Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-4963

January 29, 1953

MARIA USON, plaintiff-appellee,

vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA,
CONRADO NEBREDA, DOMINADOR NEBREDA, AND
FAUSTINO NEBREDA, Jr., defendants-appellants.
Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.
BAUTISTA ANGELO, J.:
This is an action for recovery of the ownership and
possession of five (5) parcels of land situated in the
Municipality of Labrador, Province of Pangasinan, filed
by Maria Uson against Maria del Rosario and her four
children named Concepcion, Conrado, Dominador, and
Faustino, surnamed Nebreda, who are all of minor age,
before the Court of First Instance of Pangasinan.
Maria Uson was the lawful wife of Faustino Nebreda who
upon his death in 1945 left the lands involved in this
litigation. Faustino Nebreda left no other heir except his
widow Maria Uson. However, plaintiff claims that when
Faustino Nebreda died in 1945, his common-law wife
Maria del Rosario took possession illegally of said lands
thus depriving her of their possession and enjoyment.
Defendants in their answer set up as special defense
that on February 21, 1931, Maria Uson and her
husband, the late Faustino Nebreda, executed a public
document whereby they agreed to separate as husband
and wife and, in consideration of their separation, Maria
Uson was given a parcel of land by way of alimony and
in return she renounced her right to inherit any other
property that may be left by her husband upon his death
(Exhibit 1).
After trial, at which both parties presented their
respective evidence, the court rendered decision
ordering the defendants to restore to the plaintiff the
ownership and possession of the lands in dispute
without special pronouncement as to costs. Defendants
interposed the present appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is
the lawful wife of Faustino Nebreda, former owner of the
five parcels of lands litigated in the present case. There
is likewise no dispute that Maria del Rosario, one of the
defendants-appellants, was merely a common-law wife
of the late Faustino Nebreda with whom she had four
illegitimate children, her now co-defendants. It likewise
appears that Faustino Nebreda died in 1945 much prior
to the effectivity of the new Civil Code. With this
background, it is evident that when Faustino Nebreda
died in 1945 the five parcels of land he was seized of at
the time passed from the moment of his death to his only
heir, his widow Maria Uson (Article 657, old Civil
Code).As this Court aptly said, "The property belongs to
the heirs at the moment of the death of the ancestor as
completely as if the ancestor had executed and
delivered to them a deed for the same before his death"
(Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that

moment, therefore, the rights of inheritance of Maria

Uson over the lands in question became vested.
The claim of the defendants that Maria Uson had
relinquished her right over the lands in question because
she expressly renounced to inherit any future property
that her husband may acquire and leave upon his death
in the deed of separation they had entered into on
February 21, 1931, cannot be entertained for the simple
reason that future inheritance cannot be the subject of a
contract nor can it be renounced (1 Manresa, 123, sixth
edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio
and Ynchausti Steamship Co., 41 Phil., 531).
But defendants contend that, while it is true that the four
minor defendants are illegitimate children of the late
Faustino Nebreda and under the old Civil Code are not
entitled to any successional rights, however, under the
new Civil Code which became in force in June, 1950,
they are given the status and rights of natural children
and are entitled to the successional rights which the law
accords to the latter (article 2264 and article 287, new
Civil Code), and because these successional rights were
declared for the first time in the new code, they shall be
given retroactive effect even though the event which
gave rise to them may have occurred under the prior
legislation (Article 2253, new Civil Code).
There is no merit in this claim. Article 2253 above
referred to provides indeed that rights which are
declared for the first time shall have retroactive effect
even though the event which gave rise to them may
have occurred under the former legislation, but this is so
only when the new rights do not prejudice any vested or
acquired right of the same origin. Thus, said article
provides that "if a right should be declared for the first
time in this Code, it shall be effective at once, even
though the act or event which gives rise thereto may
have been done or may have occurred under the prior
legislation, provided said new right does not prejudice or
impair any vested or acquired right, of the same origin."
As already stated in the early part of this decision, the
right of ownership of Maria Uson over the lands in
question became vested in 1945 upon the death of her
late husband and this is so because of the imperative
provision of the law which commands that the rights to
succession are transmitted from the moment of death
(Article 657, old Civil Code). The new right recognized
by the new Civil Code in favor of the illegitimate children
of the deceased cannot, therefore, be asserted to the
impairment of the vested right of Maria Uson over the
lands in dispute.
As regards the claim that Maria Uson, while her
deceased husband was lying in state, in a gesture of pity
or compassion, agreed to assign the lands in question to
the minor children for the reason that they were acquired
while the deceased was living with their mother and
Maria Uson wanted to assuage somewhat the wrong she
has done to them, this much can be said; apart from the
fact that this claim is disputed, we are of the opinion that
said assignment, if any, partakes of the nature of a
donation of real property, inasmuch as it involves no
material consideration, and in order that it may be valid it
shall be made in a public document and must be
accepted either in the same document or in a separate
one (Article 633, old Civil Code). Inasmuch as this
essential formality has not been followed, it results that
the alleged assignment or donation has no valid effect.

WHEREFORE, the decision appealed from is affirmed,

without costs.

L-28611
Sevilla & Aquino for plaintiff-appellee.
Pelaez, Jalandoni & Jamir and David Gueverra for
defendant-appellant.

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

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

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

TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE
BORJA, administrator-appellee; JOSE DE BORJA, as
administrator, CAYETANO DE BORJA, MATILDE DE
BORJA and CRISANTO DE BORJA (deceased) as
Children of Josefa Tangco, appellees,
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix
of the Testate Estate of Francisco de Borja, appellant.
.
G.R. No L-28568 August 18, 1972
TESTATE ESTATE OF THE LATE FRANCISCO DE
BORJA, TASIANA O. VDA. DE DE BORJA, special
Administratrix appellee,
vs.
JOSE DE BORJA, oppositor-appellant.
G.R. No. L-28611 August 18, 1972
TASIANA 0. VDA. DE BORJA, as Administratrix of
the Testate Estate of the late Francisco de
Borja, plaintiff-appellee,
vs.
JOSE DE BORJA, as Administrator of the Testate
Estate of the late Josefa Tangco, defendant-appellant.
L-28040
Pelaez, Jalandoni & Jamir for administrator-appellee.
Quiogue & Quiogue for appellee Matilde de Borja.
Andres Matias for appellee Cayetano de Borja.
Sevilla & Aquino for appellant.
L-28568
Sevilla & Aquino for special administratrix-appellee.
Pelaez, Jalandoni & Jamir for oppositor-appellant.

Of these cases, the first, numbered L-28040 is an appeal

by Tasiana Ongsingco Vda. de de Borja, special
administratrix of the testate estate of Francisco de
Borja, 1 from the approval of a compromise agreement
by the Court of First Instance of Rizal, Branch I, in its
Special Proceeding No. R-7866, entitled, "Testate Estate
of Josefa Tangco, Jose de Borja, Administrator".
Case No. L-28568 is an appeal by administrator Jose
Borja from the disapproval of the same compromise
agreement by the Court of First Instance of Nueva Ecija,
Branch II, in its Special Proceeding No. 832, entitled,
"Testate Estate of Francisco de Borja, Tasiana O. Vda.
de de Borja, Special Administratrix".
And Case No. L-28611 is an appeal by administrator
Jose de Borja from the decision of the Court of First
Instance of Rizal, Branch X, in its Civil Case No. 7452,
declaring the Hacienda Jalajala Poblacion, which is the
main object of the aforesaid compromise agreement, as
the separate and exclusive property of the late Francisco
de Borja and not a conjugal asset of the community with
his first wife, Josefa Tangco, and that said hacienda
pertains exclusively to his testate estate, which is under
administrator in Special Proceeding No. 832 of the Court
of First Instance of Nueva Ecija, Branch II.
It is uncontested that Francisco de Borja, upon the death
of his wife Josefa Tangco on 6 October 1940, filed a
petition for the probate of her will which was docketed as
Special Proceeding No. R-7866 of the Court of First
Instance of Rizal, Branch I. The will was probated on 2
April 1941. In 1946, Francisco de Borja was appointed
executor and administrator: in 1952, their son, Jose de
Borja, was appointed co-administrator. When Francisco
died, on 14 April 1954, Jose became the sole
administrator of the testate estate of his mother, Josefa
Tangco. While a widower Francisco de Borja allegedly
took unto himself a second wife, Tasiana Ongsingco.
Upon Francisco's death, Tasiana instituted testate
proceedings in the Court of First Instance of Nueva
Ecija, where, in 1955, she was appointed special
administratrix. The validity of Tasiana's marriage to
Francisco was questioned in said proceeding.
The relationship between the children of the first
marriage and Tasiana Ongsingco has been plagued with
several court suits and counter-suits; including the three
cases at bar, some eighteen (18) cases remain pending
determination in the courts. The testate estate of Josefa
Tangco alone has been unsettled for more than a quarter
of a century. In order to put an end to all these litigations,
a compromise agreement was entered into on 12
October 1963, 2 by and between "[T]he heir and son of
Francisco de Borja by his first marriage, namely, Jose de
Borja personally and as administrator of the Testate
Estate of Josefa Tangco," and "[T]he heir and surviving
spouse of Francisco de Borja by his second marriage,
Tasiana Ongsingco Vda. de Borja, assisted by her

lawyer, Atty. Luis Panaguiton Jr." The terms and

conditions of the compromise agreement are as follows:
AGREEMENT
THIS AGREEMENT made and entered
into by and between
The heir and son of Francisco de Borja
by his first marriage, namely, Jose de
Borja personally and as administrator of
the Testate Estate of Josefa Tangco,
AND
The heir and surviving spouse of
Francisco de Borja by his second
marriage, Tasiana Ongsingco Vda. de
Borja, assisted by her lawyer, Atty. Luis
Panaguiton Jr.
WITNESSETH
THAT it is the mutual desire of all the
parties herein terminate and settle, with
finality, the various court litigations,
controversies, claims, counterclaims,
etc., between them in connection with
the administration, settlement, partition,
adjudication and distribution of the
assets as well as liabilities of the estates
of Francisco de Borja and Josefa
Tangco, first spouse of Francisco de
Borja.
THAT with this end in view, the parties
herein have agreed voluntarily and
without any reservations to enter into
and execute this agreement under the
following terms and conditions:
1. That the parties agree to sell the
Poblacion portion of the Jalajala
properties situated in Jalajala, Rizal,
presently under administration in the
Testate Estate of Josefa Tangco (Sp.
Proc. No. 7866, Rizal), more specifically
described as follows:
Linda al Norte con el
Rio Puwang que la
separa de la jurisdiccion
del Municipio de Pililla
de la Provincia de Rizal,
y con el pico del Monte
Zambrano; al Oeste con
Laguna de Bay; por el
Sur con los herederos
de Marcelo de Borja; y
por el Este con los
terrenos de la Familia
Maronilla
with a segregated area of approximately
1,313 hectares at the amount of P0.30
per square meter.
2. That Jose de Borja agrees and
obligates himself to pay Tasiana
Ongsingco Vda. de de Borja the total

amount of Eight Hundred Thousand

Pesos (P800,000) Philippine Currency,
in cash, which represent P200,000 as
his share in the payment and P600,000
as pro-rata shares of the heirs Crisanto,
Cayetano and Matilde, all surnamed de
Borja and this shall be considered as full
and complete payment and settlement
of her hereditary share in the estate of
the late Francisco de Borja as well as
the estate of Josefa Tangco, Sp. Proc.
No. 832-Nueva Ecija and Sp. Proc. No.
7866-Rizal, respectively, and to any
properties bequeathed or devised in her
favor by the late Francisco de Borja by
Last Will and Testament or by Donation
Inter Vivos or Mortis Causa or
purportedly conveyed to her for
consideration or otherwise. The funds
for this payment shall be taken from and
shall depend upon the receipt of full
payment of the proceeds of the sale of
Jalajala, "Poblacion."
3. That Tasiana Ongsingco Vda. de de
Borja hereby assumes payment of that
particular obligation incurred by the late
Francisco de Borja in favor of the
Rehabilitation Finance Corporation, now
Development Bank of the Philippines,
amounting to approximately P30,000.00
and also assumes payment of her 1/5
share of the Estate and Inheritance
taxes on the Estate of the late Francisco
de Borja or the sum of P3,500.00, more
or less, which shall be deducted by the
buyer of Jalajala, "Poblacion" from the
payment to be made to Tasiana
Ongsingco Vda. de Borja under
paragraph 2 of this Agreement and paid
directly to the Development Bank of the
Philippines and the heirs-children of
Francisco de Borja.
4. Thereafter, the buyer of Jalajala
"Poblacion" is hereby authorized to pay
directly to Tasiana Ongsingco Vda. de
de Borja the balance of the payment
due her under paragraph 2 of this
Agreement
(approximately
P766,500.00) and issue in the name of
Tasiana Ongsingco Vda. de de Borja,
corresponding certified checks/treasury
warrants, who, in turn, will issue the
corresponding receipt to Jose de Borja.
5. In consideration of above payment to
Tasiana Ongsingco Vda. de de Borja,
Jose de Borja personally and as
administrator of the Testate Estate of
Josefa Tangco, and Tasiana Ongsingco
Vda. de de Borja, for themselves and for
their heirs, successors, executors,
administrators, and assigns, hereby
forever mutually renounce, withdraw,
waive, remise, release and discharge
any and all manner of action or actions,
cause or causes of action, suits, debts,
sum or sums of money, accounts,
damages,
claims
and
demands

whatsoever, in law or in equity, which

they ever had, or now have or may have
against each other, more specifically Sp.
Proceedings Nos. 7866 and 1955, CFIRizal, and Sp. Proc. No. 832-Nueva
Ecija, Civil Case No. 3033, CFI Nueva
Ecija and Civil Case No. 7452-CFI,
Rizal, as well as the case filed against
Manuel Quijal for perjury with the
Provincial Fiscal of Rizal, the intention
being to completely, absolutely and
finally release each other, their heirs,
successors, and assigns, from any and
all liability, arising wholly or partially,
directly
or
indirectly,
from
the
administration,
settlement,
and
distribution of the assets as well as
liabilities of the estates of Francisco de
Borja and Josefa Tangco, first spouse of
Francisco de Borja, and lastly, Tasiana
Ongsingco Vda. de de Borja expressly
and specifically renounce absolutely her
rights as heir over any hereditary share
in the estate of Francisco de Borja.
6. That Tasiana Ongsingco Vda. de de
Borja, upon receipt of the payment
under paragraph 4 hereof, shall deliver
to the heir Jose de Borja all the papers,
titles and documents belonging to
Francisco de Borja which are in her
possession and said heir Jose de Borja
shall issue in turn the corresponding
receive thereof.
7. That this agreement shall take effect
only upon the fulfillment of the sale of
the
properties
mentioned
under
paragraph 1 of this agreement and upon
receipt of the total and full payment of
the proceeds of the sale of the Jalajala
property "Poblacion", otherwise, the
non-fulfillment of the said sale will
render this instrument NULL AND VOID
AND
WITHOUT
EFFECT
THEREAFTER.
IN WITNESS WHEREOF, the parties
hereto have her unto set their hands in
the City of Manila, Philippines, the 12th
of October, 1963.
On 16 May 1966, Jose de Borja submitted for Court
approval the agreement of 12 October 1963 to the Court
of First Instance of Rizal, in Special Proceeding No. R7866; and again, on 8 August 1966, to the Court of First
Instance of Nueva Ecija, in Special Proceeding No. 832.
Tasiana Ongsingco Vda. de de Borja opposed in both
instances. The Rizal court approved the compromise
agreement, but the Nueva Ecija court declared it void
and unenforceable. Special administratrix Tasiana
Ongsingco Vda. de de Borja appealed the Rizal Court's
order of approval (now Supreme Court G.R. case No. L28040), while administrator Jose de Borja appealed the
order of disapproval (G.R. case No. L-28568) by the
Court of First Instance of Nueva Ecija.
The genuineness and due execution of the compromised
agreement of 12 October 1963 is not disputed, but its
validity is, nevertheless, attacked by Tasiana Ongsingco

