G.R. No.

L-4963 January 29, 1953

MARIA USON, plaintiff-appellee,

vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA, DOMINADOR NEBREDA, AND FAUSTINO
NEBREDA, Jr., defendants-appellants.

BAUTISTA ANGELO, J.:

This is an action for recovery of the ownership and possession of five (5) parcels of land situated in the Municipality of Labrador,
Province of Pangasinan, filed by Maria Uson against Maria del Rosario and her four children named Concepcion, Conrado,
Dominador, and Faustino, surnamed Nebreda, who are all of minor age, before the Court of First Instance of Pangasinan.

Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands involved in this litigation. Faustino
Nebreda left no other heir except his widow Maria Uson. However, plaintiff claims that when Faustino Nebreda died in 1945, his
common-law wife Maria del Rosario took possession illegally of said lands thus depriving her of their possession and enjoyment.

Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and her husband, the late Faustino
Nebreda, executed a public document whereby they agreed to separate as husband and wife and, in consideration of their
separation, Maria Uson was given a parcel of land by way of alimony and in return she renounced her right to inherit any other
property that may be left by her husband upon his death (Exhibit 1).

After trial, at which both parties presented their respective evidence, the court rendered decision ordering the defendants to restore
to the plaintiff the ownership and possession of the lands in dispute without special pronouncement as to costs. Defendants
interposed the present appeal.

There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda, former owner of the five parcels of
lands litigated in the present case. There is likewise no dispute that Maria del Rosario, one of the defendants-appellants, was
merely a common-law wife of the late Faustino Nebreda with whom she had four illegitimate children, her now co-defendants. It
likewise appears that Faustino Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With this background, it is
evident that when Faustino Nebreda died in 1945 the five parcels of land he was seized of at the time passed from the moment of
his death to his only heir, his widow Maria Uson (Article 657, old Civil Code).As this Court aptly said, "The property belongs to the
heirs at the moment of the death of the ancestor as completely as if the ancestor had executed and delivered to them a deed for
the same before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that moment, therefore, the rights of inheritance of
Maria Uson over the lands in question became vested.

The claim of the defendants that Maria Uson had relinquished her right over the lands in question because she expressly
renounced to inherit any future property that her husband may acquire and leave upon his death in the deed of separation they had
entered into on February 21, 1931, cannot be entertained for the simple reason that future inheritance cannot be the subject of a
contract nor can it be renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and Ynchausti
Steamship Co., 41 Phil., 531).

But defendants contend that, while it is true that the four minor defendants are illegitimate children of the late Faustino Nebreda
and under the old Civil Code are not entitled to any successional rights, however, under the new Civil Code which became in force
in June, 1950, they are given the status and rights of natural children and are entitled to the successional rights which the law
accords to the latter (article 2264 and article 287, new Civil Code), and because these successional rights were declared for the
first time in the new code, they shall be given retroactive effect even though the event which gave rise to them may have occurred
under the prior legislation (Article 2253, new Civil Code).

There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are declared for the first time shall
have retroactive effect even though the event which gave rise to them may have occurred under the former legislation, but this is
so only when the new rights do not prejudice any vested or acquired right of the same origin. Thus, said article provides that "if a
right should be declared for the first time in this Code, it shall be effective at once, even though the act or event which gives rise
thereto may have been done or may have occurred under the prior legislation, provided said new right does not prejudice or impair
any vested or acquired right, of the same origin." As already stated in the early part of this decision, the right of ownership of Maria
Uson over the lands in question became vested in 1945 upon the death of her late husband and this is so because of the
imperative provision of the law which commands that the rights to succession are transmitted from the moment of death (Article
657, old Civil Code). The new right recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot,
therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in dispute.
As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of pity or compassion, agreed to
assign the lands in question to the minor children for the reason that they were acquired while the deceased was living with their
mother and Maria Uson wanted to assuage somewhat the wrong she has done to them, this much can be said; apart from the fact
that this claim is disputed, we are of the opinion that said assignment, if any, partakes of the nature of a donation of real property,
inasmuch as it involves no material consideration, and in order that it may be valid it shall be made in a public document and must
be accepted either in the same document or in a separate one (Article 633, old Civil Code). Inasmuch as this essential formality
has not been followed, it results that the alleged assignment or donation has no valid effect.

WHEREFORE, the decision appealed from is affirmed, without costs.

Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Labrador, JJ., concur.

G.R. No. L-28040 August 18, 1972

TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-appellee; JOSE DE BORJA, as administrator,
CAYETANO DE BORJA, MATILDE DE BORJA and CRISANTO DE BORJA (deceased) as Children of Josefa Tangco,
appellees,
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of Francisco de Borja, appellant. .

G.R. No L-28568 August 18, 1972

TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O. VDA. DE DE BORJA, special Administratrix appellee,
vs.
JOSE DE BORJA, oppositor-appellant.

G.R. No. L-28611 August 18, 1972

TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate of the late Francisco de Borja, plaintiff-appellee,
vs.
JOSE DE BORJA, as Administrator of the Testate Estate of the late Josefa Tangco, defendant-appellant.

REYES, J.B.L., J.:p

Of these cases, the first, numbered L-28040 is an appeal by Tasiana Ongsingco Vda. de de Borja, special administratrix of the
testate estate of Francisco de Borja,1 from the approval of a compromise agreement by the Court of First Instance of Rizal, Branch
I, in its Special Proceeding No. R-7866, entitled, "Testate Estate of Josefa Tangco, Jose de Borja, Administrator".

Case No. L-28568 is an appeal by administrator Jose Borja from the disapproval of the same compromise agreement by the Court
of First Instance of Nueva Ecija, Branch II, in its Special Proceeding No. 832, entitled, "Testate Estate of Francisco de Borja,
Tasiana O. Vda. de de Borja, Special Administratrix".

And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision of the Court of First Instance of Rizal, Branch
X, in its Civil Case No. 7452, declaring the Hacienda Jalajala Poblacion, which is the main object of the aforesaid compromise
agreement, as the separate and exclusive property of the late Francisco de Borja and not a conjugal asset of the community with
his first wife, Josefa Tangco, and that said hacienda pertains exclusively to his testate estate, which is under administrator in
Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija, Branch II.

It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6 October 1940, filed a petition for the
probate of her will which was docketed as Special Proceeding No. R-7866 of the Court of First Instance of Rizal, Branch I. The will
was probated on 2 April 1941. In 1946, Francisco de Borja was appointed executor and administrator: in 1952, their son, Jose de
Borja, was appointed co-administrator. When Francisco died, on 14 April 1954, Jose became the sole administrator of the testate
estate of his mother, Josefa Tangco. While a widower Francisco de Borja allegedly took unto himself a second wife, Tasiana
Ongsingco. Upon Francisco's death, Tasiana instituted testate proceedings in the Court of First Instance of Nueva Ecija, where, in
1955, she was appointed special administratrix. The validity of Tasiana's marriage to Francisco was questioned in said proceeding.

The relationship between the children of the first marriage and Tasiana Ongsingco has been plagued with several court suits and
counter-suits; including the three cases at bar, some eighteen (18) cases remain pending determination in the courts. The testate
estate of Josefa Tangco alone has been unsettled for more than a quarter of a century. In order to put an end to all these
litigations, a compromise agreement was entered into on 12 October 1963,2 by and between "[T]he heir and son of Francisco de
Borja by his first marriage, namely, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco," and
"[T]he heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her
lawyer, Atty. Luis Panaguiton Jr." The terms and conditions of the compromise agreement are as follows:

AGREEMENT

THIS AGREEMENT made and entered into by and between

The heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja personally and as
administrator of the Testate Estate of Josefa Tangco,

AND

The heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja,
assisted by her lawyer, Atty. Luis Panaguiton Jr.

WITNESSETH

THAT it is the mutual desire of all the parties herein terminate and settle, with finality, the various court litigations,
controversies, claims, counterclaims, etc., between them in connection with the administration, settlement,
partition, adjudication and distribution of the assets as well as liabilities of the estates of Francisco de Borja and
Josefa Tangco, first spouse of Francisco de Borja.

THAT with this end in view, the parties herein have agreed voluntarily and without any reservations to enter into
and execute this agreement under the following terms and conditions:

1. That the parties agree to sell the Poblacion portion of the Jalajala properties situated in Jalajala, Rizal,
presently under administration in the Testate Estate of Josefa Tangco (Sp. Proc. No. 7866, Rizal), more
specifically described as follows:

Linda al Norte con el Rio Puwang que la separa de la jurisdiccion del Municipio de Pililla de la
Provincia de Rizal, y con el pico del Monte Zambrano; al Oeste con Laguna de Bay; por el Sur
con los herederos de Marcelo de Borja; y por el Este con los terrenos de la Familia Maronilla

with a segregated area of approximately 1,313 hectares at the amount of P0.30 per square meter.

2. That Jose de Borja agrees and obligates himself to pay Tasiana Ongsingco Vda. de de Borja the total amount
of Eight Hundred Thousand Pesos (P800,000) Philippine Currency, in cash, which represent P200,000 as his
share in the payment and P600,000 as pro-rata shares of the heirs Crisanto, Cayetano and Matilde, all surnamed
de Borja and this shall be considered as full and complete payment and settlement of her hereditary share in the
estate of the late Francisco de Borja as well as the estate of Josefa Tangco, Sp. Proc. No. 832-Nueva Ecija and
Sp. Proc. No. 7866-Rizal, respectively, and to any properties bequeathed or devised in her favor by the late
Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or Mortis Causa or purportedly
conveyed to her for consideration or otherwise. The funds for this payment shall be taken from and shall depend
upon the receipt of full payment of the proceeds of the sale of Jalajala, "Poblacion."

3. That Tasiana Ongsingco Vda. de de Borja hereby assumes payment of that particular obligation incurred by
the late Francisco de Borja in favor of the Rehabilitation Finance Corporation, now Development Bank of the
Philippines, amounting to approximately P30,000.00 and also assumes payment of her 1/5 share of the Estate
and Inheritance taxes on the Estate of the late Francisco de Borja or the sum of P3,500.00, more or less, which
shall be deducted by the buyer of Jalajala, "Poblacion" from the payment to be made to Tasiana Ongsingco Vda.
de Borja under paragraph 2 of this Agreement and paid directly to the Development Bank of the Philippines and
the heirs-children of Francisco de Borja.

4. Thereafter, the buyer of Jalajala "Poblacion" is hereby authorized to pay directly to Tasiana Ongsingco Vda.
de de Borja the balance of the payment due her under paragraph 2 of this Agreement (approximately
P766,500.00) and issue in the name of Tasiana Ongsingco Vda. de de Borja, corresponding certified
checks/treasury warrants, who, in turn, will issue the corresponding receipt to Jose de Borja.
 5. In consideration of above payment to Tasiana Ongsingco Vda. de de Borja, Jose de Borja personally and as
administrator of the Testate Estate of Josefa Tangco, and Tasiana Ongsingco Vda. de de Borja, for themselves
and for their heirs, successors, executors, administrators, and assigns, hereby forever mutually renounce,
withdraw, waive, remise, release and discharge any and all manner of action or actions, cause or causes of
action, suits, debts, sum or sums of money, accounts, damages, claims and demands whatsoever, in law or in
equity, which they ever had, or now have or may have against each other, more specifically Sp. Proceedings
Nos. 7866 and 1955, CFI-Rizal, and Sp. Proc. No. 832-Nueva Ecija, Civil Case No. 3033, CFI Nueva Ecija and
Civil Case No. 7452-CFI, Rizal, as well as the case filed against Manuel Quijal for perjury with the Provincial
Fiscal of Rizal, the intention being to completely, absolutely and finally release each other, their heirs,
successors, and assigns, from any and all liability, arising wholly or partially, directly or indirectly, from the
administration, settlement, and distribution of the assets as well as liabilities of the estates of Francisco de Borja
and Josefa Tangco, first spouse of Francisco de Borja, and lastly, Tasiana Ongsingco Vda. de de Borja
expressly and specifically renounce absolutely her rights as heir over any hereditary share in the estate of
Francisco de Borja.

6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the payment under paragraph 4 hereof, shall
deliver to the heir Jose de Borja all the papers, titles and documents belonging to Francisco de Borja which are in
her possession and said heir Jose de Borja shall issue in turn the corresponding receive thereof.

7. That this agreement shall take effect only upon the fulfillment of the sale of the properties mentioned under
paragraph 1 of this agreement and upon receipt of the total and full payment of the proceeds of the sale of the
Jalajala property "Poblacion", otherwise, the non-fulfillment of the said sale will render this instrument NULL AND
VOID AND WITHOUT EFFECT THEREAFTER.

IN WITNESS WHEREOF, the parties hereto have her unto set their hands in the City of Manila, Philippines, the
12th of October, 1963.

On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12 October 1963 to the Court of First Instance of
Rizal, in Special Proceeding No. R-7866; and again, on 8 August 1966, to the Court of First Instance of Nueva Ecija, in Special
Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja opposed in both instances. The Rizal court approved the compromise
agreement, but the Nueva Ecija court declared it void and unenforceable. Special administratrix Tasiana Ongsingco Vda. de de
Borja appealed the Rizal Court's order of approval (now Supreme Court G.R. case No. L-28040), while administrator Jose de Borja
appealed the order of disapproval (G.R. case No. L-28568) by the Court of First Instance of Nueva Ecija.

The genuineness and due execution of the compromised agreement of 12 October 1963 is not disputed, but its validity is,
nevertheless, attacked by Tasiana Ongsingco on the ground that: (1) the heirs cannot enter into such kind of agreement without
first probating the will of Francisco de Borja; (2) that the same involves a compromise on the validity of the marriage between
Francisco de Borja and Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to have force and effect.

In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on this
Court's decision in Guevara vs. Guevara. 74 Phil. 479, wherein the Court's majority held the view that the presentation of a will for
probate is mandatory and that the settlement and distribution of an estate on the basis of intestacy when the decedent left a will, is
against the law and public policy. It is likewise pointed out by appellant Tasiana Ongsingco that Section 1 of Rule 74 of the Revised
Rules explicitly conditions the validity of an extrajudicial settlement of a decedent's estate by agreement between heirs, upon the
facts that "(if) the decedent left no will and no debts, and the heirs are all of age, or the minors are represented by their judicial and
legal representatives ..." The will of Francisco de Borja having been submitted to the Nueva Ecija Court and still pending probate
when the 1963 agreement was made, those circumstances, it is argued, bar the validity of the agreement.

Upon the other hand, in claiming the validity of the compromise agreement, Jose de Borja stresses that at the time it was entered
into, on 12 October 1963, the governing provision was Section 1, Rule 74 of the original Rules of Court of 1940, which allowed the
extrajudicial settlement of the estate of a deceased person regardless of whether he left a will or not. He also relies on the
dissenting opinion of Justice Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was expressed the view that if the parties have
already divided the estate in accordance with a decedent's will, the probate of the will is a useless ceremony; and if they have
divided the estate in a different manner, the probate of the will is worse than useless.

The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar. This is apparent from an examination of the terms
of the agreement between Jose de Borja and Tasiana Ongsingco. Paragraph 2 of said agreement specifically stipulates that the
sum of P800,000 payable to Tasiana Ongsingco
 shall be considered as full complete payment settlement of her hereditary share in the estate of the late
Francisco de Borja as well as the estate of Josefa Tangco, ... and to any properties bequeathed or devised in her
favor by the late Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or Mortis Causa or
purportedly conveyed to her for consideration or otherwise.

This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the cases at bar. There was here no
attempt to settle or distribute the estate of Francisco de Borja among the heirs thereto before the probate of his will. The clear
object of the contract was merely the conveyance by Tasiana Ongsingco of any and all her individual share and interest, actual or
eventual in the estate of Francisco de Borja and Josefa Tangco. There is no stipulation as to any other claimant, creditor or
legatee. And as a hereditary share in a decedent's estate is transmitted or vested immediately from the moment of the death of
such causante or predecessor in interest (Civil Code of the Philippines, Art. 777)3 there is no legal bar to a successor (with
requisite contracting capacity) disposing of her or his hereditary share immediately after such death, even if the actual extent of
such share is not determined until the subsequent liquidation of the estate.4 Of course, the effect of such alienation is to be
deemed limited to what is ultimately adjudicated to the vendor heir. However, the aleatory character of the contract does not affect
the validity of the transaction; neither does the coetaneous agreement that the numerous litigations between the parties (the
approving order of the Rizal Court enumerates fourteen of them, Rec. App. pp. 79-82) are to be considered settled and should be
dismissed, although such stipulation, as noted by the Rizal Court, gives the contract the character of a compromise that the law
favors, for obvious reasons, if only because it serves to avoid a multiplicity of suits.

It is likewise worthy of note in this connection that as the surviving spouse of Francisco de Borja, Tasiana Ongsingco was his
compulsory heir under article 995 et seq. of the present Civil Code. Wherefore, barring unworthiness or valid disinheritance, her
successional interest existed independent of Francisco de Borja's last will and testament and would exist even if such will were not
probated at all. Thus, the prerequisite of a previous probate of the will, as established in the Guevara and analogous cases, can
not apply to the case of Tasiana Ongsingco Vda. de de Borja.

Since the compromise contract Annex A was entered into by and between "Jose de Borja personally and as administrator of the
Testate Estate of Josefa Tangco" on the one hand, and on the other, "the heir and surviving spouse of Francisco de Borja by his
second marriage, Tasiana Ongsingco Vda. de de Borja", it is clear that the transaction was binding on both in their individual
capacities, upon the perfection of the contract, even without previous authority of the Court to enter into the same. The only
difference between an extrajudicial compromise and one that is submitted and approved by the Court, is that the latter can be
enforced by execution proceedings. Art. 2037 of the Civil Code is explicit on the point:

8. Art. 2037. A compromise has upon the parties the effect and authority of res judicata; but there shall be no
execution except in compliance with a judicial compromise.

