Case #2

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-68053 May 7, 1990

LAURA ALVAREZ, FLORA ALVAREZ and RAYMUNDO

ALVAREZ, petitioners,
vs.
THE HONORABLE INTERMEDIATE APELLATE COURT and JESUS
YANES, ESTELITA YANES, ANTONIO YANES, ROSARIO YANES, and
ILUMINADO YANES, respondents.

Francisco G. Banzon for petitioner.

Renecio R. Espiritu for private respondents.

FERNAN, C.J.:

This is a petition for review on certiorari seeking the reversal of: (a) the
decision of the Fourth Civil Cases Division of the Intermediate Appellate
Court dated August 31, 1983 in AC-G.R. CV No. 56626 entitled "Jesus
Yanes et al. v. Dr. Rodolfo Siason et al." affirming the decision dated July 8,
1974 of the Court of First Instance of Negros Occidental insofar as it
ordered the petitioners to pay jointly and severally the private respondents
the sum of P20,000.00 representing the actual value of Lots Nos. 773-A
and 773-B of the cadastral survey of Murcia, Negros Occidental
and reversing the subject decision insofar as it awarded the sums of
P2,000.00, P5,000.00 and P2,000.00 as actual damages, moral damages
and attorney's fees, respectively and (b) the resolution of said appellate
court dated May 30, 1984, denying the motion for reconsideration of its
decision.
The real properties involved are two parcels of land identified as Lot 773-A
and Lot 773-B which were originally known as Lot 773 of the cadastral
survey of Murcia, Negros Occidental. Lot 773, with an area of 156,549
square meters, was registered in the name of the heirs of Aniceto Yanes
under Original Certificate of Title No. RO-4858 (8804) issued on October 9,
1917 by the Register of Deeds of Occidental Negros (Exh. A).

Aniceto Yanes was survived by his children, Rufino, Felipe and Teodora.
Herein private respondents, Estelita, Iluminado and Jesus, are the children
of Rufino who died in 1962 while the other private respondents, Antonio
and Rosario Yanes, are children of Felipe. Teodora was survived by her
child, Jovita (Jovito) Alib. 1 It is not clear why the latter is not included as a
party in this case.

Aniceto left his children Lots 773 and 823. Teodora cultivated only three
hectares of Lot 823 as she could not attend to the other portions of the two
lots which had a total area of around twenty-four hectares. The record does
not show whether the children of Felipe also cultivated some portions of the
lots but it is established that Rufino and his children left the province to
settle in other places as a result of the outbreak of World War II. According
to Estelita, from the "Japanese time up to peace time", they did not visit the
parcels of land in question but "after liberation", when her brother went
there to get their share of the sugar produced therein, he was informed that
Fortunato Santiago, Fuentebella (Puentevella) and Alvarez were in
possession of Lot 773. 2

It is on record that on May 19, 1938, Fortunato D. Santiago was issued

Transfer Certificate of Title No. RF 2694 (29797) covering Lot 773-A with
an area of 37,818 square meters. 3 TCT No. RF 2694 describes Lot 773-A
as a portion of Lot 773 of the cadastral survey of Murcia and as originally
registered under OCT No. 8804.

The bigger portion of Lot 773 with an area of 118,831 square meters was
also registered in the name of Fortunato D. Santiago on September 6, 1938
Under TCT No. RT-2695 (28192 ). 4 Said transfer certificate of title also
contains a certification to the effect that Lot 773-B was originally registered
under OCT No. 8804.

On May 30, 1955, Santiago sold Lots 773-A and 773-B to Monico B.
Fuentebella, Jr. in consideration of the sum of P7,000.00. 5 Consequently,
on February 20, 1956, TCT Nos. T-19291 and T-19292 were issued in
Fuentebella's name. 6

After Fuentebella's death and during the settlement of his estate, the
administratrix thereof (Arsenia R. Vda. de Fuentebella, his wife) filed in
Special Proceedings No. 4373 in the Court of First Instance of Negros
Occidental, a motion requesting authority to sell Lots 773-A and 773-
B. 7 By virtue of a court order granting said motion, 8 on March 24, 1958,
Arsenia Vda. de Fuentebella sold said lots for P6,000.00 to Rosendo
Alvarez. 9 Hence, on April 1, 1958 TCT Nos. T-23165 and T-23166
covering Lots 773-A and 773-B were respectively issued to Rosendo
Alvarez. 10

Two years later or on May 26, 1960, Teodora Yanes and the children of her
brother Rufino, namely, Estelita, Iluminado and Jesus, filed in the Court of
First Instance of Negros Occidental a complaint against Fortunato Santiago,
Arsenia Vda. de Fuentebella, Alvarez and the Register of Deeds of Negros
Occidental for the "return" of the ownership and possession of Lots 773
and 823. They also prayed that an accounting of the produce of the land
from 1944 up to the filing of the complaint be made by the defendants, that
after court approval of said accounting, the share or money equivalent due
the plaintiffs be delivered to them, and that defendants be ordered to pay
plaintiffs P500.00 as damages in the form of attorney's fees. 11

During the pendency in court of said case or on November 13, 1961,

Alvarez sold Lots 773-A, 773-B and another lot for P25,000.00 to Dr.
Rodolfo Siason. 12 Accordingly, TCT Nos. 30919 and 30920 were issued to
Siason, 13 who thereafter, declared the two lots in his name for assessment
purposes. 14

Meanwhile, on November 6, 1962, Jesus Yanes, in his own behalf and in

behalf of the other plaintiffs, and assisted by their counsel, filed a
manifestation in Civil Case No. 5022 stating that the therein plaintiffs
"renounce, forfeit and quitclaims (sic) any claim, monetary or otherwise,
against the defendant Arsenia Vda. de Fuentebella in connection with the
above-entitled case." 15

On October 11, 1963, a decision was rendered by the Court of First

Instance of Negros Occidental in Civil Case No. 5022, the dispositive
portion of which reads:
 WHEREFORE, judgment is rendered, ordering the defendant
Rosendo Alvarez to reconvey to the plaintiffs lots Nos. 773 and
823 of the Cadastral Survey of Murcia, Negros Occidental, now
covered by Transfer Certificates of Title Nos. T-23165 and T-
23166 in the name of said defendant, and thereafter to deliver
the possession of said lots to the plaintiffs. No special
pronouncement as to costs.

SO ORDERED. 16

It will be noted that the above-mentioned manifestation of Jesus Yanes was

not mentioned in the aforesaid decision.

However, execution of said decision proved unsuccessful with respect to

Lot 773. In his return of service dated October 20, 1965, the sheriff stated
that he discovered that Lot 773 had been subdivided into Lots 773-A and
773-B; that they were "in the name" of Rodolfo Siason who had purchased
them from Alvarez, and that Lot 773 could not be delivered to the plaintiffs
as Siason was "not a party per writ of execution." 17

The execution of the decision in Civil Case No. 5022 having met a
hindrance, herein private respondents (the Yaneses) filed on July 31, 1965,
in the Court of First Instance of Negros Occidental a petition for the
issuance of a new certificate of title and for a declaration of nullity of TCT
Nos. T-23165 and T-23166 issued to Rosendo Alvarez. 18 Thereafter, the
court required Rodolfo Siason to produce the certificates of title covering
Lots 773 and 823.

Expectedly, Siason filed a manifestation stating that he purchased Lots

773-A, 773-B and 658, not Lots 773 and 823, "in good faith and for a
valuable consideration without any knowledge of any lien or encumbrances
against said properties"; that the decision in the cadastral
proceeding 19 could not be enforced against him as he was not a party
thereto; and that the decision in Civil Case No. 5022 could neither be
enforced against him not only because he was not a party-litigant therein
but also because it had long become final and executory. 20 Finding said
manifestation to be well-founded, the cadastral court, in its order of
September 4, 1965, nullified its previous order requiring Siason to
surrender the certificates of title mentioned therein. 21
In 1968, the Yaneses filed an ex-parte motion for the issuance of an alias
writ of execution in Civil Case No. 5022. Siason opposed it. 22 In its order of
September 28, 1968 in Civil Case No. 5022, the lower court, noting that the
Yaneses had instituted another action for the recovery of the land in
question, ruled that at the judgment therein could not be enforced against
Siason as he was not a party in the case. 23

The action filed by the Yaneses on February 21, 1968 was for recovery of
real property with damages. 24 Named defendants therein were Dr. Rodolfo
Siason, Laura Alvarez, Flora Alvarez, Raymundo Alvarez and the Register
of Deeds of Negros Occidental. The Yaneses prayed for the cancellation of
TCT Nos. T-19291 and 19292 issued to Siason (sic) for being null and void;
the issuance of a new certificate of title in the name of the Yaneses "in
accordance with the sheriffs return of service dated October 20, 1965;"
Siason's delivery of possession of Lot 773 to the Yaneses; and if, delivery
thereof could not be effected, or, if the issuance of a new title could not be
made, that the Alvarez and Siason jointly and severally pay the Yaneses
the sum of P45,000.00. They also prayed that Siason render an accounting
of the fruits of Lot 773 from November 13, 1961 until the filing of the
complaint; and that the defendants jointly and severally pay the Yaneses
moral damages of P20,000.00 and exemplary damages of P10,000.00 plus
attorney's fees of P4, 000.00. 25

In his answer to the complaint, Siason alleged that the validity of his titles to
Lots 773-A and 773-B, having been passed upon by the court in its order of
September 4, 1965, had become res judicata and the Yaneses were
estopped from questioning said order. 26 On their part, the Alvarez stated in
their answer that the Yaneses' cause of action had been "barred by res
judicata, statute of limitation and estoppel." 27

In its decision of July 8, 1974, the lower court found that Rodolfo Siason,
who purchased the properties in question thru an agent as he was then in
Mexico pursuing further medical studies, was a buyer in good faith for a
valuable consideration. Although the Yaneses were negligent in their failure
to place a notice of lis pendens "before the Register of Deeds of Negros
Occidental in order to protect their rights over the property in question" in
Civil Case No. 5022, equity demanded that they recover the actual value of
the land because the sale thereof executed between Alvarez and Siason
was without court approval. 28 The dispositive portion of the decision states:
 IN VIEW OF THE FOREGOING CONSIDERATION, judgment
is hereby rendered in the following manner:

A. The case against the defendant Dr. Rodolfo Siason and the
Register of Deeds are (sic) hereby dismmissed,

B. The defendants, Laura, Flora and Raymundo, all surnamed

Alvarez being the legitimate children of the deceased Rosendo
Alvarez are hereby ordered to pay jointly and severally the
plaintiffs the sum of P20,000.00 representing the actual value of
Lots Nos. 773-A and 773-B of Murcia Cadastre, Negros
Occidental; the sum of P2,000.00 as actual damages suffered
by the plaintiff; the sum of P5,000.00 representing moral
damages and the sum of P2.000 as attorney's fees, all with
legal rate of interest from date of the filing of this complaint up
to final payment.

C. The cross-claim filed by the defendant Dr. Rodolfo Siason

against the defendants, Laura, Flora and Raymundo, all
surnamed Alvarez is hereby dismissed.

D. Defendants, Laura, Flora and Raymundo, all surnamed

Alvarez are hereby ordered to pay the costs of this suit.

SO ORDERED. 29

The Alvarez appealed to the then Intermediate Appellate Court which in its
decision of August 31, 1983 30 affirmed the lower court's decision "insofar
as it ordered defendants-appellants to pay jointly and severally the
plaintiffs-appellees the sum of P20,000.00 representing the actual value of
Lots Nos. 773-A and 773-B of the cadastral survey of Murcia, Negros
Occidental, and is reversed insofar as it awarded the sums of P2,000.00,
P5,000.00 and P2,000.00 as actual damages, moral damages and
attorney's fees, respectively." 31 The dispositive portion of said decision
reads:

WHEREFORE, the decision appealed from is affirmed insofar

as it ordered defendants-appellants to pay jointly and severally
the plaintiffs- appellees the sum of P20,000.00 representing the
actual value of Lots Nos. 773-A and 773-B of the cadastral
survey of Murcia, Negros Occidental, and is reversed insofar as
 it awarded the sums of P2,000.00, P5,000.00 and P2,000.00 as
actual damages, moral damages and attorney's fees,
respectively. No costs.

SO ORDERED. 32

Finding no cogent reason to grant appellants motion for reconsideration,

said appellate court denied the same.

Hence, the instant petition. ln their memorandum petitioners raised the

following issues:

1. Whethere or not the defense of prescription and estoppel

had been timely and properly invoked and raised by the
petitioners in the lower court.

2. Whether or not the cause and/or causes of action of the

private respondents, if ever there are any, as alleged in their
complaint dated February 21, 1968 which has been docketed in
the trial court as Civil Case No. 8474 supra, are forever barred
by statute of limitation and/or prescription of action and
estoppel.

3. Whether or not the late Rosendo Alvarez, a defendant in Civil

Case No. 5022, supra and father of the petitioners become a
privy and/or party to the waiver (Exhibit 4-defendant Siason) in
Civil Case No. 8474, supra where the private respondents had
unqualifiedly and absolutely waived, renounced and quitclaimed
all their alleged rights and interests, if ever there is any, on Lots
Nos. 773-A and 773-B of Murcia Cadastre as appearing in their
written manifestation dated November 6, 1962 (Exhibits "4"
Siason) which had not been controverted or even impliedly or
indirectly denied by them.

4. Whether or not the liability or liabilities of Rosendo Alvarez

arising from the sale of Lots Nos. 773-A and 773-B of Murcia
Cadastre to Dr. Rodolfo Siason, if ever there is any, could be
legally passed or transmitted by operations (sic) of law to the
petitioners without violation of law and due process . 33

The petition is devoid of merit.

As correctly ruled by the Court of Appeals, it is powerless and for that
matter so is the Supreme Court, to review the decision in Civil Case No.
5022 ordering Alvarez to reconvey the lots in dispute to herein private
respondents. Said decision had long become final and executory and with
the possible exception of Dr. Siason, who was not a party to said case, the
decision in Civil Case No. 5022 is the law of the case between the parties
thereto. It ended when Alvarez or his heirs failed to appeal the decision
against them. 34

Thus, it is axiomatic that when a right or fact has been judicially tried and
determined by a court of competent jurisdiction, so long as it remains
unreversed, it should be conclusive upon the parties and those in privity
with them in law or estate. 35 As consistently ruled by this Court, every
litigation must come to an end. Access to the court is guaranteed. But there
must be a limit to it. Once a litigant's right has been adjudicated in a valid
final judgment of a competent court, he should not be granted an unbridled
license to return for another try. The prevailing party should not be
harassed by subsequent suits. For, if endless litigation were to be allowed,
unscrupulous litigations will multiply in number to the detriment of the
administration of justice. 36

There is no dispute that the rights of the Yaneses to the properties in

question have been finally adjudicated in Civil Case No. 5022. As found by
the lower court, from the uncontroverted evidence presented, the Yaneses
have been illegally deprived of ownership and possession of the lots in
question. 37 In fact, Civil Case No. 8474 now under review, arose from the
failure to execute Civil Case No. 5022, as subject lots can no longer be
reconveyed to private respondents Yaneses, the same having been sold
during the pendency of the case by the petitioners' father to Dr. Siason who
did not know about the controversy, there being no lis pendens annotated
on the titles. Hence, it was also settled beyond question that Dr. Siason is a
purchaser in good faith.

Under the circumstances, the trial court did not annul the sale executed by
Alvarez in favor of Dr. Siason on November 11, 1961 but in fact sustained it.
The trial court ordered the heirs of Rosendo Alvarez who lost in Civil Case
No. 5022 to pay the plaintiffs (private respondents herein) the amount of
P20,000.00 representing the actual value of the subdivided lots in dispute.
It did not order defendant Siason to pay said amount. 38
As to the propriety of the present case, it has long been established that
the sole remedy of the landowner whose property has been wrongfully or
erroneously registered in another's name is to bring an ordinary action in
the ordinary court of justice for reconveyance or, if the property has passed
into the hands of an innocent purchaser for value, for damages. 39 "It is one
thing to protect an innocent third party; it is entirely a different matter and
one devoid of justification if deceit would be rewarded by allowing the
perpetrator to enjoy the fruits of his nefarious decided As clearly revealed
by the undeviating line of decisions coming from this Court, such an
undesirable eventuality is precisely sought to be guarded against." 40

The issue on the right to the properties in litigation having been finally
adjudicated in Civil Case No. 5022 in favor of private respondents, it cannot
now be reopened in the instant case on the pretext that the defenses of
prescription and estoppel have not been properly considered by the lower
court. Petitioners could have appealed in the former case but they did not.
They have therefore foreclosed their rights, if any, and they cannot now be
heard to complain in another case in order to defeat the enforcement of a
judgment which has longing become final and executory.

Petitioners further contend that the liability arising from the sale of Lots No.
773-A and 773-B made by Rosendo Alvarez to Dr. Rodolfo Siason should
be the sole liability of the late Rosendo Alvarez or of his estate, after his
death.

Such contention is untenable for it overlooks the doctrine obtaining in this

jurisdiction on the general transmissibility of the rights and obligations of
the deceased to his legitimate children and heirs. Thus, the pertinent
provisions of the Civil Code state:

Art. 774. Succession is a mode of acquisition by virtue of which

the property, rights and obligations to the extent of the value of
the inheritance, of a person are transmitted through his death to
another or others either by his will or by operation of law.

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

Art. 1311. Contract stake effect only between the parties, their
assigns and heirs except in case where the rights and
obligations arising from the contract are not transmissible by
 their nature, or by stipulation or by provision of law. The heir is
not liable beyond the value of the property received from the
decedent.

As explained by this Court through Associate Justice J.B.L. Reyes in the

case of Estate of Hemady vs. Luzon Surety Co., Inc. 41

The binding effect of contracts upon the heirs of the deceased

party is not altered by the provision of our Rules of Court that
money debts of a deceased must be liquidated and paid from
his estate before the residue is distributed among said heirs
(Rule 89). The reason is that whatever payment is thus made
from the state is ultimately a payment by the heirs or
distributees, since the amount of the paid claim in fact
diminishes or reduces the shares that the heirs would have
been entitled to receive.

Under our law, therefore. the general rule is that a party's

contractual rights and obligations are transmissible to the
successors.

The rule is a consequence of the progressive

"depersonalization" of patrimonial rights and duties that, as
observed by Victorio Polacco has characterized the history of
these institutions. From the Roman concept of a relation from
person to person, the obligation has evolved into a relation from
patrimony to patrimony with the persons occupying only a
representative position, barring those rare cases where the
obligation is strictly personal, i.e., is contracted intuitu personae,
in consideration of its performance by a specific person and by
no other.

xxx xxx xxx

Petitioners being the heirs of the late Rosendo Alvarez, they cannot escape
the legal consequences of their father's transaction, which gave rise to the
present claim for damages. That petitioners did not inherit the property
involved herein is of no moment because by legal fiction, the monetary
equivalent thereof devolved into the mass of their father's hereditary estate,
and we have ruled that the hereditary assets are always liable in their
totality for the payment of the debts of the estate. 42
It must, however, be made clear that petitioners are liable only to the extent
of the value of their inheritance. With this clarification and considering
petitioners' admission that there are other properties left by the deceased
which are sufficient to cover the amount adjudged in favor of private
respondents, we see no cogent reason to disturb the findings and
conclusions of the Court of Appeals.

