Full Text Cases 1 (1).docx

Contents Flora v Prado ......................................................................................................................................... 1 De Borja v Vda de Borja ........................................................................................................................ 6 Bailon-Casilao v CA .............................................................................................................................. 16 Alejandrino v CA .................................................................................................................................. 22 Mondonido v Roda.............................................................................................................................. 31 Barretto v Tuason................................................................................................................................ 32 Tordilla v Tordilla................................................................................................................................. 61 Jaboneta v Gustilo ............................................................................................................................... 63 Nera v Rimando................................................................................................................................... 66 De Gala v De Gala ................................................................................................................................ 67 Garcia v Lacuesta ................................................................................................................................ 74 ORALS .......................................................................................................................................................... 75 Uson v Del Rosario .............................................................................................................................. 75 Ibarle v Po ........................................................................................................................................... 77 Nacar v Nistal ...................................................................................................................................... 78 Torres v Lopez ..................................................................................................................................... 85 Dorotheo v CA ................................................................................................................................... 112 Balus v Balus...................................................................................................................................... 116 Unionbank v Santibanez ................................................................................................................... 121

Flora v Prado FIRST DIVISION

[G.R. No. 156879. January 20, 2004]

FLORDELIZA CALPATURA FLORA, DOMINADOR CALPATURA and TOMAS CALPATURA, JR., Heirs of TOMAS CALPATURA, SR., petitioners, vs. ROBERTO,

ERLINDA, DANIEL, GLORIA, PATRICIO, JR. and EDNA, all surnamed PRADO and NARCISA PRADO, respondents. DECISION YNARES-SANTIAGO, J.: The property under litigation is the northern half portion of a residential land consisting of 552.20 square meters, more or less, situated at 19th Avenue, Murphy, Quezon City and covered by Transfer Certificate of Title No. 71344 issued on August 15, 1963 by the Register of Deeds of Quezon City in the name of Narcisa Prado and her children by her first husband, Patricio Prado, Sr., namely, Roberto, Erlinda, Daniel, Gloria, Patricio, Jr. and Edna, respondents herein. The pertinent facts are as follows: On December 19, 1959, Patricio Prado, Sr. died. Narcisa subsequently married Bonifacio Calpatura. In order to support her minor children with her first husband, Narcisa and her brotherin-law, Tomas Calpatura, Sr., executed on April 26, 1968 an Agreement of Purchase and Sale whereby the former agreed to sell to the latter the northern half portion of the property for the sum of P10,500.00.[1] On July 28, 1973, Narcisa executed a Deed of Absolute Sale in favor of Tomas over the said property.[2] In 1976, Tomas daughter, Flordeliza Calpatura Flora, built a two-storey duplex with firewall[3] on the northern half portion of the property. Respondents, who occupied the southern half portion of the land, did not object to the construction. Flordeliza Flora and her husband Wilfredo declared the property for taxation purposes[4] and paid the corresponding taxes thereon.[5]Likewise, Maximo Calpatura, the son of Tomas cousin, built a small house on the northern portion of the property. On April 8, 1991, respondents filed a complaint for declaration of nullity of sale and delivery of possession of the northern half portion of the subject property against petitioners Flordeliza Calpatura Flora, Dominador Calpatura and Tomas Calpatura, Jr. before the Regional Trial Court of Quezon City, Branch 100, docketed as Civil Case No. Q-91-8404.[6]Respondents alleged that the transaction embodied in the Agreement to Purchase and Sale between Narcisa and Tomas was one of mortgage and not of sale; that Narcisas children tried to redeem the mortgaged property but they learned that the blank document which their mother had signed was transformed into a Deed of Absolute Sale; that Narcisa could not have sold the northern half portion of the property considering that she was prohibited from selling the same within a period of 25 years from its acquisition, pursuant to the condition annotated at the back of the title; [7] that Narcisa, as natural guardian of her children, had no authority to sell the northern half portion of the property which she and her children co-owned; and that only P5,000.00 out of the consideration of P10,500.00 was paid by Tomas. In their answer, petitioners countered that Narcisa owned 9/14 of the property, consisting of as her share in the conjugal partnership with her first husband and 1/7 as her share in the estate of her deceased husband; that the consideration of the sale in the amount of P10,500.00 had been fully paid as of April 1, 1968; that Narcisa sold her conjugal share in order to support her minor children; that Narcisas claim was barred by laches and prescription; and that the Philippine Homesite and Housing Corporation, not the respondents, was the real party in interest to question the sale within the prohibited period. On April 2, 1997, the court a quo[8] dismissed the complaint. It found that the sale was valid; that the Agreement to Purchase and Sale and the Deed of Absolute Sale were duly executed;

that the sum of P10,500.00 as selling price for the subject property was fully paid there being no demand for the payment of the remaining balance; that the introduction of improvements thereon by the petitioners was without objection from the respondents; and that Roberto and Erlinda failed to contest the transaction within four years after the discovery of the alleged fraud and reaching the majority age in violation of Article 1391 of the Civil Code.[9] Petitioners appealed the decision to the Court of Appeals, where it was docketed as CAG.R. CV No. 56843. On October 3, 2002, a decision[10] was rendered by the Court of Appeals declaring that respondents were co-owners of the subject property, thus the sale was valid only insofar as Narcisas 1/7 undivided share thereon was concerned. The dispositive portion of the said decision reads: WHEREFORE, the appealed Decision is AFFIRMED, with the MODIFICATION that the sale in dispute is declared valid only with respect to the one-seventh (1/7) share of plaintiff-appellant NARCISA H. PRADO in the subject property, which is equivalent to 78.8857 square meters. In all other respects, the same decision stands. No pronouncement as to costs. SO ORDERED.[11] Petitioner filed a motion for reconsideration which was denied in a Resolution dated January 14, 2003.[12] Hence this petition for review on the following assigned errors: I THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE ABUSE OF DISCRETION IN MODIFYING THE DECISION RENDERED BY THE REGIONAL TRIAL COURT WITHOUT TAKING INTO CONSIDERATION THAT, ASIDE FROM THE DECLARATION OF THE VALIDITY OF THE SALE, THE PETITIONERS HEREIN HAVE TAKEN ACTUAL POSSESSION OF THE SAID ONE-HALF (1/2) TO THE EXCLUSION OF THE RESPONDENTS AND INTRODUCED IMPROVEMENTS THEREON. II THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE ABUSE OF DISCRETION IN MODIFYING THE DECISION RENDERED BY THE REGIONAL TRIAL COURT WITHOUT TAKING INTO CONSIDERATION THE CLEAR AND UNEQUIVOCAL STATEMENT IN THE SALE THAT THE SAME PERTAINS TO THE CONJUGAL SHARE OF RESPONDENT NARCISA PRADO AND THE OTHER RESPONDENTS HAD NO FINANCIAL CAPACITY TO ACQUIRE THE SAID PROPERTY SINCE THEY WERE MINORS THEN AT THE ISSUANCE OF THE SAID TCT NO. 71344 ON AUGUST 15, 1963. III THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE ABUSE OF DISCRETION IN NOT DECLARING THE HEREIN RESPONDENTS GUILTY OF LACHES IN FILING THE INSTANT CASE ONLY ON APRIL 8, 1991, THAT IS 18 YEARS AFTER THE SAID SALE WITH THE PETITIONERS TAKING ACTUAL POSSESSION OF SAID PORTION OF THE PROPERTY. IV

THAT THE DECISION OF THE HON. COURT OF APPEALS WILL UNDULY ENRICH THE RESPONDENTS AT THE EXPENSE OF THE HEREIN PETITIONERS.[13] At the outset, it must be stressed that only questions of law may be raised in petitions for review before this Court under Rule 45 of the Rules of Court. [14] It was thus error for petitioners to ascribe to the Court of Appeals grave abuse of discretion. This procedural lapse notwithstanding, in the interest of justice, this Court shall treat the issues as cases of reversible error.[15] The issues for resolution are: (1) Is the subject property conjugal or paraphernal? (2) Is the transaction a sale or a mortgage? (3) Assuming that the transaction is a sale, what was the area of the land subject of the sale? Article 160 of the Civil Code, which was in effect at the time the sale was entered into, provides that all property of the marriage is presumed to belong to the conjugal partnership unless it is proved that it pertains exclusively to the husband or to the wife. Proof of acquisition during the marriage is a condition sine qua non in order for the presumption in favor of conjugal ownership to operate.[16] In the instant case, while Narcisa testified during cross-examination that she bought the subject property from Peoples Homesite Housing Corporation with her own funds, [17] she, however admitted in the Agreement of Purchase and Sale and the Deed of Absolute Sale that the property was her conjugal share with her first husband, Patricio, Sr.[18] A verbal assertion that she bought the land with her own funds is inadmissible to qualify the terms of a written agreement under the parole evidence rule.[19] The so-called parole evidence rule forbids any addition to or contradiction of the terms of a written instrument by testimony or other evidence purporting to show that, at or before the execution of the parties written agreement, other or different terms were agreed upon by the parties, varying the purport of the written contract. Whatever is not found in the writing is understood to have been waived and abandoned.[20] Anent the second issue, the Deed of Absolute Sale executed by Narcisa in favor of Tomas is contained in a notarized[21] document. In Spouses Alfarero, et al. v. Spouses Sevilla, et al.,[22] it was held that a public document executed and attested through the intervention of a notary public is evidence of the facts in a clear, unequivocal manner therein expressed. Otherwise stated, public or notarial documents, or those instruments duly acknowledged or proved and certified as provided by law, may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. In order to contradict the presumption of regularity of a public document, evidence must be clear, convincing, and more than merely preponderant. It is well-settled that in civil cases, the party that alleges a fact has the burden of proving it.[23] Except for the bare allegation that the transaction was one of mortgage and not of sale, respondents failed to adduce evidence in support thereof. Respondents also failed to controvert the presumption that private transactions have been fair and regular.[24] Furthermore, Narcisa, in fact did not deny that she executed an Affidavit allowing spouses Wilfredo and Flordeliza Flora to construct a firewall between the two-storey duplex and her house sometime in 1976. The duplex was made of strong materials, the roofing being galvanized sheets. While the deed of sale between Tomas and Narcisa was never registered nor annotated on the title, respondents had knowledge of the possession of petitioners of the northern half portion of the property. Obviously, respondents recognized the ownership of Tomas, petitioners predecessor-in-interest.

Respondents belatedly claimed that only P5,000.00 out of the P10,500.00 consideration was paid. Both the Agreement of Purchase and Sale and the Deed of Absolute Sale state that said consideration was paid in full. Moreover, the presumption is that there was sufficient consideration for a written contract.[25] The property being conjugal, upon the death of Patricio Prado, Sr., one-half of the subject property was automatically reserved to the surviving spouse, Narcisa, as her share in the conjugal partnership. Particios rights to the other half, in turn, were transmitted upon his death to his heirs, which includes his widow Narcisa, who is entitled to the same share as that of each of the legitimate children. Thus, as a result of the death of Patricio, a regime of co-ownership arose between Narcisa and the other heirs in relation to the property. The remaining one-half was transmitted to his heirs by intestate succession. By the law on intestate succession, his six children and Narcisa Prado inherited the same at one-seventh (1/7) each pro indiviso.[26]Inasmuch as Narcisa inherited one-seventh (1/7) of her husband's conjugal share in the said property and is the owner of one-half (1/2) thereof as her conjugal share, she owns a total of 9/14 of the subject property. Hence, Narcisa could validly convey her total undivided share in the entire property to Tomas. Narcisa and her children are deemed co-owners of the subject property. Neither can the respondents invoke the proscription of encumbering the property within 25 years from acquisition. In Sarmiento, et al. v. Salud, et al.,[27] it was held that: xxx The condition that the appellees Sarmiento spouses could not resell the property except to the Peoples Homesite and Housing Corporation (PHHC for short) within the next 25 years after appellees purchasing the lot is manifestly a condition in favor of the PHHC, and not one in favor of the Sarmiento spouses. The condition conferred no actionable right on appellees herein, since it operated as a restriction upon their jus disponendi of the property they bought, and thus limited their right of ownership. It follows that on the assumption that the mortgage to appellee Salud and the foreclosure sale violated the condition in the Sarmiento contract, only the PHHC was entitled to invoke the condition aforementioned, and not the Sarmientos. The validity or invalidity of the sheriff's foreclosure sale to appellant Salud thus depended exclusively on the PHHC; the latter could attack the sale as violative of its right of exclusive reacquisition; but it (PHHC) also could waive the condition and treat the sale as good, in which event, the sale can not be assailed for breach of the condition aforestated. Finally, no particular portion of the property could be identified as yet and delineated as the object of the sale considering that the property had not yet been partitioned in accordance with the Rules of Court.[28] While Narcisa could validly sell one half of the subject property, her share being 9/14 of the same, she could not have particularly conveyed the northern portion thereof before the partition, the terms of which was still to be determined by the parties before the trial court. WHEREFORE, the Decision of the Court of Appeals on October 3, 2002, as well as the Resolution dated January 14, 2003 is PARTLY AFFIRMED subject to the following MODIFICATIONS: 1) Narcisa Prado is entitled to 9/14 of the residential land consisting of 552.20 square meters, more or less, situated at 19th Avenue, Murphy, Quezon City and covered by Transfer Certificate of Title No. 71344; 2) the sale of the undivided one half portion thereof by Narcisa Prado in favor of Tomas Calpatura, Sr. is valid.

Furthermore, the case is REMANDED to the court of origin, only for the purpose of determining the specific portion being conveyed in favor of Tomas Calpatura, Sr. pursuant to the partition that will be agreed upon by the respondents. SO ORDERED. Davide, Jr., C.J., Panganiban, Carpio, and Azcuna, JJ., concur.

De Borja v Vda de Borja 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, defendantappellant. L-28040 Pelaez, Jalandoni & Jamir for administrator-appellee. Quiogue & Quiogue for appellee Matilde de Borja. Andres Matias for appellee Cayetano de Borja. Sevilla & Aquino for appellant. L-28568 Sevilla & Aquino for special administratrix-appellee.

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

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

Case No. L-28568 is an appeal by administrator Jose Borja from the disapproval of the same compromise agreement by the Court of First Instance of Nueva Ecija, Branch II, in its Special Proceeding No. 832, entitled, "Testate Estate of Francisco de Borja, Tasiana O. Vda. de de Borja, Special Administratrix". And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision of the Court of First Instance of Rizal, Branch X, in its Civil Case No. 7452, declaring the Hacienda Jalajala Poblacion, which is the main object of the aforesaid compromise agreement, as the separate and exclusive property of the late Francisco de Borja and not a conjugal asset of the community with his first wife, Josefa Tangco, and that said hacienda pertains exclusively to his testate estate, which is under administrator in Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija, Branch II. It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6 October 1940, filed a petition for the probate of her will which was docketed as Special Proceeding No. R7866 of the Court of First Instance of Rizal, Branch I. The will was probated on 2 April 1941. In 1946, Francisco de Borja was appointed executor and administrator: in 1952, their son, Jose de Borja, was appointed co-administrator. When Francisco died, on 14 April 1954, Jose became the sole administrator of the testate estate of his mother, Josefa Tangco. While a widower Francisco de Borja allegedly took unto himself a second wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana instituted testate proceedings in the Court of First Instance of Nueva Ecija, where, in 1955, she was appointed special administratrix. The validity of Tasiana's marriage to Francisco was questioned in said proceeding. The relationship between the children of the first marriage and Tasiana Ongsingco has been plagued with several court suits and counter-suits; including the three cases at bar, some eighteen (18) cases remain pending determination in the courts. The testate estate of Josefa Tangco alone has been unsettled for more than a quarter of a century. In order to put an end to all these litigations, a compromise agreement was entered into on 12 October 1963, 2 by and between "[T]he heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco," and "[T]he heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr." The terms and conditions of the compromise agreement are as follows:

AGREEMENT

THIS AGREEMENT made and entered into by and between The heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco, AND The heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr. WITNESSETH THAT it is the mutual desire of all the parties herein terminate and settle, with finality, the various court litigations, controversies, claims, counterclaims, etc., between them in connection with the administration, settlement, partition, adjudication and distribution of the assets as well as liabilities of the estates of Francisco de Borja and Josefa Tangco, first spouse of Francisco de Borja. THAT with this end in view, the parties herein have agreed voluntarily and without any reservations to enter into and execute this agreement under the following terms and conditions: 1. That the parties agree to sell the Poblacion portion of the Jalajala properties situated in Jalajala, Rizal, presently under administration in the Testate Estate of Josefa Tangco (Sp. Proc. No. 7866, Rizal), more specifically described as follows: Linda al Norte con el Rio Puwang que la separa de la jurisdiccion del Municipio de Pililla de la Provincia de Rizal, y con el pico del Monte Zambrano; al Oeste con Laguna de Bay; por el Sur con los herederos de Marcelo de Borja; y por el Este con los terrenos de la Familia Maronilla with a segregated area of approximately 1,313 hectares at the amount of P0.30 per square meter. 2. That Jose de Borja agrees and obligates himself to pay Tasiana Ongsingco Vda. de de Borja the total amount of Eight Hundred Thousand Pesos (P800,000) Philippine Currency, in cash, which represent P200,000 as his share in the payment and P600,000 as pro-rata shares of the heirs Crisanto, Cayetano and Matilde, all surnamed de Borja and this shall be considered as full and complete payment and settlement of her hereditary share in the estate of the late Francisco de Borja as well as the estate of Josefa Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp. Proc. No. 7866-Rizal, respectively, and to any properties bequeathed or devised in her favor by the late Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for consideration or otherwise. The funds for this payment shall be taken from and shall depend upon the receipt of full payment of the proceeds of the sale of Jalajala, "Poblacion." 3. That Tasiana Ongsingco Vda. de de Borja hereby assumes payment of that particular obligation incurred by the late Francisco de Borja in favor of the Rehabilitation Finance Corporation, now Development Bank of the Philippines,

amounting to approximately P30,000.00 and also assumes payment of her 1/5 share of the Estate and Inheritance taxes on the Estate of the late Francisco de Borja or the sum of P3,500.00, more or less, which shall be deducted by the buyer of Jalajala, "Poblacion" from the payment to be made to Tasiana Ongsingco Vda. de Borja under paragraph 2 of this Agreement and paid directly to the Development Bank of the Philippines and the heirs-children of Francisco de Borja. 4. Thereafter, the buyer of Jalajala "Poblacion" is hereby authorized to pay directly to Tasiana Ongsingco Vda. de de Borja the balance of the payment due her under paragraph 2 of this Agreement (approximately P766,500.00) and issue in the name of Tasiana Ongsingco Vda. de de Borja, corresponding certified checks/treasury warrants, who, in turn, will issue the corresponding receipt to Jose de Borja. 5. In consideration of above payment to Tasiana Ongsingco Vda. de de Borja, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco, and Tasiana Ongsingco Vda. de de Borja, for themselves and for their heirs, successors, executors, administrators, and assigns, hereby forever mutually renounce, withdraw, waive, remise, release and discharge any and all manner of action or actions, cause or causes of action, suits, debts, sum or sums of money, accounts, damages, claims and demands whatsoever, in law or in equity, which they ever had, or now have or may have against each other, more specifically Sp. Proceedings Nos. 7866 and 1955, CFI-Rizal, and Sp. Proc. No. 832-Nueva Ecija, Civil Case No. 3033, CFI Nueva Ecija and Civil Case No. 7452-CFI, Rizal, as well as the case filed against Manuel Quijal for perjury with the Provincial Fiscal of Rizal, the intention being to completely, absolutely and finally release each other, their heirs, successors, and assigns, from any and all liability, arising wholly or partially, directly or indirectly, from the administration, settlement, and distribution of the assets as well as liabilities of the estates of Francisco de Borja and Josefa Tangco, first spouse of Francisco de Borja, and lastly, Tasiana Ongsingco Vda. de de Borja expressly and specifically renounce absolutely her rights as heir over any hereditary share in the estate of Francisco de Borja. 6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the payment under paragraph 4 hereof, shall deliver to the heir Jose de Borja all the papers, titles and documents belonging to Francisco de Borja which are in her possession and said heir Jose de Borja shall issue in turn the corresponding receive thereof. 7. That this agreement shall take effect only upon the fulfillment of the sale of the properties mentioned under paragraph 1 of this agreement and upon receipt of the total and full payment of the proceeds of the sale of the Jalajala property "Poblacion", otherwise, the non-fulfillment of the said sale will render this instrument NULL AND VOID AND WITHOUT EFFECT THEREAFTER. IN WITNESS WHEREOF, the parties hereto have her unto set their hands in the City of Manila, Philippines, the 12th of October, 1963. On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12 October 1963 to the Court of First Instance of Rizal, in Special Proceeding No. R-7866; and again, on 8 August 1966, to the Court of First Instance of Nueva Ecija, in Special Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja opposed in both instances. The Rizal court approved the compromise agreement, but the Nueva Ecija court declared it void and unenforceable. Special administratrix Tasiana Ongsingco Vda. de de Borja appealed the Rizal Court's order of approval (now Supreme Court G.R.

case No. L-28040), while administrator Jose de Borja appealed the order of disapproval (G.R. case No. L-28568) by the Court of First Instance of Nueva Ecija. The genuineness and due execution of the compromised agreement of 12 October 1963 is not disputed, but its validity is, nevertheless, attacked by Tasiana Ongsingco on the ground that: (1) the heirs cannot enter into such kind of agreement without first probating the will of Francisco de Borja; (2) that the same involves a compromise on the validity of the marriage between Francisco de Borja and Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to have force and effect. In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on this Court's decision in Guevara vs. Guevara. 74 Phil. 479, wherein the Court's majority held the view that the presentation of a will for probate is mandatory and that the settlement and distribution of an estate on the basis of intestacy when the decedent left a will, is against the law and public policy. It is likewise pointed out by appellant Tasiana Ongsingco that Section 1 of Rule 74 of the Revised Rules explicitly conditions the validity of an extrajudicial settlement of a decedent's estate by agreement between heirs, upon the facts that "(if) the decedentleft no will and no debts, and the heirs are all of age, or the minors are represented by their judicial and legal representatives ..." The will of Francisco de Borja having been submitted to the Nueva Ecija Court and still pending probate when the 1963 agreement was made, those circumstances, it is argued, bar the validity of the agreement. Upon the other hand, in claiming the validity of the compromise agreement, Jose de Borja stresses that at the time it was entered into, on 12 October 1963, the governing provision was Section 1, Rule 74 of the original Rules of Court of 1940, which allowed the extrajudicial settlement of the estate of a deceased person regardless of whether he left a will or not. He also relies on the dissenting opinion of Justice Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was expressed the view that if the parties have already divided the estate in accordance with a decedent's will, the probate of the will is a useless ceremony; and if they have divided the estate in a different manner, the probate of the will is worse than useless. The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar. This is apparent from an examination of the terms of the agreement between Jose de Borja and Tasiana Ongsingco. Paragraph 2 of said agreement specifically stipulates that the sum of P800,000 payable to Tasiana Ongsingco — shall be considered as full — complete payment — settlement of her hereditary share in the estate of the late Francisco de Borja as well as the estate of Josefa Tangco, ... and to any properties bequeathed or devised in her favor by the late Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for consideration or otherwise. This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the cases at bar. There was here no attempt to settle or distribute the estate of Francisco de Borja among the heirs thereto before the probate of his will. The clear object of the contract was merely the conveyance by Tasiana Ongsingco of any and all her individual share and interest, actual or eventual in the estate of Francisco de Borja and Josefa Tangco. There is no stipulation as to any other claimant, creditor or legatee. And as a hereditary share in a decedent's estate is transmitted or vested immediately from the moment of the death of such causante or predecessor in interest (Civil Code of the Philippines, Art. 777) 3 there is no legal bar to a successor (with requisite contracting capacity) disposing of her or his hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate. 4 Of course, the effect of such alienation is to be deemed limited to what is ultimately adjudicated to the vendor heir. However, the

aleatory character of the contract does not affect the validity of the transaction; neither does the coetaneous agreement that the numerous litigations between the parties (the approving order of the Rizal Court enumerates fourteen of them, Rec. App. pp. 79-82) are to be considered settled and should be dismissed, although such stipulation, as noted by the Rizal Court, gives the contract the character of a compromise that the law favors, for obvious reasons, if only because it serves to avoid a multiplicity of suits.

It is likewise worthy of note in this connection that as the surviving spouse of Francisco de Borja, Tasiana Ongsingco was his compulsory heir under article 995 et seq. of the present Civil Code. Wherefore, barring unworthiness or valid disinheritance, her successional interest existed independent of Francisco de Borja's last will and testament and would exist even if such will were not probated at all. Thus, the prerequisite of a previous probate of the will, as established in the Guevara and analogous cases, can not apply to the case of Tasiana Ongsingco Vda. de de Borja. Since the compromise contract Annex A was entered into by and between "Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco" on the one hand, and on the other, "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", it is clear that the transaction was binding on both in their individual capacities, upon the perfection of the contract, even without previous authority of the Court to enter into the same. The only difference between an extrajudicial compromise and one that is submitted and approved by the Court, is that the latter can be enforced by execution proceedings. Art. 2037 of the Civil Code is explicit on the point: 8. Art. 2037. A compromise has upon the parties the effect and authority of res judicata; but there shall be no execution except in compliance with a judicial compromise. It is argued by Tasiana Ongsingco that while the agreement Annex A expressed no definite period for its performance, the same was intended to have a resolutory period of 60 days for its effectiveness. In support of such contention, it is averred that such a limit was expressly stipulated in an agreement in similar terms entered into by said Ongsingco with the brothers and sister of Jose de Borja, to wit, Crisanto, Matilde and Cayetano, all surnamed de Borja, except that the consideration was fixed at P600,000 (Opposition, Annex/Rec. of Appeal, L-28040, pp. 39- 46) and which contained the following clause: III. That this agreement shall take effect only upon the consummation of the sale of the property mentioned herein and upon receipt of the total and full payment of the proceeds of the sale by the herein owner heirs-children of Francisco de Borja, namely, Crisanto, Cayetano and Matilde, all surnamed de Borja; Provided that if no sale of the said property mentioned herein is consummated, or the non-receipt of the purchase price thereof by the said owners within the period of sixty (60) days from the date hereof, this agreement will become null and void and of no further effect. Ongsingco's argument loses validity when it is considered that Jose de Borja was not a party to this particular contract (Annex 1), and that the same appears not to have been finalized, since it bears no date, the day being left blank "this — day of October 1963"; and while signed by the parties, it was not notarized, although plainly intended to be so done, since it carries a proposed notarial ratification clause. Furthermore, the compromise contract with Jose de Borja (Annex A), provides in its par. 2 heretofore transcribed that of the total consideration of P800, 000 to be paid to Ongsingco, P600,000 represent the "prorata share of the heirs Crisanto, Cayetano and Matilde all surnamed de Borja" which corresponds to the consideration of P600,000 recited in Annex 1, and that circumstance is

proof that the duly notarized contract entered into wit Jose de Borja under date 12 October 1963 (Annex A), was designed to absorb and supersede the separate unformalize agreement with the other three Borja heirs. Hence, the 60 days resolutory term in the contract with the latter (Annex 1) not being repeated in Annex A, can not apply to the formal compromise with Jose de Borja. It is moreover manifest that the stipulation that the sale of the Hacienda de Jalajala was to be made within sixty days from the date of the agreement with Jose de Borja's co-heirs (Annex 1) was plainly omitted in Annex A as improper and ineffective, since the Hacienda de Jalajala (Poblacion) that was to be sold to raise the P800,000 to be paid to Ongsingco for her share formed part of the estate of Francisco de Borja and could not be sold until authorized by the Probate Court. The Court of First Instance of Rizal so understood it, and in approving the compromise it fixed a term of 120 days counted from the finality of the order now under appeal, for the carrying out by the parties for the terms of the contract. This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction to approve the compromise with Jose de Borja (Annex A) because Tasiana Ongsingco was not an heir in the estate of Josefa Tangco pending settlement in the Rizal Court, but she was an heir of Francisco de Borja, whose estate was the object of Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija. This circumstance is irrelevant, since what was sold by Tasiana Ongsingco was only her eventual share in the estate of her late husband, not the estate itself; and as already shown, that eventual share she owned from the time of Francisco's death and the Court of Nueva Ecija could not bar her selling it. As owner of her undivided hereditary share, Tasiana could dispose of it in favor of whomsoever she chose. Such alienation is expressly recognized and provided for by article 1088 of the present Civil Code: Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale of the vendor. If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof to a coheir could not be forbidden. Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is void because it amounts to a compromise as to her status and marriage with the late Francisco de Borja. The point is without merit, for the very opening paragraph of the agreement with Jose de Borja (Annex "A") describes her as "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", which is in itself definite admission of her civil status. There is nothing in the text of the agreement that would show that this recognition of Ongsingco's status as the surviving spouse of Francisco de Borja was only made in consideration of the cession of her hereditary rights. It is finally charged by appellant Ongsingco, as well as by the Court of First Instance of Nueva Ecija in its order of 21 September 1964, in Special Proceedings No. 832 (Amended Record on Appeal in L-28568, page 157), that the compromise agreement of 13 October 1963 (Annex "A") had been abandoned, as shown by the fact that, after its execution, the Court of First Instance of Nueva Ecija, in its order of 21 September 1964, had declared that "no amicable settlement had been arrived at by the parties", and that Jose de Borja himself, in a motion of 17 June 1964, had stated that the proposed amicable settlement "had failed to materialize". It is difficult to believe, however, that the amicable settlement referred to in the order and motion above-mentioned was the compromise agreement of 13 October 1963, which already had been formally signed and executed by the parties and duly notarized. What the record discloses is that

some time after its formalization, Ongsingco had unilaterally attempted to back out from the compromise agreement, pleading various reasons restated in the opposition to the Court's approval of Annex "A" (Record on Appeal, L-20840, page 23): that the same was invalid because of the lapse of the allegedly intended resolutory period of 60 days and because the contract was not preceded by the probate of Francisco de Borja's will, as required by this Court's Guevarra vs. Guevara ruling; that Annex "A" involved a compromise affecting Ongsingco's status as wife and widow of Francisco de Borja, etc., all of which objections have been already discussed. It was natural that in view of the widow's attitude, Jose de Borja should attempt to reach a new settlement or novatory agreement before seeking judicial sanction and enforcement of Annex "A", since the latter step might ultimately entail a longer delay in attaining final remedy. That the attempt to reach another settlement failed is apparent from the letter of Ongsingco's counsel to Jose de Borja quoted in pages 35-36 of the brief for appellant Ongsingco in G.R. No. 28040; and it is more than probable that the order of 21 September 1964 and the motion of 17 June 1964 referred to the failure of the parties' quest for a more satisfactory compromise. But the inability to reach a novatory accord can not invalidate the original compromise (Annex "A") and justifies the act of Jose de Borja in finally seeking a court order for its approval and enforcement from the Court of First Instance of Rizal, which, as heretofore described, decreed that the agreement be ultimately performed within 120 days from the finality of the order, now under appeal. We conclude that in so doing, the Rizal court acted in accordance with law, and, therefore, its order should be upheld, while the contrary resolution of the Court of First Instance of Nueva Ecija should be, and is, reversed. In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has affected her unfavorably, in that while the purchasing power of the agreed price of P800,000 has diminished, the value of the Jalajala property has increased. But the fact is that her delay in receiving the payment of the agreed price for her hereditary interest was primarily due to her attempts to nullify the agreement (Annex "A") she had formally entered into with the advice of her counsel, Attorney Panaguiton. And as to the devaluation de facto of our currency, what We said in Dizon Rivera vs. Dizon, L-24561, 30 June 1970, 33 SCRA 554, that "estates would never be settled if there were to be a revaluation with every subsequent fluctuation in the values of currency and properties of the estate", is particularly opposite in the present case. Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de Jalajala (Poblacion), concededly acquired by Francisco de Borja during his marriage to his first wife, Josefa Tangco, is the husband's private property (as contended by his second spouse, Tasiana Ongsingco), or whether it forms part of the conjugal (ganancial) partnership with Josefa Tangco. The Court of First Instance of Rizal (Judge Herminio Mariano, presiding) declared that there was adequate evidence to overcome the presumption in favor of its conjugal character established by Article 160 of the Civil Code. We are of the opinion that this question as between Tasiana Ongsingco and Jose de Borja has become moot and academic, in view of the conclusion reached by this Court in the two preceding cases (G.R. No. L-28568), upholding as valid the cession of Tasiana Ongsingco's eventual share in the estate of her late husband, Francisco de Borja, for the sum of P800,000 with the accompanying reciprocal quit-claims between the parties. But as the question may affect the rights of possible creditors and legatees, its resolution is still imperative. It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been originally acquired jointly by Francisco de Borja, Bernardo de Borja and Marcelo de Borja and their title thereto was duly registered in their names as co-owners in Land Registration Case No. 528 of the province of Rizal, G.L.R.O. Rec. No. 26403 (De Barjo vs. Jugo, 54 Phil. 465). Subsequently, in 1931, the Hacienda