It is argued by Tasiana Ongsingco that while the agreement Annex A expressed no definite period for its
performance, the same was intended to have a resolutory period of 60 days for its effectiveness. In support of
such contention, it is averred that such a limit was expressly stipulated in an agreement in similar terms entered
into by said Ongsingco with the brothers and sister of Jose de Borja, to wit, Crisanto, Matilde and Cayetano, all
surnamed de Borja, except that the consideration was fixed at P600,000 (Opposition, Annex/Rec. of Appeal, L-
28040, pp. 39- 46) and which contained the following clause:

III. That this agreement shall take effect only upon the consummation of the sale of the property mentioned
herein and upon receipt of the total and full payment of the proceeds of the sale by the herein owner heirs-
children of Francisco de Borja, namely, Crisanto, Cayetano and Matilde, all surnamed de Borja; Provided that if
no sale of the said property mentioned herein is consummated, or the non-receipt of the purchase price thereof
by the said owners within the period of sixty (60) days from the date hereof, this agreement will become null and
void and of no further effect.

Ongsingco's argument loses validity when it is considered that Jose de Borja was not a party to this particular contract (Annex 1),
and that the same appears not to have been finalized, since it bears no date, the day being left blank "this day of October 1963";
and while signed by the parties, it was not notarized, although plainly intended to be so done, since it carries a proposed notarial
ratification clause. Furthermore, the compromise contract with Jose de Borja (Annex A), provides in its par. 2 heretofore
transcribed that of the total consideration of P800, 000 to be paid to Ongsingco, P600,000 represent the "prorata share of the heirs
Crisanto, Cayetano and Matilde all surnamed de Borja" which corresponds to the consideration of P600,000 recited in Annex 1,
and that circumstance is proof that the duly notarized contract entered into wit Jose de Borja under date 12 October 1963 (Annex
A), was designed to absorb and supersede the separate unformalize agreement with the other three Borja heirs. Hence, the 60
days resolutory term in the contract with the latter (Annex 1) not being repeated in Annex A, can not apply to the formal
compromise with Jose de Borja. It is moreover manifest that the stipulation that the sale of the Hacienda de Jalajala was to be
made within sixty days from the date of the agreement with Jose de Borja's co-heirs (Annex 1) was plainly omitted in Annex A as
improper and ineffective, since the Hacienda de Jalajala (Poblacion) that was to be sold to raise the P800,000 to be paid to
Ongsingco for her share formed part of the estate of Francisco de Borja and could not be sold until authorized by the Probate
Court. The Court of First Instance of Rizal so understood it, and in approving the compromise it fixed a term of 120 days counted
from the finality of the order now under appeal, for the carrying out by the parties for the terms of the contract.

This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction to approve the compromise with Jose de Borja
(Annex A) because Tasiana Ongsingco was not an heir in the estate of Josefa Tangco pending settlement in the Rizal Court, but
she was an heir of Francisco de Borja, whose estate was the object of Special Proceeding No. 832 of the Court of First Instance of
Nueva Ecija. This circumstance is irrelevant, since what was sold by Tasiana Ongsingco was only her eventual share in the estate
of her late husband, not the estate itself; and as already shown, that eventual share she owned from the time of Francisco's death
and the Court of Nueva Ecija could not bar her selling it. As owner of her undivided hereditary share, Tasiana could dispose of it in
favor of whomsoever she chose. Such alienation is expressly recognized and provided for by article 1088 of the present Civil Code:

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-
heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they
do so within the period of one month from the time they were notified in writing of the sale of the vendor.

If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof to a coheir could not be forbidden.

Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is void because it amounts to a compromise as
to her status and marriage with the late Francisco de Borja. The point is without merit, for the very opening paragraph of the
agreement with Jose de Borja (Annex "A") describes her as "the heir and surviving spouse of Francisco de Borja by his second
marriage, Tasiana Ongsingco Vda. de de Borja", which is in itself definite admission of her civil status. There is nothing in the text
of the agreement that would show that this recognition of Ongsingco's status as the surviving spouse of Francisco de Borja was
only made in consideration of the cession of her hereditary rights.

It is finally charged by appellant Ongsingco, as well as by the Court of First Instance of Nueva Ecija in its order of 21 September
1964, in Special Proceedings No. 832 (Amended Record on Appeal in L-28568, page 157), that the compromise agreement of 13
October 1963 (Annex "A") had been abandoned, as shown by the fact that, after its execution, the Court of First Instance of Nueva
Ecija, in its order of 21 September 1964, had declared that "no amicable settlement had been arrived at by the parties", and that
Jose de Borja himself, in a motion of 17 June 1964, had stated that the proposed amicable settlement "had failed to materialize".

It is difficult to believe, however, that the amicable settlement referred to in the order and motion above-mentioned was the
compromise agreement of 13 October 1963, which already had been formally signed and executed by the parties and duly
notarized. What the record discloses is that some time after its formalization, Ongsingco had unilaterally attempted to back out
from the compromise agreement, pleading various reasons restated in the opposition to the Court's approval of Annex "A" (Record
on Appeal, L-20840, page 23): that the same was invalid because of the lapse of the allegedly intended resolutory period of 60
days and because the contract was not preceded by the probate of Francisco de Borja's will, as required by this Court's Guevarra
vs. Guevara ruling; that Annex "A" involved a compromise affecting Ongsingco's status as wife and widow of Francisco de Borja,
etc., all of which objections have been already discussed. It was natural that in view of the widow's attitude, Jose de Borja should
attempt to reach a new settlement or novatory agreement before seeking judicial sanction and enforcement of Annex "A", since the
latter step might ultimately entail a longer delay in attaining final remedy. That the attempt to reach another settlement failed is
apparent from the letter of Ongsingco's counsel to Jose de Borja quoted in pages 35-36 of the brief for appellant Ongsingco in G.R.
No. 28040; and it is more than probable that the order of 21 September 1964 and the motion of 17 June 1964 referred to the failure
of the parties' quest for a more satisfactory compromise. But the inability to reach a novatory accord can not invalidate the original
compromise (Annex "A") and justifies the act of Jose de Borja in finally seeking a court order for its approval and enforcement from
the Court of First Instance of Rizal, which, as heretofore described, decreed that the agreement be ultimately performed within 120
days from the finality of the order, now under appeal.

We conclude that in so doing, the Rizal court acted in accordance with law, and, therefore, its order should be upheld, while the
contrary resolution of the Court of First Instance of Nueva Ecija should be, and is, reversed.

In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has affected her unfavorably, in that while the
purchasing power of the agreed price of P800,000 has diminished, the value of the Jalajala property has increased. But the fact is
that her delay in receiving the payment of the agreed price for her hereditary interest was primarily due to her attempts to nullify the
agreement (Annex "A") she had formally entered into with the advice of her counsel, Attorney Panaguiton. And as to the
devaluation de facto of our currency, what We said in Dizon Rivera vs. Dizon, L-24561, 30 June 1970, 33 SCRA 554, that "estates
would never be settled if there were to be a revaluation with every subsequent fluctuation in the values of currency and properties
of the estate", is particularly opposite in the present case.
Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de Jalajala (Poblacion), concededly acquired by
Francisco de Borja during his marriage to his first wife, Josefa Tangco, is the husband's private property (as contended by his
second spouse, Tasiana Ongsingco), or whether it forms part of the conjugal (ganancial) partnership with Josefa Tangco. The
Court of First Instance of Rizal (Judge Herminio Mariano, presiding) declared that there was adequate evidence to overcome the
presumption in favor of its conjugal character established by Article 160 of the Civil Code.

We are of the opinion that this question as between Tasiana Ongsingco and Jose de Borja has become moot and academic, in
view of the conclusion reached by this Court in the two preceding cases (G.R. No. L-28568), upholding as valid the cession of
Tasiana Ongsingco's eventual share in the estate of her late husband, Francisco de Borja, for the sum of P800,000 with the
accompanying reciprocal quit-claims between the parties. But as the question may affect the rights of possible creditors and
legatees, its resolution is still imperative.

It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been originally acquired jointly by Francisco de Borja,
Bernardo de Borja and Marcelo de Borja and their title thereto was duly registered in their names as co-owners in Land
Registration Case No. 528 of the province of Rizal, G.L.R.O. Rec. No. 26403 (De Barjo vs. Jugo, 54 Phil. 465). Subsequently, in
1931, the Hacienda was partitioned among the co-owners: the Punta section went to Marcelo de Borja; the Bagombong section to
Bernardo de Borja, and the part in Jalajala proper (Poblacion) corresponded to Francisco de Borja (V. De Borja vs. De Borja 101
Phil. 911, 932).

The lot allotted to Francisco was described as

Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E. Hermogena Romero; S. Heirs of Marcelo de
Borja O. Laguna de Bay; containing an area of 13,488,870 sq. m. more or less, assessed at P297,410. (Record
on Appeal, pages 7 and 105)

On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate Estate of Francisco de Borja, instituted a
complaint in the Court of First Instance of Rizal (Civil Case No. 7452) against Jose de Borja, in his capacity as Administrator of
Josefa Tangco (Francisco de Borja's first wife), seeking to have the Hacienda above described declared exclusive private property
of Francisco, while in his answer defendant (now appellant) Jose de Borja claimed that it was conjugal property of his parents
(Francisco de Borja and Josefa Tangco), conformably to the presumption established by Article 160 of the Philippine Civil Code
(reproducing Article 1407 of the Civil Code of 1889), to the effect that:

Art. 160. All property of the marriage is presumed to belong to the conjugal partnership, unless it be proved that it
pertains exclusively to the husband or to the wife.

Defendant Jose de Borja further counterclaimed for damages, compensatory, moral and exemplary, as well as for attorney's fees.

After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held that the plaintiff had adduced sufficient evidence
to rebut the presumption, and declared the Hacienda de Jalajala (Poblacion) to be the exclusive private property of the late
Francisco de Borja, and his Administratrix, Tasiana Ongsingco Vda. de Borja, to be entitled to its possession. Defendant Jose de
Borja then appealed to this Court.

The evidence reveals, and the appealed order admits, that the character of the Hacienda in question as owned by the conjugal
partnership De Borja-Tangco was solemnly admitted by the late Francisco de Borja no less than two times: first, in the Reamended
Inventory that, as executor of the estate of his deceased wife Josefa Tangco, he filed in the Special Proceedings No. 7866 of the
Court of First Instance of Rizal on 23 July 1953 (Exhibit "2"); and again, in the Reamended Accounting of the same date, also filed
in the proceedings aforesaid (Exhibit "7"). Similarly, the plaintiff Tasiana O. Vda. de Borja, herself, as oppositor in the Estate of
Josefa Tangco, submitted therein an inventory dated 7 September 1954 (Exhibit "3") listing the Jalajala property among the
"Conjugal Properties of the Spouses Francisco de Borja and Josefa Tangco". And once more, Tasiana Ongsingco, as
administratrix of the Estate of Francisco de Borja, in Special Proceedings No. 832 of the Court of First Instance of Nueva Ecija,
submitted therein in December, 1955, an inventory wherein she listed the Jalajala Hacienda under the heading "Conjugal Property
of the Deceased Spouses Francisco de Borja and Josefa Tangco, which are in the possession of the Administrator of the Testate
Estate of the Deceased Josefa Tangco in Special Proceedings No. 7866 of the Court of First Instance of Rizal" (Exhibit "4").

Notwithstanding the four statements aforesaid, and the fact that they are plain admissions against interest made by both Francisco
de Borja and the Administratrix of his estate, in the course of judicial proceedings in the Rizal and Nueva Ecija Courts, supporting
the legal presumption in favor of the conjugal community, the Court below declared that the Hacienda de Jalajala (Poblacion) was
not conjugal property, but the private exclusive property of the late Francisco de Borja. It did so on the strength of the following
evidences: (a) the sworn statement by Francis de Borja on 6 August 1951 (Exhibit "F") that
 He tomado possession del pedazo de terreno ya delimitado (equivalente a 1/4 parte, 337 hectareas) adjunto a
mi terreno personal y exclusivo (Poblacion de Jalajala, Rizal).

and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire Hacienda had been bought at a foreclosure
sale for P40,100.00, of which amount P25,100 was contributed by Bernardo de Borja and P15,000. by Marcelo de Borja; that upon
receipt of a subsequent demand from the provincial treasurer for realty taxes the sum of P17,000, Marcelo told his brother
Bernardo that Francisco (son of Marcelo) wanted also to be a co-owner, and upon Bernardo's assent to the proposal, Marcelo
issue a check for P17,000.00 to pay the back taxes and said that the amount would represent Francisco's contribution in the
purchase of the Hacienda. The witness further testified that

Marcelo de Borja said that that money was entrusted to him by Francisco de Borja when he was still a bachelor
and which he derived from his business transactions. (Hearing, 2 February 1965, t.s.n., pages 13-15) (Emphasis
supplied)

The Court below, reasoning that not only Francisco's sworn statement overweighed the admissions in the inventories relied upon
by defendant-appellant Jose de Borja since probate courts can not finally determine questions of ownership of inventoried property,
but that the testimony of Gregorio de Borja showed that Francisco de Borja acquired his share of the original Hacienda with his
private funds, for which reason that share can not be regarded as conjugal partnership property, but as exclusive property of the
buyer, pursuant to Article 1396(4) of Civil Code of 1889 and Article 148(4) of the Civil Code of the Philippines.

The following shall be the exclusive property of each spouse:

xxx xxx xxx

(4) That which is purchased with exclusive money of the wife or of the husband.

We find the conclusions of the lower court to be untenable. In the first place, witness Gregorio de Borja's testimony as to the source
of the money paid by Francisco for his share was plain hearsay, hence inadmissible and of no probative value, since he was
merely repeating what Marcelo de Borja had told him (Gregorio). There is no way of ascertaining the truth of the statement, since
both Marcelo and Francisco de Borja were already dead when Gregorio testified. In addition, the statement itself is improbable,
since there was no need or occasion for Marcelo de Borja to explain to Gregorio how and when Francisco de Borja had earned the
P17,000.00 entrusted to Marcelo. A ring of artificiality is clearly discernible in this portion of Gregorio's testimony.

As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante, page 14) does not clearly demonstrate that the "mi
terreno personal y exclusivo (Poblacion de Jalajala, Rizal) " refers precisely to the Hacienda in question. The inventories (Exhibits
3 and 4) disclose that there were two real properties in Jalajala owned by Francisco de Borja, one of 72.038 sq. m., assessed at
P44,600, and a much bigger one of 1,357.260.70 sq. m., which is evidently the Hacienda de Jalajala (Poblacion). To which of
these lands did the affidavit of Francisco de Borja (Exhibit "F") refer to? In addition, Francisco's characterization of the land as "mi
terreno personal y exclusivo" is plainly self-serving, and not admissible in the absence of cross examination.

It may be true that the inventories relied upon by defendant-appellant (Exhibits "2", "3", "4" and "7") are not conclusive on the
conjugal character of the property in question; but as already noted, they are clear admissions against the pecuniary interest of the
declarants, Francisco de Borja and his executor-widow, Tasiana Ongsingco, and as such of much greater probative weight than
the self-serving statement of Francisco (Exhibit "F"). Plainly, the legal presumption in favor of the conjugal character of the
Hacienda de Jalajala (Poblacion) now in dispute has not been rebutted but actually confirmed by proof. Hence, the appealed order
should be reversed and the Hacienda de Jalajala (Poblacion) declared property of the conjugal partnership of Francisco de Borja
and Josefa Tangco.

No error having been assigned against the ruling of the lower court that claims for damages should be ventilated in the
corresponding special proceedings for the settlement of the estates of the deceased, the same requires no pro announcement from
this Court.

IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance of Rizal in Case No. L-28040 is hereby affirmed;
while those involved in Cases Nos. L-28568 and L-28611 are reversed and set aside. Costs against the appellant Tasiana
Ongsingco Vda. de Borja in all three (3) cases.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

Fernando, J., took no part.

G.R. No. L-41715 June 18, 1976

ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and PONCIANO BONILLA (their father) who represents the
minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA, MANUEL BARCENA, AGUSTINA NERI, widow of
JULIAN TAMAYO and HON. LEOPOLDO GIRONELLA of the Court of First Instance of Abra, respondents.

MARTIN, J:

This is a petition for review 1 of the Order of the Court of First Instance of Abra in Civil Case No. 856, entitled Fortunata Barcena
vs. Leon Barcena, et al., denying the motions for reconsideration of its order dismissing the complaint in the aforementioned case.

On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and Salvacion Bonilla and wife of Ponciano Bonilla,
instituted a civil action in the Court of First Instance of Abra, to quiet title over certain parcels of land located in Abra.

On May 9, 1975, defendants filed a written motion to dismiss the complaint, but before the hearing of the motion to dismiss, the
counsel for the plaintiff moved to amend the complaint in order to include certain allegations therein. The motion to amend the
complaint was granted and on July 17, 1975, plaintiffs filed their amended complaint.

On August 4, 1975, the defendants filed another motion to dismiss the complaint on the ground that Fortunata Barcena is dead
and, therefore, has no legal capacity to sue. Said motion to dismiss was heard on August 14, 1975. In said hearing, counsel for the
plaintiff confirmed the death of Fortunata Barcena, and asked for substitution by her minor children and her husband, the
petitioners herein; but the court after the hearing immediately dismissed the case on the ground that a dead person cannot be a
real party in interest and has no legal personality to sue.

On August 19, 1975, counsel for the plaintiff received a copy of the order dismissing the complaint and on August 23, 1975, he
moved to set aside the order of the dismissal pursuant to Sections 16 and 17 of Rule 3 of the Rules of Court. 2

On August 28, 1975, the court denied the motion for reconsideration filed by counsel for the plaintiff for lack of merit. On
September 1, 1975, counsel for deceased plaintiff filed a written manifestation praying that the minors Rosalio Bonilla and
Salvacion Bonilla be allowed to substitute their deceased mother, but the court denied the counsel's prayer for lack of merit. From
the order, counsel for the deceased plaintiff filed a second motion for reconsideration of the order dismissing the complaint claiming
that the same is in violation of Sections 16 and 17 of Rule 3 of the Rules of Court but the same was denied.