WHEREFORE, subject to the clarification herein above stated, the assailed

decision of the Court of Appeals is hereby AFFIRMED. Costs against
petitioners.

SO ORDERED.

Gutierrez, Jr., Feliciano and Cortes, JJ., concur.

Bidin J., took no part.

Case #3

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-4963 January 29, 1953

MARIA USON, plaintiff-appellee,

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

Priscilo Evangelista for appellee.

Brigido G. Estrada for appellant.

BAUTISTA ANGELO, J.:

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

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

Defendants in their answer set up as special defense that on February 21,

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

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

There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of

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

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

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

There is no merit in this claim. Article 2253 above referred to provides

indeed that rights which are declared for the first time shall have retroactive
effect even though the event which gave rise to them may have occurred
under the former legislation, but this is so only when the new rights do not
prejudice any vested or acquired right of the same origin. Thus, said article
provides that "if a right should be declared for the first time in this Code, it
shall be effective at once, even though the act or event which gives rise
thereto may have been done or may have occurred under the prior
legislation, provided said new right does not prejudice or impair any vested
or acquired right, of the same origin." As already stated in the early part of
this decision, the right of ownership of Maria Uson over the lands in
question became vested in 1945 upon the death of her late husband and
this is so because of the imperative provision of the law which commands
that the rights to succession are transmitted from the moment of death
(Article 657, old Civil Code). The new right recognized by the new Civil
Code in favor of the illegitimate children of the deceased cannot, therefore,
be asserted to the impairment of the vested right of Maria Uson over the
lands in dispute.

As regards the claim that Maria Uson, while her deceased husband was
lying in state, in a gesture of pity or compassion, agreed to assign the lands
in question to the minor children for the reason that they were acquired
while the deceased was living with their mother and Maria Uson wanted to
assuage somewhat the wrong she has done to them, this much can be said;
apart from the fact that this claim is disputed, we are of the opinion that
said assignment, if any, partakes of the nature of a donation of real
property, inasmuch as it involves no material consideration, and in order
that it may be valid it shall be made in a public document and must be
accepted either in the same document or in a separate one (Article 633, old
Civil Code). Inasmuch as this essential formality has not been followed, it
results that the alleged assignment or donation has no valid effect.

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

Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo

and Labrador, JJ., concur.

Case #4

epublic of the Philippines

SUPREME COURT
Manila

EN BANC

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

TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA,

administrator-appellee; JOSE DE BORJA, as administrator,
CAYETANO DE BORJA, MATILDE DE BORJA and CRISANTO DE
BORJA (deceased) as Children of Josefa Tangco, appellees,
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate
Estate of Francisco de Borja, appellant. .
G.R. No L-28568 August 18, 1972

TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O.

VDA. DE DE BORJA, special Administratrix appellee,
vs.
JOSE DE BORJA, oppositor-appellant.

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

TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate

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

L-28040

Pelaez, Jalandoni & Jamir for administrator-appellee.

Quiogue & Quiogue for appellee Matilde de Borja.

Andres Matias for appellee Cayetano de Borja.

Sevilla & Aquino for appellant.

L-28568

Sevilla & Aquino for special administratrix-appellee.

Pelaez, Jalandoni & Jamir for oppositor-appellant.

L-28611

Sevilla & Aquino for plaintiff-appellee.

Pelaez, Jalandoni & Jamir and David Gueverra for defendant-appellant.

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

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

Case No. L-28568 is an appeal by administrator Jose Borja from the

disapproval of the same compromise agreement by the Court of First
Instance of Nueva Ecija, Branch II, in its Special Proceeding No. 832,
entitled, "Testate Estate of Francisco de Borja, Tasiana O. Vda. de de
Borja, Special Administratrix".

And Case No. L-28611 is an appeal by administrator Jose de Borja from

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

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

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

AGREEMENT

THIS AGREEMENT made and entered into by and between

The heir and son of Francisco de Borja by his first marriage,

namely, Jose de Borja personally and as administrator of the
Testate Estate of Josefa Tangco,

AND

The heir and surviving spouse of Francisco de Borja by his

second marriage, Tasiana Ongsingco Vda. de Borja, assisted
by her lawyer, Atty. Luis Panaguiton Jr.

WITNESSETH

THAT it is the mutual desire of all the parties herein terminate

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

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

1. That the parties agree to sell the Poblacion portion of the

Jalajala properties situated in Jalajala, Rizal, presently under
administration in the Testate Estate of Josefa Tangco (Sp. Proc.
No. 7866, Rizal), more specifically described as follows:

Linda al Norte con el Rio Puwang que la separa de

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

with a segregated area of approximately 1,313 hectares at the

amount of P0.30 per square meter.

2. That Jose de Borja agrees and obligates himself to pay

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

3. That Tasiana Ongsingco Vda. de de Borja hereby assumes

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

4. Thereafter, the buyer of Jalajala "Poblacion" is hereby

authorized to pay directly to Tasiana Ongsingco Vda. de de
Borja the balance of the payment due her under paragraph 2 of
this Agreement (approximately P766,500.00) and issue in the
name of Tasiana Ongsingco Vda. de de Borja, corresponding
certified checks/treasury warrants, who, in turn, will issue the
corresponding receipt to Jose de Borja.

5. In consideration of above payment to Tasiana Ongsingco

Vda. de de Borja, Jose de Borja personally and as
administrator of the Testate Estate of Josefa Tangco, and
Tasiana Ongsingco Vda. de de Borja, for themselves and for
their heirs, successors, executors, administrators, and assigns,
hereby forever mutually renounce, withdraw, waive, remise,
release and discharge any and all manner of action or actions,
cause or causes of action, suits, debts, sum or sums of money,
accounts, damages, claims and demands whatsoever, in law or
in equity, which they ever had, or now have or may have
against each other, more specifically Sp. Proceedings Nos.
7866 and 1955, CFI-Rizal, and Sp. Proc. No. 832-Nueva Ecija,
Civil Case No. 3033, CFI Nueva Ecija and Civil Case No. 7452-
CFI, Rizal, as well as the case filed against Manuel Quijal for
perjury with the Provincial Fiscal of Rizal, the intention being to
completely, absolutely and finally release each other, their heirs,
successors, and assigns, from any and all liability, arising
wholly or partially, directly or indirectly, from the administration,
settlement, and distribution of the assets as well as liabilities of
the estates of Francisco de Borja and Josefa Tangco, first
spouse of Francisco de Borja, and lastly, Tasiana Ongsingco
Vda. de de Borja expressly and specifically renounce absolutely
her rights as heir over any hereditary share in the estate of
Francisco de Borja.

6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of

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

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

IN WITNESS WHEREOF, the parties hereto have her unto set

their hands in the City of Manila, Philippines, the 12th of
October, 1963.

On 16 May 1966, Jose de Borja submitted for Court approval the

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

The genuineness and due execution of the compromised agreement of 12

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

In assailing the validity of the agreement of 12 October 1963, Tasiana

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

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

The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at
bar. This is apparent from an examination of the terms of the agreement
between Jose de Borja and Tasiana Ongsingco. Paragraph 2 of said
agreement specifically stipulates that the sum of P800,000 payable to
Tasiana Ongsingco —

shall be considered as full — complete payment — settlement

of her hereditary share in the estate of the late Francisco de
Borja as well as the estate of Josefa Tangco, ... and to any
properties bequeathed or devised in her favor by the late
Francisco de Borja by Last Will and Testament or by Donation
Inter Vivos or Mortis Causa or purportedly conveyed to her for
consideration or otherwise.

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

It is likewise worthy of note in this connection that as the surviving spouse

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

Since the compromise contract Annex A was entered into by and between
"Jose de Borja personally and as administrator of the Testate Estate of
Josefa Tangco" on the one hand, and on the other, "the heir and surviving
spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco
Vda. de de Borja", it is clear that the transaction was binding on both in
their individual capacities, upon the perfection of the contract, even without
previous authority of the Court to enter into the same. The only difference
between an extrajudicial compromise and one that is submitted and
approved by the Court, is that the latter can be enforced by execution
proceedings. Art. 2037 of the Civil Code is explicit on the point:
 8. Art. 2037. A compromise has upon the parties the effect and
authority of res judicata; but there shall be no execution except
in compliance with a judicial compromise.

It is argued by Tasiana Ongsingco that while the agreement

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

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

Ongsingco's argument loses validity when it is considered that Jose de

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

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

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

If a sale of a hereditary right can be made to a stranger, then a fortiori sale

thereof to a coheir could not be forbidden.

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

It is finally charged by appellant Ongsingco, as well as by the Court of First

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

It is difficult to believe, however, that the amicable settlement referred to in

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

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

In her brief, Tasiana Ongsingco also pleads that the time elapsed in the
appeal has affected her unfavorably, in that while the purchasing power of
the agreed price of P800,000 has diminished, the value of the Jalajala
property has increased. But the fact is that her delay in receiving the
payment of the agreed price for her hereditary interest was primarily due to
her attempts to nullify the agreement (Annex "A") she had formally entered
into with the advice of her counsel, Attorney Panaguiton. And as to the
devaluation de facto of our currency, what We said in Dizon Rivera vs.
Dizon, L-24561, 30 June 1970, 33 SCRA 554, that "estates would never be
settled if there were to be a revaluation with every subsequent fluctuation in
the values of currency and properties of the estate", is particularly opposite
in the present case.

Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda
de Jalajala (Poblacion), concededly acquired by Francisco de Borja during
his marriage to his first wife, Josefa Tangco, is the husband's private
property (as contended by his second spouse, Tasiana Ongsingco), or
whether it forms part of the conjugal (ganancial) partnership with Josefa
Tangco. The Court of First Instance of Rizal (Judge Herminio Mariano,
presiding) declared that there was adequate evidence to overcome the
presumption in favor of its conjugal character established by Article 160 of
the Civil Code.

We are of the opinion that this question as between Tasiana Ongsingco

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

It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had

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

The lot allotted to Francisco was described as —

Una Parcela de terreno en Poblacion, Jalajala: N. Puang River;

E. Hermogena Romero; S. Heirs of Marcelo de Borja O.
Laguna de Bay; containing an area of 13,488,870 sq. m. more
or less, assessed at P297,410. (Record on Appeal, pages 7
and 105)

On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the

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

Art. 160. All property of the marriage is presumed to belong to

the conjugal partnership, unless it be proved that it pertains
exclusively to the husband or to the wife.

Defendant Jose de Borja further counterclaimed for damages,

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

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

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

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

Marcelo de Borja said that that money was entrusted to him by

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

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

The following shall be the exclusive property of each spouse:

xxx xxx xxx

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

of the husband.

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

As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof

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

It may be true that the inventories relied upon by defendant-appellant

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

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

IN VIEW OF THE FOREGOING, the appealed order of the Court of First

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

Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo,

Makasiar, Antonio and Esguerra, JJ., concur.

Fernando, J., took no part.

Case #5

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

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

ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and

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

Federico Paredes for petitioners.

Demetrio V. Pre for private respondents.

MARTIN, J:

This is a petition for review 1 of the Order of the Court of First Instance of
Abra in Civil Case No. 856, entitled Fortunata Barcena vs. Leon Barcena,
et al., denying the motions for reconsideration of its order dismissing the
complaint in the aforementioned case.
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla
and Salvacion Bonilla and wife of Ponciano Bonilla, instituted a civil action
in the Court of First Instance of Abra, to quiet title over certain parcels of
land located in Abra.

On May 9, 1975, defendants filed a written motion to dismiss the complaint,

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

On August 4, 1975, the defendants filed another motion to dismiss the

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

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

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

Hence, this petition for review.

The Court reverses the respondent Court and sets aside its order
dismissing the complaint in Civil Case No. 856 and its orders denying the
motion for reconsideration of said order of dismissal. While it is true that a
person who is dead cannot sue in court, yet he can be substituted by his
heirs in pursuing the case up to its completion. The records of this case
show that the death of Fortunata Barcena took place on July 9, 1975 while
the complaint was filed on March 31, 1975. This means that when the
complaint was filed on March 31, 1975, Fortunata Barcena was still alive,
and therefore, the court had acquired jurisdiction over her person. If
thereafter she died, the Rules of Court prescribes the procedure whereby a
party who died during the pendency of the proceeding can be substituted.
Under Section 16, Rule 3 of the Rules of Court "whenever a party to a
pending case dies ... it shall be the duty of his attorney to inform the court
promptly of such death ... and to give the name and residence of his
executor, administrator, guardian or other legal representatives." This duty
was complied with by the counsel for the deceased plaintiff when he
manifested before the respondent Court that Fortunata Barcena died on
July 9, 1975 and asked for the proper substitution of parties in the case.
The respondent Court, however, instead of allowing the substitution,
dismissed the complaint on the ground that a dead person has no legal
personality to sue. This is a grave error. Article 777 of the Civil Code
provides "that the rights to the succession are transmitted from the moment
of the death of the decedent." From the moment of the death of the
decedent, the heirs become the absolute owners of his property, subject to
the rights and obligations of the decedent, and they cannot be deprived of
their rights thereto except by the methods provided for by law. 3 The
moment of death is the determining factor when the heirs acquire a definite
right to the inheritance whether such right be pure or contingent. 4 The right
of the heirs to the property of the deceased vests in them even before
judicial declaration of their being heirs in the testate or intestate
proceedings. 5 When Fortunata Barcena, therefore, died her claim or right
to the parcels of land in litigation in Civil Case No. 856, was not
extinguished by her death but was transmitted to her heirs upon her death.
Her heirs have thus acquired interest in the properties in litigation and
became parties in interest in the case. There is, therefore, no reason for the
respondent Court not to allow their substitution as parties in interest for the
deceased plaintiff.

Under Section 17, Rule 3 of the Rules of Court "after a party dies and the
claim is not thereby extinguished, the court shall order, upon proper notice,
the legal representative of the deceased to appear and be substituted for
the deceased, within such time as may be granted ... ." The question as to
whether an action survives or not depends on the nature of the action and
the damage sued for. 6 In the causes of action which survive the wrong
complained affects primarily and principally property and property rights,
the injuries to the person being merely incidental, while in the causes of
action which do not survive the injury complained of is to the person, the
property and rights of property affected being incidental. 7 Following the
foregoing criterion the claim of the deceased plaintiff which is an action to
quiet title over the parcels of land in litigation affects primarily and
principally property and property rights and therefore is one that survives
even after her death. It is, therefore, the duty of the respondent Court to
order the legal representative of the deceased plaintiff to appear and to be
substituted for her. But what the respondent Court did, upon being informed
by the counsel for the deceased plaintiff that the latter was dead, was to
dismiss the complaint. This should not have been done for under the same
Section 17, Rule 3 of the Rules of Court, it is even the duty of the court, if
the legal representative fails to appear, to order the opposing party to
procure the appointment of a legal representative of the deceased. In the
instant case the respondent Court did not have to bother ordering the
opposing party to procure the appointment of a legal representative of the
deceased because her counsel has not only asked that the minor children
be substituted for her but also suggested that their uncle be appointed as
guardian ad litem for them because their father is busy in Manila earning a
living for the family. But the respondent Court refused the request for
substitution on the ground that the children were still minors and cannot
sue in court. This is another grave error because the respondent Court
ought to have known that under the same Section 17, Rule 3 of the Rules
of Court, the court is directed to appoint a guardian ad litem for the minor
heirs. Precisely in the instant case, the counsel for the deceased plaintiff
has suggested to the respondent Court that the uncle of the minors be
appointed to act as guardian ad litem for them. Unquestionably, the
respondent Court has gravely abused its discretion in not complying with
the clear provision of the Rules of Court in dismissing the complaint of the
plaintiff in Civil Case No. 856 and refusing the substitution of parties in the
case.

IN VIEW OF THE FOREGOING, the order of the respondent Court

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

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

Footnotes

1 Which this Court treats as special civil action as per its

Resolution dated February 11, 1976.

2 Section 16. Duty of Attorney upon which death, incapacity or

incompetency of party. - Whenever a party to a pending case
dies, becomes incapacitated or incompetent, it shall be the duty
of his attorney to inform the court promptly of such death,
incapacity or incompetency, and to give the name and
residence of his executor, administrator, guardian or other legal
representative.

Section 17. Death of party.—After a party dies and the claim is

not thereby extinguished, the court shall order, upon proper
notice, the legal representative of the deceased to appear and
to be substituted for deceased, within a period of thirty (30)
days, or within such time as may be granted. If the legal
representative fails to appear within said time, the court may
order the opposing party to procure the appointment of a legal
representative of the within a time to be specified by the court,
and the representative shall immediately appear for and on
behalf of the interest of the deceased. The court charges
involved in procuring such appointment, if defrayed by the
opposing party, may be recovered as costs. The heirs of the
deceased may be allowed to be substituted for the deceased,
without requiring the appointment of an executor or
administrator and the court may appoint guardian ad litem for
the minor heirs.

Case # 6
G.R. No. 82027 March 29, 1990

ROMARICO G. VITUG, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-
CORONA, respondents.

Rufino B. Javier Law Office for petitioner.

Quisumbing, Torres & Evangelista for private respondent.

SARMIENTO, J.:

This case is a chapter in an earlier suit decided by this Court 1 involving the
probate of the two wills of the late Dolores Luchangco Vitug, who died in
New York, U. S.A., on November 10, 1980, naming private respondent
Rowena Faustino-Corona executrix. In our said decision, we upheld the
appointment of Nenita Alonte as co-special administrator of Mrs. Vitug's
estate with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug,
pending probate.

On January 13, 1985, Romarico G. Vitug filed a motion asking for authority
from the probate court to sell certain shares of stock and real properties
belonging to the estate to cover allegedly his advances to the estate in the
sum of P667,731.66, plus interests, which he claimed were personal funds.
As found by the Court of Appeals, 2 the alleged advances consisted of
P58,147.40 spent for the payment of estate tax, P518,834.27 as deficiency
estate tax, and P90,749.99 as "increment thereto." 3 According to Mr. Vitug,
he withdrew the sums of P518,834.27 and P90,749.99 from savings
account No. 35342-038 of the Bank of America, Makati, Metro Manila.

