Succession Cases

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-8437

November 28, 1956

ESTATE OF K. H. HEMADY , deceased ,

vs. LUZON SURETY CO., INC., claimant-appellant .

DECISION

 REYES, J. B. L., L., J.:

Appeal by Luzon Surety Co., Inc., from an order of the Court of First Instance of Rizal, presided by Judge Hermogenes Caluag, dismissing its claim against the Estate of K. H. Hemady (Special Proceeding No. Q -293) for failure to state a cause of action. The Luzon Surety Co. had filed a claim against the Estate based on twenty different indemnity agreements, or counter bonds, each subscribed by a distinct principal and  by the deceased K. H. Hemady, a surety solidary guarantor) in all of them, in consideration of the Luzon Surety Co.’s of hav ing guaranteed, the various principals in favor of different creditors. The twenty counterbonds, or indemnity agreements, all contained the following stipulations: “Premiums. –   As consideration for this suretyship, the undersigned jointly and severally, agree to pay the COMPANY the sum of ________________ (P______)  pesos, Philippines Currency, in advance as premium there of for every __________ months or fractions thereof, this ________ or any renewal or substitution thereof is in effect.

Indemnity. –  The  The undersigned, jointly and severally, agree at all times to indemnify the COMPANY and keep it indemnified and hold and save it harmless from and against any and all damages, losses, costs, stamps, taxes, penalties, charges, and expenses of whatsoever kind and nature which the COMPANY shall or may, at any time sustain or incur in consequence of having become surety upon this bond or any extension, renewal, substitution or alteration thereof made at the instance of the undersigned or any of them or any order executed on behalf of the undersigned or any of them; and to pay, reimburse and make good to the COMPANY, its successors and assigns, all sums and amount of money which it or its representatives shall pay or cause to be paid, or become liable to pay, on account of the undersigned or any of them, of whatsoever kind and nature, including 15% of the amount involved in the

litigation or other matters growing out of or connected therewith for counsel or attorney’s fees, but in no case less than P25. It is hereby fu rther agreed that in case of extension or renewal of this ________ we equally bind ourselves for the payment thereof under the same terms and conditions as above mentioned without the necessity of executing another indemnity agreement for the purpose and that we hereby equally waive our right to be notified of any renewal or extension of this ________ which may be granted under this indemnity agreement. Interest on amount paid by the Company.  –  Any  Any and all sums of money so paid by the company shall bear interest at the rate of 12% per annum which interest, if not paid, will be accummulated and added to the capital quarterly order to earn the same interests as the capital and the total sum thereof, the capital and interest, shall be paid to the COMPANY as soon as the COMPANY shall have become liable therefore, whether it shall have paid out such sums of money or any part thereof or not. xxx

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Waiver. –  It  It is hereby agreed upon by and between the undersigned that any question which may arise between them by reason of this document and which has to be submitted for decision to Courts of Justice shall be brought before the Court of competent jurisdiction in the City of Manila, waiving for this purpose any other venue. Our right to be notified of the acceptance and approval of this indemnity agreement is hereby likewise waived. xxx

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Our Liability Hereunder.  –  It  It shall not be necessary for the COMPANY to bring suit against the principal upon his default, or to exhaust the property of the principal, but the liability hereunder of the undersigned indemnitor shall be jointly and severally, a  primary one, the same as that of the principal, and and shall be exigible exigible immediately upon the occurrence of such default.” (Rec. App. pp. 98 - 102.) The Luzon Surety Co., prayed for allowance, as a contingent claim, of the value of the twenty bonds it had executed in consideration of the counterbonds, and further asked for judgment for the unpaid premiums and documentary stamps affixed to the  bonds, with 12 per cent interest thereon. thereon. Before answer was filed, and upon motion of the administratrix of Hemady’s estate, the lower court, by order of September 23, 1953, dismissed the claims of Luzon Surety Co., on two grounds: (1) that the premiums due and cost of documentary stamps were not contemplated under the indemnity agreements to be a part of the undertaking of the guarantor (Hemady), since they were not liabilities incurred after the execution of the counterbonds; and (2) that “whatever losses may occur after Hemady’s death, are not chargeable to his estate, because upon his death he ceased to be guarantor.”

Taking up the latter point first, since it is the one more far reaching in effects, the reasoning of the court below ran as follows:

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“The administratrix further contends that upon the death of Hemady, his liability as a guarantor terminated, and therefore, in the absence of a showing that a loss or damage was suffered, the claim cannot be considered contingent. This Court believes that there is merit in this contention and finds support in Article 2046 of the new Civil Code. It should be noted that a new requirement has been added for a person to qualify as a guarantor, that is: integrity. As correctly pointed out by the Administratrix, integrity is something purely personal and is not transmissible. Upon the death of Hemady, his integrity was not transmitted to his estate or successors. Whatever loss therefore, may occur after Hemady’s death, are no t chargeable to his estate because upon his death he ceased to be a guarantor.

as third parties with respect to a contract to which the deceased was a party, touching the estate of the deceased (Barrios vs. Dolor, 2 Phil. 44).

Another clear and strong indication that the surety company has exclusively relied on the personality, character, honesty and integrity of the now deceased K. H. Hemady, was the fact that in the printed form of the indemnity agreement there is a paragraph entitled ‘Security by way of first mortgage, which was expressly waived and renounced by the security company. The security company has not demanded from K. H. Hemady to comply with this requirement of giving security by way of first mortgage. In the supporting papers of the claim presented by Luzon Surety Company, no real property was mentioned in the list of properties mortgaged which appears at the back of the indemnity agreem ent.” (Rec. App., pp. 407 -408).

(See also Galasinao vs. Austria, 51 Off. Gaz. (No. 6) p. 2874 and de Guzman vs. Salak, 91 Phil., 265)

We find this reasoning untenable. Under the present Civil Code (Article 1311), as well as under the Civil Code of 1889 (Article 1257), the rule is that  –  “Contracts take effect only as between the parties, their assigns and heirs, except in the case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of l aw.”

While in our successional system the responsibility of the heirs for the debts of their decedent cannot exceed the value of the inheritance they receive from him, the  principle remains intact that these heirs succeed not only to the rights of the deceased deceased  but also to his obligations. Articles 774 and 776 of the New Civil Code (and (and Articles 659 and 661 of the preceding one) expressly so provide, thereby confirming Article 1311 already quoted. “ART. 774. –  Succession   Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law.” “ART. 776. –  The   The inheritance includes all the property, rights and obligations of a  person which are not extinguished extinguished by his death.”

In Mojica vs. Fernandez, 9 Phil. 403, this Supreme Court ruled: “Under the Civil Code the heirs, by virtue of the rights of succession are subrogated to all the rights and obligations of the deceased (Article 661) and can not be regarded

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“The principle on which these decisions rest is not affected by the provisions of the new Code of Civil Procedure, and, in accordance with that principle, the heirs of a deceased person cannot be held to be “third persons” in relation to any contracts touching the real estate of their decedent which comes in to their hands by right of inheritance; they take such property subject to all the obligations resting thereon in the hands of him from whom they derive their rights.”

The binding effect of contracts upon the heirs of the deceased party is not altered by the provision in our Rules of Court that money debts of a deceased must be liquidated and paid from his estate before the residue is distributed among said heirs (Rule 89). The reason is that whatever payment is thus made from the estate is ultimately a  payment by the heirs and distributees, since the amount of the paid claim in fact diminishes or reduces the shares that the heirs would have been entitled to receive. Under our law, therefore, the general rule is that a party’s contractual rights and obligations are transmissible to the successors. The rule is a consequence of the  progressive “depersonalization” of patrimonial rights and duties that, as observed by Victorio Polacco, has characterized the history of these institutions. From the Roman concept of a relation from person to person, the obligation has evolved into a relation from patrimony to patrimony, with the persons occupying only a representative  position, barring those rare cases where the obligation is strictly personal, i.e., is contracted intuitu personae, in consideration of its performance by a specific person and by no other. The transition is marked by the disappearance of the imprisonment for debt. Of the three exceptions fixed by Article 1311, the nature of the obligation of the surety or guarantor does not warrant the conclusion that his peculiar individual qualities are contemplated as a principal inducement for the contract. What did the creditor Luzon Surety Co. expect of K. H. Hemady when it accepted the latter as surety in the counterbonds? Nothing but the reimbursement of the moneys that the Luzon Surety Co. might have to disburse on account of the obligations of the principal debtors. This reimbursement is a payment of a sum of money, resulting from an obligation to give; and to the Luzon Surety Co., it was indifferent that the reimbursement should be made  by Hemady himself or by some one else in his behalf, so long as the money was paid to it. The second exception of Article 1311, p. 1, is intransmissibility by stipulation of the  parties. Being exceptional and contrary to the general rule, this intransmissibility should not be easily implied, but must be expressly established, or at the very least,

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“The administratrix further contends that upon the death of Hemady, his liability as a guarantor terminated, and therefore, in the absence of a showing that a loss or damage was suffered, the claim cannot be considered contingent. This Court believes that there is merit in this contention and finds support in Article 2046 of the new Civil Code. It should be noted that a new requirement has been added for a person to qualify as a guarantor, that is: integrity. As correctly pointed out by the Administratrix, integrity is something purely personal and is not transmissible. Upon the death of Hemady, his integrity was not transmitted to his estate or successors. Whatever loss therefore, may occur after Hemady’s death, are no t chargeable to his estate because upon his death he ceased to be a guarantor.

as third parties with respect to a contract to which the deceased was a party, touching the estate of the deceased (Barrios vs. Dolor, 2 Phil. 44).

Another clear and strong indication that the surety company has exclusively relied on the personality, character, honesty and integrity of the now deceased K. H. Hemady, was the fact that in the printed form of the indemnity agreement there is a paragraph entitled ‘Security by way of first mortgage, which was expressly waived and renounced by the security company. The security company has not demanded from K. H. Hemady to comply with this requirement of giving security by way of first mortgage. In the supporting papers of the claim presented by Luzon Surety Company, no real property was mentioned in the list of properties mortgaged which appears at the back of the indemnity agreem ent.” (Rec. App., pp. 407 -408).

(See also Galasinao vs. Austria, 51 Off. Gaz. (No. 6) p. 2874 and de Guzman vs. Salak, 91 Phil., 265)

We find this reasoning untenable. Under the present Civil Code (Article 1311), as well as under the Civil Code of 1889 (Article 1257), the rule is that  –  “Contracts take effect only as between the parties, their assigns and heirs, except in the case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of l aw.”

While in our successional system the responsibility of the heirs for the debts of their decedent cannot exceed the value of the inheritance they receive from him, the  principle remains intact that these heirs succeed not only to the rights of the deceased deceased  but also to his obligations. Articles 774 and 776 of the New Civil Code (and (and Articles 659 and 661 of the preceding one) expressly so provide, thereby confirming Article 1311 already quoted. “ART. 774. –  Succession   Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law.” “ART. 776. –  The   The inheritance includes all the property, rights and obligations of a  person which are not extinguished extinguished by his death.”

In Mojica vs. Fernandez, 9 Phil. 403, this Supreme Court ruled: “Under the Civil Code the heirs, by virtue of the rights of succession are subrogated to all the rights and obligations of the deceased (Article 661) and can not be regarded

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“The principle on which these decisions rest is not affected by the provisions of the new Code of Civil Procedure, and, in accordance with that principle, the heirs of a deceased person cannot be held to be “third persons” in relation to any contracts touching the real estate of their decedent which comes in to their hands by right of inheritance; they take such property subject to all the obligations resting thereon in the hands of him from whom they derive their rights.”

The binding effect of contracts upon the heirs of the deceased party is not altered by the provision in our Rules of Court that money debts of a deceased must be liquidated and paid from his estate before the residue is distributed among said heirs (Rule 89). The reason is that whatever payment is thus made from the estate is ultimately a  payment by the heirs and distributees, since the amount of the paid claim in fact diminishes or reduces the shares that the heirs would have been entitled to receive. Under our law, therefore, the general rule is that a party’s contractual rights and obligations are transmissible to the successors. The rule is a consequence of the  progressive “depersonalization” of patrimonial rights and duties that, as observed by Victorio Polacco, has characterized the history of these institutions. From the Roman concept of a relation from person to person, the obligation has evolved into a relation from patrimony to patrimony, with the persons occupying only a representative  position, barring those rare cases where the obligation is strictly personal, i.e., is contracted intuitu personae, in consideration of its performance by a specific person and by no other. The transition is marked by the disappearance of the imprisonment for debt. Of the three exceptions fixed by Article 1311, the nature of the obligation of the surety or guarantor does not warrant the conclusion that his peculiar individual qualities are contemplated as a principal inducement for the contract. What did the creditor Luzon Surety Co. expect of K. H. Hemady when it accepted the latter as surety in the counterbonds? Nothing but the reimbursement of the moneys that the Luzon Surety Co. might have to disburse on account of the obligations of the principal debtors. This reimbursement is a payment of a sum of money, resulting from an obligation to give; and to the Luzon Surety Co., it was indifferent that the reimbursement should be made  by Hemady himself or by some one else in his behalf, so long as the money was paid to it. The second exception of Article 1311, p. 1, is intransmissibility by stipulation of the  parties. Being exceptional and contrary to the general rule, this intransmissibility should not be easily implied, but must be expressly established, or at the very least,

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clearly inferable from the provisions of the contract itself, and the text of the agreements sued upon nowhere indicate that they are non -transferable. “(b) Intransmisibilidad por pacto.  –  Lo  Lo general es la transmisibilidad de darechos y obligaciones; le excepcion, la intransmisibilidad. Mientras nada se diga en contrario impera el principio de la tr ansmision, como elemento natural a toda relacion juridica, salvo las personalisimas. Asi, para la no transmision, es menester el pacto expreso,  porque si no, lo convenido convenido entre partes trasciende a sus herederos. herederos.

Siendo estos los continuadores de la personalidad del causante, sobre ellos recaen los efectos de los vinculos juridicos creados por sus antecesores, y para evitarlo, si asi se quiere, es indespensable convension terminante en tal sentido. Por su esencia, el derecho y la obligacion tienden a ir más allá de las personas que les dieron vida, y a ejercer presion sobre los sucesores de esa persona; cuando no se quiera esto, se impone una estipulacion limitativa expresamente de la transmisibilidad o de cuyos tirminos claramente se deduzca la concresion del concreto a las mismas  personas que lo otorgon.” (Scaevola, Codigo Civil, Tomo XX, p. 541-542) ( emphasis supplied.) Because under the law (Article 1311), a person who enters into a contract is deemed to have contracted for himself and his heirs and assigns, it is unnecessary for him to expressly stipulate to that effect; hence, his failure to do so is no sign that he intended his bargain to terminate upon his death. Similarly, that the Luzon Surety Co., did not require bondsman Hemady to execute a mortgage indicates nothing more than the company’s faith and confidence in the financial stability of the surety, but not that his obligation was strictly personal. The third exception to the transmissibility of obligations under Article 1311 exists when they are “not transmissible by operation of law”. The provision makes reference to those cases where the law expresses that the rights or obligations are extinguished  by death, as as is the case in legal support (Article 300), parental authority authority (Article 327), usufruct (Article 603), contracts for a piece of work (Article 1726), partnership (Article 1830 and agency (Article 1919). By contract, the articles of the Civil Code that regulate guaranty or suretyship (Articles 2047 to 2084) contain no provision that the guaranty is extinguished upon the death of the guarantor or the surety. The lower court sought to infer such a limitation from Art. 2056, to the effect that “one who is obliged to fu rnish a guarantor must present a person who possesses integrity, capacity to bind himself, and sufficient property to answer for the obligation which he guarantees”. It will be noted, however, that the law requires these qualities to be present only at the time of the perfection of the contract of guaranty. It is selfevident that once the contract has become perfected and binding, the supervening incapacity of the guarantor would not operate to exonerate him of the eventual liability he has contracted; and if that be true of his capacity to bind himself, it should also be true of his integrity, which is a quality mentioned in the article alongside the capacity. The foregoing concept is confirmed by the next Article 2057, that runs as follows:

“ART. 2057. –   If the guarantor should be convicted in first instance of a crime involving dishonesty or should become insolvent, the creditor may demand another who has all the qualifications required in the preceding article. The case is excepted where the creditor has required and stipulated that a specified person should be guarantor.”

From this article it should be immediately apparent that the supervening dishonesty of the guarantor (that is to say, the disappearance of his integrity after he has become  bound) does not terminate the contract but merely entitles the creditor to demand a replacement of the guarantor. But the step remains optional in the creditor: it is his right, not his duty; he may waive it if he chooses, and hold the guarantor to his bargain. Hence Article 2057 of the present Civil Code is incompatible with the trial court’s stand that the requirement of integrity in the guarantor or surety makes the latter’s undertaking strictly personal, so linked to his individuality that the guaranty automatically terminates upon his death. The contracts of suretyship entered into by K. H. Hemady in favor of Luzon Surety Co. not being rendered intransmissible due to the nature of the undertaking, nor by the stipulations of the contracts themselves, nor by provision of law, his eventual liability thereunder necessarily passed upon his death to his heirs. The contracts, therefore, give rise to contingent claims provable against his estate under section 5, Rule 87 (2 Moran, 1952 ed., p. 437; Gaskell & Co. vs. Tan Sit, 43 Phil. 810, 814). “The most common example of the contigent claim is that which arises when a person is bound as surety or guarantor for a principal who is insolvent or dead. Under the ordinary contract of suretyship the surety has no claim whatever against his principal until he himself pays something by way of satisfaction upon the obligation which is secured. When he does this, there instantly arises in favor of the surety the right to compel the principal to exonerate the surety. But until the surety has contributed something to the payment of the debt, or has performed the secured obligation in whole or in part, he has no right of action against anybody  –  no  no claim that could be reduced to judgment. (May vs. Vann, 15 Pla., 553; Gibson vs. Mithell, 16 Pla., 519; Maxey vs. Carter, 10 Yarg. [Tenn.], 521 Reeves vs. Pulliam, 7 Baxt. [Tenn.], 119; Ernst vs. Nou, 63 Wis., 134.)”