Hence, this petition for review.

The Court reverses the respondent Court and sets aside its order dismissing the complaint in Civil Case No. 856 and its orders
denying the motion for reconsideration of said order of dismissal. While it is true that a person who is dead cannot sue in court, yet
he can be substituted by his heirs in pursuing the case up to its completion. The records of this case show that the death of
Fortunata Barcena took place on July 9, 1975 while the complaint was filed on March 31, 1975. This means that when the
complaint was filed on March 31, 1975, Fortunata Barcena was still alive, and therefore, the court had acquired jurisdiction over her
person. If thereafter she died, the Rules of Court prescribes the procedure whereby a party who died during the pendency of the
proceeding can be substituted. Under Section 16, Rule 3 of the Rules of Court "whenever a party to a pending case dies ... it shall
be the duty of his attorney to inform the court promptly of such death ... and to give the name and residence of his executor,
administrator, guardian or other legal representatives." This duty was complied with by the counsel for the deceased plaintiff when
he manifested before the respondent Court that Fortunata Barcena died on July 9, 1975 and asked for the proper substitution of
parties in the case. The respondent Court, however, instead of allowing the substitution, dismissed the complaint on the ground
that a dead person has no legal personality to sue. This is a grave error. Article 777 of the Civil Code provides "that the rights to the
succession are transmitted from the moment of the death of the decedent." From the moment of the death of the decedent, the
heirs become the absolute owners of his property, subject to the rights and obligations of the decedent, and they cannot be
deprived of their rights thereto except by the methods provided for by law. 3 The moment of death is the determining factor when
the heirs acquire a definite right to the inheritance whether such right be pure or contingent. 4 The right of the heirs to the property
of the deceased vests in them even before judicial declaration of their being heirs in the testate or intestate proceedings. 5 When
Fortunata Barcena, therefore, died her claim or right to the parcels of land in litigation in Civil Case No. 856, was not extinguished
by her death but was transmitted to her heirs upon her death. Her heirs have thus acquired interest in the properties in litigation
and became parties in interest in the case. There is, therefore, no reason for the respondent Court not to allow their substitution as
parties in interest for the deceased plaintiff.
Under Section 17, Rule 3 of the Rules of Court "after a party dies and the claim is not thereby extinguished, the court shall order,
upon proper notice, the legal representative of the deceased to appear and be substituted for the deceased, within such time as
may be granted ... ." The question as to whether an action survives or not depends on the nature of the action and the damage
sued for. 6 In the causes of action which survive the wrong complained affects primarily and principally property and property
rights, the injuries to the person being merely incidental, while in the causes of action which do not survive the injury complained of
is to the person, the property and rights of property affected being incidental. 7 Following the foregoing criterion the claim of the
deceased plaintiff which is an action to quiet title over the parcels of land in litigation affects primarily and principally property and
property rights and therefore is one that survives even after her death. It is, therefore, the duty of the respondent Court to order the
legal representative of the deceased plaintiff to appear and to be substituted for her. But what the respondent Court did, upon
being informed by the counsel for the deceased plaintiff that the latter was dead, was to dismiss the complaint. This should not
have been done for under the same Section 17, Rule 3 of the Rules of Court, it is even the duty of the court, if the legal
representative fails to appear, to order the opposing party to procure the appointment of a legal representative of the deceased. In
the instant case the respondent Court did not have to bother ordering the opposing party to procure the appointment of a legal
representative of the deceased because her counsel has not only asked that the minor children be substituted for her but also
suggested that their uncle be appointed as guardian ad litem for them because their father is busy in Manila earning a living for the
family. But the respondent Court refused the request for substitution on the ground that the children were still minors and cannot
sue in court. This is another grave error because the respondent Court ought to have known that under the same Section 17, Rule
3 of the Rules of Court, the court is directed to appoint a guardian ad litem for the minor heirs. Precisely in the instant case, the
counsel for the deceased plaintiff has suggested to the respondent Court that the uncle of the minors be appointed to act as
guardian ad litem for them. Unquestionably, the respondent Court has gravely abused its discretion in not complying with the clear
provision of the Rules of Court in dismissing the complaint of the plaintiff in Civil Case No. 856 and refusing the substitution of
parties in the case.

IN VIEW OF THE FOREGOING, the order of the respondent Court dismissing the complaint in Civil Case No. 856 of the Court of
First Instance of Abra and the motions for reconsideration of the order of dismissal of said complaint are set aside and the
respondent Court is hereby directed to allow the substitution of the minor children, who are the petitioners therein for the deceased
plaintiff and to appoint a qualified person as guardian ad litem for them. Without pronouncement as to costs.

SO ORDERED.

Teehankee (Chairman), Makasiar, Esguerra and Muoz Palma, JJ., concur.

G.R. No. L-41171 July 23, 1987

INTESTATE ESTATE OF THE LATE VITO BORROMEO, PATROCINIO BORROMEO-HERRERA, petitioner,

vs.
FORTUNATO BORROMEO and HON. FRANCISCO P. BURGOS, Judge of the Court of First Instance of Cebu, Branch II,
respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

No. L-55000 July 23, 1987

IN THE MATTER OF THE ESTATE OF VITO BORROMEO, DECEASED, PILAR N. BORROMEO, MARIA B. PUTONG,
FEDERICO V. BORROMEO, JOSE BORROMEO, CONSUELO B. MORALES, AND CANUTO V. BORROMEO, JR., heirs-
appellants,
vs.
FORTUNATO BORROMEO, claimant-appellee.

x - - - - - - - - - - - - - - - - - - - - - - -x

No. L-62895 July 23, 1987

JOSE CUENCO BORROMEO, petitioner,

vs.
HONORABLE COURT OF APPEALS, HON. FRANCISCO P. BURGOS, As presiding Judge of the (now) Regional Trial Court,
Branch XV, Region VII, RICARDO V. REYES, as Administrator of the Estate of Vito Borromeo in Sp. Proc. No. 916-R,
NUMERIANO G. ESTENZO and DOMINGO L. ANTIGUA, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x

No. L-63818 July 23, 1987

DOMINGO ANTIGUA AND RICARDO V. REYES, as Administrator of the Intestate Estate of VITO BORROMEO, Sp.
Proceedings No. 916-R, Regional Trial Court of Cebu, joined by HON. JUDGE FRANCISCO P. BURGOS, as Presiding
Judge of Branch XV of the Regional Trial Court of Cebu, as a formal party, and ATTYS. FRANCIS M. ZOSA, GAUDIOSO
RUIZ and NUMERIANO ESTENZO, petitioners,
vs.
HONORABLE INTERMEDIATE APPELLATE COURT, JOSE CUENCO BORROMEO, and PETRA O. BORROMEO,
respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

No. L-65995 July 23, 1987

PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA BORROMEO, and JOSE CUENCO BORROMEO, petitioners,
vs.
HONORABLE FRANCISCO P. BURGOS, Presiding Judge of Branch XV, Regional Trial Court of Cebu; RICARDO V. REYES,
Administrator of the Estate of VITO BORROMEO in Sp. Proc. No. 916-R; and DOMINGO L. ANTIGUA, respondents.

GUTIERREZ, JR., J.:

These cases before us all stem from SP. PROC. NO. 916-R of the then Court of First Instance of Cebu.

G.R. No. 41171

Vito Borromeo, a widower and permanent resident of Cebu City, died on March 13, 1952, in Paranaque, Rizal at the age of 88
years, without forced heirs but leaving extensive properties in the province of Cebu.

On April 19, 1952, Jose Junquera filed with the Court of First Instance of Cebu a petition for the probate of a one page document
as the last will and testament left by the said deceased, devising all his properties to Tomas, Fortunato and Amelia, all surnamed
Borromeo, in equal and undivided shares, and designating Junquera as executor thereof. The case was docketed as Special
Proceedings No. 916-R. The document, drafted in Spanish, was allegedly signed and thumbmarked by the deceased in the
presence of Cornelio Gandionco, Eusebio Cabiluna, and Felixberto Leonardo who acted as witnesses.

Oppositions to the probate of the will were filed. On May 28, 1960, after due trial, the probate court held that the document
presented as the will of the deceased was a forgery.

On appeal to this Court, the decision of the probate court disallowing the probate of the will was affirmed in Testate Estate of Vito
Borromeo, Jose H. Junquera et al. v. Crispin Borromeo et al. (19 SCRA 656).

The testate proceedings was converted into an intestate proceedings. Several parties came before the court filing claims or
petitions alleging themselves as heirs of the intestate estate of Vito Borromeo.

The following petitions or claims were filed:

1. On August 29, 1967, the heirs of Jose Ma. Borromeo and Cosme Borromeo filed a petition for declaration of heirs and
determination of heirship. There was no opposition filed against said petition.

2. On November 26, 1967, Vitaliana Borromeo also filed a petition for declaration as heir. The heirs of Jose Ma. Borromeo
and Cosme Borromeo filed an opposition to this petition.

3. On December 13, 1967, Jose Barcenilla, Jr., Anecita Ocampo de Castro, Ramon Ocampo, Lourdes Ocampo, Elena
Ocampo, Isagani Morre, Rosario Morre, Aurora Morre, Lila Morre, Lamberto Morre, and Patricia Morre, filed a petition for
declaration of heirs and determination of shares. The petition was opposed by the heirs of Jose and Cosme Borromeo.
 4. On December 2, 1968, Maria Borromeo Atega, Luz Borromeo, Hermenegilda Borromeo Nonnenkamp, Rosario
Borromeo, and Fe Borromeo Queroz filed a claim. Jose Cuenco Borromeo, Crispin Borromeo, Vitaliana Borromeo and the
heirs of Carlos Borromeo represented by Jose Talam filed oppositions to this claim.

When the aforementioned petitions and claims were heard jointly, the following facts were established:

1. Maximo Borromeo and Hermenegilda Galan, husband and wife (the latter having predeceased the former), were survived by
their eight (8) children, namely,

Jose Ma. Borromeo

Cosme Borromeo

Pantaleon Borromeo

Vito Borromeo

Paulo Borromeo

Anecita Borromeo

Quirino Borromeo and

Julian Borromeo

2. Vito Borromeo died a widower on March 13, 1952, without any issue, and all his brothers and sisters predeceased him.

3. Vito's brother Pantaleon Borromeo died leaving the following children:

a. Ismaela Borromeo,who died on Oct. 16, 1939

b. Teofilo Borromeo, who died on Aug. 1, 1955, or 3 years after the death of Vito Borromeo. He was married to Remedios
Cuenco Borromeo, who died on March 28, 1968. He had an only son-Atty. Jose Cuenco Borromeo one of the petitioners
herein.

c. Crispin Borromeo, who is still alive.

4. Anecita Borromeo, sister of Vito Borromeo, died ahead of him and left an only daughter, Aurora B. Ocampo, who died on Jan.
30, 1950 leaving the following children:

a. Anecita Ocampo Castro

b. Ramon Ocampo

c. Lourdes Ocampo

d. Elena Ocampo, all living, and

e. Antonieta Ocampo Barcenilla (deceased), survived by claimant Jose Barcenilla, Jr.

5. Cosme Borromeo, another brother of Vito Borromeo, died before the war and left the following children:

a. Marcial Borromeo

b. Carlos Borromeo,who died on Jan. 18, 1965,survived by his wife, Remedios Alfonso, and his only daughter, Amelinda
Borromeo Talam

c. Asuncion Borromeo
 d. Florentina Borromeo, who died in 1948.

e. Amilio Borromeo, who died in 1944.

f. Carmen Borromeo, who died in 1925.

The last three died leaving no issue.

6. Jose Ma. Borromeo, another brother of Vito Borromeo, died before the war and left the following children:

a. Exequiel Borromeo,who died on December 29, 1949

b. Canuto Borromeo, who died on Dec. 31, 1959, leaving the following children:

aa. Federico Borromeo

bb. Marisol Borromeo (Maria B. Putong, Rec. p. 85)

cc. Canuto Borromeo, Jr.

dd. Jose Borromeo

ee. Consuelo Borromeo

ff. Pilar Borromeo

gg. Salud Borromeo

hh. Patrocinio Borromeo Herrera

c. Maximo Borromeo, who died in July, 1948

d. Matilde Borromeo, who died on Aug. 6, 1946

e. Andres Borromeo, who died on Jan. 3, 1923, but survived by his children:

aa. Maria Borromeo Atega

bb. Luz Borromeo

cc. Hermenegilda Borromeo Nonnenkamp

dd. Rosario Borromeo

ee. Fe Borromeo Queroz

On April 10, 1969, the trial court, invoking Art. 972 of the Civil Code, issued an order declaring the following, to the exclusion of all
others, as the intestate heirs of the deceased Vito Borromeo:

1. Jose Cuenco Borromeo

2. Judge Crispin Borromeo

3. Vitaliana Borromeo

4. Patrocinio Borromeo Herrera

 5. Salud Borromeo

6. Asuncion Borromeo

7. Marcial Borromeo

8. Amelinda Borromeo de Talam, and

9. The heirs of Canuto Borromeo

The court also ordered that the assets of the intestate estate of Vito Borromeo shall be divided into 4/9 and 5/9 groups and
distributed in equal and equitable shares among the 9 abovenamed declared intestate heirs.

On April 21 and 30, 1969, the declared heirs, with the exception of Patrocinio B. Herrera, signed an agreement of partition of the
properties of the deceased Vito Borromeo which was approved by the trial court, in its order of August 15, 1969. In this same order,
the trial court ordered the administrator, Atty Jesus Gaboya, Jr., to partition the properties of the deceased in the way and manner
they are divided and partitioned in the said Agreement of Partition and further ordered that 40% of the market value of the 4/9 and
5/9 of the estate shall be segregated. All attorney's fees shall be taken and paid from this segregated portion.

On August 25, 1972, respondent Fortunato Borromeo, who had earlier claimed as heir under the forged will, filed a motion before
the trial court praying that he be declared as one of the heirs of the deceased Vito Borromeo, alleging that he is an illegitimate son
of the deceased and that in the declaration of heirs made by the trial court, he was omitted, in disregard of the law making him a
forced heir entitled to receive a legitime like all other forced heirs. As an acknowledged illegitimate child, he stated that he was
entitled to a legitime equal in every case to four-fifths of the legitime of an acknowledged natural child.

Finding that the motion of Fortunato Borromeo was already barred by the order of the court dated April 12, 1969 declaring the
persons named therein as the legal heirs of the deceased Vito Borromeo, the court dismissed the motion on June 25, 1973.

Fortunato Borromeo filed a motion for reconsideration. In the memorandum he submitted to support his motion for reconsideration,
Fortunato changed the basis for his claim to a portion of the estate. He asserted and incorporated a Waiver of Hereditary Rights
dated July 31, 1967, supposedly signed by Pilar N. Borromeo, Maria B. Putong, Jose Borromeo, Canuto V. Borromeo, Jr., Salud
Borromeo, Patrocinio Borromeo-Herrera, Marcial Borromeo, Asuncion Borromeo, Federico V. Borromeo, Consuelo B. Morales,
Remedios Alfonso and Amelinda B. Talam In the waiver, five of the nine heirs relinquished to Fortunato their shares in the disputed
estate. The motion was opposed on the ground that the trial court, acting as a probate court, had no jurisdiction to take cognizance
of the claim; that respondent Fortunato Borromeo is estopped from asserting the waiver agreement; that the waiver agreement is
void as it was executed before the declaration of heirs; that the same is void having been executed before the distribution of the
estate and before the acceptance of the inheritance; and that it is void ab initio and inexistent for lack of subject matter.

On December 24, 1974, after due hearing, the trial court concluding that the five declared heirs who signed the waiver agreement
assigning their hereditary rights to Fortunato Borromeo had lost the same rights, declared the latter as entitled to 5/9 of the estate
of Vito Borromeo.

A motion for reconsideration of this order was denied on July 7, 1975.

In the present petition, the petitioner seeks to annul and set aside the trial court's order dated December 24, 1974, declaring
respondent Fortunato Borromeo entitled to 5/9 of the estate of Vito Borromeo and the July 7, 1975 order, denying the motion for
reconsideration.

The petitioner argues that the trial court had no jurisdiction to take cognizance of the claim of respondent Fortunato Borromeo
because it is not a money claim against the decedent but a claim for properties, real and personal, which constitute all of the
shares of the heirs in the decedent's estate, heirs who allegedly waived their rights in his favor. The claim of the private respondent
under the waiver agreement, according to the petitioner, may be likened to that of a creditor of the heirs which is improper. He
alleges that the claim of the private respondent under the waiver agreement was filed beyond the time allowed for filing of claims
as it was filed only sometime in 1973, after there had been a declaration of heirs (April 10, 1969), an agreement of partition (April
30, 1969), the approval of the agreement of partition and an order directing the administrator to partition the estate (August 15,
1969), when in a mere memorandum, the existence of the waiver agreement was brought out.

It is further argued by the petitioner that the document entitled " waiver of Hereditary Rights" executed on July 31, 1967, aside from
having been cancelled and revoked on June 29, 1968, by Tomas L. Borromeo, Fortunato Borromeo and Amelia Borromeo, is
without force and effect because there can be no effective waiver of hereditary rights before there has been a valid acceptance of
the inheritance the heirs intend to transfer. Pursuant to Article 1043 of the Civil Code, to make acceptance or repudiation of
inheritance valid, the person must be certain of the death of the one from whom he is to inherit and of his right to the inheritance.
Since the petitioner and her co-heirs were not certain of their right to the inheritance until they were declared heirs, their rights
were, therefore, uncertain. This view, according to the petitioner, is also supported by Article 1057 of the same Code which directs
heirs, devicees, and legatees to signify their acceptance or repudiation within thirty days after the court has issued an order for the
distribution of the estate.