on the ground that: (1) the heirs cannot enter into such
kind of agreement without first probating the will of
Francisco de Borja; (2) that the same involves a
compromise on the validity of the marriage between
Francisco de Borja and Tasiana Ongsingco; and (3) that
even if it were valid, it has ceased to have force and
effect.
In assailing the validity of the agreement of 12 October
1963, Tasiana Ongsingco and the Probate Court of
Nueva Ecija rely on this Court's decision in Guevara vs.
Guevara. 74 Phil. 479, wherein the Court's majority held
the view that the presentation of a will for probate is
mandatory and that the settlement and distribution of an
estate on the basis of intestacy when the decedent left a
will, is against the law and public policy. It is likewise
pointed out by appellant Tasiana Ongsingco that Section
1 of Rule 74 of the Revised Rules explicitly conditions
the validity of an extrajudicial settlement of a decedent's
estate by agreement between heirs, upon the facts that
"(if) the decedent left no will and no debts, and the heirs
are all of age, or the minors are represented by their
judicial and legal representatives ..." The will of
Francisco de Borja having been submitted to the Nueva
Ecija Court and still pending probate when the 1963
agreement was made, those circumstances, it is argued,
bar the validity of the agreement.
Upon the other hand, in claiming the validity of the
compromise agreement, Jose de Borja stresses that at
the time it was entered into, on 12 October 1963, the
governing provision was Section 1, Rule 74 of the
original Rules of Court of 1940, which allowed the
extrajudicial settlement of the estate of a deceased
person regardless of whether he left a will or not. He
also relies on the dissenting opinion of Justice Moran,
in Guevara vs. Guevara, 74 Phil. 479, wherein was
expressed the view that if the parties have already
divided the estate in accordance with a decedent's will,
the probate of the will is a useless ceremony; and if they
have divided the estate in a different manner, the
probate of the will is worse than useless.
The doctrine of Guevara vs. Guevara, ante, is not
applicable to the case at bar. This is apparent from an
examination of the terms of the agreement between
Jose de Borja and Tasiana Ongsingco. Paragraph 2 of
said agreement specifically stipulates that the sum of
P800,000 payable to Tasiana Ongsingco
shall be considered as full complete
payment settlement of her hereditary
share in the estate of the late Francisco
de Borja as well as the estate of Josefa
Tangco, ... and to any properties
bequeathed or devised in her favor by
the late Francisco de Borja by Last Will
and Testament or by Donation Inter
Vivos or Mortis Causa or purportedly
conveyed to her for consideration or
otherwise.
This provision evidences beyond doubt that the ruling in
the Guevara case is not applicable to the cases at bar.
There was here no attempt to settle or distribute the
estate of Francisco de Borja among the heirs thereto
before the probate of his will. The clear object of the
contract was merely the conveyance by Tasiana
Ongsingco of any and all her individual share and
interest, actual or eventual in the estate of Francisco de

Borja and Josefa Tangco. There is no stipulation as to

any other claimant, creditor or legatee. And as a
hereditary share in a decedent's estate is transmitted or
vested immediately from the moment of the death of
such causante or predecessor in interest (Civil Code of
the Philippines, Art. 777) 3 there is no legal bar to a
successor (with requisite contracting capacity) disposing
of her or his hereditary share immediately after such
death, even if the actual extent of such share is not
determined until the subsequent liquidation of the
estate. 4 Of course, the effect of such alienation is to be
deemed limited to what is ultimately adjudicated to the
vendor heir. However, the aleatory character of the
contract does not affect the validity of the transaction;
neither does the coetaneous agreement that the
numerous litigations between the parties (the approving
order of the Rizal Court enumerates fourteen of them,
Rec. App. pp. 79-82) are to be considered settled and
should be dismissed, although such stipulation, as noted
by the Rizal Court, gives the contract the character of a
compromise that the law favors, for obvious reasons, if
only because it serves to avoid a multiplicity of suits.
It is likewise worthy of note in this connection that as the
surviving spouse of Francisco de Borja, Tasiana
Ongsingco was his compulsory heir under article 995 et
seq. of the present Civil Code. Wherefore, barring
unworthiness or valid disinheritance, her successional
interest existed independent of Francisco de Borja's last
will and testament and would exist even if such will were
not probated at all. Thus, the prerequisite of a previous
probate of the will, as established in the Guevara and
analogous cases, can not apply to the case of Tasiana
Ongsingco Vda. de de Borja.
Since the compromise contract Annex A was entered
into by and between "Jose de Borja personally and as
administrator of the Testate Estate of Josefa Tangco" on
the one hand, and on the other, "the heir and surviving
spouse of Francisco de Borja by his second marriage,
Tasiana Ongsingco Vda. de de Borja", it is clear that the
transaction was binding on both in their individual
capacities, upon the perfection of the contract, even
without previous authority of the Court to enter into the
same. The only difference between an extrajudicial
compromise and one that is submitted and approved by
the Court, is that the latter can be enforced by execution
proceedings. Art. 2037 of the Civil Code is explicit on the
point:
8. Art. 2037. A compromise has upon
the parties the effect and authority of res
judicata; but there shall be no execution
except in compliance with a judicial
compromise.
It is argued by Tasiana Ongsingco that
while the agreement Annex A expressed
no definite period for its performance,
the same was intended to have a
resolutory period of 60 days for its
effectiveness. In support of such
contention, it is averred that such a limit
was expressly stipulated in an
agreement in similar terms entered into
by said Ongsingco with the brothers and
sister of Jose de Borja, to wit, Crisanto,
Matilde and Cayetano, all surnamed de
Borja, except that the consideration was
fixed
at
P600,000
(Opposition,

Annex/Rec. of Appeal, L-28040, pp. 3946) and which contained the following
clause:
III. That this agreement shall take effect
only upon the consummation of the sale
of the property mentioned herein and
upon receipt of the total and full
payment of the proceeds of the sale by
the herein owner heirs-children of
Francisco de Borja, namely, Crisanto,
Cayetano and Matilde, all surnamed de
Borja; Provided that if no sale of the said
property
mentioned
herein
is
consummated, or the non-receipt of the
purchase price thereof by the said
owners within the period of sixty (60)
days from the date hereof, this
agreement will become null and void
and of no further effect.
Ongsingco's argument loses validity when it is
considered that Jose de Borja was not a party to this
particular contract (Annex 1), and that the same appears
not to have been finalized, since it bears no date, the
day being left blank "this day of October 1963"; and
while signed by the parties, it was not notarized,
although plainly intended to be so done, since it carries a
proposed notarial ratification clause. Furthermore, the
compromise contract with Jose de Borja (Annex A),
provides in its par. 2 heretofore transcribed that of the
total consideration of P800, 000 to be paid to Ongsingco,
P600,000 represent the "prorata share of the heirs
Crisanto, Cayetano and Matilde all surnamed de Borja"
which corresponds to the consideration of P600,000
recited in Annex 1, and that circumstance is proof that
the duly notarized contract entered into wit Jose de Borja
under date 12 October 1963 (Annex A), was designed to
absorb and supersede the separate unformalize
agreement with the other three Borja heirs. Hence, the
60 days resolutory term in the contract with the latter
(Annex 1) not being repeated in Annex A, can not apply
to the formal compromise with Jose de Borja. It is
moreover manifest that the stipulation that the sale of the
Hacienda de Jalajala was to be made within sixty days
from the date of the agreement with Jose de Borja's coheirs (Annex 1) was plainly omitted in Annex A as
improper and ineffective, since the Hacienda de Jalajala
(Poblacion) that was to be sold to raise the P800,000 to
be paid to Ongsingco for her share formed part of the
estate of Francisco de Borja and could not be sold until
authorized by the Probate Court. The Court of First
Instance of Rizal so understood it, and in approving the
compromise it fixed a term of 120 days counted from the
finality of the order now under appeal, for the carrying
out by the parties for the terms of the contract.
This brings us to the plea that the Court of First Instance
of Rizal had no jurisdiction to approve the compromise
with Jose de Borja (Annex A) because Tasiana
Ongsingco was not an heir in the estate of Josefa
Tangco pending settlement in the Rizal Court, but she
was an heir of Francisco de Borja, whose estate was the
object of Special Proceeding No. 832 of the Court of
First Instance of Nueva Ecija. This circumstance is
irrelevant, since what was sold by Tasiana Ongsingco
was only her eventual share in the estate of her late
husband, not the estate itself; and as already shown,
that eventual share she owned from the time of
Francisco's death and the Court of Nueva Ecija could not

bar her selling it. As owner of her undivided hereditary

share, Tasiana could dispose of it in favor of
whomsoever she chose. Such alienation is expressly
recognized and provided for by article 1088 of the
present Civil Code:
Art. 1088. Should any of the heirs sell
his hereditary rights to a stranger before
the partition, any or all of the co-heirs
may be subrogated to the rights of the
purchaser by reimbursing him for the
price of the sale, provided they do so
within the period of one month from the
time they were notified in writing of the
sale of the vendor.
If a sale of a hereditary right can be made to a stranger,
then a fortiori sale thereof to a coheir could not be
forbidden.
Tasiana Ongsingco further argues that her contract with
Jose de Borja (Annex "A") is void because it amounts to
a compromise as to her status and marriage with the late
Francisco de Borja. The point is without merit, for the
very opening paragraph of the agreement with Jose de
Borja (Annex "A") describes her as "the heir and
surviving spouse of Francisco de Borja by his second
marriage, Tasiana Ongsingco Vda. de de Borja", which is
in itself definite admission of her civil status. There is
nothing in the text of the agreement that would show that
this recognition of Ongsingco's status as the surviving
spouse of Francisco de Borja was only made in
consideration of the cession of her hereditary rights.
It is finally charged by appellant Ongsingco, as well as
by the Court of First Instance of Nueva Ecija in its order
of 21 September 1964, in Special Proceedings No. 832
(Amended Record on Appeal in L-28568, page 157), that
the compromise agreement of 13 October 1963 (Annex
"A") had been abandoned, as shown by the fact that,
after its execution, the Court of First Instance of Nueva
Ecija, in its order of 21 September 1964, had declared
that "no amicable settlement had been arrived at by the
parties", and that Jose de Borja himself, in a motion of
17 June 1964, had stated that the proposed amicable
settlement "had failed to materialize".
It is difficult to believe, however, that the amicable
settlement referred to in the order and motion abovementioned was the compromise agreement of 13
October 1963, which already had been formally signed
and executed by the parties and duly notarized. What
the record discloses is that some time after its
formalization, Ongsingco had unilaterally attempted to
back out from the compromise agreement, pleading
various reasons restated in the opposition to the Court's
approval of Annex "A" (Record on Appeal, L-20840,
page 23): that the same was invalid because of the
lapse of the allegedly intended resolutory period of 60
days and because the contract was not preceded by the
probate of Francisco de Borja's will, as required by this
Court's Guevarra vs. Guevara ruling; that Annex "A"
involved a compromise affecting Ongsingco's status as
wife and widow of Francisco de Borja, etc., all of which
objections have been already discussed. It was natural
that in view of the widow's attitude, Jose de Borja should
attempt to reach a new settlement or novatory
agreement before seeking judicial sanction and
enforcement of Annex "A", since the latter step might
ultimately entail a longer delay in attaining final remedy.

That the attempt to reach another settlement failed is

apparent from the letter of Ongsingco's counsel to Jose
de Borja quoted in pages 35-36 of the brief for appellant
Ongsingco in G.R. No. 28040; and it is more than
probable that the order of 21 September 1964 and the
motion of 17 June 1964 referred to the failure of the
parties' quest for a more satisfactory compromise. But
the inability to reach a novatory accord can not invalidate
the original compromise (Annex "A") and justifies the act
of Jose de Borja in finally seeking a court order for its
approval and enforcement from the Court of First
Instance of Rizal, which, as heretofore described,
decreed that the agreement be ultimately performed
within 120 days from the finality of the order, now under
appeal.
We conclude that in so doing, the Rizal court acted in
accordance with law, and, therefore, its order should be
upheld, while the contrary resolution of the Court of First
Instance of Nueva Ecija should be, and is, reversed.
In her brief, Tasiana Ongsingco also pleads that the time
elapsed in the appeal has affected her unfavorably, in
that while the purchasing power of the agreed price of
P800,000 has diminished, the value of the Jalajala
property has increased. But the fact is that her delay in
receiving the payment of the agreed price for her
hereditary interest was primarily due to her attempts to
nullify the agreement (Annex "A") she had formally
entered into with the advice of her counsel, Attorney
Panaguiton. And as to the devaluation de facto of our
currency, what We said in Dizon Rivera vs. Dizon, L24561, 30 June 1970, 33 SCRA 554, that "estates would
never be settled if there were to be a revaluation with
every subsequent fluctuation in the values of currency
and properties of the estate", is particularly opposite in
the present case.
Coming now to Case G.R. No. L-28611, the issue is
whether the Hacienda de Jalajala (Poblacion),
concededly acquired by Francisco de Borja during his
marriage to his first wife, Josefa Tangco, is the
husband's private property (as contended by his second
spouse, Tasiana Ongsingco), or whether it forms part of
the conjugal (ganancial) partnership with Josefa Tangco.
The Court of First Instance of Rizal (Judge Herminio
Mariano, presiding) declared that there was adequate
evidence to overcome the presumption in favor of its
conjugal character established by Article 160 of the Civil
Code.
We are of the opinion that this question as between
Tasiana Ongsingco and Jose de Borja has become moot
and academic, in view of the conclusion reached by this
Court in the two preceding cases (G.R. No. L-28568),
upholding as valid the cession of Tasiana Ongsingco's
eventual share in the estate of her late husband,
Francisco de Borja, for the sum of P800,000 with the
accompanying reciprocal quit-claims between the
parties. But as the question may affect the rights of
possible creditors and legatees, its resolution is still
imperative.
It is undisputed that the Hacienda Jalajala, of around
4,363 hectares, had been originally acquired jointly by
Francisco de Borja, Bernardo de Borja and Marcelo de
Borja and their title thereto was duly registered in their
names as co-owners in Land Registration Case No. 528
of the province of Rizal, G.L.R.O. Rec. No. 26403 (De
Barjo vs. Jugo, 54 Phil. 465). Subsequently, in 1931, the

Hacienda was partitioned among the co-owners: the

Punta section went to Marcelo de Borja; the Bagombong
section to Bernardo de Borja, and the part in Jalajala
proper (Poblacion) corresponded to Francisco de Borja
(V. De Borja vs. De Borja 101 Phil. 911, 932).

listed the Jalajala Hacienda under the heading "Conjugal

Property of the Deceased Spouses Francisco de Borja
and Josefa Tangco, which are in the possession of the
Administrator of the Testate Estate of the Deceased
Josefa Tangco in Special Proceedings No. 7866 of the
Court of First Instance of Rizal" (Exhibit "4").