For defendant administratrix it is averred that the above doctrine refers t o a case where the surety files claims against th e estate of the principal debtor; and it is urged that the rule does not apply to the case before us, where the late Hemady was a surety, not a  principal debtor. The argument evinces a superficial view of the relations between  parties. If under the Gaskell ruling, the Luzon Surety Co., as guarantor, could file a contingent claim against the estate of the principal debtors if the latter should die, there is absolutely no reason why it could not file such a claim against the estate of Hemady, since Hemady is a solidary co-debtor of his principals. What the Luzon Surety Co. may claim from the estate of a principal debtor it may equally claim from the estate of Hemady, since, in view of the existing solidarity, the latter does not even enjoy the benefit of exhaustion of the assets of the principal debtor.

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The foregoing ruling is of course without prejudice to the remedies of the administratrix against the principal debtors under Articles 2071 and 2067 of the New Civil Code. Our conclusion is that the solidary guarantor’s   liability is not extinguished by his death, and that in such event, the Luzon Surety Co., had the right to file against the estate a contingent claim for reimbursement. It becomes unnecessary now to discuss the estate’s liability for premiums and stamp taxes, because irrespective of the solution to this question, the Luzon Surety’s claim did state a cause of action, and its dismissal was erroneous. WHEREFORE, the order appealed from is reversed, and the records are ordered remanded to the court of origin, with i nstructions to proceed in accordance with law. Costs against the Administratrix- Appellee. So ordered.

 Paras, C.J., Bengzon, Padilla, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Concepcion,  Endencia and Felix, JJ., JJ., concur.

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G.R. No. 82233 March 22, 1990 JOSE BARITUA and EDGAR BITANCOR, petitioners, vs. HONORABLE COURT OF APPEALS, NICOLAS NACARIO and VICTORIA RONDA NACARIO, respondents.

 Domingo Lucenario for petitioners. petitioners.  Ernesto A. Atienza for private private respondents. SARMIENTO, J. :

This petition for review on certiorari assails as erroneous and contrary to existing relevant laws and applicable jurisprudence the decision 1 of the Court of Appeals dated December 11, 1987 which reversed and set aside that of the Regional Trial Court, Branch XXXII, at Pili, Camarines Sur. 2 The challenged decision adjudged the petitioners liable to the private respondents in the total amount of P20,505.00 and for costs. The facts are as follows: In the evening of November 7, 1979, the tricycle then being driven by Bienvenido  Nacario along the national highway highway at Barangay San Cayetano, Cayetano, in Baao, Camarines Sur, figured in an accident with JB Bus No. 80 driven by petitioner Edgar Bitancor and owned and operated by petitioner Jose Baritua. 3 As a result of that accident Bienvenido and his passenger died 4 and the tricycle was damaged. 5 No criminal case arising from the incident was ever instituted. 6 Subsequently, on March 27, 1980, as a consequence of the extra-judicial settlement of the matter negotiated by the petitioners and the bus insurer  —  Philippine  Philippine First Insurance Company, Incorporated (PFICI for brevity)  —  Bienvenido  Bienvenido Nacario's widow, Alicia Baracena Vda. de Nacario, received P18,500.00. In consideration of the amount she received, Alicia executed on March 27, 1980 a "Release of Claim" in favor of the petitioners and PFICI, releasing and forever discharging them from all actions, claims, and demands arising from the accident which resulted in her husband's death and the damage to the tricycle which the deceased was then driving. Alicia likewise executed an affidavit of desistance in which she formally manifested her lack of interest in instituting any case, either civil or criminal, against the  petitioners. 7

On September 2, 1981, or about one year and ten months from the date of the accident on November 7, 1979, the private respondents, who are the parents of Bienvenido Nacario, filed a complaint for damages against the petitioners with the then Court of First Instance of Camarines Sur. 8 In their complaint, the private respondents alleged that during the vigil for their deceased son, the petitioners through their representatives promised them (the pri vate respondents) that as extra judicial settlement, they shall be indemnified for the death of their son, for the funeral expenses incurred by reason thereof, and for the damage for the tricycle the  purchase price of which they (the private respondents) only loaned loaned to the victim. The petitioners, however, reneged on their promise and instead negotiated and settled their obligations with the long-estranged wife of their late son. The Nacario spouses prayed that the defendants, petitioners herein, be ordered to indemnify them in the amount of P25,000.00 for the death of their son B ienvenido, P10,000.00 for the damaged tricycle, P25,000.00 for compensatory and exemplary damages, P5,000.00 for attorney's fees, and for moral damages. 9 After trial, the court a quo dismissed the complaint, holding that the payment by the defendants (herein petitioners) to the widow and her child, who are t he preferred heirs and successors-in-interest of the deceased Bienvenido to the exclusion of his  parents, the plaintiffs (herein private respondents), respondents), extinguished any claim against against the defendants (petitioners). 10 The parents appealed to the Court of Appeals which reversed the judgment of the trial court. The appellate court ruled that the release executed by Alicia Baracena Vda. de Nacario did not discharge the liability of the peti tioners because the case was instituted by the private respondents in their own capacity and not as "heirs, representatives, successors, and assigns" of Alicia; and Alicia could not have validly waived the damages being prayed for (by the private respondents) since she was not the one who suffered these damages arising from the death of their son. Furthermore, the appellate court said that the petitioners "failed to rebut the testimony of the appellants (private respondents) that they were the ones who bought the tricycle that was damaged in the incident. Appellants had the burden of proof of such fact, and they did establish such fact in their testimony . . . 11 Anent the funeral expenses, "(T)he expenses for the funeral were likewise shouldered by the appellants (the private respondents). This was never contradicted by the appellees (petitioners). . . . Payment (for these) were made by the appellants, therefore, the reimbursement must accrue in their favor. 12 Consequently, the respondent appellate court ordered the petitioners t o pay the  private respondents P10,000.00 P10,000.00 for the damage of the tricycle, tricycle, P5,000.00 for "complete" funeral services, P450.00 for cemetery lot, P55.00 for oracion adulto , and P5,000.00 for attorney's fees. 13 The petitioners moved for a reconsideration of the appellate court's decision 14 but their motion was denied. 15 Hence, this petition.

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The issue here is whether or not the respondent appellate court erred in holding that the petitioners are still liable to pay the private respondents the aggregate amount of P20,505.00 despite the agreement of extrajudicial settlement between the petiti oners and the victim's compulsory heirs.

Certainly there can be no question that Alicia and her son with the deceased are the successors in interest referred to in law as the persons authorized to receive  payment. The Civil Code states: Article 887. The following are compulsory heirs:

The petition is meritorious. Obligations are extinguished by various modes among them being by payment. Article 1231 of the Civil Code of the Philippines provides:

1. Legitimate children and descendants, with respect to their legitimate parents and ascendants;

Art. 1231. Obligations are extinguished:

2. In default of the foregoing, legitimate parents and ascendants with respect to their legitimate children and decendants;

(1) By payment or performance ;

3. The widow or widower;

(2) By the loss of the thing due;

4. Acknowledged natural children and natural children by l egal fiction;

(3) By the condonation or remission of the debt; 5. Other illegitimate children referred to in Article 287. (4) By the confusion or merger of the rights of creditor and debtor; (5) By compensation; (6) By novation. (Emphasis ours.) There is no denying that the petitioners had paid their obligation petition arising from the accident that occurred on November 7, 1979. The only question now is whether or not Alicia, the spouse and the one who received the petitioners' payment, is entitled to it. Article 1240 of the Civil Code of the Philippines enumerates the persons to whom  payment to extinguish an obligation should be made. Art 1240. Payment shall be made to the person in whose favor the obligation has been constituted, or his successor in interest, or any person authorized to receive it.

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. (Emphasis ours.) Article 985.  In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives. (Emphasis ours.) It is patently clear that the parents of the deceased succeed only when the latter dies without a legitimate descendant. On t he other hand, the surviving spouse concurs with all classes of heirs. As it has been established that Bienvenido was married to Alicia and that they begot a child, the private respondents are not successors-ininterest of Bienvenido; they are not compulsory heirs. The petitioners therefore acted correctly in settling their obligation with Alicia as the widow of Bienvenido and as the natural guardian of their lone child. This is so even if Alicia had been estranged from Bienvenido. Mere estrangement is not a legal ground for the disqualification of a surviving spouse as an heir of the deceased spouse.  Neither could the private respondents, as alleged creditors of Bienvenido, seek relief and compensation from the petitioners. While it may be true that the private

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respondents loaned to Bienvenido the purchase price of the damaged tricycle and shouldered the expenses for his funeral, the said purchase price and expenses are but money claims against the estate of their deceased son. 16 These money claims are not the liabilities of the petitioners who, as we have said, had been released by the agreement of the extra-judicial settlement they concluded with Alicia Baracena Vda. de Nacario, the victim's widow and heir, as well as the natural guardian of their child, her co-heir. As a matter of fact, she executed a "Release Of Claim" in favor of the petitioners.

10 Id . , 42-44.

WHEREFORE, the petition is GRANTED; the decision of the Court of Appeals is REVERSED and SET ASIDE and the decision of the Regional Trial Court is hereby REINSTATED. Costs against the private respondents.

14 Id . , 52-58.

SO ORDERED.

11 Id . , 50. 12 Id . 13 Id . , 45-51.

15 Id . , 61. 16 Rule 87, Section 1, Rules of Court;  see also, MORAN, 3 Comments on the Rules of Court, 479-480 (1980).

 Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.

Footnotes

1 Chua, Segundino G.,  J ., ponente, Ejercito, Bienvenido C., and Lapeña, Nicolas P., Jr.,  JJ ., concurring. 2 Judge Conchita Carpio-Rosales, presiding. 3 Rollo, 46. 4 Id . 5 Id . , 42. 6 Id . , 46. 7 Id . , 42. 8 Id . , 24. 9 Id . , 62-65.

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G.R. No. L-19281

June 30, 1965

IN THE MATTER OF THE INTESTATE ESTATE OF PEDRO SANTILLON, CLARO SANTILLON, petitioner-appellant, vs. PERFECTA MIRANDA, BENITO U. MIRANDA and ROSARIO CORRALES, oppositors-appellees.

Clodualdo P. Surio and Claro Santillon (in hi s own behalf) for petitioner -appellant.  Patricio M. Patajo for oppositors-appellees. BENGZON, C.J.:

This is an appeal from the order of the Court of First Instance of Pangasinan, specifying the respective shares of the principal parties herein in the intestate estate of Pedro Santillon. On November 21, 1953, Santillon died without testament in Tayug, Pangasinan, his residence, leaving one son, Claro, and his wife, Perfecta Miranda. During his marriage, Pedro acquired several parcels of land located i n that province. About four years after his death, Claro Santillon filed a petition for letters of administration. Opposition to said petition was entered by the widow Perfecta Miranda and the spouses Benito U. Miranda and Rosario Corrales on the following grounds: (a) that the properties enumerated in the petition were all conjugal, except three parcels which Perfecta Miranda claimed to be her exclusive properties; (b) that Perfecta Miranda by virtue of two documents had conveyed 3/4 of her undivided share in most of the properties enumerated in the petition to said spouses Benito and Rosario; (c) that administration of the estate was not necessary, there being a case for partition pending; and (d) that if administration was necessary at all, the oppositor Perfecta Miranda and not the petitioner was better qualified for the post. It appears that subsequently, oppositor Perfecta Miranda was appointed administratrix of the estate. On March 22, 1961, the court appointed commissioners to draft within sixty days, a  project of partition and distribution of all the properties of the deceased Pedro Santillon. On April 25, 1961, Claro filed a "Motion to Declare Share of Heirs" and to resolve the conflicting claims of the parties with respect to their respective rights in the estate. Invoking Art. 892 of the New Civil Code, he insisted that after deducting 1/2 from the conjugal properties is the conjugal share of Perfecta, the remaining 1/2

must be divided as follows: 1/4 for her and 3/4 for him. Oppositor Perfecta, on the other hand, claimed that besides her conjugal half, she was entitled under Art. 996 of the New Civil Code to another 1/2 of the remaining half. In other words, Claro claimed 3/4 of Pedro's inheritance, while Perfecta claimed 1/2. After due notice and hearing, the court, on June 28, 1961, issued an order, the dispositive portion of which reads: IN VIEW OF THE FOREGOING CONSIDERATIONS it is hereby ruled and ordered that in the intestate succession of the deceased Pedro Santillon, the surviving spouse Perfecta Miranda shall inherit ONE-HALF (1/2) share and the remaining ONE-HALF (1/2) share for the only son, Atty. Claro Santillon. This is after deducting the share of the widow as coowner of the conjugal properties. ... . From this order, petitioner Claro Santillon has appealed to this Court. Two questions of law are involved. The first, raised in Perfecta's Motion to Dismiss Appeal, is whether the order of the lower court is appealable. And the second, raised in appellant's lone assignment of error, is: How shall the estate of a person who dies intestate be divided when the only survivors are the spouse and one legitimate child? The First Issue : —  It is clear that the order of the lower court is final and, therefore, appealable to this Court.

Under Rule 109, sec. 1, a person may appeal in special proceedings from an order of the Court of First Instance where such order "determines ... the distributive share of the estate to which such person is entitled." The Second Issue : —  Petitioner rests his claim to 3/4 of his father's estate on Art. 892 of the New Civil Code which provides that:

If only the legitimate child or descendant of the deceased survives the widow or widower shall be entitled to one-fourth of the hereditary estate. ... . As she gets one-fourth, therefore, I get 3/4, says Claro. Perfecta, on the other hand, cites Art. 996 which provides: If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children.

Page 8 of 51

Replying to Perfecta's claim, Claro says the article is unjust and unequitable to the extent that it grants the widow the  same share as that of the children in intestate succession, whereas in testate, she is given 1/4 and the only child 1/2. Oppositor Perfecta Miranda, on the other hand, contends that Art. 996 should control, regardless of its alleged inequity, being as it is, a provision on intestate succession involving a surviving spouse and a legitimate child, inasmuch as in statutory construction, the plural word "children" includes t he singular "child." Art. 892 of the New Civil Code falls under the chapter on Testamentary Succession; whereas Art. 996 comes under the chapter on Legal or Intestate Succession. Such  being the case, it is obvious that Claro cannot rely on Art. 892 to support his claim to 3/4 of his father's estate. Art 892 merely fixes the legitime of the surviving spouse and Art. 888 thereof, the legitime of children in testate succession. While it may indicate the intent of the law with respect to the ideal shares that a child and a spouse should get when they concur with each other, it does not fix the amount of shares that such child and spouse are entitled to when intestacy occurs . Because if the latter happens, the pertinent provision on intestate succession shall apply, i.e., Art. 996. Some commentators of our New Civil Code seem to support Claro's contention; at least, his objection to fifty-fifty sharing. But others confirm the half and half idea of the Pangasinan court. This is, remember, intestate proceedings. In the New Civil Code's chapter on legal or intestate succession, the only article applicable is Art. 996. Our colleague, Mr. Justice J.B.L. Reyes, professor of Civil Law, is quoted as having expressed the opinion that under this article, when the widow survives with only one legitimate child, they share the estate in equal parts.  1 Senator Tolentino in his commentaries writes as follows: One child Surviving.  —  If there is only one legitimate child surviving with the spouse, since they share equally, one-half of the estate goes to the child and the other half goes to the surviving spouse. Although the law refers to "children or descendants," the rule in statutory construction that the plural can be understood to include the singular is applicable in this case. (Tolentino, Civil Code of the Philippines, Vol. III, p. 436.) The theory of those holding otherwise seems to be premised on these propositions: (a) Art. 996 speaks of "Children," therefore it does not apply when there is only one "child"; consequently Art. 892 (and Art. 888) should be applied, thru a process of  judicial construction and analogy; (b) Art. 996 is unjust or unfair because, whereas

in testate succession, the widow is assigned one-fourth only (Art. 892), she would get 1/2 in intestate. A. Children. —  It is a maxim of statutory construction that words in plural include the singular. 2 So Art. 996 could or should be read (and so applied) : "If the widow or widower and a legitimate child  are left, the surviving spouse has the same share as that of the child ." Indeed, if we refuse to apply the article to this case on the ground that "child" is not included in "children," the consequences would be tremendous, because "children" will not include "child" in the following articles: ART. 887. —  The following are compulsory heirs: (1) legitimate children and descendants ... . ART. 888. —  The legitime of legitimate children and descendants consists of one-half of the hereditary estate ... . ART. 896. —  Illegitimate children who may survive ... are entitled to onefourth of the hereditary estate ... . (See also Art. 901). In fact, those who say "children" in Art. 996 does not include "child" seem to be inconsistent when they argue from the premise that "in testate succession the only legitimate child gets one-half  and the widow, one-fourth." The inconsistency is clear, because the only legitimate child  gets one-half  under Art. 888, which speaks of "children," not "child." So i f "children" in Art. 888 includes "child," the same meaning should be given to Art. 996. B. Unfairness of Art. 996 . —  Such position, more clearly stated, is this: In testate succession, where there is only one child of the marriage, the child gets one-half, and the widow or widower one-fourth. But in intestate , if Art. 996 is applied now, the child gets one-half, and the widow or widower one-half . Unfair or inequitable, they insist. On this point, it is not correct to assume that in testate succession the widow or widower "gets only one-fourth." She or he may get one-half  —  if the testator so wishes. So, the law virtually leaves it to each of the spouses to decide (by testament, whether his or her only child shall get more than his or her survivor). Our conclusion (equal shares) seems a l ogical inference from the circumstance that whereas Article 834 of the Spanish Civil Code, from which Art. 996 was taken, contained two paragraphs governing two contingencies, the first, where t he widow or widower survives with legitimate children (general rule), and the second, where the widow or widower survives with only one child (exception), Art. 996 omitted to

Page 9 of 51

 provide for the second situation, thereby indicating the legislator's desire to  promulgate just one general rule applicable to both situations. The resultant division may be unfair as some writers explain  —  and this we are not called upon to discuss  —  but it is the clear mandate of the statute, which we are  bound to enforce. The appealed decision is affirmed. No costs in this instance. Concepcion, Reyes, J.B.L., Paredes, Dizon, Regala, Makalintal, Bengzon, J.P., and  Zaldivar, JJ., concur.  Bautista Angelo, J., took no part.  Barrera, J., is on leave. Footnotes 1

V. Francisco, Civil Code Annotated, Vol. III, p. 931.

2

82 C.J.S. 675, 676.

Page 10 of 51

G.R. No. L-23678

June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased. PEOPLE'S BANK and TRUST COMPANY,  executor. MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS,  oppositorsappellants, vs. EDWARD A. BELLIS, ET AL., heirs-appellees.

