SpecPro 12/03/11 FIRST DIVISION

G.R. No. 128314

May 29, 2002

RODOLFO V. JAO, petitioner, vs. COURT OF APPEALS and PERICO V. JAO, respondents.

YNARES-SANTIAGO, J.:

Rodolfo and Perico Jao were the only sons of the spouses Ignacio Jao Tayag and Andrea V. Jao, who died intestate in 1988 and 1989, respectively. The decedents left real estate, cash, shares of stock and other personal properties. On April 17, 1991, Perico instituted a petition for issuance of letters of administration before the Regional Trial Court of Quezon City, Branch 99, over the estate of his parents, docketed as Special Proceedings No. Q-91-8507.1 Pending the appointment of a regular administrator, Perico moved that he be appointed as special administrator. He alleged that his brother, Rodolfo, was gradually dissipating the assets of the estate. More particularly, Rodolfo was receiving rentals from real properties without rendering any accounting, and forcibly opening vaults belonging to their deceased parents and disposing of the cash and valuables therein. Rodolfo moved for the dismissal of the petition on the ground of improper venue.2 He argued that the deceased spouses did not reside in Quezon City either during their lifetime or at the time of their deaths. The decedents actual residence was in Angeles City, Pampanga, where his late mother used to run and operate a bakery. As the health of his parents deteriorated due to old age, they stayed in Rodolfos residence at 61 Scout Gandia Street, Quezon City, solely for the purpose of obtaining medical treatment and hospitalization. Rodolfo submitted documentary evidence previously executed by the decedents, consisting of income tax returns, voters affidavits, statements of assets and liabilities, real estate tax payments, motor vehicle registration and passports, all indicating that their permanent residence was in Angeles City, Pampanga.
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In his opposition,3 Perico countered that their deceased parents actually resided in Rodolfos house in Quezon City at the time of their deaths. As a matter of fact, it was conclusively declared in their death certificates that their last residence before they died was at 61 Scout Gandia Street, Quezon City.4 Rodolfo himself even supplied the entry appearing on the death certificate of their mother, Andrea, and affixed his own signature on the said document. Rodolfo filed a rejoinder, stating that he gave the information regarding the decedents residence on the death certificates in good faith and through honest mistake. He gave his residence only as reference, considering that their parents were treated in their late years at the Medical City General Hospital in Mandaluyong, Metro Manila. Their stay in his house was merely transitory, in the same way that they were taken at different times for the same purpose to Pericos residence at Legaspi Towers in Roxas Boulevard. The death certificates could not, therefore, be deemed conclusive evidence of the decedents residence in light of the other documents showing otherwise.5 The court required the parties to submit their respective nominees for the position.6 Both failed to comply, whereupon the trial court ordered that the petition be archived.7 Subsequently, Perico moved that the intestate proceedings be revived.8 After the parties submitted the names of their respective nominees, the trial court designated Justice Carlos L. Sundiam as special administrator of the estate of Ignacio Jao Tayag and Andrea Jao.9 On April 6, 1994, the motion to dismiss filed by petitioner Rodolfo was denied, to wit: A mere perusal of the death certificates of the spouses issued separately in 1988 and 1989, respectively, confirm the fact that Quezon City was the last place of residence of the decedents. Surprisingly, the entries appearing on the death certificate of Andrea V. Jao were supplied by movant, Rodolfo V. Jao, whose signature appears in said document. Movant, therefore, cannot disown his own representation by taking an inconsistent position other than his own admission. xxx xxx xxx. WHEREFORE, in view of the foregoing consideration, this court DENIES for lack of merit movants motion to dismiss. SO ORDERED.10 Rodolfo filed a petition for certiorari with the Court of Appeals, which was docketed as CA-G.R. SP No. 35908. On December 11, 1996, the Court of Appeals rendered the assailed decision, the dispositive portion of which reads: WHEREFORE, no error, much less any grave abuse of discretion of the court a quo having been shown, the petition for certiorari is hereby DISMISSED. The questioned order of the respondent Judge is affirmed in toto. SO ORDERED.11 Rodolfos motion for reconsideration was denied by the Court of Appeals in the assailed resolution dated February 17, 1997. 12 Hence, this petition for review, anchored on the following grounds: I RESPONDENT COURT HAD DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH THE LAW AND IS DIRECTLY CONTRADICTORY TO THE APPLICABLE DECISION ALREADY RENDERED BY THIS HONORABLE COURT.

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II RESPONDENT COURT ERRED IN DISREGARDING THE RULING OF THIS HONORABLE COURT IN THE CASE OF EUSEBIO VS. EUSEBIO, 100 PHILS. 593, WHICH CLEARLY INTERPRETED WHAT IS MEANT BY RESIDENCE IN SEC. 1 OF RULE 73 OF THE RULES OF COURT. III RESPONDENT COURT ERRED IN HOLDING THAT PHYSICAL PRESENCE IN A PLACE AT THE TIME OF DEATH IS DETERMINATIVE OF DECEDENTS RESIDENCE RATHER THAN THE INTENTION OF THE DECEDENTS TO ESTABLISH THEIR PERMANENT RESIDENCE IN ANOTHER PLACE. IV RESPONDENT COURT ERRED IN APPLYING BY ANALOGY THE RESIDENCE CONTEMPLATED IN SEC. 2 OF RULE 4 FOR THE PURPOSE OF SERVING SUMMONS TO A DEFENDANT IN A PERSONAL ACTION TO THE RESIDENCE CONTEMPLATED IN SEC. 1 OF RULE 73 FOR THE PURPOSE OF DETERMINING VENUE IN THE SETTLEMENT OF THE ESTATE OF A DECEASED. V RESPONDENT COURT ERRED IN GIVING MORE WEIGHT TO THE ENTRY OF PETITIONER AND PRIVATE RESPONDENT IN THE RESPECTIVE DEATH CERTIFICATES OF THE DECEDENTS RATHER THAN THE OVERWHELMING EVIDENCE SHOWING THE CLEAR INTENTION OF THE DECEDENTS TO ESTABLISH THEIR PERMANENT RESIDENCE IN ANGELES CITY. VI RESPONDENT COURT ERRED IN APPLYING THE PRINCIPLE OF ESTOPPEL AS AGAINST PETITIONER WHICH CAN NOT BE MORE PERSUASIVE THAN THE CLEAR INTENTION OF THE DECEDENTS THEMSELVES TO ESTABLISH PERMANENT RESIDENCE IN ANGELES CITY. VII RESPONDENT COURT ERRED IN DISMISSING THE PETITION FOR CERTIORARI DESPITE THE CLEAR ABUSE OF DISCRETION ON THE PART OF THE TRIAL COURT IN INSISTING TO TAKE COGNIZANCE OF SP. PROCEEDING NO. Q-91-8507.13 The main issue before us is: where should the settlement proceedings be had --- in Pampanga, where the decedents had their permanent residence, or in Quezon City, where they actually stayed before their demise? Rule 73, Section 1 of the Rules of Court states: Where estate of deceased persons be settled. If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. (underscoring ours) Clearly, the estate of an inhabitant of the Philippines shall be settled or letters of administration granted in the proper court located in the province where the decedent resides at the time of his death. Petitioner Rodolfo invokes our ruling in the case of Eusebio v. Eusebio, et al.,14 where we held that the situs of settlement proceedings shall be the place where the decedent had his permanent residence or domicile at the time of death. In determining residence at the time of death, the following factors must be considered, namely, the decedent had: (a) capacity to choose and freedom of choice; (b) physical presence at the place chosen; and (c) intention to stay therein permanently.15 While it appears that the decedents in this case chose to be physically present in Quezon City for medical convenience, petitioner avers that they never adopted Quezon City as their permanent residence.
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The contention lacks merit. The facts in Eusebio were different from those in the case at bar. The decedent therein, Andres Eusebio, passed away while in the process of transferring his personal belongings to a house in Quezon City. He was then suffering from a heart ailment and was advised by his doctor/son to purchase a Quezon City residence, which was nearer to his doctor. While he was able to acquire a house in Quezon City, Eusebio died even before he could move therein. In said case, we ruled that Eusebio retained his domicile --- and hence, residence --- in San Fernando, Pampanga. It cannot be said that Eusebio changed his residence because, strictly speaking, his physical presence in Quezon City was just temporary. In the case at bar, there is substantial proof that the decedents have transferred to petitioners Quezon City residence. Petitioner failed to sufficiently refute respondents assertion that their elderly parents stayed in his house for some three to four years before they died in the late 1980s.

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Furthermore, the decedents respective death certificates state that they were both residents of Quezon City at the time of their demise. Significantly, it was petitioner himself who filled up his late mothers death certificate. To our mind, this unqualifiedly shows that at that time, at least, petitioner recognized his deceased mothers residence to be Quezon City. Moreover, petitioner failed to contest the entry in Ignacios death certificate, accomplished a year earlier by respondent. The recitals in the death certificates, which are admissible in evidence, were thus properly considered and presumed to be correct by the court a quo. We agree with the appellate courts observation that since the death certificates were accomplished even before petitioner and respondent quarreled over their inheritance, they may be relied upon to reflect the true situation at the time of their parents death. The death certificates thus prevailed as proofs of the decedents residence at the time of death, over the numerous documentary evidence presented by petitioner. To be sure, the documents presented by petitioner pertained not to residence at the time of death, as required by the Rules of Court, but to permanent residence or domicile. In Garcia-Fule v. Court of Appeals,16 we held: xxx xxx xxx the term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or domicile." This term "resides", like the terms "residing" and "residence", is elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. In the application of venue statutes and rules Section 1, Rule 73 of the Revised Rules of Court is of such nature residence rather than domicile is the significant factor. Even where the statute uses the word "domicile" still it is construed as meaning residence and not domicile in the technical sense. Some cases make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term "inhabitant." In other words, "resides" should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it ones domicile. No particular length of time of residence is required though; however, the residence must be more than temporary.17 Both the settlement court and the Court of Appeals found that the decedents have been living with petitioner at the time of their deaths and for some time prior thereto. We find this conclusion to be substantiated by the evidence on record. A close perusal of the challenged decision shows that, contrary to petitioners assertion, the court below considered not only the decedents physical presence in Quezon City, but also other factors indicating that the decedents stay therein was more than temporary. In the absence of any substantial showing that the lower courts factual findings stemmed from an erroneous apprehension of the evidence presented, the same must be held to be conclusive and binding upon this Court. Petitioner strains to differentiate between the venue provisions found in Rule 4, Section 2, 18 on ordinary civil actions, and Rule 73, Section 1, which applies specifically to settlement proceedings. He argues that while venue in the former understandably refers to actual physical residence for the purpose of serving summons, it is the permanent residence of the decedent which is significant in Rule 73, Section 1. Petitioner insists that venue for the settlement of estates can only refer to permanent residence or domicile because it is the place where the records of the properties are kept and where most of the decedents properties are located. Petitioners argument fails to persuade. It does not necessarily follow that the records of a persons properties are kept in the place where he permanently resides. Neither can it be presumed that a persons properties can be found mostly in the place where he establishes his domicile. It may be that he has his domicile in a place different from that where he keeps his records, or where he maintains extensive personal and business interests. No generalizations can thus be formulated on the matter, as the question of where to keep records or retain properties is entirely dependent upon an individuals choice and peculiarities. At any rate, petitioner is obviously splitting straws when he differentiates between venue in ordinary civil actions and venue in special proceedings. In Raymond v. Court of Appeals19 and Bejer v. Court of Appeals,20 we ruled that venue for ordinary civil actions and that for special proceedings have one and the same meaning. As thus defined, "residence", in the context of venue provisions, means nothing more than a persons actual residence or place of abode, provided he resides therein with continuity and consistency.21 All told, the lower court and the Court of Appeals correctly held that venue for the settlement of the decedents intestate estate was properly laid in the Quezon City court. WHEREFORE, in view of the foregoing, the petition is DENIED, and the decision of the Court of Appeals in CA-G.R. SP No. 35908 is AFFIRMED. SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan, and Austria-Martinez, JJ., concur.

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SECOND DIVISION

G.R. No. 115181

March 31, 2000

MARIA SOCORRO AVELINO, petitioner, vs. COURT OF APPEALS, ANGELINA AVELINO, SHARON AVELINO, ANTONIO AVELINO, JR., TRACY AVELINO, PATRICK MICHAEL AVELINO and MARK ANTHONY AVELINO, respondents.

RESOLUTION

QUISUMBING, J.:

Before us is a petition for review on certiorari of the Decision of the Court of Appeals dated February 16, 1994 in CA-G.R. SP No. 31574 as well as its Resolution dated April 28, 1994 denying petitioner's Motion for Reconsideration. The assailed Decision affirmed the Order of the Regional Trial Court of Quezon City, Branch 78, in Sp. Proc. No. Q-91-10441 converting petitioner's petition for the issuance of letters of administration to an action for judicial partition. Petitioner Maria Socorro Avelino is a daughter and compulsory heir of the late Antonio Avelino, Sr., and his first wife private respondent Angelina Avelino. The other private respondents, Sharon, Antonio Jr., Tracy, Patrick and Mark Anthony all surnamed Avelino are likewise compulsory heirs of Avelino, Sr. Sharon, an American, is the second wife of Avelino Sr. The other private respondents are siblings of petitioner Ma. Socorro. The records reveal that on October 24, 1991, Ma. Socorro filed before the Regional Trial Court of Quezon City, Branch 78, docketed as SP Proc. No. Q91-10441, a petition for the issuance of letters of administration of the estate of Antonio Avelino, Sr., who died intestate on April 10, 1989. She asked that she be appointed the administrator of the estate. On December 3, 1992, Angelina, and the siblings filed their opposition by filing a motion to convert the said judicial proceedings to an action for judicial partition which petitioner duly opposed. On February 16, 1993, public respondent judge issued the assailed Order which reads: Acting on the "Motion to Convert Proceedings to Action for Judicial Partition", considering that the petitioner is the only heir not amenable to a simple partition, and all the other compulsory heirs manifested their desire for an expeditious settlement of the estate of the deceased Antonio Avelino, Sr., the same is granted. WHEREFORE, the petition is converted into judicial partition of the estate of deceased Antonio Avelino, Sr. The parties are directed to submit a complete inventory of all the real and personal properties left by the deceased. Set the hearing of the judicial partition on APRIL 13, 1993, at 8:30 o'clock in the morning. Notify all the parties and their counsel of this assignment. SO ORDERED.1 On March 17, 1993, petitioner filed a motion for reconsideration which was denied in an Order dated June 16, 1993. On July 23, 1993, Ma. Socorro filed before the Court of Appeals, a petition for certiorari, prohibition, andmandamus alleging grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the trial court, in granting private respondents' motion to convert the judicial proceeding for the issuance of letters of administration to an action for judicial partition. Her petition was docketed as CA-G.R. SP No. 31574. On February 18, 1994, the respondent appellate court rendered the assailed decision, stating that the "petition is DENIED DUE COURSE" and accordingly dismissed. On March 1, 1994, petitioner duly moved for reconsideration, but it was denied on April 28, 1994.

Hence, this petition. Petitioner assigns the following errors:

THE COURT OF APPEALS ERRED IN UPHOLDING THE LOWER COURT'S FINDING THAT PARTITION IS PROPER UNDER THE PREMISES.

ADMINISTRATION SHOULD BE THE PROPER REMEDY PENDING THE DETERMINATION OF THE CHARACTER AND EXTENT OF THE DECEDENT'S ESTATE.3

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For resolution, we find that given the circumstances in this case, the sole issue here is whether respondent appellate court committed an error of law and gravely abused its discretion in upholding the trial court's finding that a partition is proper. Petitioner submits that: First, no partition of the estate is possible in the instant case as no determination has yet been made of the character and extent of the decedent's estate. She points to the Court's ruling in Arcilles v.Montejo, 26 SCRA 197 (1969), where we held that when the existence of other properties of the decedent is a matter still to be reckoned with, administration proceedings are the proper mode of resolving the same.4 In addition, petitioner contends that the estate is in danger of being depleted for want of an administrator to manage and attend to it. Second, petitioner insists that the Rules of Court does not provide for conversion of a motion for the issuance of letters of administration to an action for judicial partition. The conversion of the motion was, thus, procedurally inappropriate and should be struck down for lack of legal basis. When a person dies intestate, or, if testate, failed to name an executor in his will or the executor so named is incompetent, or refuses the trust, or fails to furnish the bond required by the Rules of Court, then the decedent's estate shall be judicially administered and the competent court shall appoint a qualified administrator in the order established in Section 6 of Rule 78.5 The exceptions to this rule are found in Sections 1 and 2 of Rule 746 which provide: Sec. 1. Extrajudicial settlement by agreement between heirs. If the decedent left no will and no debts and the heirs are all of age or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. . . Sec. 2. Summary settlement of estates of small value. Whenever the gross value of the estate of a deceased person, whether he died testate or intestate, does not exceed ten thousand pesos, and that fact if made to appear to the Regional Trial Court having jurisdiction of the estate by the petition of an interested person and upon hearing, which shall be held not less than one (1) month nor more than three (3) months from the date of the last publication of a notice which shall be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province, and after such other notice to interested persons as the court may direct, the court may proceed summarily, without the appointment of an executor or administrator, and without delay, to grant, if proper, allowance of the will, if any there be, to determine who are the persons legally entitled to participate in the estate and to apportion and divide it among them after the payment of such debts of the estate as the court shall then find to be due; and such persons, in their own right, if they are lawful age and legal capacity, or by their guardians or trustees legally appointed and qualified, if otherwise, shall thereupon be entitled to receive and enter into the possession of the portions of the estate so awarded to them respectively. The court shall make such order as may be just respecting the costs of the proceedings, and all orders and judgments made or rendered in the course thereof shall be recorded in the office of the clerk, and the order of partition or award, if it involves real estate, shall be recorded in the proper register's office. The heirs succeed immediately to all of the rights and properties of the deceased at the moment of the latter's death. 7 Section 1, Rule 74 of the Rules of Court, allows heirs to divide the estate among themselves without need of delay and risks of being dissipated. When a person dies without leaving pending obligations, his heirs, are not required to submit the property for judicial administration, nor apply for the appointment of an administrator by the court.8 We note that the Court of Appeals found that in this case "the decedent left no debts and the heirs and legatees are all of age." 9 With this finding, it is our view that Section 1, Rule 74 of the Rules of Court should apply. In a last-ditch effort to justify the need for an administrator, petitioner insists that there is nothing to partition yet, as the nature and character of the estate have yet to be determined. We find, however, that a complete inventory of the estate may be done during the partition proceedings, especially since the estate has no debts. Hence, the Court of Appeals committed no reversible error when it ruled that the lower court did not err in converting petitioner's action for letters of administration into an action for judicial partition. Nor can we sustain petitioner's argument that the order of the trial court converting an action for letters of administration to one for judicial partition has no basis in the Rules of Court, hence procedurally infirm. The basis for the trial court's order is Section 1, Rule 74 of the Rules of Court. It provides that in cases where the heirs disagree as to the partition of the estate and no extrajudicial settlement is possible, then an ordinary action for partition may be resorted to, as in this case. We have held that where the more expeditious remedy of partition is available to the heirs, then the heirs or the majority of them may not be compelled to submit to administration proceedings. 10 The trial court appropriately converted petitioner's action for letters of administration into a suit for judicial partition, upon motion of the private respondents. No reversible error may be attributed to the Court of Appeals when it found the trial court's action procedurally in order. WHEREFORE, the petition is DENIED for lack of merit, and the assailed decision and resolution of the Court of Appeals in CA-G.R. SP No. 31574 are AFFIRMED. Costs against petitioner. SO ORDERED.
Bellosillo, Mendoza, Buena and De Leon, JJ., concur.

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SECOND DIVISION

G.R. No. 169144

January 26, 2011

IN RE: IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RUPERTA PALAGANAS WITH PRAYER FOR THE APPOINTMENT OF SPECIAL ADMINISTRATOR, MANUEL MIGUEL PALAGANAS and BENJAMIN GREGORIO PALAGANAS, Petitioners, VS. ERNESTO PALAGANAS, Respondent.

