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.

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

G.R. No. L-44837             November 23, 1938

SOCORRO LEDESMA and ANA QUITCO LEDESMA, plaintiffs-appellees, vs.CONCHITA MCLACHLIN, ET AL., defendants-appellants.

Adriano T. de la Cruz for appellants.Simeon Bitanga for appellees.

VILLA-REAL, J.:

This case is before us by virtue of an appeal taken by the defendants Conchita McLachlin, Lorenzo Quitco, Jr., Sabina Quitco, Rafael Quitco and Marcela Quitco, from the decision of the Court of First Instance of Occidental Negros, the dispositive part of which reads:

For the foregoing considerations, the court renders judgment in this case declaring Ana Quitco Ledesma an acknowledged natural daughter of the deceased Lorenzo M. Quitco, for legal purposes, but absolving the defendants as to the prayer in the first cause of action that the said Ana Quitco Ledesma be declared entitled to share in the properties left by the deceased Eusebio Quitco.

As to the second cause of action, the said defendants are ordered to pay to the plaintiff Socorro Ledesma, jointly and severally, only the sum of one thousand five hundred pesos(P1,500), with legal interest thereon from the filing of this complaint until fully paid. No pronouncement is made as to the costs. So ordered.

In support of their appeal, the appellants assign the following errors allegedly committed by the trial court in its aforesaid decision:

1. That the trial court erred in holding, that the action for the recovery of the sum of P1,500, representing the last installment of the note Exhibit C has not yet prescribed.

2. That the trial court erred in holding that the property inherited by the defendants from their deceased grandfather by the right of representation is subject to the debts and obligations of their deceased father who died without any property whatsoever.lawphi1.net

3. That the trial court erred in condemning the defendants to pay jointly and severally the plaintiff Socorro Ledesma the sum of P1,500.

The only facts to be considered in the determination of the legal questions raised in this appeal are those set out in the appealed decision, which have been established at the trial, namely:

In the year 1916, the plaintiff Socorro Ledesma lived maritally with Lorenzo M. Quitco, while the latter was still single, of which relation, lasting until the year 1921, was born a daughter who is the other plaintiff Ana Quitco Ledesma. In 1921, it seems hat the relation between Socorro Ledesma and Lorenzo M. Quitco came to an end, but the latter executed a deed (Exhibit A), acknowledging the plaintiff Ana Quitco Ledesma as his natural daughter and on January 21, 1922, he issued in favor of the plaintiff Socorro Ledesma a promissory note (Exhibit C), of the following tenor:

P2,000. For value received I promise to pay Miss Socorro Ledesma the sum of two thousand pesos (P2,000). Philippine currency under the following terms: Two hundred and fifty pesos (P250) to be paid on the first day of March 1922; another two hundred and fifty pesos (P250)to be paid on the first day of             November 1922; the remaining one thousand and five hundred (P1,500) to be paid two years

from the date of the execution of this note. San Enrique, Occ. Negros, P. I., Jan. 21, 1922.

Subsequently, Lorenzo M. Quitco married the defendant Conchita McLachlin, with whom he had four children, who are the other defendants. On March 9, 1930, Lorenzo M. Quitco died (Exhibit 5), and, still later, that is, on December 15, 1932, his father Eusebio Quitco also died, and as the latter left real and personal properties upon his death, administration proceedings of said properties were instituted in this court, the said case being known as the "Intestate of the deceased Eusebio Quitco," civil case No. 6153 of this court.

Upon the institution of the intestate of the deceased Eusebio Quitco and the appointment of the committee on claims and appraisal, the plaintiff Socorro Ledesma, on August 26, 1935, filed before said committee the aforequoted promissory note for payment, and the commissioners, upon receipt of said promissory note, instead of passing upon it, elevated the same to this court en consulta (Exhibit F), and as the Honorable Jose Lopez Vito, presiding over the First Branch, returned said consulta and refrained from giving his opinion thereon (Exhibit C), the aforesaid commissioners on claims and appraisal, alleging lack of jurisdiction to pass upon the claim, denied he same (Exhibit H).

On November 14, 1933 (Exhibit I), the court issued an order of declaration of heirs in the intestate of the deceased Eusebio Quitco, and as Ana Quitco Ledesma was not included among the declared heirs, Socorro Ledesma, as mother of Ana Quitco Ledesma, asked for the reconsideration of said order, a petition which the court denied. From the order denying the said petition no appeal was taken, and in lieu thereof there was filed the complaint which gives rise to this case.

The first question to be decided in this appeal, raised in the first assignment of alleged error, is whether or not the action to recover

the sum of P1,500, representing the last installment for the payment of the promissory note Exhibit C, has prescribed.

According to the promissory note Exhibit C, executed by the deceased Lorenzo M. Quitco, on January 21, 1922, the last installment of P1,500 should be paid two years from the date of the execution of said promissory note, that is, on January 21, 1924. The complaint in the present case was filed on June 26, 1934, that is, more than ten years after he expiration of the said period. The fact that the plaintiff Socorro Ledesma filed her claim, on August 26, 1933, with the committee on claims and appraisal appointed in the intestate of Eusebio Quitco, does not suspend the running of the prescriptive period of the judicial action for the recovery of said debt, because the claim for the unpaid balance of the amount of the promissory note should no have been presented in the intestate of Eusebio Quitco, the said deceased not being the one who executed the same, but in the intestate of Lorenzo M. Quitco, which should have been instituted by the said Socorro Ledesma as provided in section 642 of the Code of Civil Procedure, authorizing a creditor to institute said case through the appointment of an administrator for the purpose of collecting his credit. More than ten years having thus elapsed from the expiration of the period for the payment of said debt of P1,500, the action for its recovery has prescribed under section 43, No. 1, of the Code of Civil Procedure.

The first assignment of alleged error is, therefore, well-founded.

As to the second assignment of alleged error, consisting in that the trial court erred in holding that the properties inherited by the defendants from their deceased grandfather by representation are subject to the payment of debts and obligations of their deceased father, who died without leaving any property, while it is true that under the provisions of articles 924 to 927 of the Civil Code, a children presents his father or mother who died before him in the properties of his grandfather or grandmother, this right of representation does not make the said child answerable for the obligations contracted by his deceased father or mother, because, as may be seen from the provisions of the Code of Civil Procedure referring to partition of inheritances, the inheritance is received with the benefit of inventory, that is to say, the heirs only answer with the

properties received from their predecessor. The herein defendants, as heirs of Eusebio Quitco, in representation of their father Lorenzo M. Quitco, are not bound to pay the indebtedness of their said father from whom they did not inherit anything.

The second assignment of alleged error is also well-founded.

Being a mere sequel of the first two assignments of alleged errors, the third assignment of error is also well-founded.

For the foregoing considerations, we are of the opinion and so hold: (1) That the filing of a claim before the committee on claims and appraisal, appointed in the intestate of the father, for a monetary obligation contracted by a son who died before him, does not suspend the prescriptive period of the judicial action for the recovery of said indebtedness; (2) that the claim for the payment of an indebtedness contracted by a deceased person cannot be filed for its collection before the committee on claims and appraisal, appointed in the intestate of his father, and the properties inherited from the latter by the children of said deceased do not answer for the payment of the indebtedness contracted during the lifetime of said person.

Wherefore, the appealed judgment is reversed, and the defendants are absolved from the complaint, with the costs to the appellees. So ordered.

Avanceña, C.J., Imperial, Diaz, Laurel and Concepcion, JJ., concur.

G.R. No. 113725               June 29, 2000

JOHNNY S. RABADILLA

vs.

COURT OF APPEALS AND MARIA MARLENA COSCOLUELLA Y BELLEZA VILLACARLOS, respondents.

D E C I S I O N

PURISIMA, J.:

This is a petition for review of the decision of the Court of Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555, which set aside the decision of Branch 52 of the Regional Trial Court in Bacolod City, and ordered the defendants-appellees (including herein petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.

The antecedent facts are as follows:

In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511, 855 square meters of that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre. The said Codicil, which was duly probated and admitted in Special Proceedings No. 4046 before the then Court of First Instance of Negros Occidental, contained the following provisions:

"FIRST

I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of 141 P. Villanueva, Pasay City:

(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), which is registered in my name according to the records of the Register of Deeds of Negros Occidental.

(b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla.

xxx

FOURTH

(a)....It is also my command, in this my addition (Codicil), that should I die and Jorge Rabadilla shall have already received the ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), and also at the time that the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge Rabadilla shall have the obligation until he dies, every year to give to Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies.

FIFTH

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10492), shall have the obligation to still give yearly, the sugar as specified in the Fourth paragraph of his testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year.

SIXTH

I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have left and bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina shall die, lastly should the buyer, lessee or the mortgagee of this lot, not have respected my command in this my

addition (Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter's heirs, and shall turn it over to my near desendants, (sic) and the latter shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further command in this my addition (Codicil) that my heir and his heirs of this Lot No. 1392, that they will obey and follow that should they decide to sell, lease, mortgage, they cannot negotiate with others than my near descendants and my sister."

Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge Rabadilla, and Transfer Certificate of Title No. 44498 thereto issued in his name.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed Rabadilla.

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint, docketed as Civil Case No. 5588, before Branch 52 of the Regional Trial Court in Bacolod City, against the above-mentioned heirs of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The Complaint alleged that the defendant-heirs violated the conditions of the Codicil, in that:

1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic Planters Bank in disregard of the testatrix's specific instruction to sell, lease, or mortgage only to the near descendants and sister of the testatrix.

2. Defendant-heirs failed to comply with their obligation to deliver one hundred (100) piculs of sugar (75 piculs export sugar and 25 piculs domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza from sugar crop years 1985 up to the filing of the complaint as mandated by the Codicil, despite repeated demands for compliance.

3. The banks failed to comply with the 6th paragraph of the Codicil which provided that in case of the sale, lease, or

mortgage of the property, the buyer, lessee, or mortgagee shall likewise have the obligation to deliver 100 piculs of sugar per crop year to herein private respondent.

The plaintiff then prayed that judgment be rendered ordering defendant-heirs to reconvey/return-Lot No. 1392 to the surviving heirs of the late Aleja Belleza, the cancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge Rabadilla, and the issuance of a new certificate of title in the names of the surviving heirs of the late Aleja Belleza.

On February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990 the Order of Default was lifted, with respect to defendant Johnny S. Rabadilla, who filed his Answer, accordingly.

During the pre-trial, the parties admitted that:

On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of the herein petitioner who was lessee of the property and acting as attorney-in-fact of defendant-heirs, arrived at an amicable settlement and entered into a Memorandum of Agreement on the obligation to deliver one hundred piculs of sugar, to the following effect:

"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will be delivered not later than January of 1989, more specifically, to wit:

75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our names, Mary Rose Rabadilla y Azurin or Alan Azurin, during December of each sugar crop year, in Azucar Sugar Central; and, this is considered compliance of the annuity as mentioned, and in the same manner will compliance of the annuity be in the next succeeding crop years.

That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be complied in cash equivalent of the number of piculs as mentioned therein and which is as herein agreed upon, taking into consideration the composite price of sugar during each sugar crop

year, which is in the total amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).

That the above-mentioned amount will be paid or delivered on a staggered cash installment, payable on or before the end of December of every sugar crop year, to wit:

For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1988-89;

For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1989-90;

For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1990-91; and

For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1991-92."5

However, there was no compliance with the aforesaid Memorandum of Agreement except for a partial delivery of 50.80 piculs of sugar corresponding to sugar crop year 1988 -1989.

On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and disposing as follows:

"WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is prematurely filed as no cause of action against the defendants has as yet arose in favor of plaintiff. While there maybe the non-performance of the command as mandated exaction from them simply because they are the children of Jorge Rabadilla, the title holder/owner of the lot in question, does not warrant the filing of the present complaint. The remedy at bar must fall. Incidentally, being in the category as creditor of the left estate, it is opined that

plaintiff may initiate the intestate proceedings, if only to establish the heirs of Jorge Rabadilla and in order to give full meaning and semblance to her claim under the Codicil.

In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSED without prejudice.

SO ORDERED."

On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the trial court; ratiocinating and ordering thus:

"Therefore, the evidence on record having established plaintiff-appellant's right to receive 100 piculs of sugar annually out of the produce of Lot No. 1392; defendants-appellee's obligation under Aleja Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-appellant; defendants-appellee's admitted non-compliance with said obligation since 1985; and, the punitive consequences enjoined by both the codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in case of such non-compliance, this Court deems it proper to order the reconveyance of title over Lot No. 1392 from the estates of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant must institute separate proceedings to re-open Aleja Belleza's estate, secure the appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to enforce her right, reserved to her by the codicil, to receive her legacy of 100 piculs of sugar per year out of the produce of Lot No. 1392 until she dies.

Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.

SO ORDERED."

Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this Court via the present petition, contending that the Court of Appeals erred in ordering the reversion of Lot 1392 to the estate of the testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil, and in ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview of Article 882 of the New Civil Code.

The petition is not impressed with merit.

Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with Article 882 of the New Civil Code on modal institutions and in deviating from the sole issue raised which is the absence or prematurity of the cause of action. Petitioner maintains that Article 882 does not find application as there was no modal institution and the testatrix intended a mere simple substitution - i.e. the instituted heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix's "near descendants" should the obligation to deliver the fruits to herein private respondent be not complied with. And since the testatrix died single and without issue, there can be no valid substitution and such testamentary provision cannot be given any effect.

The petitioner theorizes further that there can be no valid substitution for the reason that the substituted heirs are not definite, as the substituted heirs are merely referred to as "near descendants" without a definite identity or reference as to who are the "near descendants" and therefore, under Articles 843 of the New Civil Code, the substitution should be deemed as not written.

The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals deviated from the issue posed before it, which was the propriety of the dismissal of the complaint on the ground of prematurity of cause of action, there was no such deviation. The Court of Appeals found that the private respondent had a cause of action against the petitioner. The disquisition made on modal institution was, precisely, to stress that the private respondent had a legally demandable right against the petitioner

pursuant to subject Codicil; on which issue the Court of Appeals ruled in accordance with law.

It is a general rule under the law on succession that successional rights are transmitted from the moment of death of the decedent and compulsory heirs are called to succeed by operation of law. The legitimate children and descendants, in relation to their legitimate parents, and the widow or widower, are compulsory heirsThus, the petitioner, his mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla.

Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the condition that the usufruct thereof would be delivered to the herein private respondent every year. Upon the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over the said property, and they also assumed his (decedent's) obligation to deliver the fruits of the lot involved to herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the right of private respondent over the usufruct, the fulfillment or performance of which is now being demanded by the latter through the institution of the case at bar. Therefore, private respondent has a cause of action against petitioner and the trial court erred in dismissing the complaint below.

Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable because what the testatrix intended was a substitution - Dr. Jorge Rabadilla was to be substituted by the testatrix's near descendants should there be noncompliance with the obligation to deliver the piculs of sugar to private respondent.

Again, the contention is without merit.

Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted. Under substitutions in general, the testator may either (1) provide for the designation of another heir to whom the property shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution, or (2) leave his/her property to one person with the express charge that it be transmitted subsequently to another or others, as in a fideicommissary substitution. The Codicil sued upon contemplates neither of the two.

In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or renunciation. In the case under consideration, the provisions of subject Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or renunciation, the testatrix's near descendants would substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property referred to shall be seized and turned over to the testatrix's near descendants.

Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary substitution, the first heir is strictly mandated to preserve the property and to transmit the same later to the second heir.15 In the case under consideration, the instituted heir is in fact allowed under the Codicil to alienate the property provided the negotiation is with the near descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the obligation clearly imposing upon the first heir the preservation of the property and its

transmission to the second heir. "Without this obligation to preserve clearly imposed by the testator in his will, there is no fideicommissary substitution."16 Also, the near descendants' right to inherit from the testatrix is not definite. The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private respondent.

Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first heir is not related by first degree to the second heir.17 In the case under scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla.

The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject Codicil is in the nature of a modal institution and therefore, Article 882 of the New Civil Code is the provision of law in point. Articles 882 and 883 of the New Civil Code provide:

Art. 882. The statement of the object of the institution or the application of the property left by the testator, or the charge imposed on him, shall not be considered as a condition unless it appears that such was his intention.

That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation.

Art. 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes.

The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as aninstitucion sub modo or a modal institution. In a modal institution, the testator states (1) the object of the institution, (2) the purpose or application of the property left by the testator, or (3) the charge imposed by the testator upon the heir.18 A "mode" imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession.19 On the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. The condition suspends but does not obligate; and the mode obligates but does not suspend.20 To some extent, it is similar to a resolutory condition.21

From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended that subject property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed an obligation on the said instituted heir and his successors-in-interest to deliver one hundred piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza, during the lifetime of the latter. However, the testatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity of his institution as a devisee, dependent on the performance of the said obligation. It is clear, though, that should the obligation be not complied with, the property shall be turned over to the testatrix's near descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature because it imposes a charge upon the instituted heir without, however, affecting the efficacy of such institution.

Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case of doubt, the institution should be considered as modal and not conditional.22

Neither is there tenability in the other contention of petitioner that the private respondent has only a right of usufruct but not the right to seize the property itself from the instituted heir because the right to seize was expressly limited to violations by the buyer, lessee or mortgagee.

In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the Will, taking into consideration the circumstances under which it was made.23 Such construction as will sustain and uphold the Will in all its parts must be adopted.24

Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they sell, lease, mortgage or otherwise negotiate the property involved. The Codicil further provides that in the event that the obligation to deliver the sugar is not respected, Marlena Belleza Coscuella shall seize the property and turn it over to the testatrix's near descendants. The non-performance of the said obligation is thus with the sanction of seizure of the property and reversion thereof to the testatrix's near descendants. Since the said obligation is clearly imposed by the testatrix, not only on the instituted heir but also on his successors-in-interest, the sanction imposed by the testatrix in case of non-fulfillment of said obligation should equally apply to the instituted heir and his successors-in-interest.

Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement, the said obligation imposed by the Codicil has been assumed by the lessee, and whatever obligation petitioner had become the obligation of the lessee; that petitioner is deemed to have made a substantial and constructive compliance of his obligation through the consummated settlement between the lessee and the private respondent, and having consummated a settlement with the petitioner, the recourse of the private respondent is the fulfillment of the obligation under the amicable settlement and not the seizure of subject property.

Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person disposes of his property, to take effect after his death.25 Since the Will expresses the manner in which a person intends how his properties be disposed, the wishes and desires of the testator must be strictly followed. Thus, a Will cannot

be the subject of a compromise agreement which would thereby defeat the very purpose of making a Will.

WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No pronouncement as to costs

SO ORDERED.

G.R. No. 165300               April 23, 2010

ATTY. PEDRO M. FERRER, Petitioner, vs.SPOUSES ALFREDO DIAZ and IMELDA DIAZ, REINA COMANDANTE and SPOUSES BIENVENIDO PANGAN and ELIZABETH PANGAN, Respondents.

D E C I S I O N

DEL CASTILLO, J.:

The basic questions to be resolved in this case are: Is a waiver of hereditary rights in favor of another executed by a future heir while the parents are still living valid? Is an adverse claim annotated on the title of a property on the basis of such waiver likewise valid and effective as to bind the subsequent owners and hold them liable to the claimant?