Vicente R. Macasaet and Jose D. Villena for oppositors appellants.  Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al. Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.  J. R. Balonkita for appellee People's Bank & Trust Company. Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman. BENGZON, J.P., J .:

This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30, 1964, approving the project of  partition filed by the executor in Civil Case No. 37089 therein. 1äwphï1.ñët 

Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will was admitted to probate in the Court of First Instance of Manila on September 15, 1958. The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it r eleased from time to time according as the lower court approved and allowed the various motions or petitions filed by the latter three requesting partial advances on account of their respective legacies. On January 8, 1964, preparatory to closing it s administration, the executor submitted and filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partit ion, the executor —  pursuant to the "Twelfth" clause of the testator's Last Will and Testament —  divided the residuary estate into seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages.

The facts of the case are as follows: Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of t he United States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis. On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) after t he foregoing two items have been satisfied , the remainder shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.1äwphï1.ñët 

On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the ground that t hey were deprived of their legitimes as illegitimate children and, therefore, compulsory heirs of the deceased. Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry r eceipt submitted on April 27, 1964 by the executor.1 After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an order overruling the oppositions and approving the executor's final account, report and administration and project of  partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not provide for legitimes. Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply  —  Texas law or Philippine law.

Page 11 of 51

In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court in  Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death.2 So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law.  Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here involved are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be presumed different from ours. 3 Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code. Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They  provide that —  ART. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may he the nature of the property and regardless of the country wherein said property may be found. ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent. Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that —  Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs

shall not be rendered ineffective by la ws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.  prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely, Congress deleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16 a specific  provision in itself which must be applied in testate and intestate succession. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent. It is therefore evident that whatever public policy or good customs may be involved in our System of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to l eave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones. Appellants would also point out that the decedent executed two wills  —  one to govern his Texas estate and the other his Philippine estate  —  arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in  Miciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10  —  now Article 16  —  of the Civil Code states said national law should govern. The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis. Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.

Page 12 of 51

Footnotes 1

He later filed a motion praying that as a legal heir he be included in this case as one of the oppositors-appellants; to file or adopt the opposition of his sisters to the project of partition; to submit his brief after paying his  proportionate share in the expenses incurred in the printing of the record on appeal; or to allow him to adopt the briefs filed by his sisters  —  but this Court resolved to deny the motion. 2

San Antonio, Texas was his legal residence.

3

Lim vs. Collector, 36 Phil. 472;  In re Testate Estate of Suntay, 95 Phil. 500.

Page 13 of 51

ANTONIO B. BALTAZAR,

WHEREFORE, premises considered, finding the appeal to be impressed with merit, the decision in SP. PROC. NO. G-1186 dated 30 September 2003, is hereby SET ASIDE and a new one entered GRANTING the petition for the probate of the will of PACIENCIA REGALA.

G.R. No. 174489

SEBASTIAN M. BALTAZAR, ANTONIO L. MANGALINDAN,

Present:

ROSIE M. MATEO,

SO ORDERED.[5]

NENITA A. PACHECO, VIRGILIO REGALA, JR.,

CORONA, C.J., Chairperson,

and RAFAEL TITCO,

LEONARDO-DE CASTRO,  Petitioners, 

- versus -

Also assailed herein is the August 31, 2006 CA Resolutio n[6] which denied the

BERSAMIN,

Motion for Reconsideration thereto. DEL CASTILLO, and 

VILLARAMA, JR., JJ. Petitioners call us to reverse the CAs assailed Decision and instead affirm the Promulgated:

LORENZO LAXA,

 Respondent.

 April 11, 2012

x------------------------------------------------------------------x DECISION DEL CASTILLO, J .:

It is incumbent upon those who oppose the probate of a will to clearly establish that the decedent was not of sound and disposing mind at the time of the execution of said will. Otherwise, the state is duty-bound to give full effect to the wishes of the testator to distribute his estate in the manner provided in his will so long as it is legally tenable.[1]

Before us is a Petition for Review on Certiorar i[2] of the June 15, 2006 Decision[3] of the Court of Appeals (CA) in CA-G.R. CV No. 80979 which reversed the September 30, 2003 Decision[4] of the Regional Trial Court (RTC), Branch 52, Guagua, Pampanga in Special Proceedings No. G-1186. The assailed CA Decision granted the petition for probate of the notarial will of Paciencia Regala (Paciencia), to wit:

Decision of the RTC which disallowed the notarial will of Paciencia.

F actual Antecedents

Paciencia was a 78 year old spinster when she made her last will and testament entitled Tauli  Nang Bilin o Testamento Miss Paciencia Regal a[7] (Will) in the Pampango dialect on September

13, 1981. The Will, executed in the house of retired Judge Ernestino G. Limpin (Judge Limpin), was read to Paciencia twice. After which, Paciencia expressed in the presence of the instrumental witnesses that the document is her last will and testament. She thereafter affixed her signature at the end of the said document on page 3[8] and then on the left margin of pages 1, 2 and 4 thereo f.[9]

The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco Garcia (Francisco) and Faustino R. Mercado (Faustino). The three attested to the Wills due execution by affixing their signatures below its attestation claus e[10] and on the left margin of  pages 1, 2 and 4 thereof ,[11] in the presence of Paciencia and of one another and of Judge Limpin who acted as notary public.

Page 14 of 51

Childless and without any brothers or sisters, Paciencia bequeathed all her properties to respondent Lorenzo R. Laxa (Lorenzo) and his wife Corazon F. Laxa and their children Luna

In the interim, the Will remained in the custody of Judge Limpin.

Lorella Laxa and Katherine Ross Laxa, thus: More than four years after the death of Paciencia or on April 27, 2000, Lorenzo filed xxxx Fourth - In consideration of their valuable services to me since then up to the present by the spouses LORENZO LAXA and CORAZON F. LAXA, I hereby BEQUEATH, CONVEY and GIVE all my properties enumerated in parcels 1 to 5 unto the spouses LORENZO R. LAXA and CORAZON F. LAXA and their children, LUNA LORELLA LAXA and KATHERINE LAXA, and the spouses Lorenzo R. Laxa and Corazon F. Laxa both of legal age, Filipinos, presently residing at Barrio Sta. Monica, [Sasmuan], Pampanga and their children, LUNA LORELLA and KATHERINE ROSS LAXA, who are still not of legal age and living with their parents who would decide to bequeath since they are the children of the spouses;

[14]

a petition

with the RTC of Guagua, Pampanga for the probate of the Will of Paciencia and for

the issuance of Letters of Administration in his favor, docketed as Special Proceedings No. G1186.

There being no opposition to the petition after its due publication, the RTC issued an Order on June 13, 2000[15] allowing Lorenzo to present evidence on June 22, 2000. On said date, Dra. Limpin testified that she was one of the instrumental witnesses in the execution of the last will and testament of Paciencia on September 13, 1981.[16] The Will was executed in her fathers

xxxx [Sixth] - Should other properties of mine may be discovered aside from the properties mentioned in this last will and testament, I am also bequeathing and giving the same to the spouses Lorenzo R. Laxa and Corazon F. Laxa and their two children and I also command them to offer masses yearly for the repose of my soul and that of D[]a Nicomeda Regala, Epifania Regala and their spouses and with respect to the fishpond situated at San Antonio, I likewise command to fulfill the wishes of D[]a Nicomeda Regala in accordance with her testament as stated in my testament. x x x[12]

(Judge Limpin) home office, in her presence and of two other witnesses, Francisco and Faustino.[17] Dra. Limpin positively identified the Will and her signatures on all its four  pages.[18] She likewise positively identified the signature of her father appearing thereon.[19] Questioned by the prosecutor regarding Judge Limpins present mental fitness, Dra. Limpin testified that her father had a stroke in 1991 and had to undergo brain surgery .[20] The  judge can walk but can no longer talk and remember her name. Because of this, Dra. Limpin stated that her father can no longer testify in court.[21]

The filial relationship of Lorenzo with Paciencia remains undisputed. Lorenzo is Paciencias nephew whom she treated as her own son. Conversely, Lorenzo came to know and treated Paciencia as his own mother .[13]Paciencia lived with Lorenzos family in Sasmuan, Pampanga and it was she who raised and cared for Lorenzo since his birth. Six days after the

The following day or on June 23, 2000, petitioner Antonio Baltazar (Antonio) filed an opposition[22] to Lorenzos petition. Antonio averred that the properties subject of Paciencias Will belong to Nicomeda Regala Mangalindan, his predecessor-in-interest; hence, Paciencia had no right to bequeath them to Lorenzo.[23]

execution of the Will or on September 19, 1981, Paciencia left for the United States of America (USA). There, she resided with Lorenzo and his family until her death on January 4, 1996.

Page 15 of 51

Barely a month after or on July 20, 2000, Antonio, now joined by petitioners Sebastian M. Baltazar, Virgilio Regala, Jr., Nenita A. Pacheco, Felix B. Flores, Rafael Titco,

Meanwhile, proceedings on the petition for the probate of the Will continued. Dra.

Rosie M. Mateo (Rosie) and Antonio L. Mangalindan filed a Supplemental

Limpin was recalled for cross-examination by the petitioners. She testified as to the age of her

Opposition[24] contending that Paciencias Will was null and void because ownership of the

father at the time the latter notarized the Will of Paciencia; the living arrangements of Paciencia

 properties had not been transferred and/or titled to Paciencia before her death pursuant to Article

at the time of the execution of the Will; and the lack of photographs when the event took place . [31]

1049, paragraph 3 of the Civil Code .[25] Petitioners also opposed the issuance of Letters of Administration in Lorenzos favor arguing that Lorenzo was disqualified to be appointed as such,

Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico) also took the

he being a citizen and resident of the USA.[26] Petitioners prayed that Letters of Administration

witness stand. Monico, son of Faustino, testified on his fathers condition. According to him his

[27]

 be instead issued in favor of Antonio.

father can no longer talk and express himself due to brain damage. A medical certificate was  presented to the court to support this allegation. [32]

Later still on September 26, 2000, petitioners filed an Amended Opposition[28] asking the RTC to deny the probate of Paciencias Will on the following grounds: the Will was not

For his part, Lorenzo testified that: from 1944 until his departure for the USA in April

executed and attested to in accordance with the requirements of the law; that Paciencia was

1980, he lived in Sasmuan, Pampanga with his family and his aunt, Paciencia; in 1981 Paciencia

mentally incapable to make a Will at the time of its execution; that she was forced to execute the

went to the USA and lived with him and his family until her death in January 1996; the

Will under duress or influence of fear or threats; that the execution of the Will had been procured

relationship between him and Paciencia was like that of a mother and child since Paciencia took

 by undue and improper pressure and influence by Lorenzo or by some other persons for his

care of him since birth and took him in as an adopted son; Paciencia was a spinster without

 benefit; that the signature of Paciencia on the Will was forged; that assuming the signature to be

children, and without brothers and sisters; at the time of Paciencias death, she did not suffer from

genuine, it was obtained through fraud or trickery; and, that Paciencia did not intend the

any mental disorder and was of sound mind, was not blind, deaf or mute; the Will was in the

document to be her Will. Simultaneously, petitioners filed

custody of Judge Limpin and was only given to him after Paciencias death through Faustino;

an Opposition and

Recommendation[29] reiterating their opposition to the appointment of Lorenzo as administrator

and he was already residing in the USA when the Will was executed .[33] Lorenzo positively

of the properties and requesting for the appointment of Antonio in his stead.

identified the signature of Paciencia in three different documents and in the Will itself and stated that he was familiar with Paciencias signature because he accompanied her in her

On January 29, 2001, the RTC issued an Order [30] denying the requests of both

transactions.[34] Further, Lorenzo belied and denied having used force, intimidation, violence,

Lorenzo and Antonio to be appointed administrator since the former is a citizen and resident of

coercion or trickery upon Paciencia to execute the Will as he was not in the Philippines when

the USA while the latters claim as a co-owner of the properties subject of the Will has not yet

the same was executed.[35] On cross-examination, Lorenzo clarified that Paciencia informed him

 been established.

Page 16 of 51

about the Will shortly after her arrival in the USA but that he saw a copy of the Will only after her death.[36]

In his direct examination, Antonio stated that Paciencia was his aun t.[48] He identified the Will and testified that he had seen the said document before because Paciencia brought the same to his mothers house and showed it to him along with another document on September 16,

As to Francisco, he could no longer be presented in court as he already died on May

1981.[49] Antonio alleged that when the documents were shown to him, the same were still unsigned.[50] According to him, Paciencia thought that the documents pertained to a lease of one

21, 2000.

of her rice lands,[51] and it was he who explained that the documents were actually a special For petitioners, Rosie testified that her mother and Paciencia were first

 power of attorney to lease and sell her fishpond and other properties upon her departure for the

cousins.[37] She claimed to have helped in the household chores in the house of Paciencia thereby

USA, and a Will which would transfer her properties to Lorenzo and his family upon her

allowing her to stay therein from morning until evening and that during the period of her service

death.[52] Upon hearing this, Paciencia allegedly uttered the following words: Why will I never

in the said household, Lorenzos wife and his children were staying in the same house .[38] She

[return], why will I sell all my properties? Who is Lorenzo? Is he the only [son] of God? I have

served in the said household from 1980 until Paciencias departure for the USAon September 19,

other relatives

1981.[39]

already?[53] Thereafter, Antonio advised Paciencia not to sign the documents if she does not

[who should]

benefit from

my properties. Why should

I die

want to, to which the latter purportedly replied, I know nothing about those, throw them away or On September 13, 1981, Rosie claimed that she saw Faustino bring something for

it is up to you. The more I will not sign them.[54] After which, Paciencia left the documents with

Paciencia to sign at the latters house.[40] Rosie admitted, though, that she did not see what that

Antonio. Antonio kept the unsigned documents

something was as same was placed inside an envelope .[41] However, she remembered Paciencia

and eventually turned them over to Faustino on September 18, 1981 .[55]

instructing Faustino to first look for money before she signs them.[42] A few days after or on September 16, 1981, Paciencia went to the house of Antonios mother and brought with her the

Ruling of theRegional Trial Court 

said envelope.[43] Upon going home, however, the envelope was no longer with Paciencia.[44] Rosie further testified that Paciencia was referred to as magulyan or forgetful

On September 30, 2003, the RTC rendered its Decisio n[56] denying the petition thus:

 because she would sometimes leave her wallet in the kitchen then start looking for it moments later.[45] On cross examination, it was established that Rosie was neither a doctor nor a  psychiatrist, that her conclusion that Paciencia was magulyan was based on her personal assessment,[46] and that it was Antonio who requested her to testify in cour t.[47]

WHEREFORE, this court hereby (a) denies the petition dated April 24, 2000; and (b) disallows the notarized will dated September 13, 1981 of Paciencia Regala. SO ORDERED.[57]

Page 17 of 51

The trial court gave considerable weight to the testimony of Rosie and concluded that at the time Paciencia signed the Will, she was no longer possessed of sufficient reason or strength of mind to have testamentary capacity.[58]

II. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING CONCLUSIONS NOT IN ACCORDANCE WITH THE EVIDENCE ON RECORD; III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT PETITIONERS FAILED TO PROVE THAT PACIENCIA WAS NOT OF SOUND MIND AT THE TIME THE WILL WAS ALLEGEDLY EXECUTED[63]

Ruling of the Court of Appeals

On appeal, the CA reversed the RTC Decision and granted the probate of the Will of Paciencia. The appellate court did not agree with the RTCs conclusion that Paciencia was of unsound mind when she executed the Will. It ratiocinated that the state of being magulyan  does

The pivotal issue is whether the authenticity and due execution of the notarial Will was sufficiently established to warrant its allowance for probate.

not make a person mentally unsound so [as] to render [Paciencia] unfit for executing a Will.[59] Moreover, the oppositors in the probate proceedings were not able to overcome the Our Ruling

 presumption that every person is of sound mind. Further, no concrete circumstances or events were given to prove the allegation that Paciencia was tricked or forced into signing the Wil l.[60]

We deny the petition.

Petitioners moved for reconsideration[61] but the motion was denied by the CA in its Resolution[62] dated August 31, 2006.

 Faithful compliance with the formalities laid down by law is apparent from the face of the Will.

Hence, this petition.

Issues

Courts are tasked to determine nothing more than the extrinsic validity of a Will in probate proceedings.[64] This is expressly provided for in Rule 75, Section 1 of the Rules Petitioners come before this Court by way of Petition for Review of Court, which states: on Certiorari ascribing upon the CA the following errors : I. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT ALLOWED THE PROBATE OF PACIENCIAS WILL DESPITE RESPONDENTS UTTER FAILURE TO COMPLY WITH SECTION 11, RULE 76 OF THE RULES OF COURT;

Rule 75 PRODUCTION OF WILL. ALLOWANCE OF WILL NECESSARY.

Section 1. Allowance necessary. Conclusive as to execution. No will shall pass either real or personal estate

Page 18 of 51

unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.

signed the Will in the presence of one another and that the witnesses attested and subscribed to the Will in the presence of the testator and of one another. In fact, even the petitioners acceded that the signature of Paciencia in the Will may be authentic although they question her state of

Due execution of the will or its extrinsic validity pertains to whether the testator, being

mind when she signed the same as well as the voluntary nature of said act.

of sound mind, freely executed the will in accordance with the formalities prescribed by law.[65] These formalities are enshrined in Articles 805 and 806 of the New Civil Code, to wit: Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the  pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the  presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. Art. 806. Every will must be acknowledged before a notary  public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court.

Here, a careful examination of the face of the Will shows faithful compliance with the formalities laid down by law. The signatures of the testatrix, Paciencia, her instrumental

The burden to prove that  Paciencia was of unsound mind at the time of the execution of the will lies on the shoulders of the  petitioners.

Petitioners, through their witness Rosie, claim that Paciencia was magulyan  or forgetful so much so that it effectively stripped her of testamentary capacity. They likewise claimed in their Motion for Reconsideration[66]f iled with the CA that Paciencia was not only magulyan but was actually suffering from paranoia.[67]

We are not convinced.