DECISION

ABAD, J.:

This case is about the probate before Philippine court of a will executed abroad by a foreigner although it has not been probated in its place of execution. The Facts and the Case On November 8, 2001 Ruperta C. Palaganas (Ruperta), a Filipino who became a naturalized United States (U.S.) citizen, died single and childless. In the last will and testament she executed in California, she designated her brother, Sergio C. Palaganas (Sergio), as the executor of her will for she had left properties in the Philippines and in the U.S. On May 19, 2003 respondent Ernesto C. Palaganas (Ernesto), another brother of Ruperta, filed with the Regional Trial Court (RTC) of Malolos, Bulacan, a petition for the probate of Rupertas will and for his appointment as special administrator of her estate.[1] On October 15, 2003, however, petitioners Manuel Miguel Palaganas (Manuel) and Benjamin Gregorio Palaganas (Benjamin), nephews of Ruperta, opposed the petition on the ground that Rupertas will should not be probated in the Philippinesbut in the U.S. where she executed it. Manuel and Benjamin added that, assuming Rupertas will could be probated in thePhilippines, it is invalid nonetheless for having been executed under duress and without the testators full understanding of the consequences of such act. Ernesto, they claimed, is also not qualified to act as administrator of the estate. Meantime, since Rupertas foreign-based siblings, Gloria Villaluz and Sergio, were on separate occasions in the Philippines for a short visit, respondent Ernesto filed a motion with the RTC for leave to take their deposition, which it granted. On April, 13, 2004 the RTC directed the parties to submit their memorandum on the issue of whether or not Rupertas U.S. will may be probated in and allowed by a court in the Philippines. On June 17, 2004 the RTC issued an order:[2] (a) admitting to probate Rupertas last will; (b) appointing respondent Ernesto as special administrator at the request of Sergio, the U.S.-based executor designated in the will; and (c) issuing the Letters of Special Administration to Ernesto. Aggrieved by the RTCs order, petitioner nephews Manuel and Benjamin appealed to the Court of Appeals (CA),[3] arguing that an unprobated will executed by an American citizen in the U.S. cannot be probated for the first time in the Philippines. On July 29, 2005 the CA rendered a decision,[4] affirming the assailed order of the RTC,[5] holding that the RTC properly allowed the probate of the will, subject to respondent Ernestos submission of the authenticated copies of the documents specified in the order and his posting of required bond. The CA pointed out that Section 2, Rule 76 of the Rules of Court does not require prior probate and allowance of the will in the country of its execution, before it can be probated in the Philippines. The present case, said the CA, is different from reprobate, which refers to a will already probated and allowed abroad. Reprobate is governed by different rules or procedures. Unsatisfied with the decision, Manuel and Benjamin came to this Court. The Issue Presented The key issue presented in this case is whether or not a will executed by a foreigner abroad may be probated in the Philippinesalthough it has not been previously probated and allowed in the country where it was executed. The Courts Ruling Petitioners Manuel and Benjamin maintain that wills executed by foreigners abroad must first be probated and allowed in the country of its execution before it can be probated here. This, they claim, ensures prior compliance with the legal formalities of the country of its execution. They insist that local courts can only allow probate of such wills if the proponent proves that: (a) the testator has been admitted for probate in such foreign country, (b) the will has been admitted to probate there under its laws, (c) the probate court has jurisdiction over the proceedings, (d) the law on probate procedure in that foreign country and proof of compliance with the same, and (e) the legal requirements for the valid execution of a will. But our laws do not prohibit the probate of wills executed by foreigners abroad although the same have not as yet been probated and allowed in the countries of their execution. A foreign will can be given legal effects in our jurisdiction. Article 816 of the Civil Code states that the will of an alien who is abroad produces effect in the Philippines if made in accordance with the formalities prescribed by the law of the place where he resides, or according to the formalities observed in his country.[6] In this connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides that if the decedent is an inhabitant of a foreign country, the RTC of the province where he has an estate may take cognizance of the settlement of such estate. Sections 1 and 2 of Rule 76 further state that the executor, devisee, or legatee named in the will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed. Our rules require merely that the petition for the allowance of a will must show, so far as known to the petitioner: (a) the jurisdictional facts; (b) the names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent; (c) the probable value and character of the property of the estate; (d) the name of the person for whom letters are prayed; and (e) if the will has not been delivered to the court, the name of the person having custody of it. Jurisdictional facts refer to the fact of death of the decedent, his residence at the time of his death in the province where the probate court is sitting, or if he is an inhabitant of a foreign country, the estate he left in such province.[7] The rules do not require proof that the foreign will has already been allowed and probated in the country of its execution.

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In insisting that Rupertas will should have been first probated and allowed by the court of California, petitioners Manuel and Benjamin obviously have in mind the procedure for the reprobate of will before admitting it here. But, reprobate or re-authentication of a will already probated and allowed in a foreign country is different from that probate where the will is presented for the first time before a competent court. Reprobate is specifically governed by Rule 77 of the Rules of Court. Contrary to petitioners stance, since this latter rule applies only to reprobate of a will, it cannot be made to apply to the present case. In reprobate, the local court acknowledges as binding the findings of the foreign probate court provided its jurisdiction over the matter can be established. Besides, petitioners stand is fraught with impractically. If the instituted heirs do not have the means to go abroad for the probate of the will, it is as good as depriving them outright of their inheritance, since our law requires that no will shall pass either real or personal property unless the will has been proved and allowed by the proper court.[8] Notably, the assailed RTC order of June 17, 2004 is nothing more than an initial ruling that the court can take cognizance of the petition for probate of Rupertas will and that, in the meantime, it was designating Ernesto as special administrator of the estate. The parties have yet to present evidence of the due execution of the will, i.e. the testators state of mind at the time of the execution and compliance with the formalities required of wills by the laws of California. This explains the trial courts directive for Ernesto to submit the duly authenticated copy of Rupertas will and the certified copies of the Laws of Succession and Probate of Will of California. WHEREFORE, the Court DENIES the petition and AFFIRMS the Court of Appeals decision in CA-G.R. CV 83564 dated July 29, 2005. SO ORDERED.

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SECOND DIVISION

G.R. No. 129505

January 31, 2000

OCTAVIO S. MALOLES II, petitioner, vs. PACITA DE LOS REYES PHILLIPS, respondent.

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G.R. No. 133359

January 31, 2000

OCTAVIO S. MALOLES II, petitioner, vs. COURT OF APPEALS, HON. FERNANDO V. GOROSPE, JR., in his Official Capacity as Presiding Judge of RTC-Makati, Branch 61, and PACITA PHILLIPS as the alleged executrix of the alleged will of the late Dr. Arturo de Santos, respondents.

MENDOZA, J.:

These are petitions for review on certiorari of the decisions of the Thirteenth and the Special Eighth Divisions of the Court of Appeals which ruled that petitioner has no right to intervene in the settlement of the estate of Dr. Arturo de Santos. The cases were consolidated considering that they involve the same parties and some of the issues raised are the same. The facts which gave rise to these two petitions are as follows: On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed a petition for probate of his will 1in the Regional Trial Court, Branch 61, Makati, docketed as Sp. Proc. No. M-4223. In his petition, Dr. De Santos alleged that he had no compulsory heirs; that he had named in his will as sole legatee and devisee the Arturo de Santos Foundation, Inc.; that he disposed by his will his properties with an approximate value of not less than P2,000,000.00; and that copies of said will were in the custody of the named executrix, private respondent Pacita de los Reyes Phillips. A copy of the will2 was annexed to the petition for probate. On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61 issued an order granting the petition and allowing the will. The order reads: On 03 August 1995, the Court issued an Order setting the hearing of the petition on 12 September 1995, at 8:30 o'clock in the morning, copies of which were served to Arturo de Santos Foundation, Inc. and Ms. Pacita de los Reyes Phillips (Officer's Return, dated 04 September 1995 attached to the records). When the case was called for hearing on the date set, no oppositor appeared nor any written opposition was ever filed and on motion of petitioner, he was allowed to adduce his evidence in support of the petition. Petitioner personally appeared before this Court and was placed on the witness stand and was directly examined by the Court through "free wheeling" questions and answers to give this Court a basis to determine the state of mind of the petitioner when he executed the subject will. After the examination, the Court is convinced that petitioner is of sound and disposing mind and not acting on duress, menace and undue influence or fraud, and that petitioner signed his Last Will and Testament on his own free and voluntary will and that he was neither forced nor influenced by any other person in signing it. Furthermore, it appears from the petition and the evidence adduced that petitioner in his lifetime, executed his Last Will and Testament (Exhs. "A", "A-1", "A-2", "A-4", "A-5") at his residence situated at 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City; said Last Will and Testament was signed in the presence of his three (3) witnesses, namely, to wit: Dr. Elpidio Valencia (Exhs. "A-6", "A-7", "A-8", "A-16", "A-16A"), Atty. Edward J. Berenguer (Exhs. "A-3", "A-3-A", "A-9", "A-10", & "A-11"), and Atty. Victoria C. delos Reyes (Exhs. "A-12", "A-13", "A-14", "A-17", & "A-18"), who in turn, in the presence of the testator and in the presence of each and all of the witnesses signed the said Last Will and Testament and duly notarized before Notary Public Anna Melissa L. Rosario (Exh. "A-15"); on the actual execution of the Last Will and Testament, pictures were taken (Exhs. "B" to "B-3"). Petitioner has no compulsory heirs and Arturo de Santos Foundation, Inc., with address at No. 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City has been named as sole legatee and devisee of petitioner's properties, real and personal, approximately valued at not less than P2 million, Ms. Pacita de los Reyes Phillips was designated as executor and to serve as such without a bond.1wphi1.nt From the foregoing facts, the Court finds that the petitioner has substantially established the material allegations contained in his petition. The Last Will and Testament having been executed and attested as required by law; that testator at the time of the execution of the will was of sane mind and/or not mentally incapable to make a Will; nor was it executed under duress or under the influence of fear or threats; that it was in writing and executed in the language known and understood by the testator duly subscribed thereof and attested and subscribed by three (3) credible witnesses in the presence of the testator and of another; that the testator and all the attesting witnesses signed the Last Will and Testament freely and voluntarily and that the testator has intended that the instrument should be his Will at the time of affixing his signature thereto. WHEREFORE, as prayed for by the petitioner (testator himself) the petition for the allowance of the Last Will and Testament of Arturo de Santos is hereby APPROVED and ALLOWED. Shortly after the probate of his will, Dr. De Santos died on February 26, 1996.

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On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for intervention claiming that, as the only child of Alicia de Santos (testator's sister) and Octavio L. Maloles, Sr., he was the sole full-blooded nephew and nearest of kin of Dr. De Santos. He likewise alleged that he was a creditor of the testator. Petitioner thus prayed for the reconsideration of the order allowing the will and the issuance of letters of administration in his name. On the other hand, private respondent Pacita de los Reyes Phillips, the designated executrix of the will, filed a motion for the issuance of letters testamentary with Branch 61. Later, however, private respondent moved to withdraw her motion. This was granted, while petitioner was required to file a memorandum of authorities in support of his claim that said court (Branch 61) still had jurisdiction to allow his intervention.3 Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand, private respondent, who earlier withdrew her motion for the issuance of letters testamentary in Branch 61, refiled a petition for the same purpose with the Regional Trial Court, Makati, which was docketed as Sp. Proc. No. M-4343 and assigned to Branch 65. Upon private respondent's motion, Judge Salvador Abad Santos of Branch 65 issued an order, dated June 28, 1996, appointing her as special administrator of Dr. De Santos's estate. On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343 and to set aside the appointment of private respondent as special administrator. He reiterated that he was the sole and full blooded nephew and nearest of kin of the testator; that he came to know of the existence of Sp. Proc. No. M-4343 only by accident; that the probate proceedings in Sp. Proc. No. M-4223 before Branch 61 of the same court was still pending; that private respondent misdeclared the true worth of the testator's estate; that private respondent was not fit to be the special administrator of the estate; and that petitioner should be given letters of administration for the estate of Dr. De Santos. On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc. No. M-4343 to Branch 61, on the ground that "[it] is related to the case before Judge Gorospe of RTC Branch 61 . . ." It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had denied on August 26, 1996 petitioner's motion for intervention. Petitioner brought this matter to the Court of Appeals which, in a decision4 promulgated on February 13, 1998, upheld the denial of petitioner's motion for intervention. Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the records of Sp. Proc. No. M-4343 to Branch 65 on the ground that there was a pending case involving the Estate of Decedent Arturo de Santos pending before said court. The order reads: Acting on the ORDER dated 28 August 1996 of Branch 65, this Court, transferring this case to this Branch 61 on the ground that this case is related with a case before this Court, let this case be returned to Branch 65 with the information that there is no related case involving the ESTATE OF DECEDENT ARTURO DE SANTOS pending before this Branch. There is, however, a case filed by ARTURO DE SANTOS, as petitioner under Rule 76 of the Rules of Court for the Allowance of his will during his lifetime docketed as SP. PROC. NO. M-4223 which was already decided on 16 February 1996 and has become final. It is noted on records of Case No. M-4223 that after it became final, herein Petitioner Pacita de los Reyes Phillips filed a MOTION FOR THE ISSUANCE OF LETTERS TESTAMENTARY, which was subsequently withdrawn after this Court, during the hearing, already ruled that the motion could not be admitted as the subject matter involves a separate case under Rule 78 of the Rules of Court, and movant withdrew her motion and filed this case (No. 4343). Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION before Case No. M-4223 and this motion was already DENIED in the order (Branch 61) of 26 August 1996 likewise for the same grounds that the matter is for a separate case to be filed under Rule 78 of the Rules of Court and cannot be included in this case filed under Rule 76 of the Rules of Court. It is further noted that it is a matter of policy that consolidation of cases must be approved by the Presiding Judges of the affected Branches. Initially, in his decision dated September 23, 1996,5 Judge Abad Santos appeared firm in his position that " . . . it would be improper for (Branch 65) to hear and resolve the petition (Sp. Proc. No. M-4343)," considering that the probate proceedings were commenced with Branch 61. He thus ordered the transfer of the records back to the latter branch. However, he later recalled his decision and took cognizance of the case "to expedite the proceedings." Thus, in his Order, dated October 21, 1996, he stated: Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of Branch 61 to continue hearing this case notwithstanding the fact that said branch began the probate proceedings of the estate of the deceased and must therefore continue to exercise its jurisdiction to the exclusion of all others, until the entire estate of the testator had been partitioned and distributed as per Order dated 23 September 1996, this branch (Regional Trial Court Branch 65) shall take cognizance of the petition if only to expedite the proceedings, and under the concept that the Regional Trial Court of Makati City is but one court. Furnish a copy of this order to the Office of the Chief justice and the Office of the Court Administrator, of the Supreme Court; the Hon. Fernando V. Gorospe, Jr.; Pacita De Los Reyes Phillips, Petitioner; and Octavio de Santos Maloles, Intervenor. On November 4, 1996, Judge Abad Santos granted petitioner's motion for intervention. Private respondent moved for a reconsideration but her motion was denied by the trial court. She then filed a petition for certiorari in the Court of Appeals which, on February 26, 1997, rendered a decision 6 setting aside the trial court's order on the ground that petitioner had not shown any right or interest to intervene in Sp. Proc. No. M-4343. Hence, these petitions which raise the following issues:

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1. Whether or not the Honorable Regional Trial Court Makati, Branch 61 has lost jurisdiction to proceed with the probate proceedings upon its issuance of an order allowing the will of Dr. Arturo de Santos. 2. Whether or not the Honorable (Regional Trial Court Makati, Branch 65) acquired jurisdiction over the petition for issuance of letters testamentary filed by (private) respondent. 3. Whether or not the petitioner, being a creditor of the late Dr. Arturo de Santos, has a right to intervene and oppose the petition for issuance of letters testamentary filed by the respondent. 4. Whether or not (private) respondent is guilty of forum shopping in filing her petition for issuance of letters testamentary with the Regional Trial Court Makati, Branch 65 knowing fully well that the probate proceedings involving the same restate estate of the decedent is still pending with the Regional Trial Court Makati, Branch 61. First. Petitioner contends that the probate proceedings in Branch 61 of RTC-Makati did not terminate upon the issuance of the order allowing the will of Dr. De Santos. Citing the cases of Santiesteban v. Santiesteban7 andTagle v. Manalo,8 he argues that the proceedings must continue until the estate is fully distributed to the lawful heirs, devisees, and legatees of the testator, pursuant to Rule 73, 1 of the Rules of Court. Consequently, petitioner contends that Branch 65 could not lawfully act upon private respondent's petition for issuance of letters testamentary. The contention has no merit. In cases for the probate of wills, it is well-settled that the authority of the court is limited to ascertaining the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law.9 Ordinarily, probate proceedings are instituted only after the death of the testator, so much so that, after approving and allowing the will, the court proceeds to issue letters testamentary and settle the estate of the testator. The cases cited by petitioner are of such nature. In fact, in most jurisdictions, courts cannot entertain a petition for probate of the will of a living testator under the principle of ambulatory nature of wills.10 However, Art. 838 of the Civil Code authorizes the filing of a petition for probate of the will filed by the testator himself. It provides: CIVIL CODE, ART. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's death shall govern. The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. Rule 76, 1 likewise provides: Sec. 1. Who may petition for the allowance of will. Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed. The testator himself may, during his lifetime, petition in the court for the allowance of his will. The rationale for allowing the probate of wills during the lifetime of testator has been explained by the Code Commission thus: Most of the cases that reach the courts involve either the testamentary capacity of the testator or the formalities adopted in the execution of wills. There are relatively few cases concerning the intrinsic validity of testamentary dispositions. It is far easier for the courts to determine the mental condition of a testator during his lifetime than after his death. Fraud, intimidation and undue influence are minimized. Furthermore, if a will does not comply with the requirements prescribed by law, the same may be corrected at once. The probate during the testator's life, therefore, will lessen the number of contest upon wills. Once a will is probated during the lifetime of the testator, the only questions that may remain for the courts to decide after the testator's death will refer to the intrinsic validity of the testamentary dispositions. It is possible, of course, that even when the testator himself asks for the allowance of the will, he may be acting under duress or undue influence, but these are rare cases. After a will has been probated during the lifetime of the testator, it does not necessarily mean that he cannot alter or revoke the same before his death. Should he make a new will, it would also be allowable on his petition, and if he should die before he has had a chance to present such petition, the ordinary probate proceeding after the testator's death would be in order.11 Thus, after the allowance of the will of Dr. De Santos on February 16, 1996, there was nothing else for Branch 61 to do except to issue a certificate of allowance of the will pursuant to Rule 73, 12 of the Rules of Court. There is, therefore, no basis for the ruling of Judge Abad Santos of Branch 65 of RTC-Makati that

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Branch 61 of the Regional Trial Court of Makati having begun the probate proceedings of the estate of the deceased, it continues and shall continue to exercise said jurisdiction to the exclusion of all others. It should be noted that probate proceedings do not cease upon the allowance or disallowance of a will but continues up to such time that the entire estate of the testator had been partitioned and distributed. The fact that the will was allowed during the lifetime of the testator meant merely that the partition and distribution of the estate was to be suspended until the latter's death. In other words, the petitioner, instead of filing a new petition for the issuance of letters testamentary, should have simply filed a manifestation for the same purpose in the probate court.12 Petitioner, who defends the order of Branch 65 allowing him to intervene, cites Rule 73, 1 which states: Where estate of deceased persons settled. If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. The above rule, however, actually provides for the venue of actions for the settlement of the estate of deceased persons. In Garcia Fule v. Court of Appeals, it was held:13 The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far as it depends on the place of residence of the decedent, or of the location of the state," is in reality a matter of venue, as the caption of the Rule indicates: "Settlement of Estate of Deceased Persons. Venue and Processes." It could not have been intended to define the jurisdiction over the subject matter, because such legal provision is contained in a law of procedure dealing merely with procedural matters. Procedure is one thing, jurisdiction over the subject matter is another. The power or authority of the court over the subject matter "existed was fixed before procedure in a given cause began." That power or authority is not altered or changed by procedure, which simply directs the manner in which the power or authority shall be fully and justly exercised. There are cases though that if the power is not exercised conformably with the provisions of the procedural law, purely, the court attempting to exercise it loses the power to exercise it legally. However, this does not amount to a loss of jurisdiction over the subject matter. Rather, it means that the court may thereby lose jurisdiction over the person or that the judgment may thereby be rendered defective for lack of something essential to sustain it. The appearance of this provision in the procedural law at once raises a strong presumption that it has nothing to do with the jurisdiction of the court over the subject matter. In plain words, it is just a matter of method, of convenience to the parties. Indeed, the jurisdiction over probate proceedings and settlement of estates with approximate value of over P100,000.00 (outside Metro Manila) or P200,000.00 (in Metro Manila) belongs to the regional trial courts under B.P. Blg. 129, as amended. The different branches comprising each court in one judicial region do not possess jurisdictions independent of and incompatible with each other.14 It is noteworthy that, although Rule 73, 1 applies insofar as the venue of the petition for probate of the will of Dr. De Santos is concerned, it does not bar other branches of the same court from taking cognizance of the settlement of the estate of the testator after his death. As held in the leading case of Bacalso v. Ramolote:15 The various branches of the Court of First Instance of Cebu under the Fourteenth Judicial District, are a coordinate and co-equal courts, and the totality of which is only one Court of First Instance. The jurisdiction is vested in the court, not in the judges. And when a case is filed in one branch, jurisdiction over the case does not attach to the branch or judge alone, to the exclusion of the other branches. Trial may be held or proceedings continue by and before another branch or judge. It is for this reason that Section 57 of the Judiciary Act expressly grants to the Secretary of Justice, the administrative right or power to apportion the cases among the different branches, both for the convenience of the parties and for the coordination of the work by the different branches of the same court. The apportionment and distribution of cases does not involve a grant or limitation of jurisdiction, the jurisdiction attaches and continues to be vested in the Court of First Instance of the province, and the trials may be held by any branch or judge of the court. Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp. Proc. No. M-4343. Second. Petitioner claims the right to intervene in and oppose the petition for issuance of letters testamentary filed by private respondent. He argues that, as the nearest next of kin and creditor of the testator, his interest in the matter is material and direct. In ruling that petitioner has no right to intervene in the proceedings before Branch 65 of RTC-Makati City, the Court of Appeals held: The private respondent herein is not an heir or legatee under the will of the decedent Arturo de Santos. Neither is he a compulsory heir of the latter. As the only and nearest collateral relative of the decedent, he can inherit from the latter only in case of intestacy. Since the decedent has left a will which has already been probated and disposes of all his properties the private respondent can inherit only if the said will is annulled. His interest in the decedent's estate is, therefore, not direct or immediate. His claim to being a creditor of the estate is a belated one, having been raised for the first time only in his reply to the opposition to his motion to intervene, and, as far as the records show, not supported by evidence. . . . . [T]he opposition must come from one with a direct interest in the estate or the will, and the private respondent has none. Moreover, the ground cited in the private respondent's opposition, that the petitioner has deliberately misdeclared the truth worth and value of the estate, is not relevant to the question of her competency to act as executor. Section 2, Rule 76 of the Rules of Court requires only an allegation of the probable value and character of the property of the estate. The true value can be determined later on in the course of the settlement of the estate.16

