Republic of the PhilippinesSUPREME COURTManila

EN BANC

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.

Priscilo Evangelista for appellee.Brigido G. Estrada for appellant.

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.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

 

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.

L-28040

Pelaez, Jalandoni & Jamir for administrator-appellee.

Quiogue & Quiogue for appellee Matilde de Borja.

Andres Matias for appellee Cayetano de Borja.

Sevilla & Aquino for appellant.

L-28568

Sevilla & Aquino for special administratrix-appellee.

Pelaez, Jalandoni & Jamir for oppositor-appellant.

L-28611

Sevilla & Aquino for plaintiff-appellee.

Pelaez, Jalandoni & Jamir and David Gueverra for 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:

A G R E E M E N T

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,

A N D

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.

W I T N E S S E T H

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.

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

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.

Federico Paredes for petitioners.

Demetrio V. Pre for private 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.

Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

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.

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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.

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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.

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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.

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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:

x x x           x x x          x x x

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

x x x           x x x          x x x

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:

x x x           x x x          x x x

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.

x x x           x x x          x x x

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.

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

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

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

Ermelo P. Guzman for petitioner.

Armando Z. Gonzales for private respondent.

 

GUTIERREZ, JR., J.:

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

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

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

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

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

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

On January 10, 1979, the respondent judge issued an order, to wit:

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

WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby admitted to and allowed probate in the Philippines, and Nenita Campos Paguia is hereby appointed Administratrix of the estate of said decedent; let Letters of Administration with the Will annexed 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 Dasmariñas, 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.

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

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

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

D. Tañedo, Jr. for appellants.

J. Palanca, Sr. for appellee.

 

AQUINO, J.:

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

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

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

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

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 año 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 año, 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:

Title Lot Area in Tax Ass.

No. No. Has. Dec. Value

T-6530

3663 1.6249 18740

P 340.00

T-6548

3445-C

24.2998 18730 7,290.00

T-6525

3670 6.2665 18736

1,880.00

T-6521

3666 11.9251 18733

3,580.00

Total amount and value — 44.1163 P13,090.00

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

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

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

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

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

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

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

The parish priest in this appeal contends that the Court of Appeals erred in not finding that the testator created a public charitable trust and in not liberally construing the testamentary provisions so as to render the trust operative and to prevent intestacy.

As refutation, the legal heirs argue that the Court of Appeals d the bequest inoperative because no one among the testator's nearest male relatives had studied for the priesthood and not because the trust was a private charitable trust. According to the legal heirs, that factual finding is binding on this Court. They point out that appellant priest's change of theory cannot be countenanced in this appeal .

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

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

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

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-23638            October 12, 1967

DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA REYES, petitioners, vs.ISMAELA DIMAGIBA, respondent.

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G.R. No. L-23662            October 12, 1967

MARIANO REYES, CESAR REYES, LEONOR REYES and PACIENCIA REYES, petitioners, vs.ISMAELA DIMAGIBA, respondent.

Jose D. Villena for petitioners.Antonio Barredo and Exequiel M. Zaballero for respondent.

REYES, J.B.L., Actg. C.J.:

The heirs intestate of the late Benedicta de los Reyes have petitioned for a review of the decision of the Court of Appeals (in CA-G. R. No. 31221-R) affirming that of the Court of First Instance of Bulacan, in Special Proceeding No. 831 of said Court, admitting to probate the alleged last will and testament of the deceased, and overruling the opposition to the probate.

It appears from the record that on January 19, 1955, Ismaela Dimagiba, now respondent, submitted to the Court of First Instance a petition for the probate of the purported will of the late Benedicta de los Reyes, executed on October 22, 1930, and annexed to the petition. The will instituted the petitioner as the sole heir of the estate of the deceased. The petition was set for hearing, and in due time, Dionisio Fernandez, Eusebio Reyes and Luisa Reyes and one month later, Mariano, Cesar, Leonor and Paciencia, all surnamed Reyes, all claiming to be heirs intestate of the decedent, filed oppositions to the probate asked. Grounds advanced for the opposition were forgery, vices of consent of the testatrix, estoppel by laches of the proponent and revocation of the will by two deeds of conveyance of the major portion of the estate made by the testatrix in favor of the proponent in 1943 and 1944, but which conveyances were finally set aside by this Supreme Court in a decision promulgated on August 3, 1954, in cases G.R. Nos. L-5618 and L-5620 (unpublished).