The lot allotted to Francisco was described as

Una Parcela de terreno en Poblacion,
Jalajala: N. Puang River; E. Hermogena
Romero; S. Heirs of Marcelo de Borja O.
Laguna de Bay; containing an area of
13,488,870 sq. m. more or less,
assessed at P297,410. (Record on
Appeal, pages 7 and 105)
On 20 November 1962, Tasiana O. Vda. de Borja, as
Administratrix of the Testate Estate of Francisco de
Borja, instituted a complaint in the Court of First Instance
of Rizal (Civil Case No. 7452) against Jose de Borja, in
his capacity as Administrator of Josefa Tangco
(Francisco de Borja's first wife), seeking to have the
Hacienda above described declared exclusive private
property of Francisco, while in his answer defendant
(now appellant) Jose de Borja claimed that it was
conjugal property of his parents (Francisco de Borja and
Josefa Tangco), conformably to the presumption
established by Article 160 of the Philippine Civil Code
(reproducing Article 1407 of the Civil Code of 1889), to
the effect that:
Art. 160. All property of the marriage is
presumed to belong to the conjugal
partnership, unless it be proved that it
pertains exclusively to the husband or to
the wife.
Defendant Jose de Borja further counterclaimed for
damages, compensatory, moral and exemplary, as well
as for attorney's fees.
After trial, the Court of First Instance of Rizal, per Judge
Herminio Mariano, held that the plaintiff had adduced
sufficient evidence to rebut the presumption, and
declared the Hacienda de Jalajala (Poblacion) to be the
exclusive private property of the late Francisco de Borja,
and his Administratrix, Tasiana Ongsingco Vda. de Borja,
to be entitled to its possession. Defendant Jose de Borja
then appealed to this Court.
The evidence reveals, and the appealed order admits,
that the character of the Hacienda in question as owned
by the conjugal partnership De Borja-Tangco was
solemnly admitted by the late Francisco de Borja no less
than two times: first, in the Reamended Inventory that,
as executor of the estate of his deceased wife Josefa
Tangco, he filed in the Special Proceedings No. 7866 of
the Court of First Instance of Rizal on 23 July 1953
(Exhibit "2"); and again, in the Reamended Accounting of
the same date, also filed in the proceedings aforesaid
(Exhibit "7"). Similarly, the plaintiff Tasiana O. Vda. de
Borja, herself, as oppositor in the Estate of Josefa
Tangco, submitted therein an inventory dated 7
September 1954 (Exhibit "3") listing the Jalajala property
among the "Conjugal Properties of the Spouses
Francisco de Borja and Josefa Tangco". And once more,
Tasiana Ongsingco, as administratrix of the Estate of
Francisco de Borja, in Special Proceedings No. 832 of
the Court of First Instance of Nueva Ecija, submitted
therein in December, 1955, an inventory wherein she

Notwithstanding the four statements aforesaid, and the

fact that they are plain admissions against interest made
by both Francisco de Borja and the Administratrix of his
estate, in the course of judicial proceedings in the Rizal
and Nueva Ecija Courts, supporting the legal
presumption in favor of the conjugal community, the
Court below declared that the Hacienda de Jalajala
(Poblacion) was not conjugal property, but the private
exclusive property of the late Francisco de Borja. It did
so on the strength of the following evidences: (a) the
sworn statement by Francis de Borja on 6 August 1951
(Exhibit "F") that
He tomado possession del pedazo de
terreno ya delimitado (equivalente a 1/4
parte, 337 hectareas) adjunto a mi
terreno personal y exclusivo (Poblacion
de Jalajala, Rizal).
and (b) the testimony of Gregorio de Borja, son of
Bernardo de Borja, that the entire Hacienda had been
bought at a foreclosure sale for P40,100.00, of which
amount P25,100 was contributed by Bernardo de Borja
and P15,000. by Marcelo de Borja; that upon receipt of a
subsequent demand from the provincial treasurer for
realty taxes the sum of P17,000, Marcelo told his brother
Bernardo that Francisco (son of Marcelo) wanted also to
be a co-owner, and upon Bernardo's assent to the
proposal, Marcelo issue a check for P17,000.00 to pay
the back taxes and said that the amount would represent
Francisco's contribution in the purchase of the Hacienda.
The witness further testified that
Marcelo de Borja said that that money
was entrusted to him by Francisco de
Borja when he was still a bachelor and
which he derived from his business
transactions. (Hearing, 2 February 1965,
t.s.n., pages 13-15) (Emphasis supplied)
The Court below, reasoning that not only Francisco's
sworn statement overweighed the admissions in the
inventories relied upon by defendant-appellant Jose de
Borja since probate courts can not finally determine
questions of ownership of inventoried property, but that
the testimony of Gregorio de Borja showed that
Francisco de Borja acquired his share of the original
Hacienda with his private funds, for which reason that
share can not be regarded as conjugal partnership
property, but as exclusive property of the buyer, pursuant
to Article 1396(4) of Civil Code of 1889 and Article
148(4) of the Civil Code of the Philippines.
The following shall be the exclusive property of each
spouse:
xxx xxx xxx
(4) That which is purchased with
exclusive money of the wife or of the
husband.

We find the conclusions of the lower court to be

untenable. In the first place, witness Gregorio de Borja's
testimony as to the source of the money paid by
Francisco for his share was plain hearsay, hence
inadmissible and of no probative value, since he was
merely repeating what Marcelo de Borja had told him
(Gregorio). There is no way of ascertaining the truth of
the statement, since both Marcelo and Francisco de
Borja were already dead when Gregorio testified. In
addition, the statement itself is improbable, since there
was no need or occasion for Marcelo de Borja to explain
to Gregorio how and when Francisco de Borja had
earned the P17,000.00 entrusted to Marcelo. A ring of
artificiality is clearly discernible in this portion of
Gregorio's testimony.
As to Francisco de Borja's affidavit, Exhibit "F", the
quoted portion thereof (ante, page 14) does not clearly
demonstrate that the "mi terreno personal y exclusivo
(Poblacion de Jalajala, Rizal) " refers precisely to the
Hacienda in question. The inventories (Exhibits 3 and 4)
disclose that there were two real properties in Jalajala
owned by Francisco de Borja, one of 72.038 sq. m.,
assessed at P44,600, and a much bigger one of
1,357.260.70 sq. m., which is evidently the Hacienda de
Jalajala (Poblacion). To which of these lands did the
affidavit of Francisco de Borja (Exhibit "F") refer to? In
addition, Francisco's characterization of the land as "mi
terreno personal y exclusivo" is plainly self-serving, and
not admissible in the absence of cross examination.
It may be true that the inventories relied upon by
defendant-appellant (Exhibits "2", "3", "4" and "7") are
not conclusive on the conjugal character of the property
in question; but as already noted, they are clear
admissions against the pecuniary interest of the
declarants, Francisco de Borja and his executor-widow,
Tasiana Ongsingco, and as such of much greater
probative weight than the self-serving statement of
Francisco (Exhibit "F"). Plainly, the legal presumption in
favor of the conjugal character of the Hacienda de
Jalajala (Poblacion) now in dispute has not been
rebutted but actually confirmed by proof. Hence, the
appealed order should be reversed and the Hacienda de
Jalajala (Poblacion) declared property of the conjugal
partnership of Francisco de Borja and Josefa Tangco.
No error having been assigned against the ruling of the
lower court that claims for damages should be ventilated
in the corresponding special proceedings for the
settlement of the estates of the deceased, the same
requires no pro announcement from this Court.
IN VIEW OF THE FOREGOING, the appealed order of
the Court of First Instance of Rizal in Case No. L-28040
is hereby affirmed; while those involved in Cases Nos. L28568 and L-28611 are reversed and set aside. Costs
against the appellant Tasiana Ongsingco Vda. de Borja
in all three (3) cases.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-41715 June 18, 1976
ROSALIO BONILLA (a minor) SALVACION BONILLA
(a minor) and PONCIANO BONILLA (their father) who
represents the minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA,
ESPERANZA BARCENA, MANUEL BARCENA,
AGUSTINA NERI, widow of JULIAN TAMAYO and
HON. LEOPOLDO GIRONELLA of the Court of First
Instance of Abra, respondents.
Federico Paredes for petitioners.
Demetrio V. Pre for private respondents.

MARTIN, J:
This is a petition for review 1 of the Order of the Court of
First Instance of Abra in Civil Case No. 856, entitled
Fortunata Barcena vs. Leon Barcena, et al., denying the
motions for reconsideration of its order dismissing the
complaint in the aforementioned case.
On March 31, 1975 Fortunata Barcena, mother of minors
Rosalio Bonilla and Salvacion Bonilla and wife of
Ponciano Bonilla, instituted a civil action in the Court of
First Instance of Abra, to quiet title over certain parcels
of land located in Abra.
On May 9, 1975, defendants filed a written motion to
dismiss the complaint, but before the hearing of the
motion to dismiss, the counsel for the plaintiff moved to
amend the complaint in order to include certain
allegations therein. The motion to amend the complaint
was granted and on July 17, 1975, plaintiffs filed their
amended complaint.
On August 4, 1975, the defendants filed another motion
to dismiss the complaint on the ground that Fortunata
Barcena is dead and, therefore, has no legal capacity to
sue. Said motion to dismiss was heard on August 14,
1975. In said hearing, counsel for the plaintiff confirmed
the death of Fortunata Barcena, and asked for
substitution by her minor children and her husband, the
petitioners herein; but the court after the hearing
immediately dismissed the case on the ground that a
dead person cannot be a real party in interest and has
no legal personality to sue.
On August 19, 1975, counsel for the plaintiff received a
copy of the order dismissing the complaint and on
August 23, 1975, he moved to set aside the order of the
dismissal pursuant to Sections 16 and 17 of Rule 3 of
the Rules of Court. 2
On August 28, 1975, the court denied the motion for
reconsideration filed by counsel for the plaintiff for lack of
merit. On September 1, 1975, counsel for deceased
plaintiff filed a written manifestation praying that the
minors Rosalio Bonilla and Salvacion Bonilla be allowed
to substitute their deceased mother, but the court denied
the counsel's prayer for lack of merit. From the order,
counsel for the deceased plaintiff filed a second motion
for reconsideration of the order dismissing the complaint
claiming that the same is in violation of Sections 16 and
17 of Rule 3 of the Rules of Court but the same was
denied.
Hence, this petition for review.
The Court reverses the respondent Court and sets aside
its order dismissing the complaint in Civil Case No. 856
and its orders denying the motion for reconsideration of
said order of dismissal. While it is true that a person who
is dead cannot sue in court, yet he can be substituted by
his heirs in pursuing the case up to its completion. The
records of this case show that the death of Fortunata
Barcena took place on July 9, 1975 while the complaint
was filed on March 31, 1975. This means that when the
complaint was filed on March 31, 1975, Fortunata
Barcena was still alive, and therefore, the court had
acquired jurisdiction over her person. If thereafter she
died, the Rules of Court prescribes the procedure

whereby a party who died during the pendency of the

proceeding can be substituted. Under Section 16, Rule 3
of the Rules of Court "whenever a party to a pending
case dies ... it shall be the duty of his attorney to inform
the court promptly of such death ... and to give the name
and residence of his executor, administrator, guardian or
other legal representatives." This duty was complied with
by the counsel for the deceased plaintiff when he
manifested before the respondent Court that Fortunata
Barcena died on July 9, 1975 and asked for the proper
substitution of parties in the case. The respondent Court,
however, instead of allowing the substitution, dismissed
the complaint on the ground that a dead person has no
legal personality to sue. This is a grave error. Article 777
of the Civil Code provides "that the rights to the
succession are transmitted from the moment of the
death of the decedent." From the moment of the death of
the decedent, the heirs become the absolute owners of
his property, subject to the rights and obligations of the
decedent, and they cannot be deprived of their rights
thereto except by the methods provided for by law. 3 The
moment of death is the determining factor when the
heirs acquire a definite right to the inheritance whether
such right be pure or contingent. 4 The right of the heirs
to the property of the deceased vests in them even
before judicial declaration of their being heirs in the
testate or intestate proceedings. 5 When Fortunata
Barcena, therefore, died her claim or right to the parcels
of land in litigation in Civil Case No. 856, was not
extinguished by her death but was transmitted to her
heirs upon her death. Her heirs have thus acquired
interest in the properties in litigation and became parties
in interest in the case. There is, therefore, no reason for
the respondent Court not to allow their substitution as
parties in interest for the deceased plaintiff.
Under Section 17, Rule 3 of the Rules of Court "after a
party dies and the claim is not thereby extinguished, the
court shall order, upon proper notice, the legal
representative of the deceased to appear and be
substituted for the deceased, within such time as may be
granted ... ." The question as to whether an action
survives or not depends on the nature of the action and
the damage sued for. 6 In the causes of action which
survive the wrong complained affects primarily and
principally property and property rights, the injuries to the
person being merely incidental, while in the causes of
action which do not survive the injury complained of is to
the person, the property and rights of property affected
being incidental. 7 Following the foregoing criterion the
claim of the deceased plaintiff which is an action to quiet
title over the parcels of land in litigation affects primarily
and principally property and property rights and therefore
is one that survives even after her death. It is, therefore,
the duty of the respondent Court to order the legal
representative of the deceased plaintiff to appear and to
be substituted for her. But what the respondent Court
did, upon being informed by the counsel for the
deceased plaintiff that the latter was dead, was to
dismiss the complaint. This should not have been done
for under the same Section 17, Rule 3 of the Rules of
Court, it is even the duty of the court, if the legal
representative fails to appear, to order the opposing
party to procure the appointment of a legal
representative of the deceased. In the instant case the
respondent Court did not have to bother ordering the
opposing party to procure the appointment of a legal
representative of the deceased because her counsel has
not only asked that the minor children be substituted for
her but also suggested that their uncle be appointed as

guardian ad litem for them because their father is busy in

Manila earning a living for the family. But the respondent
Court refused the request for substitution on the ground
that the children were still minors and cannot sue in
court. This is another grave error because the
respondent Court ought to have known that under the
same Section 17, Rule 3 of the Rules of Court, the court
is directed to appoint a guardian ad litem for the minor
heirs. Precisely in the instant case, the counsel for the
deceased plaintiff has suggested to the respondent
Court that the uncle of the minors be appointed to act as
guardian ad litem for them. Unquestionably, the
respondent Court has gravely abused its discretion in
not complying with the clear provision of the Rules of
Court in dismissing the complaint of the plaintiff in Civil
Case No. 856 and refusing the substitution of parties in
the case.
IN VIEW OF THE FOREGOING, the order of the
respondent Court dismissing the complaint in Civil Case
No. 856 of the Court of First Instance of Abra and the
motions for reconsideration of the order of dismissal of
said complaint are set aside and the respondent Court is
hereby directed to allow the substitution of the minor
children, who are the petitioners therein for the
deceased plaintiff and to appoint a qualified person as
guardian ad litem for them. Without pronouncement as
to costs.
SO ORDERED.

vs.
HONORABLE INTERMEDIATE APPELLATE COURT,
JOSE CUENCO BORROMEO, and PETRA O.
BORROMEO, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-65995

PETRA BORROMEO, VITALIANA BORROMEO,

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

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-41171

GUTIERREZ, JR., J.:

July 23, 1987

INTESTATE ESTATE OF THE LATE VITO

BORROMEO, PATROCINIO BORROMEOHERRERA, petitioner,
vs.
FORTUNATO BORROMEO and HON. FRANCISCO P.
BURGOS, Judge of the Court of First Instance of
Cebu, Branch II, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-55000

July 23, 1987

IN THE MATTER OF THE ESTATE OF VITO

BORROMEO, DECEASED, PILAR N. BORROMEO,
MARIA B. PUTONG, FEDERICO V. BORROMEO,
JOSE BORROMEO, CONSUELO B. MORALES, AND
CANUTO V. BORROMEO, JR., heirs-appellants,
vs.
FORTUNATO BORROMEO, claimant-appellee.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-62895

July 23, 1987

JOSE CUENCO BORROMEO, petitioner,

vs.
HONORABLE COURT OF APPEALS, HON.
FRANCISCO P. BURGOS, As presiding Judge of the
(now) Regional Trial Court, Branch XV, Region VII,
RICARDO V. REYES, as Administrator of the Estate
of Vito Borromeo in Sp. Proc. No. 916-R,
NUMERIANO G. ESTENZO and DOMINGO L.
ANTIGUA, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-63818

July 23, 1987

July 23, 1987

DOMINGO ANTIGUA AND RICARDO V. REYES, as

Administrator of the Intestate Estate of VITO
BORROMEO, Sp. Proceedings No. 916-R, Regional
Trial Court of Cebu, joined by HON. JUDGE
FRANCISCO P. BURGOS, as Presiding Judge of
Branch XV of the Regional Trial Court of Cebu, as a
formal party, and ATTYS. FRANCIS M. ZOSA,
GAUDIOSO RUIZ and NUMERIANO
ESTENZO, petitioners,

These cases before us all stem from SP. PROC. NO.

