintiff is a co-owner pro-indiviso with the defendant of the house and lot described in the complaint to the extent of each of an undivided 1/2 portion thereof; . 2. Ordering the aforesaid co-owners to execute an agreement of partition of the said property within 30 days from receipt of this judgment unless it be shown that the division thereof may render it unserviceable, in which case the provisions of Art. 498 of the New Civil Code may be applied; .1äwphï1.ñët 3. That in the event the said parties shall fail to do so, this Court will appoint the corresponding commissioners to make the partition in accordance with law; and . 4. Without special pronouncement as to costs." . From the above judgment, defendant Singson appealed. It is admitted that Dña. Leona Singson, who died single on January 13, 1948, was the owner of the property in question at the time of her death. On July 31, 1951 she executed her last will which was admitted to probate in Special Proceeding No. 453 of the lower court whose decision was affirmed by the Court of Appeals in G.R. No. 3605-R. At the time of the execution of the will, her nearest living relatives were her brothers Evaristo, Manuel and

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Dionisio Singson, her nieces Rosario, Emilia and Trinidad, and her grandniece Consolation, all surnamed Florentino.

It is clear that the particular testamentary clause under consideration provides for a substitution of the heir named therein in this manner: that upon the death of Consolacion Florentino — whether this occurs before or after that of the testatrix — the property bequeathed to her shall be delivered ("se dara") or shall belong in equal parts to the testatrix's three brothers, Evaristo, Manuel and Dionisio, or their forced heirs, should anyone of them die ahead of Consolacion Florentino. If this clause created what is known as sustitucion vulgar, the necessary result would be that Consolacion Florentino, upon the death of the testatrix, became the owner of one undivided half of the property, but if it provided for a sustitution fideicomisaria, she would have acquired nothing more than usufructuary rights over the same half. In the former case, she would undoubtedly be entitled to partition, but not in the latter. As Manresa says, if the fiduciary did not acquire full ownership of the property bequeathed by will, but mere usufructuary rights thereon until the time came for him to deliver said property to the fideicomisario, it is obvious that the nude ownership over the property, upon the death of the testatrix, passed to and was acquired by another person, and the person cannot be other than the fideicomisario (6 Manresa p. 145).

Clause IX of her last will reads as follows: . NOVENO. — Ordeno que se de a mi nieta por parte de mi hermana mia y que al mismo tiempo vive en mi casa, y, por tanto, bajo mi proteccion, y es la CONSOLACION FLORENTINO: — (A). La mitad de mi casa de materials fuertes con techo de hierro galvanizado, incluyendo la mitad de su solar, ubicado en la Poblacion de Vigan, Ilocos Sur, Calle Plaridel, actualmente arrendada por los hermanos Fortunato, Teofilo y Pedro del appellido Kairuz. Pero si falleciere antes o despues que yo mi citada nieta, esta propiedad se dara por partes iguales entre mis tres hermanos Evaristo, Manuel y Dionisio, o a sus herederos forzosos en el caso de que alguno de ellas murieie antes ... (Exhibit F.) The issue to be decided is whether the testamentary disposition above-quoted provided for what is calledsustitucion vulgar or for a sustitucion fideicomisaria. This issue is, we believe, controlled by the pertinent provisions of the Civil Code in force in the Philippines prior to the effectivity of the New Civil Code, in view of the fact that the testatrix died on January 13, 1948. They are the following: .

It seems to be of the essence of a fideicommissary substitution that an obligation be clearly imposed upon the first heir to preserve and transmit to another the whole or part of the estate bequeathed to him, upon his death or upon the happening of a particular event. For this reason, Art. 785 of the old Civil Code provides that a fideicommissary substitution shall have no effect unless it is made expressly ("de una manera expresa") either by giving it such name, or by imposing upon the first heir the absolute obligation ("obligacion terminante") to deliver the inheritance to a substitute or second heir. In this connection Manresa says: .

Art. 774. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish or should be unable to accept the inheritance. A simple substitution, without a statement of the cases to which it is to apply, shall include the three mentioned in the next preceeding paragraph, unless the testator has otherwise provided:

Para que la sustitucion sea fideicomisaria, es preciso segun el art. 781, que se ordeno o encargue al primer heredero, cuando sea tal, que conserve y transmita a una tercera persona o entidad el todo a parte de la herencia. O lo que es lo mismo, la sustitucion fideicomisaria, como declaran las resoluciones de 25 de Junio de 1895, 10 de Febrero de 1899 y 19 de Julio de 1909, exige tres requisitos: .

Art. 781. Fidei-commissary substitutions by virtue of which the heir is charged to preserve and transmit to a third person the whole or part of the inheritance shall be valid and effective, provided they do not go beyond the second degree, or that they are made in favor of persons living at the time of the death of the testator." .

1.o Un primer heredero llamado al goce de los bienes preferentemente.

Art. 785. The following shall be inoperative: .

2.o Obligacion claramente impuesta al mismo de conservar y transmitir a un tercero el todo o parte del caudal.

1. Fiduciary substitutions not made expressly, either by giving them this name or by imposing upon the fiduciary the absolute obligation of delivering the property to a second heir." ....

3.o Un segundo heredero.

In accordance with the first legal provision quoted above, the testator may not only designate the heirs who will succeed him upon his death, but also provide for substitutes in the event that said heirs do not accept or are in no position to accept the inheritance or legacies, or die ahead of him.

A estos requisitos anade la sentencia de 18 de Noviembre de 1918, otro mas, el del que el fideicomisario tenga derecho a los bienes de la herencia desde el momento de la muerte del testador, puesto que ha de suceder a este y no al fiduciario. Por tanto, cuando el causante se limita a instituir dos herederos, y por fallecimiento de ambos o de cualquiera de ellos, asigna la parte del fallecido o fallecidos, a los herederos legitimos o a otras personas, solo existe una sustitucion vulgar, porque falta el requisito de haberse impuesto a los primeros herederos la obligacion de conservar y transmitir los bienes, y el articulo 789, en su parrafo primero, evige que la sustitucion sea expresa, ya dandole el

The testator may also bequeath his properties to a particular person with the obligation, on the part of the latter, to deliver the same to another person, totally or partially, upon the occurrence of a particular event (6 Manresa, p. 1112).

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testador el nombre de sustitucion fideicomisaria, ya imponiendo al sustituido la obligacion terminante de conservar y transmitir los bienes a un segundo heredero. A careful perusal of the testamentary clause under consideration shows that the substitution of heirs provided for therein is not expressly made of the fideicommissary kind, nor does it contain a clear statement to the effect that appellee, during her lifetime, shall only enjoy usufructuary rights over the property bequeathed to her, naked ownership thereof being vested in the brothers of the testatrix. As already stated, it merely provides that upon appellee's death — whether this happens before or after that of the testatrix — her share shall belong to the brothers of the testatrix.

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.

In the light of the foregoing, we believe, and so hold, that the last will of the deceased Dña. Leona Singson, established a mere sustitucion vulgar, the substitution Consolacion Florentino by the brothers of the testatrix to be effective or to take place upon the death of the former, whether it happens before or after that of the testatrix.

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.

IN VIEW OF THE FOREGOING, the appealed judgment is affirmed, with costs.

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

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scheme of partition until the receipt of certain testimony requested regarding the Turkish laws on the matter.

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.

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

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.

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:

So ordered. Street, Malcolm, Avanceña, Villamor and Ostrand, JJ., concur. __________________________________________________________________________

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.

G.R. No. L-3891 December 19, 1907 ELENA vs. GUMERSINDO DE LA SANTA, respondent-appellee.

MORENTE, petitioner-appellant,

WILLARD, J.: The will of Consuelo Morente contains the following clauses:lawphil.net

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.

1. I hereby order that all real estate which may belong to me shall pass to my husband, Gumersindo de la Santa. 2. That my said husband shall not leave my brothers after my death, and that he shall not marry anyone; should my said husband have children by anyone, he shall not convey any portion of the property left by me, except the one-third part thereof and the two remaining thirds shall be and remain for my brother Vicente or his children should he have any.

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:

3. After my death I direct my husband to dwell in the camarin in which the bakery is located, which is one of the properties belonging to me.

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.

Her husband, Gumersindo de la Santa, married again within four months of the death of the testatrix. Elena Morente, a sister of the deceased, filed a petition in the proceeding relating to the probate of the will of Consuelo Morente pending in the Court of First Instance of the Province of Tayabas in which she alleged the second marriage of Gumersindo de la Santa and asked that the legacy to him above-mentioned be annulled. Objection was made in the court below by the husband to the procedure followed by the petitioner. The court below, however, held that the proceeding was proper and from that holding the husband did not appeal. From the judgment of the court below, the petitioner, Elena Morente, appealed.

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.

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In its judgment the court denied the petition. It was said, however, in the decision, as we understand it, that the husband having married, he had the right to the use of all the property during his life and that at his death two-thirds thereof would pass to Vicente, a brother of the testatrix, and one-third thereof could be disposed of by the husband. The construction given to the will by the court below is not accepted by the appellant. She claims that by the mere act of marriage the husband at once lost all rights acquired by the will. It is neither alleged nor proven that any children have been born to the husband since the death of the testatrix. lawphil.net

judgment of that court, denying the petition, is accordingly affirmed, with the costs of this instance against the appellant. So ordered. Arellano, C.J., Torres, Mapa, Johnson, Carson and Tracey, JJ., concur. G.R. No. L-13386

October 27, 1920

SEGUNDA MARIA NIEVA with her husband ANGEL ALCALA, plaintiffs-appellants, vs. MANUELA ALCALA and JOSE DEOCAMPO, defendants-appellees.

Article 790 of the Civil Code provides that testamentary provisions may be made conditional and article 793 provides that a prohibition against another marriage may in certain cases be validly imposed upon the widow or widower. But the question in this case is, Did the testatrix intend to impose a condition upon the absolute gift which is contained in the first clauses of the will? It is to be observed that by the second clause she directs that her husband shall not leave her sisters. It is provided in the third clause that he must continue to live in a certain building. It is provided in the second clause that he shall not marry again. To no one of these orders is attached the condition that if he fails to comply with them he shall lose the legacy given to him by the first clause of the will. It is nowhere expressly said that if he does leave the testatrix's sisters, or does not continue to dwell in the building mentioned in the will he shall forfeit the property given him in the first clause; nor is it anywhere expressly said that if he marries again he shall incur such a loss. But it is expressly provided that if one event does happen the disposition of the property contained in the first clause of the will shall be changed. It is said that if he has children by anyone, two-thirds of that property shall pass to Vicente, the brother of the testatrix.

This is an appeal from a judgment of the Court of First Instance of the Province of Tayabas, absolving the defendants from all liability under the plaintiff's complaint, without any finding as to costs. Juliana Nieva, the alleged natural mother of the plaintiff Segunda Maria Nieva, married Francisco Deocampo. Of said marriage Alfeo Deocampo was born. Julian Nieva died intestate on April 19, 1889, and her said son, Alfeo Deocampo, inherited from her, ab intestate, the parcels of land described in Paragraphs V and X of the complaint. Alfeo Deocampo died intestate and without issue on July 7, 1890. Thereupon the two parcels of land above-mentioned passed to his father, Francisco Deocampo, by intestate succession. Thereafter Francisco Deocampo married the herein defendant Manuela Alcala, of which marriage was born Jose Deocampo, the other defendant herein. Francisco Deocampo died on August 15, 1914, whereupon his widow and son, the defendants herein, took possession of the parcels of land in question, under the claim that the said son, the defendant Jose Deocampoo (a minor) had inherited the same, ab intestate, from his deceased father.