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Rule 79, 1 provides: Opposition to issuance of letters testamentary. Simultaneous petition for administration. Any person interested in a will may state in writing the grounds why letters testamentary should not issue to the persons named therein as executors, or any of them, and the court, after hearing upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the same time, be filed for letters of administration with the will annexed. Under this provision, it has been held that an "interested person" is one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor, and whose interest is material and direct, not merely incidental or contingent.17 Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered an "heir" of the testator. It is a fundamental rule of testamentary succession that one who has no compulsory or forced heirs may dispose of his entire estate by will. Thus, Art. 842 of the Civil Code provides: One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed. One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitimate of said heirs. Compulsory heirs are limited to the testator's (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3) The widow or widower; (4) Acknowledged natural children, and natural children by legal fiction; (5) Other illegitimate children referred to in Article 287 of the Civil Code.18 Petitioner, as nephew of the testator, is not a compulsory heir who may have been preterited in the testator's will. Nor does he have any right to intervene in the settlement proceedings based on his allegation that he is a creditor of the deceased. Since the testator instituted or named an executor in his will, it is incumbent upon the Court to respect the desires of the testator. As we stated in Ozaeta v. Pecson:19 The choice of his executor is a precious prerogative of a testator, a necessary concomitant of his right to dispose of his property in the manner he wishes. It is natural that the testator should desire to appoint one of his confidence, one who can be trusted to carry out his wishes in the disposal of his estate. The curtailment of this right may be considered a curtailment of the right to dispose. Only if the appointed executor is incompetent, refuses the trust, or fails to give bond may the court appoint other persons to administer the estate.20 None of these circumstances is present in this case. Third. Petitioner contends that private respondent is guilty of forum shopping when she filed the petition for issuance of letters testamentary (Sp. Proc. No. M-4343) while the probate proceedings (Sp. Proc. No. M-4223) were still pending. According to petitioner, there is identity of parties, rights asserted, and reliefs prayed for in the two actions which are founded on the same facts, and a judgment in either will result in res judicata in the other. This contention has no merit. As stated earlier, the petition for probate was filed by Dr. De Santos, the testator, solely for the purpose of authenticating his will. Upon the allowance of his will, the proceedings were terminated.1wphi1.nt On the other hand, the petition for issuance of letters testamentary was filed by private respondent, as executor of the estate of Dr. De Santos, for the purpose of securing authority from the Court to administer the estate and put into effect the will of the testator. The estate settlement proceedings commenced by the filing of the petition terminates upon the distribution and delivery of the legacies and devises to the persons named in the will. Clearly, there is no identity between the two petitions, nor was the latter filed during the pendency of the former. There was, consequently, no forum shopping. WHEREFORE, the petition is DENIED and the decisions of the Court of Appeals are hereby AFFIRMED. SO ORDERED.
Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ., concur.

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EN BANC

G.R. Nos. L-3087 and L-3088

July 31, 1954

In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY, petitioner-appellant, vs. In re: Intestate Estate of the deceased JOSE B. SUNTAY, FEDERICO C. SUNTAY, administrator-appellee.

Claro M. Recto for appellant. Sison and Aruego for appellee.

PADILLA, J.:

This is an appeal from a decree of the Court of First Instance of Bulacan disallowing the alleged will and testament executed in Manila on November 1929, and the alleged last will and testament executed in Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay. The value of the estate left by the deceased is more than P50,000. On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in the city of Amoy, Fookien province, Republic of China, leaving real and personal properties in the Philippines and a house in Amoy, Fookien province, China, and children by the first marriage had with the late Manuela T. Cruz namely, Apolonio, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano, and Jose, Jr. and a child named Silvino by the second marriage had with Maria Natividad Lim Billian who survived him. Intestate proceedings were instituted in the Court of First Instance of Bulacan (special proceedings No. 4892) and after hearing letters of administration were issued to Apolonio Suntay. After the latter's death Federico C. Suntay was appointed administrator of the estate. On 15 October 1934 the surviving widow filed a petition in the Court of First Instance of Bulacan for the probate of a last will and testament claimed to have been executed and signed in the Philippines on November 1929 by the late Jose B. Suntay. This petition was denied because of the loss of said will after the filing of the petition and before the hearing thereof and of the insufficiency of the evidence to establish the loss of the said will. An appeal was taken from said order denying the probate of the will and this Court held the evidence before the probate court sufficient to prove the loss of the will and remanded the case to the Court of First Instance of Bulacan for the further proceedings (63 Phil., 793). In spite of the fact that a commission from the probate court was issued on 24 April 1937 for the taking of the deposition of Go Toh, an attesting witness to the will, on 7 February 1938 the probate court denied a motion for continuance of the hearing sent by cablegram from China by the surviving widow and dismissed the petition. In the meantime the Pacific War supervened. After liberation, claiming that he had found among the files, records and documents of his late father a will and testament in Chinese characters executed and signed by the deceased on 4 January 1931 and that the same was filed, recorded and probated in the Amoy district court, Province of Fookien, China, Silvino Suntay filed a petition in the intestate proceedings praying for the probate of the will executed in the Philippines on November 1929 (Exhibit B) or of the will executed in Amoy, Fookien, China, on 4 January 1931 (Exhibit N). There is no merit in the contention that the petitioner Silvino Suntay and his mother Maria Natividad Lim Billian are estopped from asking for the probate of the lost will or of the foreign will because of the transfer or assignment of their share right, title and interest in the estate of the late Jose B. Suntay to Jose G. Gutierrez and the spouses Ricardo Gutierrez and Victoria Goo and the subsequent assignment thereof by the assignees to Francisco Pascual and by the latter to Federico C. Suntay, for the validity and legality of such assignments cannot be threshed out in this proceedings which is concerned only with the probate of the will and testament executed in the Philippines on November 1929 or of the foreign will allegedly executed in Amoy on 4 January 1931 and claimed to have been probated in the municipal district court of Amoy, Fookien province, Republic of China. As to prescription, the dismissal of the petition for probate of the will on 7 February 1938 was no bar to the filing of this petition on 18 June 1947, or before the expiration of ten years. As to the lost will, section 6, Rule 77, provides: No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded. The witnesses who testified to the provisions of the lost will are Go Toh, an attesting witness, Anastacio Teodoro and Ana Suntay. Manuel Lopez, who was an attesting witness to the lost will, was dead at the time of the hearing of this alternative petition. In his deposition Go Toh testifies that he was one of the witnesses to the lost will consisting of twenty-three sheets signed by Jose B. Suntay at the bottom of the will and each and every page thereof in the presence of Alberto Barretto, Manuel Lopez and himself and underneath the testator's signature the attesting witnesses signed and each of them signed the attestation clause and each and every page of the will in the presence of the testator and of the other witnesses (answers to the 31st, 41st, 42nd, 49th, 50th, 55th and 63rd interrogatories, Exhibit D-1), but did not take part in the drafting thereof (answer to the 11th interrogatory, Id.); that he knew the contents of the will written in Spanish although he knew very little of that language (answers to the 22nd and 23rd interrogatories and to X-2 cross-interrogatory, Id.) and all he knows about the contends of the lost will was revealed to him by Jose B. Suntay at the time it was executed (answers to the 25th interrogatory and to X-4 and X-8 cross-interrogatories, Id.); that Jose B. Suntay told him that the contents thereof are the same as those of the draft (Exhibit B) (answers to the 33rd interrogatory and to X-8 cross-interrogatory, Id.) which he saw in the office of Alberto Barretto in November 1929 when the will was signed (answers to the 69th, 72nd, and 74th interrogatories, Id); that Alberto Barretto handed the draft and said to Jose B. Suntay: "You had better see if you want any correction" (answers to the 81st, 82nd and 83rd interrogatories, Id.); that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed and executed" (answers to the 91st interrogatory, and to X-18 cross-interrogatory, Id.); that Mrs. Suntay had the draft of the will (Exhibit B) translated into Chinese and he read the translation (answers to the 67th interrogatory, Id.); that he did not read the will and did not compare it (check it up) with the draft (Exhibit B) (answers to X-6 and X-20 cross-interrogatories, Id.). Ana Suntay testifies that sometime in September 1934 in the house of her brother Apolonio Suntay she learned that her father left a will "because of the arrival of my brother Manuel Suntay, who was bringing along with him certain document and he told us or he was telling us that it was the will of our father Jose B. Suntay which was taken from Go Toh. ..." (p. 524, t. s. n., hearing of 24 February 1948); that she saw her brother Apolonio Suntay read

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the document in her presence and of Manuel and learned of the adjudication made in the will by her father of his estate, to wit: one-third to his children, one-third to Silvino and his mother and the other third to Silvino, Apolonio, Concepcion and Jose, Jr. (pp. 526-8, 530-1, 542, t. s. n. Id.); that "after Apolonio read that portion, then he turned over the document to Manuel, and he went away," (p. 528, t. s. n., Id.). On cross-examination, she testifies that she read the part of the will on adjudication to know what was the share of each heir (pp. 530, 544, t. s. n., Id.) and on redirect she testifies that she saw the signature of her father, Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.). Anastacio Teodoro testifies that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948), before the last postponement of the hearing granted by the Court, Go Toh arrived at his law office in the De los Reyes Building and left an envelope wrapped in red handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947); that he checked up the signatures on the envelope Exhibit A with those on the will placed in the envelope (p. 33, t. s. n., Id.); that the will was exactly the same as the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.). If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro And returned by the latter to the former because they could not agree on the amount of fees, the former coming to the latter's office straight from the boat (p. 315, t. s. n., hearing of 19 January 1948) that brought him to the Philippines from Amoy, and that delivery took place in November 1934 (p. 273, t. s. n., Id.), then the testimony of Ana Suntay that she saw and heard her brother Apolonio Suntay read the will sometime in September 1934 (p. 524, t. s. n., hearing of 24 February 1948), must not be true. Although Ana Suntay would be a good witness because she was testifying against her own interest, still the fact remains that she did not read the whole will but only the adjudication (pp. 526-8, 530-1, 542, t. s. n., Id.) and saw only the signature, of her father and of the witnesses Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n.,Id.). But her testimony on cross-examination that she read the part of the will on adjudication is inconsistent with her testimony in chief that after Apolonio had read that part of the will he turned over or handed the document to Manuel who went away (p. 528, t. s. n., Id.). If it is true that Go Toh saw the draft Exhibit B in the office of Alberto Barretto in November 1929 when the will was signed, then the part of his testimony that Alberto Barretto handed the draft to Jose B. Suntay to whom he said: "You had better see if you want any correction" and that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed and executed" cannot be true, for it was not the time for correcting the draft of the will, because it must have been corrected before and all corrections and additions written in lead pencil must have been inserted and copied in the final draft of the will which was signed on that occasion. The bringing in for the draft (Exhibit B) on that occasion is just to fit it within the framework of the appellant's theory. At any rate, all of Go Toh's testimony by deposition on the provisions of the alleged lost will is hearsay, because he came to know or he learned to them from information given him by Jose B. Suntay and from reading the translation of the draft (Exhibit B) into Chinese. Much stress is laid upon the testimony of Federico C. Suntay who testifies that he read the supposed will or the alleged will of his father and that the share of the surviving widow, according to the will, is two-thirds of the estate (p. 229, t. s. n., hearing of 24 October 1947). But this witness testified to oppose the appointment of a co-administrator of the estate, for the reason that he had acquired the interest of the surviving widow not only in the estate of her deceased husband but also in the conjugal property (pp. 148, 205, 228, 229, 231, t. s. n., Id.) Whether he read the original will or just the copy thereof (Exhibit B) is not clear. For him the important point was that he had acquired all the share, participation and interest of the surviving widow and of the only child by the second marriage in the estate of his deceased father. Be that as it may, his testimony that under the will the surviving widow would take two-thirds of the estate of the late Jose B. Suntay is at variance with Exhibit B and the testimony of Anastacio Teodoro. According to the latter, the third for strict legitime is for the ten children; the third for betterment is for Silvino, Apolonio, Concepcion and Jose Jr.; and the third for free disposal is for the surviving widow and her child Silvino. Hence, granting that there was a will duly executed by Jose B. Suntay placed in the envelope (Exhibit A) and that it was in existence at the time of, and not revoked before, his death, still the testimony of Anastacio Teodoro alone falls short of the legal requirement that the provisions of the lost will must be "clearly and distinctly proved by at least two credible witnesses." Credible witnesses mean competent witnesses and those who testify to facts from or upon hearsay are neither competent nor credible witnesses. On the other hand, Alberto Barretto testifies that in the early part of 1929 he prepared or drew up two mills for Jose B. Suntay at the latter's request, the rough draft of the first will was in his own handwriting, given to Manuel Lopez for the final draft or typing and returned to him; that after checking up the final with the rough draft he tore it and returned the final draft to Manuel Lopez; that this draft was in favor of all the children and the widow (pp. 392-4, 449, t. s. n., hearing of 21 February 1948); that two months later Jose B. Suntay and Manuel Lopez called on him and the former asked him to draw up another will favoring more his wife and child Silvino; that he had the rough draft of the second will typed (pp. 395, 449 t. s. n., Id.) and gave it to Manuel Lopez (p. 396, t. s. n., Id.); that he did not sign as witness the second will of Jose B. Suntay copied from the typewritten draft [Exhibit B] (p. 420, t. s. n., Id.); that the handwritten insertions or additions in lead pencil to Exhibit B are not his (pp. 415-7 435-6, 457, t. s. n., Id.); that the final draft of the first will made up of four or five pages (p. 400, t. s. n., Id.) was signed and executed, two or three months after Suntay and Lopez had called on him (pp. 3978, 403, 449, t. s. n., Id.) in his office at the Cebu Portland Cement in the China Banking Building on Dasmarias street by Jose B. Suntay, Manuel Lopez and a Chinaman who had all come from Hagonoy (p. 398, t. s. n., Id.); that on that occasion they brought an envelope (Exhibit A) where the following words were written: "Testamento de Jose B. Suntay" (pp. 399, 404, t. s. n., Id.); that after the signing of the will it was placed inside the envelope (Exhibit A) together with an inventory of the properties of Jose B. Suntay and the envelope was sealed by the signatures of the testator and the attesting witnesses (pp. 398, 401, 441, 443, 461, t. s. n., Id.); that he again saw the envelope (Exhibit A) in his house one Saturday in the later part of August 1934, brought by Go Toh and it was then in perfect condition (pp. 405-6, 411, 440-2, t. s. n., Id.); that on the following Monday Go Toh went to his law office bringing along with him the envelope (Exhibit A) in the same condition; that he told Go Toh that he would charge P25,000 as fee for probating the will (pp. 406, 440-2, Id.); that Go Toh did not leave the envelope (Exhibit A) either in his house or in his law office (p. 407, t. s. n., Id.); that Go Toh said he wanted to keep it and on no occasion did Go Toh leave it to him (pp. 409, 410, t. s. n., Id.). The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert in connection with the complaint for estafa filed against Manuel Suntay for the alleged snatching of the envelope (Exhibit A), corroborates the testimony of Alberto Barretto to the effect that only one will was signed by Jose B. Suntay at his office in which he (Alberto Barretto), Manuel Lopez and Go Toh took part as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh testified before the same assistant fiscal that he did not leave the will in the hands of Anastacio Teodoro (p. 26, t. s. n., Exhibit 6). He said, quoting his own words, "Because I can not give him this envelope even though the contract (on fees) was signed. I have to bring that document to court or to anywhere else myself." (p. 27, t. s. n., Exhibit 6). As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on the point in Rule 78. Section 1 of the rule provides:

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Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines. Section 2 provides: When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines, by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance. Section 3 provides: If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a certificate of its allowance, signed by the Judge, and attested by the seal of the courts, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will shall have the same effect as if originally proved and allowed in such court. The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law of China on procedure in the probate or allowance of wills must also be proved. The legal requirements for the execution of a valid will in China in 1931 should also be established by competent evidence. There is no proof on these points. The unverified answers to the questions propounded by counsel for the appellant to the Consul General of the Republic of China set forth in Exhibits R-1 and R-2, objected to by counsel for the appellee, are inadmissible, because apart from the fact that the office of Consul General does not qualify and make the person who holds it an expert on the Chinese law on procedure in probate matters, if the same be admitted, the adverse party would be deprived of his right to confront and cross-examine the witness. Consuls are appointed to attend to trade matters. Moreover, it appears that all the proceedings had in the municipal district court of Amoy were for the purpose of taking the testimony of two attesting witnesses to the will and that the order of the municipal district court of Amoy does not purport to probate the will. In the absence of proof that the municipal district court of Amoy is a probate court and on the Chinese law of procedure in probate matters, it may be presumed that the proceedings in the matter of probating or allowing a will in the Chinese courts are the a deposition or to a perpetuation of testimony, and even if it were so it does not measure same as those provided for in our laws on the subject. It is a proceedings in rem and for the validity of such proceedings personal notice or by publication or both to all interested parties must be made. The interested parties in the case were known to reside in the Philippines. The evidence shows that no such notice was received by the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing of 24 February 1948). The proceedings had in the municipal district court of Amoy, China, may be likened toe or come up to the standard of such proceedings in the Philippines for lack of notice to all interested parties and the proceedings were held at the back of such interested parties. The order of the municipal district court of Amoy, China, which reads as follows: ORDER: SEE BELOW The above minutes were satisfactorily confirmed by the interrogated parties, who declare that there are no errors, after said minutes were loudly read and announced actually in the court. Done and subscribed on the Nineteenth day of the English month of the 35th year of the Republic of China in the Civil Section of the Municipal District Court of Amoy, China. HUANG KUANG CHENG Clerk of Court CHIANG TENG HWA Judge (Exhibit N-13, p. 89 Folder of Exhibits.). does not purport to probate or allow the will which was the subject of the proceedings. In view thereof, the will and the alleged probate thereof cannot be said to have been done in accordance with the accepted basic and fundamental concepts and principles followed in the probate and allowance of wills. Consequently, the authenticated transcript of proceedings held in the municipal district court of Amoy, China, cannot be deemed and accepted as proceedings leading to the probate or allowance of a will and, therefore, the will referred to therein cannot be allowed, filed and recorded by a competent court of this country. The decree appealed from is affirmed, without pronouncement as to costs.
Pablo, Bengzon, A. Reyes, Labrador and Concepcion, JJ., concur.