Respondent Fortunato Borromeo on the other hand, contends that under Article 1043 of the Civil Code there is no need for a
person to be first declared as heir before he can accept or repudiate an inheritance. What is required is that he must first be certain
of the death of the person from whom he is to inherit and that he must be certain of his right to the inheritance. He points out that at
the time of the signing of the waiver document on July 31, 1967, the signatories to the waiver document were certain that Vito
Borromeo was already dead as well as of their rights to the inheritance as shown in the waiver document itself.

With respect to the issue of jurisdiction of the trial court to pass upon the validity of the waiver of hereditary rights, respondent
Borromeo asserts that since the waiver or renunciation of hereditary rights took place after the court assumed jurisdiction over the
properties of the estate it partakes of the nature of a partition of the properties of the estate needing approval of the court because
it was executed in the course of the proceedings. lie further maintains that the probate court loses jurisdiction of the estate only
after the payment of all the debts of the estate and the remaining estate is distributed to those entitled to the same.

The prevailing jurisprudence on waiver of hereditary rights is that "the properties included in an existing inheritance cannot be
considered as belonging to third persons with respect to the heirs, who by fiction of law continue the personality of the former. Nor
do such properties have the character of future property, because the heirs acquire a right to succession from the moment of the
death of the deceased, by principle established in article 657 and applied by article 661 of the Civil Code, according to which the
heirs succeed the deceased by the mere fact of death. More or less, time may elapse from the moment of the death of the
deceased until the heirs enter into possession of the hereditary property, but the acceptance in any event retroacts to the moment
of the death, in accordance with article 989 of the Civil Code. The right is vested, although conditioned upon the adjudication of the
corresponding hereditary portion." (Osorio v. Osorio and Ynchausti Steamship Co., 41 Phil., 531). The heirs, therefore, could waive
their hereditary rights in 1967 even if the order to partition the estate was issued only in 1969.

In this case, however, the purported "Waiver of Hereditary Rights" cannot be considered to be effective. For a waiver to exist, three
elements are essential: (1) the existence of a right; (2) the knowledge of the existence thereof; and (3) an intention to relinquish
such right. (People v. Salvador, (CA) 53 O.G. No. 22, p. 8116, 8120). The intention to waive a right or advantage must be shown
clearly and convincingly, and when the only proof of intention rests in what a party does, his act should be so manifestly consistent
with, and indicative of an intent to, voluntarily relinquish the particular right or advantage that no other reasonable explanation of his
conduct is possible (67 C.J., 311). (Fernandez v. Sebido, et al., 70 Phil., 151, 159).

The circumstances of this case show that the signatories to the waiver document did not have the clear and convincing intention to
relinquish their rights, Thus: (1) On October 27, 1967. Fortunato, Tomas, and Amelia Borromeo filed a pleading entitled
"Compliance" wherein they submitted a proposal for the amicable settlement of the case. In that Compliance, they proposed to
concede to all the eight (8) intestate heirs of Vito Borromeo all properties, personal and real, including all cash and sums of money
in the hands of the Special Administrator, as of October 31, 1967, not contested or claimed by them in any action then pending in
the Court of First Instance of Cebu. In turn, the heirs would waive and concede to them all the 14 contested lots. In this document,
the respondent recognizes and concedes that the petitioner, like the other signatories to the waiver document, is an heir of the
deceased Vito Borromeo, entitled to share in the estate. This shows that the "Waiver of Hereditary Rights" was never meant to be
what the respondent now purports it to be. Had the intent been otherwise, there would not be any reason for Fortunato, Tomas,
and Amelia Borromeo to mention the heirs in the offer to settle the case amicably, and offer to concede to them parts of the estate
of the deceased; (2) On April 21 and 30, 1969, the majority of the declared heirs executed an Agreement on how the estate they
inherited shall be distributed. This Agreement of Partition was approved by the trial court on August 15, 1969; (3) On June 29,
1968, the petitioner, among others, signed a document entitled Deed of Assignment" purporting to transfer and assign in favor of
the respondent and Tomas and Amelia Borromeo all her (Patrocinio B. Herrera's) rights, interests, and participation as an intestate
heir in the estate of the deceased Vito Borromeo. The stated consideration for said assignment was P100,000.00; (4) On the same
date, June 29, 1968, the respondent Tomas, and Amelia Borromeo (assignees in the aforementioned deed of assignment) in turn
executed a "Deed of Reconveyance" in favor of the heirs-assignors named in the same deed of assignment. The stated
consideration was P50,000.00; (5) A Cancellation of Deed of Assignment and Deed of Reconveyance was signed by Tomas
Borromeo and Amelia Borromeo on October 15, 1968, while Fortunato Borromeo signed this document on March 24, 1969.

With respect to the issue of jurisdiction, we hold that the trial court had jurisdiction to pass upon the validity of the waiver
agreement. It must be noted that in Special Proceedings No. 916-R the lower court disallowed the probate of the will and declared
it as fake. Upon appeal, this Court affirmed the decision of the lower court on March 30, 1967, in G.R. No. L-18498. Subsequently,
several parties came before the lower court filing claims or petitions alleging themselves as heirs of the intestate estate of Vito
Borromeo. We see no impediment to the trial court in exercising jurisdiction and trying the said claims or petitions. Moreover, the
jurisdiction of the trial court extends to matters incidental and collateral to the exercise of its recognized powers in handling the
settlement of the estate.

In view of the foregoing, the questioned order of the trial court dated December 24, 1974, is hereby SET ASIDE.

G.R. No. 55000

This case was originally an appeal to the Court of Appeals from an order of the Court of First Instance of Cebu, Branch 11, dated
December 24, 1974, declaring the waiver document earlier discussed in G.R. No. 41171 valid. The appellate court certified this
case to this Court as the questions raised are all of law.

The appellants not only assail the validity of the waiver agreement but they also question the jurisdiction of the lower court to hear
and decide the action filed by claimant Fortunato Borromeo.

The appellants argue that when the waiver of hereditary right was executed on July 31, 1967, Pilar Borromeo and her children did
not yet possess or own any hereditary right in the intestate estate of the deceased Vito Borromeo because said hereditary right
was only acquired and owned by them on April 10, 1969, when the estate was ordered distributed.

They further argue that in contemplation of law, there is no such contract of waiver of hereditary right in the present case because
there was no object, which is hereditary right, that could be the subject matter of said waiver, and, therefore, said waiver of
hereditary right was not only null and void ab initio but was inexistent.

With respect to the issue of jurisdiction, the appellants contend that without any formal pleading filed by the lawyers of Fortunato
Borromeo for the approval of the waiver agreement and without notice to the parties concerned, two things which are necessary so
that the lower court would be vested with authority and jurisdiction to hear and decide the validity of said waiver agreement,
nevertheless, the lower court set the hearing on September 25, 1973 and without asking for the requisite pleading. This resulted in
the issuance of the appealed order of December 24, 1974, which approved the validity of the waiver agreement. The appellants
contend that this constitutes an error in the exercise of jurisdiction.

The appellee on the other hand, maintains that by waiving their hereditary rights in favor of Fortunato Borromeo, the signatories to
the waiver document tacitly and irrevocably accepted the inheritance and by virtue of the same act, they lost their rights because
the rights from that moment on became vested in Fortunato Borromeo.

It is also argued by the appellee that under Article 1043 of the Civil Code there is no need for a person to be declared as heir first
before he can accept or repudiate an inheritance. What is required is that he is certain of the death of the person from whom he is
to inherit, and of his right to the inheritance. At the time of the signing of the waiver document on July 31, 1967, the signatories to
the waiver document were certain that Vito Borromeo was already dead and they were also certain of their right to the inheritance
as shown by the waiver document itself.

On the allegation of the appellants that the lower court did not acquire jurisdiction over the claim because of the alleged lack of a
pleading invoking its jurisdiction to decide the claim, the appellee asserts that on August 23, 1973, the lower court issued an order
specifically calling on all oppositors to the waiver document to submit their comments within ten days from notice and setting the
same for hearing on September 25, 1973. The appellee also avers that the claim as to a 5/9 share in the inheritance involves no
question of title to property and, therefore, the probate court can decide the question.

The issues in this case are similar to the issues raised in G.R. No. 41171. The appellants in this case, who are all declared heirs of
the late Vito Borromeo are contesting the validity of the trial court's order dated December 24, 1974, declaring Fortunato Borromeo
entitled to 5/9 of the estate of Vito Borromeo under the waiver agreement.

As stated in G.R. No. 41171, the supposed waiver of hereditary rights can not be validated. The essential elements of a waiver,
especially the clear and convincing intention to relinquish hereditary rights, are not found in this case.

The October 27, 1967 proposal for an amicable settlement conceding to all the eight (8) intestate heirs various properties in
consideration for the heirs giving to the respondent and to Tomas, and Amelia Borromeo the fourteen (14) contested lots was filed
inspite of the fact that on July 31, 1967, some of the heirs had allegedly already waived or sold their hereditary rights to the
respondent.
The agreement on how the estate is to be distributed, the June 29, 1968 deed of assignment, the deed of reconveyance, and the
subsequent cancellation of the deed of assignment and deed of reconveyance all argue against the purported waiver of hereditary
rights.

Concerning the issue of jurisdiction, we have already stated in G.R. No. 41171 that the trial court acquired jurisdiction to pass upon
the validity of the waiver agreement because the trial court's jurisdiction extends to matters incidental and collateral to the exercise
of its recognized powers in handling the settlement of the estate.

The questioned order is, therefore, SET ASIDE.

G.R. No. 62895

A motion dated April 28, 1972, was filed by Atty. Raul M. Sesbreno, representative of some of the heirs-distributees, praying for the
immediate closure of Special Proceeding No. 916-R. A similar motion dated May 29, 1979 was filed by Atty. Jose Amadora. Both
motions were grounded on the fact that there was nothing more to be done after the payment of all the obligations of the estate
since the order of partition and distribution had long become final.

Alleging that respondent Judge Francisco P. Burgos failed or refused to resolve the aforesaid motions, petitioner Jose Cuenco
Borromeo-filed a petition for mandamus before the Court of Appeals to compel the respondent judge to terminate and close
Special Proceedings No. 916-R.

Finding that the inaction of the respondent judge was due to pending motions to compel the petitioner, as co-administrator, to
submit an inventory of the real properties of the estate and an accounting of the cash in his hands, pending claims for attorney's
fees, and that mandamus will not lie to compel the performance of a discretionary function, the appellate court denied the petition
on May 14, 1982. The petitioner's motion for reconsideration was likewise denied for lack of merit. Hence, this petition.

The petitioner's stand is that the inaction of the respondent judge on the motion filed on April 28, 1972 for the closure of the
administration proceeding cannot be justified by the filing of the motion for inventory and accounting because the latter motion was
filed only on March 2, 1979. He claimed that under the then Constitution, it is the duty of the respondent judge to decide or resolve
a case or matter within three months from the date of its submission.

The respondents contend that the motion to close the administration had already been resolved when the respondent judge
cancelled all settings of all incidents previously set in his court in an order dated June 4, 1979, pursuant to the resolution and
restraining order issued by the Court of Appeals enjoining him to maintain status quo on the case.

As stated in G.R. No. 41171, on April 21 and 30, 1969, the declared heirs, with the exception of Patrocinio B. Herrera, signed an
agreement of partition of the properties of the deceased Vito Borromeo which was approved by the trial court, in its order dated
August 15, 1969. In this same order, the trial court ordered the administrator, Atty. Jesus Gaboya, Jr., to partition the properties of
the deceased in the way and manner they are divided and partitioned in the said Agreement of Partition and further ordered that
40% of the market value of the 4/9 and 5/9 of the estate shall be segregated and reserved for attorney's fees.

According to the manifestation of Judge Francisco Burgos dated July 5, 1982, (p. 197, Rollo, G. R. No. 41171) his court has not
finally distributed to the nine (9) declared heirs the properties due to the following circumstances:

1. The court's determination of the market value of the estate in order to segregate the 40% reserved for attorney's fees;

2. The order of December 24, 1974, declaring Fortunato Borromeo as beneficiary of the 5/9 of the estate because of the
waiver agreement signed by the heirs representing the 5/9 group which is still pending resolution by this Court (G.R. No.
4117 1);

3. The refusal of administrator Jose Cuenco Borromeo to render his accounting; and

4. The claim of Marcela Villegas for 1/2 of the estate causing annotations of notices of lis pendens on the different titles of
the properties of the estate.

Since there are still real properties of the estate that were not vet distributed to some of the declared heirs, particularly the 5/9
group of heirs due to the pending resolution of the waiver agreement, this Court in its resolution of June 15, 1983, required the
judge of the Court of First Instance of Cebu, Branch 11, to expedite the determination of Special Proceedings No. 916-R and
ordered the co-administrator Jose Cuenco Borromeo to submit an inventory of real properties of the estate and to render an
accounting of cash and bank deposits realized from rents of several properties.

The matter of attorney's fees shall be discussed in G.R. No. 65995.

Considering the pronouncements stated in:

1. G.R. No. 41171 & G.R. No. 55000, setting aside the Order of the trial court dated December 24, 1974;

2. G.R. No. 63818, denying the petition for review seeking to modify the decision of the Intermediate Appellate Court
insofar as it disqualifies and inhibits Judge Francisco P. Burgos from further hearing the Intestate Estate of Vito Borromeo
and ordering the remand of the case to the Executive,Judge of the Regional trial Court of Cebu for re-raffling; and

3. G.R. No. 65995, granting the petition to restrain the respondents from further acting on any and all incidents in Special
proceedings No. 916-11 because of the affirmation of the decision of the Intermediate Appellate Court in G.R. No. 63818.

the trial court may now terminate and close Special Proceedings No. 916-R, subject to the submission of an inventory of the real
properties of the estate and an accounting of the call and bank deposits of the petitioner, as co-administrator of the estate, if he has
not vet done so, as required by this Court in its Resolution dated June 15, 1983. This must be effected with all deliberate speed.

G.R. No. 63818

On June 9, 1979, respondents Jose Cuenco Borromeo and Petra 0. Borromeo filed a motion for inhibition in the Court of First
Instance of Cebu, Branch 11, presided over by Judge Francisco P. Burgos to inhibit the judge from further acting in Special
Proceedings No. 916-R. 'The movants alleged, among others, the following:

xxx xxx xxx

6. To keep the agitation to sell moving, Atty. Antigua filed a motion for the production of the certificates of title and to
deposit the same with the Branch Clerk of Court, presumably for the ready inspection of interested buyers. Said motion
was granted by the Hon. Court in its order of October 2, 1978 which, however, became the subject of various motions for
reconsideration from heirs-distributees who contended that as owners they cannot be deprived of their titles for the flimsy
reasons advanced by Atty, Antigua. In view of the motions for reconsideration, Atty Antigua ultimately withdraw his
motions for production of titles.

7. The incident concerning the production of titles triggered another incident involving Atty. Raul H. Sesbreno who was
then the counsel of herein movants Petra O. Borromeo and Amelinda B. Talam In connection with said incident, Atty.
Sesbreno filed a pleading which the tion. presiding, Judge Considered direct contempt because among others, Atty.
Sesbreno insinuated that the Hon. Presiding Judge stands to receive "fat commission" from the sale of the entire property.
Indeed, Atty. Sesbreno was seriously in danger of being declared in contempt of court with the dim prospect of
suspension from the practice of his profession. But obviously to extricate himself from the prospect of contempt and
suspension. Atty. Sesbreno chose rapproachment and ultimately joined forces with Atty. Antigua, et al., who, together,
continued to harass administrator

xxx xxx xxx

9. The herein movants are informed and so they allege, that a brother of the Hon. Presiding Judge is married to a sister of
Atty. Domingo L. Antigua.

10. There is now a clear tug of war bet ween Atty. Antigua, et al. who are agitating for the sale of the entire estate or to
buy out the individual heirs, on the one hand, and the herein movants, on the other, who are not willing to sell their
distributive shares under the terms and conditions presently proposed. In this tug of war, a pattern of harassment has
become apparent against the herein movants, especially Jose Cuenco Borromeo. Among the harassments employed by
Atty Antigua et al. are the pending motions for the removal of administrator Jose Cuenco Borromeo, the subpoena duces
tecum issued to the bank which seeks to invade into the privacy of the personal account of Jose Cuenco Borromeo, and
the other matters mentioned in paragraph 8 hereof. More harassment motions are expected until the herein movants shall
finally yield to the proposed sale. In such a situation, the herein movants beg for an entirely independent and impartial
judge to pass upon the merits of said incidents.
 11. Should the Hon. Presiding Judge continue to sit and take cognizance of this proceeding, including the incidents
above-mentioned, he is liable to be misunderstood as being biased in favor of Atty Antigua, et al. and prejudiced against
the herein movants. Incidents which may create this impression need not be enumerated herein. (pp. 39-41, Rollo)

The motion for inhibition was denied by Judge Francisco P. Burgos. Their motion for reconsideration having been denied, the
private respondents filed a petition for certiorari and/or prohibition with preliminary injunction before the Intermediate Appellate
Court.

In the appellate court, the private respondents alleged, among others, the following:

xxx xxx xxx

16. With all due respect, petitioners regret the necessity of having to state herein that respondent Hon. Francisco P.
Burgos has shown undue interest in pursing the sale initiated by Atty. Domingo L. Antigua, et al. Significantly, a brother of
respondent Hon. Francisco P. Burgos is married to a sister of Atty. Domingo L. Antigua.

17. Evidence the proposed sale of the entire properties of the estate cannot be legally done without the conformity of the
heirs-distributees because the certificates of title are already registered in their names Hence, in pursuit of the agitation to
sell, respondent Hon. Francisco P. Burgos urged the heirs-distributees to sell the entire property based on the rationale
that proceeds thereof deposited in the bank will earn interest more than the present income of the so called estate. Most
of the heirs-distributees, however. have been petitioner timid to say their piece. Only the 4/9 group of heirs led by Jose
Cuenco Borromeo have had the courage to stand up and refuse the proposal to sell clearly favored by respondent Hon.
Francisco P. Burgos.

xxx xxx xxx

20. Petitioners will refrain from discussing herein the merits of the shotgun motion of Atty. Domingo L. Antigua as well as
other incidents now pending in the court below which smack of harassment against the herein petitioners. For, regardless
of the merits of said incidents, petitioners respectfully contend that it is highly improper for respondent Hon. Francisco P.
Burgos to continue to preside over Sp. Proc. No. 916-R by reason of the following circumstances:

(a) He has shown undue interest in the sale of the properties as initiated by Atty. Domingo L. Antigua whose
sister is married to a brother of respondent.