We are bound to construe the will with reference to all the clauses contained therein, and with reference to such surrounding circumstances as duly appear in the case, and after such consideration we can not say that it was the intention of the testatrix that if her husband married again he should forfeit the legacy above mentioned. In other words, there being no express condition attached to that legacy in reference to the second marriage, we can not say that any condition can be implied from the context of the will. In the case of Chiong JocSoy vs. Jaime Vano (8 Phil. Rep., 119), we held that the legacy contained in the will therein mentioned was not conditional. It is true that case arose under article 797 of the Civil Code, which perhaps is not strictly applicable to this case, but we think that it may be argued from what is said in article 797 that, in order to make a testamentary provision conditional, such condition must fairly appear from the language used in the will.

On September 30, 1915, the plaintiff herein, claiming to be an acknowledged natural daughter of the said Juliana Nieva, instituted the present action for the purposes of recovering from the defendants the parcels of land in question, particularly described in Paragraphs V and X of the complaint, invoking the provisions of article 811 of the Civil Code. The lower court held that, even granting, without deciding, that the plaintiff was an acknowledged natural daughter of Juliana Nieva, she was not entitled to the property here in question because, in its opinion, an illegitimate relative has no right to the reserva troncal under the provisions of article 811 of the Civil Code. The first question presented by this appeal is, whether or not the plaintiff is an acknowledged natural daughter of the deceased Juliana Nieva. It appears from the record that the said Juliana Nieva, while unmarried, gave birth to the plaintiff on March 29, 1882, and that the plaintiff was duly baptized as her natural daughter, of unknown father (Exhibit C, baptismal certificate); that the said Juliana Nieva nourished and reared her said child, the plaintiff herein; that the plaintiff lived with her said mother until the latter was married to Francisco Deocampo; that the said mother treated the plaintiff, and exhibited her publicly, as a

Whether the children mentioned in the second clause of the will are natural children or legitimate children we do not decide, for no such question is before us, the contingency mentioned in that part of the clause not having arisen, and we limit ourselves to saying merely that by the subsequent marriage of the husband he did not forfeit the legacy given to him by the first part of the will. That was the only question before the court below. the

7

legitimate daughter. (See testimony of Antero Gala, pp. 5-6; Prudencio de la Cuesta, pp. 1617; and Mamerto Palabrica, pp. 26-27, sten. notes.)

Article 811 does not distinguish; it speaks of the ascendant, without attaching the qualification of legitimate, and, on the other hand, the same reason that exists for applying the provision to the natural family exists for applying it to the legitimate family. Nevertheless, the article in referring to the ascendant in an indeterminate manner shows that it imposes the obligation to reserve only upon the legitimate ascendant.

The foregoing facts, which are not controverted, are analogous to the facts in the case of Llorente vs. Rodriguez (3 Phil., 697, 699). Under the decision of this court in that case we are of the opinion and so decide, without rediscussing here the law and legal principles involved, that the plaintiff Segunda Maria Nieva is an acknowledged natural daughter of Juliana Nieva. (See also In re estate of Enriquez and Reyes, 29 Phil., 167.)

Let us overlook for the moment the question whether the Code recognizes or does not recognize the existence of the natural family, or whether it admits only the bond established by acknowledgement between the father or mother who acknowledges and the acknowledged children. However it may be, it may be stated as an indisputable truth, that in said Code, the legitimate relationship forms the general rule and the natural relationship the exception; which is the reason why, as may be easily seen, the law in many articles speaks only of children or parents, of ascendants or descendants, and in them reference is of course made of those who are legitimate; and when it desires to make a provision applicable only to natural relationship, it does not say father or mother, but natural father or natural mother; it does not say child, but natural child; it does not speak of ascendants, brothers or parents in the abstract, but of natural ascendants, natural brothers or natural parents. (See, for example, articles 294, 302, 809, 810, 846, 935, to 938, 944 and 945 and 946 to 955.)

The other and more important question presented by this appeal is, whether or not an illegitimate relative within the third degree is entitled to the reserva troncal provided for by article 811 of the Civil Code. That article reads as follows: Any ascendant who inherits from his descendant any property acquired by the latter gratuitously from some other ascendant, or from a brother or sister, is obliged to reserve such of the property as he may have acquired by operation of law for the benefit of relatives within the third degree belonging to the line from which such property came. The property here in question was inherited, by operation by law, by Francisco Deocampo from his son Alfeo Deocampo, who, in turn, had inherited it, in the same manner, from his mother Juliana Nieva, the natural mother of the plaintiff. The plaintiff is the natural sister of Alfeo Deocampo, and she belongs to the same line from which the property in question came. Was Francisco Deocampo obliged by law to reserve said property for the benefit of the plaintiff, an illegitimate relative within the third degree of Alfeo Deocampo? If he was, then, upon his death, the plaintiff, and not his son the defendant Jose Deocampo, was entitled to the said property; if he was not, the plaintiff's action must fail.1awph!l.net

Articles 809 and 810 themselves speak only of ascendants. Can it in any way be maintained that they refer to legitimate as well as to natural ascendants? They evidently establish the legitime of the legitimate ascendants included as forced heirs in number 2 of article 807. And article 811, — and as we will see also article 812, — continues to treat of this same legitime. The right of the natural parents and children in the testamentary succession in wholly included in the eighth section and is limited to the parents, other ascendants of such class being excluded in articles 807, No. 3, and 846. Therefore, the place which article 811 occupies in the Code of proof that it refers only to legitimate ascendants. And if there were any doubt, it disappears upon considering the text of article 938, which states that the provisions of article 811 applies to intestate succession, which is just established in favor of the legitimate direct ascending line, the text of articles 939 to 945, which treat of intestate succession of natural parents, as well as that of articles 840 to 847, treating of their testamentary succession, which do not allude directly or indirectly to that provision.

There can be no question whatever but that, under said article 811 of the Civil Code, the plaintiff would be entitled to the property in question if she were a legitimate daughter of Julian Nieva. (Edroso vs. Sablan, 25 Phil., 295.) But in said article 811 the legislator uses the generic terms "ascendant," "descendant," and "relatives," without specifying whether or not they have to be legitimate. Does the legislator, then, refer to legitimate as well as to illegitimate relatives? Counsel for the appellant, in a lengthy and carefully prepared brief, attempts to maintain the affirmative. This question, so far as our investigation shows, has not been decided before by any court or tribunal. However, eminent commentators on the Spanish Civil Code, who have devoted their lives to the study and solution of the intricate and difficult problems that may arise under the provisions of that Code, have dealt with the very question now before us, and are unanimous in the opinion that the provision of article 811 of the Civil Code apply only tolegitimate relative. One of such commentators, undoubtedly the best known of them all, is Manresa. We believe we can do no better than to adopt his reasons and conclusions, in deciding the question before us. In determining the persons who are obliged to reserve under article 811, he says:

Lastly, the principle which underlies the exception which article 811 creates in the right to succeed neither admits of any other interpretation. Whether the provision is due to the desire that the properties should not pass, by reason of new marriage, out of the family to which they belonged, or is directly derived from the system of the so-called "reserva troncal," and whether the idea of reservation or that of lineal rights (troncalidad) predominate the patrimony which is intended to be preserved is that of the legitimate family. Only to legitimate ascendants and descendants do article 968 et seq. of the Code refer, arising as they do from the danger of second or subsequent marriage; only to legitimate parents do the special laws of Navarra, Aragon, Vizcaya and Cataluña concede the right to succeed with respect to lineal

Is every ascendant, whether legitimate or not, obliged to reserve? Should the natural father or grandfather reserve the properties proceeding from the mother or other natural ascendant?

8

properties (bienes troncales); only to the legitimate ascendants does article 811 impose the duty to reserve.

To hold that the appellant is entitled to the property left by her natural brother, Alfeo Deocampo, by operation of law, would be a fragrant violate of the express provision of the foregoing article (943). The judgment of the lower court is hereby affirmed.

The convenience of amplifying the precept to natural parents and ascendants may be raised just as the question whether it would be preferable to suppress it altogether may be raised; but in the realm of the statute law there is no remedy but to admit that article 811, the interpretation of which should on the other hand be strict was drafted by the legislator with respect only to legitimate ascendants. (Manresa, Codigo Civil, vol. 6, 3d ed., pp. 249-250.)

G.R. No. L-31703

February 13, 1930

CARMEN G. DE PEREZ, trustee of the estate of Ana Maria Alcantara, plaintiff-appellee, vs. MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff of the Court of First Instance of Manila,defendants-appellants.

The same jurist, in determining the persons in whose favor the reservation is established, says:

L. D. Lockwood and Jose M. Casal Eduardo Gutierrez Repide and Leoncio B. Monzon for appellee.

Persons in whose favor the reservation is established. — This is one of the most delicate points in the interpretation of article 811. According to this article, the reservation is established in favor of the parentswho are within the third degree and belong to the line from which the properties came.

for

appellants.

ROMUALDEZ, J.: The amount of P21,428.58 is on deposit in the plaintiff's name with the association known as La Urbana in Manila, as the final payment of the liquidated credit of Ana Maria Alcantara, deceased, whose heiress is said plaintiff, against Andres Garchitorena, also deceased, represented by his son, the defendant Mariano Garchitorena.

It treats of blood, relationship, which is applicable to questions on succession, according to articles 915 to 920. It could not be otherwise, because relationship by affinity is established between each spouse and the family of the other, by marriage, and to admit it, would be to favor the transmission of the properties of the family of one spouse to that of the other, which is just what this article intends to prevent.

And as said Mariano Garchitorena held a judgment for P7,872.23 against Joaquin Perez Alcantara, husband of the plaintiff, Carmen G. de Perez, the sheriff pursuant to the writ of execution issued in said judgment, levied an attachment on said amount deposited with La Urbana.

It also treats of legitimate relationship. The person obliged to reserve it a legitimate ascendant who inherits from a descendant property which proceeds from the same legitimate family, and this being true, there can be no question, because the line from which the properties proceed must be the line of that family and only in favor of that line is the reservation established. Furthermore, we have already said, the object is to protect the patrimony of the legitimate family, following the precedents of the foral law. And it could not be otherwise. Article 943 denies to legitimate parents the right to succeed the natural child and viceversa, from which it must be deduced that natural parents neither have the right to inhering from legitimate ones; the law in the article cited established a barrier between the two families; properties of the legitimate family shall never pass by operation of law to the natural family. (Ibid. pp. 251-252.)

The plaintiff, alleging that said deposit belongs to the fideicommissary heirs of the decedent Ana Maria Alcantara, secured a preliminary injunction restraining the execution of said judgment on the sum so attached. The defendants contend that the plaintiff is the decedent's universal heiress, and pray for the dissolution of the injunction. The court below held that said La Urbana deposit belongs to the plaintiff's children as fideicommissary heirs of Ana Maria Alcantara, and granted a final writ of injunction. The defendants insist in their contentions, and, in their appeal from the decision of the trial court, assign the following errors:

Scævola, after a very extended discussion of this same subject, arrives at the same conclusion as Manresa. "La reserva del articulo 811 es privilegio de la familia legitima. (The reservation in article 811 is a privilege of the legitimate family.)" (See Scævola, Codigo Civil, Vol. 14, pp. 211-224, 3401-305.)

1. The lower court erred in holding that a trust was created by the will of Doña Ana Maria Alcantara.

Article 943, above referred to by Manresa, provides as follows:

3. The lower court erred in making the injunction permanent and condemning defendant to pay the costs.

2. The lower court erred in concluding and declaring that the amount of P21,428.58 deposited with La Urbana is the property of the children of the plaintiff as "herederos fidei-comisarios."

A natural or legitimated child has no right to succeed ab intestate the legitimate children and relatives of the father or mother who has acknowledged it; nor shall such children or relatives so inherit from the natural or legitimated child.

The question here raised is confined to the scope and meaning of the institution of heirs made in the will of the late Ana Maria Alcantara already admitted to probate, and whose legal force and effect is not in dispute.