We agree with the position of the CA that the state of being forgetful does not necessarily make a person mentally unsound so as to render him unfit to execute a Will.[68] Forgetfulness is not equivalent to being of unsound mind. Besides, Article 799 of the  New Civil Code states: Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind  be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.

witnesses and the notary public, are all present and evident on the Will. Further, the attestation clause explicitly states the critical requirement that the testatrix and her instrumental witnesses

Page 19 of 51

It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the  proper objects of his bounty, and the character of the testamentary act.

Furthermore, we are convinced that Paciencia was aware of the nature of her estate to be disposed of, the proper objects of her bounty and the character of the testamentary act. As aptly  pointed out by the CA:

In this case, apart from the testimony of Rosie pertaining to Paciencias forgetfulness, there is no substantial evidence, medical or otherwise, that would show that Paciencia was of unsound mind at the time of the execution of the Will. On the other hand, we find more worthy of credence Dra. Limpins testimony as to the soundness of mind of Paciencia when the latter went to Judge Limpins house and voluntarily executed the Will. The testimony of subscribing

A scrutiny of the Will discloses that [Paciencia] was aware of the nature of the document she executed. She specially requested that the customs of her faith be observed upon her death. She was well aware of how she acquired the properties from her parents and the properties she is  bequeathing to LORENZO, to his wife CORAZON and to his two (2) children. A third child was born after the execution of the will and was not included therein as devisee.[70]

witnesses to a Will concerning the testators mental condition is entitled to great weight where they are truthful and intelligent.[69] More importantly, a testator is presumed to be of sound mind at the time of the execution of the Will and the burden to prove otherwise lies on the oppositor. Article 800 of the New Civil Code states: Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary. The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the  probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval.

 Bare allegations of duress or influence of fear or threats, undue and improper influence and  pressure, fraud and trickery cannot be used as basis to deny the probate of a will.

An essential element of the validity of the Will is the willingness of the testator or testatrix to execute the document that will distribute his/her earthly possessions upon his/her death. Petitioners claim that Paciencia was forced to execute the Will under duress or influence of fear or threats; that the execution of the Will had been procured by undue and improper  pressure and influence by Lorenzo or by some other persons for his benefit; and that assuming

Here, there was no showing that Paciencia was publicly known to be insane one

Paciencias signature to be genuine, it was obtained through fraud or trickery. These are grounded

month or less before the making of the Will. Clearly, thus, the burden to prove that Paciencia

on the alleged conversation between Paciencia and Antonio on September 16, 1981 wherein the

was of unsound mind lies upon the shoulders of petitioners. However and as earlier mentioned,

former purportedly repudiated the Will and left it unsigned.

no substantial evidence was presented by them to prove the same, thereby warranting the CAs finding that petitioners failed to discharge such burden.

We are not persuaded.

Page 20 of 51

We take into consideration the unrebutted fact that Paciencia loved and treated Lorenzo as her own son and that love even extended to Lorenzos wife and children. This kind of relationship is not unusual. It is in fact not unheard of in our culture for old maids or spinsters to care for and raise their nephews and nieces and treat them as their own children. Such is a  prevalent and accepted cultural practice that has resulted in many family discords between those favored by the testamentary disposition of a testator and those who stand to benefit in case of intestacy.

In this case, evidence shows the acknowledged fact that Paciencias relationship with Lorenzo and his family is different from her relationship with petitioners. The very fact that she cared for and raised Lorenzo and lived with him both here and abroad, even if the latter was already married and already has children, highlights the special bond between them. This unquestioned relationship between Paciencia and the devisees tends to support the authenticity of the said document as against petitioners allegations of duress, influence of fear or threats, undue and improper influence, pressure, fraud, and trickery which, aside from being factual in nature, are not supported by concrete, substantial and credible evidence on record. It is worth

Petitioners dispute the authenticity of Paciencias Will on the ground that Section 11 of Rule 76 of the Rules of Court was not complied with. It provides: RULE 76 ALLOWANCE OR DISALLOWANCE OF WILL Section 11. Subscribing witnesses produced or accounted for where will contested . If the will is contested, all the subscribing witnesses, and the notary in the case of wills executed under the Civil Code of the Philippines, if present in the Philippines and not insane, must be produced and examined, and the death, absence, or insanity of any of them must be satisfactorily shown to the court. If all or some of such witnesses are  present in the Philippines but outside theprovince where thewill has been filed, their deposition must be taken. If any or all of them testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may nevertheless, be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law.

If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator; in the absence of any competent witnesses, and if the court deem it necessary, expert testimony may be resorted to. (Emphasis supplied.)

stressing that bare arguments, no matter how forceful, if not based on concrete and substantial evidence cannot suffice to move the Court to uphold said allegations .[71] Furthermore, a  purported will is not [to be] denied legalization on dubious grounds. Otherwise, the very

They insist that all subscribing witnesses and the notary public should have been  presented in court since all but one witness, Francisco, are still living.

institution of testamentary succession will be shaken to its foundation, for even if a will has been duly executed in fact, whether x x x it will be probated would have to depend largely on the

We cannot agree with petitioners.

attitude of those interested in [the estate of the deceased].[72] Court should be convinced by the evidence presented before it that the Will was duly executed.

We note that the inability of Faustino and Judge Limpin to appear and testify before the court was satisfactorily explained during the probate proceedings. As testified to by his son, Faustino had a heart attack, was already bedridden and could no longer talk and express himself

Page 21 of 51

due to brain damage. To prove this, said witness presented the corresponding medical

testimonies, constrain us to tilt the balance in favor of the authenticity of the Will and its

certificate. For her part, Dra. Limpin testified that her father, Judge Limpin, suffered a stroke in

allowance for probate.

1991 and had to undergo brain surgery. At that time, Judge Limpin could no longer talk and could not even remember his daughters name so that Dra. Limpin stated that given such

WHEREFORE, the petition is DENIED. The Decision dated June 15, 2006 and

condition, her father could no longer testify. It is well to note that at that point, despite ample

the Resolution dated August 31, 2006 of the Court of Appeals in CA-G.R. CV No. 80979

opportunity, petitioners neither interposed any objections to the testimonies of said witnesses nor

are AFFIRMED.

challenged the same on cross examination. We thus hold that for all intents and purposes,

SO ORDERED.

Lorenzo was able to satisfactorily account for the incapacity and failure of the said subscribing MARIANO C. DEL CASTILLO  Associate Justice

witness and of the notary public to testify in court. Because of this the probate of Paciencias Will may be allowed on the basis of Dra. Limpins testimony proving her sanity and the due execution

WE CONCUR:

of the Will, as well as on the proof of her handwriting. It is an established rule that [a] testament may not be disallowed just because the attesting witnesses declare against its due execution; neither does it have to be necessarily allowed just because all the attesting witnesses declare in

RENATO C. CORONA Chief Justice Chairperson

favor of its legalization; what is decisive is that the court is convinced by evidence before it, not necessarily from the attesting witnesses, although they must testify, that the will was or was not duly executed in the manner required by law .[73] TERESITA J. LEONARDO-DE CASTRO  Associate Justice

LUCAS P. BERSAMIN  Associate Justice

Moreover, it bears stressing that [i]rrespective x x x of the posture of any of the parties as regards the authenticity and due execution of the will x x x in question, it is the mandate of the law that it is the evidence before the court and/or [evidence that] ought to be before it that is [74]

controlling.

The very existence of [the Will] is in itself  prima facie proof that the supposed

MARTIN S. VILLARAMA, JR.  Associate Justice

[testatrix] has willed that [her] estate be distributed in the manner therein provided, and it is

CERTIFICATION

incumbent upon the state that, if legally tenable, such desire be given full effect independent of

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

[75]

the attitude of the parties affected thereby.

This, coupled with Lorenzos established

relationship with Paciencia, the evidence and the testimonies of disinterested witnesses, as opposed to the total lack of evidence presented by petitioners apart from their self-serving

Page 22 of 51

RENATO C. CORONA Chief Justice

[1]

Gonzales Vda. de Precilla v. Narciso , 150-B Phil. 437, 473 (1972).  Rollo, pp. 9-31. [3] CA rollo, pp. 177-192; penned by Associate Justice Andres B. Reyes, Jr. and concurred in by Associate Justices Hakim S. Abdulwahid and Vicente Q. Roxas. [4] Records, pp. 220-246; penned by Judge Jonel S. Mercado. [5] CA rollo, p. 192. [6] Id. at 212. [7] Exhibit G, Folder of Exhibits, pp. 36-39. [8] Exhibit G-11, id. at 38. [9] Exhibits G-9, G-10, and G-11, id. at 36, 37 and 39. [10] Exhibit G-6, id at 38. [11] Exhibits G-4, G-5, and G-7, id. at 36, 37 and 39. [12] English Translation of the Last Will and Testament of Miss Paciencia Regala, Exhibits H-1 and H-2, id. at 41-42. [13] TSN dated April 18, 2001, pp. 2-6. [14] Records, pp. 1-3. [15] Id. at 13-14. [16] TSN dated June 22, 2000, p. 2. [17] Id. at 5. [18] Id. at 2-4. [19] Id. at 3. [20] Id. at 2. [21] Id. at 6. [22] Motion with Leave of Court to Admit Instant Opposition to Petition of Lorenzo Laxa; records, pp. 17-18. [23] Id. at 17. [24] Id. at 25-28. [25] Article 1049. Acceptance may be express or tacit. xxxx Acts of mere preservation or provisional administration do not imply an acceptance of the inheritance if, through such acts, the title or capacity of an heir has not been assumed. [26] Records, p. 26. [27] Id. at 27. [28] Id. at 42-43. [29] Id. at 44-45. [30] Id. at 52. [31] TSN dated January 18, 2001, pp. 2-4. [32] Id. at 5-6. [33] TSN dated April 18, 2001, pp. 1- 28. [2]

[34]

Id. at 9-15. Id. at 16-17. [36] Id. at 24-25. [37] TSN dated November 27, 2002, p. 4. [38] Id. at 5. [39] TSN dated December 4, 2002, p. 8 [40] Id. pp. 2-3. [41] Id. at 4. [42] Id. [43] Id. at 7. [44] Id. at 8. [45] Id. at 9. [46] Id. at 10. [47] Id. at 11. [48] TSN dated January 7, 2003, p. 3. [49] Id. at 6-8. [50] Id. at 12. [51] Id. at 11. [52] Id. at 16. [53] Id. at 17. [54] Id. [55] Id at 18-19. [56] Records, pp. 220-246. [57] Id. at 246. [58] Id. at 245-246. [59] CA rollo, p. 185. [60] Id. at 188. [61] Id. at 193-199. [62] Id. at 212. [63]  Rollo, p. 18. [64]  Pastor, Jr. v. Court of Appeals, 207 Phil. 758, 766. (1983). [65] Id. [66] CA rollo, pp. 193-199. [67] Id. at 194-195. [68] Torres and Lopez de Bueno v. Lopez, 48 Phil. 772, 810 (1926); Sancho v. Abella , 58 Phil.728, 732-733 (1933). [69] Id. at 811. [70] CA rollo, pp. 185-186. [71] Gonzales Vda. de Precilla v. Narciso , supra note 1 at 445. [72] Id. at 474. [73] Id. at 452. [74] Id. at 453. [75] Id. at 473. [35]

Page 23 of 51

G.R. No. L-22595

November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator,  petitionerappellee, vs. ANDRE BRIMO, opponent-appellant.

 Ross, Lawrence and Selph for appellant. Camus and Delgado for appellee.

ROMUALDEZ, J .:

The partition of the estate left by the deceased Joseph G. Brimo is in question in this case. The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of t he deceased, opposed it. The court, however, approved it. The errors which the oppositor-appellant assigns are: (1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the denial of t he 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 partit ion and the delivery of the deceased's business to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws. The appellant's opposition is based on the fact that the partition in question puts into effect the provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish nationality, for which reason they are void as being in violation or article 10 of the Civil Code which, among other things, provides the following:  Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the national law

of the person whose succession is in question, whatever may be the nature of the property or the country in which it may be situated. But the fact is that the oppositor did not prove that said testimentary dispositions are not in accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.) It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he desires to be given an opportunity to present evidence on this point; so much so that he assigns as an error of the court in not having deferred the approval of the scheme of partition until the receipt of certain testimony requested regarding the Turkish laws on the matter. The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is discretionary with the trial court, and, taking into consideration that the oppositor was granted ample opportunity to introduce competent evidence, we find no abuse of discretion on the part of the court in this  particular. There is, therefore, no evidence in the record that the national law of the testator Joseph G. Brimo was violated in the testamentary dispositions in question which, not being contrary to our laws in force, must be complied with and executed. lawphil.net  Therefore, the approval of the scheme of partition in this respect was not erroneous. In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee, inasmuch as he is one of the persons designated as such in will, it must be taken into consideration that such exclusion is based on the last part of the second clause of the will, which says: Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having been conferred upon me b y 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.

Page 24 of 51

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.

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

If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the herein oppositor who, by his attitude in these proceedings has not respected the will of the testator, as expressed, is prevented from receiving his legacy. The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil Code provides the following: Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide. And said condition is contrary to law because it expressly ignores the testator's national law when, according to article 10 of the civil Code above quoted, such national law of the testator is the one to govern his testamentary dispositions. Said condition then, in the li ght of the legal provisions above cited, is considered unwritten, and the institution of legatees in said will is unconditional and consequently valid and effective even as to the herein oppositor. It results from all this that the second clause of the will regarding the law which shall govern it, and to the condition imposed upon the legatees, is null and void,  being contrary to law. All of the remaining clauses of said will with all their dispositions and requests are  perfectly valid and effective it not appearing that said clauses are contrary to the testator's national law. Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees, and the scheme of partition submitted  by the judicial administrator is approved in all other respects, without any  pronouncement as to costs. So ordered.

Page 25 of 51

G.R. No. L-16749

January 31, 1963

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED. ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased, Executor and Heir-appellees, vs. HELEN CHRISTENSEN GARCIA, oppositor-appellant.

 M. R. Sotelo for executor and heir-appellees.  Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant. LABRADOR, J .:

This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N. Cusi, Jr., presiding, in Special Proceeding No. 622 of said court, dated September 14, 1949, approving among things the final accounts of th e executor, directing the executor to reimburse Maria Lucy Chri stensen the amount of P3,600  paid by her to Helen Christensen Garcia as her legacy, and declaring Maria Lucy Christensen entitled to the residue of the property to be enjoyed during her lifetime, and in case of death without issue, one-half of said residue to be payable to Mrs. Carrie Louise C. Borton, etc., in accordance with the provisions of the will of the testator Edward E. Christensen. The will was executed in Manila on March 5, 1951 and contains the following provisions: 3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years ago, and who is now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A. 4. I further declare that I now have no living ascendants, and no descendants except my above named daughter, MARIA LUCY CHRISTENSEN DANEY. 7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was baptized Christensen, is not in any way related to me, nor has she been at any time adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency the same to be deposited in trust for the said Maria Helen Christensen with the Davao Branch of the Philippine

 National Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the principal thereof as well as any interest which may have accrued thereon, is exhausted.. xxx

xxx

xxx

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as aforesaid at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my property and estate, real, personal and/or mixed, of whatsoever kind or character, and wheresoever situated, of which I may be possessed at my death and which may have come to me from any source whatsoever, during her lifetime: .... It is in accordance with the above-quoted provisions that the executor in his final account and project of partition ratified the payment of only P3,600 to Helen Christensen Garcia and proposed that the residue of the estate be transferred to his daughter, Maria Lucy Christensen. Opposition to the approval of the project of partition was filed by Helen Christensen Garcia, insofar as it deprives her (Helen) of her legitime as an acknowledged natural child, she having been declared by Us in G.R. Nos. L -11483-84 an acknowledged natural child of the deceased Edward E. Christensen. The legal grounds of opposition are (a) that the distribution should be governed by the laws of the Philippines, and (b) that said order of distribution is contrary thereto insofar as it denies to Helen Christensen, one of two acknowledged natural children, one-half of the estate in full ownership. In amplification of the above grounds it was alleged that the law that should govern the estate of the deceased Christensen should not be the internal law of California alone, but the entire law thereof because several foreign elements are involved, that the forum is the Philippines and even if the case were decided in California, Section 946 of the California Civil Code, which requires that the domicile of the decedent should apply, should be applicable. It was also alleged that Maria Helen Christensen having been declared an acknowledged natural child of the decedent, she is deemed for all purposes legitimate from the time of her birth. The court below ruled that as Edward E. Christensen was a citizen of the United States and of the State of California at the time of his death, the successional rights and intrinsic validity of the provisions in his will are to be governed by the law of California, in accordance with which a testator has the right to dispose of his  property in the way he desires, because the right of absolute dominion over his  property is sacred and inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d 952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179, Record

Page 26 of 51

on Appeal). Oppositor Maria Helen Christensen, through counsel, filed various motions for reconsideration, but these were denied. Hence, this appeal. The most important assignments of error are as follows: I THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE SUPREME COURT THAT HELEN IS THE ACKNOWLEDGED  NATURAL CHILD OF EDWARD E. CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE IN THE INHERITANCE. II THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES CALLING FOR THE APPLICATION OF INTERNAL LAW. III THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL LAW, PARTICULARLY UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE TESTAMENTARY DISPOSITION OF THE DISTRIBUTION OF THE ESTATE OF THE DECEASED EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES. IV THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF DISTRIBUTION SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS. V THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONEHALF (1/2) OF THE ESTATE IN FULL OWNERSHIP.