This Petition for Review on Certiorari1 under Rule 45 of the Rules of Court assails the December 12, 2003 Decision2 of the Court of Appeals (CA) in CA-G.R. CV No. 70888.3 Said Decision modified the June 14, 2001 Summary Judgment4 of the Regional Trial Court (RTC) of Quezon City in Civil Case No. Q-99-38876 by holding respondents Spouses Bienvenido and Elizabeth Pangan (the Pangans) not solidarily liable with the other respondents, Spouses Alfredo and Imelda Diaz (the Diazes) and Reina Comandante (Comandante), to petitioner Atty. Pedro M. Ferrer (Atty. Ferrer). Likewise assailed is the CA Resolution5 dated September 10, 2004

which denied petitioner’s as well as respondents Spouses Diaz and Comandante’s respective motions for reconsideration.

The parties’ respective versions of the factual antecedents are as follows:

Version of the Petitioner

Petitioner Atty. Ferrer claimed in his original Complaint6 that on May 7, 1999, the Diazes, as represented by their daughter Comandante, through a Special Power of Attorney (SPA),7 obtained from him a loan of P1,118,228.00. The loan was secured by a Real Estate Mortgage Contract8 by way of second mortgage over Transfer Certificate of Title (TCT) No. RT-66049 and a Promissory Note10 payable within six months or up to November 7, 1999. Comandante also issued to petitioner postdated checks to secure payment of said loan.

Petitioner further claimed that prior to this or on May 29, 1998, Comandante, for a valuable consideration ofP600,000.00, which amount formed part of the abovementioned secured loan, executed in his favor an instrument entitled Waiver of Hereditary Rights and Interests Over a Real Property (Still Undivided),11 the pertinent portions of which read:

I, REINA D. COMANDANTE, of legal age, Filipino, married, with residence and postal address at No. 6, Road 20, Project 8, Quezon City, Metro Manila, Philippines, for a valuable consideration of SIX HUNDRED THOUSAND PESOS (P600,000.00) which constitutes my legal obligation/loan to Pedro M. Ferrer, likewise of legal age, Filipino, married to Erlinda B. Ferrer, with residence and postal address at No. 9, Lot 4, Puerto Rico Street, Loyola Grand Villas, Quezon City, Metro Manila, Philippines, by virtue of these presents, do hereby WAIVE, and/or REPUDIATE all my hereditary rights and interests as a legitimate heir/daughter of Sps. Alfredo T. Diaz and Imelda G. Diaz in favor of said Pedro M. Ferrer, his heirs and assigns over a certain parcel of land together with all the improvements found thereon and which property is more particularly described as follows:

TRANSFER CERTIFICATE OF TITLE NO. RT-6604 (82020) PR-18887

x x x x

and which property is titled and registered in the name of my parents Alfredo T. Diaz and Imelda G. Diaz, as evidenced by Transfer Certificate of Title No. RT 6604 (82020) PR-18887.

(sgd.)REINA D. COMANDANTEAffiant

On the basis of said waiver, petitioner executed an Affidavit of Adverse Claim12 which he caused to be annotated at the back of TCT No. RT-6604 on May 26, 1999.

The Diazes, however, reneged on their obligation as the checks issued by Comandante were dishonored upon presentment. Despite repeated demands, said respondents still failed and refused to settle the loan. Thus, petitioner filed on September 29, 1999 a Complaint13 for Collection of Sum of Money Secured by Real Estate Mortgage Contract against the Diazes and Comandante docketed as Civil Case No. Q-99-38876 and raffled to Branch 224 of RTC, Quezon City.

Petitioner twice amended his complaint. First, by including as an alternative relief the Judicial Foreclosure of Mortgage14 and, second, by impleading as additional defendants the Pangans as the mortgaged property covered by TCT No. RT-6604 was already transferred under their names in TCT No. N-209049. Petitioner prayed in his second amended complaint that all the respondents be ordered to jointly and solidarily pay him the sum ofP1,118,228.00, exclusive of interests, and/or for the judicial foreclosure of the property pursuant to the Real Estate Mortgage Contract.

Version of the Respondents

In her Answer15 to petitioner’s original complaint, Comandante alleged that petitioner and his wife were her fellow members in the Couples for Christ Movement. Sometime in 1998, she sought the help of petitioner with regard to the mortgage with a bank of her parents’ lot located at No. 6, Rd. 20, Project 8, Quezon City and covered by TCT No. RT-6604. She also sought financial accommodations from the couple on several occasions which totaledP500,000.00. Comandante, however, claimed that these loans were secured by chattel mortgages over her taxi units in addition to several postdated checks she issued in favor of petitioner.

As she could not practically comply with her obligation, petitioner and his wife, presented to Comandante sometime in May 1998 a document denominated as Waiver of Hereditary Rights and Interests Over a Real Property (Still Undivided) pertaining to a waiver of her hereditary share over her parents’ abovementioned property. Purportedly, the execution of said waiver was to secure Comandante’s loan with the couple which at that time had already ballooned to P600,000.00 due to interests.

A year later, the couple again required Comandante to sign the following documents: (1) a Real Estate Mortgage Contract over her parents’ property; and, (2) an undated Promissory Note, both corresponding to the amount ofP1,118,228.00, which petitioner claimed to be the total amount of Comandante’s monetary obligation to him exclusive of charges and interests. Comandante alleged that she reminded petitioner that she was not the registered owner of the subject property and that although her parents granted her SPA, same only pertains to her authority to mortgage the property to banks and other financial institutions and not to individuals. Petitioner nonetheless assured Comandante that the SPA was also applicable to their transaction. As Comandante was still hesitant, petitioner and his wife threatened to foreclose the former’s taxi units and present the postdated checks she issued to the bank for payment. For fear of losing her taxi units which were the only source of her livelihood, Comandante was thus constrained to sign the mortgage agreement as well as the promissory note. Petitioner, however, did not furnish her with copies of said documents on the pretext that they still have to be notarized, but, as can be gleaned from the records, the documents were never notarized. Moreover, Comandante claimed

that the SPA alluded to by petitioner in his complaint was not the same SPA under which she thought she derived the authority to execute the mortgage contract.

Comandante likewise alleged that on September 29, 1999 at 10:00 o‘ clock in the morning, she executed an Affidavit of Repudiation/Revocation of Waiver of Hereditary Rights and Interests Over A (Still Undivided) Real Property,16 which she caused to be annotated on the title of the subject property with the Registry of Deeds of Quezon City on the same day. Interestingly, petitioner filed his complaint later that day too.

By way of special and affirmative defenses, Comandante asserted in her Answer to the amended complaint17 that said complaint states no cause of action against her because the Real Estate Mortgage Contract and the waiver referred to by petitioner in his complaint were not duly, knowingly and validly executed by her; that the Waiver of Hereditary Rights and Interests Over a Real Property (Still Undivided) is a useless document as its execution is prohibited by Article 1347 of the Civil Code,18 hence, it cannot be the source of any right or obligation in petitioner’s favor; that the Real Estate Mortgage was of doubtful validity as she executed the same without valid authority from her parents; and, that the prayer for collection and/or judicial foreclosure was irregular as petitioner cannot seek said remedies at the same time.

Apart from executing the affidavit of repudiation, Comandante also filed on October 4, 1999 a Petition for Cancellation of Adverse Claim (P.E. 2468) Under The Memorandum of Encumbrances of TCT No. RT-6604 (82020) PR-1888719 docketed as LRC Case No. Q-12009 (99) and raffled to Branch 220 of RTC, Quezon City. Petitioner who was impleaded as respondent therein moved for the consolidation of said case20 with Civil Case No. Q-99-38876. On June 24, 2000, Branch 220 of RTC, Quezon City ordered the consolidation of LRC Case No. Q-12009 (99) with Civil Case No. Q-99-38876. Accordingly, the records of the former case was forwarded to Branch 224.

For their part, the Diazes asserted that petitioner has no cause of action against them. They claimed that they do not even know petitioner and that they did not execute any SPA in favor of Comandante authorizing her to mortgage for the second time the subject property. They also contested the due execution of the SPA as it was neither authenticated before the Philippine Consulate in the United States nor notarized before a notary public in the State of New York where the Diazes have been residing for 16 years. They claimed that they do not owe petitioner anything. The Diazes also pointed out that the complaint merely refers to Comandante’s personal obligation to petitioner with which they had nothing to do. They thus prayed that the complaint against them be dismissed.21

At the Pangans’ end, they alleged that they acquired the subject property by purchase in good faith and for a consideration of P3,000,000.00 on November 11, 1999 from the Diazes through the latter’s daughter Comandante who was clothed with SPA acknowledged before the Consul of New York. The Pangans immediately took actual possession of the property without anyone complaining or protesting. Soon thereafter, they were issued TCT No. N-209049 in lieu of TCT No. RT-6604 which was cancelled. 22

However, on December 21, 1999, they were surprised upon being informed by petitioner that the subject land had been mortgaged to him by the Diazes. Upon inquiry from Comandante, the latter readily admitted that she has a personal loan with petitioner for which the mortgage of the property in petitioner’s favor was executed. She admitted, though, that her parents were not aware of such mortgage and that they did not authorize her to enter into such contract. Comandante also informed the Pangans that the signatures of her parents appearing on the SPA are fictitious and that it was petitioner who prepared such document.

As affirmative defense, the Pangans asserted that the annotation of petitioner’s adverse claim on TCT No. RT-6604 cannot impair their rights as new owners of the subject property. They claimed that the Waiver of Hereditary Rights and Interests Over a Real Property (Still Undivided) upon which petitioner’s adverse claim is anchored cannot be the source of any right or interest over the property considering

that it is null and void under paragraph 2 of Article 1347 of the Civil Code.

Moreover, the Pangans asserted that the Real Estate Mortgage Contract cannot bind them nor in any way impair their ownership of subject property because it was not registered before the Register of Deeds.23

All the respondents interposed their respective counterclaims and prayed for moral and exemplary damages and attorney’s fees in varying amounts.

After the parties have submitted their respective pre-trial briefs, the Diazes filed on March 29, 2001 a Motion for Summary Judgment24 alleging that: first, since the documents alluded to by petitioner in his complaint were defective, he was not entitled to any legal right or relief; and, second, it was clear from the pleadings that it is Comandante who has an outstanding obligation with petitioner which the latter never denied. With these, the Diazes believed that there is no genuine issue as to any material fact against them and, hence, they were entitled to summary judgment.

On May 7, 2001, petitioner also filed a Motion for Summary Judgment,25 claiming that his suit against the respondents is meritorious and well-founded and that same is documented and supported by law and jurisprudence. He averred that his adverse claim annotated at the back of TCT No. RT-6604, which was carried over in TCT No. 209049 under the names of the Pangans, is not merely anchored on the Waiver of Hereditary Rights and Interests Over a Real Property (Still Undivided) executed by Comandante, but also on the Real Estate Mortgage likewise executed by her in representation of her parents and in favor of petitioner. Petitioner insisted that said adverse claim is not frivolous and invalid and is registrable under Section 70 of Presidential Decree (PD) No. 1529. In fact, the Registrar of Deeds of Quezon City had already determined the sufficiency and/or validity of such registration by annotating said claim, and this, respondents failed to question. Petitioner further averred that even before the sale and transfer to the Pangans of the subject property, the latter were already aware of

the existence of his adverse claim. In view of these, petitioner prayed that his Motion for Summary Judgment be granted.

Ruling of the Regional Trial Court

After the filing of the parties’ respective Oppositions to the said motions for summary judgment, the trial court, in an Order dated May 31, 2001,26 deemed both motions for summary judgment submitted for resolution. Quoting substantially petitioner’s allegations in his Motion for Summary Judgment, it thereafter rendered on June 14, 2001 a Summary Judgment27 in favor of petitioner, the dispositive portion of which reads:

WHEREFORE, premises considered, summary judgment is hereby rendered in favor of plaintiff and against defendants by:

a) ORDERING all defendants jointly and solidarily to pay plaintiff the sum of ONE MILLION ONE HUNDRED EIGHTEEN THOUSAND TWO HUNDRED TWENTY EIGHT PESOS (P1,118,228.00) which is blood money of plaintiff;

b) ORDERING the Honorable Registrar of Deeds of Quezon City that the rights and interest of the plaintiff over subject property be annotated at the back of T.C.T. No. N-209049;

c) SENTENCING all defendants to pay plaintiff’s expenses of TEN THOUSAND PESOS (P10,000.00) and to pay the costs of suit.

IT IS SO ORDERED.28

The Pangans, the Diazes, and Comandante appealed to the CA.29 The Pangans faulted the trial court in holding them jointly and severally liable with the Diazes and Comandante for the satisfaction of the latter’s personal obligation to petitioner in the total amount of P1,118,228.00. The Diazes and Comandante, on the other hand, imputed error upon the trial court in rendering summary judgment in favor of petitioner. They averred that assuming the summary

judgment was proper, the trial court should not have considered the Real Estate Mortgage Contract and the Promissory Note as they were defective, as well as petitioner’s frivolous and non-registrable adverse claim.

In its Decision30 dated December 12, 2003, the CA declared Comandante’s waiver of hereditary rights null and void. However, it found the Real Estate Mortgage executed by Comandante on behalf of her parents as binding between the parties thereto.

As regards the Pangans, the CA ruled that the mortgage contract was not binding upon them as they were purchasers in good faith and for value. The property was free from the mortgage encumbrance of petitioner when they acquired it as they only came to know of the adverse claim through petitioner’s phone call which came right after the former’s acquisition of the property. The CA further ruled that as Comandante’s waiver of hereditary rights and interests upon which petitioner’s adverse claim was based is a nullity, it could not be a source of any right in his favor. Hence, the Pangans were not bound to take notice of such claim and are thus not liable to petitioner.

Noticeably, the appellate court did not rule on the propriety of the issuance of the Summary Judgment as raised by the Diazes and Comandante. In the ultimate, the CA merely modified the assailed Summary Judgment of the trial court by excluding the Pangans among those solidarily liable to petitioner, in effect affirming in all other respects the assailed summary judgment, viz:

WHEREFORE, foregoing premises considered, the Decision of the Regional Trial Court of Quezon City, Branch 224 in Civil Case No. Q-99-38876 is hereby MODIFIED, as follows:

1. Ordering defendants-appellants Comandante and Spouses Diaz to jointly and severally pay plaintiff the sum of Php 1,118, 228.00; and

2. Ordering defendants-appellants Comandante and Spouses Diaz to jointly and severally pay plaintiff the amount of Php10,000.00 plus cost of suit.

SO ORDERED.31

Petitioner’s Motion for Reconsideration32 having been denied by the CA in its Resolution33 dated September 10, 2004, he now comes to us through this petition for review on certiorari insisting that the Pangans should, together with the other respondents, be held solidarily liable to him for the amount of P1,118,228.00.

Our Ruling

The petition lacks merit.

Petitioner merely reiterates his contentions in the Motion for Summary Judgment he filed before the trial court. He insists that his Adverse Claim annotated at the back of TCT No. RT-6604 is not merely anchored on Comandante’s Waiver of Hereditary Rights and Interests Over A Real Property (Still Undivided) but also on her being the attorney-in-fact of the Diazes when she executed the mortgage contract in favor of petitioner. He avers that his adverse claim is not frivolous or invalid and is registrable as the Registrar of Deeds of Quezon City even allowed its annotation. He also claims that even prior to the sale of subject property to the Pangans, the latter already knew of his valid and existing adverse claim thereon and are, therefore, not purchasers in good faith. Thus, petitioner maintains that the Pangans should be held, together with the Diazes and Comandante, jointly and severally liable to him in the total amount of P1,118,228.00.

Petitioner’s contentions are untenable.

The Affidavit of Adverse Claim executed by petitioner reads in part:

x x x x

1. That I am the Recipient/Benefactor of compulsory heir’s share over an undivided certain parcel of land together with all the improvements found therein x x x as evidenced by Waiver of Hereditary Rights and Interests Over A Real Property, executed by REINA D. COMANDANTE (a compulsory/legitimate heir of Sps. Alfredo T. Diaz and Imelda G. Diaz), x x x.

2. That in order to protect my interest over said property as a Recipient/Benefactor, for the registered owners/parents might dispose (of) and/or encumber the same in a fraudulent manner without my knowledge and consent, for the owner’s duplicate title was not surrendered to me, it is petitioned that this Affidavit of Adverse Claim be ANNOTATED at the back of the said title particularly on the original copy of Transfer Certificate of Title No. RT-6604 (82020) PR-18887 which is on file with the Register of Deeds of Quezon City.

3. That I am executing this Affidavit in order to attest (to) the truth of the foregoing facts and to petition the Honorable Registrar of Deeds, Quezon City, to annotate this Affidavit of Adverse Claim at the back of the said title particularly the original copy of Transfer Certificate of Title No. RT-6604 (82020) PR-18887 which is on file with the said office, so that my interest as Recipient/Benefactor of the said property will be protected especially the registered owner/parents, in a fraudulent manner might dispose (of) and/or encumber the same without my knowledge and consent. (Emphasis ours)

Clearly, petitioner’s Affidavit of Adverse Claim was based solely on the waiver of hereditary interest executed by Comandante. This fact cannot be any clearer especially so when the inscription of his adverse claim at the back of TCT No. RT-6604 reads as follows:

P.E. 2468/T-(82020)RT-6604 - - AFFIDAVIT OF ADVERSE CLAIM - - Executed under oath by PEDRO M. FERRER, married to Erlinda B. Ferrer, claiming among others that they have a claim, the interest over said property as Recipient/Benefactor, by virtue of

a waiver of Hereditary Rights and Interest over a real property x x x34 (Emphasis ours)

Therefore, there is no basis for petitioner’s assertion that the adverse claim was also anchored on the mortgage contract allegedly executed by Comandante on behalf of her parents.

The questions next to be resolved are: Is Comandante’s waiver of hereditary rights valid? Is petitioner’s adverse claim based on such waiver likewise valid and effective?

We note at the outset that the validity of petitioner’s adverse claim should have been determined by the trial court after the petition for cancellation of petitioner’s adverse claim filed by Comandante was consolidated with Civil Case No. Q-99-38876.35 This is in consonance with Section 70 of PD 1529 which provides:

Section 70. Adverse Claim. – Whoever claims any part or interest in registered land adverse to the registered owner, arising subsequent to the date of the original registration, may, if no other provision is made in this Decree for registering the same, make a statement in writing setting forth fully his alleged right or interest, and how or under whom acquired, a reference to the number of the certificate of title of the registered owner, the name of the registered owner, and a description of the land in which the right or interest is claimed.

The statement shall be signed and sworn to, and shall state the adverse claimant’s residence, and a place at which all notices may be served upon him. This statement shall be entitled to registration as an adverse claim on the certificate of title. The adverse claim shall be effective for a period of thirty days from the date of registration. After the lapse of said period, the annotation of adverse claim may be cancelled upon filing of a verified petition therefor by the party in interest: Provided, however, That after cancellation, no second adverse claim based on the same ground shall be registered by the same claimant.