9

The clauses of said will relevant to the points in dispute, between the parties are the ninth, tenth, and eleventh, quoted below:

does not contain anything in conflict with the idea of fideicommissary substitution. The fact that the plaintiff was instituted the sole and universal heiress does not prevent her children from receiving, upon her death and in conformity with the express desire of the testatrix, the latter's hereditary estate, as provided in the following (above quoted) clauses which cannot be disregarded if we are to give a correct interpretation of the will. The word sole does not necessarily exclude the idea of substitute heirs; and taking these three clauses together, such word means that the plaintiff is the sole heiress instituted in the first instance.

Ninth. Being single and without any forced heir, to show my gratitude to my niece-in-law, Carmen Garchitorena, of age, married to my nephew, Joaquin Perez Alcantara, and living in this same house with me, I institute her as my sole and universal heiress to the remainder of my estate after the payment of my debts and legacies, so that upon my death and after probate of this will, and after the report of the committee on claims and appraisal has been rendered and approved, she will receive from my executrix and properties composing my hereditary estate, that she may enjoy them with God's blessing and my own.

The disposition contained in clause IX, that said heiress shall receive and enjoy the estate, is not incompatible with a fideicommissary substitution (it certainly is incompatible with the idea of simple substitution, where the heiress instituted does not receive the inheritance). In fact the enjoyment of the inheritance is in conformity with the idea of fideicommissary substitution, by virtue of which the heir instituted receives the inheritance and enjoys it, although at the same time he preserves it in order to pass it on the second heir. On this point the illustrious Manresa, in his Civil Code (Vol. 6, pp. 142 and 143, 5th ed.), says:

Tenth. Should my heiress Carmen Garchitorena die, I order that my whole estate shall pass unimpaired to her surviving children; and should any of these die, his share shall serve to increase the portions of his surviving brothers (and sisters) by accretion, in such wise that my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible.

Or, what amounts to the same thing, the fideicommissary substitution, as held in the Resolution of June 25, 1895, February 10, 1899, and July 19, 1909, requires three things:

Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die after me while her children are still in their minority, I order that my estate be administered by my executrix, Mrs. Josefa Laplana, and in her default, by Attorney Ramon Salinas and in his default, by his son Ramon Salinas; but the direction herein given must not be considered as an indication of lack of confidence in my nephew Joaquin Perez Alcantara, whom I relieve from the duties of administering my estate, because I recognize that his character is not adapted to management and administration.

1. A first heir called primarily to the enjoyment of the estate. 2. An obligation clearly imposed upon him to preserve and transmit to a third person the whole or a part of the estate. 3. A second heir. To these requisites, the decision of November 18, 1918 adds another, namely that the fideicommissarius be entitled to the estate from the time the testator dies, since he is to inherit from the latter and not from the fiduciary. (Emphasis ours.)

The appellants contend that in these clauses the testatrix has ordered a simple substitution, while the appellee contends that it is a fideicommissary substitution. This will certainly provides for a substitution of heirs, and of the three cases that might give rise to a simple substitution (art. 774, Civil Code), only the death of the instituted heiress before the testatrix would in the instant case give place to such substitution, inasmuch as nothing is said of the waiver of inheritance, or incapacity to accept it. As a matter of fact, however, clause XI provides for the administration of the estate in case the heiress instituted should die after the testatrix and while the substitute heirs are still under age. And it is evident that, considering the nature of simple substitution by the heir's death before the testator, and the fact that by clause XI in connection with clause X, the substitution is ordered where the heiress instituted dies after the testatrix, this cannot be a case of simple substitution.

It appears from this quotation that the heir instituted or the fiduciary, as referred to in articles 783 of the Civil Code, is entitled to enjoy the inheritance. And it might here be observed, as a timely remark, that the fideicommissum arising from a fideicommissary substitution, which is of Roman origin, is not exactly equivalent to, nor may it be confused with, the English "trust." It should also be noted that said clause IX vests in the heiress only the right to enjoy but not the right to dispose of the estate. It says, she may enjoy it, but does not say she may dispose of it. This is an indication of the usufruct inherent in fideicommissary substitution. Clause X expressly provides for the substitution. It is true that it does not say whether the death of the heiress herein referred to is before or after that of the testatrix; but from the whole context it appears that in making the provisions contained in this clause X, the testatrix had in mind a fideicommissary substitution, since she limits the transmission of her estate to the children of the heiress by this provision, "in such wise that my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible." Here it clearly appears that the testatrix tried to avoid the possibility that the substitution might later be legally declared null for transcending the limits fixed by article 781 of the Civil Code which

The existence of a substitution in the will is not and cannot be denied, and since it cannot be a simple substitution in the light of the considerations above stated, let us now see whether the instants case is a fideicommissary substitution. In clause IX, the testatrix institutes the plaintiff herein her sole and universal heiress, and provides that upon her death (the testatrix's) and after probate of the will and approval of the report of the committee on claims and appraisal, said heiress shall receive and enjoy the whole hereditary estate. Although this clause provides nothing explicit about substitution, it

10

prescribed that fideicommissary substitutions shall be valid "provided they do not go beyond the second degree."

The judgment appealed from is affirmed, with costs against the appellant, Mariano Garchitorena. So ordered.

Another clear and outstanding indication of fideicommissary substitution in clause X is the provision that the wholeestate shall pass unimpaired to the heiress's children, that is to say the heiress is required to preserve the whole estate, without diminution, in order to pass it on in due time to the fideicommissary heirs. This provision complies with another of the requisites of fideicommissary substitution according to our quotation from Manresa inserted above.

Johnson, Malcolm, Villamor, Street, J., reserves his vote.

Ostrand,

Johns

and

Villa-Real,

JJ.,

concur.

G.R. No. L-40789 February 27, 1987 INTESTATE ESTATE OF PETRA V. ROSALES, IRENEA C. ROSALES, petitioner, vs. FORTUNATO ROSALES, MAGNA ROSALES ACEBES, MACIKEQUEROX ROSALES and ANTONIO ROSALES,respondents.

Lastly, clause XI more clearly indicates the idea of fideicommissary substitution, when a provision is therein made in the event the heiress should die after the testatrix. That is, said clause anticipates the case where the instituted heiress should die after the testatrix and after receiving and enjoying the inheritance.

Jose B. Echaves for petitioner. Jose A. Binghay and Paul G. Gorres for respondents.

The foregoing leads us to the conclusion that all the requisites of a fideicommissary substitution, according to the quotation from Manresa above inserted, are present in the case of substitution now under consideration, to wit:

GANCAYCO, J.: In this Petition for Review of two (2) Orders of the Court of First Instance of Cebu the question raised is whether the widow whose husband predeceased his mother can inherit from the latter, her mother-in-law.

1. At first heir primarily called to the enjoyment of the estate. In this case the plaintiff was instituted an heiress, called to the enjoyment of the estate, according to clause IX of the will.

It appears from the record of the case that on February 26, 1971, Mrs. Petra V. Rosales, a resident of Cebu City, died intestate. She was survived by her husband Fortunate T. Rosales and their two (2) children Magna Rosales Acebes and Antonio Rosales. Another child, Carterio Rosales, predeceased her, leaving behind a child, Macikequerox Rosales, and his widow Irenea C. Rosales, the herein petitioner. The estate of the dismissed has an estimated gross value of about Thirty Thousand Pesos (P30,000.00).

2. An obligation clearly imposed upon the heir to preserve and transmit to a third person the whole or a part of the estate. Such an obligation is imposed in clause X which provides that the "whole estate shall pass unimpaired to her (heiress's) surviving children;" thus, instead of leaving the heiress at liberty to dispose of the estate by will, or of leaving the law to take its course in case she dies intestate, said clause not only disposes of the estate in favor of the heiress instituted, but also provides for the disposition thereof in case she should die after the testatrix.

On July 10, 1971, Magna Rosales Acebes instituted the proceedings for the settlement of the estate of the deceased in the Court of First Instance of Cebu. The case was docketed as Special Proceedings No. 3204-R. Thereafter, the trial court appointed Magna Rosales Acebes administratrix of the said estate.

3. A second heir. Such are the children of the heiress instituted, who are referred to as such second heirs both in clause X and in clause XI. Finally, the requisite added by the decision of November 18, 1918, to wit, that the fideicommissarius or second heir should be entitled to the estate from the time of the testator's death, which in the instant case, is, rather than a requisite, a necessary consequence derived from the nature of the fideicommissary substitution, in which the second heir does not inherit from the heir first instituted, but from the testator.

In the course of the intestate proceedings, the trial court issued an Order dated June 16, 1972 declaring the following in individuals the legal heirs of the deceased and prescribing their respective share of the estate — Fortunata T. Rosales (husband), 1/4; Magna R. Acebes (daughter), 1/4; Macikequerox Rosales, 1/4; and Antonio Rosales son, 1/4.

By virtue of this consequence, the inheritance in question does not belong to the heiress instituted, the plaintiff herein, as her absolute property, but to her children, from the moment of the death of the testatrix, Ana Maria Alcantara.

This declaration was reiterated by the trial court in its Order I dated February 4, 1975. These Orders notwithstanding, Irenea Rosales insisted in getting a share of the estate in her capacity as the surviving spouse of the late Carterio Rosales, son of the deceased, claiming that she is a compulsory heir of her mother-in-law together with her son, Macikequerox Rosales.

Therefore, said inheritance, of which the amount referred to at the beginning, which is on deposit with the association known as La Urbana in the plaintiff's name, is a part, does not belong to her nor can it be subject to the execution of the judgment against Joaquin Perez, who is not one of the fideicommissary heirs.

11

Thus, Irenea Rosales sought the reconsideration of the aforementioned Orders. The trial court denied her plea. Hence this petition.

(3) The widow or widower;

In sum, the petitioner poses two (2) questions for Our resolution petition. First — is a widow (surviving spouse) an intestate heir of her mother-in-law? Second — are the Orders of the trial court which excluded the widow from getting a share of the estate in question final as against the said widow?

(5) Other illegitimate children referred to in article 287;

(4) Acknowledged natural children, and natural children by legal fiction; Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another. In all cases of illegitimate children, their filiation must be duly proved.

Our answer to the first question is in the negative.

The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code.

Intestate or legal heirs are classified into two (2) groups, namely, those who inherit by their own right, and those who inherit by the right of representation. 1 Restated, an intestate heir can only inherit either by his own right, as in the order of intestate succession provided for in the Civil Code, 2 or by the right of representation provided for in Article 981 of the same law. The relevant provisions of the Civil Code are:

The aforesaid provision of law 3 refers to the estate of the deceased spouse in which case the surviving spouse (widow or widower) is a compulsory heir. It does not apply to the estate of a parent-in-law.

Art. 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares.

Indeed, the surviving spouse is considered a third person as regards the estate of the parentin-law. We had occasion to make this observation in Lachenal v. Salas, 4 to Wit:

Art. 981. Should children of the deceased and descendants of other children who are dead, survive, the former shall inherit in their own right, and the latter by right of representation.

We hold that the title to the fishing boat should be determined in Civil Case No. 3597 (not in the intestate proceeding) because it affects the lessee thereof, Lope L. Leoncio, the decedent's son-in-law, who, although married to his daughter or compulsory heir, is nevertheless a third person with respect to his estate. ... (Emphasis supplied).

Art. 982. The grandchildren and other descendants shag inherit by right of representation, and if any one of them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions.

By the same token, the provision of Article 999 of the Civil Code aforecited does not support petitioner's claim. A careful examination of the said Article confirms that the estate contemplated therein is the estate of the deceased spouse. The estate which is the subject matter of the intestate estate proceedings in this case is that of the deceased Petra V. Rosales, the mother-in-law of the petitioner. It is from the estate of Petra V. Rosales that Macikequerox Rosales draws a share of the inheritance by the right of representation as provided by Article 981 of the Code.