There is no question that Edward E. Christensen was a citizen of the United States and of the State of California at the time of his death. But there is also no question that at the time of his death he was domiciled in the Philippines, as witness the following facts admitted by the executor himself in appellee's brief: In the proceedings for admission of the will to probate, the facts of record show that the deceased Edward E. Christensen was born on November 29, 1875 in New York City, N.Y., U.S.A.; his first arrival in the Philippines, as an appointed school teacher, was on July 1, 1901, on board the U.S. Army Transport "Sheridan" with Port of Embarkation as the City of San Francisco, in the State of California, U.S.A. He stayed in the Philippines until 1904. In December, 1904, Mr. Christensen returned to the United States and stayed there for the following nine years until 1913, during which time he resided in, and was teaching school in Sacramento, California. Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in 1928, he again departed the Philippines for the United States and came back here the following year, 1929. Some nine years later, in 1938, he again returned to his own country, and came back to the Philippines the following year, 1939. Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts. 1äwphï1.ñët  Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces in the Phil ippines during World War II. Upon liberation, in April 1945, he left for the United States but returned to the Philippines in December, 1945. Appellees Collective Exhibits "6", CFI Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM", "MMl", "MM-2-Daney" and p. 473, t.s.n., July 21, 1953.) In April, 1951, Edward E. Christensen returned once more to California shortly after the making of his last will and testament (now in question herein) which he executed at his lawyers' offices in Manila on March 5, 1951. He died at the St. Luke's Hospital in the City of Manila on April 30, 1953. (pp. 2-3)

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In arriving at the conclusion that the domicile of the deceased is the Philippines, we are persuaded by the fact that he was born in New York, migrated to California and resided there for nine years, and since he came to the Philippines in 1913 he returned to California very rarely and only for short visits (perhaps to relatives), and considering that he appears never to have owned or acquired a home or properties in that state, which would indicate that he would ultimately abandon the Philippines and make home in the State of California. Sec. 16. Residence is a t erm used with many shades of meaning from mere temporary presence to the most permanent abode. Generally, however, it is used to denote something more t han mere physical presence. (Goodrich on Conflict of Laws, p. 29) As to his citizenship, however, We find that the citizenship that he acquired in California when he resided in Sacramento, California from 1904 to 1913, was never lost by his stay in the Philippines, for the latter was a terri tory of the United States (not a state) until 1946 and the deceased appears to have considered himself as a citizen of California by the fact that when he executed his will in 1951 he declared that he was a citizen of that State; so that he appears never to have intended to abandon his California citizenship by acquiring another. This conclusion is in accordance with the following principle expounded by Goodrich in his Conflict of Laws. The terms "'residence" and "domicile" might well be taken to mean the same thing, a place of permanent abode. But domicile, as has been shown, has acquired a technical meaning. Thus one may be domiciled in a place where he has never been. And he may reside in a place where he has no domicile. The man with two homes, between which he divides his time, certainly resides in each one, while living in it. But if he went on business which would require his presence for several weeks or months, he might  properly be said to have sufficient connection with the place to be called a resident. It is clear, however, that, if he treated his settlement as continuing only for the particular business in hand, not giving up his former "home," he could not be a domiciled New Yorker. Acquisition of a domicile of choice requires the exercise of intention as well as physical presence. "Residence simply requires bodily presence of an inhabitant in a given  place, while domicile requires bodily presence in that place and also an intention to make it one's domicile." Residence, however, is a term used with many shades of meaning, from the merest temporary presence to the most permanent abode, and it is not safe to insist that any one use et the only proper one. (Goodrich, p. 29)

The law that governs the validity of his testamentary dispositions is defined in Article 16 of the Civil Code of the Philippines, which is as follows: ART. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country where said property may be found. The application of this article in the case at bar requires the determination of the meaning of the term "national law" is used therein. There is no single American law governing the validity of testamentary provisions in the United States, each state of the Union having its own private law applicable to its citizens only and in force only within the state. The "national law" indicated in Article 16 of the Civil Code above quoted can not, therefore, possibly mean or apply to any general American law. So it can refer to no other than the private law of the State of California. The next question is: What is the law in California governing the disposition of  personal property? The decision of the court below, sustains the contention of the executor-appellee that under the California Probate Code, a testator may dispose of his property by will in the form and manner he desires, citing the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant invokes the  provisions of Article 946 of the Civil Code of California, which is as follows: If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile. The existence of this provision is alleged in appellant's opposition and is not denied. We have checked it in the California Civil Code and it is there. Appellee, on the other hand, relies on the case cited in the decision and testified to by a witness. (Only the case of Kaufman is correctly cited.) It is argued on executor's behalf that as the deceased Christensen was a citizen of the State of California, the internal law thereof, which is that given in the abovecited case, should govern the determination of the validity of the testamentary provisions of Christensen's will, such law being in force in the State of California of which Christensen was a citizen. Appellant, on the

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other hand, insists that Article 946 should be applicable, and in accordance therewith and following the doctrine of the renvoi, the question of the validity of the testamentary provision in question should be referred back to the law of the decedent's domicile, which is the Philippines. The theory of doctrine of renvoi has been defined by various authors, thus: The problem has been stated in this way: "When the Conflict of Laws rule of the forum refers a jural matter to a foreign law for decision, is the reference to the purely internal rules of law of the foreign system; i.e., to the totality of the foreign law minus its Conflict of Laws rules?" On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi, that is, applied the Conflict of Laws rule of Illinois which referred the matter back to Michigan law. But once having determined the the Conflict of Laws principle is the rule looked to, it is difficult to see why the reference back should not have been to Michigan Conflict of Laws. This would have resulted in the "endless chain of references" which has so often been criticized be legal writers. The opponents of the renvoi would have looked merely to the internal law of Illinois, thus rejecting the renvoi or the reference back. Yet there seems no compelling logical reason why the original reference should be the internal law rather than to the Conflict of Laws rule. It is true that such a solution avoids going on a merry-go-round, but those who have accepted the renvoi theory avoid this inextricabilis circulas by getting off at the second reference and at that point applying internal law. Perhaps the opponents of the renvoi are a bit more consistent for they look always to internal law as the rule of reference. Strangely enough, both the advocates for and the objectors to the renvoi plead that greater uniformity will result from adoption of their respective views. And still more strange is the fact that the only way to achieve uniformity in this choice-of-law problem is if in the dispute the two states whose laws form the legal basis of the litigation disagree as to whether the renvoi should be accepted. If both reject, or both accept the doctrine, the result of the litigation will vary with the choice of the forum. In the case stated above, had the Michigan court rejected the renvoi,  judgment would have been against the woman; if the suit had been  brought in the Illinois courts, and they too rejected the renvoi, judgment would be for the woman. The same result would happen, though the courts would switch with respect to which would hold liability, if both courts accepted the renvoi.

The Restatement accepts the renvoi theory in two instances: where the title to land is in question, and where the validity of a decree of divorce is challenged. In these cases the Conflict of Laws rule of the situs of the land, or the domicile of the parties in the divorce case, is applied by the forum, but any further reference goes only to the internal law. Thus, a  person's title to land, recognized by the situs, will be recognized by every court; and every divorce, valid by the domicile of the parties, will be valid everywhere. (Goodrich, Conflict of Laws, Sec. 7, pp. 13-14.) X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable property in Massachusetts, England, and France. The question arises as to how this property is to be distributed among X's next of kin. Assume (1) that this question arises in a Massachusetts court. There the rule of the conflict of laws as to intestate succession to movables calls for an application of the law of the deceased's last domicile. Since by hypothesis X's last domicile was France, the natural thing for the Massachusetts court to do would be to turn to French statute of distributions, or whatever corresponds thereto in French law, and decree a distribution accordingly. An examination of French law, however, would show that if a French court were called upon to determine how this  property should be distributed, it would refer the distribution to the national law of the deceased, thus applying the Massachusetts statute of distributions. So on the surface of things the Massachusetts court has open to it alternative course of action: (a) either to apply the French law is to intestate succession, or (b) to resolve itself into a French court and apply the Massachusetts statute of distributions, on the assumption that this is what a French court would do. If it accepts the so-called renvoidoctrine, it will follow the latter course, thus applying its own law. This is one type of renvoi. A jural matter is presented which the conflictof-laws rule of the forum refers to a foreign law, the conflict-of-laws rule of which, in turn, refers the matter back again to the law of the forum. This is renvoi in the narrower sense. The German term for this judicial process is 'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-571.) After a decision has been arrived at that a foreign law is to be resorted to as governing a particular case, the further question may arise: Are the rules as to the conflict of laws contained in such foreign law also to be resorted to? This is a question which, while it has been considered by the courts in but a few instances, has been the subject of frequent discussion  by textwriters and essayists; and the doctrine involved has been descriptively designated by them as the "Renvoyer" to send back, or the

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"Ruchversweisung", or the "Weiterverweisung", since an affirmative answer to the question postulated and the operation of the adoption of the foreign law in toto would in many cases result in returning the main controversy to be decided according to the law of the forum. ... (16 C.J.S. 872.) Another theory, known as the "doctrine of renvoi", has been advanced. The theory of the doctrine of renvoi is that the court of the forum, in determining the question before it, must take into account the whole law of the other jurisdiction, but also its rules as to conflict of laws, and then apply the law to the actual question which the rules of the other  jurisdiction prescribe. This may be the law of the forum. The doctrine of the renvoi has generally been repudiated by the American authorities. (2 Am. Jur. 296) The scope of the theory of renvoi has also been defined and the reasons for its application in a country explained by Prof. Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531. The pertinent parts of the article are quoted herein below: The recognition of the renvoi theory implies that the rules of the conflict of laws are to be understood as incorporating not only the ordinary or internal law of the foreign state or country, but its rules of the conflict of laws as well. According to this theory 'the law of a country' means the whole of its law. Von Bar presented his views at the meeting of the Institute of International Law, at Neuchatel, in 1900, in the form of the following theses: (1) Every court shall observe the law of its country as regards the application of foreign laws. (2) Provided that no express provision to the contrary exists, the court shall respect: (a) The provisions of a foreign law which disclaims the right to  bind its nationals abroad as regards their personal statute, and desires that said personal statute shall be determined by the law of the domicile, or even by the law of the place where the act in question occurred.

(b) The decision of two or more foreign systems of law,  provided it be certain that one of them is necessarily competent, which agree in attributing the determination of a question to the same system of law. If, for example, the English law directs its judge to distribute the personal estate of an Englishman who has died domiciled in Belgium in accordance with the law of his domicile, he must first inquire whether the law of Belgium would distribute personal property upon death in accordance with the law of domicile, and if he finds that the Belgian law would make the distribution in accordance with the law of nationality  —  that is the English law —  he must accept this reference back to his own law. We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule applied in In re Kaufman, Supra, its internal law. If the law on succession and the conflict of laws rules of California are to be enforced jointly, each in its own intended and appropriate sphere, the principle cited In re Kaufman should apply to citizens living in the State, but Article 946 should apply to such of its citizens as are not domiciled in California but in other jurisdictions. The rule laid down of resorting to the law of the domicile in the determination of matters with foreign element involved is in accord with the general principle of American law that the domiciliary law should govern in most matters or rights which follow the  person of the owner. When a man dies leaving personal property in one or more states, and leaves a will directing the manner of distribution of the property, the law of the state where he was domiciled at the time of his death will be looked to in deciding legal questions about the will, almost as completely as the law of situs is consulted in questions about the devise of land. It is logical that, since the domiciliary rules control devolution of the personal estate in case of intestate succession, the same rules should determine the validity of an attempted testamentary dispostion of the property. Here, also, it is not that the domiciliary has effect beyond the borders of the domiciliary state. The rules of the domicile are recognized as controlling by the Conflict of Laws rules at the situs property, and the reason for the recognition as in the case of intestate succession, is the general convenience of the doctrine. The New York court has said on the point: 'The general principle that a dispostiton of a personal property, valid at the domicile of the owner, is valid anywhere, is one of the universal application. It had its origin in that international comity which was one of the first fruits of civilization, and it this age, when business intercourse and the process of accumulating property take but little notice of boundary lines, the practical wisdom and justice of the rule is more apparent than ever. (Goodrich, Conflict of Laws, Sec. 164, pp. 442-443.)

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

acknowledged natural child, the appellant, should be governed by the P hilippine Law, the domicile, pursuant to Art. 946 of the Civil Code of California, not by the internal law of California.. WHEREFORE, the decision appealed from is hereby reversed and the case returned to the lower court with instructions that the partition be made as the Philippine law on succession provides. Judgment reversed, with costs against appellees.  Padilla, Bautista Angelo, Concepcion, Reyes, Barrera, Paredes, Dizon, Regala and  Makalintal, JJ., concur.  Bengzon, C.J., took no part.

It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place where the property is situated" in Sec. 946 of the California Civil Code refers to Article 16 of the Civil Code of the Philippines and that the law to the contrary in the Philippines is the provision in said Article 16 that the national law of the deceased should govern. This contention can not be sustained. As explained in the various authorities cited above the national law mentioned in Article 16 of our Civil Code is the law on conflict of laws in the California Civil Code, i.e., Article 946, which authorizes the reference or return of the question to the law of the testator's domicile. The conflict of laws rule in California, Article 946, Civil Code,  precisely refers back the case, when a decedent is not domiciled in California, to the law of his domicile, the Philippines in the case at bar. The court of the domicile can not and should not refer the case back to California; such action would leave the issue incapable of determination because the case will then be like a football, tossed  back and forth between the two states, between the country of which the decedent was a citizen and the country of his domicile. The Philippine court must apply its own law as directed in the conflict of laws rule of the state of the decedent, if the question has to be decided, especially as the application of the internal law of California provides no legitime for children while the Philippine law, Arts. 887(4) and 894, Civil Code of the Philippines, makes natural children legally acknowledged forced heirs of the parent recognizing them. The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105; Miciano vs. Brimo, 50 Phil. 867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs. Government, 59 Phil. 293.) cited by appellees to support the decision can not possibly apply in the case at bar, for two important reasons, i.e., the subject in each case does not appear to be a citizen of a state in the United States  but with domicile in the Philippines, and it does not appear in each case that there exists in the state of which the subject is a citizen, a law similar to or identical with Art. 946 of the California Civil Code. We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the Philippines, the validity of the provisions of his will depriving his

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G.R. No. L-10907

June 29, 1957

AUREA MATIAS, petitioner, vs. HON. PRIMITIVO L. GONZALEZ, ETC., ET AL.,  respondents.

 J. Gonzales Orense for petitioner. Venancio H. Aquino for respondents. CONCEPCION, J .:

Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of Hon. Primitivo L. Gonzales, as Judge of the Court of First Instance of Cavite, in connection with Special Proceedings No. 5213 of said court, entitled "Testate Estate of the Deceased Gabina Raquel." On May 15, 1952, Aurea Matias initiated said special proceedings with a petition for the probate of a document purporting to be the last will and testament of her aunt, Gabina Raquel, who died single on May 8, 1952, at the age of 92 years. The heir to the entire estate of t he deceased  —  except the properties bequeathed to her other niece and nephews, namely, Victorina Salud, Santiago Salud, Policarpio Salud, Santos Matias and Rafael Matias  —  is, pursuant to said instrument, Aurea Matias, likewise, appointed therein as executrix thereof, without bond. Basilia Salud, a first cousin of the deceased, opposed the probate of her alleged will, and, after appropriate proceedings, the court, presided over by respondent Judge, issued an order, dated February 8, 1956, sustaining said opposition and denying the petit ion for probate. Subsequently, Aurea Matias brought the matter on appeal to this Court (G.R. No. L-10751), where it is now pending decision. Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal of Horacio Rodriguez, as special administrator of the estate of the deceased, and the appointment, in his stead of Ramon Plata. The motion was set for hearing on February 23, 1956, on which date the court postponed the hearing to February 27, 1956. Although notified of this order, Rodriguez did not appear on the date last mentioned. Instead, he filed an urgent motion praying for additional time within which to answer the charges preferred against him by Basilia Salud and for another  postponement of said hearing. This motion was not granted, and Basilia Salud introduced evidence in support of said charges, whereupon respondent Judge by an order, dated February 27, 1956, found Rodriguez guilty of abuse of authorit y and gross negligence, and, accordingly, relieved him as special administrator of the estate of the deceased and appointed Basilia Salud as special administratrix thereof, to "be assisted and advised by her niece, Miss Victorina Salud," who "shall always act as aide, interpreter and adviser of Basilia Salud." Said order, likewise, provided

that "Basilia Salud shall be helped by Mr. Ramon Plata . . . who is hereby appointed as co-administrator." On March 8, 1956, Aurea Matins asked that said order of February 27, 1956, be set aside and that she be appointed special co-administratrix, jointly with Horacio Rodriguez, upon the ground that Basilia Salud is over eighty (80) years of age, totally blind and physically incapacitated to perform the duties of said office, and that said movant is the universal heiress of the deceased and the person appointed by the latter as executrix of her alleged will. This motion was denied in an order dated March 10, 1956, which maintained "the appointment of the three above named  persons" —  Basilia Salud, Ramon Plata and Victorina Salud  —  "for the management of the estate of the late Gabina Raquel pending final decision on the  probate of the alleged will of said decedent." However, on March 17, 1956, Basilia Salud tendered her resignation as special administratrix by reason of physical disability, due to old age, and recommended the appointment, in her place, of Victorina Salud. Before any action could be taken thereon, or on March 21, 1956, Aurea Matias sought a reconsideration of said order of March 10, 1956. Moreover, on March 24, 1956, she expressed her conformity to said resignation, but objected to the appointment, in lieu of Basilia Salud, of Victorina Salud, on account of her antagonism to said Aurea Matias  —  she (Victorina Salud) having been the principal and most interested witness for the opposition to the probate of the alleged will of the deceased  —  and proposed that the administration of her estate be entrusted to the Philippine National Bank, the Monte de Piedad, the Bank of the Philippine Islands, or any other similar institution authorized by law therefor, should the court be reluctant to appoint the movant as special administratrix of said estate. This motion for reconsideration was denied on March 26, 1956. Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and Victorina Salud requested authority to collect the rents due, or which may be due, to the estate of the deceased and to collect all the produce of her lands, which was granted on June 23, 1956. On June 27, 1956, said respondents filed another motion praying for  permission to sell the palay of the deceased then deposited in different rice mills in the province of Cavite, which respondent j udge granted on June 10, 1956. Later on, or on July 10, 1956, petitioner instituted the present action against Judge Gonzales, and Victorina Salud and Ramon Plata, for the purpose of annulling the above mentioned orders of respondent Judge, upon the ground that the same had been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. In support of this pretense, it is argued that petitioner should have preference in the choice of special administratrix of the estate of the decedent, she (petitioner) being the universal heiress to said estate and, the executrix appointed in the alleged will of the deceased, that until its final disallowance  —  which has not, as yet, taken place she has a special interest in said estate, which must be protected by giving representation thereto in the management of said estate; that, apart from denying her

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any such representation, the management was given to per sons partial to her main opponent, namely, Basilia Salud, inasmuch as Victorina Salud is allied to her and Ramon Plata is a very close friend of one of her (Basilia Salud's) attorneys; that Basilia Salud was made special administratrix despite her obvious unfitness for said office, she being over eighty (80) years of age and blind; that said disability is borne out by the fact that on March 17, 1956, Basilia Salud resigned as special administratrix upon such ground; that the Rules of Court do not permit the appointment of more than one special administrator; that Horacio Rodriguez was removed without giving petitioner a chance to be heard in connection therewith; and that Ramon Plata and Victorina Salud were authorized to collect the rents due to the deceased and the produce of her lands, as well to sell her palay, without previous notice to the petitioner herein. Upon the other hand, respondents maintain that respondent Judge acted with the scope of his jurisdiction and without any abuse of discretion; that petitioner can not validly claim any special interest i n the estate of the deceased, because the probate of the alleged will and testament of the latter  —  upon which petitioner relies  —  has  been denied; that Horacio Rodriguez was duly notified of the proceedings for his removal; and that Victorina Salud and R amon Plata have not done anything that would warrant their removal. Upon a review of the r ecord, we find ourselves unable to sanction fully the acts of respondent Judge, for the following reasons: 1. Although Horacio Rodriguez had notice of the hearing of the motion for his removal, dated February 17, 1956, the record shows that petitioner herein received copy of said motion of February 24, 1956, or the date after that set for the hearing thereof. Again, notice of the order of respondent Judge, dated February 23, 1956,  postponing said hearing to February 27, 1956, was not served on petitioner herein. 2. In her motion of February 17, 1956, Basilia Salud prayed for the dismissal of Horacio Rodriguez, and the appointment of  Ramon Plata, as special administrator of said estate. Petitioner had, therefore, no notice that her main opponent,  Basilia Salud , and the latter's principal witness, Victorina Salud , would be considered for the management of said. As a con sequence, said petitioner had no opportunity to object to the appointment of Basilia Salud as special administratrix, and of Victorina Salud, as her assistant and adviser, and the order of February 27, 1956, to this effect, denied due process to said petitioner. 3. Said order was issued with evident knowledge of the physical disability of Basilia Salud. Otherwise respondent Judge would not have directed that she "be assisted and advised by her niece Victorina Salud," and that the latter "shall always act as aide, interpreter and adviser of Basilia Salud."