(b) The proposed sale cannot be legally done without the conformity of the heirs-distributees, and petitioners
have openly refused the sale, to the great disappointment of respondent.

(c) The shot gun motion of Atty. Antigua and similar incidents are clearly intended to harass and embarrass
administrator Jose Cuenco Borromeo in order to pressure him into acceding to the proposed sale.

(d) Respondent has shown bias and prejudice against petitioners by failing to resolve the claim for attorney's
fees filed by Jose Cuenco Borromeo and the late Crispin Borromeo. Similar claims by the other lawyers were
resolved by respondent after petitioners refused the proposed sale. (pp. 41-43, Rollo)

On March 1, 1983, the appellate court rendered its decision granting the petition for certiorari and/or prohibition and disqualifying
Judge Francisco P. Burgos from taking further cognizance of Special Proceedings No. 916-R. The court also ordered the
transmission of the records of the case to the Executive Judge of the Regional Trial Court of Region VII for re-raffling.

A motion for reconsideration of the decision was denied by the appellate court on April 11, 1983. Hence, the present petition for
review seeking to modify the decision of the Intermediate Appellate Court insofar as it disqualifies and inhibits Judge Francisco P.
Burgos from further hearing the case of Intestate Estate of Vito Borromeo and orders the remand of the case to the Executive
Judge of the Regional Trial Court of Cebu for re-raffling.

The principal issue in this case has become moot and academic because Judge Francisco P. Burgos decided to retire from the
Regional Trial Court of Cebu sometime before the latest reorganization of the judiciary. However, we decide the petition on its
merits for the guidance of the judge to whom this case will be reassigned and others concerned.

The petitioners deny that respondent Jose Cuenco Borromeo has been harassed. They contend that Judge Burgos has benn
shown unusual interest in the proposed sale of the entire estate for P6,700,000.00 in favor of the buyers of Atty. Antigua. They
claim that this disinterest is shown by the judge's order of March 2, 1979 assessing the property of the estate at P15,000,000.00.
They add that he only ordered the administrator to sell so much of the properties of the estate to pay the attorney's fees of the
lawyers-claimants. To them, the inhibition of Judge Burgos would have been unreasonable because his orders against the failure
of Jose Cuenco Borromeo, as administrator, to give an accounting and inventory of the estate were all affirmed by the appellate
court. They claim that the respondent court, should also have taken judicial notice of the resolution of this Court directing the said
judge to "expedite the settlement and adjudication of the case" in G.R. No. 54232. And finally, they state that the disqualification of
judge Burgos would delay further the closing of the administration proceeding as he is the only judge who is conversant with the 47
volumes of the records of the case.

Respondent Jose Cuenco Borromeo, to show that he had been harassed. countered that Judge Burgos appointed Ricardo V.
Reyes as co-administrator of the estate on October 11, 1972, yet Borromeo was singled out to make an accounting of what t he
was supposed to have received as rentals for the land upon which the Juliana Trade Center is erected, from January, 1977 to
February 1982, inclusive, without mentioning the withholding tax for the Bureau of Internal Revenue. In order to bolster the
agitation to sell as proposed by Domingo L. Antigua, Judge Burgos invited Antonio Barredo, Jr., to a series of conferences from
February 26 to 28, 1979. During the conferences, Atty. Antonio Barredo, Jr., offered to buy the shares of the heirs-distributees
presumably to cover up the projected sale initiated by Atty. Antigua.

On March 2, 1979, or two days after the conferences, a motion was filed by petitioner Domingo L. Antigua praying that Jose
Cuenco Borromeo be required to file an inventory when he has already filed one to account for cash, a report on which the
administrators had already rendered: and to appear and be examined under oath in a proceeding conducted by Judge Burgos lt
was also prayed that subpoena duces tecum be issued for the appearance of the Manager of the Consolidated Bank and Trust
Co., bringing all the bank records in the name of Jose Cuenco Borromeo jointly with his wife as well as the appearance of heirs-
distributees Amelinda Borromeo Talam and another heir distributee Vitaliana Borromeo. Simultaneously with the filing of the motion
of Domingo Antigua, Atty. Raul H. Sesbreno filed a request for the issuance of subpoena duces tecum to the Manager of
Consolidated Bank and 'Trust Co., Inc.; Register of Deeds of Cebu City; Register of Deeds for the Province of Cebu and another
subpoena duces tecum to Atty. Jose Cuenco Borromeo.

On the same date, the Branch Clerk of Court issued a subpoena duces tecum to the Managert of the bank, the Register of deeds
for the City of Cebu, the Register of Deeds for the Province, of Cebu. and to Jose Cuenco Borromeo.

On the following day, March 3, 1979, Atty Gaudioso v. Villagonzalo in behalf of the heirs of Marcial Borromeo who had a common
cause with Atty Barredo, Jr., joined petitioner Domingo L. Antigua by filing a motion for relief of the administrator.

On March 5, 1979, Atty. Villagonzalo filed a request for the issuance of a subpoena duces tecum to private respondent Jose
Cuenco Borromeo to bring and produce all the owners" copies of the titles in the court presided order by Judge Burgos.

Consequently. the Branch Clerk of Court issued a subpoena duces tecum commanding Atty. Jose Cuenco Borromeo to bring and
produce the titles in court.

All the above-incidents were set for hearing on June 7, 1979 but on June 14, 1979, before the date of the hearing, Judge Burgos
issued an order denying the private respondents' motion for reconsideration and the motion to quash the subpoena.1avvphi1

It was further argued by the private respondents that if ,judge Francisco P. Burgos is not inhibited or disqualified from trying Sp.
Proc. No. 916-R, there would be a miscarriage of justice Because for the past twelve years, he had not done anything towards the
closure of the estate proceedings except to sell the properties of the heirs-distributees as initiated by petitioner Domingo L. Antigua
at 6.7 million pesos while the Intestate Court had already evaluated it at 15 million pesos.

The allegations of the private respondents in their motion for inhibition, more specifically, the insistence of the trial judge to sell the
entire estate at P6,700,000.00, where 4/9 group of heirs objected, cannot easily be ignored. Suspicion of partiality on the part of a
trial judge must be avoided at all costs. In the case of Bautista v. Rebeuno (81 SCRA 535), this Court stated:

... The Judge must maintain and preserve the trust and faith of the parties litigants. He must hold himself above reproach
and suspicion. At the very first sign of lack of faith and trust to his actions, whether well grounded or not, the Judge has no
other alternative but inhibit himself from the case. A judge may not be legally Prohibited from sitting in a litigation, but
when circumstances appear that will induce doubt to his honest actuations and probity in favor or of either partly or incite
such state of mind, he should conduct a careful self-examination. He should exercise his discretion in a way that the
people's faith in the Courts of Justice is not impaired, "The better course for the Judge under such circumstances is to
disqualify himself "That way he avoids being misunderstood, his reputation for probity and objectivity is preserve ed. what
is more important, the Ideal of impartial administration of justice is lived up to.
In this case, the fervent distrust of the private respondents is based on sound reasons. As Earlier stated, however, the petition for
review seeking to modify the decision of the Intermediate Appellate Court insofar as it disqualifies and inhibits Judge Francisco P.
Burgos from further hearing the Intestate Estate of Vito Borromeo case and ordering the remand of the case to the Executive
Judge of the Regional Trial Court for re-raffling should be DENIED for the decision is not only valid but the issue itself has become
moot and academic.

G.R. No. 65995

The petitioners seek to restrain the respondents from further acting on any and all incidents in Special Proceedings No. 916-R
during the pendency of this petition and No. 63818. They also pray that all acts of the respondents related to the said special
proceedings after March 1, 1983 when the respondent Judge was disqualified by the appellate court be declared null and void and
without force and effect whatsoever.

The petitioners state that the respondent Judge has set for hearing all incidents in Special Proceedings No. 916-R, including the
reversion from the heirs-distributees to the estate, of the distributed properties already titled in their names as early as 1970,
notwithstanding the pending inhibition case elevated before this Court which is docketed as G.R. No. 63818.

The petitioners further argue that the present status of Special Proceeding No. 916-R requires only the appraisal of the attorney's
fees of the lawyers-claimants who were individually hired by their respective heirs-clients, so their attorney's fees should be legally
charged against their respective clients and not against the estate.

On the other hand, the respondents maintain that the petition is a dilatory one and barred by res judicata because this Court on
July 8, 1981, in G.R. No. 54232 directed the respondent Judge to expedite the settlement and liquidation of the decedent's estate.
They claim that this resolution, which was already final and executory, was in effect reversed and nullified by the Intermediate
Appellate Court in its case-AC G.R.-No. SP - 11145 when it granted the petition for certiorari and or prohibition and disqualified
Judge Francisco P. Burgos from taking further cognizance of Special Proceedings No. 916R as well as ordering the transmission
of the records of the case to the Executive Judge of the Regional Trial Court of Region VII for re-raffling on March 1, 1983, which
was appealed to this Court by means of a Petition for Review (G.R. No. 63818).

We agree with the petitioners' contention that attorney's fees are not the obligation of the estate but of the individual heirs who
individually hired their respective lawyers. The portion, therefore, of the Order of August 15, 1969, segregating the exhorbitantly
excessive amount of 40% of the market value of the estate from which attorney's fees shall be taken and paid should be deleted.

Due to our affirmance of the decision of the Intermediate Appellate Court in G.R. No. 63818, we grant the petition.

WHEREFORE,

(1) In G.R. No. 41171, the order of the respondent judge dated December 24, 1974, declaring the respondent entitled to
5/9 of the estate of the late Vito Borromeo and the order dated July 7, 1975, denying the petitioner's motion for
reconsideration of the aforementioned order are hereby SET ASIDE for being NULL and VOID;

(2) In G.R. No. 55000, the order of the trial court declaring the waiver document valid is hereby SET ASIDE;

(3) In G.R. No. 63818, the petition is hereby DENIED. The issue in the decision of the Intermediate Appellate Court
disqualifying and ordering the inhibition of Judge Francisco P. Burgos from further hearing Special Proceedings No. 916-R
is declared moot and academic. The judge who has taken over the sala of retired Judge Francisco P. Burgos shall
immediately conduct hearings with a view to terminating the proceedings. In the event that the successor-judge is likewise
disqualified, the order of the Intermediate Appellate Court directing the Executive Judge of the Regional Trial Court of
Cebu to re-raffle the case shall be implemented:

(4) In G.R. No. 65995, the petition is hereby GRANTED. 'The issue seeking to restrain Judge Francisco P. Burgos from
further acting in G.R. No. 63818 is MOOT and ACADEMIC:

(5) In G.R, No, 62895, the trial court is hereby ordered to speedily terminate the close Special Proceedings No. 916-R,
subject to the submission of an inventory of the real properties of the estate and an accounting of the cash and bank
deposits by the petitioner-administrator of the estate as required by this Court in its Resolution dated June 15, 1983; and

(6) The portion of the Order of August 15, 1969, segregating 40% of the market value of the estate from which attorney's
fees shall be taken and paid should be, as it is hereby DELETED. The lawyers should collect from the heirs-distributees
 who individually hired them, attorney's fees according to the nature of the services rendered but in amounts which should
not exceed more than 20% of the market value of the property the latter acquired from the estate as beneficiaries.

SO ORDERED.

Feliciano, Bidin and Cortes, JJ., concur.

Fernan (Chairman), took no part.

G.R. No. 129008 January 13, 2004

TEODORA A. RIOFERIO, VERONICA O. EVANGELISTA assisted by her husband ZALDY EVANGELISTA, ALBERTO
ORFINADA, and ROWENA O. UNGOS, assisted by her husband BEDA UNGOS, petitioners,
vs.
COURT OF APPEALS, ESPERANZA P. ORFINADA, LOURDES P. ORFINADA, ALFONSO ORFINADA, NANCY P.
ORFINADA, ALFONSO JAMES P. ORFINADA, CHRISTOPHER P. ORFINADA and ANGELO P. ORFINADA, respondents.

TINGA, J.:

Whether the heirs may bring suit to recover property of the estate pending the appointment of an administrator is the issue in this
case.

This Petition for Review on Certiorari, under Rule 45 of the Rules of Court, seeks to set aside the Decision1 of the Court of Appeals
in CA-G.R. SP No. 42053 dated January 31, 1997, as well as its Resolution2 dated March 26, 1997, denying petitioners motion for
reconsideration.

On May 13, 1995, Alfonso P. Orfinada, Jr. died without a will in Angeles City leaving several personal and real properties located in
Angeles City, Dagupan City and Kalookan City. 3 He also left a widow, respondent Esperanza P. Orfinada, whom he married on
July 11, 1960 and with whom he had seven children who are the herein respondents, namely: Lourdes P. Orfinada, Alfonso
"Clyde" P. Orfinada, Nancy P. Orfinada-Happenden, Alfonso James P. Orfinada, Christopher P. Orfinada, Alfonso Mike P. Orfinada
(deceased) and Angelo P. Orfinada.4

Apart from the respondents, the demise of the decedent left in mourning his paramour and their children. They are petitioner
Teodora Riofero, who became a part of his life when he entered into an extra-marital relationship with her during the subsistence of
his marriage to Esperanza sometime in 1965, and co-petitioners Veronica5, Alberto and Rowena.6

On November 14, 1995, respondents Alfonso James and Lourdes Orfinada discovered that on June 29, 1995, petitioner Teodora
Rioferio and her children executed an Extrajudicial Settlement of Estate of a Deceased Person with Quitclaim involving the
properties of the estate of the decedent located in Dagupan City and that accordingly, the Registry of Deeds in Dagupan issued
Certificates of Titles Nos. 63983, 63984 and 63985 in favor of petitioners Teodora Rioferio, Veronica Orfinada-Evangelista, Alberto
Orfinada and Rowena Orfinada-Ungos. Respondents also found out that petitioners were able to obtain a loan of P700,000.00 from
the Rural Bank of Mangaldan Inc. by executing a Real Estate Mortgage over the properties subject of the extra-judicial settlement.7

On December 1, 1995, respondent Alfonso "Clyde" P. Orfinada III filed a Petition for Letters of Administration docketed as S.P.
Case No. 5118 before the Regional Trial Court of Angeles City, praying that letters of administration encompassing the estate of
Alfonso P. Orfinada, Jr. be issued to him.8

On December 4, 1995, respondents filed a Complaint for the Annulment/Rescission of Extra Judicial Settlement of Estate of a
Deceased Person with Quitclaim, Real Estate Mortgage and Cancellation of Transfer Certificate of Titles with Nos. 63983, 63985
and 63984 and Other Related Documents with Damages against petitioners, the Rural Bank of Mangaldan, Inc. and the Register of
Deeds of Dagupan City before the Regional Trial Court, Branch 42, Dagupan City.9

On February 5, 1996, petitioners filed their Answer to the aforesaid complaint interposing the defense that the property subject of
the contested deed of extra-judicial settlement pertained to the properties originally belonging to the parents of Teodora Riofero10
and that the titles thereof were delivered to her as an advance inheritance but the decedent had managed to register them in his
name.11 Petitioners also raised the affirmative defense that respondents are not the real parties-in-interest but rather the Estate of
Alfonso O. Orfinada, Jr. in view of the pendency of the administration proceedings.12 On April 29, 1996, petitioners filed a Motion to
Set Affirmative Defenses for Hearing13 on the aforesaid ground.
The lower court denied the motion in its Order14 dated June 27, 1996, on the ground that respondents, as heirs, are the real
parties-in-interest especially in the absence of an administrator who is yet to be appointed in S.P. Case No. 5118. Petitioners
moved for its reconsideration15 but the motion was likewise denied.16

This prompted petitioners to file before the Court of Appeals their Petition for Certiorari under Rule 65 of the Rules of Court
docketed as CA G.R. S.P. No. 42053.17 Petitioners averred that the RTC committed grave abuse of discretion in issuing the
assailed order which denied the dismissal of the case on the ground that the proper party to file the complaint for the annulment of
the extrajudicial settlement of the estate of the deceased is the estate of the decedent and not the respondents.18

The Court of Appeals rendered the assailed Decision19 dated January 31, 1997, stating that it discerned no grave abuse of
discretion amounting to lack or excess of jurisdiction by the public respondent judge when he denied petitioners motion to set
affirmative defenses for hearing in view of its discretionary nature.

A Motion for Reconsideration was filed by petitioners but it was denied.20 Hence, the petition before this Court.

The issue presented by the petitioners before this Court is whether the heirs have legal standing to prosecute the rights belonging
to the deceased subsequent to the commencement of the administration proceedings.21

Petitioners vehemently fault the lower court for denying their motion to set the case for preliminary hearing on their affirmative
defense that the proper party to bring the action is the estate of the decedent and not the respondents. It must be stressed that the
holding of a preliminary hearing on an affirmative defense lies in the discretion of the court. This is clear from the Rules of Court,
thus:

SEC. 5. Pleadings grounds as affirmative defenses.- Any of the grounds for dismissal provided for in this rule, except
improper venue, may be pleaded as an affirmative defense, and a preliminary hearing may be had thereon as if a motion
to dismiss had been filed.22 (Emphasis supplied.)

Certainly, the incorporation of the word "may" in the provision is clearly indicative of the optional character of the preliminary
hearing. The word denotes discretion and cannot be construed as having a mandatory effect. 23 Subsequently, the electivity of the
proceeding was firmed up beyond cavil by the 1997 Rules of Civil Procedure with the inclusion of the phrase "in the discretion of
the Court", apart from the retention of the word "may" in Section 6,24 in Rule 16 thereof.