was partitioned among the co-owners: the Punta section went to Marcelo de Borja; the Bagombong section to Bernardo de Borja, and the part in Jalajala proper (Poblacion) corresponded to Francisco de Borja (V. De Borja vs. De Borja 101 Phil. 911, 932). The lot allotted to Francisco was described as — Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E. Hermogena Romero; S. Heirs of Marcelo de Borja O. Laguna de Bay; containing an area of 13,488,870 sq. m. more or less, assessed at P297,410. (Record on Appeal, pages 7 and 105) On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate Estate of Francisco de Borja, instituted a complaint in the Court of First Instance of Rizal (Civil Case No. 7452) against Jose de Borja, in his capacity as Administrator of Josefa Tangco (Francisco de Borja's first wife), seeking to have the Hacienda above described declared exclusive private property of Francisco, while in his answer defendant (now appellant) Jose de Borja claimed that it was conjugal property of his parents (Francisco de Borja and Josefa Tangco), conformably to the presumption established by Article 160 of the Philippine Civil Code (reproducing Article 1407 of the Civil Code of 1889), to the effect that: Art. 160. All property of the marriage is presumed to belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband or to the wife. Defendant Jose de Borja further counterclaimed for damages, compensatory, moral and exemplary, as well as for attorney's fees. After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held that the plaintiff had adduced sufficient evidence to rebut the presumption, and declared the Hacienda de Jalajala (Poblacion) to be the exclusive private property of the late Francisco de Borja, and his Administratrix, Tasiana Ongsingco Vda. de Borja, to be entitled to its possession. Defendant Jose de Borja then appealed to this Court. The evidence reveals, and the appealed order admits, that the character of the Hacienda in question as owned by the conjugal partnership De Borja-Tangco was solemnly admitted by the late Francisco de Borja no less than two times: first, in the Reamended Inventory that, as executor of the estate of his deceased wife Josefa Tangco, he filed in the Special Proceedings No. 7866 of the Court of First Instance of Rizal on 23 July 1953 (Exhibit "2"); and again, in the Reamended Accounting of the same date, also filed in the proceedings aforesaid (Exhibit "7"). Similarly, the plaintiff Tasiana O. Vda. de Borja, herself, as oppositor in the Estate of Josefa Tangco, submitted therein an inventory dated 7 September 1954 (Exhibit "3") listing the Jalajala property among the "Conjugal Properties of the Spouses Francisco de Borja and Josefa Tangco". And once more, Tasiana Ongsingco, as administratrix of the Estate of Francisco de Borja, in Special Proceedings No. 832 of the Court of First Instance of Nueva Ecija, submitted therein in December, 1955, an inventory wherein she listed the Jalajala Hacienda under the heading "Conjugal Property of the Deceased Spouses Francisco de Borja and Josefa Tangco, which are in the possession of the Administrator of the Testate Estate of the Deceased Josefa Tangco in Special Proceedings No. 7866 of the Court of First Instance of Rizal" (Exhibit "4"). Notwithstanding the four statements aforesaid, and the fact that they are plain admissions against interest made by both Francisco de Borja and the Administratrix of his estate, in the course of judicial proceedings in the Rizal and Nueva Ecija Courts, supporting the legal presumption in favor of

the conjugal community, the Court below declared that the Hacienda de Jalajala (Poblacion) was not conjugal property, but the private exclusive property of the late Francisco de Borja. It did so on the strength of the following evidences: (a) the sworn statement by Francis de Borja on 6 August 1951 (Exhibit "F") that — He tomado possession del pedazo de terreno ya delimitado (equivalente a 1/4 parte, 337 hectareas) adjunto a mi terreno personal y exclusivo (Poblacion de Jalajala, Rizal). and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire Hacienda had been bought at a foreclosure sale for P40,100.00, of which amount P25,100 was contributed by Bernardo de Borja and P15,000. by Marcelo de Borja; that upon receipt of a subsequent demand from the provincial treasurer for realty taxes the sum of P17,000, Marcelo told his brother Bernardo that Francisco (son of Marcelo) wanted also to be a co-owner, and upon Bernardo's assent to the proposal, Marcelo issue a check for P17,000.00 to pay the back taxes and said that the amount would represent Francisco's contribution in the purchase of the Hacienda. The witness further testified that — Marcelo de Borja said that that money was entrusted to him by Francisco de Borja when he was still a bachelor and which he derived from his business transactions. (Hearing, 2 February 1965, t.s.n., pages 13-15) (Emphasis supplied) The Court below, reasoning that not only Francisco's sworn statement overweighed the admissions in the inventories relied upon by defendant-appellant Jose de Borja since probate courts can not finally determine questions of ownership of inventoried property, but that the testimony of Gregorio de Borja showed that Francisco de Borja acquired his share of the original Hacienda with his private funds, for which reason that share can not be regarded as conjugal partnership property, but as exclusive property of the buyer, pursuant to Article 1396(4) of Civil Code of 1889 and Article 148(4) of the Civil Code of the Philippines. The following shall be the exclusive property of each spouse: xxx xxx xxx (4) That which is purchased with exclusive money of the wife or of the husband. We find the conclusions of the lower court to be untenable. In the first place, witness Gregorio de Borja's testimony as to the source of the money paid by Francisco for his share was plain hearsay, hence inadmissible and of no probative value, since he was merely repeating what Marcelo de Borja had told him (Gregorio). There is no way of ascertaining the truth of the statement, since both Marcelo and Francisco de Borja were already dead when Gregorio testified. In addition, the statement itself is improbable, since there was no need or occasion for Marcelo de Borja to explain to Gregorio how and when Francisco de Borja had earned the P17,000.00 entrusted to Marcelo. A ring of artificiality is clearly discernible in this portion of Gregorio's testimony. As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante, page 14) does not clearly demonstrate that the "mi terreno personal y exclusivo (Poblacion de Jalajala, Rizal) " refers precisely to the Hacienda in question. The inventories (Exhibits 3 and 4) disclose that there were two real properties in Jalajala owned by Francisco de Borja, one of 72.038 sq. m., assessed at P44,600, and a much bigger one of 1,357.260.70 sq. m., which is evidently the Hacienda de Jalajala (Poblacion). To which of these lands did the affidavit of Francisco de Borja (Exhibit "F") refer to? In

addition, Francisco's characterization of the land as "mi terreno personal y exclusivo" is plainly selfserving, 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 selfserving statement of Francisco (Exhibit "F"). Plainly, the legal presumption in favor of the conjugal character of the Hacienda de Jalajala (Poblacion) now in dispute has not been rebutted but actually confirmed by proof. Hence, the appealed order should be reversed and the Hacienda de Jalajala (Poblacion) declared property of the conjugal partnership of Francisco de Borja and Josefa Tangco. No error having been assigned against the ruling of the lower court that claims for damages should be ventilated in the corresponding special proceedings for the settlement of the estates of the deceased, the same requires no pro announcement from this Court. IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance of Rizal in Case No. L-28040 is hereby affirmed; while those involved in Cases Nos. L-28568 and L-28611 are reversed and set aside. Costs against the appellant Tasiana Ongsingco Vda. de Borja in all three (3) cases. Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio and Esguerra, JJ., concur. Fernando, J., took no part.

Bailon-Casilao v CA G.R. No. 78178 April 15, 1988 DELIA BAILON-CASILAO, LUZ PAULINO-ANG, EMMA PAULINO-YBANEZ, NILDA PAULINOTOLENTINO, and SABINA BAILON, petitioners, vs. THE HONORABLE COURT OF APPEALS and CELESTINO AFABLE, respondents. Veronico E. Rubio for petitioners. Mario G. Fortes for private-respondent.

CORTES, J.: The fate of petitioners' claim over a parcel of land rests ultimately on a determination of whether or not said petitioners are chargeable with such laches as may effectively bar their present action.

The petitioners herein filed a case for recovery of property and damages with notice of lis pendens on March 13, 1981 against the defendant and herein private respondent, Celestino Afable. The parcel of land involved in this case, with an area of 48,849 square meters, is covered by Original Certificate of Title No. 1771 issued on June 12, 1931, in the names of Rosalia, Gaudencio, Sabina Bernabe, Nenita and Delia, all surnamed Bailon, as co-owners, each with a 1/6 share. Gaudencio and Nenita are now dead, the latter being represented in this case by her children. Luz, Emma and Nilda. Bernabe went to China in 1931 and had not been heard from since then [Decision of the Court of Appeals, Rollo, p. 39]. It appears that on August 23, 1948, Rosalia Bailon and Gaudencio Bailon sold a portion of the said land consisting of 16,283 square meters to Donato Delgado. On May 13, 1949, Rosalia Bailon alone sold the remainder of the land consisting of 32,566 square meters to Ponciana V. Aresgado de Lanuza. On the same date, Lanuza acquired from Delgado the 16,283 square meters of land which the latter had earlier acquired from Rosalia and Gaudencio. On December 3, 1975, John Lanuza, acting under a special power of attorney given by his wife, Ponciana V. Aresgado de Lanuza, sold the two parcels of land to Celestino Afable, Sr. In all these transfers, it was stated in the deeds of sale that the land was not registered under the provisions of Act No. 496 when the fact is that it is. It appears that said land had been successively declared for taxation first, in the name of Ciriaca Dellamas, mother of the registered co-owners, then in the name of Rosalia Bailon in 1924, then in that of Donato Delgado in 1936, then in Ponciana de Lanuza's name in 1962 and finally in the name of Celestino Afable, Sr. in 1983. In his answer to the complaint filed by the herein petitioners, Afable claimed that he had acquired the land in question through prescription and contended that the petitioners were guilty of laches.He later filed a third-party complaint against Rosalia Bailon for damages allegedly suffered as a result of the sale to him of the land. After trial, the lower court rendered a decision: 1. Finding and declaring Celestino Afable, a co-owner of the land described in paragraph III of the complaint having validly bought the two-sixth (2/6) respective undivided shares of Rosalia Bailon and Gaudencio Bailon; 2. Finding and declaring the following as pro-indiviso co-owners, having 1/6 share each, of the property described in paragraph III of the complaint, to wit: a. Sabina Bailon b. Bernabe Bailon c. Heirs of Nenita Bailon-Paulino d. Delia Bailon-Casilao; 3. Ordering the segregation of the undivided interests in the property in order to terminate co-ownership to be conducted by any Geodetic Engineer selected by the parties to delineate the specific part of each of the co-owners. 4. Ordering the defendant to restore the possession of the plaintiffs respective shares as well as all attributes of absolute dominion;

5. Ordering the defendant to pay the following: a. P5,000.00 as damages; b. P2,000.00 as attorney's fees and; c. to pay the costs. [Decision of the Trial Court, Rollo, p. 37-38]. On appeal, the respondent Court of Appeals affirmed the decision of the lower court insofar as it held that prescription does not he against plaintiffs-appellees because they are co-owners of the original vendors. However, the appellate court declared that, although registered property cannot be lost by prescription, nevertheless, an action to recover it may be barred by laches, citing the ruling in Mejia de Lucaz v. Gamponia[100 Phil. 277 (1956)]. Accordingly, it held the petitioners guilty of laches and dismissed their complaint. Hence, this petition for review on certiorari of the decision of the Court of Appeals. The principal issue to be resolved in this case concerns the applicability of the equitable doctrine of laches. Initially though, a determination of the effect of a sale by one or more co-owners of the entire property held in common without the consent of all the co-owners and of the appropriate remedy of the aggrieved co-owners is required. The rights of a co-owner of a certain property are clearly specified in Article 493 of the Civil Code.Thus: Art. 493. Each co-owner shall have the full ownership of his part and of the acts and benefits pertaining thereto, and he may therefore alienate assign or mortgage it and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. [Emphasis supplied.] As early as 1923, this Court has ruled that even if a co-owner sells the whole property as his, the sale will affect only his own share but not those of the other co-owners who did not consent to the sale [Punsalan v. Boon Liat 44 Phil. 320 (1923)]. This is because under the aforementioned codal provision, the sale or other disposition affects only his undivided share and the transferee gets only what would correspond to his grantor in the partition of the thing owned in common.[Ramirez v. Bautista, 14 Phil. 528 (1909)]. Consequently, by virtue of the sales made by Rosalia and Gaudencio Bailon which are valid with respect to their proportionate shares, and the subsequent transfers which culminated in the sale to private respondent Celestino Afable, the said Afable thereby became a coowner of the disputed parcel of land as correctly held by the lower court since the sales produced the effect of substituting the buyers in the enjoyment thereof [Mainit v. Bandoy, 14 Phil. 730 (1910)]. From the foregoing, it may be deduced that since a co-owner is entitled to sell his undivided share, a sale of the entire property by one co-owner without the consent of the other co-owners is not null and void. However, only the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of the property. The proper action in cases like this is not for the nullification of the sale or for the recovery of possession of the thing owned in common from the third person who substituted the co-owner or co-

owners who alienated their shares, but the DIVISION of the common property as if it continued to remain in the possession of the co-owners who possessed and administered it [Mainit v. Bandoy, supra.] Thus, it is now settled that the appropriate recourse of co-owners in cases where their consent were not secured in a sale of the entire property as well as in a sale merely of the undivided shares of some of the co-owners is an action. for PARTITION under Rule 69 of the Revised Rules of Court. Neither recovery of possession nor restitution can be granted since the defendant buyers are legitimate proprietors and possessors in joint ownership of the common property claimed [Ramirez v. Bautista, supra]. As to the action for petition, neither prescription nor laches can be invoked. In the light of the attendant circumstances, defendant-appellee's defense of prescription is a vain proposition. Pursuant to Article 494 of the Civil Code, '(n)o co-owner shall be obliged to remain in the co-ownership. Such co-owner may demand at anytime the partition of the thing owned in common, insofar as his share is concerned.' [Emphasis supplied.] In Budiong v. Bondoc [G.R. No. L-27702, September 9, 1977, 79 SCRA 241, this Court has interpreted said provision of law to mean that the action for partition is imprescriptible or cannot be barred by prescription. For Article 494 of the Civil Code explicitly declares: "No prescription shall lie in favor of a co-owner or co- heir so long as he expressly or impliedly recognizes the co-ownership." Furthermore, the disputed parcel of land being registered under the Torrens System, the express provision of Act No. 496 that '(n)o title to registered land in derogation to that of the registered owner shall be acquired by prescription or adverse possession' is squarely applicable. Consequently, prescription will not lie in favor of Afable as against the petitioners who remain the registered owners of the disputed parcel of land. It is argued however, that as to the petitioners Emma, Luz and Nelda who are not the registered coowners but merely represented their deceased mother, the late Nenita Bailon, prescription lies.Respondents bolster their argument by citing a decision of this Court in Pasion v. Pasion [G.R.No. L-15757, May 31, 1961, 2 SCRA 486, 489] holding that "the imprescriptibility of a Torrens title can only be invoked by the person in whose name the title is registered" and that 'one who is not the registered owner of a parcel of land cannot invoke imprescriptibility of action to claim the same.' Reliance on the aforesaid Pasion case is futile. The ruling therein applies only against transferees other than direct issues or heirs or to complete strangers. The rational is clear: If prescription is unavailing against the registered owner, it must be equally unavailing against the latter's hereditary successors, because they merely step into the shoes of the decedent by operation of law (New Civil Code, Article 777; Old Civil Code, Article 657), the title or right undergoing no change by its transmission mortis causa [Atus, et al., v. Nunez, et al., 97 Phil. 762, 764]. The latest pronouncement of this Court in Umbay v. Alecha [G. R. No. 67284, March 18, 1985, 135 SCRA 427, 429], which was promulgated subsequent to the Pasion case reiterated the Atus doctrine. Thus: Prescription is unavailing not only against the registered owner but also against his hereditary successors, because they merely step into the shoes of the decedent by

operation of law and are merely the continuation of the personality of their predecessor-in-interest. [Barcelona v. Barcelona, 100 Phil. 251, 257]. Laches is likewise unavailing as a shield against the action of herein petitioners. Well-stated in this jurisdiction are the four basic elements of laches, namely: (1) conduct on the part of the defendant or of one under whom he claims, giving rise to the situation of which complaint is made and for which the complainant seeks a remedy; (2) delay in asserting the corporations complainant's rights, the complainant having had knowledge or notice of the defendant's conduct and having been afforded an opportunity to institute suit; (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit; and, (4) injury or prejudice to the defendant in the event relief is accorded to the complainant, or the suit is not held to be barred [Go China Gun, et al. v. Co Cho et al., 96 Phil. 622 (1955)]. While the first and last elements are present in this case, the second and third elements are missing. The second element speaks of delay in asserting the complainant's rights. However, the mere fact of delay is insufficient to constitute, laches. It is required that (1) complainant must have had knowledge of the conduct of defendant or of one under whom he claims and (2) he must have been afforded an opportunity to institute suit. This court has pointed out that laches is not concerned with the mere lapse of time. Thus: Laches has been defined as the failure or neglect, for an unreasonable length of time to do that which by exercising due diligence could or should have been done earlier; it is negligence or omission to assert a right within a reasonable time warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. Tijam, et al., v. Sibonghanoy, G.R. No. L-21450, April 25, 1968, 23 SCRA 29,35; Tendo v. Zamacoma, G.R. No. L-63048, August 7, 1985, 138 SCRA 78, 90]. The doctrine of "laches" or of "stale demands" is based upon grounds of public policy which requires for the peace of society, the discouragement of stale claims and unlike the statute of limitations, isnot a mere question of time but is principally a question of inequity or unfairness of permitting a right or claim to be enforced or asserted," [Tijam v. Sibonghanoy, supra, p. 35]. [Emphasis supplied.] It must be noted that while there was delay in asserting petitioners' rights, such delay was not attended with any knowledge of the sale nor with any opportunity to bring suit. In the first place, petitioners had no notice of the sale made by their eldest sister. It is undisputed that the petitioner co-owners had entrusted the care and management of the parcel of land to Rosalia Bailon who was the oldest among them [TSN, July 27, 1983, p. 14]. In fact, Nicanor Lee, a son of Rosalia, who was presented as a witness by the plaintiffs-petitioners, testified on cross-examination that his mother was only the administrator of the land as she is the eldest and her brothers and sisters were away [TSN, October 5, 1983, p. 15]. Indeed, when Delia Bailon-Casilao left Sorsogon in 1942 after she got married, it was only in 1983 that she returned. Sabina on the other hand, is said to be living in Zamboanga while Bernabe who left for China in 1931 has not been heard from since then. Consequently, when Rosalia, from whom the private respondent derived his title, made the disputed sales covering the entire property, the herein petitioners were unaware thereof. In the second place, they were not afforded an opportunity to bring suit inasmuch as until 1981, they were kept in the dark about the transactions entered into by their sister. It was only when Delia Bailon-Casilao returned to Sorsogon in 1981 that she found out about the sales and immediately, she and her co-petitioners filed the present action for recovery of property. The appellate court thus

erred in holding that 'the petitioners did nothing to show interest in the land." For the administration of the parcel of land was entrusted to the oldest co-owner who was then in possession thereof precisely because the other co-owners cannot attend to such a task as they reside outside of Sorsogon where the land is situated. Her co-owners also allowed her to appropriate the entire produce for herself because it was not even enough for her daily consumption [TSN, October 5, 1983, pp. 17-18]. And since petitioner was the one receiving the produce, it is but natural that she was the one to take charge of paying the real estate taxes. Now, if knowledge of the sale by Rosalia was conveyed to the petitioners only later, they cannot be faulted for the acts of their co-owner who failed to live up to the trust and confidence expected of her. In view of the lack of knowledge by the petitioners of the conduct of Rosalia in selling the land without their consent in 1975 and the absence of any opportunity to institute the proper action until 1981, laches may not be asserted against the petitioners. The third element of laches is likewise absent. There was no lack of knowledge or notice on the part of the defendant that the complainants would assert the right on which they base the suit. On the contrary, private respondent is guilty of bad faith in purchasing the property as he knew that the property was co-owned by six persons and yet, there were only two signatories to the deeds of sale and no special authorization to self was granted to the two sellers by the other co-owners. Even as the land here was misrepresented in the deeds of sale as "unregistered," the truth was that Afable already had notice that the land was titled in the name of six persons by virtue of the Certificate of Title which was already in his possession even before the sale. Such fact is apparent from his testimony before the court a quo: COURT: Q: From whom did you get the certificate of Title? A: When it was mortgaged by Ponciana Aresgado. Q: It was mortgaged to you before you bought it? A: Yes, Your Honor. (TSN, March 5, 1984, p. 12) When crossexamined, he stated: Q: Mr. Witness, the original Certificate of Title was given to you in the year 1974, was it not? A: 1975. Q: In 1975, you already discovered that the title was in the name of several persons, is it not? A: Yes, sir. Q: When you discovered that it is in the name of several persons, you filed a case in court for authority to cancel the title to be transferred in your name, is it not? A: Yes, sir.

Q: And that was denied by the Court of First Instance of Sorsogon because there was ordinary one signatory to the deed of sale instead of six, was it not? A: Not one but two signatories. [Decision of the Regional Trial Court of Sorsogon, Rollo, p. 35] Such actual knowledge of the existence of other co-owners in whose names the lot subject of the sale was registered should have prompted a searching inquiry by Afable considering the well- known rule in this jurisdiction that: ... a person dealing with a registered land has a right to rely upon the face of the Torrens certificate of title and to dispense with the need of inquiring further, except when the party concerned has actual knowledge of facts and circumstances that would impel a reasonably cautions man to make such inquiry. [Gonzales v. IAC and Rural Bank of Pavia, Inc., G.R. No. 69622, January 29, 1988). Moreover, the undisputed fact is that petitioners are relatives of his wife. As a genuine gesture of good faith, he should have contacted the petitioners who were still listed as co-owners in the certificate of title which was already in his possession even before the sale. In failing to exercise even a minimum degree of ordinary prudence required by the situation, he is deemed to have bought the lot at his own risk. Hence any prejudice or injury that may be occasioned to him by such sale must be borne by him. Indeed, aware of the flaws impairing his title, Afable went to the herein petitioner Delia BailonCasilao, asking the latter to sign a document obviously to cure the flaw [TSN, July 27, 1983, p.6]. Later, he even filed a petition in the Court of First Instance to register the title in his name which was denied as aforesaid. It may be gleaned from the foregoing examination of the facts that Celestino Afable is not a buyer in good faith. Laches being an equitable defense, he who invokes it must come to the court with clean hands. WHEREFORE, the petition for certiorari is hereby GRANTED, the challenged decision of the Court of Appeals is SET ASIDE, and the decision of the trial court is REINSTATED. SO ORDERED. Fernan, Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

Alejandrino v CA THIRD DIVISION

[G.R. No. 114151. September 17, 1998]

MAURICIA ALEJANDRINO, petitioner, vs. THE HONORABLE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, RTC-9, CEBU CITY, and LICERIO P. NIQUE, respondents. DECISION ROMERO, J.: Questioned in this petition for review on certiorari is the Decision[1] of the Court of Appeals which ruled that the trial court, in an action for quieting of title, did not act in excess of jurisdiction when it issued an order for the segregation of property, after the finality of its decision. The facts show that the late spouses Jacinto Alejandrino and Enrica Labunos left their six children named Marcelino, Gregorio, Ciriaco, Mauricia, Laurencia and Abundio a 219-squaremeter lot in Mambaling, Cebu City identified as Lot No. 2798 and covered by Transfer Certificate of Title No. 19658. Upon the demise of the Alejandrino spouses, the property should have been divided among their children with each child having a share of 36.50 square meters. However, the estate of the Alejandrino spouses was not settled in accordance with the procedure outlined in the Rules of Court. Petitioner Mauricia (one of the children) allegedly purchased 12.17 square meters of Gregorios share, 36.50 square meters of Ciriacos share and 12.17 square meters of Abundios share thereby giving her a total area of 97.43 square meters, including her own share of 36.50 square meters. It turned out, however, that a third party named Licerio Nique, the private respondent in this case, also purchased portions of the property, to wit: 36.50 square meters from Laurencia, 36.50 square meters from Gregorio through Laurencia, 12.17 square meters from Abundio also through Laurencia and 36.50 square meters from Marcelino or a total area of 121.67 square meters of the Alejandrino property.[2] However, Laurencia (the alleged seller of most of the 121.67 square meters of the property) later questioned the sale in an action for quieting of title and damages against private respondent Nique. It was docketed as Civil Case No. CEB-7038 in the Regional Trial Court of Cebu City, Branch 9, presided by Judge Benigno G. Gaviola. In due course, the lower court rendered a decision on November 27, 1990 disposing of the case as follows: WHEREFORE, the Court hereby renders judgment in favor of defendant and against plaintiff, dismissing the complaint filed by plaintiff against defendant, and on the Counterclaim and prayer of defendant in its Answer, the Court hereby declares defendant as the owner in fee simple of the share of plaintiff Laurencia Alejandrino and the shares of Marcelino, Gregorio and Abundio, all surnamed Alejandrino, of the parcel of land known as Lot No. 2798 and covered by Transfer Certificate of Title No. 19658 which 4 shares totals an area of 146 square meters more or less; and the Court further Orders plaintiff to: 1. Vacate the premises subject of the complaint and surrender the property to defendant to the extent of the 4 shares aforementioned; 2. Pay the defendant the amount of P15,000.00 as litigation and necessary expenses; the sum of P10,000.00 as reimbursement for attorneys fees; the sum of P10,000.00 as moral damages and P10,000.00 as exemplary damages; 3. Plus costs.

SO ORDERED.[3] Laurencia appealed the decision to the Court of Appeals under CA-G.R. CV No. 33433 but later withdrew the same.[4] On April 13, 1992, the Court of Appeals considered the appeal withdrawn in accordance with Rule 50 of the Rules of Court.[5] Meanwhile, herein petitioner Mauricia Alejandrino filed on May 5, 1992 before the Regional Trial Court of Cebu City, Branch VII, a complaint for redemption and recovery of properties with damages against private respondent Nique that was docketed as Civil Case No. CEB-11673. Adelino B. Sitoy, Laurencias counsel in Civil Case No. CEB-7038, filed Civil Case No. CEB11673 for petitioner Mauricia. The amended complaint in the latter case dated May 17, 1992 alleged that private respondent Nique never notified petitioner Mauricia of the purchase of 121.67 square meters of the undivided Lot No. 2798 nor did he give petitioner Mauricia the preemptive right to buy the area as a co-owner of the same lot. As such co-owner, petitioner Mauricia manifested her willingness to deposit with the court the amount of P29,777.78, the acquisition cost of the portion purchased by private respondent Nique. Petitioner Mauricia also alleged that she demanded from private respondent the area of around 24.34 square meters that the latter had unduly, baselessly and maliciously claimed as his own but which, as part of Lot No. 2798, actually belongs to her. The amended complaint prayed that petitioner Mauricia be allowed to redeem the area of 121.67 square meters under the redemption price of P29,777.78 and that private respondent Nique be ordered to execute the necessary documents for the redemption and the eventual transfer of certificate of title to her. The amended complaint further prayed for the return to petitioner Mauricia of the 24.34-square-meter portion of the lot and for damages amounting to P115,000 and attorneys fees of P30,000. On August 2, 1993, the lower court granted the motion to admit the amended complaint and forthwith ordered the defendant therein to file an amended answer. In Civil Case No. CEB-7038 in the meantime, private respondent filed a motion for the segregation of the 146-square-meter portion of the property that had been declared by the trial court as his own by virtue of purchase. On May 6, 1993, the trial court issued an order the pertinent portions of which read as follows: ORDER For resolution is a `Motion to Order Segregation of 146 Square Meters In Lot No. 2798 dated January 15, 1993 filed by defendant and the `Opposition thereto dated February 2, 1992 by plaintiff. Movant-defendant also filed a rejoinder dated February 15, 1993 to the Opposition. After going over the allegations in the motion, the opposition thereto and the rejoinder as well as the records of the case, particularly the decision rendered by this Court and the Order dated October 28, 1992, denying the motion for reconsideration filed by plaintiffs and allowing the issuance of a writ of execution, the Court is inclined to Grant the instant motion. xxxxxxxxxxxx In addition thereto, the Court makes the following observation:

1. Plaintiff (oppositor) has a total share of 146 square meters. This is admitted by her in her complaint (par. 4 thereof). In the decision rendered by this Court, this share now belongs to defendant movant by way of sale. The decision of this Court has long become final. 2. The total area of the land is 219 sq. meters (par. 2 of complaint), thus, the share of Mauricia Alejandrino is only 73 square meters. 3. As early as June 10, 1983, Mauricia Alejandrino and Laurencia Alejandrino had entered into an 'Extrajudicial Settlement of Estate' whereby they agreed to divide the land subject of this case with Laurencia Alejandrino owning 146 square meters in the frontage and Mauricia Alejandrino owning 75 square meters in the back portion (Exh. '16', Extrajudicial Settlement of Estate, par. 1) (underscoring supplied), and that the parties assure each other and their successor in interest that a right of way of two meters is granted to each party by the other permanently (Exh. '16', par. 2).This partition is signed by the parties and their witnesses. Although not notarized, it is certainly valid as between the parties, Maurecia (sic) Alejandrino, being an immediate party, may not renege on this. 4. Since the share of defendant Licerio P. Nique is specifically known to be 146 square meters, and that its location shall be on the `frontage of the property while the 73 square meters of Maurecia (sic) Alejandrino shall be at the back portion, then, the Court cannot see its way clear, why the 146 sq. meters share of defendant may not be segregated. 5. The contention by oppositor that the `segregation of defendants share of 146 sq. meters from Lot No. 2798 was not decreed in the judgment is a rather narrow way of looking at the judgment.Paragraph 1 of the dispositive portion of the judgment by this Court, Orders plaintiff to `vacate the premises subject of the complaint and surrender the property to defendant to the extent of the 4 shares aforementioned. The 4 shares of Laurencia Alejandrino of 146 sq. meters can be segregated because Laurencia and Maurecia had already executed an extrajudicial partition indicating where their respective shares shall be located (Exh. `16). To deny the segregation is to make the decision of this Court just about valueless is not altogether useless. The matter of allowing the segregation should be read into the decision. The bottomline is still that plaintiff Laurencia, despite the fact that the decision of this Court had long become final; and despite the fact that she even withdraw (sic) her appeal, she still is enjoying the fruits of the property to the exclusion of the rightful owner. WHEREFORE, the Court hereby Grants the motion. The defendant Licerio Nique may proceed to segregate his 2146 (sic) sq. meters from Lot NO. 2798 covered by TCT No. 19658, by having the same surveyed by a competent Geodetic Engineer, at the expense of movant-defendant. SO ORDERED.[6] Petitioner Mauricia questioned this order of the lower court in a petition for certiorari and prohibition with prayer for the issuance of a writ of preliminary injunction filed before the Court of