916-R of the then Court of First Instance of Cebu.
G.R. No. 41171
Vito Borromeo, a widower and permanent resident of
Cebu City, died on March 13, 1952, in Paranaque, Rizal
at the age of 88 years, without forced heirs but leaving
extensive properties in the province of Cebu.
On April 19, 1952, Jose Junquera filed with the Court of
First Instance of Cebu a petition for the probate of a one
page document as the last will and testament left by the
said deceased, devising all his properties to Tomas,
Fortunato and Amelia, all surnamed Borromeo, in equal
and undivided shares, and designating Junquera as
executor thereof. The case was docketed as Special
Proceedings No. 916-R. The document, drafted in
Spanish, was allegedly signed and thumbmarked by the
deceased in the presence of Cornelio Gandionco,
Eusebio Cabiluna, and Felixberto Leonardo who acted
as witnesses.
Oppositions to the probate of the will were filed. On May
28, 1960, after due trial, the probate court held that the
document presented as the will of the deceased was a
forgery.
On appeal to this Court, the decision of the probate court
disallowing the probate of the will was affirmed
in Testate Estate of Vito Borromeo, Jose H. Junquera et
al. v. Crispin Borromeo et al. (19 SCRA 656).
The testate proceedings was converted into an intestate
proceedings. Several parties came before the court filing
claims or petitions alleging themselves as heirs of the
intestate estate of Vito Borromeo.
The following petitions or claims were filed:
1. On August 29, 1967, the heirs of Jose Ma.
Borromeo and Cosme Borromeo filed a petition
for declaration of heirs and determination of
heirship. There was no opposition filed against
said petition.

2. On November 26, 1967, Vitaliana Borromeo

also filed a petition for declaration as heir. The
heirs of Jose Ma. Borromeo and Cosme
Borromeo filed an opposition to this petition.

a. Anecita Ocampo Castro

b. Ramon Ocampo
c. Lourdes Ocampo

3. On December 13, 1967, Jose Barcenilla, Jr.,

Anecita Ocampo de Castro, Ramon Ocampo,
Lourdes Ocampo, Elena Ocampo, Isagani
Morre, Rosario Morre, Aurora Morre, Lila Morre,
Lamberto Morre, and Patricia Morre, filed a
petition
for
declaration
of
heirs
and
determination of shares. The petition was
opposed by the heirs of Jose and Cosme
Borromeo.
4. On December 2, 1968, Maria Borromeo
Atega, Luz Borromeo, Hermenegilda Borromeo
Nonnenkamp, Rosario Borromeo, and Fe
Borromeo Queroz filed a claim. Jose Cuenco
Borromeo,
Crispin
Borromeo,
Vitaliana
Borromeo and the heirs of Carlos Borromeo
represented by Jose Talam filed oppositions to
this claim.
When the aforementioned petitions and claims were
heard jointly, the following facts were established:
1. Maximo Borromeo and Hermenegilda Galan, husband
and wife (the latter having predeceased the former),
were survived by their eight (8) children, namely,
Jose Ma. Borromeo
Cosme Borromeo
Pantaleon Borromeo
Vito Borromeo
Paulo Borromeo

d. Elena Ocampo, all living, and

e. Antonieta Ocampo Barcenilla (deceased),
survived by claimant Jose Barcenilla, Jr.
5. Cosme Borromeo, another brother of Vito Borromeo,
died before the war and left the following children:
a. Marcial Borromeo
b. Carlos Borromeo,who died on Jan. 18,
1965,survived by his wife, Remedios Alfonso,
and his only daughter, Amelinda Borromeo
Talam
c. Asuncion Borromeo
d. Florentina Borromeo, who died in 1948.
e. Amilio Borromeo, who died in 1944.
f. Carmen Borromeo, who died in 1925.
The last three died leaving no issue.
6. Jose Ma. Borromeo, another brother of Vito
Borromeo, died before the war and left the following
children:
a. Exequiel Borromeo,who died on December
29, 1949
b. Canuto Borromeo, who died on Dec. 31,
1959, leaving the following children:

Anecita Borromeo

aa. Federico Borromeo

Quirino Borromeo and

bb. Marisol Borromeo (Maria B. Putong,

Rec. p. 85)

Julian Borromeo
2. Vito Borromeo died a widower on March 13, 1952,
without any issue, and all his brothers and sisters
predeceased him.
3. Vito's brother Pantaleon Borromeo died leaving the
following children:
a. Ismaela Borromeo,who died on Oct. 16, 1939

cc. Canuto Borromeo, Jr.

dd. Jose Borromeo
ee. Consuelo Borromeo
ff. Pilar Borromeo
gg. Salud Borromeo

b. Teofilo Borromeo, who died on Aug. 1, 1955,

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

c. Maximo Borromeo, who died in July, 1948

c. Crispin Borromeo, who is still alive.

e. Andres Borromeo, who died on Jan. 3, 1923,

but survived by his children:

4. Anecita Borromeo, sister of Vito Borromeo, died

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

hh. Patrocinio Borromeo Herrera

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

aa. Maria Borromeo Atega

bb. Luz Borromeo

cc.
Hermenegilda
Nonnenkamp

Borromeo

dd. Rosario Borromeo

ee. Fe Borromeo Queroz
On April 10, 1969, the trial court, invoking Art. 972 of the
Civil Code, issued an order declaring the following, to
the exclusion of all others, as the intestate heirs of the
deceased Vito Borromeo:
1. Jose Cuenco Borromeo
2. Judge Crispin Borromeo
3. Vitaliana Borromeo
4. Patrocinio Borromeo Herrera
5. Salud Borromeo
6. Asuncion Borromeo
7. Marcial Borromeo
8. Amelinda Borromeo de Talam, and
9. The heirs of Canuto Borromeo
The court also ordered that the assets of the intestate
estate of Vito Borromeo shall be divided into 4/9 and 5/9
groups and distributed in equal and equitable shares
among the 9 abovenamed declared intestate heirs.
On April 21 and 30, 1969, the declared heirs, with the
exception of Patrocinio B. Herrera, signed an agreement
of partition of the properties of the deceased Vito
Borromeo which was approved by the trial court, in its
order of August 15, 1969. In this same order, the trial
court ordered the administrator, Atty Jesus Gaboya, Jr.,
to partition the properties of the deceased in the way and
manner they are divided and partitioned in the said
Agreement of Partition and further ordered that 40% of
the market value of the 4/9 and 5/9 of the estate shall be
segregated. All attorney's fees shall be taken and paid
from this segregated portion.
On August 25, 1972, respondent Fortunato Borromeo,
who had earlier claimed as heir under the forged will,
filed a motion before the trial court praying that he be
declared as one of the heirs of the deceased Vito
Borromeo, alleging that he is an illegitimate son of the
deceased and that in the declaration of heirs made by
the trial court, he was omitted, in disregard of the law
making him a forced heir entitled to receive a legitime
like all other forced heirs. As an acknowledged
illegitimate child, he stated that he was entitled to a
legitime equal in every case to four-fifths of the legitime
of an acknowledged natural child.
Finding that the motion of Fortunato Borromeo was
already barred by the order of the court dated April 12,
1969 declaring the persons named therein as the legal
heirs of the deceased Vito Borromeo, the court
dismissed the motion on June 25, 1973.
Fortunato Borromeo filed a motion for reconsideration. In
the memorandum he submitted to support his motion for
reconsideration, Fortunato changed the basis for his

claim to a portion of the estate. He asserted and

incorporated a Waiver of Hereditary Rights dated July
31, 1967, supposedly signed by Pilar N. Borromeo,
Maria B. Putong, Jose Borromeo, Canuto V. Borromeo,
Jr., Salud Borromeo, Patrocinio Borromeo-Herrera,
Marcial Borromeo, Asuncion Borromeo, Federico V.
Borromeo, Consuelo B. Morales, Remedios Alfonso and
Amelinda B. Talam In the waiver, five of the nine heirs
relinquished to Fortunato their shares in the disputed
estate. The motion was opposed on the ground that the
trial court, acting as a probate court, had no jurisdiction
to take cognizance of the claim; that respondent
Fortunato Borromeo is estopped from asserting the
waiver agreement; that the waiver agreement is void as
it was executed before the declaration of heirs; that the
same is void having been executed before the
distribution of the estate and before the acceptance of
the inheritance; and that it is void ab initio and inexistent
for lack of subject matter.
On December 24, 1974, after due hearing, the trial court
concluding that the five declared heirs who signed the
waiver agreement assigning their hereditary rights to
Fortunato Borromeo had lost the same rights, declared
the latter as entitled to 5/9 of the estate of Vito
Borromeo.
A motion for reconsideration of this order was denied on
July 7, 1975.
In the present petition, the petitioner seeks to annul and
set aside the trial court's order dated December 24,
1974, declaring respondent Fortunato Borromeo entitled
to 5/9 of the estate of Vito Borromeo and the July 7,
1975 order, denying the motion for reconsideration.
The petitioner argues that the trial court had no
jurisdiction to take cognizance of the claim of respondent
Fortunato Borromeo because it is not a money claim
against the decedent but a claim for properties, real and
personal, which constitute all of the shares of the heirs in
the decedent's estate, heirs who allegedly waived their
rights in his favor. The claim of the private respondent
under the waiver agreement, according to the petitioner,
may be likened to that of a creditor of the heirs which is
improper. He alleges that the claim of the private
respondent under the waiver agreement was filed
beyond the time allowed for filing of claims as it was filed
only sometime in 1973, after there had been a
declaration of heirs (April 10, 1969), an agreement of
partition (April 30, 1969), the approval of the agreement
of partition and an order directing the administrator to
partition the estate (August 15, 1969), when in a mere
memorandum, the existence of the waiver agreement
was brought out.
It is further argued by the petitioner that the document
entitled " waiver of Hereditary Rights" executed on July
31, 1967, aside from having been cancelled and revoked
on June 29, 1968, by Tomas L. Borromeo, Fortunato
Borromeo and Amelia Borromeo, is without force and
effect because there can be no effective waiver of
hereditary rights before there has been a valid
acceptance of the inheritance the heirs intend to transfer.
Pursuant to Article 1043 of the Civil Code, to make
acceptance or repudiation of inheritance valid, the
person must be certain of the death of the one from
whom he is to inherit and of his right to the inheritance.
Since the petitioner and her co-heirs were not certain of
their right to the inheritance until they were declared

heirs, their rights were, therefore, uncertain. This view,

according to the petitioner, is also supported by Article
1057 of the same Code which directs heirs, devicees,
and legatees to signify their acceptance or repudiation
within thirty days after the court has issued an order for
the distribution of the estate.
Respondent Fortunato Borromeo on the other hand,
contends that under Article 1043 of the Civil Code there
is no need for a person to be first declared as heir before
he can accept or repudiate an inheritance. What is
required is that he must first be certain of the death of
the person from whom he is to inherit and that he must
be certain of his right to the inheritance. He points out
that at the time of the signing of the waiver document on
July 31, 1967, the signatories to the waiver document
were certain that Vito Borromeo was already dead as
well as of their rights to the inheritance as shown in the
waiver document itself.
With respect to the issue of jurisdiction of the trial court
to pass upon the validity of the waiver of hereditary
rights, respondent Borromeo asserts that since the
waiver or renunciation of hereditary rights took place
after the court assumed jurisdiction over the properties
of the estate it partakes of the nature of a partition of the
properties of the estate needing approval of the court
because it was executed in the course of the
proceedings. lie further maintains that the probate court
loses jurisdiction of the estate only after the payment of
all the debts of the estate and the remaining estate is
distributed to those entitled to the same.
The prevailing jurisprudence on waiver of hereditary
rights is that "the properties included in an existing
inheritance cannot be considered as belonging to third
persons with respect to the heirs, who by fiction of law
continue the personality of the former. Nor do such
properties have the character of future property, because
the heirs acquire a right to succession from the moment
of the death of the deceased, by principle established in
article 657 and applied by article 661 of the Civil Code,
according to which the heirs succeed the deceased by
the mere fact of death. More or less, time may elapse
from the moment of the death of the deceased until the
heirs enter into possession of the hereditary property,
but the acceptance in any event retroacts to the moment
of the death, in accordance with article 989 of the Civil
Code. The right is vested, although conditioned upon the
adjudication of the corresponding hereditary portion."
(Osorio v. Osorio and Ynchausti Steamship Co., 41 Phil.,
531). The heirs, therefore, could waive their hereditary
rights in 1967 even if the order to partition the estate was
issued only in 1969.
In this case, however, the purported "Waiver of
Hereditary Rights" cannot be considered to be effective.
For a waiver to exist, three elements are essential: (1)
the existence of a right; (2) the knowledge of the
existence thereof; and (3) an intention to relinquish such
right. (People v. Salvador, (CA) 53 O.G. No. 22, p. 8116,
8120). The intention to waive a right or advantage must
be shown clearly and convincingly, and when the only
proof of intention rests in what a party does, his act
should be so manifestly consistent with, and indicative of
an intent to, voluntarily relinquish the particular right or
advantage that no other reasonable explanation of his
conduct is possible (67 C.J., 311). (Fernandez v. Sebido,
et al., 70 Phil., 151, 159).

The circumstances of this case show that the signatories

to the waiver document did not have the clear and
convincing intention to relinquish their rights, Thus: (1)
On October 27, 1967. Fortunato, Tomas, and Amelia
Borromeo filed a pleading entitled "Compliance" wherein
they submitted a proposal for the amicable settlement of
the case. In that Compliance, they proposed to concede
to all the eight (8) intestate heirs of Vito Borromeo all
properties, personal and real, including all cash and
sums of money in the hands of the Special Administrator,
as of October 31, 1967, not contested or claimed by
them in any action then pending in the Court of First
Instance of Cebu. In turn, the heirs would waive and
concede to them all the 14 contested lots. In this
document, the respondent recognizes and concedes that
the petitioner, like the other signatories to the waiver
document, is an heir of the deceased Vito Borromeo,
entitled to share in the estate. This shows that the
"Waiver of Hereditary Rights" was never meant to be
what the respondent now purports it to be. Had the intent
been otherwise, there would not be any reason for
Fortunato, Tomas, and Amelia Borromeo to mention the
heirs in the offer to settle the case amicably, and offer to
concede to them parts of the estate of the deceased; (2)
On April 21 and 30, 1969, the majority of the declared
heirs executed an Agreement on how the estate they
inherited shall be distributed. This Agreement of Partition
was approved by the trial court on August 15, 1969; (3)
On June 29, 1968, the petitioner, among others, signed
a document entitled Deed of Assignment" purporting to
transfer and assign in favor of the respondent and
Tomas and Amelia Borromeo all her (Patrocinio B.
Herrera's) rights, interests, and participation as an
intestate heir in the estate of the deceased Vito
Borromeo. The stated consideration for said assignment
was P100,000.00; (4) On the same date, June 29, 1968,
the respondent Tomas, and Amelia Borromeo (assignees
in the aforementioned deed of assignment) in turn
executed a "Deed of Reconveyance" in favor of the
heirs-assignors named in the same deed of assignment.
The stated consideration was P50,000.00; (5) A
Cancellation of Deed of Assignment and Deed of
Reconveyance was signed by Tomas Borromeo and
Amelia Borromeo on October 15, 1968, while Fortunato
Borromeo signed this document on March 24, 1969.
With respect to the issue of jurisdiction, we hold that the
trial court had jurisdiction to pass upon the validity of the
waiver agreement. It must be noted that in Special
Proceedings No. 916-R the lower court disallowed the
probate of the will and declared it as fake. Upon appeal,
this Court affirmed the decision of the lower court on
March 30, 1967, in G.R. No. L-18498. Subsequently,
several parties came before the lower court filing claims
or petitions alleging themselves as heirs of the intestate
estate of Vito Borromeo. We see no impediment to the
trial court in exercising jurisdiction and trying the said
claims or petitions. Moreover, the jurisdiction of the trial
court extends to matters incidental and collateral to the
exercise of its recognized powers in handling the
settlement of the estate.
In view of the foregoing, the questioned order of the trial
court dated December 24, 1974, is hereby SET ASIDE.
G.R. No. 55000
This case was originally an appeal to the Court of
Appeals from an order of the Court of First Instance of
Cebu, Branch 11, dated December 24, 1974, declaring

the waiver document earlier discussed in G.R. No.