After trial on the formulated issues, the Court of First Instance, by decision of June 20, 1958, found that the will was genuine and properly executed; but deferred resolution on the questions of estoppel and revocation "until such time when we shall pass upon the intrinsic validity of the provisions of the will or when the question of adjudication of the properties is opportunely presented."

Oppositors Fernandez and Reyes petitioned for reconsideration, and/or new trial, insisting that the issues of estoppel and revocation be considered and resolved; whereupon, on July 27, 1959, the Court overruled the claim that proponent was in estoppel to ask for the probate of the will, but "reserving unto the parties the right to raise the issue of implied revocation at the opportune time."

On January 11, 1960, the Court of First Instance appointed Ricardo Cruz as administrator for the sole purpose of submitting an inventory of the estate, and this was done on February 9, 1960.

On February 27, 1962, after receiving further evidence on the issue whether the execution by the testatrix of deeds of sale of the larger portion of her estate in favor of the testamentary heir, made in 1943 and 1944, subsequent to the execution of her 1930 testament, had revoked the latter under Article 957(2) of the 1950 Civil Code (Art. 869 of the Civil Code of 1889), the trial Court resolved against the oppositors and held the will of the late Benedicta de los Reyes "unaffected and unrevoked by the deeds of sale." Whereupon, the oppositors elevated the case to the Court of Appeals.

The appellate Court held that the decree of June 20, 1958, admitting the will to probate, had become final for lack of opportune appeal; that the same was appealable independently of the issue of implied revocation; that contrary to the claim of oppositors-appellants, there had been no legal revocation by the execution of the 1943 and 1944 deeds of sale, because the latter had been made in favor of the legatee herself, and affirmed the decision of the Court of First Instance.

Oppositors then appealed to this Court.

In this instance, both sets of oppositors-appellants pose three main issues: (a) whether or not the decree of the Court of First Instance allowing the will to probate had become final for lack of appeal; (b) whether or not the order of the Court of origin dated July 27, 1959, overruling the estoppel invoked by oppositors-appellants had likewise become final; and (c) whether or not the 1930 will of Benedicta de los Reyes had been impliedly revoked by her execution of deeds of conveyance in favor of the proponent on March 26, 1943 and April 3, 1944.

As to the first point, oppositors-appellants contend that the order allowing the will to probate should be considered interlocutory, because it fails to resolve the issues of estoppel and revocation propounded in their opposition. We agree with the Court of Appeals that the appellant's stand is untenable. It is elementary that a probate decree finally and definitively settles all questions concerning capacity of the testator and the proper execution and witnessing of his last will and testament, irrespective of whether its provisions are valid and enforceable or otherwise. (Montañano vs. Suesa, 14 Phil. 676; Mercado vs. Santos, 66 Phil. 215; Trillana vs. Crisostomo, 89 Phil. 710). As such, the probate order is final and appealable; and it is so recognized by express provisions of Section 1 of Rule 109,

that specifically prescribes that "any interested person may appeal in special proceedings from an order or judgment . . . where such order or judgment: (a) allows or disallows a will."

Appellants argue that they were entitled to await the trial Court's resolution on the other grounds of their opposition before taking an appeal, as otherwise there would be a multiplicity of recourses to the higher Courts. This contention is without weight, since Rule 109, section 1, expressly enumerates six different instances when appeal may be taken in special proceedings.

There being no controversy that the probate decree of the Court below was not appealed on time, the same had become final and conclusive. Hence, the appellate courts may no longer revoke said decree nor review the evidence upon which it is made to rest. Thus, the appeal belatedly lodged against the decree was correctly dismissed.

The alleged revocation implied from the execution of the deeds of conveyance in favor of the testamentary heir is plainly irrelevant to and separate from the question of whether the testament was duly executed. For one, if the will is not entitled to probate, or its probate is denied, all questions of revocation become superfluous in law, there is no such will and hence there would be nothing to revoke. Then, again, the revocation invoked by the oppositors-appellants is not an express one, but merely implied from subsequent acts of the testatrix allegedly evidencing an abandonment of the original intention to bequeath or devise the properties concerned. As such, the revocation would not affect the will itself, but merely the particular devise or legacy. Only the total and absolute revocation can preclude probate of the revoked testament (Trillana vs. Crisostomo, supra.).