Appeals. In due course, the Court of Appeals dismissed the petition in a Decision promulgated on August 25, 1993. The Court of Appeals stated that, in issuing the questioned order of May 6, 1993, the respondent court was merely performing its job of seeing to it that execution of a final judgment must conform to that decreed in the dispositive part of the decision. It ratiocinated thus: x x x. In ordering the segregation of the 146 square meters, respondent Judge correctly referred to the text of the decision to ascertain which portion of the land covered by TCT No. 19658 was actually sold by Laurencia Alejandrino (sister of herein petitioner Mauricia) to private respondent Nique. The respondent Judge did not err in relying upon Exhibit `16', the Deed of Extrajudicial Settlement, dated June 10, 1983, mentioned in page 3 of the Decision. Pertinent portion of Exhibit `16 reads: `NOW, THEREFORE, the above-named parties-heirs hereby stipulates (sic), declare and agree as follows: `1. That the parties have agreed to divide the parcel of land with Laurencia Alejandrino owning 146 square meters in the frontage and Mauricia Alejandrino 73 square meters in the back portions; `2. That the parties mutually and reciprocally assure each other and their successor of interest (sic) that a right of way of two meters is granted to each party to the other permanently. (underscoring supplied, Annex `1, Comment, p. 65, Rollo) duly signed by herein petitioner and witnessed by private respondent Nique. It readily reveals that when Laurencia subsequently sold her shares to herein private respondent, per the Deed of Absolute Sale dated October 29, 1986 (Exhs. `B and `10), the parties must have referred to the 146 square meters in the frontage described in said document, Exhibit `16. Laurencia had no authority to sell more, or, less, than that agreed upon in the extrajudicial settlement between her and herein petitioner Mauricia. Insofar as the latter is concerned, she is estopped from claiming that said extrajudicial settlement was a fatally defective instrument because it was not notarized nor published. What is important is that private respondent personally knew about Laurencia and Mauricias agreement because he was a witness to said agreement and he relied upon it when he purchased the 146 square meters from Laurencia. It cannot be validly claimed by petitioner that she was deprived of her property without due process of law considering that private respondent is merely segregating the portion of the land actually sold to him by Laurencia Alejandrino and it does not affect the 73 square meters that properly pertain to petitioner. Moreover, the Supreme Court has ruled that where there is ambiguity caused by an omission or mistake in the dispositive portion of a decision the court may clarify such ambiguity by an amendment even after the judgment had become final, and for this purpose it may resort to the pleadings filed by the parties, the courts finding of facts and conclusions of law as expressed in the body of the decision (Republic Surety and Insurance Co., Inc., et al., versus Intermediate Appellate Court, et al., 152 SCRA 309). The assailed order, in effect, clarifies the exact location of the 146 square meters pursuant to Exhibit `16. Respondent court did not act in excess of its jurisdiction. Hence, writs of certiorari and prohibition do not lie in this case.[7]

Petitioner Mauricia filed a motion for the reconsideration of the Court of Appeals decision. However, on February 15, 1994, the Court of Appeals denied the same for lack of merit there being no new ground or compelling reason that justifies a reconsideration of its Decision.[8] In the instant petition for review on certiorari, petitioner assails the decision of the Court of Appeals, contending that the lower court acted beyond its jurisdiction in ordering the segregation of the property bought by private respondent as the same was not decreed in its judgment, which had long become final and executory. Petitioner argues that partition of the property cannot be effected because private respondent is also a defendant in Civil Case No. CEB-11673. She asserts that Exhibit 16, the extrajudicial settlement of estate referred to in the questioned order of the lower court, was not discussed in the decision of the lower court and even if it were, she could not be bound thereby considering that she was not a party litigant in Civil Case No. CEB-7038. She questions the validity of the deed of extrajudicial settlement because it was not notarized or published. In his comment on the petition, private respondent alleges that although petitioner was not a party litigant in Civil Case No. CEB-7038, she is estopped from questioning the decision in that case and filing the instant petition because she had knowledge of the existence of said case where res judicata had set in. He adds that the instant petition was filed in violation of Circular No. 28-91 on forum shopping in that the Petitioner in the instant petition whose counsel is also the counsel of plaintiff-appellant Laurencia Alejandrino in CA-G.R. CV No. x x x, had filed a civil action Civil Case No. CEB-11673 x x x for REDEMPTION & RECOVERY OF PROPERTIES WITH DAMAGES, which is presently pending before Branch 7 of the Regional Trial Court of Cebu City. He asserts that the lower court did not exceed its jurisdiction and/or commit grave abuse of discretion in granting his motion for segregation of the 146 square meters of the land involved that rightfully belonged to him in accordance with the decision of the lower court. He charges counsel for petitioner with exhibiting unethical conduct and practice in appearing as counsel for petitioner in Civil Case No. CEB-11673 after he had appeared for complainant Laurencia in CA-G.R. CV No. 33433 or Civil Case No. CEB-7038. Under the circumstances of this case, the ultimate issue that needs determination is whether or not as an heir of the Alejandrino property, Laurencia may validly sell specific portions thereof to a third party. Article 1078 of the Civil Code provides that where there are two or more heirs, the whole estate of the decedent is, before partition, owned in common by such heirs, subject to the payment of the debts of the deceased. Under a co-ownership, the ownership of an undivided thing or right belongs to different persons.[9] Each co-owner of property which is held pro indiviso exercises his rights over the whole property and may use and enjoy the same with no other limitation than that he shall not injure the interests of his co-owners. The underlying rationale is that until a division is made, the respective share of each cannot be determined and every co-owner exercises, together with his co-participants, joint ownership over the pro indiviso property, in addition to his use and enjoyment of the same.[10] Although the right of an heir over the property of the decedent is inchoate as long as the estate has not been fully settled and partitioned,[11] the law allows a co-owner to exercise rights of ownership over such inchoate right. Thus, the Civil Code provides: ART. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited

to the portion which may be allotted to him in the division upon the termination of the coownership. With respect to properties shared in common by virtue of inheritance, alienation of a pro indiviso portion thereof is specifically governed by Article 1088 that provides: 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 by the vendor. In the instant case, Laurencia was within her hereditary rights in selling her pro indiviso share in Lot No. 2798. However, because the property had not yet been partitioned in accordance with the Rules of Court, no particular portion of the property could be identified as yet and delineated as the object of the sale. Thus, interpreting Article 493 of the Civil Code providing that an alienation of a co-owned property shall be limited to the portion which may be allotted to (the seller) in the division upon the termination of the co-ownership, the Court said: x x x (p)ursuant to this law, a co-owner has the right to alienate his pro-indiviso share in the co-owned property even without the consent of the other co-owners. Nevertheless, as a mere part owner, he cannot alienate the shares of the other coowners. The prohibition is premised on the elementary rule that `no one can give what he does not have (Nemo dat quod non habet). Thus, we held in BailonCasilao vs. Court of Appeals (G.R. No. 78178, April 15, 1988, 160 SCRA 738, 745), viz: `x x x since a co-owner is entitled to sell his undivided share, a sale of the entire property by one co-owner without the consent of the other co-owners is not null and void. However, only the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of the property. `The proper action in cases like this is not for the nullification of the sale or for the recovery of possession of the thing owned in common from the third person who substituted the co-owner or co-owners who alienated their shares, but the DIVISION of the common property of the coowners who possessed and administered it.[12] The legality of Laurencias alienation of portions of the estate of the Alejandrino spouses was settled in Civil Case No. CEB-7038. The decision in that case had become final and executory with Laurencias withdrawal of her appeal. When private respondent filed a motion for the segregation of the portions of the property that were adjudged in his favor, private respondent was in effect calling for thepartition of the property. However, under the law, partition of the estate of a decedent may only be effected by (1) the heirs themselves extrajudicially, (2) by the court in an ordinary action for partition, or in the course of administration proceedings, (3) by the testator himself, and (4) by the third person designated by the testator.[13] The trial court may not, therefore, order partition of an estate in an action for quieting of title. As there is no pending administration proceedings, the property of the Alejandrino spouses can only be partitioned by the heirs themselves in an extrajudicial settlement of estate. However, evidence on the extrajudicial settlement of estate was offered before the trial court and it became the basis for the order for segregation of the property sold to private respondent. Petitioner Mauricia does not deny the fact of the execution of the deed of extrajudicial

settlement of the estate. She only questions its validity on account of the absence of notarization of the document and the non-publication thereof. On extrajudicial settlement of estate, Section 1 of Rule 74 of the Rules of Court provides: If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action for partition. x x x. The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. Notarization of the deed of extrajudicial settlement has the effect of making it a public document[14] that can bind third parties. However, this formal requirement appears to be superseded by the substantive provision of the Civil Code that states: ART. 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction. By this provision, it appears that when a co-owner sells his inchoate right in the coownership, he expresses his intention to put an end to indivision among (his) co-heirs. Partition among co-owners may thus be evidenced by the overt act of a co-owner of renouncing his right over the property regardless of the form it takes. In effect, Laurencia expressed her intention to terminate the co-ownership by selling her share to private respondent. Moreover, the execution of the deed of extrajudicial settlement of the estate reflected the intention of both Laurencia and petitioner Mauricia to physically divide the property. Both of them had acquired the shares of their brothers and therefore it was only the two of them that needed to settle the estate. The fact that the document was not notarized is no hindrance to its effectivity as regards the two of them. The partition of inherited property need not be embodied in a public document. In this regard, Tolentino subscribes to that opinion when he states as follows: x x x. We believe, however, that the public instrument is not essential to the validity of the partition. This is not one of those contracts in which form is of the essence. The public instrument is necessary only for the registration of the contract, but not for its validity. The validity of an oral contract among the heirs, terminating the co-ownership, has been recognized by the Supreme Court in a decision x x x (where) that tribunal said: `An agreement among the heirs that a certain lot should be sold and its proceeds paid to one of them is a valid oral contract, and the same has the force of law between the parties from and after the original assent thereto, and no one of them may withdraw or oppose its execution without the consent of all. In a still later case, the Supreme Court held that `partition among heirs or renunciation of an inheritance by some of them is not exactly a conveyance for the reason that it does not involve transfer of property from one to the other, but rather a confirmation or ratification of title or right to property by the heir renouncing in favor of another heir accepting and receiving the

inheritance. Hence, the court concluded, `it is competent for the heirs of an estate to enter into an oral agreement for distribution of the estate among themselves.[15] The deed of extrajudicial settlement executed by Mauricia and Laurencia evidence their intention to partition the property. It delineates what portion of the property belongs to each other. That it was not notarized is immaterial in view of Mauricias admission that she did execute the deed of extrajudicial settlement. Neither is the fact that the trial court only mentioned the existence of such document in its decision in Civil Case No. CEB-7028. That document was formally offered in evidence and the court is deemed to have duly considered[16] it in deciding the case. The court has in its favor the presumption of regularity of the performance of its task that has not been rebutted by petitioner Mauricia. Neither may the fact that the other heirs of the Alejandrino spouses, named Marcelino, Gregorio, Ciriaco and Abundio did not participate in the extrajudicial settlement of estate affect its validity. In her amended complaint in Civil Case No. CEB-11673, petitioner Mauricia herself admitted having acquired by purchase the rights over the shares of her brothers. On the part of Laurencia, the court found that she had transmitted her rights over portions she had acquired from her brothers to private respondent Nique. The sale was made after the execution of the deed of extrajudicial settlement of the estate that private respondent himself witnessed. The extrajudicial settlement of estate having constituted a partition of the property, Laurencia validly transferred ownership over the specific front portion of the property with an area of 146 square meters. The trial court, therefore, did not abuse its discretion in issuing the order for the segregation of the property. In so doing, it was merely reiterating the partition of the property by petitioner Mauricia and her sister Laurencia that was embodied in the deed of extrajudicial settlement of estate. The order may likewise be deemed as a clarification of its decision that had become final and executory. Such clarification was needed lest proper execution of the decision be rendered futile. The Court finds no merit in the issue of forum shopping raised by private respondent. Forum shopping exists where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in the other.[17] Because the judgment in Civil Case No. CEB-7028 is already final and executory, the existence of res judicata is determinative of whether or not petitioner is guilty of forum shopping. For the principle of res judicata to apply, the following must be present: (1) a decision on the merits; (2) by a court of competent jurisdiction; (3) the decision is final; and (4) the two actions involve identical parties, subject matter and causes of action.[18] The fourth element is not present in this case. The parties are not identical because petitioner was not impleaded in Civil Case No. CEB-7028. While the subject matter may be the same property of the Alejandrino spouses, the causes of action are different. Civil Case No. CEB-7028 is an action for quieting of title and damages while Civil Case No. CEB-11673 is for redemption and recovery of properties. It appears moreover, that private respondents argument on forum shopping is anchored on the fact that counsel for both plaintiffs in those two cases is one and the same, thereby implying that the same counsel merely wanted to prevail in the second case after having failed to do so in the first. The records show, however, that Laurencia executed an affidavit[19] consenting to the appearance of her counsel in any case that petitioner Mauricia might file against private respondent. She affirmed in that affidavit that she could be included even as a defendant in any case that petitioner Mauricia would file because she fully agree(d) with whatever cause of action Mauricia would have against private respondent. Such a statement can hardly constitute a proper basis for a finding of forum shopping, much less evidence of misconduct on the part of

counsel. As noted earlier, the two cases have different causes of action and the two plaintiffs who would have conflicting claims under the facts of the case actually presented a united stand against private respondent. If there is any charge that could be leveled against counsel, it is his lack of thoroughness in pursuing the action for quieting of title. As counsel for plaintiff therein, he could have impleaded petitioner Mauricia knowing fully well her interest in the property involved in order to avoid multiplicity of suits. However, such an omission is not a sufficient ground for administrative sanction. WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit. Costs against petitioner. SO ORDERED. Narvasa, C.J. (Chairman), Kapunan, and Purisima, JJ., concur.

Mondonido v Roda GR No. L-5561 January 26, 1954 LAZARO MONDOÑIDO, plaintiff-appellant, vs. PRESCA Alaura VDA. RODA, as administrator of the Intestate Ricardo Roda -defendant appealed. D. Jesus P. Garcia for appellant. Messrs. Pelaez Pelaez Pelaez and in appellee. PAUL J. : 24 and February 27, 1929 Ricardo de Roda awarded two public deeds (Exhs. A and B), forcing Lazaro Mondoñido sell a portion of land which was to inherit from their grandparents, getting P200 as advance payment.While the granting of such deeds were already in liquidation in the Court of First Instance of Cebu property of his grandfather Eduardo de Roda. With minor differences, the first document is written as the second. On March 29, 1950 the plaintiff filed suit asking the fulfillment of the two contracts. The defendant, as administrator of the relict goods Ricardo de Roda, presented two defenses: (a) that such deeds are null as it concerned future inheritances, and (b) that the action is prescribed. According to the agreement made, Eduardo de Roda and Antonina Sepulveda grandparents were Ricardo de Roda. Edward died in 1905, leaving children and grandchildren as heirs. Ricardo, on behalf of his father, inherited the 3/24 part of the assets of its abuelo.Ricardo died in 1933, and in 1935 the relics were distributed goods Eduardo.Ricardo his late grandfather and his sister Roberta received in that to $ or their participation in the inheritance of Eduardo, which was run by the widow of Richard, giving this to Roberta their participation in the products of such heritage. Antonina Sepulveda died in 1940; its assets were liquidated and in 1948 a court awarded to their heirs, children and grandchildren. In this contract the widow of Ricardo de Roda had received no participation because she and Roberta had agreed that the participation of Ricardo and Roberta goods Eduardo de Roda would stay in the hands of the widow of Richard and the participation of the brothers themselves Antonina goods Sepulveda Roberta would receive.

After considering the facts and agreement of the two scripts, the court dismissed the claim for the reason that these writings dealt on future inheritance. Against the plaintiff appealed this decision arguing that these scriptures refer to relict Eduardo Roda goods and not to those of Eduardo and Antonina husbands. No doubt they are written in a way that one can not be sure if Ricardo sold his interest in the property of her late grandfather Eduardo only or those of their grandparents Eduardo and Antonina; but even if he had promised to sell his interest in the property from his grandfather and grandmother, the promise of sale regarding the assets of the latter is null and gun denin value because it refers to sale of future inheritance. "On future inheritance - says the Spanish Civil Code - may not, however, conclude other contracts than those whose purpose is to practice the division between living under a flow 1056. art." (Article 1271, par 2nd Arroyo.. against Gerona, 58 Jur Fil, 245;.. Tordilla against .. Tordilla, 60 Jur Fil, 172.) Antonina Ricardo Sepulveda lived even if awarded the scriptures; but they are not zero in terms of assets recibria Ricardo intestate his grandfather Eduardo, because these relics goods were already in the process of liquidation when the rights to Ricardo otorgo.Los succession are transmitted by operation of law from the moment death (art. 657, Cod. Civ. Spanish.) Ricardo already owned the 3/24 parts of such property, by way of genuine, present and no future inheritance. The defense of prescription should be estimated. Since 1935 when the widow of Ricardo de Roda had received the participation of her late husband in real relict of the late Eduardo de Roda and the complainant could enforce the scriptures (Exhs A and B), but he did but only in March 24, 1950 in which he presented his demand. They have already passed 15 years; the army said action had to be brought within a period of ten years pursuant to Article 43, paragraph 1, of the Code of Civil Procedure. The complainant's claim that he must return the amount of P200 as prepayment baseless. If the applicant had requested performance of the scriptures within the period set by law and the defendant would not have met, then there would consequido compliance agreement or, failing that, the return of P200 plus damages in that have been incurred. For these reasons, the decision appelada with costs against the appellant is confirmed. Paras, Pres., Bengzon, Padilla, Montemayor, Reyes, Juice, Bautista Angelo and Labrador, JJ., concur.

Barretto v Tuason G.R. Nos. L-36811, 36827, 36840, 36872

March 31, 1934

ANTONIO MA. BARRETTO Y ROCHA, ET AL., plaintiffs-appellees, vs. AUGUSTO H. TUASON Y DE LA PAZ, ET AL., defendants-appellants; BENITO LEGARDA Y ROCES, administrator of the estate of the deceased Benito Legarda y de la Paz, ET AL., ESTANISLAOA ARENAS, ET AL., and ANA BARCINAS TORRES, (alias ANA BARCINAS PEREZ) ET AL.,intervenors-appellants; ERIBERTO TUASON, ET AL., intervenors-appellees. Araneta, De Joya, Zaragoza and Araneta and Jose Yulo for defendants-appellants. Eusebio Orense and Nicolas Belmonte for intervenors- appellants Legarda de la Paz et al. Feria and La O for intervenors-appellees Arenas et al. J.A. Wolfson for intervenors-appellants Barcinas Torres et al.

Antonio Sanz and Courtney Whitney for Duran, Lim and Tuason for intervenors-appellees G. No appearance for the other intervenors-appellees.

plaintiffs-appellees. Maga et al.

IMPERIAL, J.: For the third time, there is presented for our consideration the mayorazgo founded by the deceased Don Antonio Tuason. The first occasion was when both plaintiffs and defendants appealed from a decision of the Court of First Instance of Manila, dismissing the complaint and the counterclaim filed, without costs. The appeals thus interposed were docketed under No. 23923, and the decision promulgated on March 23, 1926, is published in full in volume 50 Philippine Reports, page 888 et seq. the second occasion was when some of the defendants instituted a certiorari proceeding against the Court of First Instance of Manila, some of the plaintiffs, and other intervenors, because of the appointment, at the latter's instance, of the Bank of the Philippine Islands as receiver of all the properties constituting the mayorazgo. Said proceeding was docketed under No. 32423, and the decision promulgated on February 7, 1930, is published in full in volume 54 Philippine Reports, page 408 et seq.1And the third is brought about by four appeals taken by the defendants and some intervenors from certain portions of the decision and order rendered by the court during the new trial held pursuant to our resolution of which we shall hereafter have occasion to speak. The four appeals now before us were docketed separately, but for a better understanding of the questions which we propose to resolve, we have thought it convenient to render a single decision wherein each appeal will be discussed individually. PRELIMINARY CONSIDERATIONS Before entering upon a consideration of the appeals, it is convenient to set out some fundamental facts which have been submitted, discussed, and resolved in the decision rendered in the original and principal case, and which are of the utmost importance to bear in mind in resolving the questions raised anew in the appeals. These facts are: The mayorazgo was founded by Don Antonio Tuason on February 25, 1794. On June 4 of the same year the founder died in the City of Manila. The mayorazgo was approved by Royal Cedula of August 20, 1795. On October 11, 1820, the Statute of Civil Disentailments was promulgated in Spain, was extended to the Philippine Islands, and took effect therein on March 1, 1864, by virtue of a Royal Decree of October 31, 1863. The properties of the mayorazgo consist of the Haciendas de Santa Mesa y Diliman, Hacienda de Mariquina, and two urban properties situated on Rosario Street, Manila. By agreement of the parties, the assessed value of the said properties is: Haciendas de Santa Mesa y Diliman P3,550,646.00 Hacienda de Mariquina

1,507,140.00

Properties on Rosario Street

542,382.00

Total . . . . . . . . . . . . . . . . . .

5,600,168.00

After the promulgation of the decision in the principal case, the defendants filed a motion of reconsideration and various persons filed motions of intervention asking at the same time that they be admitted as intervenors for the purpose of participating in one-fifth of the properties. The resolution published in volume 50 Philippine Reports, page 959 et seq., was adopted, wherein (page 963) the following fundamental conclusions, established in the decision, were reiterated: Resolving, therefore, said motion for reconsideration, we reiterate the following conclusions, declaring finally: (1) That the first-born possessor of this mayorazgo was a mere usufructuary of the entailed properties. (2) That this mayorazgo was a fideicomiso. (3) That the charge to distribute the fifth of the revenues from said properties was a family trust. (4) That article 4 of the Disentailing Law of October 11, 1820 is applicable to the present case. (5) That the fifth of the properties into which, by virtue of said law, the fifth of the revenue was converted on March 1, 1864, when the Disentailing Law became effective in the Philippines, has remained and subsists as a fideicomiso up to the present date. (6) That the plaintiffs' right of action has not prescribed. (7) That the registration of the entailed properties under Act No. 496 must, with respect to the fifth of the said properties conserved up to the present time as a fideicomiso, be held to have been made in favor of the beneficiaries of said fifth part. (8) That the plaintiffs, as well as any other descendants of the founder, are entitled to participate in the fifth of the properties of this mayorazgo in accordance with the sixth clause of the deed of foundation and article 4 of the Disentailing Law. The motion of reconsideration was denied in so far as it was incompatible with the final and fundamental conclusions arrived at in the decision and in the resolution, but the motion for a new trial of the intervenors — who appeared in order that they or any other person entitled to participate in one-fifth of the properties may intervene, either by filing other complaints of intervention or by amending the complaint filed — was granted. The dispositive part of said resolution reads literally as follows: ORDER In view of the foregoing, it is ordered:

(a) That the motion for reconsideration filed by counsel for the defendants is denied in so far as it is incompatible with the fundamental conclusions we have arrived at in the present cause and enumerated in the preceding resolution. (b) That the dispositive part of our decision in this cause be set aside. (c) That the record in the present case, together with the petitions of intervention mentioned, be returned to the Court of First Instance of Manila in order that the new parties may intervene in this cause and prove their alleged rights, and that the original plaintiffs may, if they so desire, amend their complaint. (d) That the plaintiffs take the necessary steps to include as parties to this cause all such known and unknown persons who may have the right to participate in the said fifth part of the properties of this foundation, requiring them to appear and prove their rights. (e) That said Court of First Instance proceed to try this cause and render judgment as to the amount to which the original parties and those who may intervene may be entitled as their participation in the fifth of the properties of this mayorazgo. (f) That the stipulation of facts subscribed on August 30, 1924 by Attorneys Sanz and Blanco on behalf of the plaintiffs and Araneta & Zaragoza on behalf of the defendants, for all intents and purposes and with respect to the parties affected, is held as subsisting, as well as the oral and documentary evidence presented by the parties during the original trial of the cause, the original parties as well as o hereafter may intervene, being entitled to introduce such additional evidence as they may desire upon the subject matter of the trial herein ordered. (Barretto vs.Tuason, 50 Phil., 888, 966, 967.) The case was remanded to the court of origin for the purpose above-mentioned, and after the filing of many complaints of intervention by a number of persons claiming to be relatives of the founder and of his younger children and, therefore, entitled to participate in one-fifth of the properties, on suggestion of counsel for the parties the court appointed Modesto Reyes as referee, and upon his death, Attorney Crispin Oben. Both referees filed their written reports, although that of the former does not resolve the major portion of the questions raised due to his premature death, and at the trial various objections were interposed which were resolved by the court. In its decision the court approved most of the findings and recommendations of the last referee, but modified others which in its opinion were not supported either by the proven facts or the applicable law. The defendants and some of the intervenors, not being likewise agreeable to certain portions of the decision and order thus promulgated, have taken the four appeals now before us. G.R. No. L-36811 APPEAL OF THE INTERVENORS SURNAMED LEGARDA Y DE LA PAZ The appellants in this case are the brother and sisters Benito, Consuelo. Rita, surnamed Legarda y de la Paz. These intervenors claim participations in one-fifth of the properties in two capacities: First. is descendants of the younger son Pablo Tuason, and, second, for having inherited from their parents the participations in one-fifth of the properties which were sold to the latter by certain relatives of the founder. They likewise claim the share to which they would be entitled in the participations of certain relatives of the younger daughter, Eustaquia Ma. Tuason, who sold said participations to the defendants. We will hereafter have occasion to pass on this contention in discussing the four assigned error.

The following is an enumeration of the names of the vendors of their participations in favor of the parents of the appellants, giving the dates of the respective deeds: 1. DOROTEA TUASON, by a deed of absolute sale executed by her in favor of Benito Legarda and Teresa de la Paz.dated September 13, 1881. (Exhibit A-Legarda.) 2. ISABEL ARENAS, by a deed of absolute sale executed by her and her husband Francisco Esteban, in favor of the spouses Benito Legarda and de la Paz, dated October 2, 1884 Exhibit B-Legarda.) 3. The brothers ENRIQUE. SEVERINO, and DOMINGO, surnamed FRANCO, by a deed of absolute sale executed by them in favor of the spouses Benito Legarda and Teresa de la Paz, dated November 7, 1884. (Exhibit C-Legarda.) 4. The sisters BALBINA SANTOS TUASON and MAGDALENA SANTOS TUASON, by a deed of absolute sale executed by them in favor of the spouses Benito Legarda and Teresa de la Paz, dated January 23, 1885. (Exhibit D-Legarda.) 5. APOLINARIA TUASON, by a deed of absolute sale, executed by her in favor of the spouses Benito Legarda and Teresa de la Paz, dates February 17, 1885. (Exhibit FLegarda.) 6. ESTEBAN DUARTE, ISIDRA MARIA DUARTE, and ALEJANDRO DUARTE, by a deed of absolute sale executed by them in favor of the spouses Benito Legarda and Teresa de la Paz, dated February 17, 1885. (Exhibit F-Legarda.) 7. TOMASA TUASON DE TOBIAS, who was then a widow, by a deed of absolute sale executed by her in favor of the spouses Benito Legarda and Teresa de la Paz, dated October 3, 1888. (Exhibit G-Legarda.) 8. LUIS TUASON and PEDRO TUASON, by a deed of absolute sale executed by them in favor of the spouses Benito Legarda and Teresa de la Paz, dated April 7, 1886. (Exhibit HLegarda.) 9. ALEJANDRO, ANACLETO, TEODORICO, MARIA, AND DIONISIA, surnamed CAMACHO y TUASON, and TOMAS, ENCARNACION, MARIA, and MERCEDES, surnamed MACARANAS y TUASON, by a deed of absolute sale executed by them in favor of the spouses Benito Legarda and Teresa de la Paz, dated August 11, 1886. (Exhibit I-Legarda.) 10. FELIPE G. ALCALDE, by a deed of absolute sale executed by him in favor of the said spouses, dated October 27, 1886. (Exhibit J-Legarda.) 11. QUINTINA CASTILLO VIUDA DE JUAN N. C. REYES, by a deed of absolute sale executed by her in favor of the spouses Benito Legarda and Teresa de la Paz, dated April 25, 1888. (Exhibit K-Legarda.) The vendor, Quintina Castillo Viuda de Juan N. C. Reyes, who had a participation in the entailed properties as descendant in the direct line of the founder, acquired the participation of the latter, the said vendor Quintina Castillo having been declared the sole and universal heir by will of the said Juan N. C. Reyes, as evidenced by Exhibit K-1-Legarda.