41171 valid. The appellate court certified this case to this
Court as the questions raised are all of law.
The appellants not only assail the validity of the waiver
agreement but they also question the jurisdiction of the
lower court to hear and decide the action filed by
claimant Fortunato Borromeo.
The appellants argue that when the waiver of hereditary
right was executed on July 31, 1967, Pilar Borromeo and
her children did not yet possess or own any hereditary
right in the intestate estate of the deceased Vito
Borromeo because said hereditary right was only
acquired and owned by them on April 10, 1969, when
the estate was ordered distributed.
They further argue that in contemplation of law, there is
no such contract of waiver of hereditary right in the
present case because there was no object, which is
hereditary right, that could be the subject matter of said
waiver, and, therefore, said waiver of hereditary right
was not only null and void ab initio but was inexistent.
With respect to the issue of jurisdiction, the appellants
contend that without any formal pleading filed by the
lawyers of Fortunato Borromeo for the approval of the
waiver agreement and without notice to the parties
concerned, two things which are necessary so that the
lower court would be vested with authority and
jurisdiction to hear and decide the validity of said waiver
agreement, nevertheless, the lower court set the hearing
on September 25, 1973 and without asking for the
requisite pleading. This resulted in the issuance of the
appealed order of December 24, 1974, which approved
the validity of the waiver agreement. The appellants
contend that this constitutes an error in the exercise of
jurisdiction.

The issues in this case are similar to the issues raised in

G.R. No. 41171. The appellants in this case, who are all
declared heirs of the late Vito Borromeo are contesting
the validity of the trial court's order dated December 24,
1974, declaring Fortunato Borromeo entitled to 5/9 of the
estate of Vito Borromeo under the waiver agreement.
As stated in G.R. No. 41171, the supposed waiver of
hereditary rights can not be validated. The essential
elements of a waiver, especially the clear and convincing
intention to relinquish hereditary rights, are not found in
this case.
The October 27, 1967 proposal for an amicable
settlement conceding to all the eight (8) intestate heirs
various properties in consideration for the heirs giving to
the respondent and to Tomas, and Amelia Borromeo the
fourteen (14) contested lots was filed inspite of the fact
that on July 31, 1967, some of the heirs had allegedly
already waived or sold their hereditary rights to the
respondent.
The agreement on how the estate is to be distributed,
the June 29, 1968 deed of assignment, the deed of
reconveyance, and the subsequent cancellation of the
deed of assignment and deed of reconveyance all argue
against the purported waiver of hereditary rights.
Concerning the issue of jurisdiction, we have already
stated in G.R. No. 41171 that the trial court acquired
jurisdiction to pass upon the validity of the waiver
agreement because the trial court's jurisdiction extends
to matters incidental and collateral to the exercise of its
recognized powers in handling the settlement of the
estate.
The questioned order is, therefore, SET ASIDE.
G.R. No. 62895

The appellee on the other hand, maintains that by

waiving their hereditary rights in favor of Fortunato
Borromeo, the signatories to the waiver document tacitly
and irrevocably accepted the inheritance and by virtue of
the same act, they lost their rights because the rights
from that moment on became vested in Fortunato
Borromeo.
It is also argued by the appellee that under Article 1043
of the Civil Code there is no need for a person to be
declared as heir first before he can accept or repudiate
an inheritance. What is required is that he is certain of
the death of the person from whom he is to inherit, and
of his right to the inheritance. At the time of the signing of
the waiver document on July 31, 1967, the signatories to
the waiver document were certain that Vito Borromeo
was already dead and they were also certain of their
right to the inheritance as shown by the waiver
document itself.
On the allegation of the appellants that the lower court
did not acquire jurisdiction over the claim because of the
alleged lack of a pleading invoking its jurisdiction to
decide the claim, the appellee asserts that on August 23,
1973, the lower court issued an order specifically calling
on all oppositors to the waiver document to submit their
comments within ten days from notice and setting the
same for hearing on September 25, 1973. The appellee
also avers that the claim as to a 5/9 share in the
inheritance involves no question of title to property and,
therefore, the probate court can decide the question.

A motion dated April 28, 1972, was filed by Atty. Raul M.

Sesbreno, representative of some of the heirsdistributees, praying for the immediate closure of Special
Proceeding No. 916-R. A similar motion dated May 29,
1979 was filed by Atty. Jose Amadora. Both motions
were grounded on the fact that there was nothing more
to be done after the payment of all the obligations of the
estate since the order of partition and distribution had
long become final.
Alleging that respondent Judge Francisco P. Burgos
failed or refused to resolve the aforesaid motions,
petitioner Jose Cuenco Borromeo-filed a petition for
mandamus before the Court of Appeals to compel the
respondent judge to terminate and close Special
Proceedings No. 916-R.
Finding that the inaction of the respondent judge was
due to pending motions to compel the petitioner, as coadministrator, to submit an inventory of the real
properties of the estate and an accounting of the cash in
his hands, pending claims for attorney's fees, and that
mandamus will not lie to compel the performance of a
discretionary function, the appellate court denied the
petition on May 14, 1982. The petitioner's motion for
reconsideration was likewise denied for lack of merit.
Hence, this petition.
The petitioner's stand is that the inaction of the
respondent judge on the motion filed on April 28, 1972

for the closure of the administration proceeding cannot

be justified by the filing of the motion for inventory and
accounting because the latter motion was filed only on
March 2, 1979. He claimed that under the then
Constitution, it is the duty of the respondent judge to
decide or resolve a case or matter within three months
from the date of its submission.
The respondents contend that the motion to close the
administration had already been resolved when the
respondent judge cancelled all settings of all incidents
previously set in his court in an order dated June 4,
1979, pursuant to the resolution and restraining order
issued by the Court of Appeals enjoining him to maintain
status quo on the case.
As stated in G.R. No. 41171, on April 21 and 30, 1969,
the declared heirs, with the exception of Patrocinio B.
Herrera, signed an agreement of partition of the
properties of the deceased Vito Borromeo which was
approved by the trial court, in its order dated August 15,
1969. In this same order, the trial court ordered the
administrator, Atty. Jesus Gaboya, Jr., to partition the
properties of the deceased in the way and manner they
are divided and partitioned in the said Agreement of
Partition and further ordered that 40% of the market
value of the 4/9 and 5/9 of the estate shall be
segregated and reserved for attorney's fees.
According to the manifestation of Judge Francisco
Burgos dated July 5, 1982, (p. 197, Rollo, G. R. No.
41171) his court has not finally distributed to the nine (9)
declared heirs the properties due to the following
circumstances:
1. The court's determination of the market value
of the estate in order to segregate the 40%
reserved for attorney's fees;

1. G.R. No. 41171 & G.R. No. 55000, setting

aside the Order of the trial court dated
December 24, 1974;
2. G.R. No. 63818, denying the petition for
review seeking to modify the decision of the
Intermediate Appellate Court insofar as it
disqualifies and inhibits Judge Francisco P.
Burgos from further hearing the Intestate Estate
of Vito Borromeo and ordering the remand of the
case to the Executive,Judge of the Regional trial
Court of Cebu for re-raffling; and
3. G.R. No. 65995, granting the petition to
restrain the respondents from further acting on
any and all incidents in Special proceedings No.
916-11 because of the affirmation of the decision
of the Intermediate Appellate Court in G.R. No.
63818.
the trial court may now terminate and close Special
Proceedings No. 916-R, subject to the submission of an
inventory of the real properties of the estate and an
accounting of the call and bank deposits of the petitioner,
as co-administrator of the estate, if he has not vet done
so, as required by this Court in its Resolution dated June
15, 1983. This must be effected with all deliberate
speed.
G.R. No. 63818
On June 9, 1979, respondents Jose Cuenco Borromeo
and Petra 0. Borromeo filed a motion for inhibition in the
Court of First Instance of Cebu, Branch 11, presided
over by Judge Francisco P. Burgos to inhibit the judge
from further acting in Special Proceedings No. 916-R.
'The movants alleged, among others, the following:
xxx

2. The order of December 24, 1974, declaring

Fortunato Borromeo as beneficiary of the 5/9 of
the estate because of the waiver agreement
signed by the heirs representing the 5/9 group
which is still pending resolution by this Court
(G.R. No. 4117 1);
3. The refusal of administrator Jose Cuenco
Borromeo to render his accounting; and
4. The claim of Marcela Villegas for 1/2 of the
estate causing annotations of notices of lis
pendens on the different titles of the properties
of the estate.
Since there are still real properties of the estate that
were not vet distributed to some of the declared heirs,
particularly the 5/9 group of heirs due to the pending
resolution of the waiver agreement, this Court in its
resolution of June 15, 1983, required the judge of the
Court of First Instance of Cebu, Branch 11, to expedite
the determination of Special Proceedings No. 916-R and
ordered the co-administrator Jose Cuenco Borromeo to
submit an inventory of real properties of the estate and
to render an accounting of cash and bank deposits
realized from rents of several properties.
The matter of attorney's fees shall be discussed in G.R.
No. 65995.
Considering the pronouncements stated in:

xxx

xxx

6. To keep the agitation to sell moving, Atty.

Antigua filed a motion for the production of the
certificates of title and to deposit the same with
the Branch Clerk of Court, presumably for the
ready inspection of interested buyers. Said
motion was granted by the Hon. Court in its
order of October 2, 1978 which, however,
became the subject of various motions for
reconsideration from heirs-distributees who
contended that as owners they cannot be
deprived of their titles for the flimsy reasons
advanced by Atty, Antigua. In view of the
motions for reconsideration, Atty Antigua
ultimately withdraw his motions for production of
titles.
7. The incident concerning the production of
titles triggered another incident involving Atty.
Raul H. Sesbreno who was then the counsel of
herein movants Petra O. Borromeo and
Amelinda B. Talam In connection with said
incident, Atty. Sesbreno filed a pleading which
the tion. presiding, Judge Considered direct
contempt because among others, Atty. Sesbreno
insinuated that the Hon. Presiding Judge stands
to receive "fat commission" from the sale of the
entire property. Indeed, Atty. Sesbreno was
seriously in danger of being declared in
contempt of court with the dim prospect of
suspension from the practice of his profession.

But obviously to extricate himself from the

prospect of contempt and suspension. Atty.
Sesbreno chose rapproachment and ultimately
joined forces with Atty. Antigua, et al., who,
together, continued to harass administrator
xxx

xxx

xxx

9. The herein movants are informed and so they

allege, that a brother of the Hon. Presiding
Judge is married to a sister of Atty. Domingo L.
Antigua.

Burgos urged the heirs-distributees to sell the

entire property based on the rationale that
proceeds thereof deposited in the bank will earn
interest more than the present income of the so
called estate. Most of the heirs-distributees,
however. have been petitioner timid to say their
piece. Only the 4/9 group of heirs led by Jose
Cuenco Borromeo have had the courage to
stand up and refuse the proposal to sell clearly
favored by respondent Hon. Francisco P.
Burgos.
xxx

10. There is now a clear tug of war bet ween

Atty. Antigua, et al. who are agitating for the sale
of the entire estate or to buy out the individual
heirs, on the one hand, and the herein movants,
on the other, who are not willing to sell their
distributive shares under the terms and
conditions presently proposed. In this tug of war,
a pattern of harassment has become apparent
against the herein movants, especially Jose
Cuenco Borromeo. Among the harassments
employed by Atty Antigua et al. are the pending
motions for the removal of administrator Jose
Cuenco
Borromeo,
the
subpoena duces
tecum issued to the bank which seeks to invade
into the privacy of the personal account of Jose
Cuenco Borromeo, and the other matters
mentioned in paragraph 8 hereof. More
harassment motions are expected until the
herein movants shall finally yield to the proposed
sale. In such a situation, the herein movants beg
for an entirely independent and impartial judge
to pass upon the merits of said incidents.
11. Should the Hon. Presiding Judge continue to
sit and take cognizance of this proceeding,
including the incidents above-mentioned, he is
liable to be misunderstood as being biased in
favor of Atty Antigua, et al. and prejudiced
against the herein movants. Incidents which may
create this impression need not be enumerated
herein. (pp. 39-41, Rollo)
The motion for inhibition was denied by Judge Francisco
P. Burgos. Their motion for reconsideration having been
denied, the private respondents filed a petition for
certiorari and/or prohibition with preliminary injunction
before the Intermediate Appellate Court.
In the appellate court, the private respondents alleged,
among others, the following:
xxx

xxx

xxx

16. With all due respect, petitioners regret the

necessity of having to state herein that
respondent Hon. Francisco P. Burgos has shown
undue interest in pursing the sale initiated by
Atty. Domingo L. Antigua, et al. Significantly, a
brother of respondent Hon. Francisco P. Burgos
is married to a sister of Atty. Domingo L. Antigua.
17. Evidence the proposed sale of the entire
properties of the estate cannot be legally done
without the conformity of the heirs-distributees
because the certificates of title are already
registered in their names Hence, in pursuit of the
agitation to sell, respondent Hon. Francisco P.

xxx

xxx

20. Petitioners will refrain from discussing herein

the merits of the shotgun motion of Atty.
Domingo L. Antigua as well as other incidents
now pending in the court below which smack of
harassment against the herein petitioners. For,
regardless of the merits of said incidents,
petitioners respectfully contend that it is highly
improper for respondent Hon. Francisco P.
Burgos to continue to preside over Sp. Proc. No.
916-R by reason of the following circumstances:
(a) He has shown undue interest in the
sale of the properties as initiated by Atty.
Domingo L. Antigua whose sister is
married to a brother of respondent.
(b) The proposed sale cannot be legally
done without the conformity of the heirsdistributees, and petitioners have openly
refused the sale, to the great
disappointment of respondent.
(c) The shot gun motion of Atty. Antigua
and similar incidents are clearly
intended to harass and embarrass
administrator Jose Cuenco Borromeo in
order to pressure him into acceding to
the proposed sale.
(d) Respondent has shown bias and
prejudice against petitioners by failing to
resolve the claim for attorney's fees filed
by Jose Cuenco Borromeo and the late
Crispin Borromeo. Similar claims by the
other lawyers were resolved by
respondent after petitioners refused the
proposed sale. (pp. 41-43, Rollo)
On March 1, 1983, the appellate court rendered its
decision granting the petition for certiorari and/or
prohibition and disqualifying Judge Francisco P. Burgos
from taking further cognizance of Special Proceedings
No. 916-R. The court also ordered the transmission of
the records of the case to the Executive Judge of the
Regional Trial Court of Region VII for re-raffling.
A motion for reconsideration of the decision was denied
by the appellate court on April 11, 1983. Hence, the
present petition for review seeking to modify the decision
of the Intermediate Appellate Court insofar as it
disqualifies and inhibits Judge Francisco P. Burgos from
further hearing the case of Intestate Estate of Vito
Borromeo and orders the remand of the case to the
Executive Judge of the Regional Trial Court of Cebu for
re-raffling.