Art. 999. When the widow or widower survives with legitimate children or their descendants and illegitimate children or their descendants, whether legitimate or illegitimate, such widow or widower shall be entitled to the same share as that of a legitimate child. There is no provision in the Civil Code which states that a widow (surviving spouse) is an intestate heir of her mother-in-law. The entire Code is devoid of any provision which entitles her to inherit from her mother-in- law either by her own right or by the right of representation. The provisions of the Code which relate to the order of intestate succession (Articles 978 to 1014) enumerate with meticulous exactitude the intestate heirs of a decedent, with the State as the final intestate heir. The conspicuous absence of a provision which makes a daughterin-law an intestate heir of the deceased all the more confirms Our observation. If the legislature intended to make the surviving spouse an intestate heir of the parent-in-law, it would have so provided in the Code.

The essence and nature of the right of representation is explained by Articles 970 and 971 of the Civil Code, viz— Art. 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited. Art. 971. The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded. (Emphasis supplied.)

Petitioner argues that she is a compulsory heir in accordance with the provisions of Article 887 of the Civil Code which provides that:

Article 971 explicitly declares that Macikequerox Rosales is called to succession by law because of his blood relationship. He does not succeed his father, Carterio Rosales (the person represented) who predeceased his grandmother, Petra Rosales, but the latter whom his father would have succeeded. Petitioner cannot assert the same right of representation as she has no filiation by blood with her mother-in-law.

Art. 887. The following are compulsory heirs: (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

12

Petitioner however contends that at the time of the death of her husband Carterio Rosales he had an inchoate or contingent right to the properties of Petra Rosales as compulsory heir. Be that as it may, said right of her husband was extinguished by his death that is why it is their son Macikequerox Rosales who succeeded from Petra Rosales by right of representation. He did not succeed from his deceased father, Carterio Rosales.

G.R. No. L-22797

On the basis of the foregoing observations and conclusions, We find it unnecessary to pass upon the second question posed by the petitioner. Accordingly, it is Our considered opinion, and We so hold, that a surviving spouse is not an intestate heir of his or her parent-in-law. WHEREFORE, in view of the foregoing, the Petition is hereby DENIED for lack of merit, with costs against the petitioner. Let this case be remanded to the trial-court for further proceedings.

September 22, 1966

TESTACY OF MAXIMA SANTOS VDA. DE BLAS. ROSALINA (Executrix), petitioner and vs. FLORA BLAS DE BUENAVENTURA (Legatee), oppositor and appellant.

SANTOS appellee,

Vicente J. Francisco for oppositor J.T. de los Santos and R.M. Caluag for petitioner and appellee.

appellant.

and

BENGZON, J.P., J.: This is an appeal from two orders of the Court of First Instance of Rizal in Special Proceedings No. 2524 regarding the testacy of the deceased Maxima Santos Vda. de Blas.

SO ORDERED. Yap (Chairman), Narvasa, Melencio-Herrera, Cruz, Feliciano and Sarmiento, JJ., concur.

On October 22, 1956, Rosalina Santos filed a petition with the Court of First Instance of Rizal for the probate of the last will allegedly executed on September 22, 1956 by the deceased Maxima Santos Vda. de Blas. 1 The nearest of kin of the deceased were her brothers and a sister, nephews and nieces. Rosalinda Santos, petitioner-appellee herein, is one of said nieces. Among the legatees — or more accurately, devisees — mentioned in the will is Flora Blas de Buenaventura. She is not related by blood to the deceased. Flora Blas de Buenaventura and Justo Garcia filed on November 28, 1956 an opposition to the probate of said will. Among the grounds for the opposition of Flora Blas and Justo Garcia were that the will was not executed in accordance with law; that undue and improper pressure was exerted upon the testatrix Maxima Santos in the execution thereof; that the signature of Maxima was secured through fraud; and that at the time of the execution of the will Maxima was mentally incapable of making a will.2 After the probate court had received the evidence for both the petitioner and oppositors, but before the latter could close their evidence, Flora Blas on November 6, 1957 filed a manifestation that she is withdrawing her opposition to the probate of the will, quoted as follows: Oppositor FLORA BLAS BUENAVENTURA, assisted by her counsel, unto this Honorable Court respectfully manifests: 1. That she is hereby withdrawing her opposition to the petition for the probate of the will of the deceased Maxima Santos Vda. de Blas; 2. That being a legatee named in the will, to protect and preserve her rights and interests, she hereby makes of record that she is joining the proponent of said will for the legalization of the same.

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Some circumstances leading to said withdrawal may be noted. Flora had to sell her house for P5,000 to pay for stenographic notes of this case. Rosalina Santos thereafter gave a party at the Manila Hotel, aimed at settling the case amicably. And there Atty. Jose T. de los Santos — appellee's lawyer — took Flora aside and told her that he learned she had sold her house, that it was a foolish thing to have done, and that for her sake and her children's, she should withdraw her opposition and receive her legacy, so that from its rent she could start a business.

Anent the second issue, the parties herein, relying mostly upon Spanish and Anglo-American authorities, advance conflicting theories. Petitioner-appellee argues that the "no-contest and forfeiture" clause is a valid, legal and efficacious testamentary condition. Against this position, however, the devisee-appellant maintains that such provision in a will is null and void because it is contrary to public policy. It is, however, the first issue that We will now discuss. For this purpose, the point to determine initially is whether or not appellant's filing of her opposition was justified under the particular circumstances of the case; and then, whether or not a timely withdrawal of said opposition had precluded violation of the "no contest and forfeiture clause"

The proceedings continued however as to the opposition of Justo Garcia. On December 24, 1957, the court below issued an order allowing the probate of the will. After the order had become final and executory, Flora Blas on February 27, 1958, filed a petition praying for the delivery to her of a fishpond as a specific devise in her favor under Item No. 3, Clause No. 6, of the will. To this petition, inspite of apparent understanding, Rosalina Santos filed an opposition predicated on the ground that said specific devise in favor of Flora was forfeited in favor of the other residuary heirs, pursuant to a provision of the will that should any of the heirs, devisees or legatees contest or oppose its probate, the latter shall lose his or her right to receive any inheritance or benefit under it, which shall be forfeited in favor of the other heirs, devisees and legatees.

The court a quo's conclusion is that "there is no justification for her to oppose or contest the probate of said will" because "from the evidence given by her and by her witnesses during the pendency of the probate of the will ..., it appears that Flora Blas was aware of the true facts surrounding the execution of the will and of the mental state of mind of the said testatrix at the time of the execution of the will in question, and yet she has charge her benefactor, the late Maxima Santos, as not enjoying sound mind when the latter executed her will on September 22, 1956", and that "there is no proof to show that the said Flora Blas was in any manner related by blood to Maxima Santos Vda. de Blas so that her contest of the said will cannot benefit her."4

The pertinent provisions of the will, translated into English from Tagalog, reads as follows:

We disagree with the above conclusion of the lower court, which is not the inference borne out by the facts and the evidence — both testimonial and documentary — adduced in the case.

Fourteenth.—I request all my heirs, devisees and legatees to look after each other, love and help one another and accept with thanks what I have bequeathed to them, and treasure, love and cherish the same. Any one of them who contests or opposes the probate of my will or the carrying out of its provisions shall lose any right to receive any inheritance or benefit under my will, and their inheritance or share shall pertain to the other heirs who have not opposed. 3

Appellant knew about the existence of another will executed earlier in 1953 in which she stood to receive more — much more — than what is devised to her in the 1956 will. 5 Since 1953 up to the death of the testatrix, appellant did not fall out of the good graces of the deceased. Their relationship stayed as close as ever. She did not give any cause to alienate the deceased's affections. Why, then, the supposed change of heart?

This is known in Anglo-American jurisdiction as the "no contest and forfeiture" clause of a will. 1awphîl.nèt In its order of April 30, 1958, the court a quo sustained the theory that the "no-contest and forfeiture" clause of the will was valid and had the effect of depriving Flora of her devise in view of her previous opposition to its probate, which it held not justified under the circumstances. Accordingly, it denied the motion for delivery of the specific devise, declaring the same forfeited in favor of the other residuary heirs. Flora's motion for reconsideration, superseded by a subsequent amended motion to the same effect, was denied by the probate court in its order dated March 7, 1959.

She was addressed as Flora Buendia in the will, 6 yet she has been using the name Flora Blas as far as she could remember, apparently with the knowledge and consent of the deceased. This is supported by her school records from grade school up to first year pharmacy. Admittedly, it was the deceased who reared and spent for the education of the appellant, and therefore she must have known that the latter was using the family name Blas. If, indeed, the testatrix was not agreeable to such an arrangement why did she not take steps to correct the same? We can only conclude that appellant's use of the family name Blas was with the acquiescence of the testatrix. Why should she change her mind after all the years and speak of appellant in her will as Flora Buendia instead of Flora Blas?

From the foregoing two orders of the trial court, Flora Blas interposed an appeal to the Court of Appeals. Said Court, in its resolution of March 25, 1964, certified the appeal to Us as calling for determination of questions purely of law.

There was also the coincidence that the three attesting witnesses to the will, all brothers, are likewise the lawyers of the executrix (who will receive the biggest single share under the will) and compadres of the assistant executrix, while the notary public is also a compadre of one of the attesting brothers-lawyers.

This appeal raises two issues: (1) Did Flora's actuations, under the facts and circumstances herein, amount to a violation of the "no-contest and forfeiture" clause of the will; and (2) Is the "no-contest and forfeiture" provision of the will valid?

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Furthermore, the nurse who attended to the deceased on September 22, 1956 — the date when the will was supposedly typed and signed by that testatrix in her room at the Manila Doctors Hospital — told the appellant that there was no one inside the testatrix's room when she went to administer medications to the old woman at the precise time when the attesting witnesses and the notary public testified they were inside the said room. The nurse admitted this likewise under oath (Tsn., June 10, 1957, p. 23).

the questioned clause speaks of "pagpapatibay at pag-bibigay-bisa" instead of "pagpapatibay o pag-bibigay-bisa."9 This furnishes a significant index into the intention of the testatrix, namely, that she was more concerned in insuring the carrying out of her testamentary provisions than in precluding any contest or opposition to it. By the withdrawal of the contest which appellant brought in good faith, no prejudice has been done into the intention of the testatrix. The dispositions of her will can now be safely carried out.

But the most important single factor that should engender reasonable doubt as to the physical and mental capacity of a person to execute a will, was the condition of Maxima Blas as gleaned from the records of the case. She was an old woman more than 86 years old who suffered from various ailments like rheumatoid arthritis, catarrh of the eyes, jaundice, cirrhosis of the liver, anemia, edema of the lower legs and fracture in the vertebrae. From August 1, 1956 to September 23, 1956 she received seven blood transfusions, as follows: one on August 1; two on September 22 (the alleged date of the execution of the will), with barely three hours intervening; one each on September 24, 25, 26 and 29, 1956. She was also given dextrose vinoclysis on September 22, because she could not take food through the mouth; and on September 23, 1956 she started to bleed by mouth, compelling her doctor to cancel her trip to the United States scheduled for September 25, 1956. Several documents executed by her before the alleged date of execution of the will, were no longer signed but merely thumbmarked by her,7whereas the will appealed to have been signed.

The most that can be said, if at all, is that Flora Blas' actuations were also impelled by some desire to gain. But who among the heirs can assume a posture of innocence and cast the first stone? None of them can safely claim that he is not thus similarly motivated. From the foregoing premises it cannot be said that Flora's actuations impaired the true intention of the testatrix in regard to the "no-contest and forfeiture" clause of the will. Flora's act of withdrawing her opposition before she had rested her case contributed to the speedy probation of the will. Since the withdrawal came before Flora had rested her case, it precluded the defeat of the probate upon the strength of Flora's evidence. Through said withdrawal, Flora conformed to the testatrix's wish that her dispositions of her properties under the will be carried out. It follows that, taken as a whole, Flora's actuations subserved rather than violated the testatrix's intention. There is, therefore, no further need to discuss the second issue on the validity of a "no contest and forfeiture" clause in this jurisdiction, since, at any rate, said clause was not violated in this case.