12. TEODORA EIZMENDI, by a deed of absolute sale executed by her in favor of the spouses Benito Legarda and Teresa de la Pam, dated October 3, 1888. (Exhibit L-Legarda.) 13. PETRONA MARIA DUARTE, by a deed of absolute sale executed by her in favor of the said spouses Benito Legarda and Teresa de la Paz, dated October 8, 1888. (Exhibit L-1Legarda.) 14. AVELINO TUASON alias ANDRES AVELINO TUASON, by a deed of absolute sale executed by him in favor of the father of the herein intervenors, Benito Legarda, dated March 5, 1883. (Exhibit M-Legarda.) Of the said sales, only those executed by the following were impugned: (1) Isabel Arenas; (2) Tomasa Tuason de Tobias; (3) Luis Tuason and Pedro Tuason; (4) Alejandro, Anacleto, Teodorico, Maria, and Dionisia, surnamed Camacho y Tuason, and Tomas, Encarnacion, Maria, and Mercedes, surnamed Macaranas y Tuason; (5) Felipe G. Alcalde, and (6) Teodora Eizmendi. The impugners of the sales are relatives of the vendors who would be entitled to succeed there in their respective participations. The appellants impute the following errors to the appealed decision: I. In finding that Tomasa Tuason de Tobias, Luis Tuason, and Pedro Tuason, who sold their participations in the properties in litigation to the father and mother of the intervenors Legarda y de la Paz, were already receiving the revenue on the date the Disentailing Statute took effect. II. In declaring null and void as to one-half of the participations sold, instead of valid in their entirety, the sale made by Tomasa de Tobias (Exhibit G-Legarda) and that executed by Luis and Pedro Tuason (Exhibit H- Legarda), and in not adjudicating to the intervenors Legarda y de la Paz the entire participations corresponding to said vendors. III. In excluding from the sales the participations corresponding to the vendors in the portions belonging to the younger children without succession of the founder, and in not adjudicating said participations to the intervenors Legarda y de la Paz. IV. In not adjudicating to the intervenors Legarda y de la Paz the participations sold by some descendants of the founder's daughter, Eustaquia Maria Tuason, and in the event of the distribution of said participations among the descendants, in general, of the founder, in not adjudicating to said intervenors the participations which would, therefore, correspond to the vendors of the Legardas. V. In not adjudicating to the intervenors Legarda y de la Paz the participation corresponding to the vendor Dorotea Tuason as descendant of Santos Luciano Tuason. VI. In not ordering the defendants to pay legal interest. VII. In denying the motion for a new trial. The first two assigned errors are intimately related, as they refer to the sales of their participations executed by Tomasa Tuason de Tobias, Luis Tuason, and Pedro Tuason. Referee Oben held in his report that the sales made by said vendors did not transfer more than one-half of their participations, because on the dates of the sales they were the ones who received the revenue and they could not

dispose of more than one-half of their participations, reserving the other half in favor of their immediate successors, in accordance with the provisions of article 4, in connection with articles 2 and 3, of the Disentailing Statute. The court entertained the same opinion. In support of their contention, the appellants advance the following reasons: (1) That the said vendors were not the ones who received the revenue on March 1, 1864, when the Disentailing Statute took effect; consequently, the reservation of one-half is not applicable to the sales in question; (2) that the present action of the impugners to invalidate the sales as to one-half thereof has already prescribed; (3) that the appellants have acquired by prescription of owner ship the entire participations sold; and (4) that the inaction of the impugners of the sales for a period of years without exercising their alleged right estops them from claiming the participations sold, under the doctrine known as estoppel by laches. Although we have examined the oral and documentary evidence adduced, to ascertain whether Tomasa Tuason de Tobias, Luis Tuason, and Pedro Tuason were in fact the ones who received the revenue when the Disentailing Statute took effect — and we are in a position to state that the first of said vendors was not in fact the one who received the revenue on said date but the Tuason brothers — nevertheless, we do not make any pronouncement on this question in view of the fact that the first two assigned errors under consideration should be resolved in connection with the other arguments relative to prescription of action and ownership and estoppel by laches. It will be recalled that the deed of sale of the participation of Tomasa Tuason de Tobias was executed on October 3, 1888, and the sale of those of the brothers Luis and Pedro Tuason on April 7, 1886; the complaints of intervention which assailed the validity of the sales of said participations for the first time were filed in 1927, hence, approximately forty-one years have elapsed from the first sale to the date its validity was impugned for the first time, and about thirty years from the execution of the second sale to the said date. The right now exercised by the impugners of the sales is a personal action whose prescription should be governed by the laws in force at the time of the execution of the deeds of sale, that is, April 7, 1886, and October 3, 1888, namely, Law 5, Title 8, Book 11, of the Novisima Recopilacion, and Law 21, Title 29, Partida 3, which provide for the period of ten years (Crusado vs. Bustos and Escaler, 34 Phil., 17). Article 1939 of the present Civil Code provides: ART. 1939. Prescription which began to run before the publication of this Code shall be governed by the prior law; but if, after this Code took effect, all the time required by the same for prescription bas elapsed, it shall be sufficient even if according to such prior law a longer period of time would have been required. And article 1301 of the same Code provides: ART. 1301. The action of annulment shall last four years. The term shall commence to run — In cases of intimidation or violence from the day on which it has ceased; In those of error or deceit or falsity of consideration., from the date of the consummation of the contract;

When the purpose of the action is to invalidate the un authorized contracts of a married woman, from the date of the dissolution of the marriage; With respect to contracts made by minors or incapacitated persons, from the date they were released from guardianship. According to these provisions, the action of annulment, admitting that it had not yet prescribed when the Civil Code took effect in these Islands on December 7, 1889 (Mijares vs. Nery, 3 Phil., 195), should have commenced by the impugners of the sales within the four (4) years following the taking effect of the Civil Code, which was not done. The rules of prescription found in the Code of Civil Procedure, Act No. 190, are not applicable to the action of annulment under consideration, because according to section 38 thereof, the prescriptive period provided in former statutes should be applied to rights of action which have already accrued before it went into effect. From the foregoing it clearly follows that the action of annulment instituted and relied upon by the impugners of the said sales has already prescribed, both under the Laws of the Partidas and the Novisima Recopilacion and under the provisions of the Civil Code, and in the latter case, even the supposition that the prescriptive period for an action of annulment of contracts had been extended to ten years, instead of four, in accordance with the provisions of section 43, No. 1, of the Code of Civil Procedure. (Willard, Notes on Civil Code; Brillantes vs. Margarejo and Belmonte, 36 Phil. 202.) But the impugners of the sales argue that they do not in fact institute an action of annulment, but merely use the same as a defense, hence, they are not affected by the laws of prescription. In the able report of referee Oben, this phase of the question was discussed at length, and he came to conclusion, as did the court, that the impugners of the sales have in fact brought an action of annulment. Without going into another extended discussion, we believe it will suffice to state, to demonstrate the same conclusion, that in the instant case those in the enjoyment of the participations sold as well as the ownership thereof are the appellants and not the impugners of the sales, and that to recover the rights lost under the deeds of sale they executed, the latter have to avail themselves of an action of annulment. In this sense, at least, they should be under stood as bringing the action instead of simply defending themselves, aside from the indisputable fact that, to recover the participations which they sold, they found it necessary to file complaints of intervention, which are really complaints under the letter and spirit of section 121 of the Code of Civil Procedure. As to the question of acquisitive prescription, likewise invoked by the appellants, we hold that due to the long lapse of time they have acquired by prescription whatever rights the impugners of the sales had in the participations which they sold. Addressing ourselves to appellants' last argument, it should again be stated that they and their predecessors have enjoyed the revenue corresponding to the participations which they have acquired and that during the period that has elapsed, the vendors and impugners of the sales have done nothing to recover their alleged rights. Such conduct insurmountably bars the instant action of annulment under the doctrine of estoppel by laches. In the case of Buenaventura vs. David (37 Phil., 435), speaking of the said doctrine, we said: . . . The assertion of doubtful claims, after long delay, cannot be favored by the courts. Time inevitably tends to obliterate occurrences from the memory of witnesses, and even where the recollection appears to be entirely clear, the true clue to the resolution of a case may be hopelessly lost. These considerations constitute one of the pillars of the doctrine long familiar

in equity jurisprudence to the effect that laches or unreasonable delay on the part of a plaintiff in seeking to enforce a right is not only persuasive of a want of merit but may, according to the circumstances, be destructive of the right itself. Vigilantibus non dormientibus equitas subvenit. And in the case of Tuason vs. Marquez (45 Phil., 381), the same principle was again applied as follows: The equitable doctrine termed with questionable propriety "estoppel by laches," has particular applicability to the fact before us. Inexcusable delay in asserting a right and acquiescence in existing conditions are a bar to legal action. . . . We see no good reason why the said equitable doctrine should not be applied to the case at bar. The impugners of said sales have let pass a number of years from the accrual of their right of action to annul the sales without exercising such right, and have voluntarily permitted appellants' predecessors in interest to enjoy the participations sold; in which circumstances it is the duty of the courts to restrict, instead of encourage, the granting of a right already lost. The third assigned error refer to the sales executed by some descendants of the founder who sold the participations that would come to them as descendants likewise of the younger children of the founder. The court at first approved the report of referee Oben declaring valid the sales of the participations coming from the younger children with succession as well as from those without succession. But the court, in its order of April 8, 1931, modified its decision declaring invalid the sales of the participations coming from the younger children without succession. From this latter resolution the appeal was taken. The reason alleged by the court in support of its last order was, that the said sales were illegal because they conveyed rights not known and determined at the time of the execution of the deeds of sale. We do not see the force of this argument. If the sales were valid as to the participations coming from the younger children with succession, with more reason should the sales of the participations coming from the younger children who died without succession be declared equally valid, as in both cases the sale of existing rights, known and determinable, was involved, as said participations, so far as the vendors were concerned, arose and were acquired by the latter from the death of their predecessors in interest, the younger children. (Article 657 of the Civil Code.) For this reason we find the third error tenable and sustain the validity of the sales of said participations. The plaintiffs and the defendants had stipulated when the original case was heard that the younger daughter, Eustaquia Ma. Tuason, died without succession, but it developed that the said deceased in fact left descendants some of whom sold their participations to the defendants. The referee stated in his report that such participations have neither been sold nor legally acquired by the defendants because they were estopped by their stipulation with the plaintiffs to the effect that said younger daughter died without descendants. The court differed from this and held in its decision that there was no such estoppel, and that the defendants validly acquired the participations sold to them. The herein appellants, Legarda brothers and sisters, by their fourth assigned error, now attempt to reverse the finding of the court that the defendants are not thus estopped. And appellants' purpose is obvious: if the sales are invalidated, the participations, subject matter thereof, would be distributed among all the relatives of the said younger daughter, and appellants will naturally receive a certain aliquot part thereof. We agree with the court that the defendants are not estopped just because they stipulated that Eustaquia Ma. Tuason left no succession. And this proposition is clear by simply taking into account that the defendants never agreed that they had not purchased the participations of the descendants of the said younger daughter. The stipulation referred only and exclusively to the succession or

descendants of the said younger daughter and cannot be logically extended to the sales made by several of her descendants. Moreover, as properly observed by the court, to sustain appellants' theory would result in the absurd case of the other descendants of said younger daughter who did not sell their participations being deprived thereof just because the original parties stipulated that their predecessor in interest left no succession. We, therefore, rule that the fourth assigned error is untenable. The fifth error relates to the participations of Dorotea Tuason which she sold to the appellants. This vendor was entitled to a double participation coming from two sources, to wit, from the younger children Santos Luciano Tuason and Felix Bolois Tuason. In amendatory report of referee Oben the participation of this vendor as descendants of Santos Luciano Tuason was overlooked. The appellants filed a motion of reconsideration asking, among other things, that the participation of said vendor as descendant of Santos Luciano Tuason be likewise adjudicated to them. The court granted the motion, but in its order it was stated that the participation of Dorotea Tuason coming from Felix Bolois Tuason will be adjudicated to the appellants, instead of that coming from Santos Luciano Tuason. In other words there was a transposition of names, hence, appellants state in their brief that this involves a mere correction of a clerical error. In view of the foregoing we find the fifth assigned error well-founded. In their sixth assigned error the appellants contend that the defendants are bound to pay them legal interest on the amounts of money to be adjudicated to them as their participations in the one-fifth, alleging as a reason therefor that the defendants were guilty of delay from the taking effect of the Disentailing Statute ordering the distribution and delivery of the fifth to the persons entitled to it, among whom were said appellants. The contention is without merit in view of the fact that in the decision rendered in the original case, it was held that the plaintiffs, whose position was like that of the herein appellants, were entitled to an accounting of the expenses and revenues of said properties and to receive that corresponding revenues, from January 1, 1923, until the defend ants deliver to them their participations in the properties of the foundation. The revenues thus adjudicated were in lieu of legal interest claimed by the plaintiffs. For these reasons, the sixth assigned error is untenable. The seventh and last assigned error need not be discussed being a corollary of the preceding ones. Recapitulating all that has been said so far, it results: 1. That the sales of their participations made by Tomasa Tuason de Tobias, Luis Tuason and Pedro Tuason in favor of the appellants, are valid in their entirety and should, therefore, be adjudicated to the latter; thus resolving favorably the first two errors assigned; 2. That the sales made by some descendants of the founder, of their participations coming from the younger children without succession, are likewise valid, and said participations should be adjudicated to the appellants. This also resolves favorably the third assigned error; 3. That the participation of Dorotea Tuason as descendant of Santos Luciano Tuason should be adjudicated to the appellants; thereby resolving favorably the fifth assigned error; and 4. That the fourth and sixth assigned errors are overruled as untenable. G. R. No. 36827

APPEAL OF THE INTERVENOR ANA BARCINAS TORRES (alias ANA BARCINAS PEREZ) AND OTHERS It will be recalled, from what has been said in connection with the first appeal, that Eustaquia Ma. Tuason died leaving succession, notwithstanding the stipulation to the contrary by the plaintiffs and the defendants at the trial of the principal case. The herein appellants are descendants of the younger daughter Eustaquia Ma. Tuason. All of them, with the exemption of Tomas Barcinas y Reyes, are descendants of Tomas Barcinas, who, with the said Tomas Barcinas y Reyes, sold all their rights, interest, and participation in one-fifth of the revenue of themayorazgo through their attorney-in-fact Manuel de los Reyes, in favor of the estate of Teresa de la Paz. Said appellants attribute to the appealed decision the following errors: I. We hereby adopt as our own all of the pertinent assignments of errors of the other intervenors in G.R. Nos. 36811 and 36840, which are applicable to the intervenors here and, by reference, hereby incorporate their arguments in support of said errors. II. The lower court erred in holding the sale executed by Manuel de los Reyes, pretending to act under and by virtue of aforesaid void power of attorney, valid, and in failing to hold same null and void. III. The lower court erred in holding the sale executed by Manuel de los Reyes, pretending to act under and by virtue of aforesaid void power of attorney, valid, and in failing to hold same null and void. IV. The lower court erred in interpreting aforesaid sale executed by Manuel de los Reyes, pretending to act under aforesaid void power of attorney, and in so interpreting said sale as to deprive these intervenors of their true rights under the mayorazgo founded by Don Antonio Tuason. Exhibit Tuason-1 shows that on June 8, 1894, the said Tomas Barcinas y Cruz, Tomas Barcinas y Reyes, Benita Barcinas y Cruz, and Maria Manibusan y Barcinas, through their attorney-in-fact Manuel de los Reyes, sold all their participations in one-fifth of the revenue of the mayorazgo which they had in possession as descendants of the younger daughter Eustaquia Ma Tuason, including all their rights and interest in the said one-fifth of the revenue, for the sum of P5,000. In the said deed of sale there was reproduced in full the power of attorney which said vendors had conferred on their attorney-in-fact Manuel de los Reyes, executed on July 4, 1893, in the City of Agaña, capital of Marianas Islands, before the judge of first instance acting as notary in the absence of the notary of said district. The appellants contend that the sale is null and void because the power of attorney which the vendors conferred on their agent was not ratified before a notary but before a judge of first instance. The referee, in passing upon the legal point involved, said: In order that the sale made by Manuel de los Reyes behalf of the Barcinas may be valid, a written power of attorney was sufficient, without the necessity of converting said power of attorney into a public document. (Section 335, No. 5, Code of Civil Procedure; article 1278, Civil Code. Without dis therefore, whether or not under the laws in force in the Marianas Islands in 1893, the judge of first instance could act as notary public, the indisputable fact remains that those named as grantors in the instrument in question executed said power of attorney; and this execution of the written power of attorney was sufficient to authorize the attorney-in-fact Manuel de los Reyes to execute a valid sale of the property of his principals.

The undersigned is of the opinion, therefore, that the deed Exhibit Tuason-1 legally transferred to the estate of Doña Teresa de la Paz what appears in said deed, belonging to the grantors therein named: The court affirmed the conclusion of the referee in the following language: The court agrees with the referee that, notwithstanding the execution of the power of attorney in the City of Agaña before the judge of first instance of the Marianas Islands the sale was valid, because according to the said Exhibit Tuason-1, the judge of first instance of said Islands, "Acted with the witnesses then present, Don Manuel Aflague and Don Juan del Rosario, in the capacity of notary public" in the absence of this official in that district (emphasis ours). The intervenors Barcinas, represented by Attorney Wolfson, have not shown that on the date of the execution of the power of attorney, June 8, 1894, there was a notary in the City of Agaña; on the contrary, said Exhibit Tuason-1 shows that there was no such notary in the district, hence, the judge of first instance acted in that capacity. There being no notary, we cannot insist that the power of attorney be executed before a notary. It was sufficient that it be executed before the judge of first instance acting in the capacity of notary public. Wherefore, the court is of the same opinion as the referee, that the sale executed by the intervenors Barcinas, Exhibit Tuason-1, in favor of the estate of Doña Teresa de la Paz is valid. The appellants have not cited any law especially applicable to the Marianas Islands at the time the power of attorney in question was executed, whereby the intervention of a notary in the execution of said kind of document was made absolutely necessary. In 1893 the present Civil Code was already in force in the country, and the provisions thereof applicable to the subject are as follows: ART. 1710. An agency may be express or implied. An express agency may be created by a public or private instrument or even orally. The acceptance may also be express or implied, the latter being inferred from the acts of the agent. ART. 1713. An agency created in general terms only includes acts of administration. In order to compromise, alienate, mortgage, or to execute any other act of strict ownership, an express power is required. The power to compromise does not give authority to submit the matter to arbitrators or friendly adjusters. The pertinent portion of section 335 of the Code of Civil Procedure, provides: SEC. 335. Agreements invalid unless made in writing. — In the following cases an agreement hereafter made shall be unenforceable by action unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or secondary evidence of its contents: xxx

xxx

xxx

5. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein, and such agreement, if made by the agent of the party sought to be charged, is invalid unless the authority of the agent be in writing and subscribed by the party sought to be charged. It, therefore, follows that under the legal provisions above quoted, the power conferred upon Manuel de los Reyes is valid although no notary public intervened in its execution. And the sale executed by said attorney-in-fact is likewise valid because in the execution of the corresponding deed the essential requisites provided by law were complied with. The above refuses appellants second, third, fourth assigned errors relating to the validity of the power of attorney and the deed of sale of the participations already referred to. The first assignment does not specify any error committed by the court and the appellants only make and re produce therein, as their own, the assignments of error of the intervenors-appellants in G.R. Nos. 36811 and 36840. It is not incumbent upon us to consider seriously an assignment of error of this nature, although the assignments of error made by the other appellants will be considered and resolved in due time. In resume, we find the four assigned errors of these appellants untenable. G.R. No. 36840 APPEAL OF ESTANISLAOA ARENAS AND OTHERS The herein appellants are likewise descendants of the founder of the mayorazgo, Some of them directly sold to the defendants their participations in one-fifth of the revenue and all their rights and interest in the mayorazgo; the others are descendants of other relatives of the founder who likewise sold their participations in one-fifth of the revenue and all their rights and interest in the mayorazgo in favor of the same defendants. The deeds evidencing the sales have been marked as Exhibits 2, 3, 4, 5, 6, 7, 10, 11 12, 13, 14, 16, and 17. The appellants impugn all the sales as null and void and in their brief assign the following errors: I. The court erred in holding that, by the deeds of sale executed by the intervenorsappellants, or their predecessors in interest, in favor of the defendants and the predecessors in interest of the intervenors Legarda and sisters, the participations of the former in the ownership and dominion of one-fifth of the properties of the mayorazgo were sold and in not declaring said sales null and void. II. The court erred in finding that on the date of the execution of the sale made by Israel Arenas the latter had no immediate successor and in disapproving the report of the referee on this question. III. The court erred in finding that Camila Tuason died after the year 1864, when the Disentailing Statute took effect in the Philippines, and not in 1863 as found by the referee." In support of the first assigned error, the following propositions are advanced: (1) That the vendors intended to sell only their participations in one-fifth of the revenue and, not the ownership or other rights which they had in themayorazgo, consequently, the sales were null and void for lack of said vendors' consent; (2) that the purchasers were administrators or trustees of the properties of

the mayorazgo, and, therefore, fall under the prohibition found in article 1459 of the Civil Code; (3) that the purchasers the spouses Legarda, at the time they purchased the participations of some of the intervenors, were legal administrators of the properties of the mayorazgo, and, therefore, lacked the capacity to buy in accordance with the provisions of the Novisima Recopilacion then applicable; (4) that the purchasers obtained the vendors' consent through fraud, and (5) that the said are moreover null and void under the express provisions of article 4, in connection with article 3, of the Disentailing Matute, for lack of prior formal appraisal and partition of the properties constituting the fifth of the mayorazgo. Considering the view we have taken in respect of the first assigned error, a view which we will hereafter set forth, it would seem unnecessary to answer the arguments advanced by the appellants. However, we will briefly state the following: After a careful examination of all the deeds of sale, we hold. as did the referee and the court, that the vendors sold not only their participations in the revenue but also all their rights and interest in the properties of themayorazgo. In other words, said vendors in fact sold their participations and rights in the ownership of themayorazgo, to which the one-fifth of the revenue was converted in view of the enforcement of the Disentailing Statute in the Islands. The purchasers, strictly speaking, were not legal administrators or fiduciaries of the rights sold to them by the vendors, at least in the sense in which the prohibition then existing was expressed and established. As the court correctly stated, the purchasers, in connection with the transactions, acted as mere coproprietors or tenants in common, and the right to buy which they then exercised was expressly recognized by law. The fraud imputed to the purchasers has not been proved; the evidence shows that the vendors had full knowledge of the rights which they sold and that thereby they conveyed to the vendees all the interest which they could have in the mayorazgo. And with respect to the lack of formal appraisal and partition of one-fifth of the properties of the mayorazgo, prior to the sales, requisites found in article 4, in connection with article 3, of the Disentailing Statute, it is sufficient to state our opinion that non-compliance therewith should not produce either the effect or the meaning attributed to them by the appellants. It seems to us that the court was right in interpreting that the appraisal, partition, and intervention of the immediate successor are required only in cases in which the actual possessor of properties or the one who receives the revenue desires to dispose of his participations in a specific and particular form, but not when, as in the case under consideration, undivided and indeterminate rights or participations were sold. In case of an hereditary estate, for instance, a coheir may sell his successory right, although undetermined, without the necessity either of a prior appraisal or partition of said estate or notice to or intervention by the other coheirs. We will now briefly state the view we have taken of the first assigned error. The most recent sales impugned were made between the year 1905 and 1910; the oldest deeds were executed between the years 1891 and 1898. On the other hand, the appellants challenged the validity of said sales for the first time in January and February, 1929. Theretofore, at least, nineteen years had elapsed as to the sale effected in 1910. We hold that the lapse of the period of nineteen years is more than that required for the prescription of the action of annulment began by the appellants through their complaints of intervention, and in support of this holding we recur here to all that we said on the subject in resolving the appeal interposed by the intervenors Legarda. We are likewise of the opinion that the appellants are now barred from claiming any right in connection with said sales under the doctrine of estoppel by laches. We repeat what we said on this point in the appeal of the Legardas,

to the effect that the validity of sales may not be questioned anew after the purchasers have enjoyed the participations sold and the fruits thereof for many years. The second and third assigned errors refer to the sales made by Isabel Arenas and Alejandro Camacho and brothers, respectively. The intervenor-appellant Rafael Arenas contends that the sale executed by his mother Isabel Arenas is null and void as to one-half because said vendor had an immediate successor at the time of the sale. The Camachos, in turn, allege that the sale they executed is likewise null and void as to one-half because, contrary to the finding of the court, they were the ones who received the revenue at the time the Disentailing Statute took effect, and they contend in this connection that their mother Camila Tuason died in 1863 and not after 1873, as found by the court. We do not find it necessary to discuss the question of fact thus raised, because in both cases prescription and the rule of estoppel by laches are applicable against the appellants. On both grounds we rule that the appellants may not now question the validity of the aforesaid sales. It follows from what has been said that the three errors assigned by the appellants are overruled as not well-founded. G.R. No. 36872 APPEAL OF THE DEFENDANTS AUGUSTO H. TUASON Y DELA PAZ AND OTHERS This appeal is interposed by the defendants who were the possessors of all the properties of the mayorazgo at the time the principal case was instituted and before the Bank of the Philippine Islands was appointed receiver. Said appellants impute to the appealed decision and order the following error: FIRST ERROR The lower court erred in not passing upon certain vital issues on the ground that they had been definitely concluded. SECOND ERROR The trial court erred in not finding that the fifth part of the mayorazgo belongs in fee simple to the defendants. THIRD ERROR The trial court erred in distributing the fifth part as follows: three-eighths thereof among all the descendants of the founder (including those of the first possessor of the mayorazgo) per stirps of great grandchildren, including those who have already died; and the remaining five eighths among the descendants of the five younger children of the founder who died leaving succession, distributing the same per stirps of said children. FOURTH ERROR The trial court erred in not finding that the plan of distribution more in conformity with the provisions of article 4 of the Disentailing Law, would be to assign to each recipient (whether plaintiff or intervenor) a portion of the one-fifth of the entail in the proportion that the pension which he used to receive bears to the net income of the fifth on the entail.

FIFTH ERROR The trial court erred in not distributing the three-eights exclusively among the defendants. SIXTH ERROR In case the preceding assignment of error be over ruled, we respectfully submit that the trial court erred in distributing the three-eights in equal portions per stirps of the great great grandchildren (tataranietos), including those who have already died, instead of distributing the same only among those that are living, or, more properly, instead of distributing the same per stirps of the children of the founder. SEVENTH ERROR The trial court erred in not finding what is the value in pesos of the different participations assigned to the different parties in this case. EIGHT ERROR The trial court erred in not finding that the plaintiffs having filed a personal action against the defendants asking judgment in the sum of five hundred thousand pesos (P500,000), for damages which the said parties agreed were the value of the one-half of the so-called family trust are now barred to claim participation in the properties them- selves thereby converting the action into one in rem. NINTH ERROR The trial court erred in finding that the sales executed by Mariano Arenas, Estanislaoa Arenas, Julio Tuason, Severino, Tuason, Encarnacion Rojo and Candelaria Rojo were null and void as to one-half thereof. TENTH ERROR Assuming that the said sales as to one-half thereof should be declared null and void, the trial court erred in not condemning the sellers or their successors in interest to return one-half of the price received by them from the purchasers, plus the legal interest thereof the time of the sale. ELEVENTH ERROR The trial court erred in finding that the sales executed by the intervenors or their predecessors in interest of any rights that they might have had in the fifth of the mayorazgo in question, did not cover the right that they had to participate in the three eighths which originally correspond to the three younger children of the founder who died without leaving succession. TWELVE ERROR The trial court erred in not requiring the referee to file an amended report in conformity with the order of the trial court dated April 9, 1931.

By way of preliminary observation we will state that it is not our intention to hold that the questions raised by the appellants in their first, second, third, fourth, fifth, sixth, and eighth assigned errors are res judicata because they have been submitted, discussed at length, and resolved in the decision rendered in the principal case, because we believe this to be unnecessary; but we understand, and so decide, that unless it is shown that said questions have been erroneously resolved and that there exist sufficient reasons justifying that we renounce the conclusions already reached, it is our duty to adhere to them and to apply the principles laid down in the aforesaid decision in so far as they are applicable to the same points raised anew in the instant appeal. The first assignment does not specify any error committed by the court, hence, we are not bound to resolve any specific question; but in the development of the idea which the appellants have apparently attempted to bring out, they argue in synthesis that in the resolution granting a new trial this court again left open for discussion the same points already considered and resolved as well as the new ones which the parties may desire to raise in the aforesaid new trial. An examination of said resolution, however, shows just the contrary. In the said resolution the following language was employed. Counsel for defendants insist upon their contentions maintained from the beginning and disposed of in our decision. They raise some points in their briefs, however which require a few brief-remarks. (Baretto vs. Tuason, 50 Phil., 888, 959.) xxx

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Resolving, therefore, said motion for reconsideration, we reiterate the following conclusions, declaring finally: (1) That the first-born possessor of this mayorazgo was a mere usufructuary of the entailed properties. (2) That this mayorazgo was a fideicamiso. (3) That the charge to distribute the fifth of the revenues from said properties was a family trust. (4) That article 4 of the Disentailing Law of October 11, 1820 is applicable to the present case. (5) That the fifth of the properties into which, by virtue of said law, the fifth of the revenue was converted on March 1, 1864, when the Disentailing Law became effective in the Philippines, has remained and subsists as a fideicomiso up to the present date. (6) That the plaintiffs' right of action has not prescribed. (7) That the registration of the entailed properties under Act No. 496 must, with respect to the fifth of the said properties conserved up to the present time as a fideicomiso, be held to have been made in favor of the beneficiaries of said fifth part. (8) That the plaintiffs, as well as any other descendants of the founder, are entitled to participate in the fifth of the properties of this mayorazgo in accordance with the sixth clause of the deed of foundation and article 4 of the Disentailing Law.

(9) The pronouncements made in our decision with respect as to the amount of the participation of each claimant shall be set aside in view of the motions of the intervenors which we about to examine. (Ibid., pp. 963, 964.) No clearer and more categorical language could have been employed to express the intention of the court to adhere to and reiterate the conclusions and principles already established in the decision originally rendered, notwithstanding the motion of reconsideration and new trial. Neither can there be any doubt as to the questions which the court considered definitely resolved and which should not be the subject of further discussion. That this court did not intend to allow the parties to raise anew the fundamental questions already resolved, and that the new trial should be limited exclusively to a determination of the amount to which the intervenors could be entitled in the fifth of the properties, is clearly shown by the following quoted paragraphs which form a part of the order found in the aforesaid resolution: (a) That the motion for reconsideration filed by counsel for the defendants is denied in so far as it is incompatible with the fundamental conclusions we have arrived at in the present cause and enumerated in the preceding resolution. xxx

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(e) That said Court of First Instance proceed to try this cause and render judgment as to the amount to which the original parties and those who may intervene may be en titled as their participation in the fifth of the properties of this mayorazgo. (Ibid p. 966.) Defendants-appellants intimate that the said resolution is without legal force because it was not concurred in by a sufficient majority of the members then composing this court. A sufficient answer to this is, that the aforesaid resolution was authorized and concurred in by eight of the nine members then composing this court. In the second assigned error, the appellants again insist that the naked ownership of the fifth of the properties of the mayorazgo belongs to them. This question was already definitely resolved in the decision as well as in the resolution on the motions of reconsideration and new trial wherein was stated: Counsel for defendants allege that the properties of this foundation passed into the hands of the heir, Jose Victoriano Tuason, completely free, one-half by testamentary inheritance and the other half by virtue of article 2 of the Disentailing Law. This, however, was not the will of the testator, Don Jose Severino Tuason, nor the will of his successors, all of whom respected the mayorazgo and held it as subsisting de facto. In no event could the properties pass into the hands of the heir Jose Victoriano Tuason completely free. It was necessary to preserve them intact until they were appraised and the fifth part thereof had been segregated for distribution among the recipients of the revenues and their immediate successors, in accordance with the provisions of article 4 of the statute. It is a fact that the trust subsisted and still subsists. The successive possessors of the entail have preserved and preserve the properties of the mayorazgo respecting and distributing the fifth of the revenue among the descendants of the younger children of the founder. But the entail could not and cannot continue perpetually. Its abolition was decreed by the statute as of the 1st day of March, 1864. Its perpetual survival would be contrary, not only to

the Disentailing Law of October 11, 1820, but also the Civil Code in force which, under articles 781 and 785, paragraph 2, positively prohibits perpetual entails. If up to the present time the entail in question subsists, this has been because the interested parties have been maintaining it without proceeding to the appraisal and distribution of the entailed properties, as required by articles 2 and 4 of the Disentailing Law; and in accordance with the doctrine announced by the Supreme Court of Spain on October 29, 1857, above cited, the properties of this mayorazgo, pre served de facto by the interested parties as entailed, legally retain this character for the purposes of their partition which must be effected in accordance with the statute of October 11, 1820. From what has been said it follows that since March 1, 1864, the date upon which the said Disentailing Law came into force in the Philippine Islands, the successive possessors of the properties of this mayorazgoconstituted themselves trustees, charged with the administration and preservation of the said properties and the distribution of the fifth of the revenue among the descendants of the younger children of the founder. Consequently, after the entail was abolished, one-half of the four-fifths of the proof Asgo continued subject to the trust in favor of its beneficiaries, the heirs of Jose Victoriano Tuason, who was the one called to succeed immediately to the mayorazgo on the date of its disentailment (article 2, Statute), and the fifth of the said properties in favor of the beneficiaries, the recipients of the fifth of the revenue in accordance with the foundation. Summing up the effects produced with respect to this mayorazgo by the Disentailing Law on the one hand, and the conduct of the interested parties on the other, we may say first, that the trust of the naked ownership instituted in favor of the descendants of the founder indefinitely was abolished, in consequence of the disentailment; and second, that the trust of the usufruct of the properties became converted into a trust of the properties themselves, the beneficiaries being the same, but as owners; that is to say, the first-born successor as to one-half of four-fifths of the said properties, and the descendants of the younger children of the founder with respect to the remaining fifth. (Ibid., pp. 936-938.) Resolving, therefore, said motion for reconsideration, we reiterate the following conclusions, declaring finally: xxx

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(5) That the fifth of the properties into which, by virtue of said law, the fifth of the revenue was converted on March 1, 1864, when the Disentailing Law became effective in the Philippines, has remained and subsists as a fideicomiso up to the present date. xxx

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(7) That the registration of the entailed properties under Art No. 496 must, with respect to the fifth of the said properties conserved up to the present time as a fideicomiso, be held to have been made in favor of the beneficiaries of said fifth part. (8) That the plaintiffs, as well as any other descendants of the founder, are entitled to participate in the fifth of the properties of this mayorazgo in accordance with the sixth clause of the deed of foundation and article 4 of the Disentailing Law. (Ibid., pp. 963, 964.) The arguments now advanced by the appellants in sup port of their second assigned error are not entirely new because they were already brought out when the question was submitted and

discussed in the principal case and we do not find therein any weighty reasons justifying our repudiation of the conclusions and principles established in the decision rendered in the original case. The third, fourth, fifth, and sixth assigned errors may be jointly considered because they all refer to the distribution of the one-fifth of the properties. In the paragraphs here after quoted of the original decision, it will be seen that the distribution of the fifth and those entitled to it under the instrument of foundation were already dealt with and resolved: PERSONS ENTITLED TO THE REMEDY The recipients of the fifth of the revenues are indicated in the sixth clause of the instrument of foundation, the text of which we again transcribe: "It shall be his duty to set apart one-fifth of the net revenue derived from the entail each year, and that one-fifth part shall be divided into eight parts, giving one to each of my eight children, and in their absence, to my grandchildren, but upon the understanding that if one or more of my children should die without succession, the part belonging to them shall be distributed among my children and other descendants of mine according to their needs and as prudence may dictate to him, so that, when the time arrives that none of my children are alive, it shall then be always understood that said fifth part shall be applied to all those of my descendants who are poor, the apportionment to be made by him prudently according to their needs and therefore the possessor of the entail is hereby charged to discharge this duty with conscientious scruple." (Ibid., pp. 941, 942.) xxx