On April 12, 1985, Rowena Corona opposed the motion to sell on the
ground that the same funds withdrawn from savings account No. 35342-
038 were conjugal partnership properties and part of the estate, and hence,
there was allegedly no ground for reimbursement. She also sought his
ouster for failure to include the sums in question for inventory and for
"concealment of funds belonging to the estate." 4
Vitug insists that the said funds are his exclusive property having acquired
the same through a survivorship agreement executed with his late wife and
the bank on June 19, 1970. The agreement provides:

We hereby agree with each other and with the BANK OF

AMERICAN NATIONAL TRUST AND SAVINGS
ASSOCIATION (hereinafter referred to as the BANK), that all
money now or hereafter deposited by us or any or either of us
with the BANK in our joint savings current account shall be the
property of all or both of us and shall be payable to and
collectible or withdrawable by either or any of us during our
lifetime, and after the death of either or any of us shall belong to
and be the sole property of the survivor or survivors, and shall
be payable to and collectible or withdrawable by such survivor
or survivors.

We further agree with each other and the BANK that the receipt
or check of either, any or all of us during our lifetime, or the
receipt or check of the survivor or survivors, for any payment or
withdrawal made for our above-mentioned account shall be
valid and sufficient release and discharge of the BANK for such
payment or withdrawal. 5

The trial courts 6 upheld the validity of this agreement and granted "the
motion to sell some of the estate of Dolores L. Vitug, the proceeds of which
shall be used to pay the personal funds of Romarico Vitug in the total sum
of P667,731.66 ... ." 7

On the other hand, the Court of Appeals, in the petition for certiorari filed by
the herein private respondent, held that the above-quoted survivorship
agreement constitutes a conveyance mortis causa which "did not comply
with the formalities of a valid will as prescribed by Article 805 of the Civil
Code," 8 and secondly, assuming that it is a mere donation inter vivos, it is
a prohibited donation under the provisions of Article 133 of the Civil Code. 9

The dispositive portion of the decision of the Court of Appeals states:

WHEREFORE, the order of respondent Judge dated November

26, 1985 (Annex II, petition) is hereby set aside insofar as it
granted private respondent's motion to sell certain properties of
the estate of Dolores L. Vitug for reimbursement of his alleged
 advances to the estate, but the same order is sustained in all
other respects. In addition, respondent Judge is directed to
include provisionally the deposits in Savings Account No.
35342-038 with the Bank of America, Makati, in the inventory of
actual properties possessed by the spouses at the time of the
decedent's death. With costs against private respondent. 10

In his petition, Vitug, the surviving spouse, assails the appellate court's
ruling on the strength of our decisions in Rivera v. People's Bank and Trust
Co. 11 and Macam v. Gatmaitan 12 in which we sustained the validity of
"survivorship agreements" and considering them as aleatory contracts. 13

The petition is meritorious.

The conveyance in question is not, first of all, one of mortis causa, which
should be embodied in a will. A will has been defined as "a personal,
solemn, revocable and free act by which a capacitated person disposes of
his property and rights and declares or complies with duties to take effect
after his death." 14 In other words, the bequest or device must pertain to the
testator. 15 In this case, the monies subject of savings account No. 35342-
038 were in the nature of conjugal funds In the case relied on, Rivera v.
People's Bank and Trust Co., 16 we rejected claims that a survivorship
agreement purports to deliver one party's separate properties in favor of
the other, but simply, their joint holdings:

xxx xxx xxx

... Such conclusion is evidently predicated on the assumption

that Stephenson was the exclusive owner of the funds-
deposited in the bank, which assumption was in turn based on
the facts (1) that the account was originally opened in the name
of Stephenson alone and (2) that Ana Rivera "served only as
housemaid of the deceased." But it not infrequently happens
that a person deposits money in the bank in the name of
another; and in the instant case it also appears that Ana Rivera
served her master for about nineteen years without actually
receiving her salary from him. The fact that subsequently
Stephenson transferred the account to the name of himself
and/or Ana Rivera and executed with the latter the survivorship
agreement in question although there was no relation of kinship
 between them but only that of master and servant, nullifies the
assumption that Stephenson was the exclusive owner of the
bank account. In the absence, then, of clear proof to the
contrary, we must give full faith and credit to the certificate of
deposit which recites in effect that the funds in question
belonged to Edgar Stephenson and Ana Rivera; that they were
joint (and several) owners thereof; and that either of them could
withdraw any part or the whole of said account during the
lifetime of both, and the balance, if any, upon the death of either,
belonged to the survivor. 17

xxx xxx xxx

In Macam v. Gatmaitan, 18 it was held:

xxx xxx xxx

This Court is of the opinion that Exhibit C is an aleatory contract

whereby, according to article 1790 of the Civil Code, one of the
parties or both reciprocally bind themselves to give or do
something as an equivalent for that which the other party is to
give or do in case of the occurrence of an event which is
uncertain or will happen at an indeterminate time. As already
stated, Leonarda was the owner of the house and Juana of the
Buick automobile and most of the furniture. By virtue of Exhibit
C, Juana would become the owner of the house in case
Leonarda died first, and Leonarda would become the owner of
the automobile and the furniture if Juana were to die first. In this
manner Leonarda and Juana reciprocally assigned their
respective property to one another conditioned upon who might
die first, the time of death determining the event upon which the
acquisition of such right by the one or the other depended. This
contract, as any other contract, is binding upon the parties
thereto. Inasmuch as Leonarda had died before Juana, the
latter thereupon acquired the ownership of the house, in the
same manner as Leonarda would have acquired the ownership
of the automobile and of the furniture if Juana had died first. 19

xxx xxx xxx

There is no showing that the funds exclusively belonged to one party, and
hence it must be presumed to be conjugal, having been acquired during the
existence of the marita. relations. 20

Neither is the survivorship agreement a donation inter vivos, for obvious

reasons, because it was to take effect after the death of one party.
Secondly, it is not a donation between the spouses because it involved no
conveyance of a spouse's own properties to the other.

It is also our opinion that the agreement involves no modification petition of

the conjugal partnership, as held by the Court of Appeals, 21 by "mere
stipulation" 22 and that it is no "cloak" 23 to circumvent the law on conjugal
property relations. Certainly, the spouses are not prohibited by law to invest
conjugal property, say, by way of a joint and several bank account, more
commonly denominated in banking parlance as an "and/or" account. In the
case at bar, when the spouses Vitug opened savings account No. 35342-
038, they merely put what rightfully belonged to them in a money-making
venture. They did not dispose of it in favor of the other, which would have
arguably been sanctionable as a prohibited donation. And since the funds
were conjugal, it can not be said that one spouse could have pressured the
other in placing his or her deposits in the money pool.

The validity of the contract seems debatable by reason of its "survivor-take-

all" feature, but in reality, that contract imposed a mere obligation with a
term, the term being death. Such agreements are permitted by the Civil
Code. 24

Under Article 2010 of the Code:

ART. 2010. By an aleatory contract, one of the parties or both

reciprocally bind themselves to give or to do something in
consideration of what the other shall give or do upon the
happening of an event which is uncertain, or which is to occur
at an indeterminate time.

Under the aforequoted provision, the fulfillment of an aleatory contract

depends on either the happening of an event which is (1) "uncertain," (2)
"which is to occur at an indeterminate time." A survivorship agreement, the
sale of a sweepstake ticket, a transaction stipulating on the value of
currency, and insurance have been held to fall under the first category,
while a contract for life annuity or pension under Article 2021, et sequentia,
has been categorized under the second. 25 In either case, the element of
risk is present. In the case at bar, the risk was the death of one party and
survivorship of the other.

However, as we have warned:

xxx xxx xxx

But although the survivorship agreement is per se not contrary

to law its operation or effect may be violative of the law. For
instance, if it be shown in a given case that such agreement is
a mere cloak to hide an inofficious donation, to transfer property
in fraud of creditors, or to defeat the legitime of a forced heir, it
may be assailed and annulled upon such grounds. No such
vice has been imputed and established against the agreement
involved in this case. 26

xxx xxx xxx

There is no demonstration here that the survivorship agreement had been

executed for such unlawful purposes, or, as held by the respondent court,
in order to frustrate our laws on wills, donations, and conjugal partnership.

The conclusion is accordingly unavoidable that Mrs. Vitug having

predeceased her husband, the latter has acquired upon her death a vested
right over the amounts under savings account No. 35342-038 of the Bank
of America. Insofar as the respondent court ordered their inclusion in the
inventory of assets left by Mrs. Vitug, we hold that the court was in error.
Being the separate property of petitioner, it forms no more part of the estate
of the deceased.

WHEREFORE, the decision of the respondent appellate court, dated June

29, 1987, and its resolution, dated February 9, 1988, are SET ASIDE.

No costs.

SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Padilla and Regalado JJ., concur.

Case # 7

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-25966 November 1, 1926

In the matter of the estate of Tomas Rodriguez, deceased. MANUEL

TORRES, special administrator, and LUZ LOPEZ DE BUENO,
heir, appellee,
vs.
MARGARITA LOPEZ, opponent-appellant.

Marcaida, Capili and Ocampo and Camus, Delgado and Recto for
appellant.
Araneta and Zaragoza for appellee.

STREET, J.:

This appeal involves a controversy over one-half of the estate of Tomas

Rodriguez, decedent. The appellant, Margarita Lopez, claims said half by
the intestate succession as next of kin and nearest heir; while the appellee,
Luz Lopez de Bueno, claims the same by accredition and in the character
of universal heir the will of the decedent. The trial court decided the point of
controversy in favor of Luz Lopez de Bueno, and Margariat Lopez appealed.

The facts necessary to an understanding of the case are these: On January

3, 1924, Tomas Rodriguez executed his last will and testament, in the
second clause of which he declared:

I institute as the only and universal heirs to all my property, my cousin

Vicente F. Lopez and his daughter Luz Lopez de Bueno.
Prior to the time of the execution of this will the testator, Tomas Rodriguez,
had been judicially declared incapable of taking care of himself and had
been placed under the care of his cousin Vicente F. Lopez, as guardian.
On January 7, 1924, or only four days after the will above-mentioned was
made, Vicente F. Lopez died; and the testator, Tomas Rodriguez, died on
February 25, 1924, thereafter. At the time the will was made Vicente F.
Lopez had not presented his final accounts as guardian, and no such
accounts had been presented by him at the time of his death. Margariat
Lopez was a cousin and nearest relative of the decedent. The will referred
to, and after having been contested, has been admitted to probate by
judicial determination (Torres and Lopez de Bueno vs. Lopez, 48 Phil., 772).

Our discussion of the legal problem presented should begin with article 753
of the Civil Code which in effect declares that, with certain exceptions in
favor of near relatives, no testamentary provision shall be valid when made
by a ward in favor of his guardian before the final accounts of the latter
have been approved. This provision is of undoubted application to the
situation before us; and the provision made in the will of Tomas Rodriguez
in favor of Vicente F. Lopez was not any general incapacity on his part, but
a special incapacity due to the accidental relation of guardian and ward
existing between the parties.

We now pass to article 982 of the Civil Code, defining the right of accretion.
It is there declared, in effect, that accretion take place in a testamentary
succession, first when the two or more persons are called to the same
inheritance or the same portion thereof without special designation of
shares; and secondly, when one of the persons so called dies before the
testator or renounces the inheritance or is disqualifying to receive it. In the
case before us we have a will calling Vicente F. Lopez and his daughter,
Luz Lopez de Bueno, to the same inheritance without special designation
of shares. In addition to this, one of the persons named as heir has
predeceased the testator, this person being also disqualified to receive the
estate even if he had been alive at the time of the testator's death. This
article (982) is therefore also of exact application to the case in hand; and
its effect is to give to the survivor, Luz Lopez de Bueno, not only the
undivided half which she would have received in conjunction with her father
if he had been alive and qualified to take, but also the half which pertained
to him. There was no error whatever, therefore, in the order of the trial court
declaring Luz Lopez de Bueno entitled to the whole estate.
The argument in favor of the appellant supposes that there has supervened
a partial intestacy with respect to the half of the estate which was intended
for Vicente F. Lopez and that this half has descended to the appellant,
Margarita Lopez, as next of kin and sole heir at law of the decedent. In this
connection attention is directed to article 764 of the Civil Code wherein it is
declared, among other things, that a will may be valid even though the
person instituted as heir is disqualified to inherit. Our attention is next
invited to article 912 wherein it is declared, among other things, that legal
succession takes place if the heir dies before the testator and also when
the heir instituted is disqualified to succeed. Upon these provisions an
argument is planted conducting to the conclusion that the will of Tomas
Rodriguez was valid, notwithstanding the fact that one of the individuals
named as heirs in the will was disqualified to take, and that as a
consequence Margarita Lopez s entitled to inherit the share of said
disqualified heir.

We are the opinion that this contention is untenable and that the appellee
clearly has the better right. In playing the provisions of the Code it is the
duty of the court to harmonize its provisions as far as possible, giving due
effect to all; and in case of conflict between two provisions the more
general is to be considered as being limited by the more specific. As
between articles 912 and 983, it is obvious that the former is the more
general of the two, dealing, as it does, with the general topic of intestate
succession while the latter is more specific, defining the particular
conditions under which accretion takes place. In case of conflict, therefore,
the provisions of the former article must be considered limited by the latter.
Indeed, in subsection 3 of article 912 the provision with respect to intestate
succession is expressly subordinated to article 983 by the expression "and
(if) there is no right of accretion." It is true that the same express
qualification is not found in subsection 4 of article 912, yet it must be so
understood, in view of the rule of interpretation above referred to, by which
the more specific is held to control the general. Besides, this interpretation
supplies the only possible means of harmonizing the two provisions. In
addition to this, article 986 of the Civil Code affords independent proof that
intestate succession to a vacant portion can only occur when accretion is
impossible.

The attorneys for the appellant direct attention to the fact that, under
paragraph 4 of article 912, intestate succession occurs when the heir
instituted is disqualified to succeed (incapaz de suceder), while, under the
last provision in paragraph 2 of article 982, accretion occurs when one of
the persons called to inherit under the will is disqualified to receive the
inheritance (incapaz de recibirla). A distinction is then drawn between
incapacity to succeed and incapacity to take, and it is contended that the
disability of Vicente F. Lopez was such as to bring the case under article
912 rather than 982. We are of the opinion that the case cannot be made to
turn upon so refined an interpretation of the language of the Code, and at
any rate the disability to which Vicente F. Lopez was subject was not a
general disability to succeed but an accidental incapacity to receive the
legacy, a consideration which makes a case for accretion rather than for
intestate succession.

The opinions of the commentators, so far as they have expressed

themselves on the subject, tend to the conclusion that the right of accretion
with regard to portions of an inheritance left vacant by the death or
disqualification of one of the heirs or his renunciation of the inheritance is
governed by article 912, without being limited, to the extent supposed in
appellant's brief, by provisions of the Code relative to intestate succession
(Manresa, Comentarios al Codigo Civil Español, 4th ed., vol. VII, pp. 310,
311; id., 34; 13 Mucius Scaevola, pp. 372, 373, 285-287; 16 Mucius
Scaevola, 186). Says Escriche: "It is to be understood that one of the
coheirs or colegatees fails if nonexistent at the time of the making of the will,
or he renounces the inheritance or legacy, if he dies before the testator, if
the condition be not fulfilled, or if he becomes otherwise incapacitated. . . .
(Diccionario de Legislacion y Jurisprudencia, vol. I, p. 225.)lawphil.net

In conclusion it may be worth observing that there has always existed both
in the civil and in the common law a certain legal intendment, amounting to
a mild presumption, against partial intestacy. In Roman law, as is well
known, partial testacy systems a presumption against it, — a presumption
which has its basis in the supposed intention of the testator.

The judgment appealed from will be affirmed, and it is so ordered, with

costs against the appellant.

Avanceña, C, J., Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ.,

concur.
Case # 8

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-1787 August 27, 1948

Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,

vs.
AGUSTIN LIBORO, oppositor-appellant.

Tirona, Gutierrez and Adorable for appellant.

Ramon Diokno for appellee.

TUASON, J.:

In the Court of First Instance of Batangas the appellant opposed

unsuccessfully the probate of what purports to be the last will and
testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in
Balayan, Batangas, on March 3, 1947, almost six months after the
document in question was executed. In the court below, the present
appellant specified five grounds for his opposition, to wit: (1) that the
deceased never executed the alleged will; (2) that his signature appearing
in said will was a forgery; (3) that at the time of the execution of the will, he
was wanting in testamentary as well as mental capacity due to advanced
age; (4) that, if he did ever execute said will, it was not executed and
attested as required by law, and one of the alleged instrumental witnesses
was incapacitated to act as such; and it was procured by duress, influence
of fear and threats and undue and improper pressure and influence on the
part of the beneficiaries instituted therein, principally the testator's sister,
Clemencia Lopez, and the herein proponent, Jose S. Lopez; and (5) that
the signature of the testator was procured by fraud or trick.

In this instance only one of these objections is reiterated, formulated in

these words: "That the court a quo erred in holding that the document
Exhibit "A" was executed in all particulars as required by law." To this
objection is added the alleged error of the court "in allowing the petitioner to
introduce evidence that Exhibit "A" was written in a language known to the
decedent after petitioner rested his case and over the vigorous objection of
the oppositor.

The will in question comprises two pages, each of which is written on one
side of a separate sheet. The first sheet is not paged either in letters or in
Arabic numerals. This, the appellant believes, is a fatal defect.

The purpose of the law in prescribing the paging of wills is guard against
fraud, and to afford means of preventing the substitution or of defecting the
loss of any of its pages. (Abangan vs. Abangan, 40 Phil., 476.) In the
present case, the omission to put a page number on the first sheet, if that
be necessary, is supplied by other forms of identification more trustworthy
than the conventional numerical words or characters. The unnumbered
page is clearly identified as the first page by the internal sense of its
contents considered in relation to the contents of the second page. By their
meaning and coherence, the first and second lines on the second page are
undeniably a continuation of the last sentence of the testament, before the
attestation clause, which starts at the bottom of the preceding page.
Furthermore, the unnumbered page contains the caption "TESTAMENTO,"
the invocation of the Almighty, and a recital that the testator was in full use
of his testamentary faculty, — all of which, in the logical order of sequence,
precede the direction for the disposition of the marker's property. Again, as
page two contains only the two lines above mentioned, the attestation
clause, the mark of the testator and the signatures of the witnesses, the
other sheet can not by any possibility be taken for other than page
one. Abangan vs. Abangan, supra, and Fernandez vs. Vergel de Dios, 46
Phil., 922 are decisive of this issue.

Although not falling within the purview and scope of the first assignment of
error, the matter of the credibility of the witnesses is assailed under this
heading. On the merits we do not believe that the appellant's contention
deserves serious consideration. Such contradictions in the testimony of the
instrumental witnesses as are set out in the appellant's brief are incidents
not all of which every one of the witnesses can be supposed to have
perceived, or to recall in the same order in which they occurred.