Just as no blame of abuse of discretion can be laid on the lower courts doorstep for not hearing petitioners affirmative defense, it
cannot likewise be faulted for recognizing the legal standing of the respondents as heirs to bring the suit.

Pending the filing of administration proceedings, the heirs without doubt have legal personality to bring suit in behalf of the estate of
the decedent in accordance with the provision of Article 777 of the New Civil Code "that (t)he rights to succession are transmitted
from the moment of the death of the decedent." The provision in turn is the foundation of the principle that the property, rights and
obligations to the extent and value of the inheritance of a person are transmitted through his death to another or others by his will
or by operation of law.25

Even if administration proceedings have already been commenced, the heirs may still bring the suit if an administrator has not yet
been appointed. This is the proper modality despite the total lack of advertence to the heirs in the rules on party representation,
namely Section 3, Rule 326 and Section 2, Rule 8727 of the Rules of Court. In fact, in the case of Gochan v. Young,28 this Court
recognized the legal standing of the heirs to represent the rights and properties of the decedent under administration pending the
appointment of an administrator. Thus:

The above-quoted rules,29 while permitting an executor or administrator to represent or to bring suits on behalf of the
deceased, do not prohibit the heirs from representing the deceased. These rules are easily applicable to cases in
which an administrator has already been appointed. But no rule categorically addresses the situation in which
special proceedings for the settlement of an estate have already been instituted, yet no administrator has been
appointed. In such instances, the heirs cannot be expected to wait for the appointment of an administrator; then wait
further to see if the administrator appointed would care enough to file a suit to protect the rights and the interests of the
deceased; and in the meantime do nothing while the rights and the properties of the decedent are violated or dissipated.

Even if there is an appointed administrator, jurisprudence recognizes two exceptions, viz: (1) if the executor or administrator is
unwilling or refuses to bring suit;30 and (2) when the administrator is alleged to have participated in the act complained of31 and he
is made a party defendant.32 Evidently, the necessity for the heirs to seek judicial relief to recover property of the estate is as
compelling when there is no appointed administrator, if not more, as where there is an appointed administrator but he is either
disinclined to bring suit or is one of the guilty parties himself.

All told, therefore, the rule that the heirs have no legal standing to sue for the recovery of property of the estate during the
pendency of administration proceedings has three exceptions, the third being when there is no appointed administrator such as in
this case.

As the appellate court did not commit an error of law in upholding the order of the lower court, recourse to this Court is not
warranted.

WHEREFORE, the petition for review is DENIED. The assailed decision and resolution of the Court of Appeals are hereby
AFFIRMED. No costs.

SO ORDERED.

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

G.R. No. L-54919 May 30, 1984

POLLY CAYETANO, petitioner,

vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court of First Instance of Manila
and NENITA CAMPOS PAGUIA, respondents.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to annul the order of the respondent judge of the Court of First Instance of Manila,
Branch XXXVIII, which admitted to and allowed the probate of the last will and testament of Adoracion C. Campos, after an ex-
parte presentation of evidence by herein private respondent.

On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters, private
respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the
only compulsory heir, he executed an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he
adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos.

Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased, Adoracion
Campos, which was allegedly executed in the United States and for her appointment as administratrix of the estate of the
deceased testatrix.

In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a permanent resident of
4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while temporarily
residing with her sister at 2167 Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last wig and testament on
July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as executor; that after
the testatrix death, her last will and testament was presented, probated, allowed, and registered with the Registry of Wins at the
County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after Dr. Barzaga had declined
and waived his appointment as executor in favor of the former, is also a resident of Philadelphia, U.S.A., and that therefore, there is
an urgent need for the appointment of an administratrix to administer and eventually distribute the properties of the estate located
in the Philippines.

On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging among other things, that he
has every reason to believe that the will in question is a forgery; that the intrinsic provisions of the will are null and void; and that
even if pertinent American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they would work
injustice and injury to him.

On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a Motion to Dismiss Opposition (With
Waiver of Rights or Interests) stating that he "has been able to verify the veracity thereof (of the will) and now confirms the same to
be truly the probated will of his daughter Adoracion." Hence, an ex-parte presentation of evidence for the reprobate of the
questioned will was made.
On January 10, 1979, the respondent judge issued an order, to wit:

At the hearing, it has been satisfactorily established that Adoracion C. Campos, in her lifetime, was a citizen of
the United States of America with a permanent residence at 4633 Ditman Street, Philadelphia, PA 19124,
(Exhibit D) that when alive, Adoracion C. Campos executed a Last Will and Testament in the county of
Philadelphia, Pennsylvania, U.S.A., according to the laws thereat (Exhibits E-3 to E-3-b) that while in temporary
sojourn in the Philippines, Adoracion C. Campos died in the City of Manila (Exhibit C) leaving property both in the
Philippines and in the United States of America; that the Last Will and Testament of the late Adoracion C.
Campos was admitted and granted probate by the Orphan's Court Division of the Court of Common Pleas, the
probate court of the Commonwealth of Pennsylvania, County of Philadelphia, U.S.A., and letters of
administration were issued in favor of Clement J. McLaughlin all in accordance with the laws of the said foreign
country on procedure and allowance of wills (Exhibits E to E-10); and that the petitioner is not suffering from any
disqualification which would render her unfit as administratrix of the estate in the Philippines of the late Adoracion
C. Campos.

WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby admitted to and allowed
probate in the Philippines, and Nenita Campos Paguia is hereby appointed Administratrix of the estate of said
decedent; let Letters of Administration with the Will annexed issue in favor of said Administratrix upon her filing of
a bond in the amount of P5,000.00 conditioned under the provisions of Section I, Rule 81 of the Rules of Court.

Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal of his opposition, acknowledging the
same to be his voluntary act and deed.

On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the will be set aside on the ground
that the withdrawal of his opposition to the same was secured through fraudulent means. According to him, the "Motion to Dismiss
Opposition" was inserted among the papers which he signed in connection with two Deeds of Conditional Sales which he executed
with the Construction and Development Corporation of the Philippines (CDCP). He also alleged that the lawyer who filed the
withdrawal of the opposition was not his counsel-of-record in the special proceedings case.

The petition for relief was set for hearing but the petitioner failed to appear. He made several motions for postponement until the
hearing was set on May 29, 1980.

On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside the Order of January 10, 1979, and/or
dismiss the case for lack of jurisdiction. In this motion, the notice of hearing provided:

Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in the morning for submission for
reconsideration and resolution of the Honorable Court. Until this Motion is resolved, may I also request for the
future setting of the case for hearing on the Oppositor's motion to set aside previously filed.

The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was called for hearing on this date, the
counsel for petitioner tried to argue his motion to vacate instead of adducing evidence in support of the petition for relief. Thus, the
respondent judge issued an order dismissing the petition for relief for failure to present evidence in support thereof. Petitioner filed
a motion for reconsideration but the same was denied. In the same order, respondent judge also denied the motion to vacate for
lack of merit. Hence, this petition.

Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which, incidentally has been questioned by the
respondent, his children and forced heirs as, on its face, patently null and void, and a fabrication, appointing Polly Cayetano as the
executrix of his last will and testament. Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant case
which was granted by the court on September 13, 1982.

A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos merged upon his death with
the rights of the respondent and her sisters, only remaining children and forced heirs was denied on September 12, 1983.

Petitioner Cayetano persists with the allegations that the respondent judge acted without or in excess of his jurisdiction when:

1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic) upon the filing of the Motion
to Dismiss opposition with waiver of rights or interests against the estate of deceased Adoracion C. Campos,
thus, paving the way for the hearing ex-parte of the petition for the probate of decedent will.
 2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or authenticated instrument),
or by way of a petition presented to the court but by way of a motion presented prior to an order for the
distribution of the estate-the law especially providing that repudiation of an inheritance must be presented, within
30 days after it has issued an order for the distribution of the estate in accordance with the rules of Court.

3) He ruled that the right of a forced heir to his legitime can be divested by a decree admitting a will to probate in
which no provision is made for the forced heir in complete disregard of Law of Succession

4) He denied petitioner's petition for Relief on the ground that no evidence was adduced to support the Petition
for Relief when no Notice nor hearing was set to afford petitioner to prove the merit of his petition a denial of
the due process and a grave abuse of discretion amounting to lack of jurisdiction.

5) He acquired no jurisdiction over the testate case, the fact that the Testator at the time of death was a usual
resident of Dasmarias, Cavite, consequently Cavite Court of First Instance has exclusive jurisdiction over the
case (De Borja vs. Tan, G.R. No. L-7792, July 1955).

The first two issues raised by the petitioner are anchored on the allegation that the respondent judge acted with grave abuse of
discretion when he allowed the withdrawal of the petitioner's opposition to the reprobate of the will.

We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced to support petitioner's contention
that the motion to withdraw was secured through fraudulent means and that Atty. Franco Loyola was not his counsel of record. The
records show that after the firing of the contested motion, the petitioner at a later date, filed a manifestation wherein he confirmed
that the Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the motion was filed, the petitioner's
former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and had been substituted by Atty. Franco Loyola who in
turn filed the motion. The present petitioner cannot, therefore, maintain that the old man's attorney of record was Atty. Lagrosa at
the time of filing the motion. Since the withdrawal was in order, the respondent judge acted correctly in hearing the probate of the
will ex-parte, there being no other opposition to the same.

The third issue raised deals with the validity of the provisions of the will. As a general rule, the probate court's authority is limited
only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court has declared that the
will has been duly authenticated. However, where practical considerations demand that the intrinsic validity of the will be passed
upon, even before it is probated, the court should meet the issue. (Maninang vs. Court of Appeals, 114 SCRA 478).

In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of Adoracion's will, Hermogenes
C. Campos was divested of his legitime which was reserved by the law for him.

This contention is without merit.

Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have denied its
reprobate outright, the private respondents have sufficiently established that Adoracion was, at the time of her death, an American
citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil
Code which respectively provide:

Art. 16 par. (2).

xxx xxx xxx

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

Art. 1039.

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

the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent.
Although the parties admit that the Pennsylvania law does not provide for legitimes and that all the estate may be given away by
the testatrix to a complete stranger, the petitioner argues that such law should not apply because it would be contrary to the sound
and established public policy and would run counter to the specific provisions of Philippine Law.

It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article 16(2) and 1039 of the
Civil Code, the national law of the decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20 SCRA 358)
wherein we ruled:

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

xxx xxx xxx

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

As regards the alleged absence of notice of hearing for the petition for relief, the records wig bear the fact that what was repeatedly
scheduled for hearing on separate dates until June 19, 1980 was the petitioner's petition for relief and not his motion to vacate the
order of January 10, 1979. There is no reason why the petitioner should have been led to believe otherwise. The court even
admonished the petitioner's failing to adduce evidence when his petition for relief was repeatedly set for hearing. There was no
denial of due process. The fact that he requested "for the future setting of the case for hearing . . ." did not mean that at the next
hearing, the motion to vacate would be heard and given preference in lieu of the petition for relief. Furthermore, such request
should be embodied in a motion and not in a mere notice of hearing.

Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of the
Rules of Court, it is provided that:

SECTION 1. Where estate of deceased persons settled. If the decedent is an inhabitant of the Philippines at
the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted,
and his estate settled, in the Court of First Instance in the province in which he resided at the time of his death,
and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate.
The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence
of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an
appeal from that court, in the original case, or when the want of jurisdiction appears on the record.

Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of First Instance of Manila where
she had an estate since it was alleged and proven that Adoracion at the time of her death was a citizen and permanent resident of
Pennsylvania, United States of America and not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is
now estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a settled rule that a party cannot
invoke the jurisdiction of a court to secure affirmative relief, against his opponent and after failing to obtain such relief, repudiate or
question that same jurisdiction. (See Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R. No. 63 284, April 4, 1984).

WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.

SO ORDERED.

Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

Teehankee, J., (Chairman), took no part.

G.R. No. L-22036 April 30, 1979

TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL RIGOR. THE PARISH PRIEST OF THE ROMAN
CATHOLIC CHURCH OF VICTORIA, TARLAC, petitioner-appellant,
vs.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR DE RIGOR and JOVITA ESCOBAR DE FAUSTO, respondents-
appellees.

AQUINO, J.:

This case is about the efficaciousness or enforceability of a devise of ricelands located at Guimba, Nueva Ecija, with a total area of
around forty- four hectares That devise was made in the will of the late Father Pascual Rigor, a native of Victoria Tarlac, in favor of
his nearest male relative who would study for the priesthood.

The parish priest of Victoria, who claimed to be a trustee of the said lands, appealed to this Court from the decision of the Court of
Appeals affirming the order of the probate court declaring that the said devise was inoperative (Rigor vs. Parish Priest of the
Roman Catholic Church of Victoria, Tarlac, CA-G.R. No. 24319-R, August 1, 1963).

The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan, died on August 9, 1935, leaving a will executed on
October 29, 1933 which was probated by the Court of First Instance of Tarlac in its order of December 5, 1935. Named as
devisees in the will were the testators nearest relatives, namely, his three sisters: Florencia Rigor-Escobar, Belina Rigor-Manaloto
and Nestora Rigor-Quiambao. The testator gave a devise to his cousin, Fortunato Gamalinda.

In addition, the will contained the following controversial bequest (paragraphing supplied to facilitate comprehension of the
testamentary provisions):

Doy y dejo como legado CUATRO (4) PARCELAS de terreno palayeros situados en el municipiooo de Guimba
de la provinciaaa de NUEVA ECIJA, cuyo num. de CERTIFICADO DE TRANSFERENCIA DE TITULO SON;
Titulo Num. 6530, mide 16,249 m. cuadrados de superficie Titulo Num. 6548, mide 242,998 m. cuadrados de
superficie y annual 6525, mide 62,665 m. cuadrados de superficie; y Titulo Num. 6521, mide 119,251 m.
cuadrados de superficie; a cualquier pariente mio varon mas cercano que estudie la carrera eclesiatica hasta
ordenarse de Presbiterado o sea Sacerdote; las condiciones de estate legado son;

(1.a) Prohibe en absoluto la venta de estos terrenos arriba situados objectos de este legado;

(2.a) Que el legatario pariente mio mas cercano tendra derecho de empezar a gozar y administrar de este
legado al principiar a curzar la Sagrada Teologio, y ordenado de Sacerdote, hasta su muerte; pero que pierde el
legatario este derecho de administrar y gozar de este legado al dejar de continuar sus estudios para ordenarse
de Presbiterado (Sacerdote).

Que el legatario una vez Sacerdote ya estara obligado a celebrar cada ao VEINTE (20) Misas rezadas en
sufragio de mi alma y de mis padres difuntos, y si el actual legatario, quedase excomulgado, IPSO FACTO se le
despoja este legado, y la administracion de esto pasara a cargo del actual Parroco y sus sucesores de la Iglecia
Catolica de Victoria, Tarlac.

Y en intervalo de tiempo que no haya legatario acondicionado segun lo arriba queda expresado, pasara la
administracion de este legado a cargo del actual Parroco Catolico y sus sucesores, de Victoria, Tarlac.

El Parroco administrador de estate legado, acumulara, anualmente todos los productos que puede tener estate
legado, ganando o sacando de los productos anuales el CINCO (5) por ciento para su administracion, y los
derechos correspondientes de las VEINTE (20) Misas rezadas que debiera el Parroco celebrar cada ao,
depositando todo lo restante de los productos de estate legado, en un banco, a nombre de estate legado.

To implement the foregoing bequest, the administratix in 1940 submitted a project containing the following item:

5. LEGACY OF THE CHURCH

That it be adjudicated in favor of the legacy purported to be given to the nearest male relative who shall take the
priesthood, and in the interim to be administered by the actual Catholic Priest of the Roman Catholic Church of
Victoria, Tarlac, Philippines, or his successors, the real properties hereinbelow indicated, to wit:
 Titl Lot Area Tax Ass.
e No. in Dec. Value
No. Has.

T- 366 1.624 1874 P

653 3 9 0 340.00
0

T- 344 24.29 1873 7,290.

654 5-C 98 0 00
8

T- 367 6.266 1873 1,880.

652 0 5 6 00
5

T- 366 11.92 1873 3,580.

652 6 51 3 00
1

Total amount and value 44.1163 P13,090.00

Judge Roman A. Cruz in his order of August 15, 1940, approving the project of partition, directed that after payment of the
obligations of the estate (including the sum of P3,132.26 due to the church of the Victoria parish) the administratrix should deliver
to the devisees their respective shares.

It may be noted that the administratrix and Judge Cruz did not bother to analyze the meaning and implications of Father Rigor's
bequest to his nearest male relative who would study for the priesthood. Inasmuch as no nephew of the testator claimed the devise
and as the administratrix and the legal heirs believed that the parish priest of Victoria had no right to administer the ricelands, the
same were not delivered to that ecclesiastic. The testate proceeding remained pending.

About thirteen years after the approval of the project of partition, or on February 19, 1954, the parish priest of Victoria filed in the
pending testate proceeding a petition praying for the appointment of a new administrator (succeeding the deceased administration
Florencia Rigor), who should deliver to the church the said ricelands, and further praying that the possessors thereof be ordered to
render an accounting of the fruits. The probate court granted the petition. A new administrator was appointed. On January 31, 1957
the parish priest filed another petition for the delivery of the ricelands to the church as trustee.

The intestate heirs of Father Rigor countered with a petition dated March 25, 1957 praying that the bequest be d inoperative and
that they be adjudged as the persons entitled to the said ricelands since, as admitted by the parish priest of Victoria, "no nearest
male relative of" the testator "has ever studied for the priesthood" (pp. 25 and 35, Record on Appeal). That petition was opposed by
the parish priest of Victoria.

Finding that petition to be meritorious, the lower court, through Judge Bernabe de Aquino, declared the bequest inoperative and
adjudicated the ricelands to the testator's legal heirs in his order of June 28, 1957. The parish priest filed two motions for
reconsideration.