It is difficult for Us to imagine that one situated and equally faced with the above enumerated facts and circumstances as the appellant was, should keep her peace. She had her doubts, and to resolve them she had to conduct inquiries and investigations. Her findings all the more strengthened her belief that there was something untoward about the execution of the will. Thus, in her desire to know the truth and to protect her rights, she opposed the probate of the will.

Wherefore, the appealed orders dated April 30, 1958 and March 7, 1959 are hereby reversed, and this case is remanded to the court a quo with the instruction that appellant's devise under the will be forthwith delivered to her. No costs. So ordered. Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur. Regala J., took no part.

After all, had the contest been continued and the will held invalid on any of the grounds provided by law for the disallowance of a will, 8 she would have contributed in no small measure to the cause of the truth which the courts have been in a position to apply the proper legal provisions which are for the greater interests of the testatrix — since all of them are ordained to the idea that the truth of her last thoughts may be duly assured and guaranteed. Above all, the factor that preponderates in favor of appellant is that, after realizing her mistake in contesting the will — a mistake committed in good faith because grounded on strong doubts — she withdrew her opposition and joined the appellee in the latter's petition for the probate of the will. She must not now be penalized for rectifying her error. After all, the intentions of the testatrix had been fulfilled, her will had been admitted and allowed probate within a reasonably short period, and the disposition of her property can now be effected. It should be pointed out that, contrary to the translation accorded to Paragraph Fourteen of the will, the testatrix enjoins not a mere contest or opposition to its probate, but a contest or opposition to the probate of the will and the carrying out of its provisions. This is so because

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G.R. No. L-12957

March 24, 1961

CONSTANCIO SIENES, ET AL., plaintiffs-appellants, vs. FIDEL ESPARCIA, ET AL., defendants-appellees. Proceso R. Remollo Leonardo D. Mancao for defendants-appellees.

for

plaintiffs-appellants.

DIZON, J.: Appellants commenced this action below to secure judgment (1) declaring null and void the sale executed by Paulina and Cipriana Yaeso in favor of appellees, the spouses Fidel Esparcia and Paulina Sienes; (2) ordering the Esparcia spouses to reconvey to appellants Lot 3368 of the Cadastral Survey of Ayuquitan (now Amlan), Oriental Negros; and (3) ordering all the appellees to pay, jointly and severally, to appellants the sum of P500.00 as damages, plus the costs of suit. In their answer appellees disclaimed any knowledge or information regarding the sale allegedly made on April 20, 1951 by Andrea Gutang in favor of appellants and alleged that, if such sale was made, the same was void on the ground that Andrea Gutang had no right to dispose of the property subject matter thereof. They further alleged that said property had never been in possession of appellants, the truth being that appellees, as owners, had been in continuous possession thereof since the death of Francisco Yaeso. By way of affirmative defense and counterclaim, they further alleged that on July 30, 1951, Paulina and Cipriana Yaeso, as the only surviving heirs of Francisco Yaeso, executed a public instrument of sale in favor of the spouses Fidel Esparcia and Paulina Sienes, the said sale having been registered together with an affidavit of adjudication executed by Paulina and Cipriana on July 18, 1951, as sole surviving heirs of the aforesaid deceased; that since then the Esparcias had been in possession of the property as owners. After trial upon the issues thus joined, the lower court rendered judgment as follows: IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered declaring (1) that the sale of Lot No. 3368 made by Andrea Gutang to the plaintiff spouses Constancio Sienes and Genoveva Silay is void, and the reconveyance prayed for by them is denied; (2) that the sale made by Paulina and Cipriana Yaeso in favor of defendants Fidel Esparcia and Paulina Sienes involving the same lot is also void, and they have no valid title thereto; and (3) that the reservable property in question is part of and must be reverted to the estate of Cipriana Yaeso, the lone surviving relative and heir of Francisco Yaeso at the death of Andrea Gutang as of December 13, 1951. No pronouncement as to the costs. From the above decision the Sienes spouse interposed the present appeal, their principal contentions being, firstly, that the lower court erred in holding that Lot 3368 of the Cadastral Survey of Ayuquitan was a reservable property; secondly, in annulling the sale of said lot

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executed by Andrea Gutang in their favor; and lastly, in holding that Cipriana Yaeso, as reservee, was entitled to inherit said land.

reservable property but subject to a resolutory condition; that he is like a life usufructuary of the reservable property; that he may alienate the same but subject to reservation, said alienation transmitting only the revocable and conditional ownership of the reservists, the rights acquired by the transferee being revoked or resolved by the survival of reservatarios at the time of the death of the reservista (Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480; and Director of Lands vs. Aguas, 65 Phil. 279).

There is no dispute as to the following facts: Lot 3368 originally belonged to Saturnino Yaeso. With his first wife, Teresa Ruales, he had four children named Agaton, Fernando, Paulina and Cipriana, while with his second wife, Andrea Gutang, he had an only son named Francisco. According to the cadastral records of Ayuquitan, the properties left by Saturnino upon his death — the date of which does not clearly appear of record — were left to his children as follows: Lot 3366 to Cipriana, Lot 3367 to Fernando, Lot 3375 to Agaton, Lot 3377 (southern portion) to Paulina, and Lot 3368 (western portion) to Francisco. As a result of the cadastral proceedings, Original Certificate of Title No. 10275 covering Lot 3368 was issued in the name of Francisco. Because Francisco was a minor at the time, his mother administered the property for him, declared it in her name for taxation purposes (Exhs A & A-1), and paid the taxes due thereon (Exhs. B, C, C-1 & C-2). When Francisco died on May 29, 1932 at the age of 20, single and without any descendant, his mother, as his sole heir, executed the public instrument Exhibit F entitled EXTRAJUDICIAL SETTLEMENT AND SALE whereby, among other things, for and in consideration of the sum of P800.00 she sold the property in question to appellants. When thereafter said vendees demanded from Paulina Yaeso and her husband Jose Esparcia, the surrender of Original Certificate of Title No. 10275 — which was in their possession — the latter refused, thus giving rise to the filing of the corresponding motion in the cadastral record No. 507. The same, however, was denied (Exhs. 8 & 9).

The sale made by Andrea Gutang in favor of appellees was, therefore, subject to the condition that the vendees would definitely acquire ownership, by virtue of the alienation, only if the vendor died without being survived by any person entitled to the reservable property. Inasmuch much as when Andrea Gutang died, Cipriana Yaeso was still alive, the conclusion becomes inescapable that the previous sale made by the former in favor of appellants became of no legal effect and the reservable property subject matter thereof passed in exclusive ownership to Cipriana. On the other hand, it is also clear that the sale executed by the sisters Paulina and Cipriana Yaeso in favor of the spouses Fidel Esparcia and Paulina Sienes was subject to a similar resolutory condition. The reserve instituted by law in favor of the heirs within the third degree belonging to the line from which the reservable property came, constitutes a real right which the reservee may alienate and dispose of, albeit conditionally, the condition being that the alienation shall transfer ownership to the vendee only if and when the reservee survives the person obliged to reserve. In the present case, Cipriana Yaeso, one of the reservees, was still alive when Andrea Gutang, the person obliged to reserve, died. Thus the former became the absolute owner of the reservable property upon Andrea's death. While it may be true that the sale made by her and her sister prior to this event, became effective because of the occurrence of the resolutory condition, we are not now in a position to reverse the appealed decision, in so far as it orders the reversion of the property in question to the Estate of Cipriana Yaeso, because the vendees — the Esparcia spouses did — not appeal therefrom.

Thereafter, or more specifically, on July 30, 1951, Cipriana and Paulina Yaeso, the surviving half-sisters of Francisco, and who as such had declared the property in their name, on January 1, 1951 executed a deed of sale in favor of the spouses Fidel Esparcia and Paulina Sienes (Exh. 2) who, in turn, declared it in their name for tax purposes and thereafter secured the issuance in their name of Transfer Certificate of Title No. T-2141 (Exhs. 5 & 5-A). As held by the trial court, it is clear upon the facts already stated, that the land in question was reservable property. Francisco Yaeso inherited it by operation of law from his father Saturnino, and upon Francisco's death, unmarried and without descendants, it was inherited, in turn, by his mother, Andrea Gutang. The latter was, therefore, under obligation to reserve it for the benefit of relatives within the third degree belonging to the line from which said property came, if any survived her. The record discloses in this connection that Andrea Gutang died on December 13, 1951, the lone reservee surviving her being Cipriana Yaeso who died only on January 13, 1952 (Exh. 10).

WHEREFORE, the appealed decision — as above modified — is affirmed, with costs, and without prejudice to whatever action in equity the Esparcia spouses may have against the Estate of Cipriana Yaeso for the reconveyance of the property in question. Bengzon, Actg. C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera and Paredes, JJ.,concur.

In connection with reservable property, the weight of opinion is that the reserve creates two resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the survival, at the time of his death, of relatives within the third degree belonging to the line from which the property came (6 Manresa 268-269; 6 Sanchez Roman 1934). This Court has held in connection with this matter that the reservista has the legal title and dominion to the

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G.R. No. 83484 February 12, 1990 CELEDONIA vs. THE HONORABLE COURT VILLANUEVA, respondents.

SOLIVIO, petitioner, OF

APPEALS

and

CONCORDIA

JAVELLANA

Rex Suiza Castillon for petitioner. Salas & Villareal for private respondent. MEDIALDEA, J.: This is a petition for review of the decision dated January 26, 1988 of the Court of Appeals in CA GR CV No. 09010 (Concordia Villanueva v. Celedonia Solivio) affirming the decision of the trial court in Civil Case No. 13207 for partition, reconveyance of ownership and possession and damages, the dispositive portion of which reads as follows: WHEREFORE, judgment is hereby rendered for the plaintiff and against defendant: a) Ordering that the estate of the late Esteban Javellana, Jr. be divided into two (2) shares: one-half for the plaintiff and one-half for defendant. From both shares shall be equally deducted the expenses for the burial, mausoleum and related expenditures. Against the share of defendants shall be charged the expenses for scholarship, awards, donations and the 'Salustia Solivio Vda. de Javellana Memorial Foundation;' b) Directing the defendant to submit an inventory of the entire estate property, including but not limited to, specific items already mentioned in this decision and to render an accounting of the property of the estate, within thirty (30) days from receipt of this judgment; one-half (1/2) of this produce shall belong to plaintiff; c) Ordering defendant to pay plaintiff P5,000.00 as expenses of litigation; P10,000.00 for and as attorney's fees plus costs. SO ORDERED. (pp. 42-43, Rollo) This case involves the estate of the late novelist, Esteban Javellana, Jr., author of the first post-war Filipino novel "Without Seeing the Dawn," who died a bachelor, without descendants, ascendants, brothers, sisters, nephews or nieces. His only surviving relatives are: (1) his maternal aunt, petitioner Celedonia Solivio, the spinster half-sister of his mother, Salustia Solivio; and (2) the private respondent, Concordia Javellana-Villanueva, sister of his deceased father, Esteban Javellana, Sr. He was a posthumous child. His father died barely ten (10) months after his marriage in December, 1916 to Salustia Solivio and four months before Esteban, Jr. was born.

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Salustia and her sister, Celedonia (daughter of Engracio Solivio and his second wife Josefa Fernandez), a teacher in the Iloilo Provincial High School, brought up Esteban, Jr.

sole heir, the disposition of the properties of the estate to fund the foundation would be facilitated.