Before the lapse of thirty days aforesaid, any party in interest may file a petition in the Court of First Instance where the land is situated

for the cancellation of the adverse claim, and the court shall grant a speedy hearing upon the question of validity of such adverse claim, and shall render judgment as may be just and equitable. If the adverse claim is adjudged to be invalid, the registration thereof shall be ordered cancelled. If, in any case, the court, after notice and hearing, shall find that the adverse claim thus registered was frivolous, it may fine the claimant in an amount not less than one thousand pesos nor more than five thousand pesos, in its discretion. Before the lapse of thirty days, the claimant may withdraw his adverse claim by filing with the Register of Deeds a sworn petition to that effect. (Emphasis ours)

Pursuant to the third paragraph of the afore-quoted provision, it has been held that the validity or efficaciousness of an adverse claim may only be determined by the Court upon petition by an interested party, in which event, the Court shall order the immediate hearing thereof and make the proper adjudication as justice and equity may warrant. And, it is only when such claim is found unmeritorious that the registration of the adverse claim may be cancelled.36

As correctly pointed out by respondents, the records is bereft of any showing that the trial court conducted any hearing on the matter. Instead, what the trial court did was to include this material issue among those for which it has rendered its summary judgment as shown by the following portion of the judgment:

x x x it will be NOTED that subject Adverse Claim annotated at the back of Transfer Certificate of Title No. RT-6604 (82020) PR-18887, and carried over to defendants-Sps. Pangan’s Title No. N-20909, is not merely anchored on defendant Reina Comandante’s "Waiver of Hereditary Rights and Interest Over a Real Property" but also on her being the Attorney-In-Fact of the previous registered owners/parents/defendants Sps. Alfredo and Imelda Diaz about the Real Estate Mortgage Contract for a loan of P1,118,228.00 which is a blood money of the plaintiff. Moreover, subject Adverse Claim in LRC Case No. Q-12009 (99) is NOT frivolous and invalid and consequently, REGISTRABLE by virtue of Section 110 of the Land Registration Act (now Section 70 of Presidential Decree No. 1529). 37 (Emphasis ours)

It does not escape our attention that the trial court merely echoed the claim of petitioner that his adverse claim subject of LRC Case No. Q-12009 (99) is not frivolous, invalid and is consequently registrable. We likewise lament the apparent lack of effort on the part of said court to make even a short ratiocination as to how it came up with said conclusion. In fact, what followed the above-quoted portion of the summary judgment are mere recitals of the arguments raised by petitioner in his motion for summary judgment. And in the dispositive portion, the trial court merely casually ordered that petitioner’s adverse claim be inscribed at the back of the title of the Pangans. What is worse is that despite this glaring defect, the CA manifestly overlooked the matter even if respondents vigorously raised the same before it.

Be that as it may, respondents’ efforts of pointing out this flaw, which we find significant, have not gone to naught as will be hereinafter discussed.

All the respondents contend that the Waiver of Hereditary Rights and Interest Over a Real Property (Still Undivided) executed by Comandante is null and void for being violative of Article 1347 of the Civil Code, hence, petitioner’s adverse claim which was based upon such waiver is likewise void and cannot confer upon the latter any right or interest over the property.

We agree with the respondents.

Pursuant to the second paragraph of Article 1347 of the Civil Code, no contract may be entered into upon a future inheritance except in cases expressly authorized by law. For the inheritance to be considered "future", the succession must not have been opened at the time of the contract. A contract may be classified as a contract upon future inheritance, prohibited under the second paragraph of Article 1347, where the following requisites concur:

(1) That the succession has not yet been opened.

(2) That the object of the contract forms part of the inheritance; and,

(3) That the promissor has, with respect to the object, an expectancy of a right which is purely hereditary in nature.38

In this case, there is no question that at the time of execution of Comandante’s Waiver of Hereditary Rights and Interest Over a Real Property (Still Undivided), succession to either of her parent’s properties has not yet been opened since both of them are still living. With respect to the other two requisites, both are likewise present considering that the property subject matter of Comandante’s waiver concededly forms part of the properties that she expect to inherit from her parents upon their death and, such expectancy of a right, as shown by the facts, is undoubtedly purely hereditary in nature.

From the foregoing, it is clear that Comandante and petitioner entered into a contract involving the former’s future inheritance as embodied in the Waiver of Hereditary Rights and Interest Over a Real Property (Still Undivided) executed by her in petitioner’s favor.

In Tañedo v. Court of Appeals,39 we invalidated the contract of sale between Lazaro Tañedo and therein private respondents since the subject matter thereof was a "one hectare of whatever share the former shall have over Lot 191 of the cadastral survey of Gerona, Province of Tarlac and covered by Title T-13829 of the Register of Deeds of Tarlac." It constitutes a part of Tañedo’s future inheritance from his parents, which cannot be the source of any right nor the creator of any obligation between the parties.

Guided by the above discussions, we similarly declare in this case that the Waiver of Hereditary Rights and Interest Over a Real Property (Still Undivided) executed by Comandante in favor of petitioner as not valid and that same cannot be the source of any right or create any obligation between them for being violative of the second paragraph of Article 1347 of the Civil Code.

Anent the validity and effectivity of petitioner’s adverse claim, it is provided in Section 70 of PD 1529, that it is necessary that the claimant has a right or interest in the registered land adverse to the registered owner and that it must arise subsequent to registration. Here, as no right or interest on the subject property flows from

Comandante’s invalid waiver of hereditary rights upon petitioner, the latter is thus not entitled to the registration of his adverse claim. Therefore, petitioner’s adverse claim is without any basis and must consequently be adjudged invalid and ineffective and perforce be cancelled.

Albeit we have already resolved the issues raised by petitioner, we shall not stop here as the Diazes and Comandante in their Comment40 call our attention to the failure of the CA to pass upon the issue of the propriety of the issuance by the trial court of the Summary Judgment in favor of petitioner despite the fact that they have raised this issue before the appellate court. They argue that summary judgment is proper only when there is clearly no genuine issue as to any material fact in the action. Thus, where the defendant presented defenses tendering factual issue which call for presentation of evidence, as when he specifically denies the material allegations in the complaint, summary judgment cannot be rendered.

The Diazes and Comandante then enumerate the genuine issues in the case which they claim should have precluded the trial court from issuing a summary judgment in petitioner’s favor. First, the execution of the SPA in favor of Comandante referred to by petitioner in his complaint was never admitted by the Diazes. They assert that as such fact is disputed, trial should have been conducted to determine the truth of the matter, same being a genuine issue. Despite this, the trial court merely took the word of the plaintiff and assumed that said document was indeed executed by them. Second, although Comandante acknowledges that she has a personal obligation with petitioner, she nevertheless, did not admit that it was in the amount of P1,118,228.00. Instead, she claims only the amount of P500,000.00 or P600,000.00 (if inclusive of interest) as her obligation. Moreover, the Diazes deny borrowing any money from petitioner and neither did the Pangans owe him a single centavo. Thus, the true amount of the obligation due the petitioner and how each of the respondents are responsible for such amount are genuine issues which need formal presentation of evidence. Lastly, they aver that the trial court ignored factual and material issues such as the lack of probative value of Comandante’s waiver of hereditary rights as well as of the SPA; the fact that Comandante signed the mortgage contract and promissory note in her personal capacity;

and, that all such documents were prepared by petitioner who acted as a lawyer and the creditor of Comandante at the same time.

Rule 35 of the Rules of Court provides for summary judgment, the pertinent provisions of which are the following:

Section 1. Summary Judgment for claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof.

Section 2. Summary Judgment for the defending party. A party against whom a claim, counterclaim or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof.

Section 3. Motion and proceedings thereon. The motion shall be served at least ten (10) days before the time specified for the hearing. The adverse party may serve opposing affidavits, depositions, or admissions at least three (3) days before the hearing. After the hearing, the judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions and admissions on file, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

As can be deduced from the above provisions, summary judgment is a procedural devise resorted to in order to avoid long drawn out litigations and useless delays. When the pleadings on file show that there are no genuine issues of facts to be tried, the Rules of Court allows a party to obtain immediate relief by way of summary judgment. That is, when the facts are not in dispute, the court is allowed to decide the case summarily by applying the law to the material facts. Conversely, where the pleadings tender a genuine issue, summary judgment is not proper. A genuine issue is such fact

which requires the presentation of evidence as distinguished from a sham, fictitious, contrived or false claim.41

Here, we find the existence of genuine issues which removes the case from the coverage of summary judgment. The variance in the allegations of the parties in their pleadings is evident.

Petitioner anchors his complaint for sum of money and/or judicial foreclosure on the alleged real estate mortgage over the subject property allegedly entered into by Comandante in behalf of her parents to secure payment of a loan amounting to P1,118,228.00. To support this claim, petitioner attached to his complaint (1) the SPA alleged to have been executed by the Diazes; (2) the Real Estate Mortgage Contract pertaining to the amount ofP1,118,228.00; and, (3) a Promissory Note.

Comandante, in her Answer to petitioner’s Amended Complaint, assailed the validity and due execution of the abovementioned documents. She asserted that the same were not duly, knowingly and validly executed by her and that it was petitioner who prepared all of them. Also, although she admitted owing petitioner, same was not an absolute admission as she limited herself to an obligation amounting only to P600,000.00 inclusive of charges and interests. She likewise claimed that such obligation is her personal obligation and not of her parents.

The Diazes, for their part, also denied that they executed the SPA authorizing their daughter to mortgage their property to petitioner as well as having any obligation to the latter.

Clearly, there are genuine issues in this case which require the presentation of evidence. For one, it is necessary to ascertain in a full blown trial the validity and due execution of the SPA, the Real Estate Mortgage and the Promissory Notes because the determination of the following equally significant questions depends on them, to wit: (1) Are the Diazes obligated to petitioner or is the obligation a purely personal obligation of Comandante? and, (2) Is the sum of P1,118,228.00 as shown in the Real Estate Mortgage and the Promissory Note, the amount which is really due the petitioner?

To stress, trial courts have limited authority to render summary judgments and may do so only when there is clearly no genuine issue as to any material fact. When the facts as pleaded by the parties are disputed or contested, proceedings for summary judgment cannot take the place of trial.42 From the foregoing, it is apparent that the trial court should have refrained from issuing the summary judgment but instead proceeded to conduct a full blown trial of the case. In view of this, the present case should be remanded to the trial court for further proceedings and proper disposition according to the rudiments of a regular trial on the merits and not through an abbreviated termination of the case by summary judgment.

WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals dated December 12, 2003 insofar as it excluded the respondents Spouses Bienvenido Pangan and Elizabeth Pangan from among those solidarily liable to petitioner Atty. Pedro M. Ferrer, is AFFIRMED. The inscription of the adverse claim of petitioner Atty. Pedro M. Ferrer on T.C.T. No. N-209049 is hereby ordered CANCELLED. Insofar as its other aspects are concerned, the assailed Decision is SET ASIDE and VACATED. The case is REMANDED to the Regional Trial Court of Quezon City, Branch 224 for further proceedings in accordance with this Decision.

SO ORDERED

MARIANO C. DEL CASTILLOAssociate Justice

WE CONCUR:

ANTONIO T. CARPIOAssociate Justice

Chairperson

ARTURO D. BRIONAssociate Justice

ROBERTO A. ABADAssociate Justice

JOSE PORTUGAL PEREZ

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 179859               August 9, 2010

IN RE: PETITION FOR PROBATE OF LAST WILL AND TESTAMENT OF BASILIO SANTIAGO,

MA. PILAR SANTIAGO and CLEMENTE SANTIAGO, Petitioners, vs.ZOILO S. SANTIAGO, FELICIDAD SANTIAGO-RIVERA, HEIRS OF RICARDO SANTIAGO, HEIRS OF CIPRIANO SANTIAGO, HEIRS OF TOMAS SANTIAGO, Respondents.FILEMON SOCO, LEONILA SOCO, ANANIAS SOCO, URBANO SOCO, GERTRUDES SOCO AND HEIRS OF CONSOLACION SOCO, Oppositors.

D E C I S I O N

CARPIO MORALES, J.:

Basilio Santiago (Basilio) contracted three marriages—the first to Bibiana Lopez, the second to Irene Santiago, and the third to Cecilia Lomotan. Basilio and his first wife bore two offsprings, Irene and Marta, the mother of herein oppositors Felimon, Leonila, Consolacion, Ananias, Urbano, and Gertrudes, all surnamed Soco.

Basilio and his second wife had six offsprings, Tomas, Cipriano, Ricardo, respondents Zoilo and Felicidad, and petitioner Ma. Pilar, all surnamed Santiago.

Basilio and his third wife bore three children, Eugenia herein petitioner Clemente, and Cleotilde, all surnamed Santiago.1

After Basilio died testate on September 16, 1973, his daughter by the second marriage petitioner Ma. Pilar filed before the Regional Trial Court (RTC) of Bulacan2 a petition for the probate of Basilio’s will, docketed as SP No. 1549-M. The will was admitted to probate by Branch 10 of the RTC and Ma. Pilar was appointed executrix.

The will contained the following provisions, among others:

4. Ang mga ari-arian ko na nasasaysay sa itaas ay INIWAN, IPINAGKAKALOOB, IBINIBIGAY, at IPINAMAMANA ko sa aking mga nasabing tagapagmana sa ilalim ng gaya ng sumusunod:

x x x x

c) ang aking anak na si Ma. Pilar ang magpapalakad at mamamahala ng balutan na nasa Santiago, Malolos, Bulacan, na nasasaysay sa itaas na 2(y);

d) Sa pamamahala ng bigasan, pagawaan ng pagkain ng hayop at lupa’t bahay sa Maynila, ang lahat ng solar sa danay ng daang Malolos-Paombong na nasa Malolos, Bulacan, kasali at kasama ang palaisdaan na nasa likuran niyon, ay ililipat sa pangalan nila Ma. Pilar at Clemente; nguni’t ang kita ng palaisdaan ay siyang gagamitin nila sa lahat at anomang kailangang gugol, maging majora o roperacion [sic], sa lupa’t bahay sa Lunsod ng Maynila na nasasaysay sa itaas na 2(c);

e) Ang lupa’t bahay sa Lunsod ng Maynila na nasasaysay sa itaas na 2(c) ay ililipat at ilalagay sa pangalan nila Ma. Pilar at Clemente hindi bilang pamana ko sa kanila kundi upang pamahalaan at pangalagaan lamang nila   at nang ang sinoman sa aking mga anak sampu ng apo at kaapuapuhan ko sa habang panahon ay may tutuluyan kung magnanais na mag-aral sa Maynila o kalapit na mga lunsod x x x.

f) Ang bigasan, mga makina at pagawaan ng pagkain ng hayop ay ipinamamana ko sa aking asawa, Cecilia Lomotan, at mga anak na Zoilo, Ma. Pilar, Ricardo, Cipriano, Felicidad, Eugenia, Clemente, at Cleotilde nang pare-pareho. Ngunit, sa loob ng dalawampong (20) taon mula sa araw ng aking kamatayan, hindi nila papartihin ito at pamamahalaan ito ni Clemente at ang maghahawak ng salaping kikitain ay si Ma. Pilar na siyang magpaparte. Ang papartihin lamang ay ang kita ng mga iyon matapos na ang gugol na kakailanganin niyon, bilang reparacion, pagpapalit o pagpapalaki ay maawas na. Ninais ko ang ganito sa aking pagmamahal sa kanila at pagaaring ibinubuhay ko sa kanila lahat, bukod sa yaon ay sa kanila ding kapakinabangan at kabutihan.

g) Ang lahat ng lupa, liban sa lupa’t bahay sa Lunsod ng Maynila, ay ipinapamana ko sa aking nasabing asawa, Cecilia Lomotan, at mga anak na Tomas, Zoilo, Ma. Pilar, Ricardo, Cipriano, Felicidad, Eugenia, Clemente at Cleotilde nang pare-pareho. Datapwa’t, gaya din ng mga bigasan, makina at gawaan ng pagkain ng hayop, ito ay hindi papartihin sa loob ng dalawampong (20) taon mula sa aking pagpanaw, at pamamahalaan din nila Ma. Pilar at Clemente. Ang mapaparte lamang ay ang kita o ani ng nasabing mga pag-aari matapos bayaran ang buwis at/o patubig at iba pang mga gugol na kailangan. Si Ma. Pilar din ang hahawak ng ani o salaping manggagaling dito. (emphasis and underscoring supplied)3

The oppositors-children of Marta, a daughter of Basilio and his first wife, were, on their motion, allowed to intervene.4

After the executrix-petitioner Ma. Pilar filed a "Final Accounting, Partition and Distribution in Accordance with the Will,"5 the probate court approved the will by Order of August 14, 1978 and directed the registers of deeds of Bulacan and Manila to register the certificates of title indicated therein.6 Accordingly, the titles to Lot Nos. 786, 837, 7922, 836 and 838 in Malolos, Bulacan and Lot No. 8-C in Manila were transferred in the name of petitioners Ma. Pilar and Clemente.7

The oppositors thereafter filed a Complaint-in-Intervention8 with the probate court, alleging that Basilio’s second wife was not Irene but a certain Maria Arellano with whom he had no child; and that Basilio’s will violates Articles 979-981 of the Civil Code.9

The probate court dismissed the Complaint-in-Intervention, citing its previous approval of the "Final Accounting, Partition, and Distribution in Accordance with the Will."10

The oppositors-heirs of the first marriage thereupon filed a complaint for completion of legitime before the Bulacan RTC, docketed as Civil Case No. 562-M-90,11 against the heirs of the second and third marriages.

In their complaint, oppositors-heirs of the first marriage essentially maintained that they were partially preterited by Basilio’s will because their legitime was reduced.12 They thus prayed, inter alia, that an inventory and appraisal of all the properties of Basilio be conducted and that Ma. Pilar and Clemente be required to submit a fresh accounting of all the incomes of the properties from the time of Basilio’s death up to the time of the filing of Civil Case No. 562-M-90.13

RTC-Branch 17 decided Civil Case No. 562-M-90 (for completion of legitime) in favor of the oppositors-heirs of the first marriage.

On appeal (docketed as CA G.R. No. 45801), the Court of Appeals, by Decision of January 25, 2002,14 annulled the decision of RTC-Branch 17, holding that the RTC Branch 17 dismissal of the Complaint-in-Intervention in SP No. 1549-M and its August 14, 1978 Order approving the probate of the will constitute res judicata with respect to Civil Case No. 562-M-90.15 Thus the appellate court disposed:

WHEREFORE, premises considered, the Appeal is hereby GRANTED. The Decision in Civil Case No. 562-M-90 is hereby ANNULLED on the ground of res judicata. Let the Decree of Distribution of the Estate of Basilio Santiago remain UNDISTURBED.

SO ORDERED.16 (emphasis in the original; underscoring supplied)

Oppositors-heirs of the first marriage challenged the appellate court’s decision in CA G.R. No. 45801 by petition for review, docketed as G.R. No. 155606, which this Court denied.17 The denial became final and executory on April 9, 2003.18

In the interregnum, or on October 17, 2000, respondent-heirs of the second marriage filed before the probate court (RTC-Branch 10) a Motion for Termination of Administration, for Accounting, and for Transfer of Titles in the Names of the Legatees.19 Citing the earlier quoted portions of Basilio’s will, they alleged that:

x x x x the twenty (20) year period   within which subject properties should be under administration of [Ma.] Pilar Santiago and Clemente Santiago expired on September 16, 1993.