The principal issue in this case has become moot and

academic because Judge Francisco P. Burgos decided
to retire from the Regional Trial Court of Cebu sometime
before the latest reorganization of the judiciary. However,
we decide the petition on its merits for the guidance of
the judge to whom this case will be reassigned and
others concerned.
The petitioners deny that respondent Jose Cuenco
Borromeo has been harassed. They contend that Judge
Burgos has benn shown unusual interest in the
proposed sale of the entire estate for P6,700,000.00 in
favor of the buyers of Atty. Antigua. They claim that this
disinterest is shown by the judge's order of March 2,
1979 assessing the property of the estate at
P15,000,000.00. They add that he only ordered the
administrator to sell so much of the properties of the
estate to pay the attorney's fees of the lawyersclaimants. To them, the inhibition of Judge Burgos would
have been unreasonable because his orders against the
failure of Jose Cuenco Borromeo, as administrator, to
give an accounting and inventory of the estate were all
affirmed by the appellate court. They claim that the
respondent court, should also have taken judicial notice
of the resolution of this Court directing the said judge to
"expedite the settlement and adjudication of the case" in
G.R. No. 54232. And finally, they state that the
disqualification of judge Burgos would delay further the
closing of the administration proceeding as he is the only
judge who is conversant with the 47 volumes of the
records of the case.
Respondent Jose Cuenco Borromeo, to show that he
had been harassed. countered that Judge Burgos
appointed Ricardo V. Reyes as co-administrator of the
estate on October 11, 1972, yet Borromeo was singled
out to make an accounting of what t he was supposed to
have received as rentals for the land upon which the
Juliana Trade Center is erected, from January, 1977 to
February 1982, inclusive, without mentioning the
withholding tax for the Bureau of Internal Revenue. In
order to bolster the agitation to sell as proposed by
Domingo L. Antigua, Judge Burgos invited Antonio
Barredo, Jr., to a series of conferences from February 26
to 28, 1979. During the conferences, Atty. Antonio
Barredo, Jr., offered to buy the shares of the heirsdistributees presumably to cover up the projected sale
initiated by Atty. Antigua.
On March 2, 1979, or two days after the conferences, a
motion was filed by petitioner Domingo L. Antigua
praying that Jose Cuenco Borromeo be required to file
an inventory when he has already filed one to account
for cash, a report on which the administrators had
already rendered: and to appear and be examined under
oath in a proceeding conducted by Judge Burgos lt was
also prayed that subpoena duces tecum be issued for
the appearance of the Manager of the Consolidated
Bank and Trust Co., bringing all the bank records in the
name of Jose Cuenco Borromeo jointly with his wife as
well as the appearance of heirs-distributees Amelinda
Borromeo Talam and another heir distributee Vitaliana
Borromeo. Simultaneously with the filing of the motion of
Domingo Antigua, Atty. Raul H. Sesbreno filed a request
for the issuance of subpoena duces tecum to the
Manager of Consolidated Bank and 'Trust Co., Inc.;
Register of Deeds of Cebu City; Register of Deeds for
the Province of Cebu and another subpoena duces
tecum to Atty. Jose Cuenco Borromeo.

On the same date, the Branch Clerk of Court issued a

subpoena duces tecum to the Managert of the bank, the
Register of deeds for the City of Cebu, the Register of
Deeds for the Province, of Cebu. and to Jose Cuenco
Borromeo.
On the following day, March 3, 1979, Atty Gaudioso v.
Villagonzalo in behalf of the heirs of Marcial Borromeo
who had a common cause with Atty Barredo, Jr., joined
petitioner Domingo L. Antigua by filing a motion for relief
of the administrator.
On March 5, 1979, Atty. Villagonzalo filed a request for
the issuance of a subpoena duces tecum to private
respondent Jose Cuenco Borromeo to bring and
produce all the owners" copies of the titles in the court
presided order by Judge Burgos.
Consequently. the Branch Clerk of Court issued a
subpoena duces tecum commanding Atty. Jose Cuenco
Borromeo to bring and produce the titles in court.
All the above-incidents were set for hearing on June 7,
1979 but on June 14, 1979, before the date of the
hearing, Judge Burgos issued an order denying the
private respondents' motion for reconsideration and the
motion to quash the subpoena.1avvphi1
It was further argued by the private respondents that if
,judge Francisco P. Burgos is not inhibited or disqualified
from trying Sp. Proc. No. 916-R, there would be a
miscarriage of justice Because for the past twelve years,
he had not done anything towards the closure of the
estate proceedings except to sell the properties of the
heirs-distributees as initiated by petitioner Domingo L.
Antigua at 6.7 million pesos while the Intestate Court
had already evaluated it at 15 million pesos.
The allegations of the private respondents in their motion
for inhibition, more specifically, the insistence of the trial
judge to sell the entire estate at P6,700,000.00, where
4/9 group of heirs objected, cannot easily be ignored.
Suspicion of partiality on the part of a trial judge must be
avoided at all costs. In the case of Bautista v.
Rebeuno (81 SCRA 535), this Court stated:
... The Judge must maintain and preserve the
trust and faith of the parties litigants. He must
hold himself above reproach and suspicion. At
the very first sign of lack of faith and trust to his
actions, whether well grounded or not, the Judge
has no other alternative but inhibit himself from
the case. A judge may not be legally Prohibited
from sitting in a litigation, but when
circumstances appear that will induce doubt to
his honest actuations and probity in favor or of
either partly or incite such state of mind, he
should conduct a careful self-examination. He
should exercise his discretion in a way that the
people's faith in the Courts of Justice is not
impaired, "The better course for the Judge under
such circumstances is to disqualify himself "That
way he avoids being misunderstood, his
reputation for probity and objectivity is preserve
ed. what is more important, the Ideal of impartial
administration of justice is lived up to.
In this case, the fervent distrust of the private
respondents is based on sound reasons. As Earlier
stated, however, the petition for review seeking to modify

the decision of the Intermediate Appellate Court insofar

as it disqualifies and inhibits Judge Francisco P. Burgos
from further hearing the Intestate Estate of Vito
Borromeo case and ordering the remand of the case to
the Executive Judge of the Regional Trial Court for reraffling should be DENIED for the decision is not only
valid but the issue itself has become moot and
academic.

estate of the late Vito Borromeo and the order

dated July 7, 1975, denying the petitioner's
motion for reconsideration of the aforementioned
order are hereby SET ASIDE for being NULL
and VOID;
(2) In G.R. No. 55000, the order of the trial court
declaring the waiver document valid is hereby
SET ASIDE;

G.R. No. 65995

The petitioners seek to restrain the respondents from
further acting on any and all incidents in Special
Proceedings No. 916-R during the pendency of this
petition and No. 63818. They also pray that all acts of
the respondents related to the said special proceedings
after March 1, 1983 when the respondent Judge was
disqualified by the appellate court be declared null and
void and without force and effect whatsoever.
The petitioners state that the respondent Judge has set
for hearing all incidents in Special Proceedings No. 916R, including the reversion from the heirs-distributees to
the estate, of the distributed properties already titled in
their names as early as 1970, notwithstanding the
pending inhibition case elevated before this Court which
is docketed as G.R. No. 63818.
The petitioners further argue that the present status of
Special Proceeding No. 916-R requires only the
appraisal of the attorney's fees of the lawyers-claimants
who were individually hired by their respective heirsclients, so their attorney's fees should be legally charged
against their respective clients and not against the
estate.
On the other hand, the respondents maintain that the
petition is a dilatory one and barred by res
judicata because this Court on July 8, 1981, in G.R. No.
54232 directed the respondent Judge to expedite the
settlement and liquidation of the decedent's estate. They
claim that this resolution, which was already final and
executory, was in effect reversed and nullified by the
Intermediate Appellate Court in its case-AC G.R.-No. SP
- 11145 when it granted the petition for certiorari and
or prohibition and disqualified Judge Francisco P. Burgos
from taking further cognizance of Special Proceedings
No. 916R as well as ordering the transmission of the
records of the case to the Executive Judge of the
Regional Trial Court of Region VII for re-raffling on
March 1, 1983, which was appealed to this Court by
means of a Petition for Review (G.R. No. 63818).

(3) In G.R. No. 63818, the petition is hereby

DENIED. The issue in the decision of the
Intermediate Appellate Court disqualifying and
ordering the inhibition of Judge Francisco P.
Burgos
from
further
hearing
Special
Proceedings No. 916-R is declared moot and
academic. The judge who has taken over the
sala of retired Judge Francisco P. Burgos shall
immediately conduct hearings with a view to
terminating the proceedings. In the event that
the successor-judge is likewise disqualified, the
order of the Intermediate Appellate Court
directing the Executive Judge of the Regional
Trial Court of Cebu to re-raffle the case shall be
implemented:
(4) In G.R. No. 65995, the petition is hereby
GRANTED. 'The issue seeking to restrain Judge
Francisco P. Burgos from further acting in G.R.
No. 63818 is MOOT and ACADEMIC:
(5) In G.R, No, 62895, the trial court is hereby
ordered to speedily terminate the close Special
Proceedings No. 916-R, subject to the
submission of an inventory of the real properties
of the estate and an accounting of the cash and
bank deposits by the petitioner-administrator of
the estate as required by this Court in its
Resolution dated June 15, 1983; and
(6) The portion of the Order of August 15, 1969,
segregating 40% of the market value of the
estate from which attorney's fees shall be taken
and paid should be, as it is hereby DELETED.
The lawyers should collect from the heirsdistributees who individually hired them,
attorney's fees according to the nature of the
services rendered but in amounts which should
not exceed more than 20% of the market value
of the property the latter acquired from the
estate as beneficiaries.
SO ORDERED.

We agree with the petitioners' contention that attorney's

fees are not the obligation of the estate but of the
individual heirs who individually hired their respective
lawyers. The portion, therefore, of the Order of August
15, 1969, segregating the exhorbitantly excessive
amount of 40% of the market value of the estate from
which attorney's fees shall be taken and paid should be
deleted.
Due to our affirmance of the decision of the Intermediate
Appellate Court in G.R. No. 63818, we grant the petition.
WHEREFORE,
(1) In G.R. No. 41171, the order of the
respondent judge dated December 24, 1974,
declaring the respondent entitled to 5/9 of the

by executing a Real Estate Mortgage over the properties

subject of the extra-judicial settlement.[7]

SECOND DIVISION
[G.R. No. 129008. January 13, 2004]
TEODORA
A.
RIOFERIO,
VERONICA
O.
EVANGELISTA assisted by her husband
ZALDY
EVANGELISTA,
ALBERTO
ORFINADA, and ROWENA O. UNGOS,
assisted
by
her
husband
BEDA
UNGOS, petitioners,
vs. COURT
OF
APPEALS, ESPERANZA P. ORFINADA,
LOURDES
P.
ORFINADA,
ALFONSO
ORFINADA, NANCY P. ORFINADA, ALFONSO
JAMES P. ORFINADA, CHRISTOPHER P.
ORFINADA
and
ANGELO
P.
ORFINADA, respondents.
DECISION
TINGA, J.:
Whether the heirs may bring suit to recover
property of the estate pending the appointment of an
administrator is the issue in this case.
This Petition for Review on Certiorari, under Rule
45 of the Rules of Court, seeks to set aside
the Decision[1] of the Court of Appeals in CA-G.R. SP No.
42053 dated January 31, 1997, as well as
its Resolution[2] dated March 26, 1997, denying
petitioners motion for reconsideration.
On May 13, 1995, Alfonso P. Orfinada, Jr. died
without a will in Angeles City leaving several personal
and real properties located in Angeles City, Dagupan
City and Kalookan City.[3] He also left a widow,
respondent Esperanza P. Orfinada, whom he married on
July 11, 1960 and with whom he had seven children who
are the herein respondents, namely: Lourdes P.
Orfinada, Alfonso Clyde P. Orfinada, Nancy P. OrfinadaHappenden, Alfonso James P. Orfinada, Christopher P.
Orfinada, Alfonso Mike P. Orfinada (deceased) and
Angelo P. Orfinada.[4]
Apart from the respondents, the demise of the
decedent left in mourning his paramour and their
children. They are petitioner Teodora Riofero, who
became a part of his life when he entered into an extramarital relationship with her during the subsistence of his
marriage to Esperanza sometime in 1965, and copetitioners Veronica[5], Alberto and Rowena.[6]
On November 14, 1995, respondents Alfonso
James and Lourdes Orfinada discovered that on June
29,
1995,
petitioner
Teodora
Rioferio
and her children executed an Extrajudicial Settlement of
Estate of a Deceased Person with Quitclaim involving
the properties of the estate of the decedent located in
Dagupan City and that accordingly, the Registry of
Deeds in Dagupan issued Certificates of Titles Nos.
63983, 63984 and 63985 in favor of petitioners Teodora
Rioferio,
Veronica
Orfinada-Evangelista,
Alberto
Orfinada and Rowena Orfinada-Ungos. Respondents
also found out that petitioners were able to obtain a loan
of P700,000.00 from the Rural Bank of Mangaldan Inc.

On December 1, 1995, respondent Alfonso Clyde P.

Orfinada
III
filed
a Petition
for
Letters
of
Administration docketed as S.P. Case No. 5118 before
the Regional Trial Court of Angeles City, praying that
letters of administration encompassing the estate of
Alfonso P. Orfinada, Jr. be issued to him.[8]
On December 4, 1995, respondents filed
a Complaint for the Annulment/Rescission of Extra
Judicial Settlement of Estate of a Deceased Person with
Quitclaim, Real Estate Mortgage and Cancellation of
Transfer Certificate of Titles with Nos. 63983, 63985 and
63984 and Other Related Documents with Damages
against petitioners, the Rural Bank of Mangaldan, Inc.
and the Register of Deeds of Dagupan City before the
Regional Trial Court, Branch 42, Dagupan City.[9]
On
February
5,
1996,
petitioners
filed
their Answer to the aforesaid complaint interposing the
defense that the property subject of the contested deed
of extra-judicial settlement pertained to the properties
originally belonging to the parents of Teodora
Riofero[10] and that the titles thereof were delivered to her
as an advance inheritance but the decedent had
managed to register them in his name.[11] Petitioners also
raised the affirmative defense that respondents are not
the real parties-in-interest but rather the Estate of
Alfonso O. Orfinada, Jr. in view of the pendency of the
administration proceedings.[12] On April 29, 1996,
petitioners filed a Motion to Set Affirmative Defenses for
Hearing[13] on the aforesaid ground.
The lower court denied the motion in
its Order[14] dated June 27, 1996, on the ground that
respondents, as heirs, are the real parties-in-interest
especially in the absence of an administrator who is yet
to be appointed in S.P. Case No. 5118. Petitioners
moved for its reconsideration[15] but the motion was
likewise denied.[16]
This prompted petitioners to file before the Court of
Appeals their Petition for Certiorari under Rule 65 of the
Rules of Court docketed as CA G.R. S.P. No. 42053.
[17]
Petitioners averred that the RTC committed grave
abuse of discretion in issuing the assailed order which
denied the dismissal of the case on the ground that the
proper party to file the complaint for the annulment of the
extrajudicial settlement of the estate of the deceased is
the estate of the decedent and not the respondents. [18]
The
Court
of
Appeals
rendered
the
assailed Decision[19] dated January 31, 1997, stating that
it discerned no grave abuse of discretion amounting to
lack or excess of jurisdiction by the public respondent
judge when he denied petitioners motion to set
affirmative defenses for hearing in view of its
discretionary nature.
A Motion for Reconsideration was filed by
petitioners but it was denied. [20] Hence, the petition
before this Court.
The issue presented by the petitioners before this
Court is whether the heirs have legal standing to
prosecute the rights belonging to the deceased
subsequent to the commencement of the administration
proceedings.[21]