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If the descendants of the younger children, subsequent to the grandchildren of the founder, are granted under certain circumstances the right to possess the mayorazgo itself, with all its properties, we do not see how it can be said that these descendants, subsequent to grandchildren, the sons of sons, were prohibited from receiving a fifth of the revenues of said properties. It is our understanding that the intention of the founder was not to restrict the grant of the usufruct of the fifth of the revenue by limiting it to a certain number of generations of the younger children, but that he intended to extend it to all of the descendants of the latter. If this is so we should apply to the case the rule of law of the Partidas (Rule 28, Title 34, 7th Partido), which says: "Privilegia recipiunt largum interpretationem voluntati consonan concedentis." (Privileges are to be interpreted with liberality in accordance with the will of him who grants them.) Furthermore, that the present plaintiffs are entitled to receive the fifth of the revenues has been repeatedly recognized by the defendants when they purchased, in 1905, from Don Jose Rocha y Ruiz, and in 1916 from Doña Remedios Aragon y Rocha their respective participations in the fifth of the revenue, according to paragraph 16 of the stipulation of facts, and while in the years 1917 to 1921 the said defendants delivered to Don Antonio Maria Barretto y Rocha, and to Don Santiago, Don Julio and Don Andres Rocha y Ruiz Delgado, and their sister, Doña Rosario; and in the years 1917 to 1922, to Doña Isabel, Doña Enriqueta, Doña Carmen, Don Antonio, Don Alfredo and Don Clodoaldo Rocha y Pereyra, Don Francisco Beech y Rojo, Don Ciriaco, Don Cayetano, Don Pablo Leon and Don Tomas Tuason, and to the minors Doña Consuelo, Don Juan, Doña Rosario and Doña Carmen Tuason, and Doña Victoria Rufina, Doña Ana Consolacion Tuason, and Doña Asuncion

Romana Tuason widow of Caballero, their respective participations in the fifth of the revenue, as appears from the cross-complaint of the defendants, admitted in para graph 8 of the stipulation of facts. And it appears that the said Don Jose Rocha y Ruiz was the son of Don Lorenzo Rocha, a grandson, in turn, of Doña Gregoria N. Tuason (Exhibit 6 and paragraphs 2 and 16 of the stipulation of facts): that Doña Remedios Aragon y Rocha is a relative of the founder (Exhibit 7, admitted in paragraph 16 of the stipulation of facts) ; and that the said recipients of the fifth of the revenue from the year 1917 to 1921 and from the year 1917 to 1922, are all descendants of grandchildren of the younger children of the founder. (Paragraphs 2 to 30, admitted in paragraph 1 of the stipulation of facts.) (Ibid., pp. 944, 945.) xxx

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Passing to the amount of the Participation which is due them respectively, for the purpose of determining this point we must have regard to the intention of the founder, as it is expressed in the instrument creating the mayorazgo. It was his will that the fifth of the revenue should he divided into eight parts, and that to each of his children, other than his first born, one part should be given. Upon the death of each of these children, by virtue of the provisions of the instrument of foundation, and by operation of law, their right to an eighth part of the revenue which they received during their lifetime was transmitted to their heirs. That is, each of these eight portions of the fifth of the revenue was transmitted from succession to succession, within the stirps of each of the eight younger children who died leaving succession. The heirs of a younger son or daughter could legally participate in the eight part corresponding to another stirps, as long " heirs in the direct line of this stirps survived; that is to say, each of the eight portions of the fifth, except those corresponding to young children born without succession. The heirs of a younger child could not legally participate in the eight corresponding to another stirps, while heirs of this stirps in, the direct line survive. That is to say, each one of the said eight parts of the fifth, except those corresponding to the younger children dying without succession, was preserved and transmitted from generation to generation within each respective stirps. This plan of division of participation, based upon the will of the founder and the precepts of the law, is that which in our judgment must continue to prevail, and is that which we shall follow in determining the proportion which corresponds to the plaintiffs in the half of the fifth of the properties of this foundation. Of the eight younger children four died without sucession and the other four are the descendants of the plaintiffs in this cause. Hence, four of the eight portions, that is, one-half of the fifth of the properties of this foundation, belong to the plaintiffs herein under the plan of division which has just been indicated. The other four portions, that is, the one-half of the said fifth, which would have corresponded to the stirps of the other four younger children, if they had died leaving succession, accrue, so to speak, both to the defendants of the younger children leaving succession and to the other descendants of the founder. The distribution of this accretion is made in obedience to a plan distinct from that above indicated, because the founder, foreseeing the contingency, did not prescribe a quota for each stirps of his younger children, but ordered that it he delivered to descendants of both classes without distinction of line or stirps. Consequently, this one-half in accretion should be distributed among the descendants of the founder in general, who are the plaintiffs and some of the defendants, but bearing in mind the different rights with which each heir participates, by reason of the greater or lesser proximity of his relationship to the founder, for the purpose

of determining if he is to inherit per capita or per stirpes. We say some of the defendants, because with the exception of the ten mentioned in paragraph 5 of the complaint, the other defendants are either persons whose relationship has not been determined (paragraph 6 of the complaint) or have refused to become parties to this action (paragraph 30 of the complaint). From what has been said it follows that one-half of the fifth of the properties corresponding to the younger sons leaving succession, four-fortieth parts (4/40) of the whole of the properties of this foundation must be divided into four equal portions, because one portion, or onefortieth part (1/40) corresponds to each stirps of the said four younger children. The other one-half of the said fifth, that is to say, the other four-fortieth parts (4/40) of the whole of the properties of this foundation must be distributed in general among the plaintiffs and some of the defendants, taking into consideration the circumstances of their respective heirships. (Ibid., pp. 946-948.) The foregoing paragraphs contain conclusions of fact and of law established after a careful study of the provisions found in the foundation and of the laws applicable to the case, and are squarely applicable to the facts recently proved at the new trial, except that five-eighths of the fifth should be divided among the descendants of the five (5) younger children with succession and the remaining three-eighths of the fifth among the relatives in general of the founder, because it developed that the younger daughter Eustaquia Ma. Tuason had left heirs, contrary to the stipulation of the plaintiffs and the defendants. The arguments advanced by the appellants in support of said assignments of error do not justify, in our opinion, a different result from that already reached; in truth they are merely repetitions of the same arguments already brought out by counsel for the same appellants. In the seventh assigned error, it is contended that the court erred in not reducing the respective participations of the parties to figures or pesos. It is true that the court did not undertake the arithmetical operations involved there in. but we cannot conceive of this as an error subject to modification or reversal, in view of the fact that there was then no necessity therefor, and that such work could be easily entrusted to the referee after this decision has become final and the records remanded to the court. By their eighth assigned error the defendants-appellants again reproduce their original special defense to the effect that the plaintiffs could not convert the personal action for damages which they had originally commenced into an action in rem, and that said plaintiffs are barred from claiming any participation in the properties of themayorazgo. This point was likewise considered and resolved in the decision in the principal case, wherein it was said: In addition to the arguments mentioned heretofore, counsel for defendants interpose as obstacles to the action of plaintiffs the registration of the title to the properties of the mayorazgo in favor of the defendants, mentioned in paragraph 11 of the first special defense, under Act No. 496, and the prescription of this action. The defendants Doña Paz Tuason de Gonzales, Doña Consuelo Tuason de Quimson, Don Juan Tuason and Doña Albina Tuason inter pose as a defense to this action the contention that the plaintiffs filed no claim whatever in the proceedings had upon the testamentary estate of Don Juan Jose Tuason de la Paz, the father of the said defendants. which testamentary proceedings were finally disposed of and filed June 25, 1920.

If, as we have found and decided, the successive possessors of the properties of this mayorazgo were and have been mere trustees of the said properties, holding them in trust for the benefit of the beneficiaries, part of whom are the recipients of the fifth of the revenues, and their descendants, the registration of the title to said properties under Act No. 496 in favor of the said defendant must be deemed to have been effected for the benefit of the beneficiaries of said properties, part of whom are the present plaintiffs. The doctrine established by this court in the case of Severino vs. Severino (44 Phil., 343), is applicable to this feature of the case. Although the plaintiffs endeavored to demonstrate that the said defendants registered the title by fraud, it is our opinion that the alleged fraud has not been proven in this action. Nevertheless, the existence of fraud is unnecessary to arrant the declaration that registration of the Title under Act No. 496 is not a legal obstacle to this action brought by plaintiffs, and the adjudication in favor of those among them who are entitled thereto of the portion pertaining to them of the properties so registered. It was said in the case of Gilbert vs. Hewetson (79 Minn., 326), cited with approval in the case of Severino vs. Severino, supra: "A receiver, trustee attorney, agent, or any other person occupying fiduciary relations respecting property or per sons, is utterly disabled from acquiring for his own benefit the property committed to his custody for management. This rule is entirely independent of the fact whether any fraud has intervened. No fraud in fact need be shown, and no excuse will be heard from the trustee." (Emphasis ours.) With respect to the plea of prescription, counsel for defendants contend that inasmuch as plaintiffs, prior to the filing of the present complaint, had made no effort to enforce their rights since the 1st day of March, 1864, their action is barred. But from the records it that up to the year 1922 the defendant have been recognizing in the entries in their books, and in deeds, such as Exhibits 6 and 7, signed by Don Augusto Tuason de la Paz, as grantee, the right of the descendants of the younger children of the founder to the fifth of the revenue, and therefore the trust which this charge implies; furthermore, said defendants made payments on account of the fifth of the revenue. These acts of recognition and payments, made during the said period of time, prevent the operation of prescription. Section 50, Code of Civil Procedure.) Furthermore, this being a case which deals with a trust which subsisted from the time of its foundation and by virtue thereof up to March 1, 1864, and thereafter down to the present time by the express will of the present parties, the defense of prescription cannot be entertained. By virtue of the said trust the possession of the said defendants could not be regarded as a basis for an acquisitive prescription in their favor against the plaintiffs because such possession has not been nor is it under claim of ownership, but a title held in the name and on behalf of the beneficiaries, some of whom are the plaintiffs in general. For this reason the defense of prescription cannot be enforced between the trustee and the beneficiaries while the trust relations continue, as was impliedly held in the case of the Government of the Philippine Islands vs. Abadilla(46 Phil., 642.) (Ibid., pp. 938-940.) Strictly speaking there was no alteration in the nature of the action then commenced by the plaintiffs. They claimed indemnity for damages in the amount of half a million pesos believing that the registration of the real properties of the mayorazgo in favor of the defendants and the issuance of the corresponding certificates of title, made the latter the exclusive owners thereof; but this court held that a trust being involved, the titles should be under stood as issued in favor of all the coproprietors, among them the plaintiffs, and in view of this ruling the plaintiffs were declared entitled, not to an indemnity, but to a participation in one-fifth of the aforesaid properties. From this it follows

that, although the plaintiffs were granted a relief different from that they had asked for, the rights which they invoked from the very beginning and upon which they based the action which they began, were, nevertheless, the same to wit, their rights as relatives or descendants of the founder of the mayorazgo. They erred in the choice of the remedy to which they were entitled, but they did not change the essential ground of the action. In either case the right which they wanted to enforce was the same, but it developed that the adequate remedy was not the, one they asked for but that granted to them by the court. In their ninth assigned error the appellants contend that the court erred in declaring null and void as to one-half the sales of their participations executed by the intervenors Mariano Arenas, Estanislaoa Arenas, Julio Tuason, Severino Tuason, Encarnacion Rojo, and Candelaria Rojo in favor of the said defendants-appellants. The referee in fact declared said sales null and void as to one-half, either because the vendors were the ones who received the revenue or because they had immediate successors at the time the Disentailing Statute took effect in the Islands. The court sustained the referee. Without going into an extended discussion, we rule that the said intervenors-vendors cannot now question the validity of the aforesaid sales because their action has pre scribed and they are now in estoppel by laches. All that we said in this connection in the appeal of the Legardas may be taken as reproduced herein. The most recent sale was made in 1916 and the first complaint of intervention questioning the validity of the sales was filed in 1926, that is, after the lapse of more than ten years. During all this time the defendants were in the enjoyment of the said participations without any protest or claim of any kind from any of the vendors. The time that has elapsed is more than that required for the prescription of the action to annul the sales, and estops the intervenors-vendors from questioning their validity. We find the error assigned tenable. The tenth assigned error requires no discussion because it was made conditionally, that is, in the event that the preceding one is not well-founded and is not sustained. Various intervenors or their predecessors sold their participations in the fifth of the mayorazgo which came from the younger children with succession as well as from those without succession, favor of the defendants. The referee last appointed was of the opinion that the sales of the participations which came from the younger children with succession, were valid, but not those which came from the younger children who died without succession. In its decision the court disapproved this conclusion and held that all the sales were valid. But in its order of April 8, 1931, in passing upon different motions of reconsideration, it concurred in the opinion of the referee and ruled that the sales of the participations coming from the younger children without succession were null and void because undetermined rights were transmitted thereby. We rule that the eleventh assigned error is well founded and that the sales in question are as valid as those made of the participations coming. from the younger children with succession. And on this point we repeat what we already said in the appeal of the Legardas, in resolving a similar case, that pursuant to the provisions of article 657 of the Civil Code, successory rights are transmitted from the death of the person leaving the hereditary estate, where fore. it cannot be said that in the aforementioned sales undetermined rights were conveyed. It is true that on the dates of the sales, the amount of the participations sold were not yet determined, but doubtless it could be fixed and reduced to figures through the appraisal and liquidation provided for by the Disentailing Statute.

The twelve and last assigned error states that the court should have required the referee to file an amended report pursuant to the order of April 8, 1931. The error, if any is no ground for either modification or reversal. There is no doubt that the referee should file his amended and final report, but this may be prepared and submitted for approval after the appeals have been disposed of and the present decision has become final. We find no merit in this assigned error. Summarizing what has been said in connection with this appeal we have: 1. That the first, second, third, fourth, fifth, sixth, seventh, eight, tenth and twelfth assigned error are without merit and must be as they are hereby overruled; 2. That the sales executed by Mariano Arenas, Estanislao Arenas, Julio Tuason, Severino Tuason, Encarnacion Rojo and Candelaria Rojo in favor of the defendants are valid in their entirety; thereby sustaining the ninth assigned error; and 3. That the sales executed by certain intervenors or their predecessors of their participations coming from the younger children without succession, in favor of the defendants, are valid; thereby sustaining likewise the eleventh assigned error. JUDGMENT In view of all the foregoing considerations, and disposing finally of all the appeals interposed, it is ordered: In case G.R. No. 36811 1. That the appealed decision and order be amended, in the sense that the sales executed by Tomasa Tuason de Tobias, Luis Tuason, and Pedro Tuason, in favor of the intervenors Legarda, are valid, and that the participations sold thereby should be adjudicated in favor of said purchasers; 2. That the appealed decision and order be modified, in the sense that the sales executed in favor of the intervenors Legarda of the participations coming from the younger children without succession, are valid, and, consequently, said participations should be adjudicated in favor of the said intervenors; 3. That the appealed decision and order be modified, in the ant of Santos Luciano Tuason, should be adjudicated in favor of the intervenors-appellants, and 4. That the appealed decision and order, in so far as they have been affected by the appeal interposed but have not been modified, are hereby affirmed; In case G.R. No. 36827 1. That the aforesaid appealed decision, in so far as it has been affected by the appeal interposed by the intervenors-appellants in this case, is hereby affirmed; In case G.R. No. 36840 1. That the decision of the court is hereby affirmed in so far as it has been affected by the appeal interposed in this case by the intervenors-appellants Estanislaoa Arenas and others;

In case G.R. No. 36872 1. That the appealed decision and order are hereby amended, in the sense that the sales executed by Mariano Arenas, Estanislaoa Arenas, Julio Tuason, Severino Tuason, Encarnacion Rojo, and Candelaria Rojo, in favor of the defendants-appellants, are valid in their entirety, and consequently. the participations transferred thereby should be adjudicated to the said purchasers. 2. That the said appealed decision and order be amended in the sense that the sales executed in favor of the defend ants-appellants of the participations coming from the younger children without succession, are valid in their entirety, and therefore, said participations should be adjudicated in favor of said defendants-appellants; and 3. That the said decision and order in so far as they have been affected by the appeal interposed in this case but have not been modified. are hereby affirmed. It is likewise ordered that the court of origin take the necessary steps looking to the adjudication and distribution among the parties entitled thereto of their respective participations, to the end that this mayorazgo case may be definitely closed. Without costs in this instance. So ordered. Avanceña, C.J., Malcolm, and Villa-Real, JJ., concur.

Separate Opinions STREET, J., concurring: In view of the fact that our order granting a new trial, reported in Baretto vs. Tuason (50 Phil., 888, 966), is considered by the court to be so limited as to prevent further consideration of the fundamentals, I deem it unnecessary to repeat the consideration which led me to dissent in part from the conclusions reached at the former hearing, and I therefore now concur. HULL, J., with whom concur GODDARD and DIAZ, JJ., concurring: I am constrained to concur in the result, feeling bound by the law of the case as it exist in this jurisdiction. (SeeCompagnie Franco-Indochinoise vs. Deutsch-Australische Dampschiffs Gesllschaft, 39 Phil., 474, and Zarate vs. Director of Lands, 39 Phil., 747.) If I were free to vote on the merits, I would deny all relief to plaintiffs. VICKERS, J., concurring: In the above entitled cases I voted to affirm the decisions of the lower court, with the modifications proposed by the ponente, and I hereby authorize the Chief Justice or the Justice acting in his place to certify that I voted in said cases as hereinabove stated. I certify that Justice J.C. Vickers took part in the consideration of the above enumerated cases, and voted to affirm the appealed decision, as modified in the prevailing opinion. — AVANCEÑA, C.J.

ABAD SANTOS, J., dissenting: I regret that I am unable to agree with the prevailing opinion in this case which is not only well-written but manifests conscientious and painstaking labor. In my judgment, however, it suffers from one vital defect which is that of having assumed as correct and binding the rulings laid down and conclusions reached in Barretto vs. Tuason (50 Phil., 888.) I am of the opinion (1) that these rulings and conclusions are fundamentally erroneous, and (2) that this court is not bound by them. 1. Granting that, as held in the case cited, the mayorazgo involved in this case as a family trust, the trust ceased on March 1, 1864, when the Disentailing Law of October 11, 1820, became effective in the Philippines. As declared by this court in that case on page 936: "But the entail could not and cannot continue perpetually. Its abolition was decreed by the statute as of the 1st day of March, 1864. Its perpetual survival would contrary, not only to the Disentailing Law of October 11, 1820, but also the Civil Code in force which, under articles 781 and 785, paragraph 2, positively prohibits perpetual entails." After March 1, 1864, the trust, as such, could not legally exist, irrespective of the subsequent conduct of the parties concerned. The effect of the effect of the Disentailing Law was to vest in the cestui or beneficiary both the beneficial and legal ownership of the trust property, subject only to the conditions prescribed under articles 2 and 3 of the Law as to the right of alienation. This gave the cestui his heirs or assigns, the right to possession of the trust property. The exercise of this right was subject to the law on the prescription of actions for the enforcement of rights of such nature. The record shows that the original action in these cases was not brought until August 2, 1923, long after the statute of limitations had run against it. Even granting that after the termination of the family trust, a resulting trust arose by reason of the subsequent conduct of the parties concerned, it appears from the stipulation of facts that such a resulting trust was repudiated ten years prior to the filing of the original complaint in these cases; and, by the prevailing cases, the general statutes of limitations are applicable to resulting trusts. (39 Cyc., 606.) "It is generally held that the rule that the statute of limitations does not run in favor of a trustee against the cestui que trust applies only to express trusts, and that implied or constructive trusts are within the operation of the statute, so that a suit to impose and enforce such a trust may become barred. Thus `whenever a person takes possession of property in his own and is afterward by matter of evidence or by construction of law changed into a trustee', the statute may be pleaded. This is true a fortiori where plaintiff seeks his remedy in a court of law having no equity jurisdiction. In the case of a constructive or implied trust, except where the trust is imposed on the ground of fraud which is not immediately discovered, or there has been a fraudulent concealment of the cause of action, the statute begins to run in favor of the party chargeable as trustee from the time when the wrong is done by which he becomes thus chargeable, or the time when the beneficiary can assert his rights; not from the time when demand is made on the trustee, or the trust is repudiated by him, for no repudiation of an implied or constructive trust is ordinarily necessary to mature a right of action and set the statute in motion." (20 Cyc., 1155-1158.) 2. This court is not bound by the rules laid down and conclusions reached in Barretto vs. Tuason, supra. In this connection, it should be observed at the outset that nothing has been adjudicated in that case. It is true that, at first, an adjudication was made therein, but on motion for a reconsideration it was ordered: xxx

xxx

xxx

(b) That the dispositive part of our decision in this cause be set aside.

(c) That the record in the present case, together with the petitions of intervention mentioned, be returned to the Court of First Instance of Manila in order that the new parties may intervene in this cause and prove their alleged rights, and that the original plaintiffs may, if they so desire, amend their complaint. xxx

xxx

xxx

(e) That said Court of First Instance proceed to try this cause and render judgment as to the amount to which the original parties and those who may intervene may be entitled as their participation in the fifth of the properties of this mayorazgo. xxx

xxx

xxx

It seems clear, therefore, that the case should not as it in fact does not, a precedent. Moreover, it should be borne in mind that the common law doctrine of stare decisis has not strictly followed in this jurisdiction. What has been followed here is the American theory of precedent which recognizes that "Case Law is not wholly bound by the rules of past generations. It is a `myth of the law', that stare decisis is impregnable or is anything more than a salutary maxim to promote justice. Although `certainty is the very essence of the law', the law may be changed by the courts by reversing or modifying a rule when the rule has been demonstrated to be erroneous either through failure of adequate presentation of proper consideration, or consideration out of due time of the earlier case, or when through changed conditions it has become obviously harmful or detrimental to society.' " (Pound, "Some Recent Phases of the Evolution of Case Law", Yale Law Journal [1922], vol. XXXI, pp. 361, 363.) In Hertz vs. Woodman (218 U. S., 205, 212; 30 Sup. Ct., 621, 622 [1910]), the Supreme Court of the United States, through Justice Lurton said: "The Circuit Court of Appeals was obviously not bound to follow its own prior decision. The rule of stare decisis, though one tending to consistency and uniformity of decision, is not flexible. Whether it shall be followed or departed from is a question entirely within the discretion of the court, which is again called upon to consider a question once decided." And in Adams Exp. Co. vs. Beckwith (100 Ohio St., 348, 351, 352; 126 N. E., 300, 301, [1919], the Supreme Court of Ohio said: "A decided case is worth as much as it weighs in reason and righteousness, and no more. It is not enough to say `thus saith the court.' It must prove its right to control in any given situation by the degree in which its supports the rights of a party violated and serves the causes of justice as to all parties concerned." The present tendency of American decisions is strongly away from the strict English doctrine of stare decisis, and towards the civilian theory of precedents. (Goodhart, Essays in Jurisprudence and the Common Law, pp. 50, 51, 65.) The civilian theory, as exemplified by the French practice, has been stated by Prof. Lambert of the University of Lyons in an article published in the Yale Law Journal: "In France, the judicial precedent does not, ipso facto, bind either the tribunals which established it nor the lower courts; and the Court of Cassation itself retains the right to go back on its own decisions. The courts of appeal may oppose a doctrine proclaimed by the Court of Cassation, and this opposition has sometimes led to a change of opinion on the part of the higher court. The practice of the courts does not become a source of the law until it is definitely fixed by the repetition of precedents which are in agreement on a single point." ("The Case Method in Canada and the Possibilities of its Adoptation to the Civil Law", Yale Law Journal [1929], vol. XXXIX, pp. 1, 14.) In a recent case, speaking of the doctrine of stare decisis, this court said:

Is the court with new membership compelled to follow blindly the doctrine of the Velasco case? The rule ofstare decisis is entitled to respect. Stability in the law, particularly in the business field, is desirable. But idolatrous reverence for precedent, simply as precedent, no longer rules. More important than anything else is that the court should be right. And particularly it is not wise to subordinate legal reason to case law and by so doing perpetuate error when it is brought to mind that the views now expressed conform in principle to the original decision and that since the first decision to the contrary was sent forth there has existed a respectable opinion of non-conformity in the court. Indeed, on at least one occasion has the court broken away from the revamped doctrine, while even in the last case in point the court was evenly divided as it was possible to be and still reach a decision. (Philippine Trust Company and Smith, Bell & Companyvs. Mitchell, p. 30, ante.) In conclusion, I believe that whatever rights of action the plaintiffs in these cases might have had, have either been bared by laches or prescribed. Hence they should take nothing by their actions. BUTTE, J., dissenting: I am of the opinion that the assignments of error of the defendants-appellants numbered 1, 2, 3, 4, 5, 6 and 8 should be sustained and I, therefore, dissent. A Torrens title was issued to the defendants-appellants in 1915 under the provisions of the Land Registration Act (Act No. 496). This court has repeatedly held that such titles are final, irrevocable and incontestable. From 1878, when Doña Teresa de la Paz succeeded to the estate of her child, Jose Victoriano Tuason, she held possession as owner until her death in 1890 when the property passed to the defendants all of whom are direct descendants of Doña Teresa de la Paz, From 1878 to 1923 when the present action was commenced — that is for forty-five years, the defendants and their predecessors in title held possession as owners. They have, therefore, acquired a title by prescription. (Articles 446, 447, 1959 and 1960, Civil Code. See also Kineald vs. Cabututan, 35 Phil., 383, 406.) The sixth clause of the instrument creating this estate tail (mayorazgo) dated February 25, 1794, did not create a family trust. Nor is there any evidence showing that the appellees or their predecessors in title come within the language of the sixth clause of that instrument which, at most, might be construed to be precatory trust. Nor was that precatory trust indeterminable. The possible beneficiaries thereof no longer existed in March 1, 1864 when the Spanish Statute of Disentailment was extended to the Philippine Islands. It is to be noted that article 4 of the Statute of Disentailment provided for the termination of family trust. The Statute of Disentailment, effective in the Philippines on March 1, 1864, abolished estates tail and provided that all properties entailed are restored to the class of absolutely free properties. The possessors of entailed estates were empowered at once to freely dispose of one-half of the entailed property, the other half to pass to the immediate successor to the title, who was empowered to dispose of it freely as owner. Under these provisions, after the death of Jose Tuason, his heir, on January 25, 1879, Teresa de la Paz took the title in fee simple to all the properties involved in this entailed estate. The plaintiffs, who at this late date seek to impress said title with a trust, are guilty of extreme laches. The Torrens title issued to the defendants in 1915 should be sustained.

Tordilla v Tordilla EN BANC G.R. No. 39547. May 3, 1934 In re Intestate estate of the deceased Francisco Tordilla, GAUDENCIA TORDILLA, PetitionerAppellee, v. MOISES TORDILLA, opponent-appellant. Manly & Reyes for Appellant. Ocampo & Cea and Buenaventura Blancaflor for Appellee. SYLLABUS 1. DESCENT AND DISTRIBUTION; PROPERTY SUBJECT TO COLLATION; ASSESSMENT OF PROPERTY DONATED. — Appellant’s contention in his third assignment of error that, where certain value is stated in a deed of donation, that value cannot be questioned when the properties are brought into collation, is incorrect, as article 1045 of the Civil Code provides for the assessment of the property at its actual value at the time of the donation. The actual value at the time of the donation is a question of fact which must be established by proof the same as any other fact. 2. ID.; ID.; FRUITS AND INTEREST. — The fruits and interest produced by property subject to collation must be ascertained under article 1049 of the Civil Code. (See Guinguing v. Abuton and Abuton, 48 Phil., 144.) 3. ID.; CONTRACTS WITH RESPECT TO FUTURE INHERITANCE. — The second portion of contract Exhibit H clearly relates to the anticipated future inheritance and, therefore, is null and void under the provisions of article 1271 of the Civil Code. 4. ID.; ARTICLE 840, CIVIL CODE, STILL IN FORCE. — The attention of the court was not called to any case in which article 840 of the Civil Code has been treated as entirely and completely repealed, and In re Intestate Estate of Tad-Y (46 Phil., 557), followed.

DECISION

HULL, J.:

This is an appeal from a decision of the Court of First Instance of Camarines Sur providing for the distribution of the estate of one Francisco Tordilla, who died intestate in Naga, Camarines Sur, on December 18, 1925, leaving as his only heirs his widow, a legitimate son, the defendant and appellant, and a recognized natural daughter, petitioner and appellee. It might be said by way of introduction that the record is voluminous and that many questions of fact could have been clearly established by direct means rather than to leave the question in doubt by presenting only circumstantial evidence. This is especially true as to the first and second assignments of error which read:

jgc:cha nrob les.co m.ph

"I. In including in the partition that residential lot containing 3352 square meters and more fully described as parcel (2) in the decision (69-70 R. A.) . II. In including ten (10) carabaos and six (6) cattle (Items 8 and 9 in Dec. at pp. 70-71 R. A.) among the properties partitioned and in not holding that said animals do not exist and never came to the possession of the estate." cralaw virtua1aw l ibra ry

In a prior proceeding between the deceased and a third party, the third party was given a right to

repurchase the land there in question. But the fact, standing alone, does not remove the lot from the properties left by the deceased. The fact is whether or not the third party had exercised his option to repurchase. That fact was well known to appellant and was easily susceptible of definite and accurate proof. He has seen fit to leave the record in doubt and, therefore, the finding of the trial court will not be disturbed. The same remarks are true as to the number of carabaos and cattle that the deceased had at the time of his death. The contention of appellant in the third assignment of error is that, where a certain value is stated in a deed of donation, that value cannot be questioned when the properties are brought into collation. This is incorrect, as article 1045 of the Civil Code provides for the assessment of the property at its actual valuation at the time of donation. The recital in the deed cannot therefore be controlling. The actual value at the time of the donation is a question of fact which must be established by proof the same as any other fact. The fourth assignment of error is not well taken. The original testimony was taken by a commissioner, and the report of the commissioner with the evidence was stricken from the files on motion for appellant. Thereafter the parties agreed to submit the case for the decision of the trial court on the evidence taken by the commissioner. Such a procedure waived the erroneous ruling on evidence by the commissioner. The appellant should have reserved the right to introduced additional evidence and should have tendered the proper evidence in the trial court. The trial court, with much experience, and after study of the evidence produced, held that the actual value of one of the properties was greater than that recited in the deed of donation, and also fixed the fruits and income from the donated properties at a higher figure than appellant thought just. The fruits and interest produced by property subject to collation must be ascertained under article 1049 of the Civil Code. (See Guinguing v. Abuton and Abuton, 48 Phil., 144.) There is some doubt in our mind as to the real value of the parcel in question and the amount of the income from the donated properties. But we cannot state from the fragmentary evidence which has been brought to our attention that the opinion of the trial court is contrary to the weight of the evidence, and, in case those figures are incorrect, what are the correct figures. On the questions of fact dealt with in the fifth and sixth assignments of error, after due consideration, we have determined to be guided by the judgment of the trial court. The seventh, eighth, and ninth assignments of error refer to the validity of Exhibit H, a contract entered into between the appellee and the appellant in another case and signed shortly before the death of their father. The contract is in the nature of a compromise and covered two items, namely, first, the support of the natural daughter which the brother agreed to assume for one year and, second, a proposed division of their future inheritance upon the death of their father. It is assumed that appellant has complied with his terms of the contract, and the father died before the obligation of the brother terminated. The second portion of the contract Exhibit H clearly relates to the anticipated future inheritance and, therefore, is null and void under the provisions of article 1271 of the Civil Code which reads: jgc:chanro bles. com.ph

"ART. 1271. All things, even future ones, which are not out of the commerce of man, may be the subjectmatter of contracts. "Nevertheless, no contract may be entered into with respect to future inheritances, except those the object of which is to make a division intervivos of the estate, in accordance with article 1056. "Any services not contrary to law or to good morals may also be the subject-matter of a contract."

cralaw virtua1aw l ibra ry

The action of the trial court in holding Exhibit H to be uncontroverted and predicating its final action on the terms of that document was erroneous and contrary to law. The tenth assignment of error reads: "In adjudicating to the natural daughter the same share or amount of properties as that adjudicated to the legitimate son." This assignment of error is based on article 840 of the Civil Code which provides: jg c:chan roble s.com .ph

"ART. 840. When the testator leaves legitimate children or descendants, and also natural children, legally acknowledged, each of the latter shall be entitled to one-half of the portion pertaining to each of the legitimate children who have not received any betterment, provided that a sufficient amount remains of the disposable portion, from which it must be taken, after the burial and funeral expenses have been paid.