Consequently, [Ma.] Pilar Santiago and Clemente Santiago should have ceased as such administrator[s] way back on September 16, 1993 and they should have transferred the above said titles to the named legatees in the Last Will and Testament of the testator by then. Said named legatees in the Last Will and Testament are no[ne] other than the following:

x x x x

Said [Ma.] Pilar Santiago and Clemente Santiago should have also rendered an accounting of their administration from such death of the testator up to the present or until transfer of said properties and its administration to the said legatees.

x x x x20

Respondents prayed that petitioners be ordered:

1) To surrender the above-enumerated titles presently in their names to [the] Honorable Court and to transfer the

same in the names of the designated legatees in the Last Will and Testament, to wit:

1) asawa, Cecilia Lomotan, at mga anak na

2) Tomas

3) Zoilo

4) Ma. Pilar

5) Ricardo

6) Cipriano

7) Felicidad

8) Eugenia

9) Clemente at

10) Cleotilde

(all surnamed SANTIAGO)

2) To peacefully surrender possession and administration of subject properties, including any and all improvements thereon, to said legatees.

3) To render an accounting of their administration of said properties and other properties of the testator under their administration, from death of testator Basilio Santiago on September 16, 1973 up to the present and until possession and administration thereof is transferred to said legatees.21

Opposing the motion, petitioners argued that with the approval of the Final Accounting, Partition and Distribution in Accordance with the

Will, and with the subsequent issuance of certificates of title covering the properties involved, the case had long since been closed and terminated.22

The probate court, finding that the properties in question would be transferred to petitioners Ma. Pilar and Clemente for purposes of administration only, granted the motion, by Order of September 5, 2003,23 disposing as follows:

WHEREFORE, premises considered, the Motion for Termination of Administration, for Accounting, and for Transfer of Titles in the Names of the Legatees dated October 3, 2000 filed by some heirs of the testator Basilio Santiago xxx is hereby GRANTED. Accordingly, the administratrix [sic] Ma. Pilar Santiago and Mr. Clemente Santiago are hereby DIRECTED, as follows:

a.) To surrender the above-enumerated titles presently in their names to this Honorable Court and to transfer the same in the names of the designated legatees in the Last Will and Testament, to wit: 1.) asawa, Cecilia Lomotan at mga anak na 2.) Tomas 3). Zoilo 4.) Ma. Pilar 5.) Ricardo 6.) Cipriano 7.) Felicidad 8.) Eugenia 9.) Clemente and 10.) Cleotilde all named SANTIAGO.

b.) To peacefully surrender possession and administration of subject properties including any and all improvements thereon, to said legatees; and

c.) To render an accounting of their administration of subject properties, including any and all improvements thereon, to said legatees; and

d.) To submit an accounting of their administration of the above-mentioned estate of the testator or all the above said lots including the rice mill, animal feeds factory, and all improvements thereon from August 14, 1978 up to the present.

e.) To submit a proposed Project of Partition, indicating how the parties may actually partition or adjudicate all the above said properties including the properties already in the name of all the said legatees xxx.

x x x x.

Further, the Register of Deeds of Bulacan are hereby DIRECTED to cancel and consider as no force and effects Transfer Certificates of Title Nos. T-249177 (RT-46294) [Lot No. 786], T-249175 (RT-46295) [Lot No. 837], T-249174 (RT-46296) [Lot No. 7922], T-249173 (RT-46297) [Lot No. 836], and T-249176 (RT-46293) [Lot No. 838] in the names of Ma. Pilar Santiago and Clemente Santiago and to issue new ones in the lieu thereof in the names of Cecilia Lomotan-Santiago, Tomas Santiago, Zoilo Santiago, Ma. Pilar Santiago, Ricardo Santiago, Cipriano Santiago, Felicidad Santiago, Eugenia Santiago, Clemente Santiago, and Cleotilde Santiago.

Moreover, the Register of Deeds of Manila is hereby DIRECTED to cancel and consider as no force and effect Transfer Certificate of Title No. 131044 [Lot No. 8-C] in the names of Ma. Pilar Santiago and Clemente Santiago and to issue new ones in lieu thereof in the names of the Heirs of Bibiana Lopez, the Heirs of Irene Santiago, and the Heirs of Cecilia Lomotan.

The Motion to Suspend Proceedings filed by Filemon, Leonila, Ma. Concepcion, Ananias, Urbano and Gertrudes, all surnamed Soco, dated December 3, 2002, is hereby DENIED for lack of merit.24

Respecting petitioners’ argument that the case had long been closed and terminated, the trial court held:

x x x x [I]t is clear from the Last Will and Testament that subject properties cannot actually be partitioned until after 20 years from the death of the testator Basilio Santiago x x x x. It is, therefore, clear that something more has to be done after the approval of said Final Accounting, Partition, and Distribution. The testator Basilio Santiago died on September 16, 1973, hence, the present action can only be filed after September 16, 1993. Movant’s cause of action accrues

only from the said date and for which no prescription of action has set in.

The principle of res judicata does not apply in the present probate proceeding which is continuing in character, and terminates only after and until the final distribution or settlement of the whole estate of the deceased in accordance with the provision of the will of the testator. The Order dated August 14, 1978 refers only to the accounting, partition, and distribution of the estate of the deceased for the period covering from the date of the filing of the petition for probate on December 27, 1973 up to August 14, 1978. And in the said August 14, 1978 order it does not terminate the appointment of petitioner[s] Ma. Pilar Santiago and Clemente Santiago as executrix and administrator, respectively, of the estate of the deceased particularly of those properties which were prohibited by the testator to be partitioned within 20 years from his death. Since then up to the present, Ma. Pilar Santiago and Clemente Santiago remain the executor and administrator of the estate of the deceased and as such, they are required by law to render an accounting thereof from August 14, 1978 up to the present; there is also now a need to partition and distribute the aforesaid properties as the prohibition period to do so has elapsed. (emphasis and underscoring supplied)25

Petitioners, together with the oppositors, filed a motion for reconsideration,26 which the probate court denied, drawing them to appeal to the Court of Appeals which docketed it as CA G.R. No. 83094.

The Court of Appeals affirmed the decision of the probate court,27 hence, the petition28 which raises the following grounds:

I.

"CAN THE HONORABLE COURT OF APPEALS REVERSE ITSELF"

A. THE COURT OF APPEALS ERRED IN NOT BINDING ITSELF WITH ITS PREVIOUS DECISION INVOLVING THE SAME PARTIES AND SAME PROPERTIES;

B. THE COURT OF APPEALS ERRED IN AFFIRMING THE RTC AS IT AGREED WITH THE RTC THAT THIS CASE IS NOT BARRED BY RES JUDICATA;

C. IN C.A.-G.R. NO. 45801, THE HONORABLE COURT OF APPEALS HELD THAT THERE WAS RES JUDICATA; IN C.A.-G.R. CV NO. 83094, THERE WAS NO RES JUDICATA.

II.

"GRANTING THAT THE COURT OF APPEALS HAS ALL THE COMPETENCE AND JURISDICTION TO REVERSE ITSELF, STILL THE COURT OF APPEALS ERRED IN AFFIRMING THE RTC’S ORDER TO TRANSFER THE MANILA PROPERTY COVERED BY TCT NO. 131004 TO THE NAMES OF CECILIA LOMOTAN, TOMAS, ZOILO, MA. PILAR, RICARDO, CIPRIANO FELICIDAD, EUGENIA, CLEMENTE AND CLEOTILDE, ALL SURNAMED SANTIAGO."29 (emphasis in the original)

The petition lacks merit.

Petitioners’ argument that the decision of the appellate court in the earlier CA-G.R. NO. 45801 (upheld by this Court in G.R. No. 155606) constitutes res judicata to the subsequent CA G.R. No. 83094 (the subject of the present petition for review) fails.

Res judicata has two aspects, which are embodied in Sections 47 (b) and 47 (c) of Rule 39 of the Rules of Civil Procedure.30 The first, known as "bar by prior judgment," proscribes the prosecution of a second action upon the same claim, demand or cause of action already settled in a prior action.31 The second, known as "conclusiveness of judgment," ordains that issues actually and directly resolved in a former suit cannot again be raised in any future case between the same parties involving a different cause of action.32

Both aspects of res judicata, however, do not find application in the present case. The final judgment regarding oppositors’ complaint on

the reduction of their legitime in CA-G.R. NO. 45801 does not dent the present petition, which solely tackles the propriety of the termination of administration, accounting and transfer of titles in the names of the legatees-heirs of the second and third marriages. There is clearly no similarity of claim, demand or cause of action between the present petition and G.R. No. 155606.

While as between the two cases there is identity of parties, "conclusiveness of judgment" cannot likewise be invoked. Again, the judgment in G.R. No. 155606 would only serve as an estoppel as regards the issue on oppositors’ supposed preterition and reduction of legitime, which issue is not even a subject, or at the very least even invoked, in the present petition.

What is clear is that petitioners can invoke res judicata insofar as the judgment in G.R. No. 155606 is concerned against the oppositors only. The records reveal, however, that the oppositors did not appeal the decision of the appellate court in this case and were only impleaded pro forma parties.

Apparently, petitioners emphasize on the directive of the appellate court in CA G.R. No. 45801 that the decree of distribution of the estate of Basilio should remain undisturbed. But this directive goes only so far as to prohibit the interference of the oppositors in the distribution of Basilio’s estate and does not pertain to respondents’ supervening right to demand the termination of administration, accounting and transfer of titles in their names.

Thus, the Order of September 5, 2003 by the probate court granting respondents’ Motion for Termination of Administration, for Accounting, and for Transfer of Titles in the Names of the Legatees is a proper and necessary continuation of the August 14, 1978 Order that approved the accounting, partition and distribution of Basilio’s estate. As did the appellate court, the Court notes that the August 14, 1978 Order was yet to become final pending the whole settlement of the estate. And final settlement of the estate, in this case, would culminate after 20 years or on September 16, 1993, when the prohibition to partition the properties of the decedent would be lifted.

Finally, petitioners object to the inclusion of the house and lot in Manila, covered by TCT No. 131044, among those to be transferred to the legatees-heirs as it would contravene the testator’s intent that no one is to own the same.1avvphi1

The Court is not persuaded. It is clear from Basilio’s will that he intended the house and lot in Manila to be transferred in petitioners’ names for administration purposes only, and that the property be owned by the heirs in common, thus:

e) Ang lupa’t bahay sa Lunsod ng Maynila na nasasaysay sa itaas na 2(c) ay ililipat at ilalagay sa pangalan nila Ma. Pilar at Clemente hindi bilang pamana ko sa kanila kundi upang pamahalaan at pangalagaan lamang nila at nang ang sinoman sa aking mga anak sampu ng apo at kaapuapuhan ko sa habang panahon ay may tutuluyan kung magnanais na mag-aral sa Maynila o kalapit na mga lunsod sa medaling salita, ang bahay at lupang ito’y walang magmamay-ari bagkus ay gagamitin habang panahon ng sinomang magnanais sa aking kaapuapuhan na tumuklas ng karunungan sa paaralan sa Maynila at katabing mga lunsod x x x x33 (emphasis and underscoring supplied)

But the condition set by the decedent on the property’s indivisibility is subject to a statutory limitation. On this point, the Court agrees with the ruling of the appellate court, viz:

For this Court to sustain without qualification, [petitioners]’s contention, is to go against the provisions of law, particularly Articles 494, 870, and 1083 of the Civil Code, which provide that the prohibition to divide a property in a co-ownership can only last for twenty (20) years   x x x x

x x x x

x x x x Although the Civil Code is silent as to the effect of the indivision of a property for more than twenty years, it would be contrary to public policy to sanction co-ownership beyond the period expressly mandated by the Civil Code x x x x34

WHEREFORE, the petition is DENIED.

Costs against petitioners.

SO ORDERED.

CONCHITA CARPIO MORALESAssociate Justice

WE CONCUR:

LUCAS P. BERSAMINAssociate Justice

MARIANO C. DEL CASTILLO*

Associate Justice

ROBERTO A. ABAD**

Associate Justice

MARTIN S. VILLARAMA, JR.Associate Justice

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-24561 June 30, 1970

MARINA DIZON-RIVERA, executrix-appellee, vs.ESTELA DIZON, TOMAS V. DIZON, BERNARDITA DIZON,

JOSEFINA DIZON, ANGELINA DIZON and LILIA DIZON, oppositors-appellants.

Punzalan, Yabut & Eusebio for executrix-appellee.

Leonardo Abola for oppositors-appellants.

 

TEEHANKEE, J.:

Appeal from orders of the Court of First Instance of Pampanga approving the Executrix-appellee's project of partition instead of Oppositors-Appellants' proposed counter-project of partition. 1

On January 28, 1961, the testatrix, Agripina J. Valdez, a widow, died in Angeles, Pampanga, and was survived by seven compulsory heirs, to wit, six legitimate children named Estela Dizon, Tomas V. Dizon, Bernardita Dizon, Marina Dizon (herein executrix-appellee), Angelina Dizon and Josefina Dizon, and a legitimate granddaughter named Lilia Dizon, who is the only legitimate child and heir of Ramon Dizon, a pre-deceased legitimate son of the said decedent. Six of these seven compulsory heirs (except Marina Dizon, the executrix-appellee) are the oppositors-appellants.

The deceased testatrix left a last will executed on February 2, 1960 and written in the Pampango dialect. Named beneficiaries in her will were the above-named compulsory heirs, together with seven other legitimate grandchildren, namely Pablo Rivera, Jr., Gilbert D. Garcia, Cayetano Dizon, Francisco Rivera, Agripina Ayson, Jolly Jimenez and Laureano Tiambon.

In her will, the testatrix divided, distributed and disposed of all her properties appraised at P1,801,960.00 (except two small parcels of land appraised at P5,849.60, household furniture valued at P2,500.00, a bank deposit in the sum of P409.95 and ten shares of Pampanga Sugar Development Company valued at P350.00) among her above-named heirs.

Testate proceedings were in due course commenced 2 and by order dated March 13, 1961, the last will and testament of the decedent was duly allowed and admitted to probate, and the appellee Marina Dizon-Rivera was appointed executrix of the testatrix' estate, and upon her filing her bond and oath of office, letters testamentary were duly issued to her.

After the executrix filed her inventory of the estate, Dr. Adelaido Bernardo of Angeles, Pampanga was appointed commissioner to appraise the properties of the estate. He filed in due course his report of appraisal and the same was approved in toto by the lower court on December 12, 1963 upon joint petition of the parties.

The real and personal properties of the testatrix at the time of her death thus had a total appraised value of P1,811,695.60, and the legitime of each of the seven compulsory heirs amounted to P129,362.11. 3 (¹/7 of the half of the estate reserved for the legitime of legitimate children and descendants). 4 In her will, the testatrix "commanded that her property be divided" in accordance with her testamentary disposition, whereby she devised and bequeathed specific real properties comprising practically the entire bulk of her estate among her six children and eight grandchildren. The appraised values of the real properties thus respectively devised by the testatrix to the beneficiaries named in her will, are as follows:

1. Estela Dizon ....................................... P 98,474.80 2. Angelina Dizon .................................. 106,307.063. Bernardita Dizon .................................. 51,968.17 4. Josefina Dizon ...................................... 52,056.39 5. Tomas Dizon ....................................... 131,987.41 6. Lilia Dizon .............................................. 72,182.47 7. Marina Dizon ..................................... 1,148,063.71 8. Pablo Rivera, Jr. ...................................... 69,280.009. Lilia Dizon, Gilbert Garcia, 

Cayetano Dizon, Francisco Rivera, Agripina Ayson, Dioli or Jolly Jimenez, Laureano Tiamzon .................  72,540.00   Total Value ...................... P1,801,960.01

The executrix filed her project of partition dated February 5, 1964, in substance adjudicating the estate as follows:

(1) with the figure of P129,254.96 as legitime for a basis Marina (exacultrix-appellee) and Tomas (appellant) are admittedly considered to have received in the will more than their respective legitime, while the rest of the appellants, namely, Estela, Bernardita, Angelina, Josefina and Lilia received less than their respective legitime;

(2) thus, to each of the latter are adjudicated the properties respectively given them in the will, plus cash and/or properties, to complete their respective legitimes to P129,254.96; (3) on the other hand, Marina and Tomas are adjudicated the properties that they received in the will less the cash and/or properties necessary to complete the prejudiced legitime mentioned in number 2 above;

(4) the adjudications made in the will in favor of the grandchildren remain untouched.<äre||anº•1àw>

On the other hand oppositors submitted their own counter-project of partition dated February 14, 1964, wherein they proposed the distribution of the estate on the following basis:

(a) all the testamentary dispositions were proportionally reduced to the value of one-half (½) of the entire estate, the value of the said one-half (½) amounting to P905,534.78; (b) the shares of the Oppositors-Appellants should consist of their legitime, plus the devises in their favor proportionally

reduced; (c) in payment of the total shares of the appellants in the entire estate, the properties devised to them plus other properties left by the Testatrix and/or cash are adjudicated to them; and (d) to the grandchildren who are not compulsory heirs are adjudicated the properties respectively devised to them subject to reimbursement by Gilbert D. Garcia, et al., of the sums by which the devise in their favor should be proportionally reduced.

Under the oppositors' counter-project of partition, the testamentary disposition made by the testatrix of practically her whole estate of P1,801,960.01, as above stated, were proposed to be reduced to the amounts set forth after the names of the respective heirs and devisees totalling one-half thereof as follows:

1. Estela Dizon ........................................... P 49,485.56 2. Angelina Dizon ......................................... 53,421.42 3. Bernardita Dizon ....................................... 26,115.04 4. Josefina Dizon .......................................... 26,159.38 5. Tomas V. Dizon ......................................... 65,874.04 6. Lilia Dizon .................................................. 36,273.13 7. Marina Dizon ........................................... 576,938.82 8. Pablo Rivera, Jr. ......................................... 34,814.50 9. Grandchildren Gilbert Garcia et al ..........  36,452.80

T o t a l ................................................... P905,534.78

while the other half of the estate (P905,534.78) would be deemed as constituting the legitime of the executrix-appellee and oppositors-appellants, to be divided among them in seven equal parts of P129,362.11 as their respective legitimes.

The lower court, after hearing, sustained and approved the executrix' project of partition, ruling that "(A)rticles 906 and 907 of the New Civil Code specifically provide that when the legitime is impaired or prejudiced, the same shall be completed and satisfied. While it is true that this process has been followed and adhered to in the two projects of partition, it is observed that the executrix and the oppositors differ in respect to the source from which the portion or portions shall be taken in order to fully restore the impaired legitime. The proposition of the oppositors, if upheld, will substantially result in a distribution of intestacy, which is in controversion of Article 791 of the New Civil Code" adding that "the testatrix has chosen to favor certain heirs in her will for reasons of her own, cannot be doubted. This is legally permissible within the limitation of the law, as aforecited." With reference to the payment in cash of some P230,552.38, principally by the executrix as the largest beneficiary of the will to be paid to her five co-heirs, the oppositors (excluding Tomas Dizon), to complete their impaired legitimes, the lower court ruled that "(T)he payment in cash so as to make the proper adjustment to meet with the requirements of the law in respect to legitimes which have been impaired is, in our opinion, a practical and valid solution in order to give effect to the last wishes of the testatrix."