Everyday life and the result of investigations made in the field of

experimental psychology show that the contradictions of witnesses
 generally occur in the details of a certain incident, after a long series
of questioning, and far from being an evidence of falsehood constitute
a demonstration of good faith. Inasmuch as not all those who witness
an incident are impressed in like manner, it is but natural that in
relating their impressions they should not agree in the minor details;
hence, the contradictions in their testimony. (People vs. Limbo, 49
Phil., 99.)

The testator affixed his thumbmark to the instrument instead of signing his
name. The reason for this was that the testator was suffering from "partial
paralysis." While another in testator's place might have directed someone
else to sign for him, as appellant contends should have been done, there is
nothing curious or suspicious in the fact that the testator chose the use of
mark as the means of authenticating his will. It was a matter of taste or
preference. Both ways are good. A statute requiring a will to be "signed" is
satisfied if the signature is made by the testator's mark. (De Gala vs.
Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.)

With reference to the second assignment of error, we do not share the

opinion that the trial court communicated an abuse of discretion in allowing
the appellant to offer evidence to prove knowledge of Spanish by the
testator, the language in which the will is drawn, after the petitioner had
rested his case and after the opponent had moved for dismissal of the
petition on the ground of insufficiency of evidence. It is within the discretion
of the court whether or not to admit further evidence after the party offering
the evidence has rested, and this discretion will not be reviewed except
where it has clearly been abused. (64 C. J., 160.) More, it is within the
sound discretion of the court whether or not it will allow the case to be
reopened for the further introduction of evidence after a motion or request
for a nonsuit, or a demurrer to the evidence, and the case may be
reopened after the court has announced its intention as to its ruling on the
request, motion, or demurrer, or has granted it or has denied the same, or
after the motion has been granted, if the order has not been written, or
entered upon the minutes or signed. (64 C. J., 164.)

In this jurisdiction this rule has been followed. After the parties have
produced their respective direct proofs, they are allowed to offer rebutting
evidence only, but, it has been held, the court, for good reasons, in the
furtherance of justice, may permit them to offer evidence upon their original
case, and its ruling will not be disturbed in the appellate court where no
abuse of discretion appears. (Siuliong and Co. vs. Ylagan, 43 Phil., 393; U.
S. vs. Alviar, 36 Phil., 804.) So, generally, additional evidence is allowed
when it is newly discovered, or where it has been omitted through
inadvertence or mistake, or where the purpose of the evidence is to the
evidence is to correct evidence previously offered. (I Moran's Comments on
the Rules of Court, 2d ed., 545; 64 C. J., 160-163.) The omission to present
evidence on the testator's knowledge of Spanish had not been deliberate. It
was due to a misapprehension or oversight.

Although alien to the second assignment of error, the appellant impugns

the will for its silence on the testator's understanding of the language used
in the testament. There is no statutory requirement that such knowledge be
expressly stated in the will itself. It is a matter that may be established by
proof aliunde. This Court so impliedly ruled in Gonzales vs. Laurel, 46 Phil.,
781, in which the probate of a will written in Tagalog was ordered although
it did not say that the testator knew that idiom. In fact, there was not even
extraneous proof on the subject other than the fact that the testator resided
in a Tagalog region, from which the court said "a presumption arises that
said Maria Tapia knew the Tagalog dialect.

The order of the lower court ordering the probate of the last will and
testament of Don Sixto Lopez is affirmed, with costs.

Paras, Pablo, Perfecto, Bengzon, Briones and Padilla, JJ., concur.

Case #9

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

A.M. No. 2026-CFI December 19, 1981

NENITA DE VERA SUROZA, complainant,
vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of
Rizal, Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy Clerk of
Court, respondents.

AQUINO, J.:

Should disciplinary action be taken against respondent judge for having

admitted to probate a will, which on its face is void because it is written in
English, a language not known to the illiterate testatrix, and which is
probably a forged will because she and the attesting witnesses did not
appear before the notary as admitted by the notary himself?

That question arises under the pleadings filed in the testate case and in the
certiorari case in the Court of Appeals which reveal the following tangled
strands of human relationship:

Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine
Scouts), Fort McKinley, married Marcelina Salvador in 1923 (p. 150, Spec.
Proc. No. 7816). They were childless. They reared a boy named Agapito
who used the surname Suroza and who considered them as his parents as
shown in his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of
CA-G.R. No. 08654-R; p. 148, Rollo of Testate Case showing that Agapito
was 5 years old when Mauro married Marcelina in 1923).

Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner

of the Federal Government. That explains why on her death she had
accumulated some cash in two banks.

Agapito and Nenita begot a child named Lilia who became a medical
technologist and went abroad. Agapito also became a soldier. He was
disabled and his wife Nenita was appointed as his guardian in 1953 when
he was declared an incompetent in Special Proceeding No. 1807 of the
Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No.
08654-R).

In that connection, it should be noted that a woman named Arsenia de la

Cruz wanted also to be his guardian in another proceeding. Arsenia tried to
prove that Nenita was living separately from Agapito and that she (Nenita)
admitted to Marcelina that she was unfaithful to Agapito (pp. 61-63, Record
of testate case).

Judge Bienvenido A. Tan dismissed the second guardianship proceeding

and confirmed Nenita's appointment as guardian of Agapito (p. 16, Rollo of
CA case). Agapito has been staying in a veteran's hospital in San
Francisco or Palo Alto, California (p. 87, Record).

On a date not indicated in the record, the spouses Antonio Sy and

Hermogena Talan begot a child named Marilyn Sy, who, when a few days
old, was entrusted to Arsenia de la Cruz (apparently a girl friend of Agapito)
and who was later delivered to Marcelina Salvador Suroza who brought her
up as a supposed daughter of Agapito and as her granddaughter (pp. 23-
26, Rollo of CA-G.R. No.SP-08654-R). Marilyn used the surname Suroza.
She stayed with Marcelina but was not legally adopted by Agapito. She
married Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati,
apparently a neighbor of Marina Paje, a resident of 7668 J.B. Roxas Street.

Marcelina supposedly executed a notarial will in Manila on July 23, 1973,

when she was 73 years old. That will which is in English was thumbmarked
by her. She was illiterate. Her letters in English to the Veterans
Administration were also thumbmarked by her (pp. 38-39, CA Rollo). In that
wig, Marcelina bequeathed all her estate to her supposed granddaughter
Marilyn.

Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon

City. At the time of her death, she was a resident of 7374 San Maximo
Street, Olimpia, Makati, Rizal. She owned a 150-square meter lot and
house in that place. She acquired the lot in 1966 (p. 134, Record of testate
case).

On January 13, 1975, Marina Paje, alleged to be a laundrywoman of

Marcelina (P. 97, CA Rollo) and the executrix in her will (the alternate
executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband), filed
with the Court of First Instance of Rizal, Pasig Branch 25, a petition for the
probate of Marcelina's alleged will. The case was assigned to Judge
Reynaldo P. Honrado.

As there was no opposition, Judge Honrado commissioned his deputy clerk

of court, Evangeline S. Yuipco, to hear the evidence. The transcripts of the
stenographic notes taken at the hearing before the deputy clerk of court are
not in the record.

In an order dated March 31, 1975, Judge Honrado appointed Marina as

administratrix. On the following day, April 1, Judge Honrado issued two
orders directing the Merchants Banking Corporation and the Bank of
America to allow Marina to withdraw the sum of P10,000 from the savings
accounts of Marcelina S. Suroza and Marilyn Suroza and requiring
Corazon Castro, the custodian of the passbooks, to deliver them to Marina.

Upon motion of Marina, Judge Honrado issued another order dated April 11,
1975, instructing a deputy sheriff to eject the occupants of the testatrix's
house, among whom was Nenita V. Suroza, and to place Marina in
possession thereof.

That order alerted Nenita to the existence of the testamentary proceeding

for the settlement of Marcelina's estate. She and the other occupants of the
decedent's house filed on April 18 in the said proceeding a motion to set
aside the order of April 11 ejecting them. They alleged that the decedent's
son Agapito was the sole heir of the deceased, that he has a daughter
named Lilia, that Nenita was Agapito's guardian and that Marilyn was not
Agapito's daughter nor the decedent's granddaughter (pp. 52-68, Record of
testate case). Later, they questioned the probate court's jurisdiction to
issue the ejectment order.

In spite of the fact that Judge Honrado was already apprised that persons,
other than Marilyn, were claiming Marcelina's estate, he issued on April 23
an order probating her supposed will wherein Marilyn was the instituted
heiress (pp. 74-77, Record).

On April 24, Nenita filed in the testate case an omnibus petition "to set
aside proceedings, admit opposition with counter-petition for administration
and preliminary injunction". Nenita in that motion reiterated her allegation
that Marilyn was a stranger to Marcelina, that the will was not duly
executed and attested, that it was procured by means of undue influence
employed by Marina and Marilyn and that the thumbmarks of the testatrix
were procured by fraud or trick.

Nenita further alleged that the institution of Marilyn as heir is void because
of the preterition of Agapito and that Marina was not qualified to act as
executrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the
housemaid of Marcelina, who swore that the alleged will was falsified (p.
109, Record).

Not content with her motion to set aside the ejectment order (filed on April
18) and her omnibus motion to set aside the proceedings (filed on April 24),
Nenita filed the next day, April 25, an opposition to the probate of the will
and a counter-petition for letters of administration. In that opposition, Nenita
assailed the due execution of the will and stated the names and addresses
of Marcelina's intestate heirs, her nieces and nephews (pp. 113-121,
Record). Nenita was not aware of the decree of probate dated April 23,
1975.

To that opposition was attached an affidavit of Dominga Salvador Teodocio,

Marcelina's niece, who swore that Marcelina never executed a win (pp.
124-125, Record).

Marina in her answer to Nenita's motion to set aside the proceedings

admitted that Marilyn was not Marcelina's granddaughter but was the
daughter of Agapito and Arsenia de la Cruz and that Agapito was not
Marcelina's son but merely an anak-anakan who was not legally adopted (p.
143, Record).

Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-
petition for the issuance of letters of administration because of the non-
appearance of her counsel at the hearing. She moved for the
reconsideration of that order.

In a motion dated December 5, 1975, for the consolidation of all pending

incidents, Nenita V. Suroza reiterated her contention that the alleged will is
void because Marcelina did not appear before the notary and because it is
written in English which is not known to her (pp. 208-209, Record).

Judge Honrado in his order of June 8, 1976 "denied" the various incidents
"raised" by Nenita (p. 284, Record).

Instead of appealing from that order and the order probating the wig, Nenita
"filed a case to annul" the probate proceedings (p. 332, Record). That case,
Civil Case No. 24276, Suroza vs. Paje and Honrado (p. 398, Record), was
also assigned to Judge Honrado. He dismissed it in his order of February
16, 1977 (pp. 398-402, Record).
Judge Honrado in his order dated December 22, 1977, after noting that the
executrix had delivered the estate to Marilyn, and that the estate tax had
been paid, closed the testamentary proceeding.

About ten months later, in a verified complaint dated October 12, 1978,
filed in this Court, Nenita charged Judge Honrado with having probated the
fraudulent will of Marcelina. The complainant reiterated her contention that
the testatrix was illiterate as shown by the fact that she affixed her
thumbmark to the will and that she did not know English, the language in
which the win was written. (In the decree of probate Judge Honrado did not
make any finding that the will was written in a language known to the
testatrix.)

Nenita further alleged that Judge Honrado, in spite of his knowledge that
the testatrix had a son named Agapito (the testatrix's supposed sole
compulsory and legal heir), who was preterited in the will, did not take into
account the consequences of such a preterition.

Nenita disclosed that she talked several times with Judge Honrado and
informed him that the testatrix did not know the executrix Marina Paje, that
the beneficiary's real name is Marilyn Sy and that she was not the next of
kin of the testatrix.

Nenita denounced Judge Honrado for having acted corruptly in allowing

Marina and her cohorts to withdraw from various banks the deposits
Marcelina.

She also denounced Evangeline S. Yuipco, the deputy clerk of court, for
not giving her access to the record of the probate case by alleging that it
was useless for Nenita to oppose the probate since Judge Honrado would
not change his decision. Nenita also said that Evangeline insinuated that if
she (Nenita) had ten thousand pesos, the case might be decided in her
favor. Evangeline allegedly advised Nenita to desist from claiming the
properties of the testatrix because she (Nenita) had no rights thereto and,
should she persist, she might lose her pension from the Federal
Government.

Judge Honrado in his brief comment did not deal specifically with the
allegations of the complaint. He merely pointed to the fact that Nenita did
not appeal from the decree of probate and that in a motion dated July 6,
1976 she asked for a thirty day period within which to vacate the house of
the testatrix.

Evangeline S. Yuipco in her affidavit said that she never talked with Nenita
and that the latter did not mention Evangeline in her letter dated September
11, 1978 to President Marcos.

Evangeline branded as a lie Nenita's imputation that she (Evangeline)

prevented Nenita from having access to the record of the testamentary
proceeding. Evangeline was not the custodian of the record. Evangeline "
strongly, vehemently and flatly denied" Nenita's charge that she
(Evangeline) said that the sum of ten thousand pesos was needed in order
that Nenita could get a favorable decision. Evangeline also denied that she
has any knowledge of Nenita's pension from the Federal Government.

The 1978 complaint against Judge Honorado was brought to attention of

this Court in the Court Administrator's memorandum of September 25,
1980. The case was referred to Justice Juan A. Sison of the Court of
Appeals for investigation, report and recommendation. He submitted a
report dated October 7, 1981.

On December 14, 1978, Nenita filed in the Court of Appeals against Judge
Honrado a petition for certiorari and prohibition wherein she prayed that the
will, the decree of probate and all the proceedings in the probate case be
declared void.

Attached to the petition was the affidavit of Domingo P. Aquino, who

notarized the will. He swore that the testatrix and the three attesting
witnesses did not appear before him and that he notarized the will "just to
accommodate a brother lawyer on the condition" that said lawyer would
bring to the notary the testatrix and the witnesses but the lawyer never
complied with his commitment.

The Court of Appeals dismissed the petition because Nenita's remedy was
an appeal and her failure to do so did not entitle her to resort to the special
civil action of certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May
24, 1981).

Relying on that decision, Judge Honrado filed on November 17, 1981 a

motion to dismiss the administrative case for having allegedly become
moot and academic.
We hold that disciplinary action should be taken against respondent judge
for his improper disposition of the testate case which might have resulted in
a miscarriage of justice because the decedent's legal heirs and not the
instituted heiress in the void win should have inherited the decedent's
estate.

A judge may be criminally liable or knowingly rendering an unjust judgment

or interlocutory order or rendering a manifestly unjust judgment or
interlocutory order by reason of inexcusable negligence or ignorance (Arts.
204 to 206, Revised Penal Code).

Administrative action may be taken against a judge of the court of first

instance for serious misconduct or inefficiency ( Sec. 67, Judiciary Law).
Misconduct implies malice or a wrongful intent, not a mere error of
judgment. "For serious misconduct to exist, there must be reliable evidence
showing that the judicial acts complained of were corrupt or inspired by an
intention to violate the law, or were in persistent disregard of well-known
legal rules" (In re lmpeachment of Horrilleno, 43 Phil. 212, 214-215).

Inefficiency implies negligence, incompetence, ignorance and carelessness.

A judge would be inexcusably negligent if he failed to observe in the
performance of his duties that diligence, prudence and circumspection
which the law requires in the rendition of any public service (In re Climaco,
Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).

In this case, respondent judge, on perusing the will and noting that it was
written in English and was thumbmarked by an obviously illiterate testatrix,
could have readily perceived that the will is void.

In the opening paragraph of the will, it was stated that English was a
language "understood and known" to the testatrix. But in its concluding
paragraph, it was stated that the will was read to the testatrix "and
translated into Filipino language". (p. 16, Record of testate case). That
could only mean that the will was written in a language not known to the
illiterate testatrix and, therefore, it is void because of the mandatory
provision of article 804 of the Civil Code that every will must be executed in
a language or dialect known to the testator. Thus, a will written in English,
which was not known to the Igorot testator, is void and was disallowed
(Acop vs. Piraso, 52 Phil. 660).
The hasty preparation of the will is shown in the attestation clause and
notarial acknowledgment where Marcelina Salvador Suroza is repeatedly
referred to as the "testator" instead of "testatrix".

Had respondent judge been careful and observant, he could have noted
not only the anomaly as to the language of the will but also that there was
something wrong in instituting the supposed granddaughter as sole heiress
and giving nothing at all to her supposed father who was still alive.

Furthermore, after the hearing conducted by respondent deputy clerk of

court, respondent judge could have noticed that the notary was not
presented as a witness.

In spite of the absence of an opposition, respondent judge should have

personally conducted the hearing on the probate of the will so that he could
have ascertained whether the will was validly executed.

Under the circumstances, we find his negligence and dereliction of duty to

be inexcusable.

WHEREFORE, for inefficiency in handling the testate case of Marcelina S.

Suroza, a fine equivalent to his salary for one month is imposed on
respondent judge (his compulsory retirement falls on December 25, 1981).

The case against respondent Yuipco has become moot and academic
because she is no longer employed in the judiciary. Since September 1,
1980 she has been assistant city fiscal of Surigao City. She is beyond this
Court's disciplinary jurisdiction (Peralta vs. Firm Adm. Matter No. 2044-CFI
November 21, 1980, 101 SCRA 225).

SO ORDERED.

Barredo (Chairman), De Castro, Ericta and Escolin JJ., concur.

Concepcion Jr., J., is on leave.

Abad Santos, J., took no part.

Case #10

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-13431 November 12, 1919

In re will of Ana Abangan.

GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.

Filemon Sotto for appellants.

M. Jesus Cuenco for appellee.

AVANCEÑA, J.:

On September 19, 1917, the Court of First Instance of Cebu admitted to

probate Ana Abangan's will executed July, 1916. From this decision the
opponent's appealed.

Said document, duly probated as Ana Abangan's will, consists of two

sheets, the first of which contains all of the disposition of the testatrix, duly
signed at the bottom by Martin Montalban (in the name and under the
direction of the testatrix) and by three witnesses. The following sheet
contains only the attestation clause duly signed at the bottom by the three
instrumental witnesses. Neither of these sheets is signed on the left margin
by the testatrix and the three witnesses, nor numbered by letters; and these
omissions, according to appellants' contention, are defects whereby the
probate of the will should have been denied. We are of the opinion that the
will was duly admitted to probate.