Salustia brought to her marriage paraphernal properties (various parcels of land in Calinog, Iloilo covered by 24 titles) which she had inherited from her mother, Gregoria Celo, Engracio Solivio's first wife (p. 325, Record), but no conjugal property was acquired during her shortlived marriage to Esteban, Sr.

On April 3, 1978, the court (Branch II, CFI, now Branch 23, RTC) declared her the sole heir of Esteban, Jr. Thereafter, she sold properties of the estate to pay the taxes and other obligations of the deceased and proceeded to set up the "SALUSTIA SOLIVIO VDA. DE JAVELLANA FOUNDATION" which she caused to be registered in the Securities and Exchange Commission on July 17,1981 under Reg. No. 0100027 (p. 98, Rollo).

On October 11, 1959, Salustia died, leaving all her properties to her only child, Esteban, Jr., including a house and lot in La Paz, Iloilo City, where she, her son, and her sister lived. In due time, the titles of all these properties were transferred in the name of Esteban, Jr.

Four months later, or on August 7, 1978, Concordia Javellana Villanueva filed a motion for reconsideration of the court's order declaring Celedonia as "sole heir" of Esteban, Jr., because she too was an heir of the deceased. On October 27, 1978, her motion was denied by the court for tardiness (pp. 80-81, Record). Instead of appealing the denial, Concordia filed on January 7, 1980 (or one year and two months later), Civil Case No. 13207 in the Regional Trial Court of Iloilo, Branch 26, entitled "Concordia Javellana- Villanueva v. Celedonia Solivio" for partition, recovery of possession, ownership and damages.

During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt Celedonia and some close friends his plan to place his estate in a foundation to honor his mother and to help poor but deserving students obtain a college education. Unfortunately, he died of a heart attack on February 26,1977 without having set up the foundation. Two weeks after his funeral, Concordia and Celedonia talked about what to do with Esteban's properties. Celedonia told Concordia about Esteban's desire to place his estate in a foundation to be named after his mother, from whom his properties came, for the purpose of helping indigent students in their schooling. Concordia agreed to carry out the plan of the deceased. This fact was admitted by her in her "Motion to Reopen and/or Reconsider the Order dated April 3, 1978" which she filed on July 27, 1978 in Special Proceeding No. 2540, where she stated:

On September 3, 1984, the said trial court rendered judgment in Civil Case No. 13207, in favor of Concordia Javellana-Villanueva. On Concordia's motion, the trial court ordered the execution of its judgment pending appeal and required Celedonia to submit an inventory and accounting of the estate. In her motions for reconsideration of those orders, Celedonia averred that the properties of the deceased had already been transferred to, and were in the possession of, the 'Salustia Solivio Vda. de Javellana Foundation." The trial court denied her motions for reconsideration.

4. That petitioner knew all along the narrated facts in the immediately preceding paragraph [that herein movant is also the relative of the deceased within the third degree, she being the younger sister of the late Esteban Javellana, father of the decedent herein], because prior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides they have closely known each other due to their filiation to the decedent and they have been visiting each other's house which are not far away for (sic) each other. (p. 234, Record; Emphasis supplied.)

In the meantime, Celedonia perfected an appeal to the Court of Appeals (CA GR CV No. 09010). On January 26, 1988, the Court of Appeals, Eleventh Division, rendered judgment affirming the decision of the trial court in toto.Hence, this petition for review wherein she raised the following legal issues: 1. whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain Civil Case No. 13207 for partition and recovery of Concordia Villanueva's share of the estate of Esteban Javellana, Jr. even while the probate proceedings (Spl. Proc. No. 2540) were still pending in Branch 23 of the same court;

Pursuant to their agreement that Celedonia would take care of the proceedings leading to the formation of the foundation, Celedonia in good faith and upon the advice of her counsel, filed on March 8, 1977 Spl. Proceeding No. 2540 for her appointment as special administratrix of the estate of Esteban Javellana, Jr. (Exh. 2). Later, she filed an amended petition (Exh. 5) praying that letters of administration be issued to her; that she be declared sole heir of the deceased; and that after payment of all claims and rendition of inventory and accounting, the estate be adjudicated to her (p. 115, Rollo).

2. whether Concordia Villanueva was prevented from intervening in Spl. Proc. No. 2540 through extrinsic fraud; 3. whether the decedent's properties were subject to reserva troncal in favor of Celedonia, his relative within the third degree on his mother's side from whom he had inherited them; and 4. whether Concordia may recover her share of the estate after she had agreed to place the same in the Salustia Solivio Vda. de Javellana Foundation, and notwithstanding the fact that conformably with said agreement, the Foundation has been formed and properties of the estate have already been transferred to it.

After due publication and hearing of her petition, as well as her amended petition, she was declared sole heir of the estate of Esteban Javellana, Jr. She explained that this was done for three reasons: (1) because the properties of the estate had come from her sister, Salustia Solivio; (2) that she is the decedent's nearest relative on his mother's side; and (3) with her as

I. The question of jurisdiction—

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After a careful review of the records, we find merit in the petitioner's contention that the Regional Trial Court, Branch 26, lacked jurisdiction to entertain Concordia Villanueva's action for partition and recovery of her share of the estate of Esteban Javellana, Jr. while the probate proceedings (Spl, Proc. No. 2540) for the settlement of said estate are still pending in Branch 23 of the same court, there being as yet no orders for the submission and approval of the administratix's inventory and accounting, distributing the residue of the estate to the heir, and terminating the proceedings (p. 31, Record).

separate action was improperly filed for it is the probate court that has exclusive jurisdiction to make a just and legal distribution of the estate. In the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedent's estate, a court should not interfere with probate proceedings pending in a coequal court. Thus, did we rule in Guilas v. Judge of the Court of First Instance of Pampanga, L-26695, January 31, 1972, 43 SCRA 111, 117, where a daughter filed a separate action to annul a project of partition executed between her and her father in the proceedings for the settlement of the estate of her mother:

It is the order of distribution directing the delivery of the residue of the estate to the persons entitled thereto that brings to a close the intestate proceedings, puts an end to the administration and thus far relieves the administrator from his duties (Santiesteban v. Santiesteban, 68 Phil. 367, Philippine Commercial and Industrial Bank v. Escolin, et al., L27860, March 29, 1974, 56 SCRA 266).

The probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the remaining estate delivered to the heirs entitled to receive the same. The finality of the approval of the project of The probate court, in the exercise of its jurisdiction to make distribution, has power to determine the proportion or parts to which each distributed is entitled. ... The power to determine the legality or illegality of the testamentary provision is inherent in the jurisdiction of the court making a just and legal distribution of the inheritance. ... To hold that a separate and independent action is necessary to that effect, would be contrary to the general tendency of the jurisprudence of avoiding multiplicity of suits; and is further, expensive, dilatory, and impractical. (Marcelino v. Antonio, 70 Phil. 388)

The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring Celedonia as the sole heir of the estate of Esteban Javellana, Jr. did not toll the end of the proceedings. As a matter of fact, the last paragraph of the order directed the administratrix to "hurry up the settlement of the estate." The pertinent portions of the order are quoted below: 2. As regards the second incident [Motion for Declaration of Miss Celedonia Solivio as Sole Heir, dated March 7, 1978], it appears from the record that despite the notices posted and the publication of these proceedings as required by law, no other heirs came out to interpose any opposition to the instant proceeding. It further appears that herein Administratrix is the only claimant-heir to the estate of the late Esteban Javellana who died on February 26, 1977.

A judicial declaration that a certain person is the only heir of the decedent is exclusively within the range of the administratrix proceedings and can not properly be made an independent action. (Litam v. Espiritu, 100 Phil. 364) A separate action for the declaration of heirs is not proper. (Pimentel v. Palanca, 5 Phil. 436)

During the hearing of the motion for declaration as heir on March 17, 1978, it was established that the late Esteban Javellana died single, without any known issue, and without any surviving parents. His nearest relative is the herein Administratrix, an elder [sic] sister of his late mother who reared him and with whom he had always been living with [sic] during his lifetime.

partition by itself alone does not terminate the probate proceeding (Timbol v. Cano, 1 SCRA 1271, 1276, L-15445, April 29, 1961; Siguiong v. Tecson, 89 Phil. pp. 28, 30). As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated Siguiong v. Tecson, supra); because a judicial partition is not final and conclusive and does not prevent the heirs from bringing an action to obtain his share, provided the prescriptive period therefore has not elapsed (Mari v. Bonilia, 83 Phil. 137). The better practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings, or for reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action,which would be tried by another court or Judge which may thus reverse a decision or order of the probate or intestate court already final and executed and re-shuffle properties long ago distributed and disposed of. (Ramos v. Ortuzar, 89 Phil. 730, 741-742; Timbol v. Cano, supra; Jingco v. Daluz, L-5107, April 24, 1953, 92 Phil. 1082; Roman Catholic v. Agustines, L-14710, March 29, 1960, 107 Phil. 455, 460-461; Emphasis supplied)

xxxxxxxxx 2. Miss Celedonia Solivio, Administratrix of this estate, is hereby declared as the sole and legal heir of the late Esteban S. Javellana, who died intestate on February 26, 1977 at La Paz, Iloilo City. The Administratrix is hereby instructed to hurry up with the settlement of this estate so that it can be terminated. (pp, 14-16, Record) In view of the pendency of the probate proceedings in Branch 11 of the Court of First Instance (now RTC, Branch 23), Concordia's motion to set aside the order declaring Celedonia as sole heir of Esteban, and to have herself (Concordia) declared as co-heir and recover her share of the properties of the deceased, was properly filed by her in Spl. Proc. No. 2540. Her remedy when the court denied her motion, was to elevate the denial to the Court of Appeals for review on certiorari. However, instead of availing of that remedy, she filed more than one year later, a separate action for the same purpose in Branch 26 of the court. We hold that the

In Litam et al., v. Rivera, 100 Phil. 364, where despite the pendency of the special proceedings for the settlement of the intestate estate of the deceased Rafael Litam the plaintiffs-appellants filed a civil action in which they claimed that they were the children by a

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previous marriage of the deceased to a Chinese woman, hence, entitled to inherit his one-half share of the conjugal properties acquired during his marriage to Marcosa Rivera, the trial court in the civil case declared that the plaintiffs-appellants were not children of the deceased, that the properties in question were paraphernal properties of his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to this Court, we ruled that "such declarations (that Marcosa Rivera was the only heir of the decedent) is improper, in Civil Case No. 2071, it being within the exclusive competence of the court in Special Proceedings No. 1537, in which it is not as yet, in issue, and, will not be, ordinarily, in issue until the presentation of the project of partition. (p. 378).

'outside the trial of a case against the defeated party, or his agents, attorneys or witnesses, whereby said defeated party is prevented from presenting fully and fairly his side of the case. ... The overriding consideration is that the fraudulent scheme of the prevailing litigant prevented a party from having his day in court or from presenting his case. The fraud, therefore, is one that affects and goes into the jurisdiction of the court. (Libudan v. Gil, L21163, May 17, 1972, 45 SCRA 17, 27-29; Sterling Investment Corp. v. Ruiz, L-30694, October 31, 1969, 30 SCRA 318, 323) The charge of extrinsic fraud is, however, unwarranted for the following reasons: 1. Concordia was not unaware of the special proceeding intended to be filed by Celedonia. She admitted in her complaint that she and Celedonia had agreed that the latter would "initiate the necessary proceeding" and pay the taxes and obligations of the estate. Thus paragraph 6 of her complaint alleged:

However, in the Guilas case, supra, since the estate proceedings had been closed and terminated for over three years, the action for annulment of the project of partition was allowed to continue. Considering that in the instant case, the estate proceedings are still pending, but nonetheless, Concordia had lost her right to have herself declared as co-heir in said proceedings, We have opted likewise to proceed to discuss the merits of her claim in the interest of justice.