"The legitimate children may pay the portion pertaining to the natural ones in cash, or in other property of the estate, at a fair valuation." cralaw virtua 1aw lib rary

Appellee contends that article 840 of the Civil Code has been repealed by the Code of Civil Procedure, based on the statement of this court in Concepcion v. Jose (46 Phil., 809). It is true that in the majority decision in that case it speaks of article 840 being repealed. While, with the question there considered, namely, from where the funeral expenses should be taken, the Code of Civil Procedure changed the rule as to those items from what had formerly been in the Civil Code, by reading the whole decision we have no hesitancy in saying that what the court then had in mind was not a repeal of the article but in fact merely a modification thereof. In the case of In re Intestate Estate of Tad-Y, found in the same volume (46 Phil., 557), this court, speaking through the Chief Justice, applied article 840 of the Civil Code in the following language: jgc:chanro bles. com.ph

"To determine the share that pertains to the natural child which is but one-half of the portion that in quality and quantity belongs to the legitimate child not bettered, the latter’s portion must first be ascertained. If a widow shares in the inheritance, together with only one legitimate child, as in the instant case, the child gets, according to the law, the third constituting the legitimate in full ownership, and the third available for betterment in naked ownership, the usufruct of which goes to the widow. Then the natural child must get one-half of the free third in full ownership and the other half of this third in naked ownership, from which third his portion must be taken, so far as possible, after deducting the funeral and burial expenses. . . . ."

cralaw virtua1aw l ibra ry

Our attention has not been called to any case in which this court has treated article 840 as entirely and completely repealed. We are therefore of the opinion that this case must be disposed of according to the above quotation from the case of Tad-Y. The eleventh assignment of error relates to a matter of accountancy which the court ordered to take place after its original decision had become in force and needs no further discussion at this time. The decision and orders of the trial court must therefore be reversed and the case remanded for further proceedings consonant with this opinion. Costs against appellee. So ordered. Malcolm, Villa-Real, Imperial and Goddard, JJ., concur.

Jaboneta v Gustilo G.R. No. 1641

January 19, 1906

GERMAN vs. RICARDO GUSTILO, ET AL., defendants-appellees. Ledesma, Sumulong and Del-Pan, Ortigas and Fisher for appellees.

JABONETA, plaintiff-appellant,

Quintos

for

appellant.

CARSON, J.: In these proceedings probate was denied the last will and testament of Macario Jaboneta, deceased, because the lower court was of the opinion from the evidence adduced at the hearing that Julio Javellana, one of the witnesses, did not attach his signature thereto in the presence of Isabelo

Jena, another of the witnesses, as required by the provisions of section 618 of the Code of Civil Procedure. The following is a copy of the evidence which appears of record on this particular point, being a part of the testimony of the said Isabeo Jena: Q.

1641

Who first signed the will?

A.

1641

I signed it first, and afterwards Aniceto and the others.

Q.

1641

Who were those others to whom you have just referred?

A. 1641 After the witness Aniceto signed the will I left the house, because I was in a hurry, and at the moment when I was leaving I saw Julio Javellana with the pen in his hand in position ready to sign (en actitud de firmar). I believe he signed, because he was at the table. . . . Q. will.

1641

State positively whether Julio Javellana did or did not sign as a witness to the

A. 1641 I can't say certainly, because as I was leaving the house I saw Julio Javellana with the pen in his hand, in position ready to sign. I believe he signed. Q.

1641

Why do you believe Julio Javellana signed?

A. 1641 Because he had the pen in his hand, which was resting on the paper, though I did not actually see him sign. Q.

1641

Explain this contradictory statement.

A. 1641 After I signed I asked permission to leave, because I was in a hurry, and while I was leaving Julio had already taken the pen in his hand, as it appeared, for the purpose of signing, and when I was near the door I happened to turn my face and I saw that he had his hand with the pen resting on the will, moving it as if for the purpose of signing. Q. 1641 State positively whether Julio moved his hand with the pen as if for the purpose of signing, or whether he was signing A.

I believe he was signing.

The truth and accuracy of the testimony of this witness does not seem to have been questioned by any of the parties to the proceedings, but the court, nevertheless, found the following facts: On the 26th day of December, 1901, Macario Jaboneta executed under the following circumstances the document in question, which has been presented for probate as his will: Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the document in question be written, and calling Julio Javellana, Aniceto Jalbuena, and Isabelo Jena as witnesses, executed the said document as his will. They were all together, and were in the room where Jaboneta was, and were present when he signed the document, Isabelo Jena signing afterwards as a witness, at his request, and in his presence and in the

presence of the other two witnesses. Aniceto Jalbuena then signed as a witness in the presence of the testator, and in the presence of the other two persons who signed as witnesses. At that moment Isabelo Jena, being in a hurry to leave, took his hat and left the room. As he was leaving the house Julio Javellana took the pen in his hand and put himself in position to sign the will as a witness, but did not sign in the presence of Isabelo Jena; but nevertheless, after Jena had left the room the said Julio Javellana signed as a witness in the presence of the testator and of the witness Aniceto Jalbuena. We can not agree with so much of the above finding of facts as holds that the signature of Javellana was not signed in the presence of Jena, in compliance with the provisions of section 618 of the Code of Civil Procedure. The fact that Jena was still in the room when he saw Javellana moving his hand and pen in the act of affixing his signature to the will, taken together with the testimony of the remaining witnesses which shows that Javellana did in fact there and then sign his name to the will, convinces us that the signature was affixed in the presence of Jena. The fact that he was in the act of leaving, and that his back was turned while a portion of the name of the witness was being written, is of no importance. He, with the other witnesses and the testator, had assembled for the purpose of executing the testament, and were together in the same room for that purpose, and at the moment when the witness Javellana signed the document he was actually and physically present and in such position with relation to Javellana that he could see everything which took place by merely casting his eyes in the proper direction, and without any physical obstruction to prevent his doing so, therefore we are of opinion that the document was in fact signed before he finally left the room. The purpose of a statutory requirement that the witness sign in the presence of the testator is said to be that the testator may have ocular evidence of the identity of the instrument subscribed by the witness and himself, and the generally accepted tests of presence are vision and mental apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p. 599, and cases there cited.) In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the witnesses are together for the purpose of witnessing the execution of the will, and in a position to actually see the testator write, if they choose to do so; and there are many cases which lay down the rule that the true test of vision is not whether the testator actually saw the witness sign, but whether he might have seen him sign, considering his mental and physical condition and position at the time of the subscription. (Spoonemore vs. Cables, 66 Mo., 579.) The principles on which these cases rest and the tests of presence as between the testator and the witnesses are equally applicable in determining whether the witnesses signed the instrument in the presence of each other, as required by the statute, and applying them to the facts proven in these proceedings we are of opinion that the statutory requisites as to the execution of the instrument were complied with, and that the lower court erred in denying probate to the will on the ground stated in the ruling appealed from. We are of opinion from the evidence of record that the instrument propounded in these proceedings was satisfactorily proven to be the last will and testament of Macario Jaboneta, deceased, and that it should therefore be admitted to probate. The judgment of the trial court is reversed, without especial condemnation of costs, and after twenty days the record will be returned to the court form whence it came, where the proper orders will be entered in conformance herewith. So ordered. Arellano, C.J., Torres, Mapa, and Johnson, JJ., concur.

Nera v Rimando G.R. No. L-5971

February 27, 1911

BEATRIZ NERA, vs. NARCISA RIMANDO, defendant-appellant. Valerio Fontanilla Anacleto Diaz for appellees.

and

ET

Andres

AL., plaintiffs-appellees,

Asprer

for

appellant.

CARSON, J.: The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will in the court below, is whether one of the subscribing witnesses was present in the small room where it was executed at the time when the testator and the other subscribing witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across which was hung a curtain which made it impossible for one in the outside room to see the testator and the other subscribing witnesses in the act of attaching their signatures to the instrument. A majority of the members of the court is of opinion that this subscribing witness was in the small room with the testator and the other subscribing witnesses at the time when they attached their signatures to the instrument, and this finding, of course, disposes of the appeal and necessitates the affirmance of the decree admitting the document to probate as the last will and testament of the deceased. The trial judge does not appear to have considered the determination of this question of fact of vital importance in the determination of this case, as he was of opinion that under the doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer room when the testator and the other describing witnesses signed the instrument in the inner room, had it been proven, would not be sufficient in itself to invalidate the execution of the will. But we are unanimously of opinion that had this subscribing witness been proven to have been in the outer room at the time when the testator and the other subscribing witnesses attached their signatures to the instrument in the inner room, it would have been invalid as a will, the attaching of those signatures under circumstances not being done "in the presence" of the witness in the outer room. This because the line of vision from this witness to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain separating the inner from the outer one "at the moment of inscription of each signature." In the case just cited, on which the trial court relied, we held that: The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have been seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature. But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription of each signature, must be such that they may see each other sign if they choose to do so. This, of course, does not mean that the testator and the subscribing witnesses may be held to have executed the instrument in the presence of each other if it appears that they

would not have been able to see each other sign at that moment, without changing their relative positions or existing conditions. The evidence in the case relied upon by the trial judge discloses that "at the moment when the witness Javellana signed the document he was actually and physically present and in such position with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the proper direction and without any physical obstruction to prevent his doing so." And the decision merely laid down the doctrine that the question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign. To extend the doctrine further would open the door to the possibility of all manner of fraud, substitution, and the like, and would defeat the purpose for which this particular condition is prescribed in the code as one of the requisites in the execution of a will. The decree entered by the court below admitting the instrument propounded therein to probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the appellant. Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.

De Gala v De Gala G.R. No. L-27989

February 8, 1928

Intestate of the deceased Pedro de Gala. SINFOROSO DE GALA, petitioner-appellee, vs. GENEROSO DE GALA and JOSEFA ALABASTRO, opponents-appellants. Jose G. Generoso and Araneta Abad Santos, Camus, Delgado & Recto for appellee.

&

Zaragoza

for

appellants.

STREET, J.: This is an administration proceeding from the Court of First Instance of the Province of Tayabas whereby the petitioner, Sinforoso de Gala, seeks to enforce the liquidation of the estate of his father, Pedro de Gala, deceased, against Josefa Alabastro, as widow, and Generoso de Gala, a son of the decedent and half-brother of the plaintiff, and to recover from them the hereditary portion which the plaintiff alleges pertains to him in said estate. Opposition was made to the proceeding by the two defendants, and this opposition finally took the form of a motion to exclude the plaintiff from the participation in the estate on the ground that he had no heritable interest therein. Upon considering this motion the trial court sustained the plaintiff's right and denied the motion. From this order the defendants appealed. The first point raised in the appellants' bill of exceptions has reference to a matter of procedure, which, in the view we take of the case, is not necessary to the decision. We therefore provisionally assume that no error was committed by the trial judge in entertaining the motion which gave origin to

the appealed order; and we pass at once to the consideration of the question of substantive law involved in the case. The facts are unfortunately few and undisputed. It appears that Pedro de Gala died intestate in the City of Manila on or about July 23, 1919, leaving an estate in the Province of Tayabas and in the City of Manila, consisting of real and personal property. It is stated in the petition that the value of this estate is approximately five hundred thousands pesos (P500,000), with an annual income of about fifty thousand pesos (P50,000). The defendants do not admit that the value of the estate reaches the amount stated, but it is evidently large. The plaintiff, Sinforoso de Gala, is a natural son of Pedro de Gala and was born on June 17, 1879, while Generoso de Gala, one of the defendants herein, is a legitimate son of Pedro de Gala and was born on July 17, 1881. As already stated, the other defendant, Josefa Alabastro, is the widow of Pedro de Gala The plaintiff, Sinforoso de Gala, was never recognized as a natural son by the voluntary act of his father, Pedro de Gala, in life; and in order to enforce recognition the plaintiff, on august 29, 1917, instituted an action against his father to compel recognition. While this litigation was pending Pedro de Gala died, and Josefa Alabastro and Generoso de Gala were substituted as defendants. When the cause was finally heard in the Supreme Court, upon appeal from a judgment of the Court of First Instance, which had been unfavorable to the plaintiff, said judgment was reversed and judgment was here entered requiring the defendants to recognize the plaintiff as the natural son of Pedro de Gala (De Gala, 42 Phil., 771). Pursuant to said judgment, and in order to obtain his share in the estate of his deceased father, the present proceeding was begun. The right of the plaintiff to participate in the estate of his deceased father is based upon articles 134 and 942 in relation with article 840 of the Civil Code, defining the heritable portion of a recognized natural child in case of the concurrence of such heir with one or more legitimate children. In this connection it will be remembered that the right of a recognized natural child to inherit any part of the estate of his father was, in Spanish law, first conferred by the Civil Code, which went into effect in the Philippine Islands on December 8, 1889. In support of the plaintiff's right to participate in the estate, reference is made to subsection 12 of the transitory provisions of the Civil Code wherein it is stated, in effect, that the estates of those who die, with or without will, subsequently to the taking effect of the Civil Code, shall be allotted and divided according to the Code, and that the legal portion given by the Code shall be respected. The defendants on the contrary question the heritable right of the plaintiff, basing their contention on No. 1 of the transitory provisions, as interpreted by this court in Rocha vs. Tuason and Rocha de Despujols (39 Phil., 976). The transitory provisions thus brought under discussion are vital to the case and are therefore here reproduced: Changes introduced by this Code prejudicial to rights acquired under prior civil law shall not have rotroactive effect. For the application of the corresponding legislation in cases not expressly determined in the Code, the following rule shall be observed: 1. Rights originating, according to prior legislation, in acts that occurred under the regimen of such legislation shall be governed thereby, even if the Code regulates them in some other way or does not recognize them. But if the right shall have been declared for the first time in this Code, it shall have effect at once, although the fact originating it may have occurred

under the former regimen, whenever it is not prejudicial to any other acquired right of equal origin. xxx

xxx

xxx

12. Rights to the inheritance of one who may have died, with or without a will, before this Code goes into effect, shall be governed by prior legislation. The inheritance of those dying afterwards, with or without a will, shall be allotted and divided in accordance with this Code, but in harmony, in so far as the latter permits it, with the testamentary dispositions. Therefore legal portions, betterments, and legacies shall be respected; but their amounts shall be reduced when it is not possible in any other manner to give to each participant in the inheritance the share pertaining to him according to this Code. From the facts already stated it will be seen that both the natural and the legitimate son of Pedro de Gala were born before the Civil Code went into effect in these Islands; while the death of the father and the enforced judicial recognition of the natural son occurred under the regimen of said Code. It is a tenable assumption that the legal recognition of the plaintiff as a natural son should be considered as effective from the date of the filing of the complaint in 1917; but if not to so, it was at least effective from the date of the judgment entered in 1992. For the purposes of this suit the point is unimportant, since it is clear that in any case legal recognition did not occur until long after the Civil Code became effective in these Islands. As the death of Pedro de Gala and the opening of the succession to his estate occurred under the regimen of the Civil Code, we are of the opinion that No. 12 of the Transitory Provisions is of exact and particular application, and that there is nothing in No. 1 of the same provisions which supplies any obstacle to the application of No. 12 to the facts of this case. In paragraph No. 12 it is expressly declared that the estates of those who die after the Code becomes effective shall be distributed according to the Code and that legal portions shall be respected. This language can have no other meaning than that the hereditary portion given to the recognized natural child By No. 3 of article 134 of the Civil Code shall be recognized as valid, for the circumstance that the plaintiff in this case, though beginning his action for acknowledgement within the life of his father, did not succeed in obtaining a judgment compelling recognition until after his father was dead cannot be considered in any wise prejudicial to him. That No. 12 of the Transitory Provisions is applicable to the estates of persons dying after the Civil Code went into effect is recognized in decisions of the Supreme Court of Spain dated respectively March 20, 1897, and June 24, 1897; and this doctrine is expounded by Manresa in his comment upon No. 12 as follows: Here is the legal reason and at the same time the determination of the scope and meaning of the rule of which we speak. It does not mean that the succession shall be governed by one or the other law according to whether the ancestor may have died before or after the Code went into effect, nor was there are need of making such a statement, because this is already provided for in rule 2, and what is provided for in the present rule by way of exception to what is provided for in the former is that the rights of forced heirs to the inheritance in successions opened after the Civil Code went into effect shall always be governed by the provisions of the latter, to which end the provisions of wills executed before May 1st, 1889, referring to the rights of said heirs, will be adjusted to the provisions of said Code. The reason of that is obvious, because in the matter of succession there is no vested right until the succession is opened that is, till the death of the person whose inheritance is in question, as we have already said on another occasion, and by the present it is made to conform with the precepts of modern legislation, harmonizing it and making it compatible with the transcedent reform effected by the Civil Code.

The Supreme Court, in its decision of June 24, 1897, giving the same explanation to the present rule, declared that the principle of the irretroactivity of the new law governs only such rights as originated under the regimen of the old law, it being well known that hereditary rights do not vest until the death of the person whose inheritance is in question. Therefore, they cannot be governed by the old law if the death is posterior to the new, which is the very thing we have stated as being the foundation of juridicial reason of this precept. Directing our attention now to No. 1 of the Transitory Provisions, which is supposed by the appellants to be incompatible with the right asserted by the plaintiff, we note first that proposition No. 1 of a more general nature than proposition No. 12, since the latter provides a particular rule for the distribution of the estates of persons dying after the Code enters into effect, while No. 1 states a general rule for harmonizing certain competing rights. In accordance then with the rule that the particular governs the general, No. 12 must control over No. 1. It will be noted that, under No. 1, where there are two competing rights, one of which is given for the first time by the Code, the law looks to the acts in which the two competing rights may have originated, and when it is found that the acts which gave origin to the competing rights occurred prior to the adoption of the Code, the right newly recognized in the Code cannot be given effect, because prejudicial to the other right. In the case before us, while it is evident that the successional right of the legitimate son, Generoso de Gala, did not become vested until the death of his father, yet it is also clear that this right is derived from a fact which occurred under law anterior to the Code, namely, the fact that said son was born with the status of legitimate son. It is this fact which originated the successional right of this heir. But with respect to the natural son, Sinforoso de Gala, it is equally obvious that the act that gave origin to his successional right was the enforced judicial recognition resulting from the civil action begun by the plaintiff in 1917. This act occurred under the Code. In this connection it must be remembered that the fact of birth does not give the natural child any heritable right whatever in the estate of his father. This is equally true of both the old and the new law. It is the recognition of the natural child that originates his right of succession, recognized for the first time in the Code. As a consequence the two competing successional rights in this case do not have the same origin in respect to the estate of law under which they occurred, since one had its origin in an act occuring under the anterior legislation while the other had its origin in an act occuring under the Code. Upon analyzing the language of No. 1 of the Transitory Provisions it will be noted that it is only when the two competing rights have their origin in acts occuring under the old regime that the restriction applies which prohibits the right newly granted in the Code from having it due effect. If the acts originating the two rights occur under the Code, or if either occurs under the Code, the Code provision must rule, and the right newly given by it prevails. It is obvious, for instance, that if, in the case before us, the legitimate soon had been born after the Code entered into effect, the provisions of the Code would have prevailed; also that the same result would have followed in such case even if the act of recognition of the natural so had occurred prior to the date when the Code took effect. But it is supposed that the decision of this court in the case of Rocha vs. Tuason and Rocha de Despujols (39 Phil., 976), is inconsistent with the right of the plaintiff. This is a mistake. In the case mentioned both the natural and the legitimate child were born under the regimen of the old law, and in addition to this there had been a tacit recognition of the natural child — which was valid under said law — long prior to the date when the Civil Code went into effect. Both the competing right in that case therefore had their origin in acts which occurred under the earlier regimen; and this circumstance makes the very case for the application of the restriction upon the new right which is expressed in the closing words of No. 1 of the Transitory Provisions. It may be noted that three members of the court dissented in Rocha vs. Tuason and Rocha de Despujols, a circumstance which detracts in some measure from the weight of the precedent; and the attorneys for the appellee have drawn in question the correctness of the judgment. Into this controversy it is not necessary to

enter. We may observe, however, that the opinion of the court in the case referred to makes no reference to No. 12 of the Transitory Provisions, which if reflectively weighed, might have been found pertinent to the decision. The order appealed from is in our opinion without error, and it is accordingly affirmed, with costs. So ordered. Johnson, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

Separate Opinions MALCOLM, J., concurring: I concur on the ground that the parties having expressly stipulated and admitted that Sinforo de Gala is a natural son of the deceased Pedro de Gala, and as such entitled to a certain portion of the estate, are now estopped to deny those facts. The appellants cannot be permitted to advance a new theory of the case at this late date intended to demonstrate that Sinforo de Gala has no right to the inheritance left by Pedro de Gala. Suits should move forward not backward. There must be an end to litigation sometime. Although opposing interests have succeeded in keeping Sinforo de Gala out of all participation in his inheritance for ten years, they should no longer be allowed to do so. There is no need of the Court deciding any of the nice legal questions presented.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-30289

March 26, 1929

SERAPIA DE GALA, petitioner-appellant, vs. APOLINARIO GONZALES and SINFOROSO ONA, opponents-appellants. Sumulong, Lavides & Hilado for petitioner-appellant. Godofredo Reyes for opponent-appellant Gonzales. Ramon Diokno for opponent-appellant Ona. OSTRAND, J.: On November 23, 1920, Severina Gonzales executed a will in which Serapia de Gala, a niece of Severina, was designated executrix. The testatrix died in November, 1926, leaving no heirs by force of law, and on December 2, 1926, Serapia, through her counsel, presented the will for probate. Apolinario Gonzales, a nephew of the deceased, filed an opposition to the will on the ground that it had not been executed in conformity with the provisions of section 618 of the Code of Civil Procedure. On April 2, 1927, Serapia de Gala was appointed special administratrix of the estate of the deceased. She returned an inventory of the estate on

March 31, 1927, and made several demands upon Sinforoso Ona, the surviving husband of the deceased, for the delivery to her of the property inventoried and of which he was in possession. On September 20, 1928, the Court of First Instance ordered Sinforoso Ona to deliver to Serapia de Gala all the property left by the deceased. Instead of delivering the property as ordered, Sinforoso filed a motion asking the appointment of Serapia de Gala as special administratrix be cancelled and that he, Sinforoso, be appointed in her stead. The motion was opposed by both Apolinario Gonzales and by Serapia de Gala, but on March 3, 1928, it was nevertheless granted, Serapia was removed, and Sinforoso was appointed special administrator in her place, principally on the ground that he had possession of the property in question and that his appointment would simplify the proceedings. In the meantime and after various continuances and delays, the court below in an order dated January 20, 1928, declared the will valid and admitted it to probate. All of the parties appealed, Serapia de Gala from the order removing her from the office of special administratrix, and Apolinario Gonzales and Sinforoso Ona from the order probating the will. Serapia's appeal requires but little discussion. The burden of the argument of her counsel is that a special administrator cannot be removed except for one or more of the causes stated in section 653 of the Code of Civil Procedure. But that section can only apply to executors and regular administrators, and the office of a special administrator is quite different from that of regular administrator. The appointment of a special administrator lies entirely in the sound discretion of the court; the function of such an administrator is only to collect and preserve the property of the deceased and to return an inventory thereof; he cannot be sued by a creditor and cannot pay any debts of the deceased. The fact that no appeal can be taken from the appointment of a special administrator indicates that both his appointment and his removal are purely discretionary, and we cannot find that the court below abused its discretion in the present case. In removing Serapia de Gala and appointing the present possessor of the property pending the final determination of the validity of the will, the court probably prevented useless litigation. The appellants Sinforoso Ona and Apolinario Gonzales argue that the will in question was not executed in the form prescribed by section 618 of the Code of Civil Procedure as amended by Act No. 2645. That section reads as follows: No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be written in the language or dialect known by the testator and signed by him, or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, on the left margin, and said pages shall be numbered correlatively in letters placed on the upper part of each sheet. The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other. The principal points raised by the appeal are (1) that the person requested to sign the name of the testatrix signed only the latter's name and not her own; (2) that the attestation clause does not mention the placing of the thumb-mark of the testatrix in the will; and (3) that the fact that the will had been signed in the presence of the witnesses was not stated in the attestation clause but only in the last paragraph of the body of the will. The first point can best be answered by quoting the language of this court in the case of the Estate of Maria Salva, G. R. No. 26881:1 An examination of the will in question disclosed that it contains five pages. The name of the old woman, Maria Salva, was written on the left hand margin of the first four pages and at the end of the will. About in the center of her name she placed her thumb-mark. About in the center of her name she placed her thumb-mark. The three witnesses likewise signed on the left-hand margin and at the end of the will. On these facts, the theory of the trial judge was that under the provisions of section 618 of the Code of Civil Procedure, as amended by Act No. 2645, it was essential to the validity of the will that the person writing the name of the maker of the will also sign. Under the law prior to the amendment, it had been held by this court that where a testator is unable to write and his name is signed by another at his request, in his presence and in that of the subscribing witnesses thereto, it is unimportant, so far as the validity of the will is concerned, whether the person who writes the name of the testator signs his own or not. (Barut vs. Cabacungan (1912), 21 Phil., 461). But his Honor, the trial judge emphasizes that the amendment introduced into the law the following sentence: 'The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, on the left margin . . ..' This requirement, it is said, was not lived up to in this instance. There is, however, an entirely different view which can be taken of the situation. This is that the testatrix placed her thumb-mark on the will in the proper places. When, therefore, the law says that the will shall be 'signed' by the testator or testatrix, the law is fulfilled not only by the customary written signature but by the testator or testatrix' thumb-mark. The construction put upon the word 'signed' by most courts is the original meaning of a signum or sign, rather than the

derivative meaning of a sign manual or handwriting. A statute requiring a will to be 'signed' is satisfied if the signature is made by the testator's mark. (28 R. C. L., pp. 116-117). The opinion quoted is exactly in point. The testatrix thumb-mark appears in the center of her name as written by Serapia de Gala on all of the pages of the will. The second and third points raised by Sinforoso Ona and Apolinario Gonzales are sufficiently refuted by quoting the last clause of the body of the will together with the attestation clause, both of which are written in the Tagalog dialect. These clauses read as follows: Sa katunayang ang kasulatang ito, na may anim na dahon, ay siyang naglalaman ng aking huling tagubilin, at sa hindi ko kaalamang lumagda ng aking pangalan, ipinamanhik ko sa aking pamankin na si Serapia de Gala na isulat ang aking pangalan at apellido, at sa tapat ay inilagda ko ang titik ng kanang daliri kong hinlalaki, sa walkas at sa bawat isa sa anim (6) na dahon ng kasulatang ito, at ito's ginawa niya sa kautusan at sa harap ko at ng tatlong saksing nagpapatutuo sa huli ngayon ika dalawang po't tatlo ng Nobiembre ng 1920. (Sgd.) SEVERINA GONZALES Pinatutunayan namin na ang kasulatang ito na binubuo ng anim (6) na dahon na pinirmahan sa harap namin ni Serapia de Gala sa kahilingan ni Severina Gonzales sa wakas at sa mga gilid ng bawa't isa sa anim (6) na dahon at isinaysay na ang kasulatang ito ay siyang huling habilin o testamento ni Severina Gonzales, ay pinirmahan namin, bilang mga saksi sa wakas at sa gilid ng bawa't dahon sa harap at sa kahilingan ng tinurang testadora, at ang bawat isa sa amin ay pumirma sa harap ng lahat at bawat isa sa amin, ngayon ika dalawang po't tatlo ng noviembre ng taong 1920 ng taong 1920. (Sgd.) ELEUTERIO NATIVIDAD JUAN SUMULONG FRANCISCO NATIVIDAD The translation in English of the clauses quoted reads as follows: In virtue of this will, consisting of six pages, that contains my last wish, and because of the fact that I cannot sign my name, I request my niece Serapia de Gala to write my name, and above this I placed my right thumb-mark at the end of this will and to each of the six pages of this document, and this was done at my direction and in the presence of three attesting witnesses, this 23rd of November, 1920. (Sgd.) SEVERINA GONZALES We certify that this document, which is composed of six (6) sheets and was signed in our presence by Serapia de Gala at the request of Severina Gonzales at the end and on the margins of each of the six (6) sheets and was declared to contain the last will and testament of Severina Gonzales, was signed by us as witnesses at the end and on the margins of each sheet in the presence and at the request of said testatrix, and each of us signed in the presence of all and each of us, this 23rd day of November of the year 1920. (Sgd.) ELEUTERIO NATIVIDAD JUAN SUMULONG FRANCISCO NATIVIDAD As will be seen, it is not mentioned in the attestation clause that the testatrix signed by thumb-mark, but it does there appear that the signature was affixed in the presence of the witnesses, and the form of the signature is sufficiently described and explained in the last clause of the body of the will. It maybe conceded that the attestation clause is not artistically drawn and that, standing alone, it does not quite meet the requirements of the statute, but taken in connection with the last clause of the body of the will, it is fairly clear and sufficiently carries out the legislative intent; it leaves no possible doubt as to the authenticity of the document. The contention of the appellants Sinforoso Ona and Apolinario Gonzales that the fact that the will had been signed in the presence of the witnesses was not stated in the attestation clause is without merit; the fact is expressly stated in that clause. In our opinion, the will is valid, and the orders appealed from are hereby affirmed without costs. So ordered. Johnson, Street, Malcolm, Johns, Romualdez and Villa-Real, JJ., concur.

Garcia v Lacuesta G.R. No. L-4067

November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner, vs. JULIANA LACUESTA, ET AL., respondents. Elviro L. Peralta and Hermenegildo A. Prieto Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

for

petitioner.

PARAS, C.J.: This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause: We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was signed by himself and also by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it bears the corresponding number in letter which compose of three pages and all them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and each and every one of us witnesses. In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred forty three, (1943) A.D. (Sgd.) NUMERIANO EVANGELISTA

(Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his name. The Court of Appeals, reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses; (2) to certify that after the signing of the name of the testator by Atty. Javier at the former's request said testator has written a cross at the end of his name and on the left margin of the three pages of which the will consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other. In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such recital because the cross written by the testator after his name is a sufficient signature and the

signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429. It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark. What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each other. Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered. Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.

ORALS Uson v Del Rosario 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 Brigido G. Estrada for appellant.

for

appellee.

BAUTISTA ANGELO, J.: This is an action for recovery of the ownership and possession of five (5) parcels of land situated in the Municipality of Labrador, Province of Pangasinan, filed by Maria Uson against Maria del Rosario and her four children named Concepcion, Conrado, Dominador, and Faustino, surnamed Nebreda, who are all of minor age, before the Court of First Instance of Pangasinan. Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands involved in this litigation. Faustino Nebreda left no other heir except his widow Maria Uson. However, plaintiff claims that when Faustino Nebreda died in 1945, his common-law wife Maria del Rosario took possession illegally of said lands thus depriving her of their possession and enjoyment. Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and her husband, the late Faustino Nebreda, executed a public document whereby they agreed to separate as husband and wife and, in consideration of their separation, Maria Uson was given a parcel of land by way of alimony and in return she renounced her right to inherit any other property that may be left by her husband upon his death (Exhibit 1).