Petitioners vehemently fault the lower court for

denying their motion to set the case for preliminary
hearing on their affirmative defense that the proper party
to bring the action is the estate of the decedent and not
the respondents. It must be stressed that the holding of
a preliminary hearing on an affirmative defense lies in
the discretion of the court. This is clear from the Rules of
Court, thus:
SEC. 5. Pleadings grounds as affirmative defenses.- Any
of the grounds for dismissal provided for in this rule,
except improper venue, may be pleaded as an
affirmative defense, and a preliminary hearing may be
had thereon as if a motion to dismiss had been filed.
[22]
(Emphasis supplied.)
Certainly, the incorporation of the word may in the
provision is clearly indicative of the optional character of
the preliminary hearing. The word denotes discretion
and cannot be construed as having a mandatory effect.
[23]
Subsequently, the electivity of the proceeding was
firmed up beyond cavil by the 1997 Rules of Civil
Procedure with the inclusion of the phrase in the
discretion of the Court, apart from the retention of the
word may in Section 6,[24] in Rule 16 thereof.
Just as no blame of abuse of discretion can be laid
on the lower courts doorstep for not hearing petitioners
affirmative defense, it cannot likewise be faulted for
recognizing the legal standing of the respondents as
heirs to bring the suit.
Pending the filing of administration proceedings, the
heirs without doubt have legal personality to bring suit in
behalf of the estate of the decedent in accordance with
the provision of Article 777 of the New Civil Code that
(t)he rights to succession are transmitted from the
moment of the death of the decedent. The provision in
turn is the foundation of the principle that the property,
rights and obligations to the extent and value of the
inheritance of a person are transmitted through his death
to another or others by his will or by operation of law.[25]
Even if administration proceedings have already
been commenced, the heirs may still bring the suit if an
administrator has not yet been appointed. This is the
proper modality despite the total lack of advertence to
the heirs in the rules on party representation, namely
Section 3, Rule 3[26] and Section 2, Rule 87[27] of the
Rules of Court. In fact, in the case of Gochan v. Young,
[28]
this Court recognized the legal standing of the heirs to
represent the rights and properties of the decedent
under administration pending the appointment of an
administrator. Thus:
The above-quoted rules,[29] while permitting an executor
or administrator to represent or to bring suits on behalf of
the deceased, do not prohibit the heirs from representing
the deceased. These rules are easily applicable to
cases in which an administrator has already been
appointed. But no rule categorically addresses the
situation in which special proceedings for the
settlement of an estate have already been instituted,
yet no administrator has been appointed. In such
instances, the heirs cannot be expected to wait for the
appointment of an administrator; then wait further to see
if the administrator appointed would care enough to file a
suit to protect the rights and the interests of the
deceased; and in the meantime do nothing while the

rights and the properties of the decedent are violated or

dissipated.
Even if there is an appointed administrator,
jurisprudence recognizes two exceptions, viz: (1) if the
executor or administrator is unwilling or refuses to bring
suit;[30] and (2) when the administrator is alleged to have
participated in the act complained of [31] and he is made a
party defendant.[32] Evidently, the necessity for the heirs
to seek judicial relief to recover property of the estate is
as compelling when there is no appointed administrator,
if not more, as where there is an appointed administrator
but he is either disinclined to bring suit or is one of the
guilty parties himself.
All told, therefore, the rule that the heirs have no
legal standing to sue for the recovery of property of the
estate during the pendency of administration
proceedings has three exceptions, the third being when
there is no appointed administrator such as in this case.
As the appellate court did not commit an error of
law in upholding the order of the lower court, recourse to
this Court is not warranted.
WHEREFORE, the petition for review is
DENIED. The assailed decision and resolution of the
Court of Appeals are hereby AFFIRMED. No costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-54919 May 30, 1984
POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity as the
Presiding Judge of Branch XXXVIII, Court of First
Instance of Manila and NENITA CAMPOS
PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to
annul the order of the respondent judge of the Court of
First Instance of Manila, Branch XXXVIII, which admitted
to and allowed the probate of the last will and testament
of Adoracion C. Campos, after an ex-parte presentation
of evidence by herein private respondent.
On January 31, 1977, Adoracion C. Campos died,
leaving her father, petitioner Hermogenes Campos and
her sisters, private respondent Nenita C. Paguia,
Remedios C. Lopez and Marieta C. Medina as the
surviving heirs. As Hermogenes Campos was the only
compulsory heir, he executed an Affidavit of Adjudication
under Rule 74, Section I of the Rules of Court whereby
he adjudicated unto himself the ownership of the entire
estate of the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C.
Paguia filed a petition for the reprobate of a will of the
deceased, Adoracion Campos, which was allegedly
executed in the United States and for her appointment
as administratrix of the estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an
American citizen at the time of her death and was a
permanent resident of 4633 Ditman Street, Philadelphia,
Pennsylvania, U.S.A.; that the testatrix died in Manila on
January 31, 1977 while temporarily residing with her
sister at 2167 Leveriza, Malate, Manila; that during her
lifetime, the testatrix made her last wig and testament on
July 10, 1975, according to the laws of Pennsylvania,
U.S.A., nominating Wilfredo Barzaga of New Jersey as
executor; that after the testatrix death, her last will and
testament was presented, probated, allowed, and
registered with the Registry of Wins at the County of
Philadelphia, U.S.A., that Clement L. McLaughlin, the
administrator who was appointed after Dr. Barzaga had
declined and waived his appointment as executor in
favor of the former, is also a resident of Philadelphia,

U.S.A., and that therefore, there is an urgent need for

the appointment of an administratrix to administer and
eventually distribute the properties of the estate located
in the Philippines.
On January 11, 1978, an opposition to the reprobate of
the will was filed by herein petitioner alleging among
other things, that he has every reason to believe that the
will in question is a forgery; that the intrinsic provisions of
the will are null and void; and that even if pertinent
American laws on intrinsic provisions are invoked, the
same could not apply inasmuch as they would work
injustice and injury to him.
On December 1, 1978, however, the petitioner through
his counsel, Atty. Franco Loyola, filed a Motion to
Dismiss Opposition (With Waiver of Rights or Interests)
stating that he "has been able to verify the veracity
thereof (of the will) and now confirms the same to be
truly the probated will of his daughter Adoracion." Hence,
an ex-parte presentation of evidence for the reprobate of
the questioned will was made.
On January 10, 1979, the respondent judge issued an
order, to wit:
At the hearing, it has been satisfactorily
established that Adoracion C. Campos,
in her lifetime, was a citizen of the
United States of America with a
permanent residence at 4633 Ditman
Street, Philadelphia, PA 19124, (Exhibit
D) that when alive, Adoracion C.
Campos executed a Last Will and
Testament in the county of Philadelphia,
Pennsylvania, U.S.A., according to the
laws thereat (Exhibits E-3 to E-3-b) that
while in temporary sojourn in the
Philippines, Adoracion C. Campos died
in the City of Manila (Exhibit C) leaving
property both in the Philippines and in
the United States of America; that the
Last Will and Testament of the late
Adoracion C. Campos was admitted and
granted probate by the Orphan's Court
Division of the Court of Common Pleas,
the probate court of the Commonwealth
of Pennsylvania, County of Philadelphia,
U.S.A., and letters of administration
were issued in favor of Clement J.
McLaughlin all in accordance with the
laws of the said foreign country on
procedure and allowance of wills
(Exhibits E to E-10); and that the
petitioner is not suffering from any
disqualification which would render her
unfit as administratrix of the estate in the
Philippines of the late Adoracion C.
Campos.
WHEREFORE, the Last Will and
Testament of the late Adoracion C.
Campos is hereby admitted to and
allowed probate in the Philippines, and
Nenita Campos Paguia is hereby
appointed Administratrix of the estate of
said
decedent;
let
Letters
of
Administration with the Will annexed
issue in favor of said Administratrix upon
her filing of a bond in the amount of

P5,000.00 conditioned under the

provisions of Section I, Rule 81 of the
Rules of Court.
Another manifestation was filed by the petitioner on April
14, 1979, confirming the withdrawal of his opposition,
acknowledging the same to be his voluntary act and
deed.
On May 25, 1979, Hermogenes Campos filed a petition
for relief, praying that the order allowing the will be set
aside on the ground that the withdrawal of his opposition
to the same was secured through fraudulent means.
According to him, the "Motion to Dismiss Opposition"
was inserted among the papers which he signed in
connection with two Deeds of Conditional Sales which
he executed with the Construction and Development
Corporation of the Philippines (CDCP). He also alleged
that the lawyer who filed the withdrawal of the opposition
was not his counsel-of-record in the special proceedings
case.
The petition for relief was set for hearing but the
petitioner failed to appear. He made several motions for
postponement until the hearing was set on May 29,
1980.
On May 18, 1980, petitioner filed another motion entitled
"Motion to Vacate and/or Set Aside the Order of January
10, 1979, and/or dismiss the case for lack of jurisdiction.
In this motion, the notice of hearing provided:
Please include this motion in your
calendar for hearing on May 29, 1980 at
8:30 in the morning for submission for
reconsideration and resolution of the
Honorable Court. Until this Motion is
resolved, may I also request for the
future setting of the case for hearing on
the Oppositor's motion to set aside
previously filed.
The hearing of May 29, 1980 was re-set by the court for
June 19, 1980. When the case was called for hearing on
this date, the counsel for petitioner tried to argue his
motion to vacate instead of adducing evidence in
support of the petition for relief. Thus, the respondent
judge issued an order dismissing the petition for relief for
failure to present evidence in support thereof. Petitioner
filed a motion for reconsideration but the same was
denied. In the same order, respondent judge also denied
the motion to vacate for lack of merit. Hence, this
petition.
Meanwhile, on June 6,1982, petitioner Hermogenes
Campos died and left a will, which, incidentally has been
questioned by the respondent, his children and forced
heirs as, on its face, patently null and void, and a
fabrication, appointing Polly Cayetano as the executrix of
his last will and testament. Cayetano, therefore, filed a
motion to substitute herself as petitioner in the instant
case which was granted by the court on September 13,
1982.
A motion to dismiss the petition on the ground that the
rights of the petitioner Hermogenes Campos merged
upon his death with the rights of the respondent and her
sisters, only remaining children and forced heirs was
denied on September 12, 1983.

Petitioner Cayetano persists with the allegations that the

respondent judge acted without or in excess of his
jurisdiction when:
1) He ruled the petitioner lost his
standing in court deprived the Right to
Notice (sic) upon the filing of the Motion
to Dismiss opposition with waiver of
rights or interests against the estate of
deceased Adoracion C. Campos, thus,
paving the way for the hearing exparte of the petition for the probate of
decedent will.
2) He ruled that petitioner can waive,
renounce or repudiate (not made in a
public or authenticated instrument), or
by way of a petition presented to the
court but by way of a motion presented
prior to an order for the distribution of
the estate-the law especially providing
that repudiation of an inheritance must
be presented, within 30 days after it has
issued an order for the distribution of the
estate in accordance with the rules of
Court.
3) He ruled that the right of a forced heir
to his legitime can be divested by a
decree admitting a will to probate in
which no provision is made for the
forced heir in complete disregard of Law
of Succession
4) He denied petitioner's petition for
Relief on the ground that no evidence
was adduced to support the Petition for
Relief when no Notice nor hearing was
set to afford petitioner to prove the merit
of his petition a denial of the due
process and a grave abuse of discretion
amounting to lack of jurisdiction.

the motion. The present petitioner cannot, therefore,

maintain that the old man's attorney of record was Atty.
Lagrosa at the time of filing the motion. Since the
withdrawal was in order, the respondent judge acted
correctly in hearing the probate of the will ex-parte, there
being no other opposition to the same.
The third issue raised deals with the validity of the
provisions of the will. As a general rule, the probate
court's authority is limited only to the extrinsic validity of
the will, the due execution thereof, the testatrix's
testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic
validity of the will normally comes only after the court
has declared that the will has been duly authenticated.
However, where practical considerations demand that
the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue.
(Maninang vs. Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the
respondent judge allowed the reprobate of Adoracion's
will, Hermogenes C. Campos was divested of his
legitime which was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited
the petitioner and thus, the respondent judge should
have denied its reprobate outright, the private
respondents have sufficiently established that Adoracion
was, at the time of her death, an American citizen and a
permanent resident of Philadelphia, Pennsylvania,
U.S.A. Therefore, under Article 16 par. (2) and 1039 of
the Civil Code which respectively provide:
Art. 16 par. (2).
xxx xxx xxx
However, intestate and testamentary
successions, both with respect to the
order of succession and to the amount
of successional rights and to the intrinsic
validity of testamentary provisions, shall
be regulated by the national law of the
person whose succession is under
consideration, whatever may be the
nature of the property and regardless of
the country wherein said property may
be found.

5) He acquired no jurisdiction over the

testate case, the fact that the Testator at
the time of death was a usual resident of
Dasmarias,
Cavite,
consequently
Cavite Court of First Instance has
exclusive jurisdiction over the case (De
Borja vs. Tan, G.R. No. L-7792, July
1955).
The first two issues raised by the petitioner are anchored
on the allegation that the respondent judge acted with
grave abuse of discretion when he allowed the
withdrawal of the petitioner's opposition to the reprobate
of the will.
We find no grave abuse of discretion on the part of the
respondent judge. No proof was adduced to support
petitioner's contention that the motion to withdraw was
secured through fraudulent means and that Atty. Franco
Loyola was not his counsel of record. The records show
that after the firing of the contested motion, the petitioner
at a later date, filed a manifestation wherein he
confirmed that the Motion to Dismiss Opposition was his
voluntary act and deed. Moreover, at the time the motion
was filed, the petitioner's former counsel, Atty. Jose P.
Lagrosa had long withdrawn from the case and had
been substituted by Atty. Franco Loyola who in turn filed

Art. 1039.
Capacity to succeed is governed by the
law of the nation of the decedent.
the law which governs Adoracion Campo's will is the law
of Pennsylvania, U.S.A., which is the national law of the
decedent. Although the parties admit that the
Pennsylvania law does not provide for legitimes and that
all the estate may be given away by the testatrix to a
complete stranger, the petitioner argues that such law
should not apply because it would be contrary to the
sound and established public policy and would run
counter to the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of
the provisions of the will, as provided for by Article 16(2)
and 1039 of the Civil Code, the national law of the

decedent must apply. This was squarely applied in the

case of Bellis v. Bellis (20 SCRA 358) wherein we ruled:

original case, or when the want of

jurisdiction appears on the record.

It is therefore evident that whatever

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

Therefore, the settlement of the estate of Adoracion

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

xxx xxx xxx

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

WHEREFORE, the petition for certiorari and prohibition

is hereby dismissed for lack of merit.
SO ORDERED.

As regards the alleged absence of notice of hearing for

the petition for relief, the records wig bear the fact that
what was repeatedly scheduled for hearing on separate
dates until June 19, 1980 was the petitioner's petition for
relief and not his motion to vacate the order of January
10, 1979. There is no reason why the petitioner should
have been led to believe otherwise. The court even
admonished the petitioner's failing to adduce evidence
when his petition for relief was repeatedly set for
hearing. There was no denial of due process. The fact
that he requested "for the future setting of the case for
hearing . . ." did not mean that at the next hearing, the
motion to vacate would be heard and given preference in
lieu of the petition for relief. Furthermore, such request
should be embodied in a motion and not in a mere notice
of hearing.
Finally, we find the contention of the petition as to the
issue of jurisdiction utterly devoid of merit. Under Rule
73, Section 1, of the Rules of Court, it is provided that:
SECTION 1. Where estate of deceased
persons settled. If the decedent is an
inhabitant of the Philippines at the time
of his death, whether a citizen or an
alien, his will shall be proved, or letters
of administration granted, and his estate
settled, in the Court of First Instance in
the province in which he resided at the
time of his death, and if he is an
inhabitant of a foreign country, the Court
of First Instance of any province in
which he had estate. The court first
taking cognizance of the settlement of
the estate of a decedent, shall exercise
jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a
court, so far as it depends on the place
of residence of the decedent, or of the
location of his estate, shall not be
contested in a suit or proceeding, except
in an appeal from that court, in the

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-22036 April 30, 1979
TESTATE ESTATE OF THE LATE REVEREND
FATHER PASCUAL RIGOR. THE PARISH PRIEST OF
THE ROMAN CATHOLIC CHURCH OF VICTORIA,
TARLAC, petitioner-appellant,
vs.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA

ESCOBAR DE RIGOR and JOVITA ESCOBAR DE

FAUSTO, respondents-appellees.

excomulgado, IPSO FACTO se le

despoja este legado, y la administracion
de esto pasara a cargo del actual
Parroco y sus sucesores de la Iglecia
Catolica de Victoria, Tarlac.

D. Taedo, Jr. for appellants.

J. Palanca, Sr. for appellee.

Y en intervalo de tiempo que no haya

legatario acondicionado segun lo arriba
queda
expresado,
pasara
la
administracion de este legado a cargo
del actual Parroco Catolico y sus
sucesores, de Victoria, Tarlac.