In requiring that each and every sheet of the will should also be signed on
the left margin by the testator and three witnesses in the presence of each
other, Act No. 2645 (which is the one applicable in the case) evidently has
for its object (referring to the body of the will itself) to avoid the substitution
of any of said sheets, thereby changing the testator's dispositions. But
when these dispositions are wholly written on only one sheet signed at the
bottom by the testator and three witnesses (as the instant case), their
signatures on the left margin of said sheet would be completely
purposeless. In requiring this signature on the margin, the statute took into
consideration, undoubtedly, the case of a will written on several sheets and
must have referred to the sheets which the testator and the witnesses do
not have to sign at the bottom. A different interpretation would assume that
the statute requires that this sheet, already signed at the bottom, be signed
twice. We cannot attribute to the statute such an intention. As these
signatures must be written by the testator and the witnesses in the
presence of each other, it appears that, if the signatures at the bottom of
the sheet guaranties its authenticity, another signature on its left margin
would be unneccessary; and if they do not guaranty, same signatures,
affixed on another part of same sheet, would add nothing. We cannot
assume that the statute regards of such importance the place where the
testator and the witnesses must sign on the sheet that it would consider
that their signatures written on the bottom do not guaranty the authenticity
of the sheet but, if repeated on the margin, give sufficient security.

In requiring that each and every page of a will must be numbered

correlatively in letters placed on the upper part of the sheet, it is likewise
clear that the object of Act No. 2645 is to know whether any sheet of the
will has been removed. But, when all the dispositive parts of a will are
written on one sheet only, the object of the statute disappears because the
removal of this single sheet, although unnumbered, cannot be hidden.

What has been said is also applicable to the attestation clause. Wherefore,
without considering whether or not this clause is an essential part of the will,
we hold that in the one accompanying the will in question, the signatures of
the testatrix and of the three witnesses on the margin and the numbering of
the pages of the sheet are formalities not required by the statute. Moreover,
referring specially to the signature of the testatrix, we can add that same is
not necessary in the attestation clause because this, as its name implies,
appertains only to the witnesses and not to the testator since the latter
does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the
first of which contains all the testamentary dispositions and is signed at the
bottom by the testator and three witnesses and the second contains only
the attestation clause and is signed also at the bottom by the three
witnesses, it is not necessary that both sheets be further signed on their
margins by the testator and the witnesses, or be paged.

The object of the solemnities surrounding the execution of wills is to close

the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore the laws
on this subject should be interpreted in such a way as to attain these
primordal ends. But, on the other hand, also one must not lose sight of the
fact that it is not the object of the law to restrain and curtail the exercise of
the right to make a will. So when an interpretation already given assures
such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustative of
the testator's last will, must be disregarded. lawphil.net

As another ground for this appeal, it is alleged the records do not show that
the testarix knew the dialect in which the will is written. But the
circumstance appearing in the will itself that same was executed in the city
of Cebu and in the dialect of this locality where the testatrix was a neighbor
is enough, in the absence of any proof to the contrary, to presume that she
knew this dialect in which this will is written.

For the foregoing considerations, the judgment appealed from is hereby

affirmed with costs against the appellants. So ordered.

Arellano, C.J., Torres, Johnson, Araullo, Street and Malcolm, JJ., concur.

Case # 11

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. 42258 September 5, 1936

In re Will of the deceased Leoncia Tolentino. VICTORIO

PAYAD, petitioner-appellant,
vs.
AQUILINA TOLENTINO, oppositor-appellant.

Vicente Foz, Marciano Almario, and Leonardo Abola for petitioner-appellant.

Leodegario Azarraga for oppositor-appellant.

DIAZ, J.:

There are two motions filed by the oppositor Aquilina Tolentino, pending
resolution: That of January 29, 1935, praying for the reconsideration of the
decision of the court and that of the same date, praying for a new trial.

The oppositor bases her motion for reconsideration upon the following facts
relied upon in her pleading:

1. That the testatrix did not personally place her thumbmark on her alleged
will;

2. That the testatrix did not request Attorney Almario to write her name and
surname on the spaces of the will where she should place her thumbmarks;

3. That the will in question was not signed by the testatrix on the date
indicated therein;

4. That the testatrix never made the will in question; and

5. That on the date the will in question was executed, the testatrix was no
longer in a physical or mental condition to make it.

We have again reviewed the evidence to determine once more whether the
errors assigned by the oppositor in her brief have not been duly considered,
whether some fact or detail which might have led us to another conclusion
has been overlooked, or whether the conclusions arrived at in our decision
are not supported by the evidence. We have found that the testatrix
Leoncia Tolentino, notwithstanding her advanced age of 92 years, was in
good health until September 1, 1933. She had a slight cold on said date for
which reason she was visited by her physician, Dr. Florencio Manuel. Said
physician again visited her three or four days later and found her still
suffering from said illness but there was no indication that she had but a
few days to live. She ate comparatively well and conserved her mind and
memory at least long after noon of September 7, 1933. She took her last
nourishment of milk in the morning of the following day, September 8, 1933,
and death did not come to her until 11 o'clock sharp that morning.

The will in question was prepared by Attorney Marciano Almario between

11 and 12 o'clock noon on September 7, 1933, in the house of the testatrix
Leoncia Tolentino, after she had expressed to said attorney her desire to
make a will and bequeath her property to the petitioner Victorio Payad in
compensation according to her, for his diligent and faithful services
rendered to her. Victorio Payad had grown up under the care of the
testatrix who had been in her home from childhood. The will was written by
Attorney Almario in his own handwriting, and was written in Spanish
because he had been instructed to do so by the testatrix. It was later read
to her in the presence of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona
and other persons who were then present. The testatrix approved all the
contents of the document and requested Attorney Almario to write her
name where she had to sign by means of her thumbmark in view of the fact
that her fingers no longer had the necessary strength to hold a pen. She
did after having taken the pen and tried to sign without anybody's help.
Attorney Almario proceeded to write the name of the testatrix on the three
pages composing the will and the testatrix placed her thumbmark on said
writing with the help of said attorney, said help consisting in guiding her
thumb in order to place the mark between her name and surname, after
she herself had moistened the tip of her thumb with which she made such
mark, on the ink pad which was brought to her for said purpose. Said
attorney later signed the three pages of the will in the presence of the
testatrix and also of Pedro L. Cruz, and Jose Ferrer Cruz and Perfecto L.
Ona, who, in turn, forthwith signed it successively and exactly under the
same circumstances above stated.

In support of her claim that the testatrix did not place her thumbmark on the
will on September 7, 1983, and that she never made said will because she
was no longer physically or mentally in a condition do so, the oppositor
cites the testimony of Julian Rodriguez, Gliceria Quisonia, Paz de Leon and
her own.
Julian Rodriguez and Gliceria Quisonia testified that they had not seen
Attorney Almario in the morning of September 7, 1933, in the house of the
deceased where they were then living, and that the first time that they saw
him there was at about 12 o'clock noon on September 8th of said year,
when Leoncia Tolentino was already dead, Gliceria Quisonia stating that on
that occasion Almario arrived there accompanied only by woman named
Pacing. They did not state that Almario was accompanied by Pedro L. Cruz,
Jose Ferrer Cruz and Perfecto L. Ona, the instrumental witnesses of the
will. Said two witnesses, however, could not but admit that their room was
situated at the other end of the rooms occupied by the deceased herself
and by the petitioner Victorio Payad, and that their said room and that of
Victorio Payad are separated by the stairs of the house; that Gliceria
Quisonia saw the deceased only once on the 7th and twice on the 8th, and
that Julian Rodriguez stayed in his room, without leaving it, from 9 to 12
o'clock a. m. on the 7th of said month. Gliceria Quisonia further stated that
in the morning of September 7th, she prepared the noonday meal in the
kitchen which was situated under the house. Under such circumstances it
is not strange that the two did not see the testatrix when, according to the
evidence for the petitioner, she made her will and signed it by means of her
thumbmark. In order to be able to see her and also Almario and the
instrumental witnesses of the will, on that occasion, it was necessary for
them to enter the room where the deceased was, or at least the adjoining
room where the will was prepared by Attorney Almario, but they did not do
so.

Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the
testatrix was already so weak that she could not move and that she could
hardly be understood because she could no longer enunciate, making it
understood thereby, that in such condition it was absolutely impossible for
her to make any will. The attorney for the oppositor insists likewise and
more so because, according to him and his witness Paz de Leon, two days
before the death of the testatrix, or on September 6, 1933, she could not
even open her eyes or make herself understood.

The testimony of said witnesses is not sufficient to overthrow, or discredit

the testimony of the petitioner-appellant or that of Attorney Almario and the
three instrumental witnesses of the will because, to corroborate them, we
have of record the testimony of the physician of the deceased and the
accountant Ventura Loreto who are two disinterested witnesses, inasmuch
as the outcome of these proceedings does not affect them in the least. The
two testified that two, three or four days before the death of the testatrix,
they visited her in her home, the former professionally, and the latter as an
acquaintance, and they then found her not so ill as to be unable to move or
hold a conversation. They stated that she spoke to them intelligently; that
she answered all the questions which they had put to her, and that she
could still move in spite of her weakness.

In view of the foregoing facts and considerations, we deem it clear that the
oppositor's motion for reconsideration is unfounded.

The oppositor's motion for a new trial is based upon the following facts: (1)
That upon her death, the deceased left a letter signed by herself, placed in
a stamped envelope and addressed to Teodoro R. Yangco, with
instructions not to open it until after her death; (2) that there are witnesses
competent to testify on the letter in question, in addition to other evidence
discovered later, which could not be presented at the trial; (3) that in the
letter left by the deceased, she transfers all her property to Teodoro R.
Yangco stating therein that, upon her death, all the property in question
should become Yangco's. From this alleged fact, the oppositor infers that
the deceased never had and could not have had the intention to make the
will in question, and (4) that said oppositor knew of the existence of said
letter only after her former attorney, Alejandro Panis, had been informed
thereof in May, 1935, by one of Teodoro R. Yangco's attorneys named
Jose Cortes.

Subsequent to the presentation of the motion for a new trial, the oppositor
filed another supplementary motion alleging that she had discovered some
additional new evidence consisting in the affidavit of Attorney Gabino
Fernando Viola wherein the latter affirms that Victorio Payad had called him
on September 5, 1933, to prepare the will of the deceased but he did not
do so because after seeing her he had been convinced that she could not
make a will because she had lost her speech and her eyes were already
closed.

The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola,

substantially affirming the facts alleged by the oppositor, are attached to
both motions for a new trial.

The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are not
and cannot be newly discovered evidence, and are not admissible to
warrant the holding of a new trial, because the oppositor had been
informed of the facts affirmed by Attorney Jose Cortes in his affidavit long
before this case was decided by this court. It is stated in said affidavit that
in May, 1935, Attorney Jose Cortes revealed to the attorney for oppositor
the fact that the deceased had left a letter whereby she transferred all her
property to Teodoro R. Yangco, and the judgment was rendered only on
January 15, 1936, or eight months later.

The oppositor contends that she had no reason to inform the court of said
newly discovered evidence inasmuch as the judgment of the lower court
was favorable to her. She, however, overlooks the fact that she also
appealed from the decision of the lower court and it was her duty, under the
circumstances, to inform this court of the discovery of said allegedly newly
discovered evidence and to take advantage of the effects thereof because,
by so doing, she could better support her claim that the testatrix made no
will, much less the will in question. Said evidence, is not new and is not of
the nature of that which gives rise to a new trial because, under the law, in
order that evidence may be considered newly discovered evidence and
may serve as a ground for a new trial, it is necessary (a) that it could not
have been discovered in time, even by the exercise of due diligence; (b)
that it be material, and (c) that it also be of such a character as probably to
change the result if admitted (section 497, Act No. 190; Banal vs. Safont, 8
Phil., 276).

The affidavit of Attorney Cortes is neither material nor important in the

sense that, even considering it newly discovered evidence, it will be
sufficient to support the decision of the lower court and modify that of this
court. It is simply hearsay or, at most, corroborative evidence. The letter of
the deceased Leoncia Tolentino to Teodoro R. Yangco would, in the eyes
of the law, be considered important or material evidence but this court has
not the letter in question before it, and no attempt was ever made to
present a copy thereof.

The affidavit of Attorney Gabino Fernando Viola or testimony he may give

pursuant thereto is not more competent than that of Attorney Jose Cortes
because, granting that when he was called by Victorio Payad to help the
deceased Leoncia Tolentino to make her will and he went to her house on
September 5, 1933, the deceased was almost unconscious, was
unintelligible and could not speak, it does not necessarily mean that on the
day she made her will, September 7, 1933, she had not recovered
consciousness and all her mental faculties to capacitate her to dispose of
all her property. What Attorney Gabino Fernando Viola may testify pursuant
to his affidavit in question is not and can not be newly discovered evidence
of the character provided for by law, not only because it does not exclude
the possibility that testatrix had somewhat improved in health, which
possibility became a reality at the time she made her will because she was
then in the full enjoyment of her mental faculties, according to the testimony
of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona, Victorio Payad and
Marciano Almario, but also because during the hearing of these
proceedings in the Court of First Instance, Attorney Viola was present, and
the oppositor then could have very well called him to the witness stand,
inasmuch as her attorney already knew what Attorney Viola was to testify
about, yet she did not call him. The last fact is shown by the following
excerpt from pages 148 to 150 of the transcript:

Mr. PANIS (attorney for the oppositor, addressing the court): Your
Honor, I should like to present as the last witness Attorney Fernando
Viola who was called by the petitioner Victoria Payad to prepare the
will of the deceased in his favor on September 5, 1933.

COURT: But, Mr. Panis, are you going to testify for Attorney
Fernando Viola? — Mr. PANIS: No, Your Honor.

COURT: Well, where is that attorney? Where is that witness whom

you wish to call to the witness stand? — Mr. PANIS: Your Honor, he
is busy in the branch, presided over by Judge Sison.

COURT: And when can he come? Mr. — PANIS. I am now going to

find out, Your Honor. If the other party, Your Honor, is willing to admit
what said witness is going to testify in the sense that said Attorney
Fernando Viola went to the house of the deceased on September 5,
1933, for the purpose of talking to the deceased to draft the will upon
petition of Mr. Victorio Payad; if the other party admits that, then I am
going waive the presentation of the witness Mr. Fernando Viola.

Mr. ALMARIO (attorney for the petitioner): We cannot admit that.

COURT: The court had already assumed beforehand that the other
party would not admit that proposition.
 Mr. PANIS: I request Your Honor to reserve us the right to call the
witness, Mr. Viola, without prejudice to the other party's calling the
witness it may wish to call.

COURT: The court reserves to the oppositor its right to call Attorney
Viola to the witness stand.

If, after all, the oppositor did not decide to call Attorney Viola to testify as a
witness in her favor, it might have been because she considered his
testimony unimportant and unnecessary, and at the present stage of the
proceedings, it is already too late to claim that what said attorney may now
testify is a newly discovered evidence.

For the foregoing considerations, those stated by this court in the original
decision, and the additional reason that, as held in the case of Chung Kiat
vs. Lim Kio (8 Phil., 297), the right to a new trial on the ground of newly
discovered evidence is limited to ordinary cases pending in this court on
bills of exceptions, the motion for reconsideration and a new trial filed by
the oppositor are hereby denied, ordering that the record be remanded
immediately to the lower court. So ordered.

Avanceña, C. J., Villa-Real, Abad Santos, Imperial, and Laurel, JJ., concur.

Case #12

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-10907 June 29, 1957

AUREA MATIAS, petitioner,

vs.
HON. PRIMITIVO L. GONZALEZ, ETC., ET AL., respondents.
J. Gonzales Orense for petitioner.
Venancio H. Aquino for respondents.

CONCEPCION, J.:

Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of

Hon. Primitivo L. Gonzales, as Judge of the Court of First Instance of
Cavite, in connection with Special Proceedings No. 5213 of said court,
entitled "Testate Estate of the Deceased Gabina Raquel."

On May 15, 1952, Aurea Matias initiated said special proceedings with a
petition for the probate of a document purporting to be the last will and
testament of her aunt, Gabina Raquel, who died single on May 8, 1952, at
the age of 92 years. The heir to the entire estate of the deceased — except
the properties bequeathed to her other niece and nephews, namely,
Victorina Salud, Santiago Salud, Policarpio Salud, Santos Matias and
Rafael Matias — is, pursuant to said instrument, Aurea Matias, likewise,
appointed therein as executrix thereof, without bond. Basilia Salud, a first
cousin of the deceased, opposed the probate of her alleged will, and, after
appropriate proceedings, the court, presided over by respondent Judge,
issued an order, dated February 8, 1956, sustaining said opposition and
denying the petition for probate. Subsequently, Aurea Matias brought the
matter on appeal to this Court (G.R. No. L-10751), where it is now pending
decision.

Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal
of Horacio Rodriguez, as special administrator of the estate of the
deceased, and the appointment, in his stead of Ramon Plata. The motion
was set for hearing on February 23, 1956, on which date the court
postponed the hearing to February 27, 1956. Although notified of this order,
Rodriguez did not appear on the date last mentioned. Instead, he filed an
urgent motion praying for additional time within which to answer the
charges preferred against him by Basilia Salud and for another
postponement of said hearing. This motion was not granted, and Basilia
Salud introduced evidence in support of said charges, whereupon
respondent Judge by an order, dated February 27, 1956, found Rodriguez
guilty of abuse of authority and gross negligence, and, accordingly, relieved
him as special administrator of the estate of the deceased and appointed
Basilia Salud as special administratrix thereof, to "be assisted and advised
by her niece, Miss Victorina Salud," who "shall always act as aide,
interpreter and adviser of Basilia Salud." Said order, likewise, provided that
"Basilia Salud shall be helped by Mr. Ramon Plata . . . who is hereby
appointed as co-administrator."

On March 8, 1956, Aurea Matins asked that said order of February 27,
1956, be set aside and that she be appointed special co-administratrix,
jointly with Horacio Rodriguez, upon the ground that Basilia Salud is over
eighty (80) years of age, totally blind and physically incapacitated to
perform the duties of said office, and that said movant is the universal
heiress of the deceased and the person appointed by the latter as executrix
of her alleged will. This motion was denied in an order dated March 10,
1956, which maintained "the appointment of the three above named
persons" — Basilia Salud, Ramon Plata and Victorina Salud — "for the
management of the estate of the late Gabina Raquel pending final decision
on the probate of the alleged will of said decedent." However, on March 17,
1956, Basilia Salud tendered her resignation as special administratrix by
reason of physical disability, due to old age, and recommended the
appointment, in her place, of Victorina Salud. Before any action could be
taken thereon, or on March 21, 1956, Aurea Matias sought a
reconsideration of said order of March 10, 1956. Moreover, on March 24,
1956, she expressed her conformity to said resignation, but objected to the
appointment, in lieu of Basilia Salud, of Victorina Salud, on account of her
antagonism to said Aurea Matias — she (Victorina Salud) having been the
principal and most interested witness for the opposition to the probate of
the alleged will of the deceased — and proposed that the administration of
her estate be entrusted to the Philippine National Bank, the Monte de
Piedad, the Bank of the Philippine Islands, or any other similar institution
authorized by law therefor, should the court be reluctant to appoint the
movant as special administratrix of said estate. This motion for
reconsideration was denied on March 26, 1956.

Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and

Victorina Salud requested authority to collect the rents due, or which may
be due, to the estate of the deceased and to collect all the produce of her
lands, which was granted on June 23, 1956. On June 27, 1956, said
respondents filed another motion praying for permission to sell the palay of
the deceased then deposited in different rice mills in the province of Cavite,
which respondent judge granted on June 10, 1956. Later on, or on July 10,
1956, petitioner instituted the present action against Judge Gonzales, and
Victorina Salud and Ramon Plata, for the purpose of annulling the above
mentioned orders of respondent Judge, upon the ground that the same had
been issued with grave abuse of discretion amounting to lack or excess of
jurisdiction.

In support of this pretense, it is argued that petitioner should have

preference in the choice of special administratrix of the estate of the
decedent, she (petitioner) being the universal heiress to said estate and,
the executrix appointed in the alleged will of the deceased, that until its final
disallowance — which has not, as yet, taken place she has a special
interest in said estate, which must be protected by giving representation
thereto in the management of said estate; that, apart from denying her any
such representation, the management was given to persons partial to her
main opponent, namely, Basilia Salud, inasmuch as Victorina Salud is
allied to her and Ramon Plata is a very close friend of one of her (Basilia
Salud's) attorneys; that Basilia Salud was made special administratrix
despite her obvious unfitness for said office, she being over eighty (80)
years of age and blind; that said disability is borne out by the fact that on
March 17, 1956, Basilia Salud resigned as special administratrix upon such
ground; that the Rules of Court do not permit the appointment of more than
one special administrator; that Horacio Rodriguez was removed without
giving petitioner a chance to be heard in connection therewith; and that
Ramon Plata and Victorina Salud were authorized to collect the rents due
to the deceased and the produce of her lands, as well to sell her palay,
without previous notice to the petitioner herein.

Upon the other hand, respondents maintain that respondent Judge acted
with the scope of his jurisdiction and without any abuse of discretion; that
petitioner can not validly claim any special interest in the estate of the
deceased, because the probate of the alleged will and testament of the
latter — upon which petitioner relies — has been denied; that Horacio
Rodriguez was duly notified of the proceedings for his removal; and that
Victorina Salud and Ramon Plata have not done anything that would
warrant their removal.

Upon a review of the record, we find ourselves unable to sanction fully the
acts of respondent Judge, for the following reasons:

1. Although Horacio Rodriguez had notice of the hearing of the motion for
his removal, dated February 17, 1956, the record shows that petitioner
herein received copy of said motion of February 24, 1956, or the date after
that set for the hearing thereof. Again, notice of the order of respondent
Judge, dated February 23, 1956, postponing said hearing to February 27,
1956, was not served on petitioner herein.

2. In her motion of February 17, 1956, Basilia Salud prayed for the
dismissal of Horacio Rodriguez, and the appointment of Ramon Plata, as
special administrator of said estate. Petitioner had, therefore, no notice that
her main opponent, Basilia Salud, and the latter's principal
witness, Victorina Salud, would be considered for the management of said.
As a consequence, said petitioner had no opportunity to object to the
appointment of Basilia Salud as special administratrix, and of Victorina
Salud, as her assistant and adviser, and the order of February 27, 1956, to
this effect, denied due process to said petitioner.

3. Said order was issued with evident knowledge of the physical disability
of Basilia Salud. Otherwise respondent Judge would not have directed that
she "be assisted and advised by her niece Victorina Salud," and that the
latter "shall always act as aide, interpreter and adviser of Basilia Salud."

4. Thus, respondent Judge, in effect, appointed three (3) special

administrators — Basilia Salud, Victorina Salud and Ramon Plata. Indeed,
in the order of March 10, 1956, respondent Judge maintained
"the appointment of the three (3) above-named persons for the
management of the estate of the late Gabina Raquel."

5. Soon after the institution of said Special Proceedings No. 5213, an issue
arose between Aurea Matias and Basilia Salud regarding the person to be
appointed special administrator of the estate of the deceased. The former
proposed Horacio Rodriguez, whereas the latter urged the appointment of
Victorina Salud. By an order dated August 11, 1952, the Court, then
presided over by Hon. Jose Bernabe, Judge, decided the matter in favor of
Horacio Rodriguez and against Victorina Salud, upon the ground that,
unlike the latter, who, as a pharmacist and employee in the Santa Isabel
Hospital, resides In the City of Manila, the former, a practicing lawyer and a
former public prosecutor, and later, mayor of the City of Cavite, is a
resident thereof. In other words, the order of resident thereof. In other
words, the order of respondent Judge of February 27, 1956, removing
Rodriguez and appointing Victorina Salud to the management of the estate,
amounted to a reversal of the aforementioned order of Judge Bernabe of
August 11, 1952.
6. Although the probate of the alleged will and testament of Gabina Raquel
was denied by respondent Judge, the order to this effect is not, as yet, final
and executory. It is pending review on appeal taken by Aurea Matias. The
probate of said alleged will being still within realm of legal possibility, Aurea
Matias has — as the universal heir and executrix designated in said
instrument — a special interest to protect during the pendency of said
appeal. Thus, in the case of Roxas vs. Pecson* (46 Off. Gaz., 2058), this
Court held that a widow, designated as executrix in the alleged will and
testament of her deceased husband, the probate of which had denied in an
order pending appeal, "has . . . the same beneficial interest after the
decision of the court disapproving the will, which is now pending
appeal, because the decision is not yet final and may be reversed by the
appellate court."

7. The record shows that there are, at least two (2) factions among the
heirs of the deceased, namely, one, represented by the petitioner, and
another, to which Basilia Salud and Victorina Salud belong. Inasmuch as
the lower court had deemed it best to appoint more than one special
administrator, justice and equity demands that both factions be represented
in the management of the estate of the deceased.

The rule, laid down in Roxas vs. Pecson (supra), to the effect that "only one
special administrator may be appointed to administrator temporarily" the
estate of the deceased, must be considered in the light of the facts
obtaining in said case. The lower court appointed therein one special
administrator for some properties forming part of said estate, and a special
administratrix for other properties thereof. Thus, there were two (2)
separate and independent special administrators. In the case at bar there is
only one (1) special administration, the powers of which shall be exercised
jointly by two special co-administrators. In short, the Roxas case is not
squarely in point. Moreover, there are authorities in support of the power of
courts to appoint several special co-administrators (Lewis vs. Logdan, 87 A.
750; Harrison vs. Clark, 52 A. 514; In re Wilson's Estate, 61 N.Y.S. 2d., 49;
Davenport vs. Davenport, 60 A. 379).

Wherefore, the orders complained of are hereby annulled and set aside.
The lower court should re-hear the matter of removal of Horacio Rodriguez
and appointment of special administrators, after due notice to all parties
concerned, for action in conformity with the views expressed herein, with
costs against respondents Victorina Salud and Ramon Plata. It is so
ordered.

Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo,

Labrador, Reyes, J.B.L. and Felix, JJ., concur.

Case # 13

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-4067 November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO

GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.

Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the

will of Antero Mercado dated January 3, 1943. The will is written in the
Ilocano dialect and contains the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing

testament of Antero Mercado was signed by himself and also by us
below his name and of this attestation clause and that of the left
margin of the three pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect which is spoken
and understood by the testator, and it bears the corresponding
number in letter which compose of three pages and all them were
 signed in the presence of the testator and witnesses, and the
witnesses in the presence of the testator and all and each and every
one of us witnesses.

In testimony, whereof, we sign this statement, this the third day of

January, one thousand nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO (Sgd.) "ROSENDA

EVANGELISTA CORTES
(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote
the name of Antero Mercado, followed below by "A reugo del testator" and
the name of Florentino Javier. Antero Mercado is alleged to have written a
cross immediately after his name. The Court of Appeals, reversing the
judgement of the Court of First Instance of Ilocos Norte, ruled that the
attestation clause failed (1) to certify that the will was signed on all the left
margins of the three pages and at the end of the will by Atty. Florentino
Javier at the express request of the testator in the presence of the testator
and each and every one of the witnesses; (2) to certify that after the signing
of the name of the testator by Atty. Javier at the former's request said
testator has written a cross at the end of his name and on the left margin of
the three pages of which the will consists and at the end thereof; (3) to
certify that the three witnesses signed the will in all the pages thereon in
the presence of the testator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state
that Antero Mercado caused Atty. Florentino Javier to write the testator's
name under his express direction, as required by section 618 of the Code
of Civil Procedure. The herein petitioner (who is appealing by way of
certiorari from the decision of the Court of Appeals) argues, however, that
there is no need for such recital because the cross written by the testator
after his name is a sufficient signature and the signature of Atty. Florentino
Javier is a surplusage. Petitioner's theory is that the cross is as much a
signature as a thumbmark, the latter having been held sufficient by this
Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104;
Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848;
Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual
signature of Antero Mercado or even one of the ways by which he signed
his name. After mature reflection, we are not prepared to liken the mere
sign of the cross to a thumbmark, and the reason is obvious. The cross
cannot and does not have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine there is a

sufficient recital in the attestation clause as to the signing of the will by the
testator in the presence of the witnesses, and by the latter in the presence
of the testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with against the

petitioner. So ordered.

Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo,

JJ., concur.

Case # 14

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-6285 February 15, 1912

PEDRO BARUT, petitioner-appellant,

vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.

A. M. Jimenez for appellant.

Ramon Querubin for appellees.

MORELAND, J.:
This case is closely connected with the case of Faustino Cabacungan vs.
Pedro Barut and another, No. 6284,1 just decided by this court, wherein
there was an application for the probate of an alleged last will and
testament of the same person the probate of whose will is involved in this
suit.

This appeal arises out of an application on the part of Pedro Barut to

probate the last will and testament of Maria Salomon, deceased. It is
alleged in the petition of the probate that Maria Salomon died on the 7th
day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a last
will and testament bearing date March 2, 1907. Severo Agayan, Timotea
Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to have been
witnesses to the execution thereof. By the terms of said will Pedro Barut
received the larger part of decedent's property.

The original will appears on page 3 of the record and is in the Ilocano
dialect. Its translation into Spanish appears at page 11. After disposing of
her property the testatrix revoked all former wills by her made. She also
stated in said will that being unable to read or write, the same had been
read to her by Ciriaco Concepcion and Timotea Inoselda and that she had
instructed Severo Agayan to sign her name to it as testatrix.

The probate of the will was contested and opposed by a number of the
relatives of the deceased on various grounds, among them that a later will
had been executed by the deceased. The will referred to as being a later
will is the one involved in case No. 6284 already referred to. Proceeding for
the probate of this later will were pending at the time. The evidence of the
proponents and of the opponents was taken by the court in both cases for
the purpose of considering them together.

In the case before us the learned probate court found that the will was not
entitled to probate upon the sole ground that the handwriting of the person
who it is alleged signed the name of the testatrix to the will for and on her
behalf looked more like the handwriting of one of the other witnesses to the
will than that of the person whose handwriting it was alleged to be. We do
not believe that the mere dissimilarity in writing thus mentioned by the court
is sufficient to overcome the uncontradicted testimony of all the witnesses
to the will that the signature of the testatrix was written by Severo Agayan
at her request and in her presence and in the presence of all the witnesses
to the will. It is immaterial who writes the name of the testatrix provided it is
written at her request and in her presence and in the presence of all the
witnesses to the execution of the will.

The court seems , by inference at least, to have had in mind that under the
law relating to the execution of a will it is necessary that the person who
signs the name of the testatrix must afterwards sign his own name; and
that, in view of the fact that, in the case at bar, the name signed below that
of the testatrix as the person who signed her name, being, from its
appearance, not the same handwriting as that constituting the name of the
testatrix, the will is accordingly invalid, such fact indicating that the person
who signed the name of the testatrix failed to sign his own. We do not
believe that this contention can be sustained. Section 618 of the Code of
Civil Procedure reads as follows:

No will, except as provided in the preceding section, shall be valid to

pass any estate, real or personal, nor charge or effect the same,
unless it be in writing and signed by the testator, or by the testator's
name written by some other person in his presence, and by his
expenses direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of each. . . .

This is the important part of the section under the terms of which the court
holds that the person who signs the name of the testator for him must also
sign his own name The remainder of the section reads:

The attestation shall state the fact that the testator signed the will, or
caused it to be signed by some other person, at his express direction,
in the presence of three witnesses, and that they attested and
subscribed it in his presence and in the presence of each other. But
the absence of such form of attestation shall not render the will invalid
if it is proven that the will was in fact signed and attested as in this
section provided.

From these provisions it is entirely clear that, with respect to the validity of
the will, it is unimportant whether the person who writes the name of the
testatrix signs his own or not. The important thing is that it clearly appears
that the name of the testatrix was signed at her express direction in the
presence of three witnesses and that they attested and subscribed it in her
presence and in the presence of each other. That is all the statute requires.
It may be wise as a practical matter that the one who signs the testator's
name signs also his own; but that it is not essential to the validity of the will.
Whether one parson or another signed the name of the testatrix in this case
is absolutely unimportant so far as the validity of her will is concerned. The
plain wording of the statute shows that the requirement laid down by the
trial court, if it did lay down, is absolutely unnecessary under the law; and
the reasons underlying the provisions of the statute relating to the
execution of wills do not in any sense require such a provision. From the
standpoint of language it is an impossibility to draw from the words of the
law the inference that the persons who signs the name of the testator must
sign his own name also. The law requires only three witnesses to a will, not
four.

Nor is such requirement found in any other branch of the law. The name of
a person who is unable to write may be signed by another by express
direction to any instrument known to the law. There is no necessity
whatever, so far as the validity of the instrument is concerned, for the
person who writes the name of the principal in the document to sign his
own name also. As a matter of policy it may be wise that he do so
inasmuch as it would give such intimation as would enable a person
proving the document to demonstrate more readily the execution by the
principal. But as a matter of essential validity of the document, it is
unnecessary. The main thing to be established in the execution of the will is
the signature of the testator. If that signature is proved, whether it be
written by himself or by another at his request, it is none the less valid, and
the fact of such signature can be proved as perfectly and as completely
when the person signing for the principal omits to sign his own name as it
can when he actually signs. To hold a will invalid for the lack of the
signature of the person signing the name of the principal is, in the particular
case, a complete abrogation of the law of wills, as it rejects and destroys a
will which the statute expressly declares is valid.

There have been cited three cases which it is alleged are in opposition to
the doctrine which we have herein laid down. They are Ex parte Santiago
(4 Phil. Rep., 692), Ex parte Arcenas (4 Phil. Rep., 700), and
Guison vs. Concepcion (5 Phil. Rep., 551). Not one of these cases is in
point. The headnote in the case last above stated gives an indication of
what all of cases are and the question involved in each one of them. It says:
 The testatrix was not able to sign it for her. Instead of writing her
name he wrote his own upon the will. Held, That the will was not duly
executed.

All of the above cases are precisely of this character. Every one of them
was a case in which the person who signed the will for the testator wrote
his own name to the will instead of writing that of the testator, so that the
testator's name nowhere appeared attached to the will as the one who
executed it. The case of Ex parte Arcenas contains the following paragraph:

Where a testator does not know, or is unable for any reason, to sign
the will himself, it shall be signed in the following manner: "John Doe,
by the testator, Richard Roe;" or in this form: "By the testator. John
Doe, Richard Roe." All this must be written by the witness signing at
the request of the testator.

The only question for decision in that case, as we have before stated, was
presented by the fact that the person who was authorized to sign the name
of the testator to the will actually failed to sign such name but instead
signed his own thereto. The decision in that case related only to that
question.

Aside from the presentation of an alleged subsequent will the contestants

in this case have set forth no reason whatever why the will involved in the
present litigation should not be probated. The due and legal execution of
the will by the testatrix is clearly established by the proofs in this case.
Upon the facts, therefore, the will must be probated. As to the defense of a
subsequent will, that is resolved in case No. 6284 of which we have already
spoken. We there held that said later will not the will of the deceased.

The judgment of the probate court must be and is hereby reversed and that
court is directed to enter an order in the usual form probating the will
involved in this litigation and to proceed with such probate in accordance
with law.

Arellano, C.J., Mapa and Carson, JJ., concur.

Separate Opinions

TORRES, J., concurring:

The undersigned agrees and admits that section 618 of the Code of Civil
Procedure does not expressly require that, when the testator or testatrix is
unable or does not know how to sign, the person who, in the presence and
under the express direction of either of them, writes in the name of the said
testator or testatrix must also sign his own name thereto, it being sufficient
for the validity of the will that the said person so requested to sign the
testator or testatrix write the name of either in his own handwriting.

Since this court began to decide cases with regard to the form, conditions
and validity of wills executed in accordance with the provisions of the Code
of Civil Procedure, never has the specific point just above mentioned been
brought into question. Now for the first time is affirmed in the majority
opinion, written by the learned and distinguished Hon. Justice Moreland,
that, not being required by the said code, the signature of the name of the
person who, at the request of the testator or testatrix, writes the name of
either of the latter to the will executed, is not necessary.

Various and considerable in number have been the decisions rendered by

this court in which, as will be seen further on, upon applying the said
section 618 of Code of Civil Procedure and requiring its observance in
cases where the testator or testatrix is unable or does not know how to sign
his or her name, expressly prescribed the practical method of complying
with the provisions of the law on the subject. Among these decisions
several were written by various justices of this court, some of whom are no
longer on this bench, as they have ceased to hold such position.

Paragraph 2 of the syllabus of case No. 2002, Ex parte Delfin

Santiago,1 concerning the probate of a will, reads as follows:

Wills, authentication of . — Where a will is not signed by a testator

but by some other person in his presence and by his direction, such
other person should affix the name of the testator thereto, and it is not
sufficient that he sign his own name for and instead of the name of
the testator.

Paragraph 1 of the syllabus of case No. 1708, Ex parte Arcenas,2 in the

matter of the probate of a will, states:

1. Wills, requisites of; Civil Code, article repealed. — Article 695 of

the Civil Procedure; consequently where a testator is unable to sign
his name, the person signing at his request must write at the bottom
 of the will the full name of the testator in the latter's presence, and by
his express direction, and then sign his own name in full.

In the syllabus of decision No. 2586, Tomas Guison vs. Maria

Concepcion,3 the following statements appear:

Wills; inability to sign; signature by another. — The testatrix was not

able to sign her name to the will, and she requested another person
to sign it for her. Held, That the will was not duly executed. (Following
Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex parte Arcenas
et al., No. 1708, August 24, 1905; Ex parte Santiago, No. 2002,
August 18, 1905.)

The following syllabus precedes decision No. 3907:4

Execution of wills. — Where it appears in a will that the testator has

stated that by reason of his inability to sign his name he requested
one of the three witnesses present to do so, and that as a matter of
fact, the said witness wrote the name and surname of the testator
who, stating that the instrument executed by him contained his last
will, put the sign of the cross between his said name and surname, all
of which details are set forth in a note which the witnesses forthwith
subscribed in the presence of the testator and of each other, said will
may be probated.