Separate Opinions

PARAS, C.J., dissenting:

As a preliminary statement we may well refer to the case of Maria Natividad Lim Billian, petitioner and appellant, vs.Apolonio Suntay, Angel Suntay, Manuel Suntay, and Jose Suntay, oppositors and appellees, 63 Phil., 793-797, in which the following decision was rendered by this Court on November

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25, 1936, holding that the will executed by Jose B. Suntay who died in the City of Amoy, China, on May 14, 1934, was lost under the circumstances pointed out therein, and ordering the return of the case to the Court of First Instance of Bulacan for further proceedings: On May 14, 1934, Jose B. Suntay died in the City of Amoy, China. He married twice, the first time to Manuela T. Cruz with whom he had several children now residing in the Philippines, and the second time to Maria Natividad Lim Billian with whom he had a son. On the same date, May 14, 1934, Apolonio Suntay, eldest son of the deceased by his first marriage, filed the latter's intestate in the Court of First Instance of Manila (civil case No. 4892). On October 15, 1934, and in the same court, Maria Natividad Lim Billian also instituted the present proceedings for the probate of a will allegedly left by the deceased. According to the petitioner, before the deceased died in China he left with her a sealed envelope (Exhibit A) containing his will and, also another document (Exhibit B of the petitioner) said to be a true copy of the original contained in the envelope. The will in the envelope was executed in the Philippines, with Messrs. Go Toh, Alberto Barretto and Manuel Lopez as attesting witnesses. On August 25, 1934, Go Toh, as attorney-in-fact of the petitioner, arrived in the Philippines with the will in the envelope and its copy Exhibit B. While Go Toh was showing this envelope to Apolonio Suntay and Angel Suntay, children by first marriage of the deceased, they snatched and opened it and, after getting its contents and throwing away the envelope, they fled. Upon this allegation, the petitioner asks in this case that the brothers Apolonio, Angel, Manuel and Jose Suntay, children by the first marriage of the deceased, who allegedly have the document contained in the envelope which is the will of the deceased, be ordered to present it in court, that a day be set for the reception of evidence on the will, and that the petitioner be appointed executrix pursuant to the designation made by the deceased in the will. In answer to the court's order to present the alleged will, the brothers Apolonio, Angel, Manuel and Jose Suntay stated that they did not have the said will and denied having snatched it from Go Toh. In view of the allegations of the petition and the answer of the brothers Apolonio, Angel, Manuel and Jose Suntay, the questions raised herein are: The loss of the alleged will of the deceased, whether Exhibit B accompanying the petition is an authentic copy thereof, and whether it has been executed with all the essential and necessary formalities required by law for its probate. At the trial of the case on March 26, 1934, the petitioner put two witnesses upon the stand, Go Toh and Tan Boon Chong, who corroborated the allegation that the brothers Apolonio and Angel appropriated the envelope in the circumstances above-mentioned. The oppositors have not adduced any evidence counter to the testimony of these two witnesses. The court, while making no express finding on this fact, took it for granted in its decision; but it dismissed the petition believing that the evidence is insufficient to establish that the envelope seized from Go Toh contained the will of the deceased, and that the said will was executed with all the essential and necessary formalities required by law for its probate. In our opinion, the evidence is sufficient to establish the loss of the document contained in the envelope. Oppositors' answer admits that, according to Barretto, he prepared a will of the deceased to which he later become a witness together with Go Toh and Manuel Lopez, and that this will was placed in an envelope which was signed by the deceased and by the instrumental witnesses. In court there was presented and attached to the case an open and empty envelope signed by Jose B. Suntay, Alberto Barretto, Go Toh and Manuel Lopez. It is thus undeniable that this envelope Exhibit A is the same one that contained the will executed by the deceased-drafted by Barretto and with the latter, Go Toh and Manuel Lopez as attesting witnesses. These tokens sufficiently point to the loss of the will of the deceased, a circumstance justifying the presentation of secondary evidence of its contents and of whether it was executed with all the essential and necessary legal formalities. The trial of this case was limited to the proof of loss of the will, and from what has taken place we deduce that it was not petitioner's intention to raise, upon the evidence adduced by her, the other points involved herein, namely, as we have heretofore indicated, whether Exhibit B is a true copy of the will and whether the latter was executed with all the formalities required by law for its probate. The testimony of Alberto Barretto bears importantly in this connection. Wherefore, the loss of the will executed by the deceased having been sufficiently established, it is ordered that this case be remanded to the court of origin for further proceedings in obedience to this decision, without any pronouncement as to the costs. So ordered On June 18, 1947, Silvino Suntay, the herein petitioner, filed a petition in the Court of First Instance of Bulacan praying "that an order be issued (a) either directing the continuation of the proceedings in the case remanded by the Supreme Court by virtue of its decision in G. R. No. 44276 and fixing a date for the reception of evidence of the contents of the will declared lost, or the allowance, filing and recording of the will of the deceased which had been duly probated in China, upon the presentation of the certificates and authentications required by Section 41, Rule 123 (Yu Chengco vs. Tiaoqui supra), or both proceedings concurrently and simultaneously; (b) that letters of administration be issued to herein petitioner as coadministrator of the estate of the deceased together with Federico Suntay; and (c) that such other necessary and proper orders be issued which this Honorable Court deems appropriate in the premises." While this petition was opposed by Federico C. Suntay, son of the deceased Jose B. Suntay with his first wife, Manuela T. Cruz, the other children of the first marriage, namely, Ana Suntay, Aurora Suntay, Concepcion Suntay, Lourdes Guevara Vda. de Suntay, Manuel Suntay and Emiliano Suntay, filed the following answer stating that they had no opposition thereto; "Come now the heirs Concepcion Suntay, Ana Suntay, Aurora Suntay, Lourdes Guevara Vda. de Suntay, Manuel Suntay, and Emiliano Suntay, through their undersigned attorney, and, in answer to the alternative petition filed in these proceedings by Silvino Suntay, through counsel, dated June 18, 1947, to this Honorable Court respectfully state that, since said alternative petition seeks only to put into effect the testamentary disposition and wishes of their late father, they have no opposition thereto." After hearing, the Court of First Instance of Bulacan rendered on April 19, 1948, the following decision:

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This action is for the legalization of the alleged will of Jose B. Suntay, deceased. In order to have a comprehensive understanding of this case, it is necessary to state the background on which the alternative petition of the herein petitioner Silvino Suntay has been based. The decision of the Supreme Court (Exhibit O), in re will of the deceased Jose B. Suntay, 63 Phil., 793-797, is hereunder produced: (As quoted above) The above quoted decision of the Supreme Court was promulgated on November 25, 1936 (Exhibit O). The Clerk of the Court of Court of First Instance of Bulacan notified the parties of the decision on December 15, 1936; and the case was set for hearing on February 12, 1937, but it was transferred to March 29, 1937 (Exhibit O), on motion of the then petitioner Maria Natividad Lim Billian (Exhibit F). Again, it was postponed until "further setting" in the order of court dated March 18, 1937, upon motion of the petitioner (Exhibit H). In the meantime, the deposition of Go Toh was being sought (Exhibit H). The hearing of the case was again set for February 7, 1936, by order of the court dated January 5, 1938, upon motion of Emiliano Suntay and Jose Suntay, Jr. On the same day of the hearing which had been set, the petitioner, then, Maria Natividad Lim Billian, sent a telegram from Amoy, China, addressed to the Court of First Instance of Bulacan moving for the postponement of the hearing on the ground that Atty. Eriberto de Silva who was representing her died (Exhibit K). The court, instead of granting the telegraphic motion for postponement, dismissed the case in the order dated February 7, 1938 (Exhibit L). On July 3, 1947, the petitioner Silvino Suntay filed a motion for the consolidation of the intestate Estate of the deceased Jose B. Suntay, Special Proceeding No. 4892 and the Testate Estate of Jose B. Suntay, Special Proceeding No. 4952, which latter case is the subject of the said alternative petition. The motion for the merger and consolidation of the two cases was granted on July 3, 1947. That oppositor, Federico C. Suntay, in the Testate Proceeding filed a motion to dismiss the alternative petition on November 14, 1947, which was denied by the court in its resolution of November 22, 1947. The said oppositor not being satisfied with the ruling of this court denying the motion to dismiss, filed before the Supreme Court a petition for a writ of certiorari with preliminary injunction, which was dismissed for lack of merit on January 27, 1948. In obedience to the decision of the Supreme Court (Exhibit O) and upon the alternative petition of Silvino Suntay, and, further, upon the dismissal of the petition for a writ of certiorari with preliminary injunction, the court was constrained to proceed with the hearing of the probate of the lost will, the draft of which is Exhibit B, or the admission and recording of the will which had been probated in Amoy, China. The evidence for the petitioner, Silvino Suntay, shows that Jose B. Suntay married twice; first to Manuela T. Cruz who died on June 15, 1920 and had begotten with her Apolonio, now deceased, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano and Jose, Jr., all surnamed Suntay, and second, to Maria Natividad Lim Billian with whom he had as the only child Silvino Suntay, the petitioner herein. Some time in November 1929, Jose B. Suntay executed his last will and testament in the office of Atty. Alberto Barretto in Manila, which was witnessed by Alberto Barretto, Manuel Lopez and Go Toh. The will was prepared by said Alberto Barretto upon the instance of Jose B. Suntay, and it was written in the Spanish language which was understood and spoken by said testator. After the due execution of the will, that is signing every page and the attestation clause by the testator and the witnesses in the presence of each other, the will was placed inside the envelope (Exhibit A), sealed and on the said envelope the testator and the three subscribing witnesses also signed, after which it was delivered to Jose B. Suntay. A year or so after the execution of the will, Jose B. Suntay together with his second wife Maria Natividad Lim Billian and Silvino Suntay who was then of tender age went to reside in Amoy, Fookien, China, where he died on May 14, 1934. The will was entrusted to the widow, Maria Natividad Lim Billian. Upon the death of Jose B. Suntay on May 14, 1934, Apolonio Suntay, the oldest son now deceased, instituted the Intestate Proceedings No. 4892, upon the presumption that no will existed. Maria Natividad Lim Billian who remained in Amoy, China, had with her the will and she engaged the services of the law firm of Barretto and Teodoro for the probate of the will. Upon the request of the said attorneys the will was brought to the Philippines by Go Toh who was one of the attesting witnesses, and it was taken to the law office of Barretto and Teodoro. The law firm of Barretto and Teodoro was composed of Atty. Alberto Barretto and Judge Anastacio Teodoro. The probate of the will was entrusted to the junior partner Judge Anastacio Teodoro; and, upon the presentation of the sealed envelope to him, he opened it and examined the said will preparatory to the filing of the petition for probate. There was a disagreement as to the fees to be paid by Maria Natividad Lim Billian, and as she (through Go Toh) could not agree to pay, P20,000 as fees, the will was returned to Go Toh by Judge Anastacio Teodoro after the latter had kept it in his safe, in his office, for three days. Subsequently, the will inside the envelope was snatched from Go Toh by Manuel Suntay and Jose, Jr., which fact has been established in the decision of the Supreme Court at the beginning of this decision. Go Toh could recover the envelope (Exhibit A) and the piece of cloth with which the envelope was wrapped (Exhibit C). The Testate Proceeding was filed nevertheless and in lien of the lost will a draft of the will (Exhibit B) was presented as secondary evidence for probate. It was disallowed by this court through Judge Buenaventura Ocampo, but on appeal the Supreme Court remanded the case to this court for further proceeding (Exhibit C).

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In the meantime, a Chinese will which was executed in Amoy Fookien, China, on January 4, 1931, by Jose B. Suntay, written in Chinese characters (Exhibit P) was discovered in Amoy, China, among the papers left by Jose B. Suntay, and said will had been allowed to probate in the Amoy District Court, China, which is being also presented by Silvino Suntay for allowance and recording in this court. The said petition is opposed by Federico C. Suntay on the main ground that Maria Natividad Lim Billian and Silvino Suntay have no more interest in the properties left by Jose B. Suntay, because they have already sold their respective shares, interests and participations. But such a ground of opposition is not of moment in the instant case, because the proposition involved herein in the legalization of the lost will or the allowance and recording of the will which had been probated in Amoy, China. It is now incumbent upon this court to delve into the evidence whether or not Jose B. Suntay, deceased, left a will (the draft of which is Exhibit B) and another will which was executed and another will which was executed and probated in Amoy, China. There is no longer any doubt that Jose B. Suntay while he was still residing in the Philippines, had executed a will; such is the conclusion of the Supreme Court in its decision (Exhibit O). That the will was snatched and it has never been produced in court by those who snatched it, and consequently considered lost, is also an established fact. The contention of the oppositor, Federico C. Suntay, is that the will that was executed by Jose B. Suntay in the Philippines contained provisions which provided for equal distribution of the properties among the heirs; hence, the draft (Exhibit B) cannot be considered as secondary evidence, because it does not provide for equal distribution, but if favors Maria Natividad Lim Billian and Silvino Suntay. He relies on the testimony of Atty. Alberto Barretto who declared that the first will which he drafted and reduced into a plain copy was the will that was executed by Jose B. Suntay and placed inside the envelope (Exhibit A). Granting that the first will which Atty. Alberto Barretto had drafted became the will of Jose B. Suntay and it was snatched by, and, therefore, it had fallen into the hands of, Manuel Suntay and the brothers of the first marriage, it stands to reason that said Manuel Suntay and brothers would have been primarily interested in the production of said will in court, for obvious reasons, namely, that they would have been favored. But it was suppressed and "evidence willfully suppressed would be adverse if produced" (Section 69 (e), Rule 123 of the Rules of Court). The contention, therefore, that the first will which was drafted by Atty. Barretto was the one placed inside the envelope (Exhibit A) is untenable. It might be said in this connection that the draft of the will (Exhibit B) has been admitted by Atty. Alberto Barretto as identical in substance and form to the second draft which he prepared in typewriting; it differs only, according to him, in style. He denied that the insertions in long hand in the said draft are in his own handwriting; however, Judge Anastacio Teodoro averred that the said insertions are the handwriting of Atty. Alberto Barretto. But when Atty. Alberto Barretto was asked to show any manuscript of his for purposes of comparison, he declined to do so alleging that he did not have any document in his possession showing his handwriting notwithstanding the fact that he was testifying in his own house at 188 Sta. Mesa Boulevard, Manila. He further testified that the first will be drafted contained four or five pages, but the second draft contained twenty-three pages; that he declared in one breath that he did not read the will any more when it was signed by the testator and the attesting witnesses because it would take up much time, and in the same breath he declared that he checked it before it was signed; and that he destroyed the draft of the first will which was in his own handwriting, but he delivered the draft of the second will which he prepared to Jose B. Suntay in the presence of Manuel Lopez, now deceased. Whether or not the final plain copy of the draft of the will (Exhibit B) was executed by the testator, Jose B. Suntay, and attested by the subscribing witnesses, Atty. Alberto Barretto, Manuel Lopez and Go Toh, is the pivotal point in this instant case. Judge Anastacio Teodoro testified that he opened the sealed envelope when it was given to him by Go Toh preparatory to the presentation of the petition for the probate of the said will. As the lawyer entrusted with that task, he had to examine the will and have it copied to be reproduced or appended to the petition. He could not do otherwise if he is worth salt as a good lawyer; he could not perform the stunt of "blind flying" in the judicial firmament. Every step must be taken with certainty and precision under any circumstances. He could not have talked about the attorney's fees with Go Toh, unless he has not examined the will beforehand. And, declaring that it was the exact draft of the will that was inside the envelope (Exhibit A), the testimony of Atty. Alberto Barretto to the contrary notwithstanding. The testimony of Judge Anastacio Teodoro is corroborated by Go Toh, one of the attesting witnesses, in his deposition (Exhibit D-1). Ana Suntay, one of the heirs and who would be affected adversely by the legalization of the will in question, also testified on rebuttal that she saw the original will in the possession of Manuel Suntay, immediately after the snatching. She read it and she particularly remembers the manner in which the properties were to be distributed. Exhibit B was shown to her on the witness stand and she declared that the provision regarding the distribution of the properties in said Exhibit B is the same as that contained in the original will. Said testimony of Ana Suntay, therefore, belies the testimony of Atty. Alberto Barretto. With respect to the proof of lost or destroyed will, Section 6 of Rule 77 provides as follows: "No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or it is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded." Section 8 of the same Rule provides as follows: "If it appears at the time fixed for the hearing that the subscribing witnesses are dead or insane, or that none of them resides in the Philippines the court may admit the testimony of other witnesses to prove the sanity of the testator, and the due execution of the will; and as evidence of the due execution of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses, or any of them."

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Manuel Lopez as one of the subscribing witnesses is dead. Atty. Alberto Barretto and Go Toh are still living. The former testified during the hearing, while Go Toh's deposition was introduced in evidence which was admitted. In the absence of the testimony of Manuel Lopez, deceased, the testimony of Judge Anastacio Teodoro and Ana Suntay was received. It is an established fact that the will, draft of which is Exhibit B, was lost or destroyed; that it was executed and valid and that it existed at the time of the death of Jose B. Suntay. These circumstances also apply to the will (Exhibit P) which was executed in Amoy, China. The contents of the Chinese will is substantially the same as the draft (Exhibit B). Granting that the will executed in the Philippines is nonexistent as contended by the oppositor, although the findings of this court is otherwise, the will executed and probated in China should be allowed and recorded in this court. All the formalities of the law in China had been followed in its execution, on account of which it was duly probated in the Amoy District Court. There is no cogent reason, therefore, why it should not be admitted and recorded in this jurisdiction. The said will (Exhibit P) in Chinese characters is presented as an alternate in case the will executed in the Philippines would not be allowed to probate, or as a corroborative evidence that the will, the draft of which is Exhibit B, has been duly executed in the Philippines by Jose B. Suntay. Rule 78 of the Rules of Court covers the allowance of will proved outside of the Philippines and administration of estate thereunder. Section 1 of said rule provides: "Wills proved and allowed in the United States, or any state or territory thereof, or in foreign country, according to the laws of such state, territory, or country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines." Section 2 of the same rule provides: "When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines, by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance." This court has delved deep into the evidence adduced during the hearing with that penetrating scrutiny in order to discovery the real facts; it had used unsparingly the judicial scapel; and it has winnowed the evidenced to separate the grain from the chaff. All the facts lead to the inevitable conclusion that Jose B. Suntay, in his sound and disposing mind and not acting under duress or undue influence, executed the will which is lost, the draft of which is Exhibit B, with all the necessary formalities prescribed by law. He, likewise, executed the second will (Exhibit P) in Amoy, China, which has been duly probated in Amoy District Court,-a corroborative evidence that the testator really executed the will. Copies of the said wills duly certified and under the seal of the court are appended hereto, marked Exhibits B and P, and they form part of this decision. In view of the foregoing considerations, the court is of the opinion and so declares that the draft of the will (Exhibit B) is, to all legal intents and purposes, and testament of the deceased Jose B. Suntay. With costs against the oppositor, Federico C. Suntay. Oppositor Federico C. Suntay filed on May 20, 1948, a motion for new trial and to set aside the decision rendered on April 19, 1948, to which the petitioner filed an opposition, followed by a reply filed by the oppositor and an answer on the part of the petitioner. Without reopening the case and receiving any new or additional evidence, the Court of First Instance of Bulacan, on September 29, 1948, promulgated the following resolution setting aside his first decision and disallowing the wills sought to be probated by the petitioner in his alternative petition filed on June 18, 1947: This is a motion for new trial and to set aside the decision legalizing the will of Jose B. Suntay and allowing and recording another will executed by him in Amoy, China. By virtue of this motion, this court is constrained to go over the evidence and the law applicable thereto with the view of ascertaining whether or not the motion is well founded. Both parties have presented extensive memoranda in support of their respective contentions. This court has gone over the evidence conscientiously, and it reiterates its findings of the same facts in this resolution, whether or not the facts established by the petitioner, Silvino Suntay, warrant the legalization of the lost will and the allowance and recording of the will that was executed in Amoy, China, is therefore, the subject of this instant motion. A. As to the legalization of the Lost Will. There is no question in the mind of this court that the original will which Jose B. Suntay, deceased executed in the Philippines in the year 1929 was lost (Exhibit O, Decision of the Supreme Court). The evidence adduced by the petitioner during the hearing has established through the testimony of Judge Anastacio Teodoro and that of Go Toh (an attesting witness) that the will was executed by Jose B. Suntay, deceased, with all the formalities required by law. For the purpose of legalizing an original and existing will, the evidence on record is sufficient as to the execution and attesting in the manner required by law. Section 8 of Rule 77 provides as follows: "SEC. 8. Proof when witnesses dead or insane or do not reside in the Philippines. If it appears at the time fixed for the hearing that the subscribing witnesses are dead or insane, or that none of them resides in the Philippines, the court may admit the testimony of other witnesses to prove the sanity of the testator, and the due execution of the will; and as evidence of the execution of the will, may admit proof of the handwriting of the testator and of the subscribing witnesses, or any of them."