6. ... for the purpose of facilitating the settlement of the estate of the late Esteban Javellana, Jr. at the lowest possible cost and the least effort, the plaintiff and the defendant agreed that the defendant shall initiate the necessary proceeding, cause the payment of taxes and other obligations, and to do everything else required by law, and thereafter, secure the partition of the estate between her and the plaintiff, [although Celedonia denied that they agreed to partition the estate, for their agreement was to place the estate in a foundation.] (p. 2, Record; emphasis supplied)

The orders of the Regional Trial Court, Branch 26, in Civil Case No. 13207 setting aside the probate proceedings in Branch 23 (formerly Branch 11) on the ground of extrinsic fraud, and declaring Concordia Villanueva to be a co-heir of Celedonia to the estate of Esteban, Jr., ordering the partition of the estate, and requiring the administratrix, Celedonia, to submit an inventory and accounting of the estate, were improper and officious, to say the least, for these matters he within the exclusive competence of the probate court.

Evidently, Concordia was not prevented from intervening in the proceedings. She stayed away by choice. Besides, she knew that the estate came exclusively from Esteban's mother, Salustia Solivio, and she had agreed with Celedonia to place it in a foundation as the deceased had planned to do.

II. The question of extrinsic fraud— Was Concordia prevented from intervening in the intestate proceedings by extrinsic fraud employed by Celedonia? It is noteworthy that extrinsic fraud was not alleged in Concordia's original complaint in Civil Case No. 13207. It was only in her amended complaint of March 6, 1980, that extrinsic fraud was alleged for the first time.

2. The probate proceedings are proceedings in rem. Notice of the time and place of hearing of the petition is required to be published (Sec. 3, Rule 76 in relation to Sec. 3, Rule 79, Rules of Court). Notice of the hearing of Celedonia's original petition was published in the "Visayan Tribune" on April 25, May 2 and 9, 1977 (Exh 4, p. 197, Record). Similarly, notice of the hearing of her amended petition of May 26, 1977 for the settlement of the estate was, by order of the court, published in "Bagong Kasanag" (New Light) issues of May 27, June 3 and 10, 1977 (pp. 182-305, Record). The publication of the notice of the proceedings was constructive notice to the whole world. Concordia was not deprived of her right to intervene in the proceedings for she had actual, as well as constructive notice of the same. As pointed out by the probate court in its order of October 27, 1978:

Extrinsic fraud, as a ground for annulment of judgment, is any act or conduct of the prevailing party which prevented a fair submission of the controversy (Francisco v. David, 38 O.G. 714). A fraud 'which prevents a party from having a trial or presenting all of his case to the court, or one which operates upon matters pertaining, not to the judgment itself, but to the manner by which such judgment was procured so much so that there was no fair submission of the controversy. For instance, if through fraudulent machination by one [his adversary], a litigant was induced to withdraw his defense or was prevented from presenting an available defense or cause of action in the case wherein the judgment was obtained, such that the aggrieved party was deprived of his day in court through no fault of his own, the equitable relief against such judgment may be availed of. (Yatco v. Sumagui, 44623-R, July 31, 1971). (cited in Philippine Law Dictionary, 1972 Ed. by Moreno; Varela v. Villanueva, et al., 96 Phil. 248)

... . The move of Concordia Javellana, however, was filed about five months after Celedonia Solivio was declared as the sole heir. ... . Considering that this proceeding is one in rem and had been duly published as required by law, despite which the present movant only came to court now, then she is guilty of laches for sleeping on her alleged right. (p. 22, Record)

A judgment may be annulled on the ground of extrinsic or collateral fraud, as distinguished from intrinsic fraud, which connotes any fraudulent scheme executed by a prevailing litigant

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The court noted that Concordia's motion did not comply with the requisites of a petition for relief from judgment nor a motion for new trial.

Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property, for Esteban, Jr. was not an ascendant, but the descendant of his mother, Salustia Solivio, from whom he inherited the properties in question. Therefore, he did not hold his inheritance subject to a reservation in favor of his aunt, Celedonia Solivio, who is his relative within the third degree on his mother's side. The reserva troncal applies to properties inherited by an ascendant from a descendant who inherited it from another ascendant or 9 brother or sister. It does not apply to property inherited by a descendant from his ascendant, the reverse of the situation covered by Article 891.

The rule is stated in 49 Corpus Juris Secundum 8030 as follows: Where petition was sufficient to invoke statutory jurisdiction of probate court and proceeding was in rem no subsequent errors or irregularities are available on collateral attack. (Bedwell v. Dean 132 So. 20) Celedonia's allegation in her petition that she was the sole heir of Esteban within the third degree on his mother's side was not false. Moreover, it was made in good faith and in the honest belief that because the properties of Esteban had come from his mother, not his father, she, as Esteban's nearest surviving relative on his mother's side, is the rightful heir to them. It would have been self-defeating and inconsistent with her claim of sole heirshipif she stated in her petition that Concordia was her co-heir. Her omission to so state did not constitute extrinsic fraud.

Since the deceased, Esteban Javellana, Jr., died without descendants, ascendants, illegitimate children, surviving spouse, brothers, sisters, nephews or nieces, what should apply in the distribution of his estate are Articles 1003 and 1009 of the Civil Code which provide: ART. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles.

Failure to disclose to the adversary, or to the court, matters which would defeat one's own claim or defense is not such extrinsic fraud as will justify or require vacation of the judgment. (49 C.J.S. 489, citing Young v. Young, 2 SE 2d 622; First National Bank & Trust Co. of King City v. Bowman, 15 SW 2d 842; Price v. Smith, 109 SW 2d 1144, 1149)

ART. 1009. Should there be neither brothers nor sisters, nor children of brothers or sisters, the other collateral relatives shall succeed to the estate.

It should be remembered that a petition for administration of a decedent's estate may be filed by any "interested person" (Sec. 2, Rule 79, Rules of Court). The filing of Celedonia's petition did not preclude Concordia from filing her own.

The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood.

III. On the question of reserva troncal—

Both plaintiff-appellee and defendant-appellant being relatives of the decedent within the third degree in the collateral line, each, therefore, shall succeed to the subject estate 'without distinction of line or preference among them by reason of relationship by the whole blood,' and is entitled one-half (1/2) share and share alike of the estate. (p. 57, Rollo)

Therefore, the Court of Appeals correctly held that:

We find no merit in the petitioner's argument that the estate of the deceased was subject to reserva troncal and that it pertains to her as his only relative within the third degree on his mother's side. The reserva troncalprovision of the Civil Code is found in Article 891 which reads as follows:

IV. The question of Concordia's one-half share—

ART. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came.

However, inasmuch as Concordia had agreed to deliver the estate of the deceased to the foundation in honor of his mother, Salustia Solivio Vda. de Javellana (from whom the estate came), an agreement which she ratified and confirmed in her "Motion to Reopen and/or Reconsider Order dated April 3, 1978" which she filed in Spl. Proceeding No. 2540:

The persons involved in reserva troncal are:

4. That ... prior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides they have closely known each other due to their filiation to the decedent and they have been visiting each other's house which are not far away for (sic) each other. (p. 234, Record; Emphasis supplied)

1. The person obliged to reserve is the reservor (reservista)—the ascendant who inherits by operation of law property from his descendants. 2. The persons for whom the property is reserved are the reservees (reservatarios)—relatives within the third degree counted from the descendant (propositus), and belonging to the line from which the property came.

she is bound by that agreement. It is true that by that agreement, she did not waive her inheritance in favor of Celedonia, but she did agree to place all of Esteban's estate in the "Salustia Solivio Vda. de Javellana Foundation" which Esteban, Jr., during his lifetime,

3. The propositus—the descendant who received by gratuitous title and died without issue, making his other ascendant inherit by operation of law. (p. 692, Civil Law by Padilla, Vol. II, 1956 Ed.)

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planned to set up to honor his mother and to finance the education of indigent but deserving students as well.

apply only the income or such part thereof as shall be determined by the Trustees for such endeavors as may be necessary to carry out the objectives of the Foundation.

Her admission may not be taken lightly as the lower court did. Being a judicial admission, it is conclusive and no evidence need be presented to prove the agreement (Cunanan v. Amparo, 80 Phil. 227; Granada v. Philippine National Bank, L-20745, Sept. 2, 1966, 18 SCRA 1; Sta. Ana v. Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018; People v. Encipido, G.R.70091, Dec. 29, 1986, 146 SCRA 478; and Rodillas v. Sandiganbayan, G.R. 58652, May 20, 1988, 161 SCRA 347).

7. To acquire, purchase, own, hold, operate, develop, lease, mortgage, pledge, exchange, sell, transfer, or otherwise, invest, trade, or deal, in any manner permitted by law, in real and personal property of every kind and description or any interest herein. 8. To do and perform all acts and things necessary, suitable or proper for the accomplishments of any of the purposes herein enumerated or which shall at any time appear conducive to the protection or benefit of the corporation, including the exercise of the powers, authorities and attributes concerned upon the corporation organized under the laws of the Philippines in general, and upon domestic corporation of like nature in particular. (pp. 910, Rollo)

The admission was never withdrawn or impugned by Concordia who, significantly, did not even testify in the case, although she could have done so by deposition if she were supposedly indisposed to attend the trial. Only her husband, Narciso, and son-in-law, Juanito Domin, actively participated in the trial. Her husband confirmed the agreement between his wife and Celedonia, but he endeavored to dilute it by alleging that his wife did not intend to give all, but only one-half, of her share to the foundation (p. 323, Record).

As alleged without contradiction in the petition' for review: The Foundation began to function in June, 1982, and three (3) of its eight Esteban Javellana scholars graduated in 1986, one (1) from UPV graduated Cum Laude and two (2) from WVSU graduated with honors; one was a Cum Laude and the other was a recipient of Lagos Lopez award for teaching for being the most outstanding student teacher.

The records show that the "Salustia Solivio Vda. de Javellana Foundation" was established and duly registered in the Securities and Exchange Commission under Reg. No. 0100027 for the following principal purposes:

The Foundation has four (4) high school scholars in Guiso Barangay High School, the site of which was donated by the Foundation. The School has been selected as the Pilot Barangay High School for Region VI.

1. To provide for the establishment and/or setting up of scholarships for such deserving students as the Board of Trustees of the Foundation may decide of at least one scholar each to study at West Visayas State College, and the University of the Philippines in the Visayas both located in Iloilo City.

The Foundation has a special scholar, Fr. Elbert Vasquez, who would be ordained this year. He studied at St. Francis Xavier Major Regional Seminary at Davao City. The Foundation likewise is a member of the Redemptorist Association that gives yearly donations to help poor students who want to become Redemptorist priests or brothers. It gives yearly awards for Creative writing known as the Esteban Javellana Award.

2. To provide a scholarship for at least one scholar for St. Clements Redemptorist Community for a deserving student who has the religious vocation to become a priest. 3. To foster, develop, and encourage activities that will promote the advancement and enrichment of the various fields of educational endeavors, especially in literary arts. Scholarships provided for by this foundation may be named after its benevolent benefactors as a token of gratitude for their contributions.

Further, the Foundation had constructed the Esteban S. Javellana Multi-purpose Center at the West Visayas State University for teachers' and students' use, and has likewise contributed to religious civic and cultural fund-raising drives, amongst other's. (p. 10, Rollo)

4. To direct or undertake surveys and studies in the community to determine community needs and be able to alleviate partially or totally said needs.

Having agreed to contribute her share of the decedent's estate to the Foundation, Concordia is obligated to honor her commitment as Celedonia has honored hers.