From the lower court's orders of approval, oppositors-appellants have filed this appeal, and raise anew the following issues: .

1. Whether or not the testamentary dispositions made in the testatrix' will are in the nature of devises imputable to the free portion of her estate, and therefore subject to reduction;

2. Whether the appellants are entitled to the devise plus their legitime under Article 1063, or merely to demand completion of their legitime under Article 906 of the Civil Code; and

3. Whether the appellants may be compelled to accept payment in cash on account of their legitime, instead of some of the real properties left by the Testatrix;

which were adversely decided against them in the proceedings below.

The issues raised present a matter of determining the avowed intention of the testatrix which is "the life and soul of a will." 5 In consonance therewith, our Civil Code included the new provisions found in Articles 788 and 791 thereof that "(I)f a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred" and "(T)he words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy." In Villanueva vs. Juico 6 for violation of these rules of interpretation as well as of Rule 123, section 59 of the old Rules of Court, 7 the Court, speaking through Mr. Justice J.B.L. Reyes, overturned the lower court's decision and stressed that "the intention and wishes of the testator, when clearly expressed in his will, constitute the fixed law of interpretation, and all questions raised at the trial, relative to its execution and fulfillment, must be settled in accordance therewith, following the plain and literal meaning of the testator's words, unless it clearly appears that his intention was otherwise." 8

The testator's wishes and intention constitute the first and principal law in the matter of testaments, and to paraphrase an early decision of the Supreme Court of Spain, 9 when expressed clearly and precisely in his last will amount to the only law whose mandate must imperatively be faithfully obeyed and complied with by his executors, heirs and devisees and legatees, and neither these interested parties nor the courts may substitute their own criterion for the testator's will. Guided and restricted by these fundamental premises, the Court finds for the appellee.

1. Decisive of the issues at bar is the fact that the testatrix' testamentary disposition was in the nature of a partition of her estate by will. Thus, in the third paragraph of her will, after commanding that upon her death all her obligations as well as the expenses of her last illness and funeral and the expenses for probate of her last will and for the administration of her property in accordance with law, be paid, she expressly provided that "it is my wish and I command that my property be divided" in accordance with the dispositions immediately thereafter following, whereby she specified each real property in her estate and designated the particular heir among her seven compulsory heirs and seven other grandchildren to whom she bequeathed the same. This was a valid partition 10 of her estate, as contemplated and authorized in the first paragraph of Article 1080 of the Civil Code, providing that "(S)hould a person make a partition of his estate by an act inter vivos or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs." This right of a testator to partition his estate is subject only to the right of compulsory heirs to their legitime. The Civil Code thus provides the safeguard for the right of such compulsory heirs:

ART. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied.

ART. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive.

This was properly complied with in the executrix-appellee's project of partition, wherein the five oppositors-appellants namely Estela, Bernardita, Angelina, Josefina and Lilia, were adjudicated the properties respectively distributed and assigned to them by the testatrix in her will, and the differential to complete their respective legitimes of P129,362.11 each were taken from the cash and/or properties of the executrix-appellee, Marina, and their co-oppositor-appellant, Tomas, who admittedly were

favored by the testatrix and received in the partition by will more than their respective legitimes.

2. This right of a testator to partition his estate by will was recognized even in Article 1056 of the old Civil Code which has been reproduced now as Article 1080 of the present Civil Code. The only amendment in the provision was that Article 1080 "now permits any person (not a testator, as under the old law) to partition his estate by actinter vivos." 11 This was intended to repeal the then prevailing doctrine 12 that for a testator to partition his estate by an actinter vivos, he must first make a will with all the formalities provided by law. Authoritative commentators doubt the efficacy of the amendment 13 but the question does not here concern us, for this is a clear case of partition by will, duly admitted to probate, which perforce must be given full validity and effect. Aside from the provisions of Articles 906 and 907 above quoted, other codal provisions support the executrix-appellee's project of partition as approved by the lower court rather than the counter-project of partition proposed by oppositors-appellants whereby they would reduce the testamentary disposition or partition made by the testatrix to one-half and limit the same, which they would consider as mere devises or legacies, to one-half of the estate as the disposable free portion, and apply the other half of the estate to payment of the legitimes of the seven compulsory heirs. Oppositors' proposal would amount substantially to a distribution by intestacy and pro tanto nullify the testatrix' will, contrary to Article 791 of the Civil Code. It would further run counter to the provisions of Article 1091 of the Civil Code that "(A) partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him."

3. In Habana vs. Imbo, 14 the Court upheld the distribution made in the will of the deceased testator Pedro Teves of two large coconut plantations in favor of his daughter, Concepcion, as against adverse claims of other compulsory heirs, as being a partition by will, which should be respected insofar as it does not prejudice the legitime of the compulsory heirs, in accordance with Article 1080 of the Civil Code. In upholding the sale made by Concepcion to a stranger of the plantations thus partitioned in her favor in the deceased's will which was being questioned by the other compulsory heirs, the Court ruled that "Concepcion Teves by operation of law, became the absolute

owner of said lots because 'A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him' (Article 1091, New Civil Code), from the death of her ancestors, subject to rights and obligations of the latter, and, she can not be deprived of her rights thereto except by the methods provided for by law (Arts. 657, 659, and 661, Civil Code). 15 Concepcion Teves could, as she did, sell the lots in question as part of her share of the proposed partition of the properties, especially when, as in the present case, the sale has been expressly recognized by herself and her co-heirs ..."

4. The burden of oppositors' contention is that the testamentary dispositions in their favor are in the nature of devises of real property, citing the testatrix' repeated use of the words "I bequeath" in her assignment or distribution of her real properties to the respective heirs. From this erroneous premise, they proceed to the equally erroneous conclusion that "the legitime of the compulsory heirs passes to them by operation of law and that the testator can only dispose of the free portion, that is, the remainder of the estate after deducting the legitime of the compulsory heirs ... and all testamentary dispositions, either in the nature of institution of heirs or of devises or legacies, have to be taken from the remainder of the testator's estate constituting the free portion." 16

Oppositors err in their premises, for the adjudications and assignments in the testatrix' will of specific properties to specific heirs cannot be considered all devises, for it clearly appear from the whole context of the will and the disposition by the testatrix of her whole estate (save for some small properties of little value already noted at the beginning of this opinion) that her clear intention was to partition her whole estate through her will. The repeated use of the words "I bequeath" in her testamentary dispositions acquire no legal significance, such as to convert the same into devises to be taken solely from the free one-half disposable portion of the estate. Furthermore, the testatrix' intent that her testamentary dispositions were by way of adjudications to the beneficiaries as heirs and not as mere devisees, and that said dispositions were therefore on account of the respective legitimes of the compulsory heirs is expressly borne out in the fourth paragraph of her will, immediately following her testamentary adjudications in the third paragraph in this wise:

"FOURTH: I likewise command that in case any of those I named as my heirs in this testament any of them shall die before I do, his forced heirs under the law enforced at the time of my death shall inherit the properties I bequeath to said deceased." 17

Oppositors' conclusions necessarily are in error. The testamentary dispositions of the testatrix, being dispositions in favor of compulsory heirs, do not have to be taken only from the free portion of the estate, as contended, for the second paragraph of Article 842 of the Civil Code precisely provides that "(O)ne who has compulsory heirsmay dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs." And even going by oppositors' own theory of bequests, the second paragraph of Article 912 Civil Code covers precisely the case of the executrix-appellee, who admittedly was favored by the testatrix with the large bulk of her estate in providing that "(T)he devisee who is entitled to a legitime may retain the entire property,provided its value does not exceed that of the disposable portion and of the share pertaining to him as legitime." For "diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate." 18 Fundamentally, of course, the dispositions by the testatrix constituted a partition by will, which by mandate of Article 1080 of the Civil Code and of the other cited codal provisions upholding the primacy of the testator's last will and testament, have to be respected insofar as they do not prejudice the legitime of the other compulsory heirs.

Oppositors' invoking of Article 1063 of the Civil Code that "(P)roperty left by will is not deemed subject to collation, if the testator has not otherwise provided, but the legitime shall in any case remain unimpaired" and invoking of the construction thereof given by some authorities that "'not deemed subject to collation' in this article really means not imputable to or chargeable against the legitime", while it may have some plausibility 19 in an appropriate case, has no application in the present case. Here, we have a case of a distribution and partition of the entire estate by the testatrix, without her having made any previous donations during her lifetime which would require collation to determine the legitime of each heir nor having left merely some properties by will which would call for the application of Articles 1061 to 1063 of the Civil Code on collation.

The amount of the legitime of the heirs is here determined and undisputed.

5. With this resolution of the decisive issue raised by oppositors-appellants, the secondary issues are likewise necessarily resolved. Their right was merely to demand completion of their legitime under Article 906 of the Civil Code and this has been complied with in the approved project of partition, and they can no longer demand a further share from the remaining portion of the estate, as bequeathed and partitioned by the testatrix principally to the executrix-appellee.

Neither may the appellants legally insist on their legitime being completed with real properties of the estate instead of being paid in cash, per the approved project of partition. The properties are not available for the purpose, as the testatrix had specifically partitioned and distributed them to her heirs, and the heirs are called upon, as far as feasible to comply with and give effect to the intention of the testatrix as solemnized in her will, by implementing her manifest wish of transmitting the real properties intact to her named beneficiaries, principally the executrix-appellee. The appraisal report of the properties of the estate as filed by the commissioner appointed by the lower court was approved in toto upon joint petition of the parties, and hence, there cannot be said to be any question — and none is presented — as to fairness of the valuation thereof or that the legitime of the heirs in terms of cash has been understated. The plaint of oppositors that the purchasing value of the Philippine peso has greatly declined since the testatrix' death in January, 1961 provides no legal basis or justification for overturning the wishes and intent of the testatrix. The transmission of rights to the succession are transmitted from the moment of death of the decedent (Article 777, Civil Code) and accordingly, the value thereof must be reckoned as of then, as otherwise, estates would never be settled if there were to be a revaluation with every subsequent fluctuation in the values of the currency and properties of the estate. There is evidence in the record that prior to November 25, 1964, one of the oppositors, Bernardita, accepted the sum of P50,000.00 on account of her inheritance, which, per the parties' manifestation, 20 "does not in any way affect the adjudication made to her in the projects of partition of either party as the same is a mere advance of the cash that she should receive in both projects of partition." The payment in

cash by way of making the proper adjustments in order to meet the requirements of the law on non-impairment of legitimes as well as to give effect to the last will of the testatrix has invariably been availed of and sanctioned. 21 That her co-oppositors would receive their cash differentials only now when the value of the currency has declined further, whereas they could have received them earlier, like Bernardita, at the time of approval of the project of partition and when the peso's purchasing value was higher, is due to their own decision of pursuing the present appeal.

ACCORDINGLY, the orders appealed from are hereby affirmed. Without cost.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Barredo and Villamor, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-15737             February 28, 1962

LEONOR VILLAFLOR VDA. DE VILLANUEVA, plaintiff-appellant, vs.DELFIN N. JUICO, in his capacity as Judicial Administrator of the testate estate of FAUSTA NEPOMUCENO, defendant-appellee.

Amado G. Salazar for plaintiff-appellant.Sycip, Salazar, Luna and Associates for defendant-appellee.

REYES, J.B.L., J.:

Subject to this direct appeal to us on points of law is the decision of the Court of First Instance of Rizal, in its Civil Case No. Q-2809, dismissing plaintiff-appellant's complaint for the recovery of certain properties that were originally owned by the plaintiff's granduncle, Nicolas Villaflor, and which he granted to his widow, Doña Fausta Nepomuceno, bequeathing to her "su uso y posesion mientras viva y no se case en segundas nupcias".

The following facts appear of record: On October 9, 1908, Don Nicolas Villaflor, a wealthy man of Castillejos, Zambales, executed a will in Spanish in his own handwriting, devising and bequeathing in favor of his wife, Dona Fausta Nepomuceno, one-half of all his real and personal properties, giving the other half to his brother Don Fausto Villaflor.

Clause 6th, containing the institution of heirs, reads as follows: .

SEXTO — En virtud de las facultades que me conceden las leyes, instituyo per mis unicos y universales herederos de todos mis derechos y acciones a mi hermano D. Fausto Villaflor y a mi esposa Da. Fausta Nepomuceno para que partan todos mis bienes que me pertenescan, en iguales partes, para despues de mi muerte, exceptuando las donaciones y legados que, abajo mi mas expontanea voluntad, lo hago en la forma siguiente: .

SEPTIMO: — Lego para dispues de mi muerte a mi esposa Da. Fausta Nepomuceno, en prueba de mi amor y carino, los bienes, alhajas y muebles que a continuacion se expresan; .

OCTAVO: — Que estos legades disfrutaria mi referida esposa Da. Fausta Nepomuceno su uso y posesion mientras viva y no se case en segundas nupcias, de la contrario, pasara a ser propiedad estos dichos legados de mi sobrina nieta Leonor Villaflor.

The 12th clause of the will provided, however, that Clauses 6th and 7th thereof would be deemed annulled from the moment he bore any

child with Doña Fausta Nepomuceno. Said Clause 12th reads as follows: .

DUODECIMO: — Quedan anulados las parrafos 6.0 y 7.0 de este testamento que tratan de institucion de herederos y los legados que se haran despues de mi muerte a favor de mi esposa, en el momento que podre tener la dicha de contrar con hijo y hijos legitimos o legitimados, pues estos, conforme a ley seran mis herederos.

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

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

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

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

We agree with appellant that the plain desire and intent of the testator, as manifested in clause 8 of his testament, was to invest his widow with only a usufruct or life tenure in the properties described in the seventh clause, subject to the further condition (admitted by the appellee) that if the widow remarried, her rights would thereupon cease, even during her own lifetime. That the widow was meant to have no more than a life interest in those properties, even if she did not remarry at all, is evident from the expressions used by the deceased "uso y posesion mientras viva" (use and possession while alive) in which the first half of the phrase "uso y posesion" instead of "dominio" or "propiedad") reinforces the second ("mientras viva"). The testator plainly did not give his widow the full ownership of these particular properties, but only the right to their possession and use (or enjoyment) during her lifetime. This is in contrast with the remainder of the estate in which she was instituted universal heir together with the testator's brother (clause 6). 1äwphï1.ñët

SEXTO: — En virtud de las facultades que me conceden las leyes, instituyo por mis unicos y universales herederos de todos mis derechos y acciones a mi hermano D. Fausto Villaflor y a mi esposa Da. Fausta Nepomuceno para que parten todos mis bienes que me pertenescan, en iguales partes, para despues de mi muerte, exceptuando las donaciones y legados que, abajo mi mas expontanea voluntad, lo hago en la forma siguiente.

The court below, in holding that the appellant Leonor Villaflor, as reversionary legatee, could succeed to the properties bequeathed by clause 7 of the testament only in the event that the widow remarried, has unwarrantedly discarded the expression "mientras viva," and

considered the words "uso y posesion" as equivalent to "dominio" (ownership). In so doing, the trial court violated Article 791 of the Civil Code of the Philippines, as well as section 59 of Rule 123 of the Rules of Court.

ART. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that one is to be preferred which will prevent intestacy." .

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

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

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

ART. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained." .

Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense. (675a)

In consonance with this rule, this Supreme Court has laid the doctrine in In re Estate of Calderon, 26 Phil., 233, that the intention and wishes of the testator, when clearly expressed in his will, constitute the fixed law of interpretation, and all questions raised at the trial, relative to its execution and fulfillment, must be settled in accordance therewith, following the plain and literal meaning of the testator's words, unless it clearly appears that his intention was otherwise. The same rule is adopted by the Supreme Court of Spain (TS. Sent. 20 Marzo 1918; 28 Mayo 1918; 30 Abril 1913; 16 Enero 1915; 23 Oct. 1925).

La voluntad del testador, clara, precisa y constantemente expresada al ordenar su ultimo voluntad, es ley unica, imperativa y obligatoria que han de obedecer y cumplir fieldmente albaceas, legatarios y heredera, hoy sus sucesores, sin que esa voluntad patente, que no ha menester de interpretaciones, pues no ofrece la menor duda, pueda sustituirse, pues no ofrece la menor duda, pueda sustituirse por ningun otro criterio de alguna de los interesados, ni tampoco por el judicial. (Tribunal Supremo of Spain, Sent. 20 March 1918) .

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

PREMISES CONSIDERED, the decision appealed from is reversed, and the appellant Leonor Villaflor Vda. de VILLANUEVA is declared entitled to the ownership and fruits of the properties described in

clause 7 of the will or testament, from the date of the death of Doña Fausta Nepomuceno. The records are ordered remanded to the court of origin for liquidation, accounting and further proceedings conformably to this decision. Costs against the Administrator-appellee.

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

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-14070             March 29, 1961

MARIA GERVACIO BLAS, MANUEL GERVACIO BLAS, LEONCIO GERVACIO BLAS and LODA GERVACIO BLAS, plaintiffs-appellants, vs.ROSALINA SANTOS, in her capacity as Special Administratrix of the Estate of the deceased MAXIMA SANTOS VDA. DE BLAS, in Sp. Proc. No. 2524, Court of First Instance of Rizal, defendants-appellants. MARTA GERVACIO BLAS and DR. JOSE CHIVI, defendants-appellants.

Teofilo Sison and Nicanor Sison for plaintiffs-appellants.De los Santos, Caluag, Pascal and Felizardo for defendants-appellees.

LABRADOR, J.:

This action was instituted by plaintiffs against the administration of the estate of Maxima Santos, to secure a judicial declaration that one-half of the properties left by Maxima Santos Vda. de Blas, the greater bulk of which are set forth and described in the project of partition presented in the proceedings for the administration of the estate of the deceased Simeon Blas, had been promised by the deceased Maxima Santos to be delivered upon her death and in her will to the plaintiffs, and requesting that the said properties so promised be adjudicated to the plaintiffs. The complaint also prays for actual damages in the amount of P50,000. (Record on Appeal, pp. 1-65.) The alleged promise of the deceased Maxima Santos is contained in a document executed by Maxima Santos on December 26, 1936 attached to the complaint as Annex "H" and introduced at the trial as Exhibit "A". (Ibid., pp. 258-259.) The complaint also alleges that the plaintiffs are entitled to inherit certain properties enumerated in paragraph 3 thereof, situated in Malabon, Rizal and Obando, Bulacan, but which properties have already been in included in the inventory of the estate of the deceased Simeon Blas and evidently partitioned and conveyed to his heirs in the proceedings for the administration of his (Simeon Blas) estate.