4. Thus, respondent Judge, in effect, appointed three (3) special administrators  —  Basilia Salud, Victorina Salud and Ramon Plata. Indeed, in the order of March 10, 1956, respondent Judge maintained "the appointment  of the three (3) above-named  persons for the management of the estate of the late Gabina Raquel." 5. Soon after the insti tution of said Special Proceedings No. 5213, an issue arose  between Aurea Matias and Basilia Salud regarding the person to be appointed special administrator of the estate of the deceased. The former proposed Horacio Rodriguez, whereas the latter urged t he appointment of Victorina Salud. By an order dated August 11, 1952, the Court, then presided over by Hon. Jose Bernabe, Judge, decided the matter in favor of Horacio Rodriguez and against Victorina Salud, upon the ground that, unlike the latter, who, as a pharmacist and employee in the Santa Isabel Hospital, resides In the City of Manila, the former, a practicing lawyer and a former public prosecutor, and later, mayor of the City of Cavite, is a resident thereof. In other words, the order of resident thereof. In other words, the order of respondent Judge of February 27, 1956, removing Rodriguez and appointing Victorina Salud to the management of the estate, amounted to a reversal of the aforementioned order of Judge Bernabe of August 11, 1952. 6. Although the probate of the alleged will and testament of Gabina Raquel was denied by respondent Judge, the order to this effect is not, as yet, final and executory. It is pending review on appeal taken by Aurea Matias. The probate of said alleged will being still within realm of legal possibility, Aurea Matias has  —  as the universal heir and executrix designated in said instrument  —  a special interest to  protect during the pendency of said appeal. Thus, in the case of  Roxas vs.  Pecson* (46 Off. Gaz., 2058), t his Court held that a widow, designated as executrix in the alleged will and testament of her deceased husband, the probate of which had denied in an order pending appeal, "has . . . the same beneficial interest after the decision of the court disapproving the will, which is now pending appeal, because the decision is not yet final and may be reversed by the appellate court ." 7. The record shows that there are, at least two (2) factions among the heirs of the deceased, namely, one, represented by the petitioner, and another, to which Basilia Salud and Victorina Salud belong. Inasmuch as the lower court had deemed it best to appoint more than one special administrator, justice and equity demands that both factions be represented in the management of the estate of the deceased. The rule, laid down in  Roxas vs. Pecson ( supra), to the effect that "only one special administrator may be appointed to administrator temporarily" the estate of the deceased, must be considered in the light of the facts obtaining in said case. The lower court appointed therein one special administrator for some properties forming  part of said estate, and a special administratrix for other properties thereof. Thus, there were two (2) separate and independent special administrators. In the case at bar

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there is only one (1) special administration, the powers of which shall be exercised  jointly by two special co-administrators. In short, the Roxas case is not squarely in  point. Moreover, there are authorities in support of the power of courts to appoint several special co-administrators (Lewis vs. Logdan, 87 A. 750; Harrison vs. Clark, 52 A. 514; In re Wilson's Estate, 61 N.Y.S. 2d., 49; Davenport vs. Davenport, 60 A. 379). Wherefore, the orders complained of are hereby annulled and set aside. The lower court should re-hear the matter of removal of Horacio Rodriguez and appointment of special administrators, after due notice to all parties concerned, for action in conformity with the views expressed herein, with costs against respondents Victorina Salud and Ramon Plata. It is so ordered.  Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador,  Reyes, J.B.L. and Felix, JJ., concur.

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G.R. No. L-5971

February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees, vs. NARCISA RIMANDO, defendant-appellant.

Valerio Fontanilla and Andres Asprer for appellant.  Anacleto Diaz for appellees. CARSON, J. :

The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will in the court below, is whether one of the subscribing witnesses was present in the small room where it was executed at the time when the testator and the other subscribing witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across which was hung a curtain which made it impossible for one in the outside room to see the testator and the other subscribing witnesses in the act of attaching their signatures to the instrument. A majority of the members of the court is of opinion that this subscribing witness was in the small room with the testator and the other subscribing witnesses at the time when they attached their signatures to the instrument, and this finding, of course, disposes of the appeal and necessitates the affirmance of the decree admitting the document to probate as the last will and testament of the deceased. The trial judge does not appear to have considered the determination of this question of fact of vital importance in the determination of this case, as he was of opinion that under the doctrine laid down in the case of  Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer room when the testator and the other describing witnesses si gned the instrument in the inner room, had it been proven, would not be sufficient in itself to invalidate the execution of the will. But we are unanimously of opinion that had this subscribing witness been  proven to have been in the outer room at the time when the testator and the other subscribing witnesses attached their signatures to the instrument in the inner room, it would have been invalid as a will, the attaching of those signatures under circumstances not being done "in the presence" of the witness in the out er room. This because the line of vision from this witness to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain separating the inner from the outer one "at the moment of inscription of each signature."

In the case just cited, on which the trial court relied, we held that: The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have been seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature. But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription of each signature , must be such that they may see each other sign if they choose to do so. This, of course, does not mean that the testator and the subscribing witnesses may be held to have executed the instrument in the presence of each other if it appears that they would not have been able to see each other sign at that moment, without changing their relative positions or existing conditions. The evidence in the case relied upon by the trial judge discloses that "at the moment when the witness Javellana signed the document he was actually and physically present and in such position with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the proper direction and without any physical obstruction to prevent his doing so ." And the decision merely laid down the doctrine that the question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign. To extend the doctrine further would open the door to the possibility of all manner of fraud, substitution, and the like, and would defeat the purpose for which this  particular condition is prescribed in the code as one of the requisites in the execution of a will. The decree entered by the court below admitting the instrument propounded therein to probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the appellant.  Arellano, C. J., Mapa, Moreland and Trent, JJ.,  concur.

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G.R. No. L-32213 November 26, 1973 AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of Cebu, and MANUEL B. LUGAY, respondents.

 Paul G. Gorrez for petitioner.  Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J .:

Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without the testator having been fully informed of the content thereof, particularly as to what properti es he was disposing and that t he supposed last will and testament was not executed in accordance with law.  Notwithstanding her objection, the Court allowed the probate of the said last will and testament Hence this appeal by certiorari which was given due course. The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public. Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms, the question was attested and subscribed  by at least three credible witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel B.

Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows: It is said that there are, practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by law signed as certifying to an acknowledgment of the testator's signature under oath rather than as attesting the execution of the instrument. After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the last will and testament in question was not executed in accordance with law. The notary publ ic before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed t he will. To acknowledge  before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity. Furthermore, the function of a notary publi c is, among others, to guard against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attesting instrumental witnesses. For them he would be interested sustaining the validity of the will as it directly involves him and the validity of his own act. It would place him in inconsistent  position and the very purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted. Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132

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A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein  because the notaries public and witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not as acknowledging  witnesses. He the notary public acted not only as attesting witness  but also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads: ART. 806. Every will must be acknowledged before a notary  public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will or file another with the office of the Clerk of Court. [Emphasis supplied] To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 80  be requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law would not be duly in observed. FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside. Cost against the appellee.  Makalintal, C.J., Castro, Teehankee, Makasiar and Muñoz Palma, JJ., concur

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G.R. No. L-39247 June 27, 1975 In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX BALANAY, JR., petitioner, vs. HON. ANTONIO M. MARTINEZ, Judge of t he Court of First Instance of Davao, Branch VI; AVELINA B. ANTONIO and DELIA B. LANABAN, respondents.

 Roberto M. Sarenas for petitioner.  Jose B. Guyo for private respondents.

AQUINO, J .:

Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao dated February 28, 1974, declaring illegal and void the will of his mother, Leodegaria Julian, converting the testate proceeding into an intestate  proceeding and ordering the issuance of the corresponding notice to creditors (Special Case No. 1808). The antecedents of the appeal are as follows: Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in Davao City at the age of sixty-seven. She was survived by her husband, Felix Balanay, Sr., and by their six legitimate children named Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban and E milia B. Pabaonon. Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate of his mother's notarial will dated September 5, 1970 which is written in English. In that will Leodegaria Julian declared (a) that she was the owner of the "southern half of nine conjugal lots (par. II); (b) that she was the absolute owner of two parcels of land which she inherited from her father (par. III), and (c) that it was her desire that her properties should not be divided among her heirs during her husband's lifetime and that their legitimes should be satisfied out of the fruits of her  properties (Par. IV). Then, in paragraph V of the will she stated that after her husband's death (he was eighty-two years old in 1973) her paraphernal lands and all the conjugal lands (which she described as "my properties") should be divided and distributed in the manner set forth in that part of her will. She devised and partitioned the conjugal

lands as if they were all owned by her. She disposed of in the will her husband's one half share of the conjugal assets.  * Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of lack of testamentary capacity, undue influence, preterition of the husband and alleged improper partition of the conjugal estate. The oppositors claimed that Felix Balanay, Jr. should collate certain properties which he had received from the testatrix. Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix Balanay, Sr. dated April 18, 1973 wherein he withdrew his opposition to the  probate of the will and affirmed that he was interested in its probate. On the same date Felix Balanay, Sr. signed an instrument captioned "Conformation (sic) of Division and Renunciation of Hereditary Rights" wherein he manifested that out of respect for his wife's will he "waived and renounced' his hereditary rights in her estate in favor of their six children. In that same instrument he confirmed the agreement, which he and his wife had perfected before her death, that t heir conjugal  properties would be partitioned in the manner indicated in her will. Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and "conformation" of Felix Balanay, Sr. were void. The lower court in its order of June 18, 1973 "denied" the opposition and reset for hearing the probate of the will. It gave effect to the affidavit and conformity of Felix Balanay, Sr. In an order dated August 28, 1973 it appointed its branch clerk of court as special administrator of the decedent's estate. Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973 on the grounds (a) that the testatrix illegally claimed that she was the owner of the southern half of the conjugal lots and (b) that she could not partition the conjugal estate by allocating portions of the nine lots to her children. Felix Balanay, Jr., through his counsel, Hermenegildo Cabreros, opposed that motion. The lower court denied it in its order of October 15, 1973. In the meanwhile, another lawyer appeared in the case. David O. Montaña, Sr., claiming to be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion dated September 25, 1973 for "leave of court to withdraw probate of alleged will of Leodegaria Julian and requesting authority to  proceed by intestate estate proceeding." In that motion Montaña claimed to be the lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon. Montaña in his motion assailed the provision of the will which partitioned the conjugal assets or allegedly effected a compromise of future legitimes. He prayed

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that the probate of the will be withdrawn and that the proceeding be converted into an intestate proceeding. In another motion of the same date he asked that the corresponding notice to creditors be issued. Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments dated October 15, 1973 manifested their conformity with the motion for the issuance of a notice to creditors. They prayed that the will be declared void for  being contrary to law and that an intestacy be declared. The lower court, acting on t he motions of Atty. Montaña, assumed that the issuance of a notice to creditors was in order since the parties had agreed on that point. It adopted the view of Attys. Montaña and Guyo that the will was void. So, in its order of February 28, 1974 it dismissed the petition for the probate, converted the testate  proceeding into an intestate proceeding, ordered the issuance of a notice to creditors and set the intestate proceeding for hearing on April 1 and 2, 1974. The lower court did not abrogate its prior orders of June 18 and October 15, 1973. The notice to creditors was issued on April 1, 1974 and published on May 2, 9 and 16 in the Davao Star in spite of petitioner's motion of April 17, 1974 that its publication be held in abeyance. Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April 15, 1974, asked for the reconsideration of the lower court's order of February 28, 1974 on the ground that Atty. Montaña had no authority to withdraw the petition for the allowance of the will. Attached to the motion was a copy of a letter dated March 27, 1974 addressed to Atty. Montaña and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon, wherein they terminated Montaña's services and informed him that his withdrawal of the petition for the probate of the will was without their consent and was contrary to their repeated reminder to him that their mother's will was "very sacred" to them. Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower court denied the motion in its order of June 29, 1974. It clarified that it declared the will void on the basis of its own independent assessment of its  provisions and not because of Atty. Montaña's arguments. The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring it void. We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to withdraw the petition for  probate (which the lower court assumed to have been filed with the petitioner's authorization), the trial court acted correctly in passing upon the will's intrinsic

validity even before its formal validity had been established. The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be  passed upon, even before it is probated, the court should meet the issue (Nuguid vs.  Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa, L23135, December 26, 1967, 21 SCRA 1369; Cacho vs. Udan, L-19996, April 30, 1965, 13 SCRA 693). 1äwphï1.ñët  But the probate court erred in declaring, in its order of February 28, 1974 that the will was void and in converting the testate proceeding into an intestate proceeding notwithstanding the fact that in its order of June 18, 1973 , it gave effect to the surviving husband's conformity to the will and to his renunciation of his hereditary rights which presumably included his one-half share of the conjugal estate. The rule is that "the invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made" (Art. 792, Civil Code). "Where some of the  provisions of a will are valid and others invalid, the valid parts will be upheld if they can be separated from the invalid without defeating the intention of the testator or interfering with the general testamentary scheme, or doing injustice to the  beneficiaries" (95 C.J.S. 873). The statement of the testatrix that she owned the "southern half of the conjugal lands is contrary to law because, although she was a coowner thereof, her share was inchoate and  proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But That illegal declaration does not nullify the entire will. It may be disregarded. The provision of the will that the properties of the testatrix should not be divided among her heirs during her husband's lifetime but should be kept intact and that the legitimes should be paid in cash is contrary to article 1080 of the Civil Code which reads: ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs. A parent who, in the interest of his or her family, to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering

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that the legitime of the other children to whom the property is not assigned be paid in cash. (1056a) The testatrix in her will made a partition of the entire conjugal estate among her six children (her husband had renounced his hereditary rights and his one-half conjugal share). She did not assign the whole estate to one or more children as envisaged in article 1080. Hence, she had no right to require that the legitimes be paid in cash. On the other hand, her estate may r emain undivided only for a period of twenty years. So, the provision that the estate should not be divided during her husband's lifeti me would at most be effective only for twenty years from the date of her death unless there are compelling reasons for terminating the coownership (Art. 1083, Civil Code). Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said renunciation partakes of a donation of his hereditary rights and his one-half share in the conjugal estate (Art. 1060[1] Civil Code), it should be subject to the limitations  prescribed in articles 750 and 752 of the Civil Code. A portion of the estate should  be adjudicated to the widower for his support and maintenance. Or at least his legitime should be respected. Subject to the foregoing observations and the rules on collation, the will is intrinsically valid and the partition therein may be given effect if it does not  prejudice the creditors and impair the legitimes. The distribution and partition would  become effective upon the death of Felix Balanay, Sr. In the meantime, the net income should be equitably divided among the children and t he surviving spouse. It should be stressed that by reason of the surviving husband's conformity to his wife's will and his renunciation of his hereditary rights, his one-half conjugal share  became a part of his deceased wife's estate. His conformity had the effect of validating the partition made in paragraph V of the will without prejudice, of course, to the rights of the creditors and the legitimes of the compulsory heirs. Article 793 of the Civil Code provides that "property acquired after the making of a will shall only pass thereby, as if the testator had it at the time of making the will, should it expressly appear by the will that such was his intention". Under article 930 of the Civil Code "the legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect." In the instant case there is no doubt that the testatrix and her husband intended to  partition the conjugal estate in the manner set forth in paragraph V of her will. It is

true that she could dispose of by will only her half of the conjugal estate (Art. 170, Civil Code) but since the husband, after the dissolution of the conjugal partnership, had assented to her testamentary partition of the conjugal estate, such partition has  become valid, assuming that the will may be probated. The instant case is different from the  Nuguid case, supra, where the testatrix instituted as heir her sister and preterited her parents. Her will was intrinsically void  because it preterited her compulsory heirs in the direct line. Article 854 of the Civil Code provides that "the preterition or omission of one, some, or all of the compulsory heirs in the direct  line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies, shall be valid insofar as they are not inofficious." Since the  preterition of the parents annulled the institution of the sister of the testatrix and there were no legacies and devises, total intestacy resulted (.Art. 960[2], Civil Code).1äwphï1.ñët  In the instant case, the preterited heir was the surviving spouse. His preterition did not produce intestacy. Moreover, he signified his conformity to his wife's will and renounced his hereditary rights. . It results that the lower court erred in not proceeding with the probate of the will as contemplated in its uncancelled order of June 18, 1973. Save in an extreme case where the will on its face is intrinsically void, it is the probate court's duty to pass first upon the formal validity of the will. Generally, the probate of the will is mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21 SCRA 428). As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in itself prima facie proof that the supposed testator has willed that his estate should be distributed in the manner therein provided, and it is incumbent upon the state that, if legally tenable, such desire be given effect independent of the attitude of the parties affected thereby" (Resolution, Vda. de Precilla vs. Narciso, L-27200, August 18, 1972, 46 SCRA 538, 565). To give effect to the intention and wishes of the testatrix is the first and principal law in the matter of testaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561). Testacy is preferable to intestacy. An interpretation that will render a testamentary disposition operative takes precedence over a construction that will nullify a provision of the will (Arts. 788 and 791, Civil Code). Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate. So compelling is the principle that intestacy should be avoided and that the

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wishes of the testator should prevail that sometimes the language of the will can be varied for the purpose of giving it effect (Austria vs. Reyes, L-23079, February 27, 1970, 31 SCRA 754, 762). As far as is legally possible, the expressed desire of the testator must be followed and the dispositions of the properties in his will should be upheld (Estorque vs. Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546). The law has a tender regard for the wishes of the testator as expressed in his will  because any disposition therein is better than that which the law can make (Castro vs. Bustos, L-25913, February 28, 1969, 27 SCRA 327, 341). Two other errors of the lower court may be noticed. It erred in issuing a notice to creditors although no executor or regular administrator has been appointed. The record reveals that it appointed a special administrator. A notice to creditors is not in order if only a special administrator has been appointed. Section 1, Rule 86 of the Rules of Court, in providing that "immediately after granting letters of testamentary or of administration, the court shall issue a notice requiring all persons having money claims against the decedent to file them in the office of the clerk of said court" clearly contemplates the appointment of an executor or regular administrator and not that of a special administrator. It is the executor or regular administrator who is supposed to oppose the claims against the estate and to pay such claims when duly allowed (See. 10, Rule 86 and sec. 1, Rule 88, Rules of Court). We also take this occasion to point out that the probate court's appointment of its  branch clerk of court as special administrator (p. 30,  Rollo) is not a salutary practice  because it might engender the suspicion that the probate Judge and his clerk of court are in cahoots in milking t he decedent's estate. Should the branch clerk of court commit any abuse or devastavit in the course of his administration, the probate Judge might find it difficult to hold him to a strict accountability. A court employee should devote his official time to his official duties and should not have as a sideline the administration of a decedent's estate.

 Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.

Footnotes

* The pertinent provisions of the will are as follows: "II. That I am the absolute owner of the southern half of the following conjugal properties which I acquired during my married life with my husband, Felix Balanay, Sr., namely: (Here follows an enumeration of nine lots). 1äwphï1.ñët  "III. I am the absolute owner of the following paraphernal  properties which I inherited from my deceased father, Cecilio Julian, namely: (Here follows a description of two lots). "IV. It is my desire and I direct that i n the interest of my family, my properties shall not be divided among my heirs during the lifetime of my husband, Felix Balanay, Sr. but should be kept intact. The respective legitimes of my husband and my children should be paid in cash out of the proceeds of sale of the produce and rents derived from said properties. "V. After the death of my husband, Felix Balanay, Sr., my  properties shall be divided and distributed in the manner as follows:" (Here follows a partition of the nine conjugal lots and the two paraphernal lots. The testatrix divided among her six children not only her two paraphernal lots, one of which she devised to Emilia Pabaonon and the other lot to Felix Balanay, Jr., but also the nine conjugal lots. She did not restrict the  partition to her one-half conjugal share but included her husband's one-half share.).

WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set aside and its order of June 18, 1973, setting for hearing the petition for probate, is affirmed. The lower court is directed to conduct further proceedings in Special Case  No. 1808 in consonance with this opinion. Costs, against the private respondents. SO ORDERED.

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G.R. No. 141882

March 11, 2005

J.L.T. AGRO, INC., represented by its Manager, JULIAN L. TEVES, Petitioner, vs. ANTONIO BALANSAG and HILARIA CADAYDAY, respondents.

DECISION TINGA , J. :

Once again, the Court is faced with the perennial conflict of property claims  between two sets of heirs, a conflict ironically made grievous by the fact that the decedent in this case had resorted to great lengths to allocate which properties should go to which set of heirs. This is a Rule 45 petition assailing the  Decision1 dated 30 September 1999 of the Court of Appeals which reversed the  Decision2 dated 7 May 1993 of the Regional Trial Court (RTC), Branch 45, of Bais City, Negros Oriental. The factual antecedents follow. Don Julian L. Teves (Don Julian) contracted two marriages, first with Antonia Baena (Antonia), and after her death, with Milagros Donio Teves (Milagros Donio). Don Julian had two children with Antonia, namely: Josefa Teves Escaño (Josefa) and Emilio Teves (Emilio). He had also four (4) children with Milagros Donio, namely: Maria Evelyn Donio Teves (Maria Evelyn), Jose Catalino Donio Teves (Jose Catalino), Milagros Reyes Teves (Milagros Reyes) and Pedro Reyes Teves (Pedro).3 The present controversy involves a parcel of land covering nine hundred and fiftyfour (954) square meters, known as Lot No. 63 of the Bais Cadastre, which was originally registered in the name of the conjugal partnership of Don Julian and Antonia under Original Certificate of Title (OCT) No. 5203 of the Registry of Deeds of Bais City. When Antonia died, the land was among the properties involved in an action for partition and damages docketed as Civil Case No. 3443 entitled "Josefa Teves Escaño v. Julian Teves, Emilio B. Teves, et al." 4 Milagros Donio, the second wife of Don Julian, participated as an intervenor. Thereafter, the parties to the case entered into a Compromise Agreement 5 which embodied the partition of all the  properties of Don Julian.

On the basis of the compromise agreement and approving the same, the Court of First Instance (CFI) of Negros Oriental, 12 th Judicial District, rendered a Decision6 dated 31 January 1964. The CFI decision declared a tract of land known as Hacienda Medalla Milagrosa as property owned in common by Don Julian and his two (2) children of the first marriage. The property was to remain undivided during the lifetime of Don Julian .7 Josefa and Emilio likewise were given other  properties at Bais, including the electric plant, the "movie property," the commercial areas, and the house where Don Julian was living. The remainder of the properties was retained by Don Julian, including Lot No. 63. Paragraph 13 of the Compromise Agreement , at the heart of the present dispute, lays down the effect of the eventual death of Don Julian vis-à-vis his heirs: 13. That in the event of death of Julian L. Teves, the properties hereinafter adjudicated to Josefa Teves Escaňo and Emilio B. Teves, (excluding the  properties comprised as Hacienda Medalla Milagrosa together with all its accessories and accessions) shall be understood as including not only their one-half share which they inherited from their mother but also the legitimes and other successional rights which would correspond to them of the other half belonging to their father, Julian L. Teves. In other words, the properties now selected and adjudicated to Juli an L. T eves

(not including hi s share in the H acienda Medalla Milagrosa) shall exclusi vely beadjudicated to the wife in second marriage of Julian L. Teves and his four minor children, namely, Milagros Donio Teves, his two acknowledged natural children Milagros Reyes Teves and Pedro Reyes Teves and his two legitimated children Maria Evelyn Donio Teves and Jose Catalino Donio Teves. (Emphasis supplied) On 16 November 1972, Don Julian, Emilio and Josefa executed a  Deed of  Assignment of Assets with Assumption of Liabilitie s8 in favor of J.L.T. Agro, Inc. (petitioner). Less than a year later, Don Julian, Josefa and Emilio also executed an instrument entitled Supplemental to the Deed of Assignment of Assets with the  Assumption of Liabilities (Supplemental Deed   )9 dated 31 July 1973. This inst rument which constitutes a supplement to the earlier deed of assignment transferred ownership over Lot No. 63, among other properties, in favor of petitioner . 10 On 14 April 1974, Don Julian died intestate. On the strength of the Supplemental  Deed in its favor, petitioner sought the registration of the subject lot in its name. A court, so it appeared, issued an order 11 cancelling OCT No. 5203 in the name of spouses Don Julian and Antonia on 12 November 1979, and on the same date TCT No. T-375 was issued in the name of  petitioner .12 Since then, petitioner has been paying taxes assessed on the subject lot.13

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Meanwhile, Milagros Donio and her children had immediately taken possession over the subject lot after the execution of the Compromise Agreement . In 1974, they entered into a yearly lease agreement with spouses Antonio Balansag and Hilaria Cadayday, respondents herein .14 On Lot No. 63, respondents temporarily established their home and constructed a lumber yard. Subsequently, Milagros Donio and her children executed a  Deed of Extrajudicial Partition of Real Estat e15 dated 18 March 1980. In the deed of partition, Lot No. 63 was allotted to Milagros Donio and her two (2) children, Maria Evelyn and Jose Catalino. Unaware that the subject lot was already registered in the name of petitioner in 1979, respondents bought Lot No. 63 from Milagros Donio as evidenced by the  Deed of Absolute Sale of Real  Estat e16 dated 9 November 1983. At the Register of Deeds while trying to register the deed of absolute sale, respondents discovered that the lot was already titled in the name of petitioner. Thus, they failed to register the deed.17 Respondents, as vendees of Lot No. 63, filed a complaint before the RTC Branch 45 of Bais City, seeking the declaration of nullity and cancellation of TCT No. T-375 in the name of petitioner and the transfer of the title to Lot No. 63 in their names, plus damages.18 After hearing, the trial court dismissed the complaint filed by respondents. The dispositive portion of the decision reads: WHEREFORE, premises considered, by preponderance of evidence, this Court finds judgment in favor of the defendant and against the plaintiff, and thus hereby orders: (1) That complaint be dismissed; (2) That plaintiffs vacate the subject land, particularly identified as Lot No. 63 registered under Transfer Certificate of Title No. T-375; (3) That plaintiffs pay costs. Finding no basis on the counterclaim by defendant, the same is hereby ordered dismissed.19 The trial court ruled that the resolution of the case specifically hinged on the interpretation of paragraph 13 of the Compromise Agreement .20 It added that the direct adjudication of the properties listed in the Compromise Agreement  was only in

favor of Don Julian and his two children by the first marriage, Josefa and Emilio.21Paragraph 13 served only as an amplification of the terms of the adjudication in favor of Don Julian and his two children by the first marriage. According to the trial court, the properties adjudicated in favor of Josefa and Emilio comprised their shares in the estate of their deceased mother Antonia, as well as their potential share in the estate of Don Julian upon the latter’s death. Thus, upon Don Julian’s death, Josefa and Emilio could not claim any share in his estate, except their proper share in the Hacienda Medalla Milagrosa which was adjudicated in favor of Don Julian in the Compromise Agreement . As such, the properties adjudicated in favor of Don Julian, except Hacienda Medalla Milagrosa, were free from the forced legitimary rights of Josefa and Emilio, and Don Julian was under no impediment to allocate the subject lot, among his other properties, to Milagros Donio and her four (4) children.22 The trial court further stressed that with the use of the words "shall be," the adjudication in favor of Milagros Donio and her four (4) children was not final and operative, as the lot was still subject to future disposition by Don Julian during his lifetime.23 It cited paragraph 1424 of the Compromise Agreement  in support of his conclusion.25 With Lot No. 63 being t he conjugal property of Don Julian and Antonia, the trial court also declared that Milagros Donio and her children had no hereditary rights thereto except as to the conjugal share of Don Julian, which they could claim only upon the death of the latter .26 The trial court ruled that at the time of Don Julian’s death on 14 April 1974, Lot No. 63 was no longer a part of his estate since he had earlier assigned it to petitioner on 31 July 1973. Consequently, the lot could not be a proper subject of extrajudicial  partition by Milagros Donio and her children, and not being the owners they could not have sold it. Had respondents exercised prudence before buying the subject lot  by investigating the registration of the same with the Registry of Deeds, they would have discovered that five (5) years earlier, OCT No. 5203 had already been cancelled and replaced by TCT No. T-375 in the name of petitioner, the trial court added.27 The Court of Appeals, however, reversed the trial court’s decision. The decretal part of the appellate decision reads:

WHEREFORE, premises considered, the decision appealed from is hereby REVERSED and SET ASIDE and a new one is entered declaring the Transfer Certificate of Title No. T-375 registered in the name of J.L.T. Agro, Inc. as null and void.

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With costs against defendant J.L.T. Agro, I nc. represented by its Manager, Julian L. Teves. SO ORDERED.28 Per the appellate court, the Compromise Agreement incorporated in CFI decision dated 31 January 1964, particularly paragraph 13 thereof, determined, adjudicated and reserved to Don Julian’s two sets of heirs their future legitimes in his estate except as regards his (Don Julian’s) share in Hacienda Medalla Milagrosa.29 The two sets of heirs acquired full ownership and possession of the properties respectively adjudicated to them in the CFI decision and Don Julian himself could no longer dispose of the same, including Lot No. 63. The disposition in the CFI decision constitutes res judicata.30 Don Julian could have disposed of only his conjugal share in the Hacienda Medalla Milagrosa .31 The appellate court likewise emphasized that nobody in his right judgment would  preterit his legal heirs by simply executing a document like the Supplemental  Deed which practically covers all properties which Don Julian had reserved in favor of his heirs from the second marriage. It also found out that the blanks reserved for the Book No. and Page No. at the upper right corner of TCT No. T-375, "to identify the exact location where the said title was registered or transferred," were not filled up, thereby indicating that the TCT is "spurious and of dubious origin. "32 Aggrieved by the appellate court’s decision, petitioner elevated it to this Court via a  petition for review on certiorari, raising pure questions of law.

Before this Court, petitioner assigns as errors the following rulings of the appellate court, to wit: (a) that future legitime can be determined, adjudicated and reserved  prior to the death of Don Julian; (b) that Don Julian had no right to dispose of or assign Lot No. 63 to petitioner because he reserved the same for his heirs from the second marriage pursuant to the Compromise Agreement ; (c) that the Supplemental  Deed was tantamount to a preterition of his heirs from the second marriage; and (d) that TCT No. T-375 in the name of petitioner is spurious for not containing entries on the Book No. and Page No .33 While most of petitioner’s legal arguments have merit, the application of the appropriate provisions of law to the facts borne out by the evidence on record nonetheless warrants the affirmance of the result reached by the Court of Appeals in favor of respondents.

Being the key adjudicative provision, paragraph 13 of the Compromise  Agreement  has to be quoted again:

13. That in the event of death of Julian L. Teves, the properties herein adjudicated to Josefa Teves Escaño and Emilio B. Teves, (excluding the  properties comprised as Hacienda Medalla Milagrosa together with all its accessories and accessions) shall be understood as including not only their one-half share which they inherited from their mother but also the legitimes and other successional rights which would correspond to them of the other half belonging to their father, Julian L.Teves . In other words, the properties now selected and adjudicated to Julian L. Teves (not including his share in the Hacienda Medalla Milagrosa)  shall exclusi vely beadjudicated  to the wife in second marriage of Julian L. Teves and his four minor children, namely, Milagros Donio Teves, his two acknowledged natural children Milagros Reyes Teves and Pedro Reyes Teves and his two legitimated children Maria Evelyn Donio Teves and Jose Catalino Donio Teves."  (Emphasis supplied) With the quoted paragraph as basis, the Court of Appeals ruled that the adjudication in favor of the heirs of Don Julian from the second marriage became automatically operative upon the approval of the Compromise Agreement , thereby vesting on them the right to validly dispose of Lot No. 63 in favor of respondents. Petitioner argues that the appellate court erred in holding that future legitime can be determined, adjudicated and reserved prior to the death of Don Julian. The Court agrees. Our declaration in  Blas v. Santo s34 is relevant, where we defined future inheritance as any property or right not in existence or capable of determination at the time of the contract , that a person may in the future acquire by succession. Article 1347 of the New Civil Code explicitly provides: ART. 1347. All things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of contracts. No contract may be entered into upon future inheritance except in cases expressly authorized by law.