Judge De Aquino granted the respond motion for reconsideration in his order of December 10, 1957 on the ground that the testator
had a grandnephew named Edgardo G. Cunanan (the grandson of his first cousin) who was a seminarian in the San Jose
Seminary of the Jesuit Fathers in Quezon City. The administrator was directed to deliver the ricelands to the parish priest of
Victoria as trustee.

The legal heirs appealed to the Court of Appeals. It reversed that order. It held that Father Rigor had created a testamentary trust
for his nearest male relative who would take the holy orders but that such trust could exist only for twenty years because to enforce
it beyond that period would violate "the rule against perpetuities. It ruled that since no legatee claimed the ricelands within twenty
years after the testator's death, the same should pass to his legal heirs, citing articles 888 and 912(2) of the old Civil Code and
article 870 of the new Civil Code.

The parish priest in this appeal contends that the Court of Appeals erred in not finding that the testator created a public charitable
trust and in not liberally construing the testamentary provisions so as to render the trust operative and to prevent intestacy.
As refutation, the legal heirs argue that the Court of Appeals d the bequest inoperative because no one among the testator's
nearest male relatives had studied for the priesthood and not because the trust was a private charitable trust. According to the
legal heirs, that factual finding is binding on this Court. They point out that appellant priest's change of theory cannot be
countenanced in this appeal .

In this case, as in cases involving the law of contracts and statutory construction, where the intention of the contracting parties or of
the lawmaking body is to be ascertained, the primary issue is the determination of the testator's intention which is the law of the
case (dicat testor et erit lex. Santos vs. Manarang, 27 Phil. 209, 215; Rodriguez vs. Court of Appeals, L-28734, March 28, 1969, 27
SCRA 546).

The will of the testator is the first and principal law in the matter of testaments. When his intention is clearly and precisely
expressed, any interpretation must be in accord with the plain and literal meaning of his words, except when it may certainly
appear that his intention was different from that literally expressed (In re Estate of Calderon, 26 Phil. 333).

The intent of the testator is the cardinal rule in the construction of wills." It is "the life and soul of a will It is "the first greatest rule,
the sovereign guide, the polestar, in giving effect to a will". (See Dissent of Justice Moreland in Santos vs. Manarang, 27 Phil. 209,
223, 237-8.)

One canon in the interpretation of the testamentary provisions is that "the testator's intention is to be ascertained from the words of
the wilt taking into consideration the circumstances under which it was made", but excluding the testator's oral declarations as to
his intention (Art. 789, Civil Code of the Philippines).

To ascertain Father Rigor's intention, it may be useful to make the following re-statement of the provisions of his will.

1. that he bequeathed the ricelands to anyone of his nearest male relatives who would pursue an ecclesiastical career until his
ordination as a priest.

2. That the devisee could not sell the ricelands.

3. That the devisee at the inception of his studies in sacred theology could enjoy and administer the ricelands, and once ordained
as a priest, he could continue enjoying and administering the same up to the time of his death but the devisee would cease to
enjoy and administer the ricelands if he discontinued his studies for the priesthood.

4. That if the devisee became a priest, he would be obligated to celebrate every year twenty masses with prayers for the repose of
the souls of Father Rigor and his parents.

5. That if the devisee is excommunicated, he would be divested of the legacy and the administration of the riceland would pass to
the incumbent parish priest of Victoria and his successors.

6. That during the interval of time that there is no qualified devisee as contemplated above, the administration of the ricelands
would be under the responsibility of the incumbent parish priest of Victoria and his successors, and

7. That the parish priest-administrator of the ricelands would accumulate annually the products thereof, obtaining or getting from
the annual produce five percent thereof for his administration and the fees corresponding to the twenty masses with prayers that
the parish priest would celebrate for each year, depositing the balance of the income of the devise in the bank in the name of his
bequest.

From the foregoing testamentary provisions, it may be deduced that the testator intended to devise the ricelands to his nearest
male relative who would become a priest, who was forbidden to sell the ricelands, who would lose the devise if he discontinued his
studies for the priesthood, or having been ordained a priest, he was excommunicated, and who would be obligated to say annually
twenty masses with prayers for the repose of the souls of the testator and his parents.

On the other hand, it is clear that the parish priest of Victoria would administer the ricelands only in two situations: one, during the
interval of time that no nearest male relative of the testator was studying for the priesthood and two, in case the testator's nephew
became a priest and he was excommunicated.

What is not clear is the duration of "el intervalo de tiempo que no haya legatario acondicionado", or how long after the testator's
death would it be determined that he had a nephew who would pursue an ecclesiastical vocation. It is that patent ambiguity that
has brought about the controversy between the parish priest of Victoria and the testator's legal heirs.
Interwoven with that equivocal provision is the time when the nearest male relative who would study for the priesthood should be
determined. Did the testator contemplate only his nearest male relative at the time of his death? Or did he have in mind any of his
nearest male relatives at anytime after his death?

We hold that the said bequest refers to the testator's nearest male relative living at the time of his death and not to any indefinite
time thereafter. "In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession
opens, except in case of representation, when it is proper" (Art. 1025, Civil Code).

The said testamentary provisions should be sensibly or reasonably construed. To construe them as referring to the testator's
nearest male relative at anytime after his death would render the provisions difficult to apply and create uncertainty as to the
disposition of his estate. That could not have been his intention.

In 1935, when the testator died, his nearest leagal heirs were his three sisters or second-degree relatives, Mrs. Escobar, Mrs.
Manaloto and Mrs. Quiambao. Obviously, when the testator specified his nearest male relative, he must have had in mind his
nephew or a son of his sister, who would be his third-degree relative, or possibly a grandnephew. But since he could not
prognosticate the exact date of his death or state with certitude what category of nearest male relative would be living at the time of
his death, he could not specify that his nearest male relative would be his nephew or grandnephews (the son of his nephew or
niece) and so he had to use the term "nearest male relative".

It is contended by the legal heirs that the said devise was in reality intended for Ramon Quiambao, the testator's nephew and
godchild, who was the son of his sister, Mrs. Quiambao. To prove that contention, the legal heirs presented in the lower court the
affidavit of Beatriz Gamalinda, the maternal grandmother of Edgardo Cunanan, who deposed that after Father Rigor's death her
own son, Valentin Gamalinda, Jr., did not claim the devise, although he was studying for the priesthood at the San Carlos
Seminary, because she (Beatriz) knew that Father Rigor had intended that devise for his nearest male relative beloning to the
Rigor family (pp. 105-114, Record on Appeal).

Mrs. Gamalinda further deposed that her own grandchild, Edgardo G. Cunanan, was not the one contemplated in Father Rigor's
will and that Edgardo's father told her that he was not consulted by the parish priest of Victoria before the latter filed his second
motion for reconsideration which was based on the ground that the testator's grandnephew, Edgardo, was studying for the
priesthood at the San Jose Seminary.

Parenthetically, it should be stated at this juncture that Edgardo ceased to be a seminarian in 1961. For that reason, the legal heirs
apprised the Court of Appeals that the probate court's order adjudicating the ricelands to the parish priest of Victoria had no more
leg to stand on (p. 84, Appellant's brief).

Of course, Mrs. Gamalinda's affidavit, which is tantamount to evidence aliunde as to the testator's intention and which is hearsay,
has no probative value. Our opinion that the said bequest refers to the testator's nephew who was living at the time of his death,
when his succession was opened and the successional rights to his estate became vested, rests on a judicious and unbiased
reading of the terms of the will.

Had the testator intended that the "cualquier pariente mio varon mas cercano que estudie la camera eclesiatica" would include
indefinitely anyone of his nearest male relatives born after his death, he could have so specified in his will He must have known
that such a broad provision would suspend for an unlimited period of time the efficaciousness of his bequest.

What then did the testator mean by "el intervalo de tiempo que no haya legatario acondicionado"? The reasonable view is that he
was referring to a situation whereby his nephew living at the time of his death, who would like to become a priest, was still in grade
school or in high school or was not yet in the seminary. In that case, the parish priest of Victoria would administer the ricelands
before the nephew entered the seminary. But the moment the testator's nephew entered the seminary, then he would be entitled to
enjoy and administer the ricelands and receive the fruits thereof. In that event, the trusteeship would be terminated.

Following that interpretation of the will the inquiry would be whether at the time Father Rigor died in 1935 he had a nephew who
was studying for the priesthood or who had manifested his desire to follow the ecclesiastical career. That query is categorically
answered in paragraph 4 of appellant priest's petitions of February 19, 1954 and January 31, 1957. He unequivocally alleged
therein that "not male relative of the late (Father) Pascual Rigor has ever studied for the priesthood" (pp. 25 and 35, Record on
Appeal).

Inasmuch as the testator was not survived by any nephew who became a priest, the unavoidable conclusion is that the bequest in
question was ineffectual or inoperative. Therefore, the administration of the ricelands by the parish priest of Victoria, as envisaged
in the wilt was likewise inoperative.
The appellant in contending that a public charitable trust was constituted by the testator in is favor assumes that he was a trustee
or a substitute devisee That contention is untenable. A reading of the testamentary provisions regarding the disputed bequest not
support the view that the parish priest of Victoria was a trustee or a substitute devisee in the event that the testator was not
survived by a nephew who became a priest.

It should be understood that the parish priest of Victoria could become a trustee only when the testator's nephew living at the time
of his death, who desired to become a priest, had not yet entered the seminary or, having been ordained a priest, he was
excommunicated. Those two contingencies did not arise, and could not have arisen in this case because no nephew of the testator
manifested any intention to enter the seminary or ever became a priest.

The Court of Appeals correctly ruled that this case is covered by article 888 of the old Civil Code, now article 956, which provides
that if "the bequest for any reason should be inoperative, it shall be merged into the estate, except in cases of substitution and
those in which the right of accretion exists" ("el legado ... por qualquier causa, no tenga efecto se refundira en la masa de la
herencia, fuera de los casos de sustitucion y derecho de acrecer").

This case is also covered by article 912(2) of the old Civil Code, now article 960 (2), which provides that legal succession takes
place when the will "does not dispose of all that belongs to the testator." There being no substitution nor accretion as to the said
ricelands the same should be distributed among the testator's legal heirs. The effect is as if the testator had made no disposition as
to the said ricelands.

The Civil Code recognizes that a person may die partly testate and partly intestate, or that there may be mixed succession. The old
rule as to the indivisibility of the testator's win is no longer valid. Thus, if a conditional legacy does not take effect, there will be
intestate succession as to the property recovered by the said legacy (Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).

We find no merit in the appeal The Appellate Court's decision is affirmed. Costs against the petitioner.

SO ORDERED

Fernando, C.J.(Actg. ), Barredo (Actg. Chairman), Antonio, Concepcion, Jr., and Santos, JJ., concur.

Abad Santos, J., took no part.

G.R. No. 145545 June 30, 2008

PAZ SAMANIEGO-CELADA, petitioner,

vs.
LUCIA D. ABENA, respondent.

QUISUMBING, J.:

This is a petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeking to reverse the Decision 1 dated October 13,
2000 of the Court of Appeals in CA-G.R. CV No. 41756, which affirmed the Decision2 dated March 2, 1993 of the Regional Trial
Court (RTC), Branch 66, Makati City. The RTC had declared the last will and testament of Margarita S. Mayores probated and
designated respondent Lucia D. Abena as the executor of her will. It also ordered the issuance of letters testamentary in favor of
respondent.

The facts are as follows:

Petitioner Paz Samaniego-Celada was the first cousin of decedent Margarita S. Mayores (Margarita) while respondent was the
decedents lifelong companion since 1929.

On April 27, 1987, Margarita died single and without any ascending nor descending heirs as her parents, grandparents and siblings
predeceased her. She was survived by her first cousins Catalina Samaniego-Bombay, Manuelita Samaniego Sajonia, Feliza
Samaniego, and petitioner.

Before her death, Margarita executed a Last Will and Testament3 on February 2, 1987 where she bequeathed one-half of her
undivided share of a real property located at Singalong Manila, consisting of 209.8 square meters, and covered by Transfer
Certificate of Title (TCT) No. 1343 to respondent, Norma A. Pahingalo, and Florentino M. Abena in equal shares or one-third
portion each. She likewise bequeathed one-half of her undivided share of a real property located at San Antonio Village, Makati,
consisting of 225 square meters, and covered by TCT No. 68920 to respondent, Isabelo M. Abena, and Amanda M. Abena in equal
shares or one-third portion each. Margarita also left all her personal properties to respondent whom she likewise designated as
sole executor of her will.

On August 11, 1987, petitioner filed a petition for letters of administration of the estate of Margarita before the RTC of Makati. The
case was docketed as SP Proc. No. M-1531.

On October 27, 1987, respondent filed a petition for probate of the will of Margarita before the RTC of Makati. The case was
docketed as SP Proc. No. M-1607 and consolidated with SP Proc. No. M-1531.

On March 2, 1993, the RTC rendered a decision declaring the last will and testament of Margarita probated and respondent as the
executor of the will. The dispositive portion of the decision states:

In view of the foregoing, judgment is hereby rendered:

1) declaring the will as probated;

2) declaring Lucia Abena as the executor of the will who will serve as such without a bond as stated in paragraph VI of the
probated will;

3) ordering the issuance of letters testamentary in favor of Lucia Abena.

So ordered.4

Petitioner appealed the RTC decision to the Court of Appeals. But the Court of Appeals, in a decision dated October 13, 2000,
affirmed in toto the RTC ruling. The dispositive portion of the Court of Appeals decision states:

WHEREFORE, foregoing premises considered, the appeal having no merit in fact and in law, is hereby ORDERED
DISMISSED and the appealed Decision of the trial court AFFIRMED IN TOTO, with cost to oppositors-appellants.

SO ORDERED.5

Hence, the instant petition citing the following issues:

I.

WHETHER OR NOT THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN NOT INVALIDATING THE
WILL SINCE IT DID NOT CONFORM TO THE FORMALITIES REQUIRED BY LAW;

II.

WHETHER OR NOT THE COURT OF APPEALS COMMITTED ERROR IN NOT INVALIDATING THE WILL BECAUSE
IT WAS PROCURED THROUGH UNDUE INFLUENCE AND PRESSURE[;] AND

III.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT DECLARING PETITIONER, HER
SIBLINGS AND COUSIN AS THE LEGAL HEIRS OF MARGARITA S. MAYORES AND IN NOT ISSUING LETTERS OF
ADMINISTRATION TO HER.6

Briefly stated, the issues are (1) whether the Court of Appeals erred in not declaring the will invalid for failure to comply with the
formalities required by law, (2) whether said court erred in not declaring the will invalid because it was procured through undue
influence and pressure, and (3) whether it erred in not declaring petitioner and her siblings as the legal heirs of Margarita, and in
not issuing letters of administration to petitioner.

Petitioner, in her Memorandum,7 argues that Margaritas will failed to comply with the formalities required under Article 805 8 of the
Civil Code because the will was not signed by the testator in the presence of the instrumental witnesses and in the presence of one
another. She also argues that the signatures of the testator on pages A, B, and C of the will are not the same or similar, indicating
that they were not signed on the same day. She further argues that the will was procured through undue influence and pressure
because at the time of execution of the will, Margarita was weak, sickly, jobless and entirely dependent upon respondent and her
nephews for support, and these alleged handicaps allegedly affected her freedom and willpower to decide on her own. Petitioner
thus concludes that Margaritas total dependence on respondent and her nephews compelled her to sign the will. Petitioner
likewise argues that the Court of Appeals should have declared her and her siblings as the legal heirs of Margarita since they are
her only living collateral relatives in accordance with Articles 1009 9 and 101010 of the Civil Code.

Respondent, for her part, argues in her Memorandum11 that the petition for review raises questions of fact, not of law and as a rule,
findings of fact of the Court of Appeals are final and conclusive and cannot be reviewed on appeal to the Supreme Court. She also
points out that although the Court of Appeals at the outset opined there was no compelling reason to review the petition, the Court
of Appeals proceeded to tackle the assigned errors and rule that the will was validly executed, sustaining the findings of the trial
court that the formalities required by law were duly complied with. The Court of Appeals also concurred with the findings of the trial
court that the testator, Margarita, was of sound mind when she executed the will.

After careful consideration of the parties contentions, we rule in favor of respondent.

We find that the issues raised by petitioner concern pure questions of fact, which may not be the subject of a petition for review on
certiorari under Rule 45 of the Rules of Civil Procedure.

The issues that petitioner is raising now i.e., whether or not the will was signed by the testator in the presence of the witnesses and
of one another, whether or not the signatures of the witnesses on the pages of the will were signed on the same day, and whether
or not undue influence was exerted upon the testator which compelled her to sign the will, are all questions of fact.

This Court does not resolve questions of fact in a petition for review under Rule 45 of the 1997 Rules of Civil Procedure. Section
112 of Rule 45 limits this Courts review to questions of law only.

Well-settled is the rule that the Supreme Court is not a trier of facts. When supported by substantial evidence, the findings of fact of
the Court of Appeals are conclusive and binding on the parties and are not reviewable by this Court, unless the case falls under
any of the following recognized exceptions:

(1) When the conclusion is a finding grounded entirely on speculation, surmises and conjectures;

(2) When the inference made is manifestly mistaken, absurd or impossible;

(3) Where there is a grave abuse of discretion;

(4) When the judgment is based on a misapprehension of facts;

(5) When the findings of fact are conflicting;

(6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee;

(7) When the findings are contrary to those of the trial court;

(8) When the findings of fact are conclusions without citation of specific evidence on which they are based;

(9) When the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the
respondents; and

(10) When the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and
contradicted by the evidence on record.13

We find that this case does not involve any of the abovementioned exceptions.