Defendant, who is the administratrix of the estate of the deceased Maxima Santos Vda. de Blas, filed an answer with a counterclaim, and later, an amended answer and a counterclaim. The said amended answer admits the allegations of the complaint as to her capacity as administratrix the death of Simeon Blas on January 3, 1937; the fact that Simeon Blas and Marta Cruz begot three children only one of whom, namely, Eulalio Blas, left legitimate descendants; that Simeon Blas contracted a second marriage with Maxima Santos on June 28, 1898. She denies for lack of sufficient information and belief, knowledge edge of the first marriage of Simeon Blas to Marta Cruz, the averment that Simeon Blas and Marta Cruz acquired properties situated in Obando, Bulacan, that said properties were utilized as capital, etc. As special defenses, she alleges that the properties of the spouses Blas and Santos had been settled and liquidated in the project of partition of the estate of said Simeon Blas; that

pursuant to the project of partition, plaintiffs and some defendants had already received the respective properties adjudicated to them; that the plaintiffs and the defendants Marta Geracio and Jose Chivi are estopped from impugning the validity of the project of partition of the estate of the deceased Simeon Blas and from questioning the ownership in the properties conveyed in the project of partition to Maxima Santos as her own exclusive property; that the testament executed by Maxima Santos is valid, the plain plaintiffs having no right to recover any portion of Maxima Santos' estate now under administration by the court. A counterclaim for the amount of P50,000 as damages is also included in the complaint, as also a cross-claim against Marta Gervacio Blas and Jose Chivi.

Trial of the case was Conducted and, thereafter, the court, Hon. Gustave Victoriano, presiding, rendered judgment dismissing the complaint, with costs against plaintiff, and dismissing also the counterclaim and cross-claim decision ,the plaintiffs filed by the defendants. From this district have appealed to this Court.

The facts essential to an understanding of the issues involved in the case may be briefly summarized as follows: Simeon Blas contracted a first marriage with Marta Cruz sometime before 1898. They had three children, only one of whom, Eulalio, left children, namely, Maria Gervacio Blas, one of the plaintiffs, Marta Gervacio Blas, one of the defendants, and Lazaro Gervacio Blas. Lazaro died in 1950, and is survived by three legitimate children who are plaintiffs herein, namely, Manuel Gervacio Blas, Leoncio Gervacio Blas and Loida Gervacio Blas. Marta Cruz died in 1898, and the following year, Simeon Blas contracted a second marriage with Maxima Santos. At the time of this second marriage, no liquidation of the properties required by Simeon Blas and Marta Cruz was made. Three of the properties left are fishponds located in Obando, Bulacan. Maxima Santos does not appear to have apported properties to her marriage with Simeon Blas.

On December 26, 1936, only over a week before over a week before his death on January 9, 1937, Simeon Blas executed a last will and testament. In the said testament Simeon Blas makes the following declarations:

I

2. Sa panahon ng aking pangalawang asawa, MAXIMA SANTOS DE BLAS, ay nagkaroon ako at nakatipon ng mga kayamanan (bienes) at pag-aari (propriedades) na ang lahat ng lupa, palaisdaan at iba pang pag-aari ay umaabot sa halagang ANIM NA RAAN PITONG PU'T WALONG DAAN LIBO WALONG DAAN WALONG PUNG PISO (678,880-00) sang-ayon sa mga halaga sa amillarimento (valor Amillarado.)

II

1. Ang kalahati ng lahat ng aming pag-aari, matapos mabayaran ang lahat ng aking o aming pag-kakautang na mag-asawa, kung mayroon man, yayamang ang lahat ng ito ay kita sa loob ng matrimonio (bienes ganaciales) ay bahagi ng para sa aking asawa, MAXIMA SANTOS DE BLAS, sang-ayon sa batas. (Record on Appeal, pp. 250-251.)

The above testamentary provisions may be translated as follows:

I

2. During my second marriage with Maxima Santos de Blas, I possessed and acquired wealth and properties, consisting of lands, fishponds and other kinds of properties, the total assessed value of which reached the amount P678,880.00.

II

1. One-half of our properties, after the payment of my and our indebtedness, all these properties having been acquired during marriage (conjugal properties), constitutes the share of my wife Maxima Santos de Blas, according to the law.

At the time of the execution of said will, Andres Pascual a son-in-law of the testator, and Avelina Pascual and others, were present. Andres Pascual had married a descendant by the first marriage. The will was prepared by Andres Pascual, with the help of his nephew Avelino Pascual. The testator asked Andres Pascual to prepare a document which was presented in court as Exhibit "A", thus:

Q — Was there anybody who asked you to prepare this document?

A — Don Simeon Blas asked me to prepare this document (referring to Exhibit "A"), (t.s.n., Sarmiento to, P. 24).

The reason why the testator ordered the preparation of Exhibit "A" was because the properties that the testator had acquired during his first marriage with Marta Cruz had not been liquidated and were not separated from those acquired during the second marriage. Pascual's testimony is as follows:

Q — To whom do you refer with the word "they"?

A — Simeon Blas and his first wife, Marta Cruz. When Marta Cruz died they had not made a liquidation of their conjugal properties and so all those properties were included all in the assets of the second marriage, and that is the reason why this document was prepared. (t.s.n., Sarmiento, p. 36.)

The above testimony is fully corroborated by that of Leoncio Gervacio, son-in-law of Simeon Blas.

Q — Please state to the Court?

A — My children were claiming from their grandfather Simeon Blas the properties left by their grandmother Marta Cruz in the year 1936.

Q — And what happened with that claim of your children against Simeon Blas regarding the assets or properties of the first marriage that were left after the death of Marta Cruz in 1936?

A — The claim was not pushed through because they reached into an agreement whereby the parties Simeon Blas Maxima Santos, Maria Gervacio Bias, Marta Gervacio Blas and Lazaro Gervacio Blas agreed that Simeon Blas and Maxima Blas will give one-half of the estate of Simeon Blas. (t.s.n., Sarmiento, pp. 143-144).

The document which was thus prepared and which is marked as Exhibit "A" reads in Tagalog, thus:

MAUNAWA NG SINO MANG MAKABABASA:

Na akong si MAXIMA SANTOS DE BLAS, nasa hustong gulang, kasal kay SIMEON BLAS, taga bayan ng Malabon, Rizal, Philippines, sa pamamagitan ng kasulatang ito ay malaya kong ipinahahayag:

Na aking nabasa at naunawa ang testamento at huling kalooban na nilagdaan ng aking asawa, SIMEON BLAS, at ipinahahayag ko sa ilalim ng aking karangalan at sa harap ng aking asawa na igagalang at pagpipitaganan ang lahat at bawa't isang bahagi ng nabanggit na testamento at ipinangangako ko pa sa pamamagitan ng

kasulatang ito na ang lahat ng maiiwang pag-aari at kayamanan naming mag-asawa, na nauukol at bahaging para sa akin sa paggawa ko naman ng aking testamento ay ipagkakaloob ko ang kalahati (½) sa mga herederos at legatarios o pinamamanahan ng aking nabanggit na asawa, SIMEON BLAS, sa kaniyang testamento, na ako'y makapipili o makahihirang na kahit kangino sa kanila ng aking pagbibigyan at pamamanahan sang-ayon sa paggalang, paglilingkod, at pakikisama ng gagawin sa akin.

SA KATUNAYAN NG LAHAT NG ITO ay nilagdaan ko ang kasulatang ito ngayon ika 26 ng Diciembre ng taong 1936, dito sa San Francisco del Monte, San Juan, Rizal, Philippines. (Exh. "A", pp. 29-30 — Appellant's brief).

(Fdo.) MAXIMA SANTOS DE BLAS

and which, translated into English, reads as follows:

KNOW ALL MEN BY THESE PRESENTS:

That I MAXIMA SANTOS DE BLAS, of legal age, married to SIMEON BLAS, resident of Malabon, Rizal, Philippines, voluntarily state:

That I have read and knew the contents of the will signed by my husband, SIMEON BLAS, (2) and I promise on my word of honor in the presence of my husband that I will respect and obey all and every disposition of said will (3) and furthermore, I promise in this document that all the properties my husband and I will leave, the portion and share corresponding to me when I make my will, I will give one-half (½) to the heirs and legatees or the beneficiaries named in the will of my husband, (4) and that I can select or choose any of them, to whom I will

give depending upon the respect, service and treatment accorded to me.

IN WITNESS WHEREOF, I signed this document this 26th day of December, 1936 at San Francisco del Monte, San Juan, Rizal, Philippines. (Exh. "A", pp. 30-31, Appellant's brief).

(Sgd.) MAXIMA SANTOS DE BLAS

The court below held that said Exhibit "A" has not created any right in favor of plaintiffs which can serve as basis for the complaint; that neither can it be considered as a valid and enforceable contract for lack of consideration and because it deals with future inheritance. The court also declared that Exhibit "A" is not a will because it does not comply with the requisites for the execution of a will; nor could it be considered as a donation, etc.

Both the court below in its decision and the appellees in their brief before us, argue vehemently that the heirs of Simeon Blas and his wife Marta Cruz can no longer make any claim for the unliquidated conjugal properties acquired during said first marriage, because the same were already included in the mass of properties constituting the estate of the deceased Simeon Blas and in the adjudications made by virtue of his will, and that the action to recover the same has prescribed. This contention is correct. The descendants of Marta Cruz can no longer claim the conjugal properties that she and her husband may have required during their marriage although no liquidation of such properties and delivery thereof to the heirs of Marta Cruz have been made, no action to recover said propertied having been presented in the proceedings for the settlement of the estate of Simeon Blas.

But the principal basis for the plaintiffs' action in the case at bar is the document Exhibit "A". It is not disputed that this document was prepared at the instance of Simeon Blas for the reason that

the conjugal properties of me on Blas for the reason his first marriage had not been liquidated; that it was prepared at the same time as the will of Simeon Blas on December 26, 1936, at the instance of the latter himself. It is also not disputed that the document was signed by Maxima Santos and one copy thereof, which was presented in court as Exhibit "A", was kept by plaintiffs' witness Andres Pascual.

Plaintiffs-appellants argue before us that Exhibit "A" is both a trust agreement and a contract in the nature of a compromise to avoid litigation. Defendants-appellees, in answer, claim that it is neither a trust agreement nor a compromise a agreement. Considering that the properties of the first marriage of Simeon Blas had not been liquidated when Simeon Blas executed his will on December 26, 1936', and the further fact such properties where actually , and the further fact that included as conjugal properties acquired during the second marriage, we find, as contended by plaintiffs-appellants that the preparation and execution of Exhibit "A" was ordered by Simeon Blas evidently to prevent his heirs by his first marriage from contesting his will and demanding liquidation of the conjugal properties acquired during the first marriage, and an accounting of the fruits and proceeds thereof from the time of the death of his first wife.

Exhibit "A", therefore, appears to be the compromise defined in Article 1809 of the Civil Code of Spain, in force at the time of the execution of Exhibit "A", which provides as follows:

Compromise is a contract by which each of the parties in interest, by giving, promising, or retaining something avoids the provocation of a suitor terminates one which has already the provocation been instituted. (Emphasis supplied.)

Exhibit "A" states that the maker (Maxima Santos) had read and knew the contents of the will of her husband read and knew the contents of the will Simeon Blas — she was evidently referring to the declaration in the will(of Simeon Blas) that his properties are

conjugal properties and one-half thereof belongs to her (Maxima Santos) as her share of the conjugal assets under the law. The agreement or promise that Maxima Santos makes in Exhibit "A" is to hold one-half of her said share in the conjugal assets in trust for the heirs and legatees of her husband in his will, with the obligation of conveying the same to such of his heirs or legatees as she may choose in her last will and testament. It is to be noted that the conjugal properties referred to are those that were actually existing at that time, December 26, 1936. Simeon Blas died on January 9, 1937. On June 2, 1937, an inventory of the properties left by him, all considered conjugal, was submitted by Maxima Santos herself as administratrix of his estate. A list of said properties is found in Annex "E", the complete inventory submitted by Maxima Santos Vda. de Blas, is administratrix of the estate of her husband, dated March 10, 1939. The properties which were given to Maxima Santos as her share in the conjugal properties are also specified in the project of partition submitted by said Maxima Santos herself on March 14, 1939. (Record on Appeal, pp. 195-241.) Under Exhibit "A", therefore, Maxima Santos contracted the obligation and promised to give one-half of the above indicated properties to the heirs and legatees of Simeon Blas.

Counsel for the defendant-appellee claims Exhibit "A" is a worthless piece of paper because it is not a will nor a donation mortis causa nor a contract. As we have in indicated above, it is a compromise and at the same time a contract with a sufficient cause or consideration. It is also contended that it deals with future inheritance. We do not think that Exhibit "A" is a contract on future inheritance. it is an obligation or promise made by the maker to transmit one-half of her share in the conjugal properties acquired with her husband, which properties are stated or declared to be conjugal properties in the will of the husband. The conjugal properties were in existence at the time of the execution of Exhibit "A" on December 26, 1936. As a matter of fact, Maxima Santos included these properties in her inventory of her husband's estate of June 2, 1937. The promise does not refer to any properties that the maker would inherit upon the death of

her husband, because it is her share in the conjugal assets. That the kind of agreement or promise contained in Exhibit "A" is not void under Article 1271 of the old Civil Code, has been decided by the Supreme Court of Spain in its decision of October 8, 19154, thus:

Que si bien el art. 1271 del Codigo civil dispone que sobre la herenciafutura no se podra celebrar otros contratos que aquellos cuyo objecto seapracticar entre vivos la division de un caudal, conforme al articulo 1056, esta prohibicion noes aplicable al caso, porque la obligacion que contrajoel recurr en contrato privado de otorgar testamento e instituir heredera a su subrina de los bienes que adquirio en virtud de herencia, procedentes desu finada consorte que le quedasen sobrantes despues de pagar las deudas, y del ganacial que se expresa, asi como de reconocer, ademas, con alguna cosaa otros sobrinos, se refiere a bienes conocidos y determinados existentes cuando tal compromisi se otorgo, y no a la universalidad de una herencia que, sequn el art. 659 del citado Codigo civil, as determina a muerte, constituyendola todos los bienes, derechos y obligaciones que por ella no sehayan extinguido: ..." (Emphasis supplied.)

It will be noted that what is prohibited to be the subject matter of a contract under Article 1271 of the Civil Code is "future inheritance." To us future inheritance is any property or right not in existence or capable of determination at the time of the contract, that a person may in the future acquire by succession. The properties subject of the contract Exhibit "A" are well defined properties, existing at the time of the agreement, which Simeon Blas declares in his statement as belonging to his wife as her share in the conjugal partnership. Certainly his wife's actual share in the conjugal properties may not be considered as future inheritance because they were actually in existence at the time Exhibit "A" was executed.

The trial court held that the plaintiffs-appellants in the case at bar are concluded by the judgement rendered in the proceedings for the settlement of the estate of Simeon Blas for the reason that the properties left by him belonged to himself and his wife Maxima Santos; that the project of partition in the said case, adjudicating to Maxima Santos one-half as her share in the conjugal properties, is a bar to another action on the same subject matter, Maxima Santos having become absolute owner of the said properties adjudicated in her favor. As already adverted to above, these contentions would be correct if applied to the claim of the plaintiffs-appellants that said properties were acquired with the first wife of Simeon Blas, Marta Cruz. But the main ground upon which plaintiffs base their present action is the document Exhibit "A", already fully considered above. As this private document contains the express promise made by Maxima Santos to convey in her testament, upon her death, one-half of the conjugal properties she would receive as her share in the conjugal properties, the action to enforce the said promise did not arise until and after her death when it was found that she did not comply with her above-mentioned promise. (Art. 1969, old Civil Code.) The argument that the failure of the plaintiffs-appellants herein to oppose the project of partition in the settlement of the estate of Simeon Blas, especially that portion of the project which assigned to Maxima Santos one-half of all the conjugal properties bars their present action, is, therefore, devoid of merit. It may be added that plaintiffs-appellants did not question the validity of the project of partition precisely because of the promise made by Maxima Santos in the compromise Exhibit "A"; they acquised in the approval of said project of partition because they were relying on the promise made by Maxima Santos in Exhibit "A", that she would transmit one-half of the conjugal properties that she was going to receive as her share in the conjugal partnership upon her death and in her will, to the heirs and legatees of her husband Simeon Blas.

Neither can the claim of prescription be considered in favor of the defendants. The right of action arose at the time of the death of Maxima Santos on October 5,1956, when she failed to comply

with the promise made by her in Exhibit "A". The plaintiffs-appellants immediately presented this action on December 27, 1956, upon learning of such failure on the part of Maxima Santos to comply with said promise. This defense is, therefore, also without merit.

It is next contended by the defendant-appellee that Maxima Santos complied with her above-mentioned promise, — that Andres Pascual, Tomasa Avelino, Justo Garcia, Ludovico Pimpin and Marta Gervacio Blas were given substancial legacies in the will and testament of Maxima Santos. To determine whether she had actually complied with the promise made in Exhibit "A", there is herein set forth a list only of the fishponds and their respective areas as contained in the list of properties she acquired as her share in the conjugal partnership, which list includes, besides many ricelands as well as residential lots, thus:

31. Paco, Obando, Bulacan 5.8396 has.

32. Pangjolo, Obando 3.5857    "

34. Batang Pirasuan, Lubao, Pampanga 11.9515    "

35. Calangian, Lubao, Pampanga 30.2059    "

38. Bakuling, Lubao, Pampanga 215.4325    "

39. Bakuling, Lubao, Pampanga 8.3763    "

40. Bangkal, Sinubli 23.0730    "

41. Tagulod, 6.8692    "

44. Bangkal Pugad(a) 34.2779    "

(b) 51.7919    "

(c) 2.5202    "

45. Magtapat Bangkal, Lubao, Pampanga(a) 18.0024    "

(b 7.3265    "

)

(c) 53.5180 

46. Pinanganakan, Lubao, Pampanga 159.0078 

47. Emigdio Lingid, Lubao, Pampanga 34.5229 

48. Propios, Lubao, Pampanga 80.5382 

49. Batang Mabuanbuan, Sexmoan, Pampanga 43.3350 

50. Binatang Mabuanbuan, Sexmoan, Pampanga 3.5069 

51. Sapang Magtua, Sexmoan, Pampanga 56,8242 

52. Kay Limpin, Sexmoan, Pampanga 5.0130 

53. Calise Mabalumbum, Sexmoan, Pampanga 23.8935 

54. Messapinit Kineke, Sexmoan, Pampanga

(a) 5.2972  

(b) 5.9230 

(c) 1.4638 

(d) 1.4638 

(e) 2.8316 

(f) 10.4412 

(g) 3.9033 

(h) 11.9263 

(i) 6.0574 

55. Dalang, Banga, Sexmoan, Pampanga 23.3989 

62. Alaminos, Pangasinan 147.1242 

80. Mangasu Sexmoan, Pampanga 10.000    "

81. Don Tomas, Sexmoan, Pampanga 21.6435    "

82. Matikling, Lubao, Pampanga       16.0000     "

          Total area ............................... 1045.7863    "

                    (See Record on Record, pp. 195-241.)