As to the issue of estoppel, we have already ruled in Guevara vs. Guevara, 98 Phil. 249, that the presentation and probate of a will are requirements of public policy, being primarily designed to protect the testator's, expressed wishes, which are entitled to respect as a consequence of the decedent's ownership and right of disposition within legal limits. Evidence of it is the duty imposed on a custodian of a will to deliver the same to the Court, and the fine and imprisonment prescribed for its violation (Revised Rule 75). It would be a non sequitur to allow public policy to be evaded on the pretext of estoppel. Whether or not the order overruling the allegation of estoppel is still appealable or not, the defense is patently unmeritorious and the Court of Appeals correctly so ruled.

The last issue, that of revocation, is predicated on paragraph 2 of Article 957 of the Civil Code of 1950 (Art. 869 of the Code of 1889), which recites:

Art. 957. The legacy or devise shall be without effect:

(1) . . . .

(2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase;

xxx           xxx           xxx

It is well to note that, unlike in the French and Italian Codes, the basis of the quoted provision is a presumed change of intention on the part of the testator. As pointed out by Manresa in his Commentaries on Article 869 of the Civil Code (Vol. 6, 7th Ed., p. 743) —

Este caso se funda en la presunta voluntad del testador. Si este, despues de legar, se desprende de la cosa por titulo lucrativo u oneroso, hace desaparecer su derecho sobra ella, dando lugar a la presuncion de que ha cambiado de voluntad, y no quiere que el legado se cumpla. Mas para que pueda presumirse esa voluntad, es necesario que medien actos del testador que la indiquen. Si la perdida del derecho sobre la cosa ha sido independiente de la voluntad del testador, el legado podraquedar sin efecto, mas no en virtud del numero 2 del articulo 869, que exige siempre actos voluntarios de enajenacion por parte del mismo testador.

As observed by the Court of Appeals, the existence of any such change or departure from the original intent of the testatrix, expressed in her 1930 testament, is rendered doubtful by the circumstance that the subsequent alienations in 1943 and 1944 were executed in favor of the legatee herself, appellee Dimagiba. In fact, as found by the Court of Appeals in its decision annulling these conveyances (affirmed in that point by this Supreme Court in Reyes vs. Court of Appeals and Dimagiba, L-5618 and L-5620, promulgated on July 31, 1954), "no consideration whatever was paid by respondent Dimagiba" on account of the transfers, thereby rendering it even more doubtful whether in conveying the property to her legatee, the testatrix merely intended to comply in advance with what she had ordained in her testament, rather than an alteration or departure therefrom.1 Revocation being an exception, we believe, with the Courts below, that in the circumstances of the particular case, Article 957 of the Civil Code of the Philippines, does not apply to the case at bar.

Not only that, but even if it were applicable, the annulment of the conveyances would not necessarily result in the revocation of the legacies, if we bear in mind that the findings made in the decision decreeing the annulment of the subsequent 1943 and 1944 deeds of sale were also that

it was the moral influence, originating from their confidential relationship, which was the only cause for the execution of Exhs. A and B (the 1943 and 1944 conveyances). (Decision, L-5618 and L-5620).

If the annulment was due to undue influence, as the quoted passage implies, then the transferor was not expressing her own free will and intent in making the conveyances. Hence, it can not be concluded, either, that such conveyances established a decision on her part to abandon the original legacy.

True it is that the legal provision quoted prescribes that the recovery of the alienated property "even if it be by reason of the nullity of the contract" does not revive the legacy; but as pointed out by Scaevola (Codigo Civil, Vol. XV, 4th Ed., pp. 324-325) the "nullity of the contract" can not be taken in an absolute sense.2 Certainly, it could not be maintained, for example, that if a testator's subsequent alienation were avoided because the testator was mentally deranged at the time, the revocatory effect ordained by the article should still ensue. And the same thing could be said if the alienation (posterior to the will) were avoided on account of physical or mental duress. Yet, an alienation through undue influence in no way differs from one made through violence or intimidation. In either case, the transferor is not expressing his real intent,3 and it can not be held that there was in fact an alienation that could produce a revocation of the anterior bequest.

In view of the foregoing considerations, the appealed decision of the Court of Appeals is hereby affirmed. Costs against appellants Reyes and Fernandez. So ordered.

Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.Concepcion, C.J. and Bengzon, J.P., J., are on leave, took no part.