5. To maintain and provide the necessary activities for the proper care of the Solivio-Javellana mausoleum at Christ the King Memorial Park, Jaro, Iloilo City, and the Javellana Memorial at the West Visayas State College, as a token of appreciation for the contribution of the estate of the late Esteban S. Javellana which has made this foundation possible. Also, in perpetuation of his Roman Catholic beliefs and those of his mother, Gregorian masses or their equivalents will be offered every February and October, and Requiem masses every February 25th and October llth, their death anniversaries, as part of this provision.

WHEREFORE, the petition for review is granted. The decision of the trial court and the Court of Appeals are hereby SET ASIDE. Concordia J. Villanueva is declared an heir of the late Esteban Javellana, Jr. entitled to one-half of his estate. However, comformably with the agreement between her and her co-heir, Celedonia Solivio, the entire estate of the deceased should be conveyed to the "Salustia Solivio Vda. de Javallana Foundation," of which both the petitioner and the private respondent shall be trustees, and each shall be entitled to nominate an equal number of trustees to constitute the Board of Trustees of the Foundation which shall administer the same for the purposes set forth in its charter. The petitioner, as administratrix

6. To receive gifts, legacies, donations, contributions, endowments and financial aids or loans from whatever source, to invest and reinvest the funds, collect the income thereof and pay or

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of the estate, shall submit to the probate court an inventory and accounting of the estate of the deceased preparatory to terminating the proceedings therein. SO ORDERED. Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

G.R. No. L-15737

February 28, 1962

LEONOR VILLAFLOR VDA. DE VILLANUEVA, plaintiff-appellant, vs. DELFIN N. JUICO, in his capacity as Judicial Administrator of the testate estate of FAUSTA NEPOMUCENO, defendant-appellee. Amado G. Salazar for Sycip, Salazar, Luna and Associates for defendant-appellee.

plaintiff-appellant.

REYES, J.B.L., J.: Subject to this direct appeal to us on points of law is the decision of the Court of First Instance of Rizal, in its Civil Case No. Q-2809, dismissing plaintiff-appellant's complaint for the recovery of certain properties that were originally owned by the plaintiff's granduncle, Nicolas Villaflor, and which he granted to his widow, Doña Fausta Nepomuceno, bequeathing to her "su uso y posesion mientras viva y no se case en segundas nupcias". The following facts appear of record: On October 9, 1908, Don Nicolas Villaflor, a wealthy man of Castillejos, Zambales, executed a will in Spanish in his own handwriting, devising and bequeathing in favor of his wife, Dona Fausta Nepomuceno, one-half of all his real and personal properties, giving the other half to his brother Don Fausto Villaflor. Clause 6th, containing the institution of heirs, reads as follows: . SEXTO — En virtud de las facultades que me conceden las leyes, instituyo per mis unicos y universales herederos de todos mis derechos y acciones a mi hermano D. Fausto Villaflor y a mi esposa Da. Fausta Nepomuceno para que partan todos mis bienes que me pertenescan, en iguales partes, para despues de mi muerte, exceptuando las donaciones y legados que, abajo mi mas expontanea voluntad, lo hago en la forma siguiente: . SEPTIMO: — Lego para dispues de mi muerte a mi esposa Da. Fausta Nepomuceno, en prueba de mi amor y carino, los bienes, alhajas y muebles que a continuacion se expresan; . OCTAVO: — Que estos legades disfrutaria mi referida esposa Da. Fausta Nepomuceno su uso y posesion mientras viva y no se case en segundas nupcias, de la contrario, pasara a ser propiedad estos dichos legados de mi sobrina nieta Leonor Villaflor. The 12th clause of the will provided, however, that Clauses 6th and 7th thereof would be deemed annulled from the moment he bore any child with Doña Fausta Nepomuceno. Said Clause 12th reads as follows: . DUODECIMO: — Quedan anulados las parrafos 6.0 y 7.0 de este testamento que tratan de institucion de herederos y los legados que se haran despues de mi muerte a favor de mi

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esposa, en el momento que podre tener la dicha de contrar con hijo y hijos legitimos o legitimados, pues estos, conforme a ley seran mis herederos.

lifetime. This is in contrast with the remainder of the estate in which she was instituted universal heir together with the testator's brother (clause 6). 1äwphï1.ñët

Don Nicolas Villaflor died on March 3, 1922, without begetting any child with his wife Doña Fausta Nepomuceno. The latter, already a widow, thereupon instituted Special Proceeding No. 203 of the Court of First Instance of Zambales, for the settlement of her husband's estate and in that proceeding, she was appointed judicial administratrix. In due course of administration, she submitted a project of partition, now Exhibit "E". In the order of November 24, 1924, now exhibit "C", the probate court approved the project of partition and declared the proceeding closed. As the project of partition, Exhibit "E", now shows Doña Fausta Nepomuceno received by virtue thereof the ownership and possession of a considerable amount of real and personal estate. By virtue also of the said project of partition, she received the use and possession of all the real and personal properties mentioned and referred to in Clause 7th of the will. The order approving the project of partition (Exh. "C"), however, expressly provided that approval thereof was "sin perjuicio de lo dispuesto en la clausula 8.o del testamento de Nicolas Villaflor." .

SEXTO: — En virtud de las facultades que me conceden las leyes, instituyo por mis unicos y universales herederos de todos mis derechos y acciones a mi hermano D. Fausto Villaflor y a mi esposa Da. Fausta Nepomuceno para que parten todos mis bienes que me pertenescan, en iguales partes, para despues de mi muerte, exceptuando las donaciones y legados que, abajo mi mas expontanea voluntad, lo hago en la forma siguiente. The court below, in holding that the appellant Leonor Villaflor, as reversionary legatee, could succeed to the properties bequeathed by clause 7 of the testament only in the event that the widow remarried, has unwarrantedly discarded the expression "mientras viva," and considered the words "uso y posesion" as equivalent to "dominio" (ownership). In so doing, the trial court violated Article 791 of the Civil Code of the Philippines, as well as section 59 of Rule 123 of the Rules of Court. ART. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that one is to be preferred which will prevent intestacy." .

On May 1, 1956, Doña Fausta Nepomuceno died without having contracted a second marriage, and without having begotten any child with the deceased Nicolas Villaflor. Her estate is now being settled in Special Proceeding No. Q-1563 in the lower court, with the defendant Delfin N. Juico as the duly appointed and qualified judicial administrator.

SEC. 59. Instrument construed so as to give effect to all provisions. — In the construction of an instrument where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all." .

The plaintiff Leonor Villaflor Vda. de Villanueva is admitted to be the same Leonor Villaflor mentioned by Don Nicolas Villaflor in his will as his "sobrina nieta Leonor Villaflor".

Speculation as to the motives of the testator in imposing the conditions contained in clause 7 of his testament should not be allowed to obscure the clear and unambiguous meaning of his plain words, which are over the primary source in ascertaining his intent. It is well to note that if the testator had intended to impose as sole condition the non-remarriage of his widow, the words "uso y posesion mientras viva" would have been unnecessary, since the widow could only remarry during her own lifetime.

Plaintiff Leonor Villaflor instituted the present action against the administrator of the estate of the widow Fausta Nepomuceno, on February 8, 1958, contending that upon the widow's death, said plaintiff became vested with the ownership of the real and personal properties bequeathed by the late Nicolas Villaflor to clause 7 of his will, pursuant to its eight (8th) clause. Defendant's position, adopted by the trial court, is that the title to the properties aforesaid became absolutely vested in the widow upon her death, on account of the fact that she never remarried.

The Civil Code, in Article 790, p. 1 (Article 675 of the Code of 1889), expressly enjoins the following: .

We agree with appellant that the plain desire and intent of the testator, as manifested in clause 8 of his testament, was to invest his widow with only a usufruct or life tenure in the properties described in the seventh clause, subject to the further condition (admitted by the appellee) that if the widow remarried, her rights would thereupon cease, even during her own lifetime. That the widow was meant to have no more than a life interest in those properties, even if she did not remarry at all, is evident from the expressions used by the deceased "uso y posesion mientras viva" (use and possession while alive) in which the first half of the phrase "uso y posesion" instead of "dominio" or "propiedad") reinforces the second ("mientras viva"). The testator plainly did not give his widow the full ownership of these particular properties, but only the right to their possession and use (or enjoyment) during her

ART. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained." . Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense. (675a) In consonance with this rule, this Supreme Court has laid the doctrine in In re Estate of Calderon, 26 Phil., 233, that the intention and wishes of the testator, when clearly expressed in his will, constitute the fixed law of interpretation, and all questions raised at the trial, relative to its execution and fulfillment, must be settled in accordance therewith, following the plain

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and literal meaning of the testator's words, unless it clearly appears that his intention was otherwise. The same rule is adopted by the Supreme Court of Spain (TS. Sent. 20 Marzo 1918; 28 Mayo 1918; 30 Abril 1913; 16 Enero 1915; 23 Oct. 1925). La voluntad del testador, clara, precisa y constantemente expresada al ordenar su ultimo voluntad, es ley unica, imperativa y obligatoria que han de obedecer y cumplir fieldmente albaceas, legatarios y heredera, hoy sus sucesores, sin que esa voluntad patente, que no ha menester de interpretaciones, pues no ofrece la menor duda, pueda sustituirse, pues no ofrece la menor duda, pueda sustituirse por ningun otro criterio de alguna de los interesados, ni tampoco por el judicial. (Tribunal Supremo of Spain, Sent. 20 March 1918) .

Broce vs Marcellana CA L-10896-R, June 21, 1954 (Remember that it only applies to the free portion of the estate of wife not to the legitime)

The American decisions invoked by appellee in his brief inapplicable, because they involve cases where the only condition imposed on the legatee was that she should remain a widow. As already shown, the testament of Don Nicolas Villaflor clearly and unmistakably provided that his widow should have the possession and use of the legacies while alive and did not remarry. It necessarily follows that by the express provisions of the 8th clause of his will, the legacies should pass to the testator's "sobrinanieta", appellant herein, upon the widow's death, even if the widow never remarried in her lifetime. Consequently, the widow had no right to retain or dispose of the aforesaid properties, and her estate is accountable to the reversionary legatee for their return, unless they had been lost due to fortuitous event, or for their value should rights of innocent third parties have intervened.

Doctrine: The condition is for the surviving spouse, should he remarry, to choose a relative of the deceased spouse within the 6th degree. FACTS: Wife provided in her last will and testament: “I want and I direct my husband that I am dead, and he should want to remarry, he should choose a relative of mine within the 6 th degree, and if he disregard this wish of mine, my brothers and sisters will have the right to claim or recover my properties as if they were only the heirs.” Husband however, one month prior to his death, married another woman who was not within the 6th degree of the deceased spouse, notwithstanding the fact that there were 3 of them available.

PREMISES CONSIDERED, the decision appealed from is reversed, and the appellant Leonor Villaflor Vda. de VILLANUEVA is declared entitled to the ownership and fruits of the properties described in clause 7 of the will or testament, from the date of the death of Doña Fausta Nepomuceno. The records are ordered remanded to the court of origin for liquidation, accounting and further proceedings conformably to this decision. Costs against the Administrator-appellee.

ISSUE: Is the condition imposed in the will for the husband to marry one of the relatives of his late wife within the 6th degree against good morals? HELD: Article 793 (now Article 874) of the old Civil Code which was in force that time provides: “An absolute condition of not contracting a first or subsequent marriage shall be disregarded unless such condition has been imposed on the widower or widow by the deceased spouse, or by the ascendants or descendants of the latter”.

Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Barrera, Paredes, Dizon and De Leon, JJ., concur. Labrador, J., took no part.

Thus, the condition is valid. Undoubtedly, the purpose of the lawmakers was to preserve the property of the testator in favor of her nearest of kin in case of non-compliance with the condition. In the instant case, the heirs of the husband are not entitled to any of the properties which he inherited from his late wife because her heirs are entitled to recover all the properties which the husband received because of his failure to marry any of her relatives within the 6th degree.

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