Nonetheless, a review of the findings of the RTC as upheld by the Court of Appeals, reveal that petitioners arguments lack basis.
The RTC correctly held:
 With [regard] to the contention of the oppositors [Paz Samaniego-Celada, et al.] that the testator [Margarita Mayores] was
not mentally capable of making a will at the time of the execution thereof, the same is without merit. The oppositors failed
to establish, by preponderance of evidence, said allegation and contradict the presumption that the testator was of sound
mind (See Article 800 of the Civil Code). In fact, witness for the oppositors, Dr. Ramon Lamberte, who, in some
occasions, attended to the testator months before her death, testified that Margarita Mayores could engage in a normal
conversation and he even stated that the illness of the testator does not warrant hospitalization. Not one of the
oppositors witnesses has mentioned any instance that they observed act/s of the testator during her lifetime that could be
construed as a manifestation of mental incapacity. The testator may be admitted to be physically weak but it does not
necessarily follow that she was not of sound mind. [The] testimonies of contestant witnesses are pure aforethought.

Anent the contestants submission that the will is fatally defective for the reason that its attestation clause states that the
will is composed of three (3) pages while in truth and in fact, the will consists of two (2) pages only because the attestation
is not a part of the notarial will, the same is not accurate. While it is true that the attestation clause is not a part of the will,
the court, after examining the totality of the will, is of the considered opinion that error in the number of pages of the will as
stated in the attestation clause is not material to invalidate the subject will. It must be noted that the subject instrument is
consecutively lettered with pages A, B, and C which is a sufficient safeguard from the possibility of an omission of some of
the pages. The error must have been brought about by the honest belief that the will is the whole instrument consisting of
three (3) pages inclusive of the attestation clause and the acknowledgement. The position of the court is in consonance
with the "doctrine of liberal interpretation" enunciated in Article 809 of the Civil Code which reads:

"In the absence of bad faith, forgery or fraud, or undue [and] improper pressure and influence, defects
and imperfections in the form of attestation or in the language used therein shall not render the will
invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the
requirements of Article 805."

The court also rejects the contention of the oppositors that the signatures of the testator were affixed on different
occasions based on their observation that the signature on the first page is allegedly different in size, texture and
appearance as compared with the signatures in the succeeding pages. After examination of the signatures, the court does
not share the same observation as the oppositors. The picture (Exhibit "H-3") shows that the testator was affixing her
signature in the presence of the instrumental witnesses and the notary. There is no evidence to show that the first
signature was procured earlier than February 2, 1987.

Finally, the court finds that no pressure nor undue influence was exerted on the testator to execute the subject will. In fact,
the picture reveals that the testator was in a good mood and smiling with the other witnesses while executing the subject
will (See Exhibit "H").

In fine, the court finds that the testator was mentally capable of making the will at the time of its execution, that the notarial
will presented to the court is the same notarial will that was executed and that all the formal requirements (See Article 805
of the Civil Code) in the execution of a will have been substantially complied with in the subject notarial will.14 (Emphasis
supplied.)

Thus, we find no reason to disturb the abovementioned findings of the RTC. Since, petitioner and her siblings are not compulsory
heirs of the decedent under Article 88715 of the Civil Code and as the decedent validly disposed of her properties in a will duly
executed and probated, petitioner has no legal right to claim any part of the decedents estate.

WHEREFORE, the petition is DENIED. The assailed Decision dated October 13, 2000 of the Court of Appeals in CA-G.R. CV No.
41756 is AFFIRMED.

Costs against petitioner.

SO ORDERED.

G.R. No. L-7188 August 9, 1954

In re: Will and Testament of the deceased REVEREND SANCHO ABADIA.
SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-appellees,
vs.
MIGUEL ABADIA, ET AL., oppositors-appellants.

Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G. Advincula for appellants.
C. de la Victoria for appellees.

MONTEMAYOR, J.:

On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a document purporting to be his Last Will
and Testament now marked Exhibit "A". Resident of the City of Cebu, he died on January 14, 1943, in the municipality of
Aloguinsan, Cebu, where he was an evacuee. He left properties estimated at P8,000 in value. On October 2, 1946, one Andres
Enriquez, one of the legatees in Exhibit "A", filed a petition for its probate in the Court of First Instance of Cebu. Some cousins and
nephews who would inherit the estate of the deceased if he left no will, filed opposition.

During the hearing one of the attesting witnesses, the other two being dead, testified without contradiction that in his presence and
in the presence of his co-witnesses, Father Sancho wrote out in longhand Exhibit "A" in Spanish which the testator spoke and
understood; that he (testator) signed on he left hand margin of the front page of each of the three folios or sheets of which the
document is composed, and numbered the same with Arabic numerals, and finally signed his name at the end of his writing at the
last page, all this, in the presence of the three attesting witnesses after telling that it was his last will and that the said three
witnesses signed their names on the last page after the attestation clause in his presence and in the presence of each other. The
oppositors did not submit any evidence.

The learned trial court found and declared Exhibit "A" to be a holographic will; that it was in the handwriting of the testator and that
although at the time it was executed and at the time of the testator's death, holographic wills were not permitted by law still,
because at the time of the hearing and when the case was to be decided the new Civil Code was already in force, which Code
permitted the execution of holographic wills, under a liberal view, and to carry out the intention of the testator which according to
the trial court is the controlling factor and may override any defect in form, said trial court by order dated January 24, 1952,
admitted to probate Exhibit "A", as the Last Will and Testament of Father Sancho Abadia. The oppositors are appealing from that
decision; and because only questions of law are involved in the appeal, the case was certified to us by the Court of Appeals.

The new Civil Code (Republic Act No. 386) under article 810 thereof provides that a person may execute a holographic will which
must be entirely written, dated and signed by the testator himself and need not be witnessed. It is a fact, however, that at the time
that Exhibit "A" was executed in 1923 and at the time that Father Abadia died in 1943, holographic wills were not permitted, and
the law at the time imposed certain requirements for the execution of wills, such as numbering correlatively each page (not folio or
sheet) in letters and signing on the left hand margin by the testator and by the three attesting witnesses, requirements which were
not complied with in Exhibit "A" because the back pages of the first two folios of the will were not signed by any one, not even by
the testator and were not numbered, and as to the three front pages, they were signed only by the testator.

Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41 Phil., 875, 879, referring to the
failure of the testator and his witnesses to sign on the left hand margin of every page, said:

. . . . This defect is radical and totally vitiates the testament. It is not enough that the signatures guaranteeing authenticity
should appear upon two folios or leaves; three pages having been written on, the authenticity of all three of them should
be guaranteed by the signature of the alleged testatrix and her witnesses.

And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same requirement, this Court declared:

From an examination of the document in question, it appears that the left margins of the six pages of the document are
signed only by Ventura Prieto. The noncompliance with section 2 of Act No. 2645 by the attesting witnesses who omitted
to sign with the testator at the left margin of each of the five pages of the document alleged to be the will of Ventura
Prieto, is a fatal defect that constitutes an obstacle to its probate.

What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new Civil Code which not allows
holographic wills, like Exhibit "A" which provisions were invoked by the appellee-petitioner and applied by the lower court? But
article 795 of this same new Civil Code expressly provides: "The validity of a will as to its form depends upon the observance of the
law in force at the time it is made." The above provision is but an expression or statement of the weight of authority to the affect
that the validity of a will is to be judged not by the law enforce at the time of the testator's death or at the time the supposed will is
presented in court for probate or when the petition is decided by the court but at the time the instrument was executed. One reason
in support of the rule is that although the will operates upon and after the death of the testator, the wishes of the testator about the
disposition of his estate among his heirs and among the legatees is given solemn expression at the time the will is executed, and in
reality, the legacy or bequest then becomes a completed act. This ruling has been laid down by this court in the case of In re Will of
Riosa, 39 Phil., 23. It is a wholesome doctrine and should be followed.

Of course, there is the view that the intention of the testator should be the ruling and controlling factor and that all adequate
remedies and interpretations should be resorted to in order to carry out said intention, and that when statutes passed after the
execution of the will and after the death of the testator lessen the formalities required by law for the execution of wills, said
subsequent statutes should be applied so as to validate wills defectively executed according to the law in force at the time of
execution. However, we should not forget that from the day of the death of the testator, if he leaves a will, the title of the legatees
and devisees under it becomes a vested right, protected under the due process clause of the constitution against a subsequent
change in the statute adding new legal requirements of execution of wills which would invalidate such a will. By parity of reasoning,
when one executes a will which is invalid for failure to observe and follow the legal requirements at the time of its execution then
upon his death he should be regarded and declared as having died intestate, and his heirs will then inherit by intestate succession,
and no subsequent law with more liberal requirements or which dispenses with such requirements as to execution should be
allowed to validate a defective will and thereby divest the heirs of their vested rights in the estate by intestate succession. The
general rule is that the Legislature can not validate void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193).

In view of the foregoing, the order appealed from is reversed, and Exhibit "A" is denied probate. With costs.

Paras, C.J., Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion and Reyes J.B.L., JJ., concur.

G.R. No. L-32636 March 17, 1930

In the matter Estate of Edward Randolph Hix, deceased.

A.W. FLUEMER, petitioner-appellant,
vs.
ANNIE COUSHING HIX, oppositor-appellee.

C.A. Sobral for appellant.

Harvey & O' Brien and Gibbs & McDonough for appellee.

MALCOLM, J.:

The special administrator of the estate of Edward Randolph Hix appeals from a decision of Judge of First Instance Tuason denying
the probate of the document alleged to by the last will and testament of the deceased. Appellee is not authorized to carry on this
appeal. We think, however, that the appellant, who appears to have been the moving party in these proceedings, was a "person
interested in the allowance or disallowance of a will by a Court of First Instance," and so should be permitted to appeal to the
Supreme Court from the disallowance of the will (Code of Civil Procedure, sec. 781, as amended; Villanueva vs. De Leon [1925],
42 Phil., 780).

It is theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1925, by Hix who had his
residence in that jurisdiction, and that the laws of West Verginia Code, Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and
as certified to by the Director of the National Library. But this was far from a compliance with the law. The laws of a foreign
jurisdiction do not prove themselves in our courts. the courts of the Philippine Islands are not authorized to take American Union.
Such laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of the law were not met.
There was no was printed or published under the authority of the State of West Virginia, as provided in section 300 of the Code of
Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having charge of the original, under the
sale of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show
that the extract from the laws of West Virginia was in force at the time the alleged will was executed.

In addition, the due execution of the will was not established. The only evidence on this point is to be found in the testimony of the
petitioner. Aside from this, there was nothing to indicate that the will was acknowledged by the testator in the presence of two
competent witnesses, of that these witnesses subscribed the will in the presence of the testator and of each other as the law of
West Virginia seems to require. On the supposition that the witnesses to the will reside without the Philippine Islands, it would then
the duty of the petitioner to prove execution by some other means (Code of Civil Procedure, sec. 633.)
It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia and not establish this fact
consisted of the recitals in the CATHY will and the testimony of the petitioner. Also in beginning administration proceedings
orginally in the Philippine Islands, the petitioner violated his own theory by attempting to have the principal administration in the
Philippine Islands.

While the appeal pending submission in this court, the attorney for the appellant presented an unverified petition asking the court to
accept as part of the evidence the documents attached to the petition. One of these documents discloses that a paper writing
purporting to be the was presented for probate on June 8, 1929, to the clerk of Randolph Country, State of West Virginia, in
vacation, and was duly proven by the oaths of Dana Wamsley and Joseph L. MAdden, the subscribing witnesses thereto , and
ordered to be recorded and filed. It was shown by another document that, in vacation, on June 8, 1929, the clerk of court of
Randolph Country, West Virginia, appointed Claude W. Maxwell as administrator, cum testamento annexo, of the estate of Edward
Randolph Hix, deceased. In this connection, it is to be noted that the application for the probate of the will in the Philippines was
filed on February 20, 1929, while the proceedings in West Virginia appear to have been initiated on June 8, 1929. These facts are
strongly indicative of an intention to make the Philippines the principal administration and West Virginia the ancillary administration.
However this may be, no attempt has been made to comply with Civil Procedure, for no hearing on the question of the allowance of
a will said to have been proved and allowed in West Virginia has been requested. There is no showing that the deceased left any
property at any place other than the Philippine Islands and no contention that he left any in West Virginia.

Reference has been made by the parties to a divorce purported to have been awarded Edward Randolph Hix from Annie Cousins
Hix on October 8, 1925, in the State of West specific pronouncements on the validity or validity of this alleged divorce.

For all of the foregoing, the judgment appealed from will be affirmed, with the costs of this instance against the appellant.

Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

G.R. No. L-20234 December 23, 1964

PAULA DE LA CERNA, ET AL., petitioners,

vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF APPEALS, respondents.

Philip M. Alo and Crispin M. Menchavez for petitioners.

Nicolas Jumapao for respondents.

REYES, J.B.L., J.:

Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing
that of the Court of First Instance of Cebu (Civ. Case No. R-3819) and ordering the dismissal of an action for partition.

The factual background appears in the following portion of the decision of the Court of Appeals (Petition, Annex A, pp. 2-4):

It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca, executed a joint last will and
testament in the local dialect whereby they willed that "our two parcels of land acquired during our marriage together with
all improvements thereon shall be given to Manuela Rebaca, our niece, whom we have nurtured since childhood, because
God did not give us any child in our union, Manuela Rebaca being married to Nicolas Potot", and that "while each of the
testators is yet living, he or she will continue to enjoy the fruits of the two lands aforementioned", the said two parcels of
land being covered by Tax No. 4676 and Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of Borbon,
province of Cebu. Bernabe dela Serna died on August 30, 1939, and the aforesaid will was submitted to probate by said
Gervasia and Manuela before the Court of First Instance of Cebu which, after due publication as required by law and
there being no opposition, heard the evidence, and, by Order of October 31, 1939; in Special Proceedings No. 499,
"declara legalizado el documento Exhibit A como el testamento y ultima voluntad del finado Bernabe de la Serna con
derecho por parte du su viuda superstite Gervasia Rebaca y otra testadora al propio tiempo segun el Exhibit A de gozar
de los frutos de los terranos descritos en dicho documents; y habido consideracion de la cuantia de dichos bienes, se
decreta la distribucion sumaria de los mismos en favor de la logataria universal Manuela Rebaca de Potot previa
prestacion por parte de la misma de una fianza en la sum de P500.00 para responder de cualesquiera reclamaciones que
se presentare contra los bienes del finado Bernabe de la Serna de los aos desde esta fecha" (Act Esp. 499,
Testamentaria Finado Bernabe de la Serna) Upon the death of Gervasia Rebaca on October 14, 1952, another petition
for the probate of the same will insofar as Gervasia was concerned was filed on November 6, 1952, being Special
Proceedings No. 1016-R of the same Court of First Instance of Cebu, but for failure of the petitioner, Manuela R. Potot
 and her attorney, Manuel Potot to appear, for the hearing of said petition, the case was dismissed on March 30, 1954
Spec. Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia Rebaca).

The Court of First Instance ordered the petition heard and declared the testament null and void, for being executed contrary to the
prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but on appeal by
the testamentary heir, the Court of Appeals reversed, on the ground that the decree of probate in 1939 was issued by a court of
probate jurisdiction and conclusive on the due execution of the testament. Further, the Court of Appeals declared that:

... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits the making of a will jointly by two or more
persons either for their reciprocal benefit or for the benefit of a third person. However, this form of will has long been
sanctioned by use, and the same has continued to be used; and when, as in the present case, one such joint last will and
testament has been admitted to probate by final order of a Court of competent jurisdiction, there seems to be no
alternative except to give effect to the provisions thereof that are not contrary to law, as was done in the case of Macrohon
vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to the provisions of the joint will therein mentioned,
saying, "assuming that the joint will in question is valid."

Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.

The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of First Instance of Cebu (when
the testator, Bernabe de la Cerna, died), has conclusive effect as to his last will and testament despite the fact that even then the
Civil Code already decreed the invalidity of joint wills, whether in favor of the joint testators, reciprocally, or in favor of a third party
(Art. 669, old Civil Code). The error thus committed by the probate court was an error of law, that should have been corrected by
appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final decision, however
erroneous. A final judgment rendered on a petition for the probate of a will is binding upon the whole world (Manalo vs. Paredes, 47
Phil. 938; In re Estates of Johnson, 39 Phil. 156); and public policy and sound practice demand that at the risk of occasional errors
judgment of courts should become final at some definite date fixed by law. Interest rei publicae ut finis set litium (Dy Cay vs.
Crossfield, 38 Phil, 521, and other cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939 decree admitting his will to
probate. The contention that being void the will cannot be validated, overlooks that the ultimate decision on Whether an act is valid
or void rests with the courts, and here they have spoken with finality when the will was probated in 1939. On this court, the
dismissal of their action for partition was correct.

But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that the probate decree in 1989
could only affect the share of the deceased husband, Bernabe de la Cerna. It could not include the disposition of the share of the
wife, Gervasia Rebaca, who was then still alive, and over whose interest in the conjugal properties the probate court acquired no
jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior to the new Civil Code, a will could
not be probated during the testator's lifetime.

It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on her death, reexamined and
adjudicated de novo, since a joint will is considered a separate will of each testator. Thus regarded, the holding of the court of First
Instance of Cebu that the joint will is one prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in
the properties in question, for the reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that explained
the previous holding in Macrohon vs. Saavedra, 51 Phil. 267.

Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate, and not exclusively to the
testamentary heir, unless some other valid will in her favor is shown to exist, or unless she be the only heir intestate of said
Gervasia.

It is unnecessary to emphasize that the fact that joint wills should be in common usage could not make them valid when our Civil
Codes consistently invalidated them, because laws are only repealed by other subsequent laws, and no usage to the contrary may
prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950).

WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.

Bengzon, C.J., Bautista, Angelo, Concepcion, Barrera, Paredes, Dizon Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ.,
concur.

G.R. No. L-23678 June 6, 1967

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

BENGZON, J.P., J.:

This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30,
1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein.1wph1.t

The facts of the case are as follows:

Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E. Mallen,
whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A.
Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate
children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria
Cristina Bellis and Miriam Palma Bellis.

On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and
expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and manner: (a)
$240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina
Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall go to
his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna
Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.1wph1.t

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

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

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

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

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

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

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

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

Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary
successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the intrinsic validity of
the provisions of the will; and (d) the capacity to succeed. They provide that

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

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

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

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

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

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

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

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

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

Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So ordered.

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