When the essential requisites of section 618 of the Code of Civil

Procedure for the execution and validity of a will have been complied
with, the fact that the witness who was requested to sign the name of
the testator, omitted to state the words 'by request of .......... the
testator,' when writing with his own hand the name and surname of
the said testator, and the fact that said witness subscribed his name
together with the other witnesses and not below the name of the
testator, does not constitute a defect nor invalidate the said will.

The following statement appears in the syllabus of case No. 4132, in the
matter of the will of Maria Siason:5

The recital of the name of the testator as written below the will at his
request serves as a signature by a third person.
Moreover among the grounds given as a basis for this same decision, the
following appears:

In sustaining this form of signature, this court does not intend to

qualify the decisions in Ex parte Santiago (4 Phil. Rep., 692), Ex
parte Arcenas, above quoted, or in Abaya vs. Zalamero. In the
Arcenas case the court pointed out the correct formula for a signature
which ought to be followed, but did not mean to exclude any other for
substantially equivalent.

In the syllabus of decision No. 4454,6 Ex parte Ondevilla et al., the

following appears:

The testatrix was unable to sign her will with her own hand and
requested another person to sign for her in her presence. This the
latter did, first writing the name of the testatrix and signing his own
name below: Held, That the signature of the testatrix so affixed is
sufficient and a will thus executed is admissible to probate. (Ex
parte Arcenas, 4 Phil. Rep., 700.)

The syllabus of decision No. 51497 sets forth that:

The legality of a will is not affected by the insertion, supposed to have been
made subsequently, of another name before that of the testator when such
name may be treated as nonexistent without affecting its validity.

Among the conclusions contained in this last decision the following is found:

Although the said words "For Simplicia de los Santos" be considered

as inserted subsequently, which we neither affirm nor deny, because
a specific determination either way is unnecessary, in our opinion the
signature for the testatrix placed outside of the body of the will
contains the name of the testatrix as if she signed the will, and also
the signature of the witness who, at her request, wrote the name of
the testatrix and signed for her, affirming the truth of this fact, attested
by the other witnesses then present. And this fully complies with the
provisions of section 618 of the Act.

It is true that in none of the decisions above quoted was the rule
established that the person who, at the request of the testator or testatrix,
signed the latter's or the former's name and surname to the will must affix
his own signature; but it no less true that, in prescribing the method in
which the provisions of the said section 618 to be complied with, it was
stated that, in order that a will so executed might be admitted to probate, it
was an indispensable requisite that the person requested to sign in place of
the testator or testatrix, should write the latter's or the former's name and
surname at the foot of the will in the presence and under the direction of
either, as the case might be, and should afterwards sign the instrument
with his own name and surname.

The statement that the person who writes the name and surname of the
testator or testatrix at the foot of the will should likewise affix his own
signature thereto, name and surname, though it be considered to be
neither a rule nor a requisite necessary to follow for the admission of the
will to probate, yet it is unquestionable that, in inserting this last above-
mentioned detail in the aforesaid decisions, it was deemed to be a
complement and integral part of the required conditions for the fulfillment of
the provisions of the law.

It is undisputable that the latter does not require the said subscription and
signature of the person requested to affix to the will the name of the
testator or testatrix who is not able to sign; but by stating in the decisions
hereinabove quoted that the name and surname of the said person should
be affixed by him, no act prohibited by law was recommended or suggested,
nor may such a detail be understood to be contrary or opposed to the plain
provisions thereof.

In the preceding decision itself, it is recognized to be convenient and even

prudent to require that the person requested to write the name of the
testator or testatrix in the will also sign the instrument with his own name
and surname. This statement induces us to believe that, in behalf of the
inhabitants of this country and for sake of an upright administration of
justice, it should be maintained that such a signature must appear in the
will, since no harm could accrue to anyone thereby and, on the contrary, it
would serve as a guarantee of the certainty of the act performed and also
might eliminate some possible cause of controversy between the interested
parties.

The undersigned feels it his duty to admit that, though convinced of the
complete repeal of article 695 of the Civil Code and, while he conceded
that, in the examination and qualification of a will for the purpose of its
probate, one has but to abide by the provisions of said section 618 of the
Code of Civil Procedure, the sole law applicable in the matter, yet, perhaps
imbued with the strongly impelled by a traditional conception of the laws
which he has known since youth, relative to the form of execution of
testaments, he believed it to be a vary natural and common sense requisite
that the signature, with his own name and surname, of the person
requested to write in the will the name and surname of the testator or
testatrix should form a part of the provisions of the aforementioned section
618.

He undoubtedly thought, perhaps mistakenly, that such a requisite of the

signature of the person before referred to — a requisite deemed to be
convenient and prudent in the majority opinion — formed a part of the
provisions of the law, since the latter contains nothing that prohibits it. The
aforementioned different decisions were drawn up in the form in which they
appear, and signed without dissent by all the justices of the court on
various dates. None of them hesitated to sign the decisions,
notwithstanding that it was expressly held therein that the person above
mentioned should, besides writing in the will the name and surname of the
testator or testatrix, also sign the said instrument with his own name and
surname.

Without being understood to criticize the provision contained in the said

section 618 of the Code of Civil Procedure it will not be superfluous to
mention that the system adopted in this section is the same as was in
vogue under the former laws that governed in these Islands, with respect to
witnesses who were not able or did not know how to sign their testimony
given in criminal or civil cases, in which event any person at all might write
the name and surname of the witness who was unable or did not know how
to sign, at the foot of his deposition, where a cross was then drawn, and,
this done, it was considered that the instrument had been signed by the
witness, though it is true that all these formalities were performed before
the judge and the clerk or secretary of the court, which thereupon certified
that such procedure was had in accordance with the law.

The difference is that in the will, pursuant to section 618 of the Code of Civil
Procedure, the person who writes the name and surname of the testator or
testatrix does so by the order and express direction of the one or of the
other, and this fact must be recorded in the will; but in the matter of the
signature of a deposition, the witness, who could not or did not know how
to sign, did not need to designate anyone to write the deponent's name and
surname, and in practice the witness merely made a cross beside his name
and surname, written by whomever it be.

With regard to the execution of wills in accordance with the provisions of

previous statutes, among them those of the Civil Code, the person or
witness requested by the testator or testatrix who was not able or did not
know how to sign, authenticated the will by signing it with his own name
and surname, preceded by the words "at the request of the testator or
testatrix." Paragraph 2 of article 695 of the Civil Code contains the following
provisions bearing on the subject:

Should the testator declare that he does not know how, or is not able
to sign, one of the attesting witnesses or another person shall do so
for him at his request, the notary certifying thereto. This shall be done
if any one of the witnesses can not sign.

So that, prior to the enforcement in this country in 1901 of the Code of Civil
procedure prescribed by the old laws with respect to the signing of a will by
a testator or testatrix who did not know how or who could not sign,
consisted in that the person appointed and requested by the testator or
testatrix to sign in his or her stead, such fact being recorded in the will,
merely affixed at the bottom of the will and after the words "at the request
of the testator," his own name, surname and paragraph.

It is not at all strange that the attorneys of this country, imbued with and
inspired by these legal provisions, which it may said, are traditional to them
in the ideas they have formed of the existing laws in the matter of
procedure in compliance therewith as regards the execution and signing of
a will, should have believed that, after the name and surname of the
testator or testatrix had been written at the foot of the will, the person who
signed the instrument in the manner mentioned should likewise sign the
same with his own name and surname.

If in various decisions it has been indicated that the person who, under the
express direction of the testator or testatrix, wrote the latter's or the
former's name and surname, should also sign the will with his own name
and surname, and since this suggestion is not opposed or contrary to the
law, the undersigned is of opinion that it ought not to be modified or
amended, but that, on the contrary, it should be maintained as a requisite
established by the jurisprudence of this court, inasmuch as such a requisite
is not contrary to law, to public order, or to good custom, is in consonance
with a tradition of this country, does not prejudice the testator nor those
interested in an inheritance, and, on the contrary, constitutes another
guarantee of the truth and authenticity of the letters with which the name
and surname of the testator of testatrix are written, in accordance with his
or her desire as expressed in the will.

Even though the requisites referred to were not recognized in jurisprudence

and were unsupported by any legal doctrine whatever, yet, since it is in
harmony with the juridical usages and customs observed in this country, it
ought, in the humble opinion of the writer, to be maintained for the benefit
of the inhabitants of the Islands and for the sake of a good administration of
justice, because it is not a question of a dangerous innovation or of one
prejudicial to the public good, but a matter of the observance of a
convenient, if not a necessary detail, introduced by the jurisprudence of the
courts and which in the present case has filed a vacancy left by the positive
written law.

The foregoing considerations, which perhaps have not the support of better
premises, but in the opinion of the undersigned, are conducive to the
realization of the purposes of justice, have impelled him to believe that the
proposition should be enforced that the witness requested or invited by the
testator or testatrix to write his or her name to the will, should also
subscribed the instrument by signing thereto his own name and surname;
and therefore, with the proper finding in this sense, and reversal of the
judgment appealed from, that the court below should be ordered to proceed
with the probate of the will of the decedent, Maria Salomon, in accordance
with the law.

Case # 15

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-18979 June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA
VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.

Jose W. Diokno for petitioner-appellee.

Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.

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

Appeal from an order of the Court of First Instance of Manila admitting to

probate the document and its duplicate, marked as Exhibits "A" and "A-1",
as the true last will and testament of Josefa Villacorte, deceased, and
appointing as executor Celso Icasiano, the person named therein as such.

This special proceeding was begun on October 2, 1958 by a petition for the
allowance and admission to probate of the original, Exhibit "A" as the
alleged will of Josefa Villacorte, deceased, and for the appointment of
petitioner Celso Icasiano as executor thereof.

The court set the proving of the alleged will for November 8, 1958, and
caused notice thereof to be published for three (3) successive weeks,
previous to the time appointed, in the newspaper "Manila chronicle", and
also caused personal service of copies thereof upon the known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed

her opposition; and on November 10, 1958, she petitioned to have herself
appointed as a special administrator, to which proponent objected. Hence,
on November 18, 1958, the court issued an order appointing the Philippine
Trust Company as special administrator. 1äwphï1.ñët

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a
manifestation adopting as his own Natividad's opposition to the probate of
the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction

of his evidence; but on June 1, 1959, he filed a motion for the admission of
an amended and supplemental petition, alleging that the decedent left a will
executed in duplicate with all the legal requirements, and that he was, on
that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly
found only on or about May 26, 1959. On June 17, 1959, oppositors
Natividad Icasiano de Gomez and Enrique Icasiano filed their joint
opposition to the admission of the amended and supplemental petition, but
by order of July 20, 1959, the court admitted said petition, and on July 30,
1959, oppositor Natividad Icasiano filed her amended opposition.
Thereafter, the parties presented their respective evidence, and after
several hearings the court issued the order admitting the will and its
duplicate to probate. From this order, the oppositors appealed directly to
this Court, the amount involved being over P200,000.00, on the ground that
the same is contrary to law and the evidence.

The evidence presented for the petitioner is to the effect that Josefa
Villacorte died in the City of Manila on September 12, 1958; that on June 2,
1956, the late Josefa Villacorte executed a last will and testament in
duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro
Guevara Street, Manila, published before and attested by three
instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V.
Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by the
testatrix and by the said three instrumental witnesses on the same date
before attorney Jose Oyengco Ong, Notary Public in and for the City of
Manila; and that the will was actually prepared by attorney Fermin Samson,
who was also present during the execution and signing of the decedent's
last will and testament, together with former Governor Emilio Rustia of
Bulacan, Judge Ramon Icasiano and a little girl. Of the said three
instrumental witnesses to the execution of the decedent's last will and
testament, attorneys Torres and Natividad were in the Philippines at the
time of the hearing, and both testified as to the due execution and
authenticity of the said will. So did the Notary Public before whom the will
was acknowledged by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the document. The latter
also testified upon cross examination that he prepared one original and two
copies of Josefa Villacorte last will and testament at his house in Baliuag,
Bulacan, but he brought only one original and one signed copy to Manila,
retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrendered
simultaneously with the filing of the petition and marked as Exhibit "A"
consists of five pages, and while signed at the end and in every page, it
does not contain the signature of one of the attesting witnesses, Atty. Jose
V. Natividad, on page three (3) thereof; but the duplicate copy attached to
the amended and supplemental petition and marked as Exhibit "A-1" is
signed by the testatrix and her three attesting witnesses in each and every
page.

The testimony presented by the proponents of the will tends to show that
the original of the will and its duplicate were subscribed at the end and on
the left margin of each and every page thereof by the testatrix herself and
attested and subscribed by the three mentioned witnesses in the testatrix's
presence and in that of one another as witnesses (except for the missing
signature of attorney Natividad on page three (3) of the original); that pages
of the original and duplicate of said will were duly numbered; that the
attestation clause thereof contains all the facts required by law to be recited
therein and is signed by the aforesaid attesting witnesses; that the will is
written in the language known to and spoken by the testatrix that the
attestation clause is in a language also known to and spoken by the
witnesses; that the will was executed on one single occasion in duplicate
copies; and that both the original and the duplicate copies were duly
acknowledged before Notary Public Jose Oyengco of Manila on the same
date June 2, 1956.

Witness Natividad who testified on his failure to sign page three (3) of the
original, admits that he may have lifted two pages instead of one when he
signed the same, but affirmed that page three (3) was signed in his
presence.

Oppositors-appellants in turn introduced expert testimony to the effect that

the signatures of the testatrix in the duplicate (Exhibit "A-1") are not
genuine nor were they written or affixed on the same occasion as the
original, and further aver that granting that the documents were genuine,
they were executed through mistake and with undue influence and
pressure because the testatrix was deceived into adopting as her last will
and testament the wishes of those who will stand to benefit from the
provisions of the will, as may be inferred from the facts and circumstances
surrounding the execution of the will and the provisions and dispositions
thereof, whereby proponents-appellees stand to profit from properties held
by them as attorneys-in-fact of the deceased and not enumerated or
mentioned therein, while oppositors-appellants are enjoined not to look for
other properties not mentioned in the will, and not to oppose the probate of
it, on penalty of forfeiting their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that
the testatrix signed both original and duplicate copies (Exhibits "A" and "A-
1", respectively) of the will spontaneously, on the same in the presence of
the three attesting witnesses, the notary public who acknowledged the will;
and Atty. Samson, who actually prepared the documents; that the will and
its duplicate were executed in Tagalog, a language known to and spoken
by both the testator and the witnesses, and read to and by the testatrix and
Atty. Fermin Samson, together before they were actually signed; that the
attestation clause is also in a language known to and spoken by the
testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe
Logan, that the signatures of the testatrix appearing in the duplicate original
were not written by the same had which wrote the signatures in the original
will leaves us unconvinced, not merely because it is directly contradicted by
expert Martin Ramos for the proponents, but principally because of the
paucity of the standards used by him to support the conclusion that the
differences between the standard and questioned signatures are beyond
the writer's range of normal scriptural variation. The expert has, in fact,
used as standards only three other signatures of the testatrix besides those
affixed to the original of the testament (Exh. A); and we feel that with so few
standards the expert's opinion and the signatures in the duplicate could not
be those of the testatrix becomes extremely hazardous. This is particularly
so since the comparison charts Nos. 3 and 4 fail to show convincingly that
the are radical differences that would justify the charge of forgery, taking
into account the advanced age of the testatrix, the evident variability of her
signatures, and the effect of writing fatigue, the duplicate being signed right
the original. These, factors were not discussed by the expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted
and questioned signatures does not appear reliable, considering the
standard and challenged writings were affixed to different kinds of paper,
with different surfaces and reflecting power. On the whole, therefore, we do
not find the testimony of the oppositor's expert sufficient to overcome that
of the notary and the two instrumental witnesses, Torres and Natividad (Dr.
Diy being in the United States during the trial, did not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact

that some heirs are more favored than others is proof of neither (see In
re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal,
45 Phil. 216). Diversity of apportionment is the usual reason for making a
testament; otherwise, the decedent might as well die intestate. The
testamentary dispositions that the heirs should not inquire into other
property and that they should respect the distribution made in the will,
under penalty of forfeiture of their shares in the free part do not suffice to
prove fraud or undue influence. They appear motivated by the desire to
prevent prolonged litigation which, as shown by ordinary experience, often
results in a sizeable portion of the estate being diverted into the hands of
non-heirs and speculators. Whether these clauses are valid or not is a
matter to be litigated on another occassion. It is also well to note that, as
remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168,
fraud and undue influence are mutually repugnant and exclude each other;
their joining as grounds for opposing probate shows absence of definite
evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one witness
to affix his signature to one page of a testament, due to the simultaneous
lifting of two pages in the course of signing, is not per se sufficient to justify
denial of probate. Impossibility of substitution of this page is assured not
only the fact that the testatrix and two other witnesses did sign the
defective page, but also by its bearing the coincident imprint of the seal of
the notary public before whom the testament was ratified by testatrix and all
three witnesses. The law should not be so strictly and literally interpreted
as to penalize the testatrix on account of the inadvertence of a single
witness over whose conduct she had no control, where the purpose of the
law to guarantee the identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation existed, and the
evidence on record attests to the full observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at
1479 (decision on reconsideration) "witnesses may sabotage the will by
muddling or bungling it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely
through pure oversight is shown by his own testimony as well as by the
duplicate copy of the will, which bears a complete set of signatures in every
page. The text of the attestation clause and the acknowledgment before the
Notary Public likewise evidence that no one was aware of the defect at the
time.

This would not be the first time that this Court departs from a strict and
literal application of the statutory requirements, where the purposes of the
law are otherwise satisfied. Thus, despite the literal tenor of the law, this
Court has held that a testament, with the only page signed at its foot by
testator and witnesses, but not in the left margin, could nevertheless be
probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the
requirement for the correlative lettering of the pages of a will, the failure to
make the first page either by letters or numbers is not a fatal defect (Lopez
vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to
require satisfaction of the legal requirements in order to guard against fraud
and bid faith but without undue or unnecessary curtailment of the
testamentary privilege.

The appellants also argue that since the original of the will is in existence
and available, the duplicate (Exh. A-1) is not entitled to probate. Since they
opposed probate of original because it lacked one signature in its third
page, it is easily discerned that oppositors-appellants run here into a
dilemma; if the original is defective and invalid, then in law there is no other
will but the duly signed carbon duplicate (Exh. A-1), and the same is
probatable. If the original is valid and can be probated, then the objection to
the signed duplicate need not be considered, being superfluous and
irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the
omission of one signature in the third page of the original testament was
inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without
a new publication does not affect the jurisdiction of the probate court,
already conferred by the original publication of the petition for probate. The
amended petition did not substantially alter the one first filed, but merely
supplemented it by disclosing the existence of the duplicate, and no
showing is made that new interests were involved (the contents of Exhibit A
and A-1 are admittedly identical); and appellants were duly notified of the
proposed amendment. It is nowhere proved or claimed that the amendment
deprived the appellants of any substantial right, and we see no error in
admitting the amended petition.