After trial, at which both parties presented their respective evidence, the court rendered decision ordering the defendants to restore to the plaintiff the ownership and possession of the lands in dispute without special pronouncement as to costs. Defendants interposed the present appeal. There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda, former owner of the five parcels of lands litigated in the present case. There is likewise no dispute that Maria del Rosario, one of the defendants-appellants, was merely a common-law wife of the late Faustino Nebreda with whom she had four illegitimate children, her now co-defendants. It likewise appears that Faustino Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With this background, it is evident that when Faustino Nebreda died in 1945 the five parcels of land he was seized of at the time passed from the moment of his death to his only heir, his widow Maria Uson (Article 657, old Civil Code).As this Court aptly said, "The property belongs to the heirs at the moment of the death of the ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that moment, therefore, the rights of inheritance of Maria Uson over the lands in question became vested. The claim of the defendants that Maria Uson had relinquished her right over the lands in question because she expressly renounced to inherit any future property that her husband may acquire and leave upon his death in the deed of separation they had entered into on February 21, 1931, cannot be entertained for the simple reason that future inheritance cannot be the subject of a contract nor can it be renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and Ynchausti Steamship Co., 41 Phil., 531). But defendants contend that, while it is true that the four minor defendants are illegitimate children of the late Faustino Nebreda and under the old Civil Code are not entitled to any successional rights, however, under the new Civil Code which became in force in June, 1950, they are given the status and rights of natural children and are entitled to the successional rights which the law accords to the latter (article 2264 and article 287, new Civil Code), and because these successional rights were declared for the first time in the new code, they shall be given retroactive effect even though the event which gave rise to them may have occurred under the prior legislation (Article 2253, new Civil Code). There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are declared for the first time shall have retroactive effect even though the event which gave rise to them may have occurred under the former legislation, but this is so only when the new rights do not prejudice any vested or acquired right of the same origin. Thus, said article provides that "if a right should be declared for the first time in this Code, it shall be effective at once, even though the act or event which gives rise thereto may have been done or may have occurred under the prior legislation, provided said new right does not prejudice or impair any vested or acquired right, of the same origin." As already stated in the early part of this decision, the right of ownership of Maria Uson over the lands in question became vested in 1945 upon the death of her late husband and this is so because of the imperative provision of the law which commands that the rights to succession are transmitted from the moment of death (Article 657, old Civil Code). The new right recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in dispute. As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of pity or compassion, agreed to assign the lands in question to the minor children for the reason that they were acquired while the deceased was living with their mother and Maria Uson wanted to assuage somewhat the wrong she has done to them, this much can be said; apart from the fact that this claim is disputed, we are of the opinion that said assignment, if any, partakes of the nature of a

donation of real property, inasmuch as it involves no material consideration, and in order that it may be valid it shall be made in a public document and must be accepted either in the same document or in a separate one (Article 633, old Civil Code). Inasmuch as this essential formality has not been followed, it results that the alleged assignment or donation has no valid effect. WHEREFORE, the decision appealed from is affirmed, without costs. Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Labrador, JJ., concur.

Ibarle v Po G.R. No. L-5064

February 27, 1953

BIENVENIDO A. vs. ESPERANZA M. PO, defendant-appellant. Quirico del Mar Daniel P. Tumulak and Conchita F. Miel appellee.

IBARLE, plaintiff-appellant,

for

appellant.

TUASON, J.: This action commenced in the Court of First Instance of Cebu to annul a deed of sale conveying to the defendant, in consideration of P1,700, one undivided half of a parcel of land which previously had been sold, along with the other half, by the same vendor to the plaintiff's grantors. judgment was against the plaintiff. The case was submitted for decision upon an agreed statement of facts, the pertinent parts of which are thus summarized in the appealed decision: 1st. — That Leonard j. Winstanley and Catalina Navarro were husband and wife, the former having died on June 6, 1946 leaving heir the surviving spouse and some minor children; 2nd. — hat upon the death of L.J. Winstanley, he left a parcel of land described under Transfer Certificate of title No. 2391 of the Registry of Deeds of the Province of Cebu; 3rd. — That the above mentioned property was a conjugal property; 4th. — That on April 15, 1946, the surviving spouse Catalina Navarro Vda. de Winstanley sold the entire parcel of land to the spouses Maria Canoy, alleging among other things, that she needed money for the support of her children; 5th. — That on May 24, 1947, the spouses Maria Canoy and Roberto Canoy sold the same parcel of land to the plaintiff in this case named Bienvenido A. Ebarle; 6th. — That the two deeds of sale referred to above were not registered and have never been registered up to the date;

7th. — That on January 17, 1948 surviving spouse Catalina Navarro Vda. de Winstanley, after her appointment as guardian of her children by this court (Special proceeding no. 212R) sold one-half of the land mentioned above to Esperanza M. Po, defendant in the instant case, which portion belongs to the children of the above named spouses. As stated by the trial Judge, the sole question for determination is the validity of the sale to Esperanza M. Po, the last purchaser. This question in turn depends upon the validity of the prior ale to Maria Canoy and Roberto Canoy. Article 657 of the old Civil Code provides: "The rights to the succession of a person are transmitted from the moment of his death." in a slightly different language, this article is incorporated in the new Civil Code as article 777. Manresa, commending on article 657 of the Civil Code of Spain, says: 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. It is immaterial whether a short or long period of time lapses between the death of the predecessor and the entry into possession of the property of the inheritance because the right is always deemed to be retroactive from the moment of death. (5 Manresa, 317.) The above provision and comment make it clear that when Catalina Navarro Vda. de Winstanley sold the entire parcel to the Canoy spouses, one-half of it already belonged to the seller's children. No formal or judicial declaration being needed to confirm the children's title, it follows that the first sale was null and void in so far as it included the children's share. On the other hand, the sale to the defendant having been made by authority of the competent court was undeniably legal and effective. The fact that it has not been recorded is of no consequence. If registration were necessary, still the non-registration would not avail the plaintiff because it was due to no other cause than his own opposition. The decision will be affirmed subject to the reservation, made in said decision, of the right of the plaintitff and/or the Canoy spouses to bring such action against Catalina Navarro Vda. de Winstanley as may be appropriate for such damages as they may have incurred by reason of the voiding of the sale in their favor. Paras, C.J., Feria, Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ.,concur.

Nacar v Nistal G.R. No. L-33006 December 8, 1982 NICANOR NACAR, petitioner, vs. CLAUDIO A. NISTAL as Municipal Judge of Esperanza, Agusan del Sur, PROVINCIAL SHERIFF of Agusan del Sur, ILDEFONSO JAPITANA and ANTONIO DOLORICON, respondents. Tranquilino O. Calo, Jr. for petitioner.

Ildefonso Japitana and Antonio Boloricon for respondents.

GUTIERREZ, JR., J.: Nicanor Nacar filed this petition for certiorari, prohibition, and mandamus with preliminary injunction to annul an order of the respondent judge of the municipal court of Esperanza, Agusan del Sur directing the attachment of seven (7) carabaos, to effect the return of four (4) carabaos seized under the questioned order, and to stop the respondent judge from further proceeding in Civil Case No. 65. Respondent Ildefonso Japitana filed the complaint in Civil Case No. 65 and entitled it "Claim Against the Estate of the Late Isabelo Nacar With Preliminary Attachment:" On the basis of this complaint, including an allegation "that defendant are (sic) about to remove and dispose the above-named property (seven carabaos) with intent to defraud plaintiff herein", and considering that Mr. Japitana had given security according to the Rules of Court, Judge Nistal issued the order commanding the provincial sheriff to attach the seven (7) heads of cattle in the possession of petitioner Nicanor Nacar. Actually only four (4) carabaos were attached because three (3) carabaos had earlier been slaughtered during the rites preceding the burial of the late Isabelo Nacar. Nicanor Nacar filed a motion to dismiss, to dissolve writ of preliminary attachment, and to order the return of the carabaos. Private respondent Japitana filed an opposition to this motion while intervenor Antonio Doloricon filed a complaint in intervention asserting that he was the owner of the attached carabaos and that the certificates of ownership of large cattle were in his name. The respondent Judge denied the motion to dismiss prompting Mr. Nacar to come to the Supreme Court. In a resolution dated January 12, 1971, this Court, upon the posting of a bond in the amount of P1,000.00, directed the issuance of a preliminary mandatory injunction. The respondents were enjoined from further enforcing the writ of attachment and to return the seized carabaos. The judge was restrained from further proceeding with Civil Case No. 65. We find the petition meritorious. The pertinent portions of the complaint filed by Mr. Japitana with the municipal court read as follows: ILDEFONSO JAPITANA Civil Case No. 65 Plaintiff, FOR: — Versus — CLAIM AGAINST THE ESTATE NICANOR NACAR THE LATE ISABELO NACAR WITH Defendant. PRELIMINARY ATTACHMENT x ---------------------------------x COMPLAINT COMES NOW the undersigned plaintiff and before this Honorable Court, respectfully avers:

xxx xxx xxx That at various dates since the year 1968, the defendant have (sic) incurred indebtedness to the plaintiff in the total sum of TWO THOUSAND SEVEN HUNDRED NINETY ONE (P2,791.00) PESOS, which said amount had long been overdue for payment, and which the defendant up to this date have (sic) not been able to pay, despite repeated demands from the plaintiff; That the defendant Isabelo Nacar died last April, 1970 leaving among other things personal property consisting seven (7) heads of carabaos now in the possession of the defendant Nicanor Nacar; That plaintiff herein file a claim against the estate of the late Isabelo Nacar to recover the aforementioned sum of P2,791.99; That defendant are (sic) about to remove and dispose the above mentioned property with intent to defraud plaintiff herein; That plaintiff is willing to put up a bond for the issuance of a preliminary attachment in an amount to be fixed by the Court, not exceeding the sum of P 2,791.00 which is the plaintiff's claim herein; WHEREFORE, it is respectfully prayed that pending the hearing of this case, a writ of preliminary attachment be issued against the properties of the defendant to serve as security for the payment or satisfaction of any judgment that may be recovered herein; and that after due hearing on the principal against the defendant for the sum of P 2,791,00 with legal interest from September 15, 1970 plus costs of this suit. (Annex "A", p. 7 rollo). In his motion to dismiss, the petitioner raised the issue of lack of jurisdiction and absence of a cause of action. Mr. Nacar averred that the indebtedness mentioned in the complaint was alleged to have been incurred by the late Isabelo Nacar and not by Nicanor Nacar. There was, therefore, no cause of action against him. The petitioner also stated that a municipal court has no jurisdiction to entertain an action involving a claim filed against the estate of a deceased person. The same grounds have been raised in this petition. Mr. Nacar contends: xxx xxx xxx 9. That the respondent judge acted without jurisdiction.The municipal courts or inferior courts have NO jurisdiction to settle the estate of deceased persons. The proper remedy is for the creditor to file the proper proceedings in the court of first instance and file the corresponding claim. But assuming without admitting that the respondent judge had jurisdiction, it is very patent that he committed a very grave abuse of discretion and totally disregarded the provisions of the Rules of Court and decisions of this honorable Court when he issued an ex-parte writ of preliminary attachment, when there is no showing that the plaintiff therein has a sufficient cause of action, that there is no other security for the claim sought to be enforced by the plaintiff; or that the amount claimed in the action is as much as the sum for which the order is prayed for above all legal counterclaims; There was no bond to answer for whatever damages that herein petitioner may suffer; (Rollo, pp. 3- 4).

xxx xxx xxx The respondent judge tried to avoid the consequences of the issues raised in the motion to dismiss by stating that although the title of the complaint styled it a claim against the estate of the late Isabelo Nacar, the allegations showed that the nature of the action was really for the recovery of an indebtedness in the amount of P2,791.99. The rule cited by the judge is correctly stated but it is hardly relevant to the contents of the complaint filed by Mr. Japitana. It is patent from the portions of the complaint earlier cited that the allegations are not only vague and ambiguous but downright misleading. The second paragraph of the body of the complaint states that the defendant (herein petitioner Nicanor Nacar) at various dates since the year 1968 incurred debts to the plaintiff in the sum of P2,791.00. And yet, in the subsequent paragraphs, one clearly gathers that the debts were actually incurred by the late Isabelo Nacar, who died several months before the filing of the complaint. The complaint which the respondent judge reads as one for the collection of a sum of money and all the paragraphs of which are incidentally unnumbered, expressly states as a material averment: xxx xxx xxx That plaintiff herein file (sic) a claim against the estate of the late Isabelo Nacar to recover the aforementioned sum of P2,791.00; xxx xxx xxx Under the circumstances of this case, respondent Japitana has no cause of action against petitioner Nacar.Mathay v. Consolidated Bank and Trust Company (58 SCRA 559) gives the elements of a valid cause of action: A cause of action is an act or omission of one party in violation of the legal right of the other. Its essential elements are, namely: (1) the existence of a legal right in the plaintiff, (2) a correlative legal duty in the defendant, and (3) an act or omission of the defendant in violation of plaintiff's right with consequential injury or damage to the plaintiff for which he may maintain an action for the recovery of damages or other appropriate relief. ( Ma-ao Sugar Central Co., Inc. vs. Barrios, et al., 79 Phil. 666, 667; Ramitere et al. vs. Montinola Vda. de Yulo, et al., L-19751, February 28, 1966, 16 SCRA 251, 255). On the other hand, Section 3 of Rule 6 of the Rules of Court provides that the complaint must state the ultimate facts constituting the plaintiff's cause of action. Hence, where the complaint states ultimate facts that constitute the three essential elements of a cause of action, the complaint states a cause of action; (Community Investment and Finance Corp. vs. Garcia, 88 Phil. 215, 218) otherwise, the complaint must succumb to a motion to dismiss on that ground. Indeed, although respondent Japitana may have a legal right to recover an indebtedness due him, petitioner Nicanor Nacar has no correlative legal duty to pay the debt for the simple reason that there is nothing in the complaint to show that he incurred the debt or had anything to do with the creation of the liability. As far as the debt is concerned, there is no allegation or showing that the petitioner had acted in violation of Mr. Japitana's rights with consequential injury or damage to the latter as would create a cause of action against the former.

It is also patent from the complaint that respondent Japitana filed the case against petitioner Nacar to recover seven (7) heads of carabaos allegedly belonging to Isabelo Nacar which Japitana wanted to recover from the possession of the petitioner to answer for the outstanding debt of the late Isabelo Nacar. This matter, however, is only ancillary to the main action. The ancillary matter does not cure a fatal defect in the complaint for the main action is for the recovery of an outstanding debt of the late lsabelo Nacar due respondent Japitana, a cause of action about which petitioner Nacar has nothing to do. In fact the fatal defect in the complaint was noticed by the respondent court when it advised respondent Japitana to amend his complaint to conform with his evidence and from the court's admission that it was inclined to dismiss the case were it not for the complaint in intervention of respondent Doloricon. Respondent Doloricon filed his complaint for intervention on the ground that the four carabaos, subject of the writ of attachment, were actually his carabaos. Thus, the respondent court in its Order denying the petitioner's motion to dismiss, to dissolve writ of preliminary attachment and in order the return of the carabaos said: ... Antonio Doloricon manifested before this Court that he is filing a third-party complaint alleging that he is the true and lawful owner of the carabaos in questions. IN VIEW OF ALL THE FOREGOING, this Court for the interest of both parties will not for the meantime dismiss this case. Antonio Doloricon is hereby given 10 days from receipt hereof within which to file his third-party complaint. The plaintiff who in his opposition to defendant's motion to dismiss pray (sic) for the custody of the carabaos. This Court further requires plaintiff to put up the additional bond of P I,000.00 after which the latter may be entitled of (sic) the custody of the carabaos subject of litigation pending final termination of this case. (Rollo, pp. 18-19) The respondent court's reason for not dismissing the case is contrary to applicable precedents on the matter. We ruled in Mathay v. Consolidated Bank and Trust Company, supra: Section I, Rule 16 of the Rules of Court, providing in part that: Within the time for pleading a motion to dismiss may be made on any of the following grounds; ... (g) That the complaint states no cause of action. ... explicitly requires that the sufficiency of the complaint must be tested exclusively on the basis of the complaint itself and no other should be considered when the ground for motion to dismiss is that the complaint states no cause of action. Pursuant thereto this Court has ruled that: As a rule the sufficiency of the complaint, when challenged in a motion to dismiss, must be determined exclusively on the basis of the facts alleged therein' (Uy Chao vs. De La Rama Steamship Co., Inc., L-14495, September 29, 1962, 6 SCRA 69, 72. See also De Jesus, et al. vs. Belarmino et al., 95 Phil. 365, 371; Dalandan, et at. vs. Julio, et al., L- 19101, February 29, 1964, 10 SCRA 400; Ramitere et al. vs. Montinola Vda. de Yulo, et al., L-19751, February 28, 1966, 16 SCRA 250, 254; Acuna vs. Batac Producers Cooperative Marketing Association, Inc., et al., L-20338, June 30, 1967, 20 SCRA 526, 531)

Hence, it was error for the respondent court not to dismiss the case simply because respondent Doloricon filed the complaint for intervention alleging that he owned the carabaos. Moreover, even assuming that respondent Japitana had a legal right to the carabaos which were in the possession of petitioner Nacar, the proper procedure would not be to file an action for the recovery of the outstanding debts of the late Isabelo Nacar against his stepfather, the petitioner Nacar as defendant. As we said in Maspil v. Romero (61 SCRA 197): Appropriate actions for the enforcement or defense of rights must be taken in accordance with procedural rules and cannot be left to the whims or caprices of litigants. It cannot even be left to the untrammeled discretion of the courts of justice without sacrificing uniformity and equality in the application and effectivity thereof. Considering the foregoing, the respondent court's denial of the motion to dismiss the complaint and its issuance of a writ of attachment based on the allegations of the complaint are improper. With this conclusion, we find no need to discuss the other issue on whether or not the procedural rules on the issuance of a writ of attachment were followed by the respondent court in issuing the subject writ of attachment. WHEREFORE, the petition is hereby granted. The preliminary mandatory injunction issued on January 13, 1971 is made permanent and the cash bond filed by the petitioner in connection therewith is ordered returned to him. SO ORDERED. Teehankee (Chairman), Melencio-Herrera, Plana and Relova, JJ., concur.

Separate Opinions

VASQUEZ, J., concurring: I concur in the result. The fundamental error committed by the private respondents was in pursuing their claim in an ordinary action; and that by the respondent municipal judge in entertaining the same. As can be seen from the caption and the body of the complaint filed in Civil Case No. 65, the claim of the private respondents was not against herein petitioner Nicanor Nacar but against the estate of the deceased Isabelo Nacar. It is a claim for money arising from unpaid indebtedness granted on various dates. Isabelo Nacar died before the said complaint was filed. It does not appear that any proceeding has been filed to settle his estate. Under these facts, the filing of an ordinary action to recover said claim is not allowed in any court. Even if settlement proceedings had been taken to settle the estate of Isabelo Nacar, the suit to

recover the claim of the private respondents may not be filed against the administrator or executor of his estate. This is expressly provided for in Section 1 of Rule 87 of the Rules of Court, as follows: No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; ... . The claim of private respondents, being one arising from a contract, may be pursued only by filing the same in the administration proceedings that may be taken to settle the estate of the deceased Isabelo Nacar. If such a proceeding is instituted and the subject claim is not filed therein within the period prescribed, the same shall be deemed "barred forever." (Sec. 5, Rule 86, Rules of Court). Even if this action were commenced during the lifetime of Isabelo Nacar, the same shall have to be dismissed, and the claim prosecuted in the proper administration proceedings (Sec. 21, Rule 3, Ibid.). It would seem that the main purpose of the private respondents in filing Civil Case No. 65 was to attach the seven carabaos owned by Isabelo Nacar. A case had to be filed in order to justify the issuance of a writ of attachment, unfortunately, said remedy may not be allowed. The carabaos, if really owned by Isabelo Nacar, pertained to his estate upon his death. The claim of the private respondents may only be satisfied by a voluntary act on the part of the heirs of Isabelo Nacar, or pursued in the appropriate settlement proceedings. A municipal court may not entertain such a proceeding, it not being vested, under the law then in force, with probate jurisdiction. Civil Case No. 65 should accordingly be dismissed and the writ of attachment issued therein dissolved.

Separate Opinions VASQUEZ, J., concurring: I concur in the result. The fundamental error committed by the private respondents was in pursuing their claim in an ordinary action; and that by the respondent municipal judge in entertaining the same. As can be seen from the caption and the body of the complaint filed in Civil Case No. 65, the claim of the private respondents was not against herein petitioner Nicanor Nacar but against the estate of the deceased Isabelo Nacar. It is a claim for money arising from unpaid indebtedness granted on various dates. Isabelo Nacar died before the said complaint was filed. It does not appear that any proceeding has been filed to settle his estate. Under these facts, the filing of an ordinary action to recover said claim is not allowed in any court. Even if settlement proceedings had been taken to settle the estate of Isabelo Nacar, the suit to recover the claim of the private respondents may not be filed against the administrator or executor of his estate. This is expressly provided for in Section 1 of Rule 87 of the Rules of Court, as follows: No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; ... .

The claim of private respondents, being one arising from a contract, may be pursued only by filing the same in the administration proceedings that may be taken to settle the estate of the deceased Isabelo Nacar. If such a proceeding is instituted and the subject claim is not filed therein within the period prescribed, the same shall be deemed "barred forever." (Sec. 5, Rule 86, Rules of Court). Even if this action were commenced during the lifetime of Isabelo Nacar, the same shall have to be dismissed, and the claim prosecuted in the proper administration proceedings (Sec. 21, Rule 3, Ibid.). It would seem that the main purpose of the private respondents in filing Civil Case No. 65 was to attach the seven carabaos owned by Isabelo Nacar. A case had to be filed in order to justify the issuance of a writ of attachment, unfortunately, said remedy may not be allowed. The carabaos, if really owned by Isabelo Nacar, pertained to his estate upon his death. The claim of the private respondents may only be satisfied by a voluntary act on the part of the heirs of Isabelo Nacar, or pursued in the appropriate settlement proceedings. A municipal court may not entertain such a proceeding, it not being vested, under the law then in force, with probate jurisdiction. Civil Case No. 65 should accordingly be dismissed and the writ of attachment issued therein dissolved.

Torres v Lopez G.R. No. L-24569

February 26, 1926

MANUEL LUZ LOPEZ vs. MARGARITA LOPEZ, opponent-appellee.

DE

TORRES, petitioner-appellant and BUENO, appellant,

Araneta & Zaragoza Marcaida, Capili & Ocampo and Thomas Cary Welch for appellee.

for

appellant.

MALCOLM, J.: This case concerns the probate of the alleged will of the late Tomas Rodriguez y Lopez. Tomas Rodriguez died in the City of Manila Philippine Islands. On February 25, 1924, leaving a considerable estate. Shortly thereafter Manuel Torres, one of the executors named in the will asked that the will of Rodriguez be allowed. Opposition was entered by Margarita Lopez, the first cousin of the deceased on the grounds: (1) That the testator lacked mental capacity because at the time of senile dementia and was under guardianship; (2) that undue influence had been exercised by the persons benefited in the document in conjunction with others who acted in their behalf; and (3) that the signature of Tomas Rodriguez to the document was obtained through fraud and deceit. After a prolonged trial judgment was rendered denying the legalization of the will. In the decision of the trial judge appeared, among others, these findings: All this evidence taken together with the circumstances that before and at the time Tomas Rodriguez was caused to sign the supposed will Exhibit A, and the copies thereof there already existed a final judgment as to his mental condition wherein he was declared physically and mentally incapacitated to take care of himself and manage his estate shows in

a clear and conclusive manner that at the time of signing the supposed will of Tomas Rodriguez did not possess such mental capacity as was necessary to be able him to dispose of his property by the supposed will. But even supposing as contended by petitioner's counsel that Tomas Rodriguez was at the time of execution of the will, competent to make a will, the court is of the opinion that the will cannot be probated for it appears from the declaration of the attesting witness Elias Bonoan that when the legatee Luz Lopez presented the supposed will, Exhibit A, to Tomas Rodriguez, she told him to sign said Exhibit A because it was a document relative to the complaint against one Castito, which Exhibit 4, then pending in the justice of the peace court, and for the further reason that said Tomas Rodriguez was then under guardianship, due to his being mentally and physically incapacitated and therefore unable to manage his property and take care of himself. It must also be taken into account that Tomas Rodriguez was an old man 76 years of age, and was sick in the hospital when his signature to the supposed will was obtained. All of this shows that the signature of Tomas Rodriguez appearing in the will was obtained through fraudulent and deceitful representations of those who were interested in it. (Record on Appeal, p. 23) From the decision and judgment above-mentioned the proponents have appealed. Two errors are specified, viz: (1) The court below erred in holding that at the time of signing his will, Tomas Rodriguez did not possess the mental capacity necessary to make the same, and (2) the court below erred in holding that the signatures of Tomas Rodriguez to the will were obtained through fraudulent and deceitful representations, made by persons interested in the executions of said will. The record is voluminous — close to two thousand typewritten pages, with a varied assortment of exhibits. One brief contains two hundred seventy-four pages, the other four hundred fifteen pages. The usual oral argument has been had. The court must scale this mountains of evidence more or less relevant and of argument intense and prolific to discover the fertile valleys of fact and principle. The topics suggested by the assignments of error — Testamentary Capacity and Undue Influence — will be taken up separately and in order. An attempt will be made under each subject first to make findings of fact quite separate and apart from those of the judge and second to make findings of law and the law by rendering judgment. I. TESTAMENTARY CAPACITY A. Facts. — For a long time prior to October, 1923, Tomas Rodriguez was in feeble health. His breakdown was undoubtedly due to organic weakness, to advancing years and to an accident which occurred in 1921 (Exhibit 6). Ultimately, on August 10 1923, on his initiative, Tomas Rodriguez designated Vicente F. Lopez as the administrator of his property (Exhibit 7). On October 22, 1923, Margarita Lopez petitioned the Court of First Instance of Manila to name a guardian for Tomas Rodriguez because of his age and pathological state. This petition was opposed by Attorney Gregorio Araneta acting on behalf of Tomas Rodriguez for the reason that while Rodriguez was far from strong on account of his years, he was yet capable of looking after his property with the assistance of his administrator, Vicente F. Lopez. The deposition of Tomas Rodriguez was taken and a perusal of the same shows that he was able to answer nearly all of the questions propounded intelligently (Exhibit 5-g). A trial had at which considerable oral testimony for the petitioner was received. At the conclusion of the hearing, an order was issued by the presiding judge, declaring Tomas Rodriguez incapacitated to take care of himself and to manage his property and naming Vicente F. Lopez as his guardian. (Exhibit 37).

Inasmuch as counsel for the appellee make such of one incident which occurred in connection with the guardianship proceedings, it may as well be mentioned here as later. This episode concerns the effort of deputy sheriff Joaquin Garcia to make service on Tomas Rodriguez on October 31, 1923. We will let the witness tell in his own words what happened on the occasions in question: I found him lying down on his bed. . . . And when it (the cleaning of his head) was finished, I again entered his room, and told him that I had an order of the court which I wanted to read as I did read to him, but after reading the order he asked me what the order meant; 'I read it to you so that you may appear before the court, understand,' then I read it again, but he asked what the order said; in view of that fact I left the order and departed from the house. (S. R., p. 642.) To return to our narrative — possibly inspired by the latter portion of the order of Judge Diaz, Tomas Rodriguez was taken to the Philippine General Hospital on November 27, 1923. There he was to remain sick in bed until his death. The physician in charge during this period was Dr. Elias Domingo. In the clinical case record of the hospital under the topic "Diagnosis (in full)," we find the following "Senility; Hernia inguinal; Decubitus" (Exhibit 8). On the door of the patient's room was placed a placard reading — "No visitors, except father, mother, sisters, and brothers." (Testimony of head nurse physician, there were permitted to visit the patient only the following named persons: Santiago Lopez, Manuel Ramirez, Romana Lopez, Luz Lopez de Bueno, Remedio Lopez, Benita Lopez, Trinidad Vizcarra, Apolonia Lopez, Antonio Haman, and Gregorio Araneta ((Exhibit 9). The list did not include the names of Margarita Lopez and her husband Antonio Ventura. Indeed the last named persons experienced considerable difficulty in penetrating in to the room of Rodriguez. Santiago Lopez states that on one occasion when he was visiting Tomas Rodriguez in the hospital , Rodriguez expressed to him a desire to make a will and suggested that the matter be taken up with Vicente F. Lopez (S. R., p. 550). This information Santiago Lopez communicated to Vicente F. Lopez, who then interviewed Maximino Mina, a practicing attorney in the City of Manila, for the purpose of securing him to prepare the will. In accordance with this request, Judge Mina conferred with Tomas Rodriguez in the hospital in December 16th and December 29th. He ascertained the wishes of Rodriguez and wrote up a testament in rough draft. The attorney expected to return to the hospital on December 31st to have the will executed but was unable to do so on account of having to make a trip to the provinces. Accordingly, the papers were left with Santiago Lopez. In corroboration of the above statements, we transcribe a portion of Judge Mina's testimony which has not been challenged in any way: ARANETA: Q. Will you please tell your motive for holding an interview with Vicente Lopez? MAXIMINO MINA: A. Then I arrived in the house of Vicente Lopez, after the usual greeting and other unimportant things, he consulted me or presented the question as to whether or not D. Tomas could make his will, having announced his desire to do so. I told him that it seemed that we were not called upon to decide or give an opinion as to whether or not he can make a will; it is a question to be submitted to the court, but as he had announced his desire, it is our duty to comply with it. Then he requested me to do what was necessary to comply with his wishes: I told him I was to see him; then we agreed that on the morning next to the following evening that is on the 16th, I should go to the General Hospital and so I did. Q. Did you go to the hospital in the evening of the 16th? — A. Yes, sir.