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Section 11 of said rule also provides as follows: "SEC. 11. Subscribing witnesses produced or accounted for where contest. If the will is contested, all the subscribing witnesses present in the Philippines and not insane, must be produced and examined, and the death, absence, or insanity of any of them must be satisfactorily shown to the court. If all or some of the subscribing witnesses are present in the Philippines, but outside the province where the will has been filed, their deposition must be taken. If all or some of the subscribing witnesses produced and examined testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law." The three attesting witnesses were Manuel Lopez, deceased Alberto Barretto and Go Toh. The last two witnesses are still living; the former testified against and the latter in favor. In other words, the attesting witness, Go Toh, only, testified in his deposition in favor of the due execution of the will. Hence, the petitioner presented another witness, Judge Anastacio Teodoro, to establish and prove the due execution of the said will. Ana Suntay was also presented as a witness in rebuttal evidence. The testimony of Go Toh in his deposition as an attesting witness, coupled with the testimony of Judge Anastacio Teodoro who was able to examine the original will that was executed by Jose B. Suntay, deceased, when it was given to him by Go Toh for the purpose of filing the petition in court for its legalization, and could recognize the signatures of the testator as well as of the three attesting witnesses on the said original will is sufficient to convince the court that the original will was executed by the deceased Jose B. Suntay with all the formalities required by law. The original will, therefore, if it was presented in court to probate would be allowed to all legal intents and purposes. But it was not the original will that was presented, because it was lost, but an alleged draft (Exhibit B) of the said original will which does not bear the signature of the testator and any of the attesting witness. The original will was duly executed with all the formalities required by law, but it was unfortunately lost; and the curtain falls for the next setting. The Court is now confronted with the legalization of the lost will whether or not the draft (Exhibit B) should be admitted as secondary evidence in lieu of the lost will and allowed to probate. Section 6. Rule 77 provides as follows: "SEC. 6. Proof of lost or destroyed will Certificate thereupon. No will shall be proved as a lost will or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the Judge, under the seal of the court and the certificate must be filed and recorded as other wills are filed and recorded." (Emphasis Court's) From the above quoted provision of the law, it is clear that the petitioner should not only establish the execution and validity of the will, its existence at the time of the death of the testator or its fraudulent and accidental destruction in the lifetime of the testator without his knowledge, but also must prove its provisions clearly and distinctly by at least two credible witnesses. The exact language of the clause in the above quoted provision of the law is "nor unless its provisions are clearly and distinctly proved by at least two credible witnesses." The legalization of a lost will is not so easy, therefore, as that of an original will. The question, therefore, is boiled down to, and projected on the screen, in a very sharp focus; namely, the execution and validity must be established and the provisions must be clearly and distinctly proved by at least credible witnesses. Granting that the execution and validity of the lost will have been established through the testimony of Judge Anastacio Teodoro and Go Toh, and perhaps superficially by the rebuttal witness, Ana Suntay, does it follow that the provisions of the lost will have been clearly and distinctly proved by at least two credible witnesses? A careful review of the evidence has revealed that at most the only credible witness who testified as to the provisions of the will was Judge Anastacio Teodoro, and yet he testified on the provisions of the lost will with the draft (Exhibit B) in his hands while testifying. It may be granted, however, that with or without the draft of the will (Exhibit B) in his hands, he could have testified clearly and distinctly on the provisions of the said lost will, because he had kept the will in his safe, in his office, for three days, after opening it, and he is well versed in Spanish language in which the will as written. But did the attesting witness Go Toh, testify in his deposition and prove clearly and distinctly the provisions of the lost will? He did not, and he could not have done so even if he tried because the original will was not read to him nor by him before or at the signing of the same. It was written in Spanish and he did not and does not understand the Spanish language. Neither was there any occasion for him to have the contents of the said will, after its execution and sealing inside the envelope (Exhibit A), read to him because it was opened only when Judge Teodoro had examined it and then subsequently snatched from Go Toh. Ana Suntay on rebuttal did not, likewise, prove clearly and distinctly the provisions of the said lost will because she has not had enough schooling and she does possess adequate knowledge of the Spanish language as shown by the fact that she had to testify in Tagalog on the witness standing. It is evident, therefore, that although the petitioner has established the execution and validity of the lost will, yet he had not proved clearly and distinctly the provisions of the will by at least two credible witnesses. B. As to the Allowance and Recording of the will Executed in Amoy, China. Jose B. Suntay, while he was residing in China during the remaining years of his life, executed also a will, written in Chinese characters, the translation of which is marked Exhibit P. It was allowed to probate in the District Court of Amoy, China. The question is whether or not the said will should be allowed and recorded in this jurisdiction. Section 1 of Rule 78 provides as follows: "SEC. 1. Will proved outside Philippines any be allowed here. Will proved and allowed in the United States, or any state or territory thereof, or in a foreign country, according to the laws of such state, territory, or country, may be allowed, filed, and recorded by the proper court of First Instance in the Philippines." Section 2 of the same Rule also provides:

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"SEC. 2. Notice of hearing for allowance. When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines by the executor or other persons interested, in the Court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance." Sections 41 and 42 of Rule 123 provides as follows: "SEC. 41. Proof of Public or official record. An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is within the United States or its territory, the certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of the office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States stationed in the foreign country in which the record is kept, and authenticated by the seal of his office." F. "SEC. 42. What attestation of copy must state. Whenever a copy of writing is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court." In the case of Yu Changco vs. Tiaoqui, 11 Phil. 598, 599, 600, our Supreme Court said: "Section 637 of the Code of Civil Procedure says that will proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded in the Court of First Instance of the province in which the testator has real or personal estate on which such will may operate; but section 638 requires that the proof of the authenticity of a will executed in a foreign country must be duly"authenticated". Such authentication, considered as a foreign judicial record, is prescribed by section 304, which requires the attestation of the clerk or of the legal keeper of the records with the seal of the court annexed, if there be a seal, together with a certificate of the chief judge or presiding magistrate that the signature of either of the functionaries attesting the will is genuine, and, finally, the certification of the authenticity of the signature of such judge or presiding magistrate, by the ambassador, minister, consul, vice consul or consular agent of the United States in such foreign country. And, should the will be considered, from an administrative point of view, as a mere official document 'of a foreign country', it may be proved, 'by the original, or by a copy certified by the legal keeper thereof, with a certificate, under the seal of the country or sovereign, that the document is a valid and subsisting document of such country, and that the copy is duly certified by the officer having the legal custody of the original. (Sec. 313, par. 8)." In the case of Fluemer vs. Hix, 54 Phil. 610, 611, 612, and 613, our Supreme Court said: "It is the theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West Virginia govern. To this end, there was submitted a copy of section 3868 of Acts 1882, c. 84 as found in West Virginia Code, Annotated, by Hogg, Charles E., Vol. 2, 1914, p. 1690, and as certified to by the Director of the National Library. But this was far from compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. The courts of the Philippine Islands are not authorized to take judicial notice of the laws of the various States of the American Union. Such laws must be proved as facts. (In re Estate of Johnson (1918), 39 Phil., 156.) Here the requirements of the law were not met. There was not showing that the book from which an extract was taken was printed or published under the authority of the State of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having charge of the original under the seal of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the time the alleged will was executed. "It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia and not in the Philippine Islands. The only evidence introduced to establish this fact consisted of the recitals in the alleged will and the testimony of the petitioner. "While the appeal was pending submission in this court, the attorney for the appellant presented an unverified petition asking the court to accept as part of the evidence the documents attached to the petition. One of these documents discloses that a paper writing purporting to be the last will and testament of Edward Randolph Hix, deceased, was presented for probate on June 8, 1929, to the clerk of Randolph County, State of West Virginia, in vacation, and was duly proven by the oaths of Dana Vansley and Joseph L. Madden, the subscribing witnesses thereto, and ordered to be recorded and filed. It was shown by another document that in vacation, on June 8, 1929, the clerk of court of Randolph County, West Virginia, appointed Claude E. Maxwell as administrator, cum testamento annexo, of the estate of Edward Randolph Hix, deceased ... However this may be no attempt has been made to comply with the provisions of sections 637, 638, and 639 of the Code of Civil Procedure, for no hearing on the question of the allowance of a will said to have been proved and allowed in West Virginia has been requested. ... ." Granting that the will of Jose B. Suntay which was executed in Amoy, China, was validly done in accordance with the law of the Republic of China on the matter, is it necessary to prove in this jurisdiction the existence of such law in China as a prerequisite to the allowance and recording of said will? The answer is in the affirmative as enunciated in Fluemer vs. Hix, supra, and in Yanez de Barnuevo vs. Fuster, 29 Phil., 606. In the latter case, the Supreme Court said: "A foreign law may be proved by the certificate of the officer having in charge of the original, under the seal of the state or country. It may also be proved by an official copy of the same published under the authority of the particular state and purporting to contain such law. (Secs. 300 and 301, Act No. 190.), (Syllabus.) The provisions of section 300 and 301 of the Code of Civil Procedure (Act No. 190) are as follows:

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"SEC. 300. Printed laws of the State or Country. Books printed or published under the authority of the United States, or one of the States of the United States, or a foreign country, and purporting to contain statutes, codes, or other written law of such State or country or proved to be commonly admitted in the tribunals of such State or country an evidence of the written law thereof, are admissible in the Philippine Islands are evidence of such law." "SEC. 301. Attested copy of foreign laws. A copy of the written law or other public writing of any state or country, attested by the certificate of the officer having charge of the original, under the seal of the state or country, is admissible as evidence of such law or writing." The petitioner has presented in evidence the certification of the Chinese Consul General, Tsutseng T. Shen, of the existence of the law in China (Exhibit B-3), relative to the execution and probate of the will executed by Jose B. Suntay in Amoy, China (Exhibit P). Is that evidence admissible, in view of the provisions of Sections 41 and 42 of the Rules of the Rules of Court. Is the said certification of the Chinese Consul General in the Philippines a substantial compliance with the provisions of the above mentioned section 41 and 42 of our Rules of Court? This court has its doubts as to the admissibility in evidence of the Chinese Consul General in the Philippines of the existence of the laws of Republic of China relative to the execution and probate of a will executed in China. Such law may exist in China, but "An official record or an entry therein, when admissible for any purpose, may be evidence by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. ... If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States stationed in the foreign country in which the record is kept, and authenticated by the seal of his office." (Sec. 41 of Rule 123.) The law of the Republic of China is a public or official record and it must be proved in this jurisdiction through the means prescribed by our Rules of Court. It is, therefore, obvious that the Chinese Counsel General in the Philippines who certified as to the existence of such law is not the officer having the legal custody of the record, nor is he a deputy of such officer. And, if the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. It is clear, therefore, that the above provisions of the Rules of Court (Rule 123, sec. 41) not having been complied with, the doubt of this court has been dissipated, and it is of the opinion and so holds that the certification of the Chinese Consul General alone is not admissible as evidence in the jurisdiction. The evidence of record is not clear as to whether Jose B. Suntay, who was born in China, but resided in the Philippines for a long time, has become a Filipino citizen by naturalization, or he remained a citizen of the Republic of China. The record does not, likewise, show with certainty whether or not he had changed his permanent domicile from the Philippines to Amoy, China. His change of permanent domicile could only be inferred. But the question of his permanent domicile pales into insignificance in view of the overtowering fact that the law of China pertinent to the allowance and recording of the said will in this jurisdiction has been satisfactorily established by the petitioner. Both the petitioner and the oppositor have extensively urged in their respective memorandum and in the oral argument in behalf of the oppositor the question of estoppel. The consideration of the points raised by them would open the door to the appreciation of the intrinsic validity of the provisions of the will which is not of moment at the present stage of the proceeding. While the probate of a will is conclusive as to the compliance with all formal requisites necessary to the lawful execution of the will, such probate does not affect the intrinsic validity of the provisions of the will. With respect to the latter the will in governed by the substantive law relative to descent and distribution. (In re Johnson, 39 Phil., 157). IN VIEW OF THE FOREGOING, and upon reconsideration, the previous decision rendered in this case allowing the will (Exhibit B) and allowing and recording the foreign will (Exhibit P) is set aside; and this court is of the opinion and so holds that the said two wills should be, as they are hereby disallowed. Without special pronouncement as to costs. It is very significant that in the foregoing resolution, the Court of First Instance of Bulacan "reiterates its finding of the same facts in this resolution," and merely proceeds to pose the sole question "whether or not the facts established by the petitioner, Silvino Suntay, warrant the legalization of the lost will and allowance and recording of the will that was executed in Amoy, China." The somersault executed by the trial court is premised on the ground that "although the petitioner has established the execution and validity of the lost will, yet he has not proved clearly and distinctly the provisions of the will by the least two credible witnesses"; and that, assuming that the will of Jose B. Suntay executed in Amoy, China, was in accordance with the law of the Republic of China, the certification of the Chinese Consul General in the Philippines as the existence of such law is not admissible evidence in this jurisdiction. In effect the resolution on the motion for reconsideration promulgated by the trial court, and the decision of the majority herein, adopt the position that the testimony of Judge Anastacio Teodoro as to the provisions of the lost will, while credible and perhaps sufficient in extent, is not corroborated by the witnesses Go Toh and Ana Suntay and, therefore, falls short of the requirement in section 6, Rule 77, of the Rules of Court that the provisions of the lost will must be "clearly and distinctly proved by at least two witnesses." That this requirement was obviously construed, to mean that the exact provisions are to be established, may be deduced from the following dialogue between his Honor, Judge Potenciano Pecson, and attorney Teofilo Sison, new counsel for oppositor Federico C. Suntay, who appeared for the first time at the ex parte hearing of the oppositor's motion for new trial on September 1, 1949: COURT: However, Rule 77, Section 6, provides in proving a lost will, the provisions of the lost will must be distinctly stated and certified by the Judge. ATTY. TEOFILO SISON: Yes, Your Honor. COURT: That presupposes that the judge could only certify to the exact provisions of the will from the evidence presented.

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ATTY. TEOFILO SISON: That is our contention, provided that provision is clearly established by two credible witnesses so that the Court could state that in the decision, we agree, that is the very point. (t. s. n. 75, Session of Sept. 1, 1948) The sound rule, however, as we have found it to be, as to the degree of proof required to establish the contents of a lost or destroyed will, is that there is sufficient compliance if two witnesses have substantiated the provisions affecting the disposition of the testator's properties; and this is especially necessary to prevent the "perpetration of fraud by permitting a presumption to supply the suppressed proof," to keep a wrong-doer from utilizing the rule as his "most effective weapon," or to avoid the enjoyment of a "premium from the rascality of one whose interests might suggest the destruction of a will." Section 1865 of the Code requires that the provisions of a lost will must be clearly and distinctly proved by at least two credible witnesses before it can be admitted to probate; but this section must receive a liberal construction (Hook vs. Pratt, 8 Hun. 102-109) and its spirit is complied with by holding that it applies only to those provisions which affect the disposition of the testator's property and which are of the substance of the will. The allegations of the contents of the will are general, and under ordinary circumstances, would be in sufficient; but the fact alleged, if proven as alleged, would certainly authorize the establishment of the will so far as its bequests are concerned. To require that a copy of the will or the language of the bequests, in detail, should be pleaded, where no copy has been preserved, and where the memory of the witnesses does not hold the exact words, would not only deny the substance for mere form, but would offer a premium upon the rascality of one whose interests might suggest the destruction of a will. As said in Anderson vs.Irwin, 101 Ill. 411: "The instrument in controversy having been destroyed without the fault of the defendant in error ... and there not appearing to be any copy of it in existence, it would be equivalent to denying the complainant relief altogether to require her to prove the very terms in which it was conceived. All that could reasonably be required of her under the circumstances could be to show in general terms the disposition which the testator made of his property by the instruments; that it purported to be his will and was duly attested by the requisite number of witnesses." In Allison vs. Allison, 7 Dana 91, it was said in speaking of the character and extent of proof required in such a case:" nor is there any just ground to object to the proof because the witnesses have not given the language of the will or the substance thereof. They have given the substance of the different devises as to the property or interest devised, and to whom devised and we would not stop, in the case of a destroyed will, to scan with rigid scrutiny the form of the proof, provided we are satisfied of the substance of its provisions." (Jose vs. Casler 139 Ind. 392, 38 N. E. 812). The evidence in the case falls short of establishing the existence of such a writing, except as it may be presumed, under the maxim Omnia preasumuntur in odium spoliateris." There was evidence tending to show that the second will of Anne Lambie was in the possession of Francis Lambie, and that it came to the hands of the proponents, warranting the inference that it has been suppressed or destroyed. If from this evidence the jury found such paper destroyed the law permits the presumption that it was legally drawn and executed, notwithstanding the terms of the statute, which requires the revoking instrument to be formally executed. If a will be lost, secondary evidence may be given of its contents; if suppressed or destroyed, the same is true; and, if necessary the law will prevent the perpetration of a fraud by permitting a presumption to supply the suppressed proof. We cannot assent to the proposition that the statute is so right as to be the wrongdoer's most effective weapons. The misconduct once established to the satisfaction of the jury, it is no hardship to the wrongdoer to say. "Produce the evidence in your possession, or we will presume that your opponent's contention is true." When one deliberately destroys, or purposely induces another to destroy, a written instrument subsequently become a matter of judicial inquiry between the spoliator and an innocent party, the latter will not be required to make strict proof of the contents of such instrument in order to establish a right founded thereon. Brook, Leg. Max. 576, Preston vs. Preston, 132, Atl. 55, 61. (Re Lambie's Estate, 97 Mich, 55,56 N. W. 225) Judged from the standard set forth in the foregoing authorities, and bearing in mind that the circumstances of this case lead to the only conclusion that the loss of the will in question is of course imputable to those whose interests are adverse to the petitioner and the widow Lim Billian, we have no hesitancy in holding the view that the dispositions of the properties left by the deceased Jose B. Suntay is provided in his will which was lost or snatched in the manner recited in the decision of this Court in the case of Lim Billian vs. Suntay, 63 Phil., 798-797, had been more than sufficiently proved by the testimony of Judge Anastacio Teodoro, Go Toh, and Ana Suntay, supported conclusively by the draft of the lost will presented in evidence as Exhibit "B", and even by the testimony of oppositor Federico C. Suntay himself. It is to be recalled that the trial Judge, in his first decision of April 19, 1948, made the following express findings with respect to the testimony of Judge Teodoro: "Judge Anastacio Teodoro testified that he opened the sealed envelope when it was given to him by Go Toh preparatory to the presentation of the petition for the probate of the said will. As the lawyer entrusted with that task, he had to examine the will and have it copied to be reproduced or appended to the petition. He could not do otherwise if he is worth his salt as a good lawyer. He could not perform the stunt of "blind flying" in the judicial firmament. Every step must be taken with certainty and precision under any circumstances. He could not have talked about the attorney's fees with Go Toh, unless he has not examined the will beforehand. And, when he was shown Exhibit B, he did not hesitate in declaring that it was the exact draft of the will that was inside the envelope (Exhibit A), the testimony of Atty. Alberto Barretto to the contrary notwithstanding." We should not forget, in this connection, that in the resolution on the motion for reconsideration the trial Judge reiterated the findings in his decision, although as regards the testimony of Judge Teodoro admittedly "the only credible witness who testified as to the provisions of the will," he observed that Judge Teodoro had the draft Exhibit "B" in his hands while testifying. We cannot see any justifying for the observation, assuming that Judge Teodoro consulted the draft, since even the trial Judge granted that he "could have testified clearly and distinctly on the provisions of the said lost will, because he had kept the will in his safe, in his office, for three days, after opening it, and he is well versed in Spanish language in which the will was written." As a matter of fact, however, it is not true that Judge Teodoro had the draft in question before him while testifying as may be seen from the following passages of the transcript: Q. And, have you read that will which was inside this envelope, Exhibit A? "A. Yes. Q. Do you remember more or less the contents of the will? ATTY. FERRIN: With our objection, the best evidence is original will itself, Your Honor.