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed,

with costs against appellants.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes,

Regala and Makalintal, JJ., concur.
Barrera and Dizon, JJ., took no part.
Case # 16

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-5971 February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.

Valerio Fontanilla and Andres Asprer for appellant.

Anacleto Diaz for appellees.

CARSON, J.:

The only question raised by the evidence in this case as to the due
execution of the instrument propounded as a will in the court below, is
whether one of the subscribing witnesses was present in the small room
where it was executed at the time when the testator and the other
subscribing witnesses attached their signatures; or whether at that time he
was outside, some eight or ten feet away, in a large room connecting with
the smaller room by a doorway, across which was hung a curtain which
made it impossible for one in the outside room to see the testator and the
other subscribing witnesses in the act of attaching their signatures to the
instrument.

A majority of the members of the court is of opinion that this subscribing

witness was in the small room with the testator and the other subscribing
witnesses at the time when they attached their signatures to the instrument,
and this finding, of course, disposes of the appeal and necessitates the
affirmance of the decree admitting the document to probate as the last will
and testament of the deceased.

The trial judge does not appear to have considered the determination of
this question of fact of vital importance in the determination of this case, as
he was of opinion that under the doctrine laid down in the case of Jaboneta
vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing
witnesses was in the outer room when the testator and the other describing
witnesses signed the instrument in the inner room, had it been proven,
would not be sufficient in itself to invalidate the execution of the will. But we
are unanimously of opinion that had this subscribing witness been proven
to have been in the outer room at the time when the testator and the other
subscribing witnesses attached their signatures to the instrument in the
inner room, it would have been invalid as a will, the attaching of those
signatures under circumstances not being done "in the presence" of the
witness in the outer room. This because the line of vision from this witness
to the testator and the other subscribing witnesses would necessarily have
been impeded by the curtain separating the inner from the outer one "at the
moment of inscription of each signature."

In the case just cited, on which the trial court relied, we held that:

The true test of presence of the testator and the witnesses in the
execution of a will is not whether they actually saw each other sign,
but whether they might have been seen each other sign, had they
chosen to do so, considering their mental and physical condition and
position with relation to each other at the moment of inscription of
each signature.

But it is especially to be noted that the position of the parties with relation to
each other at the moment of the subscription of each signature, must be
such that they may see each other sign if they choose to do so. This, of
course, does not mean that the testator and the subscribing witnesses may
be held to have executed the instrument in the presence of each other if it
appears that they would not have been able to see each other sign at that
moment, without changing their relative positions or existing conditions.
The evidence in the case relied upon by the trial judge discloses that "at
the moment when the witness Javellana signed the document he was
actually and physically present and in such position with relation to
Jaboneta that he could see everything that took place by merely casting his
eyes in the proper direction and without any physical obstruction to prevent
his doing so." And the decision merely laid down the doctrine that the
question whether the testator and the subscribing witnesses to an alleged
will sign the instrument in the presence of each other does not depend
upon proof of the fact that their eyes were actually cast upon the paper at
the moment of its subscription by each of them, but that at that moment
existing conditions and their position with relation to each other were such
that by merely casting the eyes in the proper direction they could have
seen each other sign. To extend the doctrine further would open the door to
the possibility of all manner of fraud, substitution, and the like, and would
defeat the purpose for which this particular condition is prescribed in the
code as one of the requisites in the execution of a will.

The decree entered by the court below admitting the instrument

propounded therein to probate as the last will and testament of Pedro
Rimando, deceased, is affirmed with costs of this instance against the
appellant.

Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.

Case # 17

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-5826 April 29, 1953

Testate estate of the late VICENTE CAGRO. JESUSA

CAGRO, petitioner-appellee,
vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.

Clouduallo Lucero and Vicente C. Santos for appellants.

Marciano Chitongco and Zosimo B. Echanova for appellee.

PARAS, C.J.:

This is an appeal interposed by the oppositors from a decision of the Court

of First Instance of Samar, admitting to probate the will allegedly executed
by Vicente Cagro who died in Laoangan, Pambujan, Samar, on February
14, 1949.

The main objection insisted upon by the appellant in that the will is fatally
defective, because its attestation clause is not signed by the attesting
witnesses. There is no question that the signatures of the three witnesses
to the will do not appear at the bottom of the attestation clause, although
the page containing the same is signed by the witnesses on the left-hand
margin.

We are of the opinion that the position taken by the appellant is correct.
The attestation clause is 'a memorandum of the facts attending the
execution of the will' required by law to be made by the attesting witnesses,
and it must necessarily bear their signatures. An unsigned attestation
clause cannot be considered as an act of the witnesses, since the omission
of their signatures at the bottom thereof negatives their participation.

The petitioner and appellee contends that signatures of the three witnesses
on the left-hand margin conform substantially to the law and may be
deemed as their signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal mandate that the
will be signed on the left-hand margin of all its pages. If an attestation
clause not signed by the three witnesses at the bottom thereof, be admitted
as sufficient, it would be easy to add such clause to a will on a subsequent
occasion and in the absence of the testator and any or all of the witnesses.

Wherefore, the appealed decision is reversed and the probate of the will in
question denied. So ordered with costs against the petitioner and appellee.

Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

Separate Opinions

BAUTISTA ANGELO, J., dissenting:

I dissent. In my opinion the will in question has substantially complied with

the formalities of the law and, therefore, should be admitted to probate . It
appears that the will was signed by the testator and was attested by three
instrumental witnesses, not only at the bottom, but also on the left-hand
margin. The witnesses testified not only that the will was signed by the
testator in their presence and in the presence of each other but also that
when they did so, the attestation clause was already written thereon. Their
testimony has not been contradicted. The only objection set up by the
oppositors to the validity of the will is the fact that the signatures of the
instrumental witnesses do not appear immediately after the attestation
clause.

This objection is too technical to be entertained. In the case of Abangan vs.

Abangan, (40 Phil., 476), this court said that when the testamentary
dispositions "are wholly written on only one sheet signed at the bottom by
the testator and three witnesses (as the instant case),their signatures on
the left margin of said sheet would be completely purposeless." In such a
case, the court said, the requirement of the signatures on the left hand
margin was not necessary because the purpose of the law — which is to
avoid the substitution of any of the sheets of the will, thereby changing the
testator's dispositions — has already been accomplished. We may say the
same thing in connection with the will under consideration because while
the three instrumental witnesses did not sign immediately by the majority
that it may have been only added on a subsequent occasion and not at the
uncontradicted testimony of said witnesses to the effect that such
attestation clause was already written in the will when the same was signed.

The following observation made by this court in the Abangan case is very
fitting:

The object of the solemnities surrounding the execution of wills is to

close the door against bad faith and fraud to avoid substitution of wills
and testaments and to guaranty their truth and authenticity. Therefore
the laws on this subject should be interpreted in such a way as to
attain these primordial ends. But, on the other hand, also one must
not lose sight of the fact that it i not the object of the law to restrain
and curtail the exercise of the right to make a will. So when an
interpretation already given assures such ends, any other
interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary useless and frustrative of the
testator's last will, must be disregarded. (supra)
We should not also overlook the liberal trend of the New Civil Code in the
matter of interpretation of wills, the purpose of which, in case of doubt, is to
give such interpretation that would have the effect of preventing intestacy
(article 788 and 791, New Civil Code)

I am therefore of the opinion that the will in question should be admitted to

probate.

Feria, J., concurs.

TUASON, J., dissenting:

I cuncur in Mr. Justice Bautista's dissenting opinion and may add that the
majority decision erroneously sets down as a fact that the attestation
clause was no signed when the witnesses signatures appear on the left
margin and the real and only question is whether such signatures are
legally sufficient.

The only answers, in our humble opinion, is yes. The law on wills does not
provide that the attesting witness should sign the clause at the bottom. In
the absence of such provision, there is no reason why signatures on the
margin are not good. A letter is not any the less the writter's simply
because it was signed, not at the conventional place but on the side or on
top.

Feria, J., concurs.

Case #18
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-7179 June 30, 1955

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD

JAVELLANA, petitioner-appellee,
vs.
DOÑA MATEA LEDESMA, oppositor-appellant.

Fulgencio Vega and Felix D. Bacabac for appellant.

Benjamin H. Tirot for appellee.

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

By order of July 23, 1953, the Court of First Instance of Iloilo admitted to
probate the documents in the Visayan dialect, marked Exhibits D and E, as
the testament and codicil duly executed by the deceased Da. Apolinaria
Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952,
respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and
Vicente Yap as witnesses. The contestant, Da. Matea Ledesma, sister and
nearest surviving relative of said deceased, appealed from the decision,
insisting that the said exhibits were not executed in conformity with law.
The appeal was made directly to this Court because the value of the
properties involved exceeded two hundred thousand pesos.

Originally the opposition to the probate also charged that the testatrix
lacked testamentary capacity and that the dispositions were procured
through undue influence. These grounds were abandoned at the hearing in
the court below, where the issue was concentrated into three specific
questions: (1) whether the testament of 1950 was executed by the testatrix
in the presence of the instrumental witnesses; (2) whether the
acknowledgment clause was signed and the notarial seal affixed by the
notary without the presence of the testatrix and the witnesses; and (3) if so,
whether the codicil was thereby rendered invalid and ineffective. These
questions are the same ones presented to us for resolution.
The contestant argues that the Court below erred in refusing credence to
her witnesses Maria Paderogao and Vidal Allado, cook and driver,
respectively, of the deceased Apolinaria Ledesma. Both testified that on
March 30, 1950, they saw and heard Vicente Yap (one of the witnesses to
the will) inform the deceased that he had brought the "testamento" and
urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria
manifested that she could not go, because she was not feeling well; and
that upon Yap's insistence that the will had to be signed in the attorney's
office and not elsewhere, the deceased took the paper and signed it in the
presence of Yap alone, and returned it with the statement that no one
would question it because the property involved was exclusively hers.

Our examination of the testimony on record discloses no grounds for

reversing the trial Court's rejection of the improbable story of the witnesses.
It is squarely contradicted by the concordant testimony of the instrumental
witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria
Montinola, who asserted under oath that the testament was executed by
testatrix and witnesses in the presence of each other, at the house of the
decedent on General Hughes St., Iloilo City, on March 30, 1950. And it is
highly unlikely, and contrary to usage, that either Tabiana or Yap should
have insisted that Da. Apolinaria, an infirm lady then over 80 years old,
should leave her own house in order to execute her will, when all three
witnesses could have easily repaired thither for the purpose. Moreover, the
cross-examination has revealed fatal flaws in the testimony of Contestant's
witnesses. Both claim to have heard the word "testamento" for the first time
when Yap used it; and they claimed ability to recall that word four years
later, despite the fact that the term meant nothing to either. It is well known
that what is to be remembered must first be rationally conceived and
assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao was
positive that Yap brought the will, and that the deceased alone signed it,
precisely on March 30, 1950; but she could remember no other date, nor
give satisfactory explanation why that particular day stuck in her mind.
Worse still, Allado claimed to have heard what allegedly transpired
between Yap and Da. Apolinaria from the kitchen of the house, that was
later proved to have been separated from the deceased's quarters, and
standing at a much lower level, so that conversations in the main building
could not be distinctly heard from the kitchen. Later, on redirect
examination, Allado sought to cure his testimony by claiming that he was
upstairs in a room where the servants used to eat when he heard Yap
converse with his mistress; but this correction is unavailing, since it was
plainly induced by two highly leading questions from contestant's counsel
that had been previously ruled out by the trial Court. Besides, the
contradiction is hardly consonant with this witness' 18 years of service to
the deceased.

Upon the other hand, the discrepancies in the testimony of the instrumental
witnesses urged upon us by the contestant-appellant, concerning the
presence or absence of Aurelio Montinola at the signing of the testament or
of the codicil, and the identity of the person who inserted the date therein,
are not material and are largely imaginary, since the witness Mrs. Tabiana
confessed inability to remember all the details of the transaction. Neither
are we impressed by the argument that the use of some Spanish terms in
the codicil and testament (like legado, partes iguales, plena propiedad) is
proof that its contents were not understood by the testatrix, it appearing in
evidence that those terms are of common use even in the vernacular, and
that the deceased was a woman of wide business interests.

The most important variation noted by the contestants concerns that

signing of the certificate of acknowledgment (in Spanish) appended to the
Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was
executed after the enactment of the new Civil Code, and, therefore, had to
be acknowledged before a notary public (Art. 806). Now, the instrumental
witnesses (who happen to be the same ones who attested the will of 1950)
asserted that after the codicil had been signed by the testatrix and the
witnesses at the San Pablo Hospital, the same was signed and sealed by
notary public Gimotea on the same occasion. On the other hand, Gimotea
affirmed that he did not do so, but brought the codicil to his office, and
signed and sealed it there. The variance does not necessarily imply
conscious perversion of truth on the part of the witnesses, but appears
rather due to a well-established phenomenon, the tendency of the mind, in
recalling past events, to substitute the usual and habitual for what differs
slightly from it (II Moore on Facts, p. 878; The Ellen McGovern, 27 Fed. 868,
870).

At any rate, as observed by the Court below, whether or not the notary
signed the certification of acknowledgment in the presence of the testatrix
and the witnesses, does not affect the validity of the codicil. Unlike the
Code of 1889 (Art. 699), the new Civil Code does not require that the
signing of the testator, witnesses and notary should be accomplished in
one single act. A comparison of Articles 805 and 806 of the new Civil Code
reveals that while testator and witnesses sign in the presence of each
other, all that is thereafter required is that "every will must be
acknowledged before a notary public by the testator and the witnesses"
(Art. 806); i.e., that the latter should avow to the certifying officer the
authenticity of their signatures and the voluntariness of their actions in
executing the testamentary disposition. This was done in the case before
us. The subsequent signing and sealing by the notary of his certification
that the testament was duly acknowledged by the participants therein is no
part of the acknowledgment itself nor of the testamentary act. Hence their
separate execution out of the presence of the testatrix and her witnesses
can not be said to violate the rule that testaments should be completed
without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman
maxim puts it, "uno codem die ac tempore in eadem loco", and no
reversible error was committed by the Court in so holding. It is noteworthy
that Article 806 of the new Civil Code does not contain words requiring that
the testator and the witnesses should acknowledge the testament on the
same day or occasion that it was executed.

The decision admitting the will to probate is affirmed, with costs against
appellant.

Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo, Bautista

Angelo, Labrador, and Concepcion, JJ., concur.

Case # 19

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I,
Court of First Instance of Cebu, and MANUEL B. LUGAY, respondents.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court First Instance of

Cebu allowing the probate of the last will a testament of the late Valente Z.
Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said
decease opposed the allowance of the will (Exhibit "E"), alleging the will
was executed through fraud, deceit, misrepresentation and undue influence;
that the said instrument was execute without the testator having been fully
informed of the content thereof, particularly as to what properties he was
disposing and that the supposed last will and testament was not executed
in accordance with law. Notwithstanding her objection, the Court allowed
the probate of the said last will and testament Hence this appeal by
certiorari which was given due course.

The only question presented for determination, on which the decision of the
case hinges, is whether the supposed last will and testament of Valente Z.
Cruz (Exhibit "E") was executed in accordance with law, particularly Articles
805 and 806 of the new Civil Code, the first requiring at least three credible
witnesses to attest and subscribe to the will, and the second requiring the
testator and the witnesses to acknowledge the will before a notary public.

Of the three instrumental witnesses thereto, namely Deogracias T.

Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr., one of
them, the last named, is at the same time the Notary Public before whom
the will was supposed to have been acknowledged. Reduced to simpler
terms, the question was attested and subscribed by at least three credible
witnesses in the presence of the testator and of each other, considering
that the three attesting witnesses must appear before the notary public to
acknowledge the same. As the third witness is the notary public himself,
petitioner argues that the result is that only two witnesses appeared before
the notary public to acknowledge the will. On the other hand, private
respondent-appellee, Manuel B. Lugay, who is the supposed executor of
the will, following the reasoning of the trial court, maintains that there is
substantial compliance with the legal requirement of having at least three
attesting witnesses even if the notary public acted as one of them,
bolstering up his stand with 57 American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as

against the purely technical reason that one of the witnesses
required by law signed as certifying to an acknowledgment of
the testator's signature under oath rather than as attesting the
execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are
inclined to sustain that of the appellant that the last will and testament in
question was not executed in accordance with law. The notary public
before whom the will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his
having signed the will. To acknowledge before means to avow (Javellana v.
Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own
as genuine, to assent, to admit; and "before" means in front or preceding in
space or ahead of. (The New Webster Encyclopedic Dictionary of the
English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
English Language, p. 252; Webster's New International Dictionary 2d. p.
245.) Consequently, if the third witness were the notary public himself, he
would have to avow assent, or admit his having signed the will in front of
himself. This cannot be done because he cannot split his personality into
two so that one will appear before the other to acknowledge his
participation in the making of the will. To permit such a situation to obtain
would be sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard

against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G.
583.) That function would defeated if the notary public were one of the
attesting instrumental witnesses. For them he would be interested
sustaining the validity of the will as it directly involves him and the validity of
his own act. It would place him in inconsistent position and the very
purpose of acknowledgment, which is to minimize fraud (Report of Code
Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that notary public may,
in addition, act as a witness to the executive of the document he has
notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482;
Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely
as notary in a will nonetheless makes him a witness thereon (Ferguson v.
Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v.
Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's
Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v.
Smallwood, 15 So. 1030). But these authorities do not serve the purpose of
the law in this jurisdiction or are not decisive of the issue herein because
the notaries public and witnesses referred to aforecited cases merely acted
as instrumental, subscribing attesting witnesses, and not
as acknowledging witnesses. He the notary public acted not only as
attesting witness but also acknowledging witness, a situation not envisaged
by Article 805 of the Civil Code which reads:

ART. 806. Every will must be acknowledged before a notary

public by the testator and the witnesses. The notary public shall
not be required to retain a copy of the will or file another with
the office of the Clerk of Court. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting and
acknowledging witnesses, would have the effect of having only two
attesting witnesses to the will which would be in contravention of the
provisions of Article 80 be requiring at least three credible witnesses to act
as such and of Article 806 which requires that the testator and the required
number of witnesses must appear before the notary public to acknowledge
the will. The result would be, as has been said, that only two witnesses
appeared before the notary public for or that purpose. In the circumstances,
the law would not be duly in observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby

reversed and the probate of the last will and testament of Valente Z. Cruz
(Exhibit "E") is declared not valid and hereby set aside.

Cost against the appellee.

Makalintal, C.J., Castro, Teehankee, Makasiar and Muñoz Palma, JJ.,

concur.