In her will, Maxima Santos devised to Marta Gervacio Blas the 80-hectare fishpond situated in Lubao, Pampanga. The fishpond devised is evidently that designated as "Propios" in Lubao, Pampanga, item No. 8 in the list of properties adjudicated to her in the project of partition. (Record on Appeal, p. 215.) Considering that the total area of the fishponds amount to 1045.7863 hectares, the 80 hectares devised to Marta Gervacio Blas is not even one-tenth of the total area of the fishponds. Add to this the fact that in the will she imposed upon Marta Gervacio Blas de Chivi an existing obligation on said fishponds, namely, its lease in 1957 and the duty to pay out of the rentals thereof an obligation to the Rehabilitation Finance Corporation RFC (Ibid., pp. 262-263.) Angelina Blas was given only a lot of 150 square meters in Hulong Duhat, Malabon, Rizal, and Leony Blas, the sum of P300.00 (Ibid., p. 264.)

It is evident from a consideration of the above figures and facts that Maxima Santos did not comply with her obligation to devise one-half of her conjugal properties to the heirs and legatees of her husband. She does not state that she had complied with such obligation in her will. If she intended to comply therewith by giving some of the heirs of Simeon Blas the properties mentioned above, the most that can be considered in her favor is to deduct the value of said properties from the total amount of properties which she had undertaken to convey upon her death.

All the issues in the pleadings of the parties and in their respective briefs, have now been fully discussed and considered. Reiterating what we have stated above, we declare that by

Exhibit "A", a compromise to avoid litigation, Maxima Santos promised to devise to the heirs and legatees of her husband Simeon Blas, one-half of the properties she received as her share in the conjugal partnership of herself and her husband, which share is specified in the project of partition submitted by herself on March 14, 1939 in the settlement of the estate of her husband, and which is found on pages 195 to 240 of the record on appeal and on pages 27 to 46 of the project of partition, submitted by Maxima Santos herself before the Court of First Instance of Rizal in Civil Case No. 6707, entitled "Testamentaria del Finado Don Simeon Blas, Maxima Santos Vda. de Bias, Administradora"; and that she failed to comply with her aforementioned obligation. (Exhibit "A")

WHEREFORE, the judgment appealed from is hereby reversed and the defendant-appellee, administratrix of the estate of Maxima Santos, is ordered to convey and deliver one-half of the properties adjudicated o Maxima Santos as her share in the conjugal properties in said Civil Case No. 6707, entitled "Testamentaria del Finado Don Simeon Blas, Maxima Santos Vda. de Blas, Administradora", to the heirs and the legatees of her husband Simeon Blas. Considering that all said heirs and legatees, designated in the will of Simeon Blas as the persons for whose benefit Exhibit "A" had been executed, have not appeared in these proceedings, the record is hereby remanded to the court below, with instructions that, after the conveyance of the properties hereinabove ordered had been effected, the said heirs and legatees (of Simeon Blas) file adversary pleadings to determine the participation of each and every one of them in said properties. Costs against the defendant- appellee Rosalina Santos.

Padilla, Parades and Dizon, JJ., concur.Reyes, J.B.L. and Barrera, JJ., concur in a separate opinion.Bengzon, C.J., reserves his vote.Concepcion, J., took no part.

Separate Opinions

REYES, J.B.L., J., concurring:

I concur in the opinion of Mr. Justice Labrador, and would only add that the doctrine in the decision of 8 October 1915 of the Supreme Court of Spain, applied in the main opinion, is not a mere accident nor an isolated instance, but one of a series of decisions reaffirming the legal proposition therein laid down. Thus, the Presiding Justice Castan of the Spanish Tribunal Supremo, in volume 3 of his Treaties on Civil Law (1951 Edition, page 344, footnote 2), observes that:

(2) IA sentencia de 16 de mayo de 1940 declare que segun la doctrina sentada por el Tribunal Supremo en sua fallos de 8 de Octubre de 1915 y 26 de Octubre de 1926 y por la Direction de los Registros en au resolution de 19 de mayo de 1917, la prohibition contenida en el art. 1271 se refiere unica y exclusivamente a los paetos sobre la universalidad de una heren cia que, segun el art. 659, se determine a la muerte del cau sante constituyendola todos los bienes, derechos y obligaciones que por ella no se hayan extinguido y no al pacto sobre bienes conocidos y determinados, existentes cuando tal compromiso se otorgo, en el dominio del cedente.

And in a later decision of 25 April 1951, the Supreme Court of Spain once ore insisted on the rule that a successional agreement concerning property already owned by the grantor at the time the contract was perfected is not banned by, Article 1271 of the Spanish Civil Code according to Article 1847 of the Civil Code of the Philippines):

CONSIDERANDO: Que el tercer motive del recurso de doña M. G. G., y el sexto del formulado por doña D. G. G., hacen roferencia a la ultima de las tres cuestiones que son ob jato del debate en ambos recurso interpuestos esto es la dis cutida cesion que las hermanas senoras G. G., hoy recurrentes, hicieron a doña C. A. de la mitad de los bienes muebles e innuebles que recibiesen por herencia de doña M. P.,procedentes de la de doña M. A. P., antes N., consignada en documents privado de fecha 2 de noviembre de 1929, firmado y reconocida su autenticidad por las tres senoras interesa das, cuya validez y eficacia es objeto de la cuarta pieza de los presentee autos acumulados y si se examination con determiento el documento aludido y el acto que en el se consigna habra de advertirse de modo notorio que se halla afectado de vicio de nulidad porque su objeto son unos bienes que clara mente se petpresa que han de entrar en el patrimonio de las cendentes mediantes una transmission hereditaria, lo que conatituye el pacto sobre herencia futura prohibido por el parrafo segundo del articulo 1271 del Codigo Civil, ya que no se concreta sobre bienes conocido y determinados, existentes en el del cedents cuando el compromiso de otorgo, sino que se refiem a la universalidad de que habrian de adra la muerte del causante sentido en el que conforme a la jurisprudencia de esta Sala es de plena aplicacion la norma a tiva antes citada, y al no haberio asi entendido la Sala de instancia, ha incurrido en la infmccion de interpreter erro to y por ello ha hecho aplicacion de indebida de dicho precepto y precede la estimacion de los motivo que aprincipio se citan y que denuncian la estimada infraccion, produciendo la casacion de la sentencia recurrida en el extremo a que los dichos motives se refieren. (Sentencia 25 abril 1951) (Emphasis Supplied)

It can thus be seen that the constant authoritative in interpretation of the prohibition against agreements involving future inheritance

requires not only that a future succession be contemplated but also that the subject matter of the bargain should be either the universality or complex or mass of property owned by the grantor at the time of his death, or else an aliquot portion thereof. Castan, in his Treaties already mentioned, sums up the rulings in this wise:

Por otra parte, se ha de entender: 1. Que la cesion oenajenacion de los derechos hereditarios puede bacerse una vez falle cido el causante, aunque no se haya entrado en possession matetrial de los bienes 2. Que la prohibition legal se refiere solo a los contratos concluidos sobre la herencia misma o alguna de sus cuotas, no sobre objetos aislados que, eventualmente, hayan de adquirirse a virtud de la herencia.

It has been contended that the doctrine thus stated confuses future inheritance (herencia futura) with futureproperty (bienes futuros). This is a misapprehension. In construing the term "future inheritance" as the contingent universality or complex of property rights and obligations that are passed to the heirs upon the death of the grantor, the rule advocated merely correlates the prohibition against contracts over "future inheritance" with the definition of "inheritance" given in Article 659 of the Spanish Civil Code, which is now Article 776 of the Civil Code of the Philippines:

ART. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death.

The inheritance of a person may, and usually does, include not only property that he already owns at a given time, but also his future property, that is to say, the property that he may subsequently acquire. But it may include only future property whenever he should dispose of the present property before he dies. And future inheritance may include only property he already owns at any given moment, if he should thereafter acquire no

other property until his death. In any case, the inheritance or estate cons of the totality of and liabilities he holds at the time of his demise, and not what he at any other time. If the questioned contract envisages all or a fraction of that contingent mass, then it is a contract over herencia futurall otherwise it is not. The statutory prohibition, in other words, is not so much concerned with the process of transfer as with the subject matter of the bargain. It is addressed to "future inheritance", not "future succession".

Of course, it can be said that every single item of property that a man should hold at any given instant of his life may become a part of his inheritance if he keeps it long enough. But is that mere possibility (or even probability) sufficient to do upon a contract over an individual item of existing property the outlaw brand of "contract over future inheritance"? If it should ever be, then no agreement concerning present property can escape the legal ban. No donation inter vivos, no reversionary clause, no borrowing of money, and no alienation, not even a contract of sale (or other contract in praisenti for that matter), with or without deferred delivery, will avoid the reproach that it concerns or affects the grantor's "future inheritance". It is permissible to doubt whether the law ever contemplated the sweeping away of the entire contractual system so carefully regulated in the Code.

The restrictive interpretation given by the Spanish Supreme Court to the codal prohibition of agreements involving future inheritance is justified not only by the fact that the prohibition limits contractual freedom (and therefore, should not be given extensive interpretation), but also because there is no real or substantial difference between (1) an agreement whereby a person, for a valuable consideration, agrees to bequeath some of the property he already owns, and (2) a contract whereby he dispose of that property, subject to the condition that he will be entitled to its usufruct until the time he dies. The court has repeatedly sanctioned even donations inter vivoswherein the donor has reserved to elf the right to enjoy the donated property for the remainder of his days, and riders the actual transfer of on to the

time of his death (Guzman vs. Ibea 67 Phil. 633; Balagui vs Dongso, 53 Phil. 673; Laureta vs. Mata, 44 Phil. 668). Whatever objection is raised against the effects of the first kind of contracts can be made to apply to the second.

Mature reflection will show that where present (existing) property is the object of the bargain, all arguments brandished against Conventions over future succession (post mortem) are just as applicable to other contracts de praesenti with deferred execution, the validity of which has never been questioned. Thus, the loss of the power to bequeath the bargained property to persons of the grantor's choice, and the awakening of the grantee's desire for the early death of the grantor (the Roman "votum mortis captandae") in order to obtain prompt control of the contracted goods, occur in both cases. In truth, the latter ground would bar even a contract of life insurance in favor of a stated beneficiary. It may also be noted that since the later part of the nineteenth century, the civilists have recognized that the progress in social relations has rendered such objections obsolete (Puig Peña, Derecho Civil, Vol. V, part I, 613 et seq.).

But where the contract involves the universality of the estate that will be left at a person's death (the "herencia future" as understood by the Spanish Tribunal Supreno), there is another reason which I believe to be the true justification for the legal interdiction, and it is this: that if a man were to be allowed to bargain away all the property he expects to leave behind (i.e., his estate as a whole), he would practically remain without any incentive to practice thrift and frugality or to conserve and invest his earnings and property. He would then be irresistibly drawn to be a wasteful spend-thrift, a social parasite, without any regard for his future, because whatever he leaves belong to another by virtue of his contract. The disastrous effects upon family and society if such agreements were to be held binding can be readily imagined. Hence, the interpretation given to Article 1271 (now Art. 1347) by the Supreme Court of Spain appears amply supported by practical reasons, and there is no ground to deny its application.

Much emphasis has been placed on the provisions of the contract Exhibit "A" that the widow, Maxima Santos de Blas, would execute a testament in favor of the appellees. To me this is purely secondary, since it is merely the method selected by the parties for carrying out the widow's agreement to convey to the appellees the property in question without her losing its enjoyment during her natural life, and does not affect the substance or the validity of the transaction. To ensure the widow's possession of the property and the perception of its fruits while she was alive the means logically selected was to return it by will, since such a conveyance could only be operative after death. There might be a doubt as to the validity of this arrangement if the widows promise had been purely gratuitous, because then it could be argued that the promise involved a hybrid donation mortis causa yet irrevocable;1 but here the obligation to return is concededly irrevocable and supported by adequate consideration duly received in advance.

Since the agreement in the instant case did not refer to the future estate of the widow of Blas, but only to part of her present property at the time the contract was made; since the promise to retransfer one-half of her conjugal share was supported by adequate consideration as shown in the main decision; since the contract obviated protracted litigation and complicated accounting in settling the conjugal partnership of Blas and his first (deceased) wife; and since the testament that the widow promised to make was merely the mode chosen to perform the contract and carry out the promised devolution of the property, being thus of secondary importance, I can see no reason for declaring the entire arrangement violative of the legal interdiction of contracts over future inheritance, and disappoint the legitimate expectation held by the heirs of the first wife during all these years.

BARRERA, J., concurring:

It seems to me clear that the document Exhibit "A", basis of the action of the plaintiffs-appellants, refers specifically to and affects solely the share of the grantor Maxima Santos in the conjugal properties as determined and specified in the will of her husband Simeon Blas, whose provisions, which she expressly acknowledged to have read and understood, constitute the raison d'etre of her promise to deliver or convey, by will, one-half of that specific share to the heirs and legatees named in her husband's will (who are his heirs by his first marriage). Nowhere in the document Exhibit "A" is there reference, to hereditary estate that she herself would leave behind at the time of her own demise which legally would be her "future inheritance." For this reason, I believe the contractual obligation assumed by Maxima Santos in virtue of Exhibit "A" does not come within the prohibition of Article 1271 of the Spanish Civil Code, now Article 1347 of the Civil Code of the Philippines.

I, therefore, concur in the opinions of Justices Labrador and Reyes.

BAUTISTA ANGELO, J., dissenting:

While I agree with the theory that the document Exhibit "A" does not involve a contract on future inheritance but a promise made by Maxima Santos to transmit one-half of her share in the conjugal property acquired during her marriage to Simeon Blas to the heirs and legatees of the latter, I am however of the opinion that herein appellants have no cause of action because Maxima Santos has Substantially complied with her promise.

It should be noted that Maxima Santos' promise to transmit is predicated on the condition that she can freely choose and select from among the heirs and legatees of her husband those to whom she would like to give and bequeath depending on the

respect, service and companionship that they may render to her. Her commitment is not an absolute promise to give to all but only to whom she may choose and select. And here this promise has been substantially complied with.

Thus, it appears that Maxima Santos selected eight such heirs and legatees instituted in the will of her husband. Note that appellant Marta Gervacio Bias, who has given a legacy of only P38,000.00 in the will of Simeon Blas, who was given by her a legacy worth around P400,000.00, appellants Loida Gervacio Blas (or Luding Blas) and Leoncio (Leony) Gervacio Blas were given a legacy of P300.00 each every year to last during their lifetime; And Lorenzo Santos was given a legacy of two fishponds and one-tenth of the whole residuary estate. It may be stated that although appellant Maria Gervacio Blas was not given any legacy in Maxima Santos' will, yet her son Simeon Dungao was given a legacy of a residential land in Tonsuya, Malabon.

I, therefore, consider not in keeping with the nature of the pledge made by Maxima Santos the decision of the majority in ordering her administratrix to convey and deliver one-half of her share in the conjugal property to all the heirs and legatees of her husband Simeon Blas, because only such heirs and legatees are entitled to share in the property as may be selected by Maxima Santos, and this she has already done. For these reasons, I dissent.

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Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

 

G.R. No. 12099 October 30, 1997

MANUEL G. REYES, MILA G. REYES, DANILO G. REYES, LYN AGAPE, ESTEBANA GALOLO, and CELSA AGAPE, petitioners, vs.COURT OF APPEALS AND JULIO VIVARES, respondent.

 

TORRES, JR., J.:

Unless legally flawed, a testator's intention in his last will and testament is its "life and soul" which deserves reverential observance.

The controversy before us deals with such a case.

Petitioners Manuel G. Reyes, Mila G. Reyes, Danilo G. Reyes, Lyn Agape, Marites Agape, Estebana Galolo and Celsa Agape, the oppositors in Special Proceedings No. 112 for the probate of the will of Torcuato J. Reyes, assail in this petition for review the decision of the Court of Appeals 1 dated November 29, 1995, the dispositive portion of which reads:

Wherefore, premises considered, the judgment appealed from allowing or admitting the will of Torcuato J. Reyes to probate and directing the issuance of Letters Testamentary in favor of petition Julio A. Vivares as executor without bond is AFFIRMED but modified in that the declaration that paragraph II of the Torcuato Reyes' last will and testament, including subparagraphs (a) and (b) are null and void for being contrary to law is hereby SET ASIDE, said paragraph II and subparagraphs (a) and (b) are declared VALID. Except as above modified, the judgment appealed from is AFFIRMED.

SO ORDERED. 2

The antecedent facts:

On January 3, 1992, Torcuato J. Reyes executed his last will and testament declaring therein in part, to wit:

xxx xxx xxx

II. I give and bequeath to my wife Asuncion "Oning" R. Reyes the following properties to wit:

a. All my shares of our personal properties consisting among others of jewelries, coins, antiques, statues, tablewares, furnitures, fixtures and the building;

b. All my shares consisting of one half (1/2) or 50% of all the real estates I own in common with my brother Jose, situated in Municipalities of Mambajao, Mahinog, Guinsiliban, Sagay all in Camigiun; real estates in Lunao, Gingoog, Caamulan, Sugbongcogon, Boloc-Boloc, Kinoguitan, Balingoan, Sta. Ines, Talisay, all in the province of Misamis Oriental. 3

The will consisted of two pages and was signed by Torcuato Reyes in the presence of three witnesses: Antonio Veloso, Gloria Borromeo, and Soledad Gaputan. Private respondent Julio A. Vivares was designated the executor and in his default or incapacity, his son Roch Alan S. Vivares.

Reyes died on May 12, 1992 and on May 21, 1992, private respondent filed a petition for probate of the will before the Regional Trial Court of Mambajao, Camiguin. The petition was set for hearing and the order was published in the Mindanao Daily Post, a newspaper of general circulation, once a week for three

consecutive weeks. Notices were likewise sent to all the persons named in the petition.

On July 21, 1992, the recognized natural children of Torcuato Reyes with Estebana Galolo, namely Manuel, Mila, and Danilo all surnamed Reyes, and the deceased's natural children with Celsa Agape, namely Lyn and Marites Agape, filed an opposition with the following allegations: a) that the last will and testament of Reyes was not executed and attested in accordance with the formalities of law; and b) that Asuncion Reyes Ebarle exerted undue and improper influence upon the testator at the time of the execution of the will. The opposition further averred that Reyes was never married to and could never marry Asuncion Reyes, the woman he claimed to be his wife in the will, because the latter was already married to Lupo Ebarle who was still then alive and their marriage was never annulled. Thus, Asuncion can not be a compulsory heir for her open cohabitation with Reyes was violative of public morals.

On July 22, 1992, the trial court issued an order declaring that it had Acquired jurisdiction over the petition and, therefore, allowed the presentation of evidence. After the presentation of evidence and submission of the respective memoranda, the trial court issued its decision on April 23, 1993.

The trial court declared that the will was executed in accordance with the formalities prescribed by law. It, however, ruled that Asuncion Reyes, based on the testimonies of the witnesses, was never married to the deceased Reyes and, therefore, their relationship was an adulterous one.

Thus:

The admission in the will by the testator to the illicit relationship between him and ASUNCION REYES EBARLE who is somebody else's wife, is further bolstered, strengthened, and confirmed by

the direct testimonies of the petitioner himself and his two "attesting" witnesses during the trial.

In both cases, the common denominator is the immoral, meretrecious, adulterous and illicit relationship existing between the testator and the devisee prior to the death of the testator, which constituted the sole and primary consideration for the devise or legacy, thus making the will intrinsically invalid. 4

The will of Reyes was admitted to probate except for paragraph II (a) and (b) of the will which was declared null and void for being contrary to law and morals. Hence, Julio Vivares filed an appeal before the Court of Appeals with the allegation that the oppositors failed to present any competent evidence that Asuncion Reyes was legally married to another person during the period of her cohabitation with Torcuato Reyes.