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ATTY. RECTO: We are precisely proving by means of secondary evidence, the contents of the will, because according to the Supreme Court, and that is a fact already decided, that the will of Jose B. Suntay was lost and that is res adjudicata. COURT: Witness may answer. WITNESS: I remember the main features of the will because as I said I was the one fighting for the postponement of the hearing of the intestate case because I was asked by Don Alberto Barretto to secure the postponement until the will that was executed by the deceased is sent here by the widow from China, with whom we communicated with several letters, and when the will arrived. I had to check the facts as appearing in the will, and examined fully in connection with the facts alleged in the intestate, and there was a striking fact in the intestate that Apolonio Suntay has.. ATTY. FERRIN: (Interrupting) May we ask that the witness answer categorically the questions of Atty. Recto, it seems that the answers of the witness are kilometric ... ATTY. RECTO: Sometimes the question cannot be answered fully unless the witness would relate and give all the facts. COURT: The Attorney for the Administrator may move for the striking out of any testimony that is not responsive to the question. ATTY. FERRIN: That is why, our objection, the answer is out of the question. COURT: Atty. Recto may propound another question. ATTY. RECTO: I heard the witness was saying something and he has not finished the sentence, and I want to ask the Court just to allow the witness to finish his sentence. COURT: You may finish. WITNESS: "A. There was a sentence, the point I was trying to check first was whether the value of the estate left by the deceased was SIXTY THOUSAND PESOS (P60,000.00) as Apolonio Suntay made it appear in his petition, and when I looked at the original will, I found out that it was several hundred thousand pesos, several thousands of pesos, hundreds of pesos, that was very striking fact to me because the petition for intestate was for SIXTY THOUSAND PESOS (P60,000.00), and I came to know that it was worth more than SEVEN HUNDRED THOUSAND (P700,000.00) PESOS. Q. Do you remember, Judge, the disposition of the will, the main disposition of the will? "A. Yes, because our client were the widow, Maria Natividad Lim Billian, and his son, Silvino, the only son in the second marriage, that was very important for me to know. Q. How were the properties distributed according to that will?- "A. The properties were distributed into three (3) parts, one part which we call legitima corta, were equally distributed to the ten (10) children, nine (9) in the first marriage, and one (1) in the second marriage with Maria Natividad Lim Billian. The other third, the betterment was given to four (4) children, Concepcion, and Apolonio getting a quiet substantial share in the betterment, around SIXTY THOUSAND (P60,000.00) for Concepcion, Apolonio the amount of SEVENTY THOUSAND (70,000,00) PESOS or little over, and then about ONE HUNDRED THOUSAND (P100,000.00) PESOS of the betterment in favor of Silvino, the minor of the second marriage, and to Jose equal to Concepcion. Q. So the betterment, as I understand from you went to four (4) children?-"A. Yes. Q. Silvino in the second marriage, Concepcion, Apolonio and Jose in the first marriage? " A. Yes. Q. What about the free disposal?-" A. The free disposal was disposed in favor of the widow, Maria Natividad Lim Billian and Silvino, his minor son in equal parts.. Q. What about, if you remember, if there was something in the will in connection with that particular of the usufruct of the widow? "A. It was somewhat incorporated into the assets of the estate left by the deceased. Q. Do you remember the number of pages of which that will consisted? "A. Twenty-three (23) pages. Q. Do you remember if the pages were signed by the testator? "A. Yes, sir, it was signed. Q. And the foot of the testament or the end of the testament, was it signed by the testator? "A. Yes, sir, and the attestation clause was the last page signed by the three instrumental witnesses, Alberto Barretto, one Chinaman Go Toh, and Manuel Lopez, my former Justice of the Peace of Hagonoy. Q. Do you remember if there witnesses signed on the different pages of the will? "A. Yes, sir, they signed with their name signatures. Q. Showing you this document consisting of twenty-three (23) pages in Spanish and which document appears already attached to this same testamentary proceedings and already marked as EXHIBIT B, will you please tell the Court if and for instance on page eight (8) of this

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document, pagina octavo, it says, there are handwritings in pencil, some of which read as follows: "Los cinco-octavos (5/8) partes corresponds a mi hijo Emiliano", can you recognize whose handwriting is that? "A. From my best estimate it is the handwriting of Don Alberto Barretto. Q. About the end of the same page eight (8) pagina octavo, of the same document Exhibit B, there is also the handwriting in pencil which reads: "La otra sexta parte (6.a) corresponde a Bonifacio Lopez", can you recognize that handwriting? "A. Yes, sir, this is the handwriting of Don Alberto Barretto, and I wish to call the attention of the Court to compare letter "B" which is in capital letter with the signature of Don Alberto Barretto in the envelope, "Alberto Barretto" and stroke identifies one hand as having written those words. Q. Will you please go over cursorily this document, Exhibit B composed of twenty-three (23) pages and please tell the Court if this document had anything to do with the will which according to you was contained in the envelope, Exhibit A? "A. This is exactly the contents of the original will which I received and kept in my office inside the safe for three (3) days, and I precisely took special case in the credits left by the deceased, and I remember among them, were the De Leon family, and Sandiko, well known to me, and then the disposition of the estate, divided into three (3) equal parts, and I noticed that they are the contents of the will read. His Honor, Judge Pecson, was positive in his first decision that "the testimony of Judge Anastacio Teodoro is corroborated by Go Toh, one of the attesting witnesses, in his deposition (Exhibit D-1)." Yet in setting aside his first decision, he remarked that Go Toh's testimony did not prove clearly and distinctly the provision of the lost will, because: "He did not, and he could not have done so even if he tried because the original will was not read to him nor by him before or at the signing of the same. It was written in Spanish and he did not and does not understand the Spanish language. Neither was there any occasion for him to have the contents of the said will, after its execution and sealing inside the envelope (Exhibit A), read to him, because it was opened only when Judge Teodoro had examined it and then subsequently snatched from Go Toh." The later position thus taken by Judge Pecson is palpably inconsistent with the following unequivocal statements of Go Toh contained in hid disposition taken in Amoy, China, on April 17, 1938, and in oppositor's Exhibit "6": 26. State what you know of the contents of that will. . . . . Regarding (1) expenditures (2) Philippine citizenship; (3) Distribution of estates among children (4) Taking care of grave lot; (5) guardianship of Silvino Suntay and (6) after paying his debts he will have approximately 720,000 pesos left. This amount will be divided into three equal parts of 240,000 pesos each. The first part is to be divided equally among the ten children born by the first and second wives and the second part among the three sons Silvino Suntay, 75,000 approximately; Apolonio Suntay, 50,000 pesos approximately; Jose Suntay and Concepcion Suntay, 36,000 each approximately. The third part is to be divided between Maria Lim Billian and Silvino Suntay; each will get approximately 110,000 pesos. Silvino Suntay will get a total of 210,000 pesos approximately, Maria Natividad Lim Billian a total of 290,000 approximately, and Apolonio Suntay a total of 80,000 approximately, Concepcion Suntay and Jose Suntay will get 60,000 pesos each approximately. The rest of the children will get approximately 29,000 each. The way of distribution of the property of Jose B. Suntay, movable and immovable, and the outstanding debts to be collected was arranged by Jose B. Suntay. xxx xxx xxx

78. On the occasion of the execution of the testament of Jose B. Suntay, state whether or not you say Exhibit B ... Yes. 79. In the affirmative case, state if you know who had the possession of Exhibit B and the testament the first time you saw them on that occasion. ... Yes, I know who had possession of them. 80. Can you say whether or not Jose B. Suntay happened to get those documents later on, on that same occasion? ... He got them after the execution. 81. Please name the person who gave those documents to Mr. Suntay. ... Alberto Barretto gave the documents to Jose B. Suntay. 82. Did the person who gave those documents to Suntay say anything to him (Suntay) at the time of giving them? ... Yes. 83. If so what was it that he said, if he said any? ... He said, "You had better see if you want any correction." 84. What did Mr. Suntay do after those documents were given to him? ... Jose B. Suntay looked at them and then gave one copy to Manuel Lopez for checking. 85. State whether or not Mr. Suntay gave one of those documents to another man. ... Yes. 86. In the affirmative case, can you say which of the two documents was given and who the man was? ... Yes he gave Exhibit B to Manuel Lopez. 87. State whether or not Mr. Suntay said something to the man to whom he gave one of those documents. ... Yes. 88. In the affirmative case can you repeat more or less what Mr. Suntay said to that man? ... He told him to read it for checking. 89. State if you know what did the man do with one of those documents given to him. ... He took it and read it for checking. 90. What did in turn Mr. Suntay do with the other one left with him? ... Jose B. Suntay looked at the original and checked them.

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91. What was done with those documents later on if there was anything done with them? ... After checking, Jose B. Suntay put Exhibit B in his pocket and had the original signed and executed. 92. What was done with the testament of Jose B. Suntay after it was signed by the testator and its witnesses? ... It was taken away by Jose B. Suntay. (Exhibit D, D-1.) Q. Did you know the contents of this envelope? "A. I knew that it was a will. Q. But did you know the provisions of the will? "A. It is about the distribution of the property to the heirs. Q. Did you know how the property was distributed according to the will? "A. I know that more than P500,000 was for the widow and her son, more than P100,000 for the heirs that are in the family. (Exhibit "6", p. 28). Q. You stated that you were one of the witnesses to the will and that the will was written in Spanish. Was it written in typewriting or in handwriting of somebody? "A. That will was written in typewriting. Q. Did you read the contents of that will, or do you know the contents of that will? A. No, sir, because I do not know Spanish. Q. How do you know that it was the will of Jose B. Suntay ? "A. Because I was one of the signers and I saw it." (Exhibit "6", p. 19.) 22. Do you understand the language in which that will was written? ... I know a little Spanish. 23. Do you talk or write that language? I can write and talk a little Spanish. (Exhibits D, D-1.) As to Ana Suntay's corroborating testimony, Judge Pecson aptly made the following findings: "Ana Suntay, one of the heirs and who would be affected adversely by the legalization of the will in question, also testified on rebuttal that she saw the original will in the possession of Manuel Suntay immediately after the snatching. She read it and she particularly remembers the manner in which the properties were to be distributed. Exhibit B was shown to her on the witness stand and she declared that the provision regarding the distribution of the properties in said Exhibit B is the same as that contained in the original will. Said testimony of Ana Suntay, therefore, belies the testimony of Atty. Alberto Barretto." And yet in the resolution on the motion for new trial, the trial Judge had to state that "Ana Suntay on rebuttal did not, likewise, prove clearly and distinctly the provisions of the said lost will, because she has not had enough schooling and she does not possess adequate knowledge of the Spanish language as shown by the fact that she had to testify in Tagalog on the witness stand." The potent error committed by Judge Pecson in reversing his views as regards Ana's testimony, is revealed readily in the following portions of the transcript: P. Cuantas paginas tenia aquel documento a que usted se refiere? "R. Probablemente seria mas de veinte (20) paginas. P. No serian treinta (30) paginas? "Abogado Recto: La testigo ha contestado ya que mas de veinte (20). Juzgado: Se estima Abogado Mejia: P. Usted personalmente leyo el documento" "R. Yo leyo mi hermano en presencia mia. P. La pregunta es, si usted personalmente ha leido el documento? " R. Si, lo he visto. P. No solamente le pregunto a usted si Vd. ha visto el testamento sino si usted ha leido personalmente el testamento? "R. Si la parte de la adjudicacion lo he leido para asegurarme a que porcion corresponde a cada uno de nosotros. P. Puede usted repetir poco mas o menos esa porcion a que se hacia la distribucion del alegado testamento? "R. Como ya he declarado, que las propiedades de mi difunto padre se habian dividido en tres partes, una tercera parte se nos adjudica a nosotros diez (1) hijos en primeros nupcias y segunda nupcia, la segunda tercera parte los adjudica a la viuda y a Silvino, y la otra tercera parte se lo adjudica a sus hijos como mejora a Silvino, Apolonio, Concepcion y Jose. P. Eso, tal como usted personalmente lo leyo en el documento? "R. Si Seor. P. Quiere usted tener la bondad, seora, de repetir poco mas o menos las palabras en ese documento que se distribuia las propiedades del defundo padre usted como usted relata aqui? "Abogado Recto: Objetamos a la pregunta por falta de base, porque elle solamente se fijo en la parte como se distribuian las propiedades pero no ha dicho la testigo que ella lo ha puesto de memoria, ni Vd. ha preguntado en que lenguaje estaba escrito el testamento ... Juzgado: Se estima. Abogado Mejia:

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P. Sabe usted en que lenguaje estaba redactado el documento que usted leyo personalmente? "R. En Castellano. P. Puede usted repetirnos ahora en Castellano algunas frases o palabras como se hizo la distribucion en aquel supuesto testamento? Abogado Recto: Objecion, por falta de base, uno puede entender el espaol y sin embargo no podra repetir lo que ha leido, y no se sabe todavia si ha estudiado el espaol bastante hasta el punto de poder hablarlo. Juzgado: Se estima. Abogado Mejia P. Usted dijo que estaba puesto en castellano el supuesto testamento que Vda. leyo, usted poso el castellano? "R. Yo entiendo el castellano, pero no puedo hablar bien. P. Usted estudio el castellano en algun colegio? "Rj. Si, seor, En Sta. Catalina. P. Cuantos aos? "R. Nuestros estudios no han sido continuous porque mi padre nos ingresaba en el colegio y despues nos sacaba para estar afuera, y no era continuo nuestro estudio. P. Pero en total, como cuantos meses o aos estaba usted en el colegio aprendiendo el castelano? "R. Unos cuatro o cinco aos. P. Entonces usted puede leer el castellano con facilidad, seora? "R. Si, castellano sencillo puedo entender y lo puedo leer. P. Usted entiende las preguntas que se le dirigian aqui en castellano sin interpretacion o sin el interprete? "R. Si, Seor. P. Puede usted contestar en castellano? "R. Bueno, pero como de contestar, por eso quiero que la pregunta se me traduzca antes. asi puedo contestar debidamente. (t.s.n. pp. 533-534.) We are really at a loss to understand why, without any change whatsoever in the evidence, the trial Judge reversed his first decision, particularly when he announced therein that "it is now incumbent upon this court to delve into the evidence whether or not Jose B. Suntay, deceased, left a will (the draft of which is Exhibit B) and another will which was executed and probated in Amoy, China." His action is indeed surprising when we take into account the various circumstancial features presently to be stated, that clearly confirm the testimony of Judge Anastacio Teodoro, G. Toh and Ana Suntay, or otherwise constitute visible indicia of oppositor's desire to frustrate the wishes of his father, Jose B. Suntay. In our opinion the most important piece of evidence in favor of the petitioner's case is the draft of the lost will, Exhibit "B." Its authenticity cannot be seriously questioned, because according to the trial Judge himself, oppositor's own witness, Atty. Alberto Barretto, admitted it to be "identical in substance and form to the second draft which he prepared in typewriting." Indeed, all the "A's" and "B's" in the handwritten insertions of the draft are very similar to those in Barretto's admittedly genuine signature on the envelope, Exhibit "A." The finding of Judge Pecson on the point in his first decision (reiterated expressly in the resolution on the motion for new trial), should control, not only because it is in accordance with the evidence but because the oppositor had failed and did not even attempt to have the trial Judge reconsider or reverse his factual conclusions. The draft, Exhibit "B," having been positively identified by the witnesses for the petitioner to be an exact copy of the lost will of Jose B. Suntay, is therefore conclusive. Oppositor's effort to show that said draft was never signed in final form, and was thought of merely to deceive petitioner's mother, Lim Billian, and that the will actually executed and put in the envelope, Exhibit "A", provided that the testator's estate would be divided equally among his heirs, as in the case of intestacy, was necessarily futile because, if this allegation is true, the will would not have been "snatched" from Go Toh and the loss certainly cannot be imputed to the widow Lim Billian or the petitioner; the snatched will would have been produced to put an end to petitioner's and his mother's claim for greater inheritance or participation under the lost will; and the envelope containing the first will providing for equal shares, would not have been entrusted to the care and custody of the widow Lim Billian. It is very noteworthy that out of the nine children of the first marriage, only Angel, Jose and Federico Suntay had opposed the probate of the will in question; the rest, namely, Ana, Aurora, Concepcion, Lourdes, Manuel and Emiliano Suntay, having expressly manifested in their answer that they had no opposition thereto, since the petitioner's alternative petition "seeks only to put into effect the testamentary disposition and wishes of their late father." This attitude is significantly an indication of the justness of petitioner's claim, because it would have been to their greater advantage if they had sided with oppositor Federico Suntay in his theory of equal inheritance for all the children of Jose B. Suntay. Under the lost will or its draft Exhibit "B", each of the Suntay children would receive only some P 25,000.00, whereas in case of intestacy or under the alleged will providing for equal shares, each of them would receive some P100,000.00. And yet the Suntay children other than Angel, Jose and Federico had chosen to give their conformity to the alternative petition in this case. Another unequivocal confirmation of the lost will is the will which Jose B. Suntay executed in Amoy, Fookien, China, on January 4, 1931, and probated in Amoy District Court, China, containing virtually the same provisions as those in the draft Exhibit "B". What better evidence is there of an man's desire or insistence to express his last wishes than the execution of a will reiterating the same provisions contained in an earlier will. Assuming that the Chinese will cannot be probated in the jurisdiction, its probative value as corroborating evidence cannot be ignored. Oppositor himself had admitted having read the will in question under which the widow Lim Billian was favored; and this again in a way goes to corroborate the evidence for the petitioner as to the contents of the will sought to be probated. COURT: Q. Have you read the supposed will or the alleged will of your father? "A. Yes, sir.

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COURT: Q. Can you tell the court the share or participation in the inheritance of Maria Natividad Lim Billian according to the will? A. Yes sir, she will inherit, I think, two-thirds (2/3) of the estate, in other words she is the most favored in the will, so when they sold that, they sold everything, they are selling everything even the conjugal property. (t. s. n. 228-229.) The decision of the majority leans heavily on the testimony of Atty. Alberto Barretto, forgetful perhaps of the fact that the trial Judge gave no credence to said witness. It should be repeated that Judge Pecson reiterated in the resolution on the motion for new trial all his findings in the first decision. If as Atty. Barretto testified, Lim Billian was entitled under the will actually signed by Jose Suntay only to P10,000.00, in addition to properties in China value at P15,000.00, the fees of P25,000.00 admittedly asked by him would absorb her entire inheritance; and this would normally not be done by any law practitioner. Upon the other hand, there is evidence to the effect that Atty. Barretto might have become hostile to the petitioner and his mother Lim Billian in view of the latter's refusal to agree to the amount of P25,000.00 and her offer to pay only P100.00. There is also evidence tending to show that as early as 1942, Atty. Barretto was paid by oppositor Federico Suntay the sum of P16,000.00 which, although allegedly for services in the testate proceedings, was paid out of the personal funds of said oppositors to supply Atty. Barretto's needs. This circumstances perhaps further explains why the latter had to support the side of Federico Suntay. We have quoted in full the decision of this court in the "snatching" case and the first decision of Judge Pecson in this case, both in the hope and in the belief (1) that the first would reveal the manner by which those adversely affected had planned to prevent the last wishes of the deceased Jose B. Suntay from being carried on, and (2) that the second, by the facts correctly recited therein and by the force and accuracy of its logic would amply show the weakness and utter lack of foundation of the resolution on the motion for reconsideration. We have set forth at length pertinent portions of the testimony of various witnesses to demonstrate more plainly the plausibility of the original decision of Judge Pecson, and the latter's consequent bad judgment in having forced himself to accomplish a somersault, a feat which the majority, in my opinion, have mistakenly commended. We have found this to be one of the cases of this court in which we have had occasion to participate, where there can be absolutely no doubt as to the result outright reversal for which, with due respect to the majority opinion, we vote without hesitancy.
Montemayor and Jugo, JJ., concur.

RESOLUTION

5 November 1954

PADILLA, J.:

This is a motion for reconsideration of the decision promulgated on 31 July 1954, affirming the decree of the Court of First Instance of Bulacan which disallowed the alleged last will and testament executed in November 1929 and the alleged last will and testament executed in Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay, without pronouncement as to costs, on grounds that will presently be taken up and discussed. Appellant points to an alleged error in the decision where it states that . . . This petition was denied because of the loss of said will after the filing of the petition and before the hearing thereof, . . . because according to him the "will was lost before not after (the) filing of the petition." This slight error, if it is an error at all, does not, and cannot, after the conclusions and pronouncements made in the judgment rendered in the case. In his alternative petition the appellant alleges: 4. That on October 15, 1934, Marian Natividad Lim Billian, the mother of herein petitioner filed a petition in this court for the allowance and probate of a last will and testament executed, and signed in the Philippines in the year 1929 by said deceased Jose B. Suntay. (P. 3, amended record on appeal.) If such will and testament was already lost or destroyed at the time of the filing of the petition by Maria Natividad Lim Billian (15 October 1934), the appellant would have so stated and alleged. If Anastacio Teodoro, a witness for the appellant, is to be believed when he testified . . . that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948), ... Go Toh arrived at his law office in the De Los Reyes Building and left an envelope wrapped in red handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 19470 . . . and If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro and returned by the latter to the former because they could not agree on the amount of fees, . . . then on 15 October 1934, the date of the filing of the petition, the will was not yet lost. And if the facts alleged in paragraph 5 of the appellant's alternative petition which states:

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That this Honorable Court, after hearing, denied the aforesaid petition for probate filed by Maria Natividad Lim Billian in view of the loss and/or destruction of said will subsequent to the filing of said petition and priorto the hearing thereof, and the alleged insufficiency of the evidence adduced to established the loss and/or destruction of the said will, (Emphasis supplied, P. 3, amended record on appeal.) may be relied upon, then the alleged error pointed out by the appellant, if it is an error, is due to the allegation in said paragraph of his alternative petition. Did the appellant allege the facts in said paragraph with reckless abandon? Or, did the appellant make the allegation as erroneously as that which he made in paragraph 10 of the alternative petition that "his will which was lost and ordered probated by our Supreme Court in G. R. No. 44276, above referred to?" (P. 7, amended record on appeal.) This Court did not order the probate of the will in said case because if it did, there would have been no further and subsequent proceedings in the case after the decision of this Court referred to had been rendered and had become final. Be that as it may, whether the loss of the will was before or subsequent to the filing of the petition, as already stated, the fact would not affect in the slightest degree the conclusions and pronouncements made by this Court. The appellant advances the postulate that the decision of this Court in the case of Lim Billian vs. Suntay, G. R. No. 44276, 63 Phil., 793, constitutes res judicata on these points: (a) that only one will was prepared by attorney Barretto, and (b) that the issue to be resolved by the trial court was whether the draft (Exhibit B) is a true copy or draft of the snatched will, and contends that these points already adjudged were overlooked in the majority opinion. The decision of this Court in the case referred to does not constitute res judicata on the points adverted to by the appellant. The only point decided in that case is that "the evidence is sufficient to establish the loss of the document contained in the envelope." In the opinion of this Court, this circumstance justified "the presentation of secondary evidence of its contents and of whether it was executed with all the essential and necessary legal formalities." That is all that was decided. This Court further said: The trial of this case was limited to the proof of loss of the will, and from what has taken place we deduce that it was not petitioner's intention to raise, upon the evidence adduced by her, and other points involved herein, namely, as we have heretofore indicated, whether Exhibit B is a true copy of the will and whether the latter was executed with all the formalities required by law for its probate. The testimony of Alberto Barretto bears importantly in this connection. (P. 796, supra.) Appellant's contention that the question before the probate court was whether the draft (Exhibit B) is a true copy or draft of the snatched will is a mistaken interpretation and view of the decision of this Court in the case referred to, for if this Court did make that pronouncement, which, of course, it did not, such pronouncement would be contrary to law and would have been a grievous and irreparable mistake, because what the Court passed upon and decided in that case, as already stated, is that there was sufficient evidence to prove the loss of the of the will and that the next step was to prove by secondary evidence its due execution in accordance with the formalities of the law and its contents, clearly and districtly, by the testimony of at least two credible witnesses.1 The appellant invokes Rule 133 to argue that Rule 77 should not have been applied to the case but the provisions of section 623 of the Code of Civil Procedure (Act No. 190), for the reason that this case had been commenced before the Rules of Court took effect. But Rule 133 cited by the appellant provides: These rules shall take effect on July 1, 1940. They shall govern all cases brought after they take effect, andalso all further proceedings in cases then pending, except to the extent that in the opinion of the court their application would not be feasible or would work injustice, in which event the former procedure shall apply.(Emphasis supplied.) So, Rule 77 applies to this case because it was a further proceedings in a case then pending. But even if section 623 of the Code of Civil Procedure were to be applied, still the evidence to prove the contents and due execution of the will and the fact of its unauthorized destruction, cancellation, or obliteration must be established "by full evidence to the satisfaction of the Court." This requirement may even be more strict and exacting than the twowitness rule provided for in section 6, Rule 77. The underlying reason for the exacting provisions found in section 623 of Act No. 190 and section 6, Rule 77, the product of experience and wisdom, is to prevent imposters from foisting, or at least to make for them difficult to foist, upon probate courts alleged last wills or testaments that were never executed. In commenting unfavorably upon the decree disallowing the lost will, both the appellant and the dissenting opinion suffer from an infirmity born of a mistaken premise that all the conclusions and pronouncements made by the probate court in the first decree which allowed the probate of the lost will of the late Jose B. Suntay must be accepted by this Court. This is an error. It must be borne in mind that this is not a petition for a writ of certiorari to review a judgment of the Court of Appeals on questions of law where the findings of fact by said Court are binding upon this Court. This is an appeal from the probate court, because the amount involved in the controversy exceeds P50,000, and this Court in the exercise of its appellate jurisdiction must review the evidence and the findings of fact and legal pronouncements made by the probate court. If such conclusions and pronouncements are unjustified and erroneous this Court is in duty bound to correct them. Not long after entering the first decree the probate court was convinced that it had committed a mistake, so it set aside the decree and entered another. This Court affirmed the last decree not precisely upon the facts found by the probate court but upon facts found by it after a careful review and scrutiny of the evidence, parole and documentary. After such review this Court has found that the provisions of the will had not been established clearly and distinctly by at least two credible witnesses and that conclusion is unassailable because it is solidly based on the established facts and in accordance with law. The appellant and the dissent try to make much out of a pleading filed by five (5) children and the widow of Apolonio Suntay, another child of the deceased by the first marriage, wherein they state that . . . in answer to the alternative petition filed in these proceedings by Silvino Suntay, through counsel, dated June 18, 1947, to this Honorable Court respectfully state that, since said alternative petition seeks only to put into effect the testamentary disposition and wishes of their late father, they have no opposition thereto. (Pp. 71-72, amended record on appeal.) Does that mean that they were consenting to the probate of the lost will? Of course not. If the lost will sought to be probated in the alternative petition was really the will of their late father, they, as good children, naturally had, could have, no objection to its probate. That is all that their answer implies and means. But such lack of objection to the probate of the lost will does not relieve the proponent thereof or the party interested in its probate from establishing its due execution and proving clearly and distinctly the provisions thereof at least two credible witnesses. It does not mean that they accept the draft Exhibit B as an exact and true copy of the lost will and consent to its probate. Far from it. In the pleading copied in the dissent, which the

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appellant has owned and used as argument in the motion for reconsideration, there is nothing that may bolster up his contention. Even if all the children were agreeable to the probate of said lost will, still the due execution of the lost will must be established and the provisions thereof proved clearly and distinctly by at least two credible witnesses, as provided for in section 6, Rule 77. The appellant's effort failed to prove what is required by the rule. Even if the children of the deceased by the first marriage, out of generosity, were willing to donate their shares in the estate of their deceased father or parts thereof to their step mother and her only child, the herein appellant, still the donation, if validly made, would not dispense with the proceedings for the probate of the will in accordance with section 6, Rule 77, because the former may convey by way of donation their shares in the state of their deceased father or parts thereof to the latter only after the decree disallowing the will shall have been rendered and shall have become final. If the lost will is allowed to probate there would be no room for such donation except of their respective shares in the probated will. The part of the deposition of Go Toh quoted in the motion for reconsideration which appellant underscores does not refer to Go Toh but to Manuel Lopez. Even if Go Toh heard Manuel Lopez read the draft (Exhibit B) for the purpose of checking it up with the original held and read by Jose B. Suntay, Go Toh should not have understood the provisions of the will because he knew very little of the Spanish language in which the will was written (answer to 22nd and 23rd interrogatories and to X-2 cross-interrogatory). In fact, he testifies in his deposition that all he knows about the contents of the lost will was revealed to him by Jose B. Suntay at the time it was executed (answers to 25th interrogatory and to X-4 and X-8 cross-interrogatories); that Jose B. Suntay told him that the contents thereof are the same as those of the draft [Exhibit B] (answers to 33rd interrogatory and to X-8 cross-interrogatory); that Mrs. Suntay had the draft of the will (Exhibit B) translated into Chinese and he read the translation (answer to the 67th interrogatory); that he did not read the will and did not compare it (check it up) with the draft [Exhibit B] (answers to X-6 and X-20 cross-interrogatories). We repeat that . . . all of Go Toh's testimony by deposition on the provisions of the alleged lost will is hearsay, because he came to know or he learned of them from information given him by Jose B. Suntay and from reading the translation of the draft (Exhibit B) into Chinese. This finding cannot be contested and assailed. The appellant does not understand how the Court came to the conclusion that Ana Suntay, a witness for the appellant could not have read the part of the will on adjudication. According to her testimony "she did not read the whole will but only the adjudication," which, this Court found, "is inconsistent with her testimony in chief (to the effect) that "after Apolonio read that portion, then he turned over the document of Manuel, and he went away." (P. 528, t. s. n., hearing of 24 February 1948.) And appellant asks the question: "Who went away? Was it Manuel or Apolonio?" In answer to his own question the appellant says: "The more obvious inference is that it was Apolonio and not Manuel who went away." This inference made by the appellant not only is not obvious but it is also illogical, if it be borne in mind that Manuel came to the house of Apolonio and it happened that Ana was there, according to her testimony. So the sentence "he went away" in Ana's testimony must logically and reasonably refer to Manuel, who was a caller or visitor in the house of his brother Apolonio and not to the latter who was in his house. If it was Apolonio who "went away," counsel for the appellant could have brought that out by a single question. As the evidence stands could it be said that the one who went away was Apolonio and not Manuel? The obvious answer is that it was Manuel. That inference is the result of a straight process of reasoning and clear thinking. There is a veiled insinuation in the dissent that Alberto Barretto testified as he did because he had been paid by Federico C. Suntay the sum of P16,000. Federico C. Suntay testifies on the point thus Q. You mentioned in your direct testimony that you paid certain amount to Atty. Alberto Barretto for services rendered, how much did you pay? A. Around SIXTEEN THOUSAND (P16,000.00). Q. When did you make the payment? A. During the Japanese time. Q. Did you state that fact in any accounts you presented to the Court? A. I do not quite remember that. . . . (P. 180, t. s. n., hearing of 24 October 1947.) Q. When you made that payment, was (it) your intention to charge it to the state or to collect it later from the estate? A. Yes, sir. Q. More or less when was such payment made, during the Japanese time, what particular month and year, do you remember? A. I think in 1942. Q. And you said you paid him because of services he rendered? A. Upon the order to the Court. Q. And those services were precisely because he made a will and he made a will which was lost, the will of Jose B. Suntay? ... (P. 181, t. s. n., supra.) A. I think I remember correctly according to ex-Representative Vera who is the administrator whom I followed at that time, that was paid according to the services rendered by Don Alberto Barretto with regard to our case in the testamentaria but he also rendered services to my father. Q. At least your Counsel said that there was an order of the Court ordering you to pay that, do you have that copy of the order? A. Yes, sir, I have, but I think that was burned. (P. 184, t. s. n., supra.). So the sum of P16,000 was paid upon recommendation of the former administrator and order of the probate court for services rendered by Alberto Barretto not only in the probate proceedings that also for services rendered to his father. But if this sum of P16,000 paid to Alberto Barretto upon recommendation of the previous administrator and order of the probate court for professional services rendered in the probate proceedings and to the deceased in his lifetime be taken against his truthfulness and veracity as to affect adversely his testimony, what about the professional services of Anastacio Teodoro who appeared in this case as one of the attorneys for the petitioner-appellant? (P. 2, t. s. n., hearing of 13 October 1947.)Would that not likewise or by the same token affect his credibility? It is the latter's interest more compelling than the former's? For the foregoing reasons, the motion for reconsideration is denied.

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Paras, C.J., dissenting:

For the same reasons and considerations set forth in detail in my dissent promulgated on July 31, 1954, I vote to grant the motion for reconsideration.
Montemayor and Jugo, JJ., concur.

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SECOND DIVISION

G.R. No. 183053

June 16, 2010

IN THE MATTER OF THE INTESTATE ESTATE OF CRISTINA AGUINALDO-SUNTAY; EMILIO A.M. SUNTAY III,Petitioner, vs. ISABEL COJUANGCO-SUNTAY, Respondent.

DECISION

NACHURA, J.:

Unlike Pope Alexander VI1 who, faced with the impasse between Spain and Portugal, deftly and literally divided the exploration, or more appropriately, the riches of the New World by issuing the Inter Caetera, 2 we are confronted with the difficult, albeit, all too familiar tale of another family imbroglio over the estate of a decedent.3 This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Decision of the Court of Appeals (CA) in CA-G.R. CV No. 74949,4 reversing the decision of the Regional Trial Court (RTC), Branch 78, Malolos, Bulacan, in Special Proceeding Case No. 117-M-95.5 Before anything else, we disentangle the facts. On June 4, 1990, the decedent, Cristina Aguinaldo-Suntay (Cristina), married to Dr. Federico Suntay (Federico), died intestate. In 1979, their only son, Emilio Aguinaldo Suntay (Emilio I), predeceased both Cristina and Federico. At the time of her death, Cristina was survived by her husband, Federico, and several grandchildren, including herein petitioner Emilio A.M. Suntay III (Emilio III) and respondent Isabel Cojuangco-Suntay. During his lifetime, Emilio I was married to Isabel Cojuangco, and they begot three children, namely: herein respondent, Isabel; Margarita; and Emilio II, all surnamed Cojuangco-Suntay. Emilio Is marriage to Isabel Cojuangco was subsequently annulled. Thereafter, Emilio I had two children out of wedlock, Emilio III and Nenita Suntay Taedo (Nenita), by two different women, Concepcion Mendoza and Isabel Santos, respectively. Despite the illegitimate status of Emilio III, he was reared ever since he was a mere baby, nine months old, by the spouses Federico and Cristina and was an acknowledged natural child of Emilio I. Nenita is an acknowledged natural child of Emilio I and was likewise brought up by the spouses Federico and Cristina. As previously adverted to, the marriage between Emilio I and Isabel was annulled.6 Consequently, respondent and her siblings Margarita and Emilio II, lived with their mother on Balete Drive, Quezon City, separately from their father and paternal grandparents. Parenthetically, after the death of Emilio I, Federico filed a petition for visitation rights over his grandchildren: respondent Isabel, Margarita, and Emilio II. Although the Juvenile and Domestic Relations Court in Quezon City granted the petition and allowed Federico one hour of visitation monthly, initially reduced to thirty minutes, it was altogether stopped because of a manifestation filed by respondent Isabel, articulating her sentiments on the unwanted visits of her grandparents. Significantly, Federico, after the death of his spouse, Cristina, or on September 27, 1993, adopted their illegitimate grandchildren, Emilio III and Nenita.71avvphi1 On October 26, 1995, respondent filed a petition for the issuance of letters of administration in her favor, containing the following allegations: [A]t the time of [the decedents] death, [she] was a resident of the Municipality of Hagonoy, Province of Bulacan; that the [decedent] left an estate of real and personal properties, with a probable gross value of P29,000,000.00; that the names, ages and residences of the surviving heirs of the [decedent] are: (1) Federico C. Suntay, 89 years old, surviving spouse and a resident of x x x; (2) Isabel Cojuangco-Suntay, 36 years old, legitimate granddaughter and a resident of x x x; (3) Margarita Cojuangco-Suntay, 39 years old, legitimate granddaughter and a resident of x x x; and (4) Emilio CojuangcoSuntay, 35 years old, legitimate grandson and a resident of x x x; and that as far as [respondent] knew, the decedent left no debts or obligation at the time of her death.8 Disavowing the allegations in the petition of his grandchild, respondent Isabel, Federico filed his opposition on December 21, 1995, alleging, among others, that: [B]eing the surviving spouse of Cristina, he is capable of administering her estate and he should be the one appointed as its administrator; that as part owner of the mass of conjugal properties left by Cristina, he must be accorded legal preference in the administration thereof; that Isabel and her family had been alienated from their grandparents for more than thirty (30) years; that the enumeration of heirs in the petition was incomplete as it did not mention the other children of his son[,] namely: Emilio III and Nenita S. Taedo; that he is better situated to protect the integrity of the estate of Cristina as even before the death of his wife[,] he was already the one who managed their conjugal properties; that the probable value of the estate as stated in the petition was grossly overstated (sic); and that Isabels allegation that some of the properties are in the hands of usurpers is untrue.9 Meanwhile, after a failed attempt by the parties to settle the proceedings amicably, Federico filed a Manifestation dated March 13, 1999, nominating his adopted son, Emilio III, as administrator of the decedents estate on his behalf, in the event he would be adjudged as the one with a better right to the letters of administration.

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Subsequently, the trial court granted Emilio IIIs Motion for Leave to Intervene considering his interest in the outcome of the case. Emilio III filed his Opposition-In-Intervention, which essentially echoed the allegations in his grandfathers opposition, alleging that Federico, or in his stead, Emilio III, was better equipped than respondent to administer and manage the estate of the decedent, Cristina. Additionally, Emilio III averred his own qualifications that: "[he] is presently engaged in aquaculture and banking; he was trained by the decedent to work in his early age by involving him in the activities of the Emilio Aguinaldo Foundation which was established in 1979 in memory of her grandmothers father; the significant work experiences outside the family group are included in his curriculum vitae; he was employed by the oppositor [Federico] after his graduation in college with management degree at F.C.E. Corporations and Hagonoy Rural Bank; x x x."10 In the course of the proceedings, on November 13, 2000, Federico died. After the testimonies of both parties witnesses were heard and evidence on their respective allegations were adduced, the trial court rendered a decision on November 9, 2001, appointing herein petitioner, Emilio III, as administrator of decedent Cristinas intestate estate, to wit: WHEREFORE, the petition of Isabel Cojuangco[-]Suntay is DENIED and the Opposition[-]in[-]Intervention is GRANTED. Accordingly, the Intervenor, Emilio A.M. Suntay, III is hereby appointed administrator of the estate of the decedent Cristina Aguinaldo Suntay, who shall enter upon the execution of his trust upon the filing of a bond in the amount of P200,000.00, conditioned as follows: (1) To make and return within three (3) months, a true and complete inventory; (2) To administer the estate and to pay and discharge all debts, legatees, and charge on the same, or dividends thereon; (3) To render a true and just account within one (1) year, and at any other time when required by the court, and (4) To perform all orders of the Court. Once the said bond is approved by the court, let Letters of Administration be issued in his favor. SO ORDERED.11 Aggrieved, respondent filed an appeal before the CA, which reversed and set aside the decision of the RTC, revoked the Letters of Administration issued to Emilio III, and appointed respondent as administratrix of the intestate estate of the decedent, Cristina, to wit: WHEREFORE, in view of all the foregoing, the assailed decision dated November 9, 2001 of Branch 78, Regional Trial Court of Malolos, Bulacan in SPC No. 117-M-95 is REVERSED and SET ASIDE and the letters of administration issued by the said court to Emilio A.M. Suntay III, if any, are consequently revoked. Petitioner Isabel Cojuangco[-]Suntay is hereby appointed administratrix of the intestate estate of Cristina Aguinaldo Suntay. Let letters of administration be issued in her favor upon her filing of a bond in the amount of Two Hundred Thousand (P200,000.00) Pesos. No pronouncement as to costs. SO ORDERED.12 The motion for reconsideration of Emilio III having been denied, he appeals by certiorari to this Court, raising the following issues: A. IN THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE UNDER SECTION 6 OF RULE 78 OF THE RULES OF COURT, WHETHER ARTICLE 992 OF THE CIVIL CODE APPLIES; and B. UNDER THE UNDISPUTED FACTS WHERE HEREIN PETITIONER WAS REARED BY THE DECEDENT AND HER SPOUSE SINCE INFANCY, WHETHER ARTICLE 992 OF THE NEW CIVIL CODE APPLIES SO AS TO BAR HIM FROM BEING APPOINTED ADMINISTRATOR OF THE DECEDENTS ESTATE.13 In ruling against the petition of herein respondent, the RTC ratiocinated, thus: Evidence objectively assessed and carefully evaluated, both testimonial and documentary, the court opines that it is to the best interest of the estate of the decedent and all claimants thereto, that the Intervenor, Emilio A.M. Suntay III, be appointed administrator of the estate in the above-entitled special proceedings. Based on the evidence and demeanor of the parties in court, [respondents immediate] family and that of the decedent are apparently estranged. The root cause of which, is not for this court to ascertain nor is this the right time and the proper forum to dwell upon. What matters most at this time is the welfare of the estate of the decedent in the light of such unfortunate and bitter estrangement. The Court honestly believes that to appoint the petitioner would go against the wishes of the decedent who raised [Emilio III] from infancy in her home in Baguio City as her own child. Certainly, it would go against the wishes of the surviving spouse x x x who nominated [Emilio III] for appointment as administrator.