All services which are not contrary to law, morals, good customs, public order or  public policy may likewise be the object of a contract. Well-entrenched is the rule that all things, even future ones, which are not outside the commerce of man may be the object of a contract. The exception is that no contract may be entered into with respect to future inheritance, and the exception to the exception is the partition inter vivos referred to in Article 1080.35

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For the inheritance to be considered "future," the succession must not have been opened at the time of the contract.36 A contract may be classified as a contract upon future inheritance, prohibited under the second paragraph of Article 1347, where the following requisites concur: (1) That the succession has not yet been opened; (2) That the object of the contract forms part of the inheritance; and (3) That the promissor has, with respect to the object, an expectancy of a right which is purely hereditary in nature.37 The first paragraph of Article 1080, which provides the exception to the exception and therefore aligns with the general rule on future things, reads: ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not  prejudice the legitime of the compulsory heirs. .... In interpreting this provision, Justice Edgardo Paras advanced the opinion that if the  partition is made by an act inter vivos, no formalities are prescribed by t he Article.38 The partition will of course be effective only after death . It does not necessarily require the formalities of a will for after all it is not the partition that is the mode of acquiring ownership. Neither will the formalities of a donation be required since donation will not be the mode of acquiring the ownership here after death; since no will has been made it follows that the mode will be succession (intestate succession). Besides, the partition here i s merely the physical determination of the part to be given to each heir .39 The historical antecedent of Article 1080 of the New Civil Code is Article 105 6 40 of the old Civil Code. The only change in the provision is that Article 1080 now  permits any person (not a testator, as under the old law) to partition his estate by act inter vivos. This was intended to abrogate the then prevailing doctrine that for a testator to partition his estate by an act inter vivos, he must first make a will with all the formalities provided by law .41 Article 1056 of the old Civil Code (now Article 1080) authorizes a testator to  partition inter vivos his property, and distribute them among his heirs, and this  partition is neither a donation nor a testament, but an instrument of a special character  , sui generis, which is revocable at any time by the causante duri ng his

li fetime, and does not operate as a conveyance of title until hi s death . It derives its  binding force on the heirs from the respect due to the will of the owner of the  property, limited only by his creditors and the intangibility of the legitime of the forced heirs.42 The partition inter vivos of the properties of Don Julian is undoubtedly valid  pursuant to Article 1347. However, considering that it would become legally operative only upon the death of Don Julian, the right of his heirs from the second marriage to the properties adjudicated to him under the compromise agreement was  but a mere expectancy. It was a bare hope of succession to the property of their father. Being the prospect of a future acquisition, the interest by its nature was inchoate. It had no attribute of property, and the interest to which it related was at the time nonexistent and might never exist.43 Evidently, at the time of the execution of the deed of assignment covering Lot No. 63 in favor of petitioner, Don Julian remained the owner of the property since ownership over the subject lot would only pass to his heirs from the second marriage at the time of his death. Thus, as the owner of the subject lot, Don Julian retained the absolute right to dispose of it during his lifetime. His right cannot be challenged by Milagros Donio and her children on the ground that it had already been adjudicated to them by virtue of the compromise agreement. Emerging as the crucial question in this case is whether Don Julian had validly transferred ownership of the subject lot during his lifetime. The lower court ruled that he had done so through the Supplemental Deed . The appellate court disagreed, holding that the Supplemental Deed is not valid, containing as it does a prohibited  preterition of Don Julian’s heirs from the second marriage. Petitioner contends that the ruling of the Court of Appeals is erroneous. The contention is well-founded. Article 854 provides that the preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. Manresa defines preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him expressly, nor assigning to him some part of the properties.44 It is the total omission of a compulsory heir in the direct line from inheritance.45 It consists in the silence of the testator with regard to a compulsory heir, omitting him in the testament , either by not mentioning him at all, or by not giving him anything in the hereditary property but without expressly disinheriting him, even if he is mentioned in the will in the latt er case.46 But there is no preterition where the testator allotted to a descendant a share less than the legitime, since there was no total omission of a forced heir .47

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In the case at bar, Don Julian did not execute a will since what he resorted to was a  partition inter vivos of his properties, as evidenced by the court approved Compromise Agreement . Thus, it is premature if not irrelevant to speak of  preterition prior to the death of Don Julian in the absence of a will depriving a legal heir of his legitime. Besides, there are other properties which the heirs from the second marriage could inherit from Don Julian upon his death. A couple of  provisions in the Compromise Agreement are indicative of Don Julian’s desire along this line.48Hence, the total omission from inheritance of Don Julian’s heirs from the second marriage, a requirement for preterition to exist, is hardly imaginable as it is unfounded. Despite the debunking of respon dents’ argument on preterition, still the petition would ultimately rise or fall on whether there was a valid transfer effected by Don Julian to petitioner. Notably, Don Julian was also the president and director of  petitioner, and his daughter from the first marriage, Josefa, was the treasurer thereof. There is of course no legal prohibition against such a transfer to a family corporation. Yet close scrutiny is in order, especially considering that such transfer would remove Lot No. 63 from the estate from which Milagros and her children could inherit. Both the alleged transfer deed and the title which necessarily must have emanated from it have to be subjected to incisive and detailed examination. Well-settled, of course, is the rule that a certificate of title serves as evidence of an indefeasible title to the property i n favor of the person whose name appears therein.49 A certificate of title accumulates in one document a precise and correct statement of the exact status of the fee held by its owner. The certificate, in the absence of fraud, is the evidence of title and shows exactly the real interest of its owner .50 To successfully assail the juristic value of what a Torrens title establishes, a sufficient and convincing quantum of evidence on the defect of the title must be adduced to overcome the predisposition in law in favor of a holder of a Torrens title. Thus, contrary to the appellate court’s ruling, the appearance of a mere thumbmark of Don Julian instead of his signature in the Supplemental Deed  would not affect the validity of petitioner’s title for this Cour t has ruled that a thumbmark is a recognized mode of signature.51 The truth, however, is that the replacement of OCT No. 5203 in the name of Julian  by T.C.T. No. T-375 is marred by a grave irregularity which is also an illegality, as it contravenes the orthodox, conventional and normal process established by law. And, worse still, the illegality is reflected on the face of both titles. Where, as in this case, the transferee relies on a voluntary instrument to secure the issuance of a new title in his name such instrument has to be presented to the Registry of Deeds. This

is evident from Sections 53 and 57 of Presidential Decree (P.D.) No. 1529 or the Property Registration Decree. The sections read, thus: SEC. 53. Presentation of owner’s duplicate upon entry of new certificate.  –  No voluntary instrument  shall be registered by the Register of Deeds unless the owner’s duplicate certificate is presented with such instrument, except in cases expressly provided for in this Decree or upon order of the court, for cause shown. (Emphasis supplied)

.... SEC. 57. Procedure in registration of conveyances.  –  An owner desiring to convey his registered land in fee simple shall execute and register a deed of conveyance in a form sufficient in law .  The Register of Deeds shall thereafter make out in the registration book a new certificate of title to the grantee and shall prepare and deliver to him an owner’s duplicate certificate. The Register of Deeds shall note upon the original and duplicate certificate the date of transfer, the volume and page of the registration book in which the new certificate is registered and a reference  by number to the last preceding certificate. The original and the owner’s duplicate of the grantor’s certificate shall be stamped "cancelled." The deed of conveyance shall be filed and endorsed with the number and the place of registration of the certificate of title of the land conveyed . (Emphasis supplied) As petitioner bases its right to the subject lot on the Supplemental Deed, it should have presented it to the Register of Deeds to secure the transfer of the title in its name. Apparently, it had not done so. There is nothing on OCT No. 5203 or on the succeeding TCT No. T-375 either which shows that it had presented the Supplemental Deed . In fact, there is absolutely no mention of a reference to said document in the original and transfer certificates of title. It is in this regard that the finding of the Court of Appeals concerning the absence of entries on the blanks intended for the Book No. and Page No. gains significant relevance. Indeed, this aspect fortifies the conclusion that the cancellation of OCT No. 5203 and the consequent issuance of TCT No. T-375 in its place are not predicated on a valid transaction. What appears instead on OCT No. 5203 is the following pertinent entry: Entry No. 1374: Kind: Order: Executed in favor of J.L.T. AGRO, INC.

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CONDITIONS: Lost owner’s duplicate is hereby cancelled , and null and void and a new Certificate of Titl e No. 375 is issued per Order of the Court of First Instance  on file in this office.

A plain reading of the pertinent provisions of the Supplemental Deed  discloses that the assignment is not supported by any consideration. The provision reads: ....

Date of Instrument: November 12, 1979 Date of Inscription: Nov. 12, 1979 4:00 P.M. (SGD) MANUEL C. MONTESA Acting Deputy Register of Deeds II (Emphasis supplied)52 What the entry indicates is that the owner’s duplicate of OCT No. 5203 was lost, a  petition for the reconstitution of the said owner’s duplicate was filed in court, and the court issued an order for the reconstitution of the owner’s duplicate and its replacement with a new one. But if the entry is to be believed, the court concerned (CFI, according to the entry) issued an order for the issuance of a new title which is TCT No. T-375 although the original of OCT No. 5203 on file with the Registry of Deeds had not been lost. Going by the legal, accepted and normal process, the reconstitution court may order the reconstitution and replacement of the lost title only, nothing else. Since what was lost is the owner’s copy of OCT No. 5203, only t hat owner’s copy could be ordered replaced. Thus, the Register of Deeds exceeded his authority in issuing not just a reconstituted owner’s copy of the original certificate of title but a new transfer certificate of title in place of the original certificate of title. But if the court order, as the entry intimates, directed the issuance of a new transfer certificate of title — even designating the very number of the new transfer certificate of title itself  — the order would be patently unlawful. A court cannot legally order the cancellation and replacement of the original of the O.C.T. which has not been lost ,53 as the petition for reconstitution is premised on the loss merely of the owner’s duplicate of the OCT Apparently, petitioner had resorted to the court order as a convenient contrivance to effect the transfer of title to the subject lot in its name, instead of the Supplemental  Deed  which should be its proper course of action. It was so constrained to do  because the Supplemental Deed does not constitute a deed of conveyance of the "registered land in fee simple" "in a form sufficient in law," as required by Section 57 of P.D. No. 1529.

WHEREAS, in the Deed of Assignment of Assets with the Assumption of Liabilities executed by Julian L. Teves, Emilio B. Teves and Josefa T. Escaño at Dumaguete City on 16 th day of November 1972 and ratified in the City of Dumaguete before Notar y Public Lenin Victoriano, and entered in the latter’s notarial register as Doc. No. 367; Page No. 17; Book  No. V; series of 1972, Julian L. Teves, Emilio B. Teves and Josefa T. Escaño, transferred, conveyed and assigned unto J.L.T. AGRO, INC., all its assets and liabilities as reflected in the Balance Sheet of the former as of December 31, 1971. WHEREAS, on the compromise agreement, as mentioned in the Decision made in the Court of First Instance of Negros Oriental, 12 th Judicial District Branch II, on Dec. 31, 1964 pertaining to Civil Case No. 3443 the following properties were adjudicated to Don Julian L. Teves. We quote. From the properties at Bais Adjudicated to Don Julian L.Teves .... Lot No. 63,  Tax Dec. No. 33, Certificate of Title No. 5203, together with all improvements. Assessed value - P2,720.00

.... WHEREAS, this Deed of Assignment is executed by the parties herein in order to effect the registration of the transfer of the above corporation.  NOW, THEREFORE, for and in consideration of the above premises the ASSIGNOR hereby transfers, conveys, and assigns unto J.L.T. AGRO, INC., the above described parcel of land[s] with a fair mark et value of E I GHTY -FOUR TH OUSAND PE SOS (P84,000.00), Philippine Currency, and which transfer, conveyance and assignment shall become absolute upon signing.54 (Emphasis supplied)

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The amount of P84,000.00 adverted to in the dispositive portion of the instrument does not represent the consideration for the assignment made by Don Julian. Rather, it is a mere statement of the fair market value of allthe nineteen (19) properties enumerated in the instrument, of which Lot No. 63 is just one, that were transferred  by Don Julian in favor of petitioner. Consequently, the testimony55 of petitioner’s accountant that the assignment is supported by consideration cannot prevail over the clear provision to the contrary in the Supplemental Deed . The Court of Appeals, on the other hand, apparently considered the 1948 mortgage which is annotated on the back of the TCT No. T-375 as the consideration for the assignment.56 However, the said annotation57 shows that the mortgage was actually executed in favor of Rehabilitation Finance Corporation, not of petitioner . 58 Clearly, said mortgage, executed as it was in favor of the Rehabilitation Finance Corporation and there being no showing that petitioner itself paid off the mortgate obligation, could not have been the consideration for the assignment to petitioner. Article 1318 of the New Civil Code enumerates the requisites of a valid contract, namely: (1) consent of the contracting parties; (2) object certain which is the subject matter of the contract; and (3) Cause of the obligation which is established. Thus, Article 1352 declares that contracts without cause, or with unlawful cause  produce no effect whatsoever. Those contracts lack an essential element and they are not only voidable but void or i nexistent pursuant to Article 1409, paragraph (2).59 The absence of the usual recital of consideration in a transaction which normally should be supported by a consideration such as the assignment made by Don Julian of all nineteen (19) lots he still had at the time, coupled with the fact that the assignee is a corporation of which Don Julian himself was also the President and Director, forecloses the application of the presumption of existence of consideration established by law.60  Neither could the Supplemental Deed validly operate as a donation. Article 749 of the New Civil Code is clear on the point, thus: Art. 749. In order that the donation of the immovable may be valid, it must  be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy. The acceptance may be made in the same deed of donation or in a separate  public document, but it shall not take effect unless it is done during the lifetime of the donor.

If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments. In Sumipat, et al v. Banga, et al. ,61 this Court declared that title to immovable  property does not pass from the donor to the donee by virtue of a deed of donation until and unless it has been accepted in a public instrument and the donor duly notified thereof. The acceptance may be made in the very same instrument of donation. If the acceptance does not appear in the same document, it must be made in another. Where the deed of donation fails to show the acceptance, or where the formal notice of the acceptance, made in a separate instrument, is either not given to the donor or else not noted in the deed of donation and in the separate acceptance, the donation is null and void. In the case at bar, although the Supplemental  Deed appears in a public document,62 the absence of acceptance by the donee in the same deed or even in a separate document is a glaring violation of the requirement. One final note. From the substantive and procedural standpoints, the cardinal objectives to write  finis to a protracted litigation and avoid multiplicity of suits are worth pursuing at all times.63 Thus, this Court has ruled that appellate courts have ample authority to rule on specific matters not assigned as errors or otherwise not raised in an appeal, if these are indispensable or necessary to the just resolution of the pleaded issues.64 Specifically, matters not assigned as errors on appeal but consideration of which are necessary in arriving at a just decision and complete resolution of the case, or to serve the interest of justice or to avoid dispensing  piecemeal justice.65 In the instant case, the correct characterization of the Supplemental Deed , i.e., whether it is valid or void, is unmistakably determinative of the underlying controversy. In other words, the issue of validity or nullity of the instrument which is at the core of the controversy is interwoven with the issues adopted by the parties and the rulings of the trial court and the appellate court .66 Thus, this Court is also resolute in striking down the alleged deed in this case, especially as it appears on its face to be a blatant nullity. WHEREFORE, foregoing premises considered, the  Decision dated 30 September 1999 of the Court of Appeals is hereby AFFIRMED. Costs against petitioner J.L.T. Agro, Inc. SO ORDERED.

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 Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ., concur .

16

 Id . at 102; Exh. D.

17

 Rollo, pp. 81-82.

18

Supra note 12.

Footnotes 19

 Rollo, p. 89.

20

 Id. at 85.

21

 Id. at 87.

1

 Rollo, pp. 9-24. Decision penned by Justice B. Adefuin-De la Cruz and concurred in by Justices Fermin Martin, Jr. and Presbitero Velasco, Jr. 2

 Id. at 81-89. Decision penned by Judge Ismael Baldado.

3

 Id. at 82. Maria Evelyn and Jose Catalino are the legitimated children of Don Julian and Milagros Donio while Milagros Reyes and Pedro are their acknowledged natural children.[3]

22

 I d. at 87.

23

 Id. at 87-88.

4

 Id. at 82.

5

 Id. at 82-83.

6

 Rollo, pp. 69-75.

7

 Ibid.

24

14. That, however, in the event Julian L. Teves or his heirs abovementioned in the next preceding paragraph would sell any of the

 properties adjudicated to the said J ulian L. Teves in this agreement , his two children of the first marriage, Emilio B. Teves and Josefa Teves Escaño, shall be given the first option and preference to buy said  properties at a price to be agreed upon by the parties only in case, when the latter two shall refuse to buy may Julian L. Teves or his heirs already mentioned sell the same to other third persons. (Emphasis added)

8

 Rollo, p. 83.

9

Records, pp. 77-79.

25

 Id . at 88.

26

 Ibid.

27

 Id . at 89.

28

 Id. at 24.

29

 Id. at 19.

30

 Id. at 22.

31

 Id . at 23.

10

 Rollo, p. 84.

11

RTC Records, p. 108.

12

 Id. at 109 and 162;  Rollo, p. 84.

13

 Id. at 14.

14

15

Balansag died on 16 January 1997. Records, p. 98; Exh. B.

Page 49 of 51

32

46

Tolentino, Civil Code of the Philippines, Vol. III, 187 (1992).

33

47

Reyes-Barreto v. Barretto-Datu, 125 Phil. 501 (1967).

48

Paragraph 13 of the Compromise Agreement provides in part:

 Id. at 24.  Id. at 33.

34

111 Phi. 503 (1961).

Civil Code of the Philippines, Vol. III, 556 (12 th ed., 1989).

. . . . In other words, the  properties now selected and adjudicated to Julian L. Teves (not including his share in the Hacienda Medalla Milagrosa) shall exclusively be adjudicated to the wife in second marriage of Julian L. Teves and his four minor children, namely, Milagros Donio Teves, his two acknowledged natural children Milagros Reyes Teves and Pedro Reyes Teves and his two legitimated children Maria Evelyn Donio Teves and Jose Catalino Donio Teves. (Emphasis supplied)

 Ibid .

Paragraph 7 thereof reads :

35

Perillo, et al v. Perillo, et al., (CA) 48 O.G. 4444, cited  in Padilla, Civil Law, Vol. IV-A, 221 (1988). 36

Tolentino, Civil Code of the Philippines, Vol. IV, 522 (1991).

37

 Ibid.

38

39

40

7. That the parties shall not demand the partition of the said Hacienda Medalla Milagrosa which shall remain undivided during the lifetime of Julian L. Teves and shall be under the  joint administration of Julian L. Teves, Josefa T. Escaño and Emilio B. Teves. Monthly reports of the affairs and management of the hacienda shall be prepared and approved by all. In the event of death of Julian L. Teves, the Hacienda Medalla Milagrosa may then be partitioned and the one-half undivided share which in this agreement pertains to Julian L. Teves may be divided between his heirs, namely, Emilio B. Teves, Josefa Teves Escaño, the wife in second marriage of Julian L. Teves, Milagrosa Donio Teves and his four minor children, the two acknowledged natural, Milagros Reyes Teves and Pedro Reyes Teves and the other tw o legitimated children Maria Evelyn Donio Teves and Jose Catalino Teves , in the  proportion established by law. (Emphasis supplied)

Art. 1056. If the testator  should make a partition of his property by an act inter vivos, or by will, such partition shall stand in so far as it does not  prejudice the legitime of the forced heirs. 41

Dizon-Rivera v. Dizon, 144 Phil. 558 (1970); See also Zaragoza v. Court of Appeals, G.R. No. 106401,  September 29, 2000, 341 SCRA 309, 315316. A contrary opinion, however, is advanced by Tolentino and Reyes and Puno. 42

Albela and Aebuya v. Albela and Allones, (CA) G.R. No. 5583-R, June 20, 1951. 43

Johnson v. Breeding, 136 Tenn 528, 190 SW 545.

44

Aznar v. Duncan, 123 Phil. 1450 (1966).

45

Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.

49

 Noblejas and Noblejas, Registration of Land and Titles and Deeds, p. 178 (1986 ed.). 50

Halili v. Court of Industrial Relations, 326 Phil. 982 (1996).

51

....

Solar v. Diancin, 55 Phil. 479 (1930); De Gala v. Gonzales, 51 Phil. 480 (1928).

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