On November 29, 1995, the Court of Appeals promulgated the assailed decision which affirmed the trial court's decision admitting the will for probate but with the modification that paragraph II including subparagraphs (a) and (b) were declared valid. The appellate court stated:

Considering that the oppositors never showed any competent, documentary or otherwise during the trial to show that Asuncion "Oning" Reyes' marriage to the testator was inexistent or void, either because of a pre-existing marriage or adulterous relationship, the trial court gravely erred in striking down paragraph II (a) and (b) of the subject Last Will and Testament, as void for being contrary to law and morals. Said declarations are not sufficient to destroy the presumption of marriage. Nor is it enough to

overcome the very declaration of the testator that Asuncion Reyes is his wife. 5

Dissatisfied with the decision of the Court of Appeals, the oppositors filed this petition for review.

Petitioners contend that the findings and conclusion of the Court of Appeals was contrary to law, public policy and evidence on record. Torcuato Reyes and Asuncion "Oning" Reyes were collateral relatives up to the fourth civil degree. Witness Gloria Borromeo testified that Oning Reyes was her cousin as her mother and the latter's father were sister and brother. They were also nieces of the late Torcuato Reyes. Thus, the purported marriage of the deceased Reyes and Oning Reyes was void ab initio as it was against public policy pursuant to Article 38 (1) of the Family Code. Petitioners further alleged that Oning Reyes was already married to Lupo Ebarle at the time she was cohabiting with the testator hence, she could never contract any valid marriage with the latter. Petitioners argued that the testimonies of the witnesses as well as the personal declaration of the testator, himself, were sufficient to destroy the presumption of marriage. To further support their contention, petitioners attached a copy of the marriage certificate of Asuncion Reyes and Lupo Ebarle. 6

The petition is devoid of merit.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. 7 Thus, the court merely inquires on its due execution, whether or not it complies with the formalities prescribed by law, and the testamentary capacity of the testator. It does not determine nor even by implication prejudge the validity or efficacy of the will's provisions. 8 The intrinsic validity is not considered since the consideration thereof usually comes only after the will has been proved

and allowed. There are, however, notable circumstances wherein the intrinsic validity was first determined as when the defect of the will is apparent on its face and the probate of the will may become a useless ceremony if it is intrinsically invalid. 9 The intrinsic validity of a will may be passed upon because "practical considerations" demanded it as when there is preterition of heirs or the testamentary provisions are of doubtful legality. 10 Where the parties agree that the intrinsic validity be first determined, the probate court may also do so. 11 Parenthetically, the rule on probate is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will. 12

The case at bar arose from the institution of the petition for the probate of the will of the late Torcuato Reyes. Perforce, the only issues to be settled in the said proceeding were: (1) whether or not the testator had animus testandi; (2) whether or not vices of consent attended the execution of the will; and (3) whether or not the formalities of the will had been complied with. Thus, the lower court was not asked to rule upon the intrinsic validity or efficacy of the provisions of the will. As a result, the declaration of the testator that Asuncion "Oning" Reyes was his wife did not have to be scrutinized during the probate proceedings. The propriety of the institution of Oning Reyes as one of the devisees/legatees already involved inquiry on the will's intrinsic validity and which need not be inquired upon by the probate court.

The lower court erroneously invoked the ruling in Nepomuceno vs. Court of Appeals (139 SCRA 206) in the instant case. In the case aforesaid, the testator himself, acknowledged his illicit relationship with the devisee, to wit:

Art. IV. That since 1952, I have been living, as man and wife, with one Sofia J. Nepomuceno, whom I declared and avow to be entitled to my love an [sic] affection, for all the things which she has done for me, now and in the past; that while Sofia J. Nepomuceno has with my full knowledge and consent, did comfort and represent myself as her own husband, in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage.

Thus, the very tenor of the will invalidates the legacy because the testator admitted he was disposing of the properties to a person with whom he had been living in concubinage. 13 To remand the case would only be a waste of time and money since the illegality or defect was already patent. This case is different from the Nepomuceno case. Testator Torcuato Reyes merely stated in his will that he was bequeathing some of his personal and real properties to his wife, Asuncion "Oning" Reyes. There was never an open admission of any illicit relationship. In the case of Nepomuceno, the testator admitted that he was already previously married and that he had an adulterous relationship with the devisee.

We agree with the Court of Appeals that the trial court relied on uncorroborated testimonial evidence that Asuncion Reyes was still married to another during the time she cohabited with the testator. The testimonies of the witnesses were merely hearsay and even uncertain as to the whereabouts or existence of Lupo Ebarle, the supposed husband of Asuncion. Thus:

The foregoing testimony cannot go against the declaration of the testator that Asuncion "Oning" Reyes is his wife. In Alvarado v. City Government of Tacloban (supra) the Supreme Court stated

that the declaration of the of the husband is competent evidence to show the fact of marriage.

Considering that the oppositors never showed any competent evidence, documentary or otherwise during the trial to show that Asuncion "Oning" Reyes' marriage to the testator was inexistent or void, either because of a pre-existing marriage or adulterous relationship, the trial court gravely erred in striking down paragraph II (a) and (b) of the subject Last Will and Testament, as void for being contrary to law and morals. Said declarations are not sufficient to destroy the presumption of marriage. Nor is it enough to overcome the very declaration of the testator that Asuncion Reyes is his wife. 14

In the elegant language of Justice Moreland written decades ago, hesaid —

A will is the testator speaking after death. Its provisions have substantially the same force and effect in the probate court as if the testator stood before the court in full life making the declarations by word of mouth as they appear in the will. That was the special purpose of the law in the creation of the instrument known as the last will and testament. Men wished to speak after they were dead and the law, by the creation of that instrument, permitted them to do so. . . . All doubts must be resolved in favor of the testator's having meant just what he said. (Santos vs. Manarang, 27 Phil. 209).

Petitioners tried to refute this conclusion of the Court of Appeals by presenting belatedly a copy of the marriage certificate of Asuncion Reyes and Lupo Ebarle. Their

failure to present the said certificate before the probate court to support their position that Asuncion Reyes had an existing marriage with Ebarle constituted a waiver and the same evidence can no longer be entertained on appeal, much less in this petition for review. This Court would not try the case anew or settle factual issues since its jurisdiction is confined to resolving questions of law which have been passed upon by the lower courts. The settled rule is that the factual findings of the appellate court will not be disturbed unless shown to be contrary to the evidence on the record, which petitioners have not shown in this case. 15

Considering the foregoing premises, we sustain the findings of the appellate court it appearing that it did not commit a reversible error in issuing the challenged decision.

ACCORDINGLY, decision appealed from dated November 29, 1995, is hereby AFFIRMED and the instant petition for review is DENIED for lack of merit.

SO ORDERED.

Regalado, Romero, Puno and Mendoza, JJ., concur.

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Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. L-62952 October 9, 1985

SOFIA J. NEPOMUCENO, petitioner, vs.THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA JUGO,respondents.

 

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside that portion of the decision of the respondent Court of Appeals (now intermediate Appellate Court) dated June 3, 1982, as amended by the resolution dated August 10, 1982, declaring as null and void the devise in favor of the petitioner and the resolution dated December 28, 1982 denying petitioner's motion for reconsideration.

Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by him at the end of the Will on page three and on the left margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in turn, affixed their signatures below the attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the presence of the testator and of each other and the Notary Public. The Will was acknowledged before the Notary Public Romeo Escareal by the testator and his three attesting witnesses.

In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole and only executor of his estate. It is clearly stated in the Will that the testator was legally married to a certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952, he had been estranged from his lawfully wedded wife and had been living with petitioner as husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the Justice

of the Peace. The testator devised to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his entire estate and the free portion thereof to herein petitioner. The Will reads in part:

Art. III. That I have the following legal heirs, namely: my aforementioned legal wife, Rufina Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo, whom I declare and admit to be legally and properly entitled to inherit from me; that while I have been estranged from my above-named wife for so many years, I cannot deny that I was legally married to her or that we have been separated up to the present for reasons and justifications known fully well by them:

Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J. Nepomuceno, whom I declare and avow to be entitled to my love and affection, for all the things which she has done for me, now and in the past; that while Sofia J. Nepomuceno has with my full knowledge and consent, did comport and represent myself as her own husband, in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage;

On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and asked for the issuance to her of letters testamentary.

On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition alleging inter alia that the execution of the Will was procured by undue and improper influence on the part of the petitioner; that at the time of the

execution of the Will, the testator was already very sick and that petitioner having admitted her living in concubinage with the testator, she is wanting in integrity and thus, letters testamentary should not be issued to her.

On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator admitted in his Will to cohabiting with the petitioner from December 1952 until his death on July 16, 1974, the Will's admission to probate will be an Idle exercise because on the face of the Will, the invalidity of its intrinsic provisions is evident.

The petitioner appealed to the respondent-appellate court.

On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal denying the probate of the will. The respondent court declared the Will to be valid except that the devise in favor of the petitioner is null and void pursuant to Article 739 in relation with Article 1028 of the Civil Code of the Philippines. The dispositive portion of the decision reads:

WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid except the devise in favor of the appellant which is declared null and void. The properties so devised are instead passed on in intestacy to the appellant in equal shares, without pronouncement as to cost.

On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of Clerical Error" praying that the word "appellant" in the last sentence of the dispositive portion of the decision be changed to "appellees" so as to read: "The properties so devised are instead passed on intestacy to the appellees in equal shares, without pronouncement as to costs." The motion was granted by the respondent court on August 10, 1982.

On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the respondent court in a resolution dated December 28, 1982.

The main issue raised by the petitioner is whether or not the respondent court acted in excess of its jurisdiction when after declaring the last Will and Testament of the deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of the testamentary provision in favor of herein petitioner.

The petitioner submits that the validity of the testamentary provision in her favor cannot be passed upon and decided in the probate proceedings but in some other proceedings because the only purpose of the probate of a Will is to establish conclusively as against everyone that a Will was executed with the formalities required by law and that the testator has the mental capacity to execute the same. The petitioner further contends that even if the provisions of paragraph 1 of Article 739 of the Civil Code of the Philippines were applicable, the declaration of its nullity could only be made by the proper court in a separate action brought by the legal wife for the specific purpose of obtaining a declaration of the nullity of the testamentary provision in the Will in favor of the person with whom the testator was allegedly guilty of adultery or concubinage.

The respondents on the other hand contend that the fact that the last Will and Testament itself expressly admits indubitably on its face the meretricious relationship between the testator and the petitioner and the fact that petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present contrary evidence, merits the application of the doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al.(G.R. No. L- 39247, June 27, 1975). Respondents also submit that the admission of the testator of the illicit relationship between him and the petitioner put in issue the legality of the devise. We agree with the respondents.

The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it went on to pass upon the intrinsic validity of the Will and declared the devise in favor of the petitioner null and void.

The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination and resolution of the extrinsic validity of the Will. The rule is expressed thus:

xxx xxx xxx

... 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. (Fernandez v. Dimagiba,21 SCRA 428)

The petition below being for the probate of a Will, the court's area of inquiry is limited to the extrinsic validity thereof. The testators testamentary capacity and the compliance with the formal requisites or solemnities prescribed by law are the only questions presented for the resolution of the court. Any inquiry into the intrinsic validity or efficacy of the provisions of the will or the legality of any devise or legacy is premature.

xxx xxx xxx

True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is one thing; the validity of the testamentary provisions is another. The first decides the execution of the document and the testamentary capacity of the testator; the second relates to

descent and distribution (Sumilang v. Ramagosa, 21 SCRA 1369)

xxx xxx xxx

To establish conclusively as against everyone, and once for all, the facts that a will was executed with the formalities required by law and that the testator was in a condition to make a will, is the only purpose of the proceedings under the new code for the probate of a will. (Sec. 625). The judgment in such proceedings determines and can determine nothing more. In them the court has no power to pass upon the validity of any provisions made in the will. It can not decide, for example, that a certain legacy is void and another one valid. ... (Castaneda v. Alemany, 3 Phil. 426)

The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the Will.

In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter how valid it may appear extrinsically, would be null and void. Separate or latter proceedings to determine the intrinsic validity of the testamentary provisions would be superfluous.

Even before establishing the formal validity of the will, the Court in Balanay .Jr. v. Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions.

Invoking "practical considerations", we stated:

The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring it void.

We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner's authorization) the trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been established. The probate of a will might become an Idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa L-23135, December 26, 1967, 21 SCRA 1369; Cacho v. Udan L-19996, April 30, 1965, 13 SCRA 693).

There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties are agreed that the Will of Martin Jugo was executed with all the formalities required by law and that the testator had the mental capacity to execute his Will. The petitioner states that she completely agrees with the respondent court when in resolving the question of whether or not the probate court correctly denied the probate of Martin Jugo's last Will and Testament, it ruled:

This being so, the will is declared validly drawn. (Page 4, Decision, Annex A of Petition.)

On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto.

The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary provision in favor of the petitioner as null and void.

We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught that appears in the record, in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result, waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in question. (Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable controversy crying for solution.

We see no useful purpose that would be served if we remand the nullified provision to the proper court in a separate action for that purpose simply because, in the probate of a will, the court does not ordinarily look into the intrinsic validity of its provisions.

Article 739 of the Civil Code provides:

The following donations shall be void:

(1) Those made between persons who were guilty of adultery or concubinage at the time of the donation;

(2) Those made between persons found guilty of the same criminal offense, in consideration thereof;

(3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office.

In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action.

Article 1028 of the Civil Code provides:

The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to testamentary provisions.

In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his legal wife from whom he had been estranged "for so many years." He also declared that respondents Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV, he stated that he had been living as man and wife with the petitioner since 1952. Testator Jugo declared that the petitioner was entitled to his love and affection. He stated that Nepomuceno represented Jugo as her own husband but "in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage.

There is no question from the records about the fact of a prior existing marriage when Martin Jugo executed his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in an ostensible marital relationship for 22 years until his death.

It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old while the woman was 48. Nepomuceno now contends that she acted in good faith for 22 years in the belief that she was legally married to the testator.

The records do not sustain a finding of innocence or good faith. As argued by the private respondents:

First. The last will and testament itself expressly admits indubitably on its face the meretricious relationship between the testator and petitioner, the devisee.

Second. Petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present contrary evidence.

In short, the parties themselves dueled on the intrinsic validity of the legacy given in the will to petitioner by the deceased testator at the start of the proceedings.

Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as man and wife, as already married, was an important and specific issue brought by the parties before the trial court, and passed upon by the Court of Appeals.

Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner who opted to present evidence on her alleged good faith in marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64).

Private respondents, naturally, presented evidence that would refute the testimony of petitioner on the point.

Sebastian Jugo, younger brother of the deceased testator, testified at length on the meretricious relationship of his brother and petitioner. (TSN of August 18,1975).

Clearly, the good faith of petitioner was by option of the parties made a decisive issue right at the inception of the case.

Confronted by the situation, the trial court had to make a ruling on the question.

When the court a quo held that the testator Martin Jugo and petitioner 'were deemed guilty of adultery or concubinage', it was a finding that petitioner was not the innocent woman she pretended to be.

xxx xxx xxx

3. If a review of the evidence must be made nonetheless, then private respondents respectfully offer the following analysis:

FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town in Tarlac where neither she nor the testator ever resided. If there was nothing to hide from, why the concealment' ? Of course, it maybe argued that the marriage of the deceased with private respondent Rufina Gomez was likewise done in secrecy. But it should be remembered that Rufina Gomez was already in the family way at that time

and it would seem that the parents of Martin Jugo were not in favor of the marriage so much so that an action in court was brought concerning the marriage. (Testimony of Sebastian Jugo, TSN of August 18, 1975, pp. 29-30)

SECOND: Petitioner was a sweetheart of the deceased testator when they were still both single. That would be in 1922 as Martin Jugo married respondent Rufina Gomez on November 29, 1923 (Exh. 3). Petitioner married the testator only on December 5, 1952. There was a space of about 30 years in between. During those 30 years, could it be believed that she did not even wonder why Martin Jugo did not marry her nor contact her anymore after November, 1923 - facts that should impel her to ask her groom before she married him in secrecy, especially so when she was already about 50 years old at the time of marriage.

THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself conclusive demonstration that she new that the man she had openly lived for 22 years as man and wife was a married man with already two children.

FOURTH: Having admitted that she knew the children of respondent Rufina Gomez, is it possible that she would not have asked Martin Jugo whether or not they were his illegitimate or legitimate children and by whom? That is un-Filipino.

FIFTH: Having often gone to Pasig to the residence of the parents of the deceased testator, is it possible that she would not have known that the mother of private respondent Oscar Jugo and

Carmelita Jugo was respondent Rufina Gomez, considering that the houses of the parents of Martin Jugo (where he had lived for many years) and that of respondent Rufina Gomez were just a few meters away?

Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the least, inherently improbable, for they are against the experience in common life and the ordinary instincts and promptings of human nature that a woman would not bother at all to ask the man she was going to marry whether or not he was already married to another, knowing that her groom had children. It would be a story that would strain human credulity to the limit if petitioner did not know that Martin Jugo was already a married man in view of the irrefutable fact that it was precisely his marriage to respondent Rufina Gomez that led petitioner to break off with the deceased during their younger years.

Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between persons who are living in adultery or concubinage. It is the donation which becomes void. The giver cannot give even assuming that the recipient may receive. The very wordings of the Will invalidate the legacy because the testator admitted he was disposing the properties to a person with whom he had been living in concubinage.

WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs.

SO ORDERED.

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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

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

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

MONTEMAYOR, J.:

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

During the hearing one of the attesting witnesses, the other two being dead, testified without contradiction that in his presence and in the presence of his co-witnesses, Father Sancho wrote out in longhand Exhibit "A" in Spanish which the testator spoke and understood; that he (testator) signed on he left hand margin of the

front page of each of the three folios or sheets of which the document is composed, and numbered the same with Arabic numerals, and finally signed his name at the end of his writing at the last page, all this, in the presence of the three attesting witnesses after telling that it was his last will and that the said three witnesses signed their names on the last page after the attestation clause in his presence and in the presence of each other. The oppositors did not submit any evidence.

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

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

numbered, and as to the three front pages, they were signed only by the testator.

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

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

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

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

What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new Civil Code which not allows holographic wills, like Exhibit "A" which provisions were invoked by the appellee-petitioner and applied by the lower court? But article 795 of this same new Civil Code expressly provides: "The validity of a will as to its form depends upon the observance of the law in force at the time it is made." The above provision is but an expression or statement of the weight of authority to the affect that the validity of a will is to be judged not by the law enforce at the time of the testator's death or at the time the supposed will is

presented in court for probate or when the petition is decided by the court but at the time the instrument was executed. One reason in support of the rule is that although the will operates upon and after the death of the testator, the wishes of the testator about the disposition of his estate among his heirs and among the legatees is given solemn expression at the time the will is executed, and in reality, the legacy or bequest then becomes a completed act. This ruling has been laid down by this court in the case of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should be followed.

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

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

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