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As between [respondent] and the oppositor [Federico], the latter is accorded preference as the surviving spouse under Sec 6(a), Rule 78, Rules of Court. On the basis of such preference, he vigorously opposed the appointment of the petitioner and instead nominated [Emilio III], his grandchild and adopted child. Such nomination, absent any valid and justifiable reason, should not be imperiously set aside and insouciantly ignored, even after the oppositor [Federico] has passed away, in order to give effect to the order of preference mandated by law. Moreover, from the viewpoint of the estate, the nomination of [Emilio III] appear[s] intrinsically meritorious. For the benefit of the estate and its claimants, creditors, as well as heirs, the administrator should be one who is prepared, academically and by experience, for the demands and responsibilities of the position. While [respondent], a practicing physician, is not unqualified, it is clear to the court that when it comes to management of real estate and the processing and payment of debts, [Emilio III], a businessman with an established track record as a manager has a decided edge and therefore, is in a position to better handle the preservation of the estate.14 In marked contrast, the CA zeroed in on Emilio IIIs status as an illegitimate child of Emilio I and, thus, barred from representing his deceased father in the estate of the latters legitimate mother, the decedent. On the whole, the CA pronounced that Emilio III, who was merely nominated by Federico, and which nomination hinged upon the latters appointment as administrator of the decedents estate, cannot be appointed as the administrator of the decedents estate for the following reasons:15 1. The appointment of Emilio III was subject to a suspensive condition, i.e., Federicos appointment as administrator of the estate, he being the surviving spouse of Cristina, the decedent. The death of Federico before his appointment as administrator of Cristinas estate rendered his nomination of Emilio III inoperative; 2. As between the legitimate offspring (respondent) and illegitimate offspring (Emilio III) of decedents son, Emilio I, respondent is preferred, being the "next of kin" referred to by Section 6, Rule 78 of the Rules of Court, and entitled to share in the distribution of Cristinas estate as an heir; 3. Jurisprudence has consistently held that Article 99216 of the Civil Code bars the illegitimate child from inheriting ab intestato from the legitimate children and relatives of his father or mother. Thus, Emilio III, who is barred from inheriting from his grandmother, cannot be preferred over respondent in the administration of the estate of their grandmother, the decedent; and 4. Contrary to the RTCs finding, respondent is as much competent as Emilio III to administer and manage the subject estate for she possesses none of the disqualifications specified in Section 1,17 Rule 78 of the Rules of Court. The pivotal issue in this case turns on who, as between Emilio III and respondent, is better qualified to act as administrator of the decedents estate. We cannot subscribe to the appellate courts ruling excluding Emilio III in the administration of the decedents undivided estate. Mistakenly, the CA glosses over several undisputed facts and circumstances: 1. The underlying philosophy of our law on intestate succession is to give preference to the wishes and presumed will of the decedent, absent a valid and effective will; 2. The basis for Article 992 of the Civil Code, referred to as the iron curtain bar rule,18 is quite the opposite scenario in the facts obtaining herein for the actual relationship between Federico and Cristina, on one hand, and Emilio III, on the other, was akin to the normal relationship of legitimate relatives; 3. Emilio III was reared from infancy by the decedent, Cristina, and her husband, Federico, who both acknowledged him as their grandchild; 4. Federico claimed half of the properties included in the estate of the decedent, Cristina, as forming part of their conjugal partnership of gains during the subsistence of their marriage; 5. Cristinas properties forming part of her estate are still commingled with that of her husband, Federico, because her share in the conjugal partnership, albeit terminated upon her death, remains undetermined and unliquidated; and 6. Emilio III is a legally adopted child of Federico, entitled to share in the distribution of the latters estate as a direct heir, one degree from Federico, not simply representing his deceased illegitimate father, Emilio I. From the foregoing, it is patently clear that the CA erred in excluding Emilio III from the administration of the decedents estate. As Federicos adopted son, Emilio IIIs interest in the estate of Cristina is as much apparent to this Court as the interest therein of respondent, considering that the CA even declared that "under the law, [Federico], being the surviving spouse, would have the right of succession over a portion of the exclusive property of the decedent, aside from his share in the conjugal partnership." Thus, we are puzzled why the CA resorted to a strained legal reasoning Emilio IIIs nomination was subject to a suspensive condition and rendered inoperative by reason of Federicos death wholly inapplicable to the case at bar. Section 6, Rule 78 of the Rules of Court lists the order of preference in the appointment of an administrator of an estate: SEC. 6. When and to whom letters of administration granted. If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted: (a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;

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(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve; (c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select. However, the order of preference is not absolute for it depends on the attendant facts and circumstances of each case.19 Jurisprudence has long held that the selection of an administrator lies in the sound discretion of the trial court. 20 In the main, the attendant facts and circumstances of this case necessitate, at the least, a joint administration by both respondent and Emilio III of their grandmothers, Cristinas, estate. In the case of Uy v. Court of Appeals,21 we upheld the appointment by the trial court of a co-administration between the decedents son and the decedents brother, who was likewise a creditor of the decedents estate. In the same vein, we declared in Delgado Vda. de De la Rosa v. Heirs of Marciana Rustia Vda. de Damian22 that: [i]n the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed. The order of preference does not rule out the appointment of co-administrators, specially in cases where justice and equity demand that opposing parties or factions be represented in the management of the estates, a situation which obtains here. Similarly, the subject estate in this case calls to the succession other putative heirs, including another illegitimate grandchild of Cristina and Federico, Nenita Taedo, but who was likewise adopted by Federico, and the two (2) siblings of respondent Isabel, Margarita and Emilio II. In all, considering the conflicting claims of the putative heirs, and the unliquidated conjugal partnership of Cristina and Federico which forms part of their respective estates, we are impelled to move in only one direction, i.e., joint administration of the subject estate. One final note. Counsel for petitioner meticulously argues that Article 992 of the Civil Code, the successional bar between the legitimate and illegitimate relatives of a decedent, does not apply in this instance where facts indubitably demonstrate the contrary Emilio III, an illegitimate grandchild of the decedent, was actually treated by the decedent and her husband as their own son, reared from infancy, educated and trained in their businesses, and eventually legally adopted by decedents husband, the original oppositor to respondents petition for letters of administration. We are not unmindful of the critiques of civilists of a conflict and a lacuna in the law concerning the bone of contention that is Article 992 of the Civil Code, beginning with the eminent Justice J.B.L. Reyes: In the Spanish Civil Code of 1889 the right of representation was admitted only within the legitimate family; so much so that Article 943 of that Code prescribed that an illegitimate child can not inherit ab intestato from the legitimate children and relatives of his father and mother. The Civil Code of the Philippines apparently adhered to this principle since it reproduced Article 943 of the Spanish Code in its own Art. 992, but with fine inconsistency, in subsequent articles (990, 995 and 998) our Code allows the hereditary portion of the illegitimate child to pass to his own descendants, whether legitimate or illegitimate. So that while Art. 992 prevents the illegitimate issue of a legitimate child from representing him in the intestate succession of the grandparent, the illegitimates of an illegitimate child can now do so. This difference being indefensible and unwarranted, in the future revision of the Civil Code we shall have to make a choice and decide either that the illegitimate issue enjoys in all cases the right of representation, in which case Art. 992 must be suppressed; or contrariwise maintain said article and modify Articles 995 and 998. The first solution would be more in accord with an enlightened attitude vis--vis illegitimate children.23 Manresa explains the basis for the rules on intestate succession: The law [of intestacy] is founded on the presumed will of the deceased Love, it is said, first descends, then ascends, and, finally, spreads sideways. Thus, the law first calls the descendants, then the ascendants, and finally the collaterals, always preferring those closer in degree to those of remoter degrees, on the assumption that the deceased would have done so had he manifested his last will Lastly, in default of anyone called to succession or bound to the decedent by ties of blood or affection, it is in accordance with his presumed will that his property be given to charitable or educational institutions, and thus contribute to the welfare of humanity.24 Indeed, the factual antecedents of this case accurately reflect the basis of intestate succession, i.e., love first descends, for the decedent, Cristina, did not distinguish between her legitimate and illegitimate grandchildren. Neither did her husband, Federico, who, in fact, legally raised the status of Emilio III from an illegitimate grandchild to that of a legitimate child. The peculiar circumstances of this case, painstakingly pointed out by counsel for petitioner, overthrow the legal presumption in Article 992 of the Civil Code that there exist animosity and antagonism between legitimate and illegitimate descendants of a deceased. Nonetheless, it must be pointed out that judicial restraint impels us to refrain from making a final declaration of heirship and distributing the presumptive shares of the parties in the estates of Cristina and Federico, considering that the question on who will administer the properties of the long deceased couple has yet to be settled. Our holding in Capistrano v. Nadurata25 on the same issue remains good law: [T]he declaration of heirs made by the lower court is premature, although the evidence sufficiently shows who are entitled to succeed the deceased. The estate had hardly been judicially opened, and the proceeding has not as yet reached the stage of distribution of the estate which must come after the inheritance is liquidated. Section 1, Rule 90 of the Rules of Court does not depart from the foregoing admonition: Sec. 1. When order for distribution of residue is made. x x x. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases.

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No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs. WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 74949 is REVERSED and SET ASIDE. Letters of Administration over the estate of decedent Cristina Aguinaldo-Suntay shall issue to both petitioner Emilio A.M. Suntay III and respondent Isabel Cojuangco-Suntay upon payment by each of a bond to be set by the Regional Trial Court, Branch 78, Malolos, Bulacan, in Special Proceeding Case No. 117-M-95. The Regional Trial Court, Branch 78, Malolos, Bulacan is likewise directed to make a determination and to declare the heirs of decedent Cristina Aguinaldo-Suntay according to the actual factual milieu as proven by the parties, and all other persons with legal interest in the subject estate. It is further directed to settle the estate of decedent Cristina Aguinaldo-Suntay with dispatch. No costs. SO ORDERED.

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SECOND DIVISION

G.R. No. 118671

January 29, 1996

THE ESTATE OF HILARIO M. RUIZ, EDMOND RUIZ, Executor, petitioner, vs. THE COURT OF APPEALS (Former Special Sixth Division), MARIA PILAR RUIZ-MONTES, MARIA CATHRYN RUIZ, CANDICE ALBERTINE RUIZ, MARIA ANGELINE RUIZ and THE PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF PASIG, respondents.

DECISION

PUNO, J.:

This petition for review on certiorari seeks to annul and set aside the decision dated November 10, 1994 and the resolution dated January 5, 1995 of the Court of Appeals in CA-G.R. SP No. 33045. The facts show that on June 27, 1987, Hilario M. Ruiz1 executed a holographic will naming as his heirs his only son, Edmond Ruiz, his adopted daughter, private respondent Maria Pilar Ruiz Montes, and his three granddaughters, private respondents Maria Cathryn, Candice Albertine and Maria Angeline, all children of Edmond Ruiz. The testator bequeathed to his heirs substantial cash, personal and real properties and named Edmond Ruiz executor of his estate.2 On April 12, 1988, Hilario Ruiz died. Immediately thereafter, the cash component of his estate was distributed among Edmond Ruiz and private respondents in accordance with the decedent's will. For unbeknown reasons, Edmond, the named executor, did not take any action for the probate of his father's holographic will. On June 29, 1992, four years after the testator's death, it was private respondent Maria Pilar Ruiz Montes who filed before the Regional Trial Court, Branch 156, Pasig, a petition for the probate and approval of Hilario Ruiz's will and for the issuance of letters testamentary to Edmond Ruiz,3 Surprisingly, Edmond opposed the petition on the ground that the will was executed under undue influence. On November 2, 1992, one of the properties of the estate the house and lot at No. 2 Oliva Street, Valle Verde IV, Pasig which the testator bequeathed to Maria Cathryn, Candice Albertine and Maria Angeline4 was leased out by Edmond Ruiz to third persons. On January 19, 1993, the probate court ordered Edmond to deposit with the Branch Clerk of Court the rental deposit and payments totalling P540,000.00 representing the one-year lease of the Valle Verde property. In compliance, on January 25, 1993, Edmond turned over the amount of P348,583.56, representing the balance of the rent after deducting P191,416.14 for repair and maintenance expenses on the estate.5 In March 1993, Edmond moved for the release of P50,000.00 to pay the real estate taxes on the real properties of the estate. The probate court approved the release of P7,722.00.6 On May 14, 1993, Edmond withdrew his opposition to the probate of the will. Consequently, the probate court, on May 18, 1993, admitted the will to probate and ordered the issuance of letters testamentary to Edmond conditioned upon the filing of a bond in the amount of P50,000.00. The letters testamentary were issued on June 23, 1993. On July 28, 1993, petitioner Testate Estate of Hilario Ruiz, with Edmond Ruiz as executor, filed an "Ex-Parte Motion for Release of Funds." It prayed for the release of the rent payments deposited with the Branch Clerk of Court. Respondent Montes opposed the motion and concurrently filed a "Motion for Release of Funds to Certain Heirs" and "Motion for Issuance of Certificate of Allowance of Probate Will." Montes prayed for the release of the said rent payments to Maria Cathryn, Candice Albertine and Maria Angeline and for the distribution of the testator's properties, specifically the Valle Verde property and the Blue Ridge apartments, in accordance with the provisions of the holographic will. On August 26, 1993, the probate court denied petitioner's motion for release of funds but granted respondent Montes' motion in view of petitioner's lack of opposition. It thus ordered the release of the rent payments to the decedent's three granddaughters. It further ordered the delivery of the titles to and possession of the properties bequeathed to the three granddaughters and respondent Montes upon the filing of a bond of P50,000.00. Petitioner moved for reconsideration alleging that he actually filed his opposition to respondent Montes's motion for release of rent payments which opposition the court failed to consider. Petitioner likewise reiterated his previous motion for release of funds. On November 23, 1993, petitioner, through counsel, manifested that he was withdrawing his motion for release of funds in view of the fact that the lease contract over the Valle Verde property had been renewed for another year.7 Despite petitioner's manifestation, the probate court, on December 22, 1993, ordered the release of the funds to Edmond but only "such amount as may be necessary to cover the expenses of administration and allowances for support" of the testator's three granddaughters subject to collation and deductible from their share in the inheritance. The court, however, held in abeyance the release of the titles to respondent Montes and the three granddaughters until the lapse of six months from the date of first publication of the notice to creditors.8 The court stated thus: xxx xxx xxx

After consideration of the arguments set forth thereon by the parties the court resolves to allow Administrator Edmond M. Ruiz to take possession of the rental payments deposited with the Clerk of Court, Pasig Regional Trial Court, but only such amount as may be necessary to cover the expenses of administration and allowances for support of Maria Cathryn Veronique, Candice Albertine and Maria

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Angeli, which are subject to collation and deductible from the share in the inheritance of said heirs and insofar as they exceed the fruits or rents pertaining to them. As to the release of the titles bequeathed to petitioner Maria Pilar Ruiz-Montes and the above-named heirs, the same is hereby reconsidered and held in abeyance until the lapse of six (6) months from the date of first publication of Notice to Creditors. WHEREFORE, Administrator Edmond M. Ruiz is hereby ordered to submit an accounting of the expenses necessary for administration including provisions for the support Of Maria Cathryn Veronique Ruiz, Candice Albertine Ruiz and Maria Angeli Ruiz before the amount required can be withdrawn and cause the publication of the notice to creditors with reasonable dispatch.9 Petitioner assailed this order before the Court of Appeals. Finding no grave abuse of discretion on the part of respondent judge, the appellate court dismissed the petition and sustained the probate court's order in a decision dated November 10, 199410 and a resolution dated January 5, 1995.11 Hence, this petition. Petitioner claims that: THE PUBLIC RESPONDENT COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AFFIRMING AND CONFIRMING THE ORDER OF RESPONDENT REGIONAL TRIAL COURT OF PASIG, BRANCH 156, DATED DECEMBER 22, 1993, WHICH WHEN GIVEN DUE COURSE AND IS EFFECTED WOULD: (1) DISALLOW THE EXECUTOR/ADMINISTRATOR OF THE ESTATE OF THE LATE HILARIO M. RUIZ TO TAKE POSSESSION OF ALL THE REAL AND PERSONAL PROPERTIES OF THE ESTATE; (2) GRANT SUPPORT, DURING THE PENDENCY OF THE SETTLEMENT OF AN ESTATE, TO CERTAIN PERSONS NOT ENTITLED THERETO; AND (3) PREMATURELY PARTITION AND DISTRIBUTE THE ESTATE PURSUANT TO THE PROVISIONS OF THE HOLOGRAPHIC WILL EVEN BEFORE ITS INTRINSIC VALIDITY HAS BEEN DETERMINED, AND DESPITE THE EXISTENCE OF UNPAID DEBTS AND OBLIGATIONS OF THE ESTATE.12 The issue for resolution is whether the probate court, after admitting the will to probate but before payment of the estate's debts and obligations, has the authority: (1) to grant an allowance from the funds of the estate for the support of the testator's grandchildren; (2) to order the release of the titles to certain heirs; and (3) to grant possession of all properties of the estate to the executor of the will. On the matter of allowance, Section 3 of Rule 83 of the Revised Rules of Court provides: Sec. 3. Allowance to widow and family. The widow and minor or incapacitated children of a deceased person, during the settlement of the estate, shall receive therefrom under the direction of the court, such allowance as are provided by law. Petitioner alleges that this provision only gives the widow and the minor or incapacitated children of the deceased the right to receive allowances for support during the settlement of estate proceedings. He contends that the testator's three granddaughters do not qualify for an allowance because they are not incapacitated and are no longer minors but of legal age, married and gainfully employed. In addition, the provision expressly states "children" of the deceased which excludes the latter's grandchildren. It is settled that allowances for support under Section 3 of Rule 83 should not be limited to the "minor or incapacitated" children of the deceased. Article 18813 of the Civil Code of the Philippines, the substantive law in force at the time of the testator's death, provides that during the liquidation of the conjugal partnership, the deceased's legitimate spouse and children, regardless of their age, civil status or gainful employment, are entitled to provisional support from the funds of the estate.14 The law is rooted on the fact that the right and duty to support, especially the right to education, subsist even beyond the age of majority.15 Be that as it may, grandchildren are not entitled to provisional support from the funds of the decedent's estate. The law clearly limits the allowance to "widow and children" and does not extend it to the deceased's grandchildren, regardless of their minority or incapacity. 16 It was error, therefore, for the appellate court to sustain the probate court's order granting an allowance to the grandchildren of the testator pending settlement of his estate. Respondent courts also erred when they ordered the release of the titles of the bequeathed properties to private respondents six months after the date of first publication of notice to creditors. An order releasing titles to properties of the estate amounts to an advance distribution of the estate which is allowed only under the following conditions: Sec. 2. Advance distribution in special proceedings. Nothwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent, the court may, in its discretion and upon such terms as it may deem proper and just, permit that such part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance with the conditions set forth in Rule 90 of these Rules.17 And Rule 90 provides that: Sec. 1. When order for distribution of residue made. When the debts, funeral charges, and expenses of administration the allowance to the widow, and inheritance tax if any, chargeable to the estate in accordance with law, have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases.

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No distribution shall be allowed until the payment of the obligations above-mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs.18 In settlement of estate proceedings, the distribution of the estate properties can only be made: (1) after all the debts, funeral charges, expenses of administration, allowance to the widow, and estate tax have been paid; or (2) before payment of said obligations only if the distributees or any of them gives a bond in a sum fixed by the court conditioned upon the payment of said obligations within such time as the court directs, or when provision is made to meet those obligations.19 In the case at bar, the probate court ordered the release of the titles to the Valle Verde property and the Blue Ridge apartments to the private respondents after the lapse of six months from the date of first publication of the notice to creditors. The questioned order speaks of "notice" to creditors, not payment of debts and obligations. Hilario Ruiz allegedly left no debts when he died but the taxes on his estate had not hitherto been paid, much less ascertained. The estate tax is one of those obligations that must be paid before distribution of the estate. If not yet paid, the rule requires that the distributees post a bond or make such provisions as to meet the said tax obligation in proportion to their respective shares in the inheritance.20 Notably, at the time the order was issued the properties of the estate had not yet been inventoried and appraised. It was also too early in the day for the probate court to order the release of the titles six months after admitting the will to probate. The probate of a will is conclusive as to its due execution and extrinsic validity21 and settles only the question of whether the testator, being of sound mind, freely executed it in accordance with the formalities prescribed by law.22 Questions as to the intrinsic validity and efficacy of the provisions of the will, the legality of any devise or legacy may be raised even after the will has been authenticated.23 The intrinsic validity of Hilario's holographic will was controverted by petitioner before the probate court in his Reply to Montes' Opposition to his motion for release of funds24 and his motion for reconsideration of the August 26, 1993 order of the said court.25 Therein, petitioner assailed the distributive shares of the devisees and legatees inasmuch as his father's will included the estate of his mother and allegedly impaired his legitime as an intestate heir of his mother. The Rules provide that if there is a controversy as to who are the lawful heirs of the decedent and their distributive shares in his estate, the probate court shall proceed to hear and decide the same as in ordinary cases.26 Still and all, petitioner cannot correctly claim that the assailed order deprived him of his right to take possession of all the real and personal properties of the estate. The right of an executor or administrator to the possession and management of the real and personal properties of the deceased is not absolute and can only be exercised "so long as it is necessary for the payment of the debts and expenses of administration,"27 Section 3 of Rule 84 of the Revised Rules of Court explicitly provides: Sec. 3. Executor or administrator to retain whole estate to pay debts, and to administer estate not willed. An executor or administrator shall have the right to the possession and management of the real as well as the personal estate of the deceased so long as it is necessary for the payment of the debts and expenses for administration.28 When petitioner moved for further release of the funds deposited with the clerk of court, he had been previously granted by the probate court certain amounts for repair and maintenance expenses on the properties of the estate, and payment of the real estate taxes thereon. But petitioner moved again for the release of additional funds for the same reasons he previously cited. It was correct for the probate court to require him to submit an accounting of the necessary expenses for administration before releasing any further money in his favor. It was relevantly noted by the probate court that petitioner had deposited with it only a portion of the one-year rental income from the Valle Verde property. Petitioner did not deposit its succeeding rents after renewal of the lease.29 Neither did he render an accounting of such funds. Petitioner must be reminded that his right of ownership over the properties of his father is merely inchoate as long as the estate has not been fully settled and partitioned.30 As executor, he is a mere trustee of his father's estate. The funds of the estate in his hands are trust funds and he is held to the duties and responsibilities of a trustee of the highest order.31 He cannot unilaterally assign to himself and possess all his parents' properties and the fruits thereof without first submitting an inventory and appraisal of all real and personal properties of the deceased, rendering a true account of his administration, the expenses of administration, the amount of the obligations and estate tax, all of which are subject to a determination by the court as to their veracity, propriety and justness.32 IN VIEW WHEREOF, the decision and resolution of the Court of Appeals in CA-G.R. SP No. 33045 affirming the order dated December 22, 1993 of the Regional Trial Court, Branch 156, Pasig in SP Proc. No. 10259 are affirmed with the modification that those portions of the order granting an allowance to the testator's grandchildren and ordering the release of the titles to the private respondents upon notice to creditors are annulled and set aside. Respondent judge is ordered to proceed with dispatch in the proceedings below. SO ORDERED.
Regalado, Romero and Mendoza, JJ., concur.