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

El Parroco administrador de estate

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

The parish priest of Victoria, who claimed to be a trustee

of the said lands, appealed to this Court from the
decision of the Court of Appeals affirming the order of
the probate court declaring that the said devise was
inoperative (Rigor vs. Parish Priest of the Roman
Catholic Church of Victoria, Tarlac, CA-G.R. No. 24319R, August 1, 1963).
The record discloses that Father Rigor, the parish priest
of Pulilan, Bulacan, died on August 9, 1935, leaving a
will executed on October 29, 1933 which was probated
by the Court of First Instance of Tarlac in its order of
December 5, 1935. Named as devisees in the will were
the testators nearest relatives, namely, his three sisters:
Florencia Rigor-Escobar, Belina Rigor-Manaloto and
Nestora Rigor-Quiambao. The testator gave a devise to
his cousin, Fortunato Gamalinda.

To implement the foregoing bequest, the administratix in

1940 submitted a project containing the following item:
5. LEGACY OF THE CHURCH
That it be adjudicated in favor of the
legacy purported to be given to the
nearest male relative who shall take the
priesthood, and in the interim to be
administered by the actual Catholic
Priest of the Roman Catholic Church of
Victoria, Tarlac, Philippines, or his
successors,
the
real
properties
hereinbelow indicated, to wit:

In addition, the will contained the following controversial

bequest
(paragraphing
supplied
to
facilitate
comprehension of the testamentary provisions):
Doy y dejo como legado CUATRO (4)
PARCELAS de terreno palayeros
situados en el municipiooo de Guimba
de la provinciaaa de NUEVA ECIJA,
cuyo num. de CERTIFICADO DE
TRANSFERENCIA DE TITULO SON;
Titulo Num. 6530, mide 16,249 m.
cuadrados de superficie Titulo Num.
6548, mide 242,998 m. cuadrados de
superficie y annual 6525, mide 62,665
m. cuadrados de superficie; y Titulo
Num. 6521, mide 119,251 m. cuadrados
de superficie; a cualquier pariente mio
varon mas cercano que estudie la
carrera eclesiatica hasta ordenarse de
Presbiterado o sea Sacerdote; las
condiciones de estate legado son;
(1.a) Prohibe en absoluto la venta de
estos terrenos arriba situados objectos
de este legado;
(2.a) Que el legatario pariente mio mas
cercano tendra derecho de empezar a
gozar y administrar de este legado al
principiar a curzar la Sagrada Teologio,
y ordenado de Sacerdote, hasta su
muerte; pero que pierde el legatario
este derecho de administrar y gozar de
este legado al dejar de continuar sus
estudios
para
ordenarse
de
Presbiterado (Sacerdote).
Que el legatario una vez Sacerdote ya
estara obligado a celebrar cada ao
VEINTE (20) Misas rezadas en sufragio
de mi alma y de mis padres difuntos, y
si el actual legatario, quedase

Title
No.

Lot
No.

A
r
e
a
i
n

T
a
x
D
e
c
.

As
s.
Va
lu
e

H
a
s
.

T6530

366
3

1
.
6
2
4
9

1
8
7
4
0

P
34
0.
00

T6548

344
5-C

2
4
.
2
9
9
8

1
8
7
3
0

7,
29
0.
00

T-

367

1,

6525

T6521

366
6

.
2
6
6
5

1
1
.
9
2
5
1

8
7
3
6

1
8
7
3
3

Total amount and value 44.1163 P13,090.00

Judge Roman A. Cruz in his order of August 15, 1940,
approving the project of partition, directed that after
payment of the obligations of the estate (including the
sum of P3,132.26 due to the church of the Victoria
parish) the administratrix should deliver to the devisees
their respective shares.
It may be noted that the administratrix and Judge Cruz
did not bother to analyze the meaning and implications
of Father Rigor's bequest to his nearest male relative
who would study for the priesthood. Inasmuch as no
nephew of the testator claimed the devise and as the
administratrix and the legal heirs believed that the parish
priest of Victoria had no right to administer the ricelands,
the same were not delivered to that ecclesiastic. The
testate proceeding remained pending.
About thirteen years after the approval of the project of
partition, or on February 19, 1954, the parish priest of
Victoria filed in the pending testate proceeding a petition
praying for the appointment of a new administrator
(succeeding the deceased administration Florencia
Rigor), who should deliver to the church the said
ricelands, and further praying that the possessors
thereof be ordered to render an accounting of the fruits.
The probate court granted the petition. A new
administrator was appointed. On January 31, 1957 the
parish priest filed another petition for the delivery of the
ricelands to the church as trustee.
The intestate heirs of Father Rigor countered with a
petition dated March 25, 1957 praying that the bequest
be d inoperative and that they be adjudged as the
persons entitled to the said ricelands since, as admitted
by the parish priest of Victoria, "no nearest male relative
of" the testator "has ever studied for the priesthood" (pp.
25 and 35, Record on Appeal). That petition was
opposed by the parish priest of Victoria.
Finding that petition to be meritorious, the lower court,
through Judge Bernabe de Aquino, declared the bequest
inoperative and adjudicated the ricelands to the
testator's legal heirs in his order of June 28, 1957. The
parish priest filed two motions for reconsideration.
Judge De Aquino granted the respond motion for
reconsideration in his order of December 10, 1957 on
the ground that the testator had a grandnephew named
Edgardo G. Cunanan (the grandson of his first cousin)
who was a seminarian in the San Jose Seminary of the
Jesuit Fathers in Quezon City. The administrator was
directed to deliver the ricelands to the parish priest of
Victoria as trustee.
The legal heirs appealed to the Court of Appeals. It
reversed that order. It held that Father Rigor had created
a testamentary trust for his nearest male relative who

88
0.
00

3,
58
0.
00

would take the holy orders but that such trust could exist
only for twenty years because to enforce it beyond that
period would violate "the rule against perpetuities. It
ruled that since no legatee claimed the ricelands within
twenty years after the testator's death, the same should
pass to his legal heirs, citing articles 888 and 912(2) of
the old Civil Code and article 870 of the new Civil Code.
The parish priest in this appeal contends that the Court
of Appeals erred in not finding that the testator created a
public charitable trust and in not liberally construing the
testamentary provisions so as to render the trust
operative and to prevent intestacy.
As refutation, the legal heirs argue that the Court of
Appeals d the bequest inoperative because no one
among the testator's nearest male relatives had studied
for the priesthood and not because the trust was a
private charitable trust. According to the legal heirs, that
factual finding is binding on this Court. They point out
that appellant priest's change of theory cannot be
countenanced in this appeal .
In this case, as in cases involving the law of contracts
and statutory construction, where the intention of the
contracting parties or of the lawmaking body is to be
ascertained, the primary issue is the determination of the
testator's intention which is the law of the case (dicat
testor et erit lex. Santos vs. Manarang, 27 Phil. 209, 215;
Rodriguez vs. Court of Appeals, L-28734, March 28,
1969, 27 SCRA 546).
The will of the testator is the first and principal law in the
matter of testaments. When his intention is clearly and
precisely expressed, any interpretation must be in
accord with the plain and literal meaning of his words,
except when it may certainly appear that his intention
was different from that literally expressed (In re Estate of
Calderon, 26 Phil. 333).
The intent of the testator is the cardinal rule in the
construction of wills." It is "the life and soul of a will It is
"the first greatest rule, the sovereign guide, the polestar,
in giving effect to a will". (See Dissent of Justice
Moreland in Santos vs. Manarang, 27 Phil. 209, 223,
237-8.)
One canon in the interpretation of the testamentary
provisions is that "the testator's intention is to be
ascertained from the words of the wilt taking into
consideration the circumstances under which it was
made", but excluding the testator's oral declarations as
to his intention (Art. 789, Civil Code of the Philippines).
To ascertain Father Rigor's intention, it may be useful to
make the following re-statement of the provisions of his
will.
1. that he bequeathed the ricelands to anyone of his
nearest male relatives who would pursue an
ecclesiastical career until his ordination as a priest.
2. That the devisee could not sell the ricelands.
3. That the devisee at the inception of his studies in
sacred theology could enjoy and administer the
ricelands, and once ordained as a priest, he could
continue enjoying and administering the same up to the
time of his death but the devisee would cease to enjoy
and administer the ricelands if he discontinued his
studies for the priesthood.
4. That if the devisee became a priest, he would be
obligated to celebrate every year twenty masses with
prayers for the repose of the souls of Father Rigor and
his parents.

5. That if the devisee is excommunicated, he would be

divested of the legacy and the administration of the
riceland would pass to the incumbent parish priest of
Victoria and his successors.
6. That during the interval of time that there is no
qualified devisee as contemplated above, the
administration of the ricelands would be under the
responsibility of the incumbent parish priest of Victoria
and his successors, and
7. That the parish priest-administrator of the ricelands
would accumulate annually the products thereof,
obtaining or getting from the annual produce five percent
thereof for his administration and the fees corresponding
to the twenty masses with prayers that the parish priest
would celebrate for each year, depositing the balance of
the income of the devise in the bank in the name of his
bequest.
From the foregoing testamentary provisions, it may be
deduced that the testator intended to devise the
ricelands to his nearest male relative who would become
a priest, who was forbidden to sell the ricelands, who
would lose the devise if he discontinued his studies for
the priesthood, or having been ordained a priest, he was
excommunicated, and who would be obligated to say
annually twenty masses with prayers for the repose of
the souls of the testator and his parents.
On the other hand, it is clear that the parish priest of
Victoria would administer the ricelands only in two
situations: one, during the interval of time that no nearest
male relative of the testator was studying for the
priesthood and two, in case the testator's nephew
became a priest and he was excommunicated.
What is not clear is the duration of "el intervalo de
tiempo que no haya legatario acondicionado", or how
long after the testator's death would it be determined that
he had a nephew who would pursue an ecclesiastical
vocation. It is that patent ambiguity that has brought
about the controversy between the parish priest of
Victoria and the testator's legal heirs.
Interwoven with that equivocal provision is the time
when the nearest male relative who would study for the
priesthood should be determined. Did the testator
contemplate only his nearest male relative at the time of
his death? Or did he have in mind any of his nearest
male relatives at anytime after his death?
We hold that the said bequest refers to the testator's
nearest male relative living at the time of his death and
not to any indefinite time thereafter. "In order to be
capacitated to inherit, the heir, devisee or legatee must
be living at the moment the succession opens, except in
case of representation, when it is proper" (Art. 1025,
Civil Code).
The said testamentary provisions should be sensibly or
reasonably construed. To construe them as referring to
the testator's nearest male relative at anytime after his
death would render the provisions difficult to apply and
create uncertainty as to the disposition of his estate.
That could not have been his intention.
In 1935, when the testator died, his nearest leagal heirs
were his three sisters or second-degree relatives, Mrs.
Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously,
when the testator specified his nearest male relative, he
must have had in mind his nephew or a son of his sister,
who would be his third-degree relative, or possibly a
grandnephew. But since he could not prognosticate the
exact date of his death or state with certitude what
category of nearest male relative would be living at the
time of his death, he could not specify that his nearest
male relative would be his nephew or grandnephews

(the son of his nephew or niece) and so he had to use

the term "nearest male relative".
It is contended by the legal heirs that the said devise
was in reality intended for Ramon Quiambao, the
testator's nephew and godchild, who was the son of his
sister, Mrs. Quiambao. To prove that contention, the
legal heirs presented in the lower court the affidavit of
Beatriz Gamalinda, the maternal grandmother of
Edgardo Cunanan, who deposed that after Father
Rigor's death her own son, Valentin Gamalinda, Jr., did
not claim the devise, although he was studying for the
priesthood at the San Carlos Seminary, because she
(Beatriz) knew that Father Rigor had intended that
devise for his nearest male relative beloning to the Rigor
family (pp. 105-114, Record on Appeal).
Mrs. Gamalinda further deposed that her own
grandchild, Edgardo G. Cunanan, was not the one
contemplated in Father Rigor's will and that Edgardo's
father told her that he was not consulted by the parish
priest of Victoria before the latter filed his second motion
for reconsideration which was based on the ground that
the testator's grandnephew, Edgardo, was studying for
the priesthood at the San Jose Seminary.
Parenthetically, it should be stated at this juncture that
Edgardo ceased to be a seminarian in 1961. For that
reason, the legal heirs apprised the Court of Appeals
that the probate court's order adjudicating the ricelands
to the parish priest of Victoria had no more leg to stand
on (p. 84, Appellant's brief).
Of course, Mrs. Gamalinda's affidavit, which is
tantamount to evidence aliunde as to the testator's
intention and which is hearsay, has no probative value.
Our opinion that the said bequest refers to the testator's
nephew who was living at the time of his death, when his
succession was opened and the successional rights to
his estate became vested, rests on a judicious and
unbiased reading of the terms of the will.
Had the testator intended that the "cualquier pariente
mio varon mas cercano que estudie la camera
eclesiatica" would include indefinitely anyone of his
nearest male relatives born after his death, he could
have so specified in his will He must have known that
such a broad provision would suspend for an unlimited
period of time the efficaciousness of his bequest.
What then did the testator mean by "el intervalo de
tiempo que no haya legatario acondicionado"? The
reasonable view is that he was referring to a situation
whereby his nephew living at the time of his death, who
would like to become a priest, was still in grade school or
in high school or was not yet in the seminary. In that
case, the parish priest of Victoria would administer the
ricelands before the nephew entered the seminary. But
the moment the testator's nephew entered the seminary,
then he would be entitled to enjoy and administer the
ricelands and receive the fruits thereof. In that event, the
trusteeship would be terminated.
Following that interpretation of the will the inquiry would
be whether at the time Father Rigor died in 1935 he had
a nephew who was studying for the priesthood or who
had manifested his desire to follow the ecclesiastical
career. That query is categorically answered in
paragraph 4 of appellant priest's petitions of February
19, 1954 and January 31, 1957. He unequivocally
alleged therein that "not male relative of the late (Father)
Pascual Rigor has ever studied for the priesthood" (pp.
25 and 35, Record on Appeal).
Inasmuch as the testator was not survived by any
nephew who became a priest, the unavoidable
conclusion is that the bequest in question was ineffectual
or inoperative. Therefore, the administration of the

ricelands by the parish priest of Victoria, as envisaged in

the wilt was likewise inoperative.
The appellant in contending that a public charitable trust
was constituted by the testator in is favor assumes that
he was a trustee or a substitute devisee That contention
is untenable. A reading of the testamentary provisions
regarding the disputed bequest not support the view that
the parish priest of Victoria was a trustee or a substitute
devisee in the event that the testator was not survived by
a nephew who became a priest.
It should be understood that the parish priest of Victoria
could become a trustee only when the testator's nephew
living at the time of his death, who desired to become a
priest, had not yet entered the seminary or, having been
ordained a priest, he was excommunicated. Those two
contingencies did not arise, and could not have arisen in
this case because no nephew of the testator manifested
any intention to enter the seminary or ever became a
priest.
The Court of Appeals correctly ruled that this case is
covered by article 888 of the old Civil Code, now article
956, which provides that if "the bequest for any reason
should be inoperative, it shall be merged into the estate,
except in cases of substitution and those in which the
right of accretion exists" ("el legado ... por qualquier
causa, no tenga efecto se refundira en la masa de la
herencia, fuera de los casos de sustitucion y derecho de
acrecer").
This case is also covered by article 912(2) of the old
Civil Code, now article 960 (2), which provides that legal
succession takes place when the will "does not dispose
of all that belongs to the testator." There being no
substitution nor accretion as to the said ricelands the
same should be distributed among the testator's legal
heirs. The effect is as if the testator had made no
disposition as to the said ricelands.
The Civil Code recognizes that a person may die partly
testate and partly intestate, or that there may be mixed
succession. The old rule as to the indivisibility of the
testator's win is no longer valid. Thus, if a conditional
legacy does not take effect, there will be intestate
succession as to the property recovered by the said
legacy (Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).
We find no merit in the appeal The Appellate Court's
decision is affirmed. Costs against the petitioner.
SO ORDERED.