Q. Did you meet D. Tomas? — A. Yes, sir. Q. Did D. Tomas tell you his desire to make a will? OCAMPO: Leading. ARANETA: I withdraw. What, if anything, did D. Tomas tell you on that occasion when you saw him there? — A. He told me that. Q. Please tell us what conversation you had with D. Tomas Rodriguez? — A. The conversation I had with him that evening — according to my best recollection — I cannot tell the exact words and perhaps the order. After the usual greetings, Good evening, D. Tomas, ' Good evening,' How are you,' ' How do you do? Very well, just came here in the name of D. Vicente Lopez why does he not come. He cannot come because he has many things to do, and besides it is hard for him and makes him tired, so he told me to come.' Mina, your tenant, attorney.' Are you an attorney? Yes.' Where do you live? I live in Quiapo.' Oh, in Quiapo, a good district, it is gay a commercial place you must have some business there because that is a commercial place. Unfortunately, I have none, D. Tomas.' Well, you must be have because the profession alone does not give enough. Where is your office? I work in the office of Mr. Chicote. That Mr. Chicote must be rich, it seems to me that he is. The profession gives almost nothing it is better to have properties. I am an attorney but do not depend upon my profession. I interrupted D. Tomas saying, since you want to make a will, when and to whom do you want to leave your fortune? Then he said, To whom else? To my cousin Vicente Lopez and his daughter Luz Lopez. Which properties do you want to give to your cousin and niece? All my properties, Won't you specify the property to be given to each of them? What for? All my property. Don't you have any other relatives? Yes, sir I have. Won't you give any to those relatives? What for? was his answer. Well, do you want to specify said properties, to say what they are? and he again said, What for? they know them, he is my attorney-in-fact as to all property. I also said, Well and as legacy won't you give property to other persons? answers, I think, something, they will know it. After being asked, Whom do you think, would you want to be your executor? After hesitating a little, This Torres, Manuel or Santiago Lopez also. Then I asked him, What is your religion? He answered, Roman Apostolic Catholic, and then he also asked me, and your? Also Roman Apostolic Catholic, Where have you studied?' 'In the University of Santo Tomas.' 'It is convenient to preserve the Catholic religion that our descendants have left us. And you, what did you have anything more to say as to your testamentary dispositions? No, he answered. Then I remind him, 'You know that Vicente Lopez has sent me to get these dispositions of yours, and he said, Yes, do it.' I asked him, When do you want it done? Later on, I will send for you. After this believing to have done my duty, I bade him good-bye. Q. Did you have any other occasion to see him? — A. Yes. Q. When? — A. On December 29, 1923, also in the evening. Q. Why did you go to see him? — A. Because as I had not received any message either from Vicente Lopez or Tomas Rodriguez, as I had received notices in connection with the few cases I had in the provinces particularly in Tayabas, which compelled me to be absent from Manila until January 1st at least, for I might be there for several days, so I went to the General Hospital of my own accord — since I had not received any messages from them — with a rough draft which I had prepared in accordance with what he had told me in our conversation. After the greetings, I told him, Here I am D. Tomas; this is the rough draft of your will in accordance with your former statements to me in order to submit it to you. Do you

want to read it?' 'Please do me the favor of reading it. I read it slowly to him in order that he could understand it . After reading, Is it all right, that is the way,— few words — you see it takes only a few minutes; now I can execute the will. We can do it takes only a few minutes.' In view of that statement of his, I called his attention, ' But we don't have witnesses, D. Tomas.' I looked out through the door to see if I could call some witnesses but it was late then and it was thought better to do it on the 31st of December. Then we talked about other things, and he again asked. Where were you born? I told him in Quiapo. Ah, good district, and especially now that the fiesta of Quiapo is coming near,' and then I interrupted him, Yes, the fiesta of the Holy Child and of Our Lady of Mount Carmel' because we also talked about the fiesta of San Sebastian. I again reminded him that we could not do it because the witnesses were not there and he explained, Good Christmas present, isn't it?' I did not tell him anything and in view of that I did not deem it necessary to stay there any longer. Q. With whom did you make the arrangement to make the will on the evening of the 31st of December — you said that it was agreed that the will be executed on the evening of December 31st? — A. With Santiago Lopez and Don Tomas. Q. Was the will executed on the 31st of December? — A. What happened is this: In view of that agreement, I fixed up the draft which I had, dating it the 31st of December, putting everything in order; we agreed that Santiago would meet me on 31st day between five and six in the evening or a little before, but it happened that before the arrival of that date Santiago Lopez came and told me that I need not trouble about going to the General Hospital; because it could not be carried out for the reason that certain requisites were lacking. In view of this and bearing always in mind that on the following day I had to go to the provinces, I told Santiago Lopez that I would leave the papers with him because I might go to the provinces. Q. What may be the meaning of those words good Christmas present? — A. They are given a Christmas present when Christmas comes or on the occasion of Christmas. Q. I show you this document which is marked Exhibit A, tell me if that is the will or copy of the will which you delivered to Santiago Lopez on December 21, 31, 1923? — A. With the exception of the words '3 de enero de 1924' It seems to be literally identical. (S. R. pp. 244249.) As the witness stated, the will which was prepared by him is identical with that signed by the testator and the attesting witnesses with the single exception of the change of the date from December 31, 1923, to January 3, 1924. Two copies besides the original of the will were made. The will is brief and simple in terminology. For purposes of record, we copy the will as here translated into English: ONLY PAGE In the City of Manila, Philippines Islands, this January 3, 1924, I, Tomas Rodriguez, of age and resident of the City of Manila, Philippine Islands, do freely and voluntarily make this my will and testament in the Spanish language which I know, with the following clauses: First I declare that I am a Roman Apostolic Catholic, and order that my body be buried in accordance with my religion, standing and circumstances.

Second. I name my cousin Vicente F. Lopez and his daughter Luz Lopez de Bueno as my only universal heirs of all my property. Third. I appoint D. Manuel Torres and D. Santiago Lopez as my prosecutors. In witness whereof I sign this typewritten will, consisting of one single page, in the presence of the witness who sign below. (Sgd.) TOMAS RODRIGUEZ (Left TOMAS ELIAS V. A. DE ASIS

marginal

signatures:) RODRIGUEZ BONOAN LEGARDA

L.

We hereby certify that on the date and in the place above indicated, Don Tomas Rodriguez executed this will, consisting of one single typewritten page, having signed at the bottom of the will in the presence of us who saw as witnesses the execution of this will, we signed at the bottom thereof in the presence of the testator and of each other. (Sgd.) ELIAS A. (Exhibit A.)

V.

L. DE

LEGARDA BONOAN ASIS

On the afternoon of January 3, 1924 there gathered in the quarters of Tomas Rodriguez in the Philippine General Hospital, Santiago Lopez and Dr. A. De Asis, attesting witness; and Dr. Elias Fernando Calderon, Dr. Elias Domingo and Dr. Florentino Herrera, physicians, there for purposes of observation. (Testimony of Elias Bonoan, S. R., p. 8 of Vl. Legarda, S. R. p. 34. ) Possibly also Mrs. Luz Lopez de Bueno and Mrs. Nena Lopez were present; at least they were hovering in the background. As to what actually happened, we have in the record two absolutely contradictory accounts. One emanates from the attesting witness, Doctor Bonoan. The other is the united testimony of all remaining persons who were there. Doctor Elias Bonoan was the first witness called at the trial. He testified on direct examination as to formal matters, such as the identification of the signatures to the will .On cross-examination, he rather started the proponents of the will by stating that Luz Lopez de Bueno told Tomas Rodriguez to sign the document it concerned a complaint against Castito and that nobody read the will to the testator. Doctor Bonoan's testimony along this line is as follows: QUESTIONS. MARCAIDA : Q. Why were you a witness to the will of Tomas Rodriguez? Araneta: I object to the question as being immaterial. Court: Objection overruled.

Dr. Bonoan: A. Because I was called up by Mrs. Luz by telephone telling me to be in the hospital at 3 o'clock sharp in the afternoon of the 3d of January. Q. Who is that Luz whom you have mentioned? — A. Luz Lopez, daughter of Vicente Lopez. Q. What day, January 3, 1924? A. Yes, sir. Q. When did Luz Lopez talk to you in connection with your going to the hospital? — A. On the morning of the 3d she called me up by telephone. Q. On the morning? — A. On the morning. Q. Before January 3, 1924, when the will of Tomas Rodriguez was signed, did Luz Lopez talk to you? A. Yes, sir. Q. How many days approximately before was it? — A. I cannot tell the day, it was approximately one week before, — on that occasion when I was called up by her about the deceased Vicente Lopez. Q. What did she tell you when you went to the house of Vicente Lopez one week approximately before signing the will? - A. That Tomas Rodriguez would make a will. Q. Don't you know where the will of Tomas Rodriguez was made? - A. In the General Hospital. Q. Was that document written in the hospital? — A. I have not seen it. Q. When you went to the General Hospital on January 3, 1924, who were the persons you met in the room where the patients was ? — A. I met one of the nieces of the deceased Tomas Rodriguez, Mrs. Nena Lopez and Dna. Luz Lopez. Q. Were those the only persons? — A. Yes, sir. Q. What time approximately did you go to the General Hospital on January 3d? — A. A quarter to 3. Q. After you, who came? — A. Antonio de Asis, Doctor Herrera, later on Doctor Calderon arrived with Doctor Elias Domingo and lastly Santiago Lopez came and then Mr. Legarda. Q. When you entered the room of the patient, D. Tomas Rodriguez, in the General Hospital in what position did you find him?— A. He was lying down. Q. Did you greet D. Tomas Rodriguez? A. I did. Q. Did D. Tomas Rodriguez answer you? — A. Dna. Nena immediately answered in advance and introduced me to him saying that I was the brother of his godson. Q. Did other persons whom you have mentioned, viz, Messrs. Calderon, Herrera, Domingo, De Asis and Legarda greet Tomas Rodriguez?

ARANETA: I object to the question as being improper cross-examination. It has not been the subject of the direct examination. COURT: Objection overruled. ARANETA: Exception. A. No, sir, they joined us. Q. What was D. Tomas told when he signed the will.? — A. To sign it. Q. Who told D. Tomas to sign the will? — A. Luz Lopez. Q. What did Luz Lopez tell Tomas Rodriguez in order that he should sign the will? — A. She told him to sign the document; the deceased Tomas Rodriguez before signing the document asked what that was which he was to sign. Q. What did anybody answer to that question of D. Tomas? — A. Luz Lopez told him to sign it because it concerned a complaint against Castito. D. Tomas said, 'What is this?" And Luz Lopez answered, 'You sign this document, uncle Tomas, because this is about the complaint against Castito. Q. Then Tomas Rodriguez signed the will? — A. Yes, sir. Q. Who had the will? Who was holding it? — A. Mr. Vicente Legarda had it his own hands. Q. Was the will signed by Tomas Rodriguez lying down, on his feet or seated? — A. Lying down. Q. Was the will read by Tomas Rodriguez or any person present at the time of signing the will, did they read it to him? — A. Nobody read the will to him. Q. Did not D. Tomas read the will? — A. I have not seen it. Q. Were you present? — A. Yes, sir. ( S. R. p. 8) As it would be quite impracticable to transcribe the testimony of all the others who attended the making of the will, we will let Vicente L. Legarda, who appears to have assumed the leading role, tell what transpired. He testified in part: ARANETA : Q. Who exhibited to you those documents, Exhibits A, A-1, and A-2? LEGARDA: A. Santiago Lopez. Q. Did he show you the same document? — A. First that is to say the first document he presented to me was a rough draft, a tentative will, and it was dated December 31st, and I called his attention to the fact that the date was not December 31, 1923, and that it was necessary to change the date to January 3, 1924, and it was done. Q. And it was then, was it not when Exhibits A, A-1, and A-2 were written? — A. Yes, sir.

Q. Do you any know where it was written? — A. In the General Hospital. Q. Did any time elapse from your making the suggestion that the document which you delivered to Santiago Lopez be written until those three Exhibits A, A-1, and A-2 were presented to you? — A. About nine or ten minutes approximately. Q. The time to make it clean? — A. Yes, sir. Q. Where were you during that time? — A. In the room of D. Tomas Rodriguez. Q. Were you talking with him during that time. — A. Yes, sir. Q. About what things were you talking with him? — A. He was asking me about my health, that of my family how my family was my girl, whether we were living in Pasay, he asked me about the steamer Ildefonso, he said that it was a pity that it had been lost because he knew that my father-in-law was the owner of the steamer Ildefonso. xxx

xxx

xxx

Q. When those documents, Exhibit A, A-1, and A-2, that is the original and two copies of the will signed by D. Tomas Rodriguez were written clean, will you please tell what happened? — A. When Santiago Lopez gave them to me clean, I approached D. Tomas Rodriguez and told him: Don Tomas, here is this will which is ready for your signature. Q. What did D. Tomas do when you said that his will you were showing to him was ready? — A. The first thing he asked was: the witnesses? Then I called the witnesses — Gentlemen, please come forward, and they came forward, and I handed the documents to D. Tomas. D. Tomas got up and then took his eyeglasses, put them on and as he saw that the electric lamp at the center was not sufficiently clear, he said: 'There is no more light;' then somebody came forward bringing an electric lamp. Q. What did D. Tomas do when that electric lamp was put in place? — A. The eyeglasses were adjusted again and then he began to read, and as he could not read much for a long time, for he unexpectedly felt tired and took off the eyeglasses, and as I saw that the poor man was tired, I suggested that it be read to him and he stopped reading and I read the will to him. Q. What happened after you had read it to him? — A. He said to me, 'Well, it is all right. It is my wish and my will. Don't you have any pen?' I asked a pen of those who were there and handed it to D. Tomas. Q. Is it true that Tomas Rodriguez asked at that time 'What is that which I am going to sign?' and Luz Lopez told him: 'It is in connection with the complaint against Castito?' — A. It is not true, no, sir. Q. During the signing of the will, did you hear Luz Lopez say anything to Tomas Rodriguez? — A. No, Sir, she said nothing. Q. According to you, Tomas Rodriguez signed of his own accord? — A. Yes, sir. Q. Did nobody tell him to sign? — A. Nobody.

Q. What happened after the signing of the will by Tomas Rodriguez? — A. I called the witnesses and we signed in the presence of each other and of Tomas Rodriguez. Q. After the signing of the will, did you have any conversation with Tomas Rodriguez? — A. Doctor Calderon asked D. Tomas Rodriguez some questions. Q. Do you remember the questions and the conversation held between Doctor Calderon and D. Tomas after the signing of the will? — A. I remember that afterwards Doctor Calderon talked to him about business. He asked him how the business of making loans at 18 per cent. It seems that Tomas Rodriguez answered: That loan at 18 per cent is illegal, it is usury. (S. R., p. 38.) In addition to the statements under oath made by Mr. Legarda, an architect and engineer in the Bureau of Public Works and professor of engineering and architecture in the University of Santo Tomas, suffice it to say that Luz Lopez de Bueno denied categorically the statements attributed to her by Doctor Bonoan (S. R., p. 568). In this stand, she is corroborated by Doctor Calderon, Domingo, and Herrera, the attending physicians. On this point, Doctor Calderon the Director of the Philippine General Hospital and Dean of the College of Medicine in the University of the Philippines, testified: Mr. ARANETA: Q. What have you seen or heard with regard to the execution of the will? Dr. CALDERON: A. Mr. Legarda handled the will to D. Tomas Rodriguez. D. Tomas asked for his eyeglass, wanted to read and it was extremely hard for him to do so. Mr. Legarda offered to read the will, it was read to him and he heard that in that will Vicente Lopez and Luz Lopez were appointed heirs; we also saw him sign that will, and he signed not only the original but also the other copies of the will and we also saw how the witnesses signed the will; we heard that D. Tomas asked for light at that moment; he heard that D. Tomas asked for light at that moment; he was at that time in a perfect mental state. And we remained there after the will was executed. I asked him, 'How do you feel, how are you? Well I am well, ' he answered. ' How is the business? There is a crisis at there is one good business, namely, that of making loans at the rate of 18 per cent, 'and he answered, 'That is usury.; When a man answers in that way, ' That is usury it shows that he is all right. Q. Were you present when Mr. Legarda handed the will to him? — A. Yes, sir. Q. Did any person there tell Don Tomas that was a complaint to be filed against one Castito? — A. No, sir, I have not heard anything of the kind. Q. It was said here that when the will was handed to him, D. Tomas Rodriguez asked what that was which he was to sign and that Luz Lopez answered, 'That is but a complaint in connection with Castito.' Is that true? — A. I have not heard anything of the kind. Q. Had anybody told that to the deceased, would you have heard it? A. Yes, sir. Q. Was Luz Lopez there? — A. I don't remember having seen her; I am not sure; D. Santiago Lopez and the three witnesses were there; I don't remember that Luz Lopez was there. Q. Had anybody told that to the deceased, would you have heard it? — A. Yes, sir.

Q. Do you remember whether he was given a pen or he himself asked for it? — A. I don't know; it is a detail which I don't remember well; so that whether or not he was given a pen or he himself asked for it, I do not remember. Q. But did he sign without hesitation ? — A. With no hesitation. Q. Did he sign without anybody having indicated to him where he was to sign? — A. Yes, without anybody having indicated it to him. Q. Do you know whether D. Tomas Rodriguez asked for more light before signing? — A. He asked for more lights, as I have said before. Q. Do you remember that detail? — A. Yes, sir. They first lighted the lamps, but as the light was not sufficient, he asked for more light. Q. Do you remember very well that he asked for light? — A. Yes, sir. (S. R. p.993). A clear preponderance of the evidence exists in favor of the testimony of Vicente Legarda, corroborated as it is by other witnesses of the highest standing in the community. The only explanation we can offer relative to the testimony of Doctor Bonoan is that possibly he may have arrived earlier than the others with the exception of Luz Lopez de Bueno, and that Luz Lopez de Bueno may have made some sort of an effort to influence Tomas Rodriguez. There is however no possible explanation of the statement of Doctor Bonoan to the effect that no one read the will to Rodriguez when at least five other persons recollect that Vicente Legarda read it to him and recall the details connected with the reading. There is one curious occurrence which transpired shortly after the making of the will which should here be mentioned. It is that on January 7, 1923 (1924), Luz Lopez de Bueno signed a document in favor of Doctor Bonoan in the amount of one thousand pesos (P1,000). This paper reads as follow: Be it know by these present: That I, Luz Lopez de Bueno in consideration of the services which at my instance were and will when necessary be rendered by Dr. Elias Bonoan in connection with the execution of the will of my uncle, Don Tomas Rodriguez and the due probate thereof, do hereby agree to pay said doctor, by way of remuneratory donation, the sum of one thousand pesos (P1,000), Philippine currency, as soon as said services shall have been fully rendered and I shall be in possession of the inheritance which in said will is given to me. In witness whereof, I sign this document which was freely and spontaneously executed by me in Manila, this January 7, 1923. (Sgd.) (Exhibit 1)

LUZ

LOPEZ

DE

BUENO

There is a sharp conflict of testimony, as is natural between Doctor Bonoan and Luz Lopez de Bueno relative to the execution of the above document. We shall not attempt to settle these differences as in the final analysis it will not affect the decision one way or the other. The most reasonable supposition is that Luz Lopez de Bueno imprudently endeavored to bring over Doctor

Bonoan to her side of the race by signing and giving to him Exhibit 1. But the event cannot easily be explained away. Tomas Rodriguez passed away in the Philippine General Hospital, as we said on February 25, 1924. Not even prior to his demise the two actions in the Lopez family had prepared themselves for a fight over the estate. The Luz Lopez faction had secured the services of Doctor Domingo, the physician in charge of the Department of Insane of San Lazaro Hospital an Assistant Professor of Nervous and Mental Diseases in the University of the Philippines, as attending physician; as associated with him for purposes of investigation Dr. Fernando Calderon the Director of the Philippine General Hospital and Dr. Florentino Herrera, a physician in active practice in the City of Manila; and had arranged to have two members of the medical fraternity, Doctors De Asis and Bonoan as attesting witnesses. The Margarita Lopez faction had taken equal precautions by calling a witnesses in the guardship proceedings Dr. Sixto de los Angeles Professor and Chief of the Department of Legal Medicine in the University of the Philippines, and Dr. Samuel Tietze, with long experience in mental diseases; thereafter by continuing Doctors de Los Angeles and Tietze to examine Tomas Rodriguez and by associating with them Dr. William Burke, a well-known physician of the City of Manila. Skilled lawyers were available to aid and abet the medical experts. Out of such situations, do will contests arise. An examination of the certificates made by the two sets of physicians and of their testimony shows that on most facts they concur. Their deductions from these facts disclose a substantial divergence of opinion. It is a hopeless task to try to reconcile the views of these distinguished gentlemen who honestly arrived at definite but contradictory conclusions. The best that we can do under the circumstances is to set forth the findings of the Calderon committed on the hand and of the De Los Angeles committee on the other. Doctors Calderon, Domingo and Herrera examined Tomas Rodriguez individually and jointly before the date when the will was executed. All of them, as we have noticed were, present at the signing of the will to note the reactions of the testator. On the same day that the will was accomplished, the three doctors signed the following certificate: The undersigned, Drs. of Medicine, with offices in the City of Manila, and engaged in the practice of their profession do hereby certify: That they have jointly examined Mr. Tomas Rodriguez, confined in the General Hospital, floor No. 3, room No. 361 on three different occasion and on different days and have found that said patient is suffering from anemia, hernia inguinal, chronic dyspepsia and senility. As to his mental state the result of the different tests to which this patient was submitted is that his intellectual faculties are sound, except that his memory is weak, which is almost a loss for recent facts, or events which have recently occurred, due to his physical condition and old age. They also certify that they were present at the time he signed his will on January 3, 1924, at 1:25 p.m. and have found his mental state in the same condition as was found by the undersigned in their former examination and that in executing said will the testator and full knowledge of the contents thereof. In testimony whereof, we sign in Manila this January 3, 1924.

(Sgd.) Tuberias Quiapo

FLORENTINO

(Sgd.) General Manila (Sgd.) 613 Malate

Dr.

Dr.

HERRERA 1264

FERNANDO

ELIAS

CALDERON Hospital

DOMINGO Remedios

(Exhibit E in relation with Exhibits C and D.) Doctor Calderon while on the witness-stand expressed a definite opinion as to the mentality of Tomas Rodriguez What follows is possibly the most significant of the doctor's statements: Dr. CALDERON testifying after interruption: A. I was naturally interested in finding out the true mental state of Tomas Rodriguez and that was the chief reason why I accepted and gave my cooperation to Messrs. Elias Domingo and Florentino Herrera because had I found that Tomas Rodriguez and Florentino Herrera because had I found that Tomas Rodriguez was really insane, I should have ordered his transfer to the San Lazaro Hospital or to other places, and would not have left him in the General Hospital. Pursuant to my desire, I saw Tomas Rodriguez in his room alone twice to have interviews with his, he begging a person whom I knew since several years ago; at the end of the interviews I became convinced that there was nothing wrong with him; I had not seen anything indicating that he was insane and for this reason I accepted the request of my companions and joined them; we have been on five different occasions examining Tomas Rodriguez jointly from the physical standpoint but chiefly from the standpoint of his mental state; I have been there with Messrs. Herrera and Elias Domingo, examining Tomas Rodriguez and submitting to a mental test on the 28, 29, 10 and 31 of December and the 22nd of January, 1924 — five consecutive days in which he have been together besides my particular visits. Q. Will you place state the result of the observation you made alone before those made by the three of you jointly? — A. I asked Tomas Rodriguez some questions when I went alone there, I asked him were he was living formerly and he well remembered that in Intramuros, Calle Real; I asked him whether he remembered one Calderon who was living in the upper floor of the house and then he told me yes; than I asked him about his tenant by the name of Antonio Jimenez and he told me yes, — now I remember that he had two daughters, Matilde and Paz. Then I told him that I had been living in the house of the gentlemen, Antonio Jimenez already dead — in the upper story of the house belonged to Tomas Rodriguez; I told him that Antonio Jimenez was his tenant of the upper story, that is that he was living on the ground floor and Antonio Jimenez upstairs and he remembered all of this I also began to talk of my brother, Felipe Calderon, who he said of course that he knew; he remembered him because he was his companion and was a successful attorney. This was when I had an interview with him. Then in order to observe better and to be sure of my judgment or opinion about the mental state of Tomas Rodriguez, I saw him again and we began to speak of something which I don't remember now. In fine, we talked of things of interest and as I had finally accepted the request of Drs. Elias Domino and Florentino Herrera to join then the first

and second time that Herrera, Domingo and myself went there, no stenographic notes were taken of what happened there. Q. So that before joining Doctors Herrera and Domingo you had already paid two visits to the patient? — A. Yes, sir. Q. From the result f the conversation you had with Tomas Rodriguez on those two visits what is your opinion as to his mental capacity? — A. That he was sick; that he was weak, but I have found absolutely no incoherence in his ideas; he answered my questions well and as I was observing him there were times when he did not remember things of the present — because this must be admitted — but on the other hand he had a wonderful memory of past events; in talking with him, you would not notice in the conversation any alteration in his mind nor that man had lost the reasoning power or logic. Q. Did you notice any loss of memory, or that his memory was weakening about things of the past? — A. About things of the past, I mean that you talk to him now about specific matters, and after about five or ten minutes he no longer remembers what had been talked of. xxx

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Q. Do you remember the conversation you had with him for the first time when the three of you paid a visit to the patient? — A. I don't remember the details, but I do remember the questions I put to him. I asked D. Tomas Rodriguez: You are an old man aged, sick: Yes, I am thinking to make a will. But why don't you decide? There is no hurry there is time to make a will, 'he said. Then in case you decide to make a will, to whom are you going to leave your property? Don't you have any relatives? I have a relative, Vicente Lopez, my first cousin, and Margarita Lopez my first cousin they are brothers.' In that case, to whom, do you want to leave your property? Why, I don't have much, very little, but I am decided to leave it to my cousin, Vicente Lopez and his daughter Luz Lopez. Why would you not give anything to Margarita Lopez? No because her husband is very bad, 'to use his exact language is very bad.' Q. Did you talk with him on that occasion about his estate? — A. Yes, sir, he told me that he had three estates, — one on Calle Magallanes, another on Calle Cabildo and the third on Calle Juan Luna and besides he had money in the Monte de Piedad and Hogar Filipino. xxx

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Q. From the question made by you and the answers given by Mr. Tomas Rodriguez on that occasion, what is your opinion as to his mental capacity? — A. The following: That the memory of Tomas Rodriguez somewhat failed as to things of the present, but is all right with regard to matters or facts of the past; that his ideas were incoherent; that the thought with logic, argued even with power and generally in some of the interviews I have arrived at the conclusion that Tomas Rodriguez had an initiative of his own, did not need that anybody should make him any suggestion because he answered in such a way that if you permit me now to show you my stenographic notes, they will prove to you conclusively that he had an initiative of his own and had no need of anybody making him any question. (S. R. p. 72.) Doctor Elias Domingo, who was the attending physician for Tomas Rodriguez throughout all the time that Rodriguez in the hospital had examined him, was likewise certain that Rodriguez possessed sufficient mentality to make a will. Among other things, Doctor Domingo testified:

ARANETA: Q. Have you known D. Tomas Rodriguez? Dr. DOMINGO: A. Yes, sir. Q. Did you attend D. Tomas Rodriguez as physician? — A. Yes, sir. Q. When did you begin to attend him as physician? — A. On November 28, until his death. Q. On November 28 or October 28, 1923, do you remember? — A. I had been attending him as physician from November 28th although it true that I had opportunities to see and examine him during the months of October and November. Q. What was the object of your visits or attendance during the months of October and November? — A. It was for the purpose of observing his mental state. Q. Did you really examine his mental condition or capacity during the months of October and November? — A. Yes, sir. Q. How many times did you visit him? — A. I don't remember exactly but I visited him about five or six times. xxx

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Q. Please tell us the result of your examination during those months of October and November? — A. I examined him physically and mentally; I am not going to tell here the physically result but the result of the mental examination, and that is: General Conduct: In most of the times that I have seen him I found him lying on his bed, smoking a cigarette and asked for a bottle of lemonade from time to time; I also observed that he was very careful when throwing the ash of the cigarette, seeing to it that it did not fall on the blankets; he also was careful not to throw the stub of the cigarette in any place to avoid fire; I made more observations as to his general conduct and I found that sometimes Don Tomas could move within the place although with certain difficulty. On two occasions I found him seated, once seated at the table, seated in the chair, and other on a rocking chair. I also examined his manner of talking and to all questions that I put to him he answered with a coherence and in a relevant manner, although sometimes he showed eagerness and certain delay. I based these points of my declaration on the questions which are usually asked when making a mental examination for instance I asked him, What is your name, 'and he correctly answered Tomas Rodriguez; I asked him if he was married and he answered 'No;' I asked him his profession and he answered that formerly he was an attorney but that at the time I was making the examination he was not practising the profession; I asked him with what he supported himself and he said that he lived upon his income, he said verbatim, 'I live on my income.' I also asked him what the amount of him income was and he answered that it was about P900; I asked him what the source of this income was and he said that it came from his property. Q. Did you ask him about his property? — A. No, at that time. Q. Proceed. — A. I also observed his emotional status and effectivity. I found it rather superficial, and he oftentimes got angry due to his physical disease; I asked him if he had any relatives and he answered correctly saying that he had. He mentioned Vicente Lopez, Margarita Lopez, and Luz Lopez. As to his memory. His memory of the past. He very easily

remembered past events and when he described them he did it with such pleasure the he used to smile afterwards — if it was a fact upon which one must smile, His memory of recent facts was very much lessened. I say this because on various occasions and not having known me when he had a better memory, after I had seen him thrice he remembered my name and he recognized me. Insight and judgment. I arrived at the conclusion that he had fair knowledge of himself because he knew that he was sick and could not be moving with ease, but he believed that he could perform with sufficient ease mental acts; his judgment was also all right because I asked him this question: 'Supposing that you could find a bill of P5 in the vestibule of a hotel, what would you do with it ?' He told me that he would take the bill and give it to the manager in order that the latter may look for the owner if possible. His reasoning. I found that he showed a moderated retardation in the flow of his thought, especially with regard to recent events, but was quite all right as to past events, His capacity, He believed that he was capable of thinking properly although what did not permit him to do so was his physical decrepit condition. The conclusion is that his memory is lost for recent events tho not totally and diminution of his intellectual vigor. This is in few words the result of my examination. Tomas Rodriguez was likewise examined thoroughly by Doctors De los Angeles, Tietze, and Burke. Doctor De los Angeles had been a witness in the gurardianship proceedings and had seen the patient of November 6 and 7, 1923. Doctor Tietze had also been a witness in the guardianship case and had visited the patient on November 9 and 12, 1923, and on January 15, 1924. Doctors Tietze and Burke together examined Rodriguez on January 17, 20, and 24, 1924. The three physicians conducted a joint examination result, on March 15, 1924, they prepared and signed the following: MEDICAL CERTIFICATE In the Matter of Tomas Rodriguez y Lopez, male, 76 years of age, single and residing or being confined in the Philippine General Hospital. We, the undersigned Doctors, Sixto de los Angeles, W. B. Burke, and Samuel Tietze, do hereby certify as follows: 1. That we are physicians, duly registered under the Medical Act, and are in the actual practice of the medical profession in the Philippines. 2. That on January 27th and 28th, and February 10th, 1924, at the Philippine General Hospital, we three have with care the diligence jointly and personally examined the person of said Tomas Rodriguez y Lopez; and previous to these dated, we have separately and partly jointly observed and examined said patient on various occasions; Dr. Sixto de los Angeles, at the patient's home, 246 Magallanes St., Manila, on November 6th and 7th , 1923; Dr. Samuel Tietze, at the patient's home on November 9th and 12th, 1923, and at the Philippine General Hospital no January 17th, 20th, and 24, 1924; and as a result of the medical examinations and the history of the case we found and hereby certify to the following conclusions: (a) That he was of unsound mind suffering from senile dementia, or of mental impairment exceeding to a pathological extent the unusual conditions and changes found to occur in the involutional period of life. (b) That he was under the influence of the above condition continuously, at least from November, 1923, till the date of our joint reexamination, January 27th and 28th, and February 10th, 1924; and that he would naturally have continued without improvement, as

these cases of insanity are due to organic pathological changes of the brain. This form of mental disease is progressive in its pathological tendency, going on to progressive atropy and degeneration of the brain, the mental symptoms, of course, running parallel with such pathological basis. (c) That on account of such disease and conditions his mind and memory were so greatly impaired as to make him unable to know or to appreciate sufficiently the nature, effect, and consequences of the business he was engaged in; to understand and comprehend the extent and condition of his properties; to collect and to hold in his mind the particulars and details of his business transactions and his relations to the persons who were or might have been the objects of his bounty; and to free himself from the influences of importunities, threats and ingenuities, so that with a relatively less resistance, he might had been induced to do what others would not have done. 3. We have diagnosed this case as senile demential of the simple type, approaching the deteriorated stage upon the following detailed mental examination: (a) Disorder of memory. — There was almost an absolute loss of memory of recent events, to the extent that things and occurrences seen or observed only a few minutes previously were completely forgotten. Faces and names of person introduced to him were not remembered after a short moment even without leaving his bedside . He showed no comprehension of the elemental routine required in the management of his properties, i.e.: who were the lessees of his houses, what rents they were paying, who was the administrator of his properties, in what banks he deposited his money or the amount of money deposited in such banks. Regarding his personal relation, he forgot that Mr. Antonio Ventura is the husband of his nearest woman cousin; the Mrs. Margarita Lopez was married, saying that the latter was single or spinster, in spite of the fact that formerly, during the past twenty-five years, he was aware of their marriage life, He did not know the names of the sons and daughters of Mr. Vicente Lopez, one of his nearest relatives, even failing to name Mrs. Luz Lopez de Bueno, a daughter of said Vicente Lopez, and who now appears to be the only living beneficiary of his will. He also stated that Mr. Vicente Lopez frequently visited him in the hospital, though the latter died on January 7th, 1924. He did not recognized and remember the name and face of Doctor Domingo, his own physician. However, the memory for remote events was generally good, which is a characteristic symptom of senile dementia. (b) Disorientation of time, place and persons. — He could not name the date when asked (day or month); could not name the hospital wherein he was confined; and failed to recognize the fact that Doctor Domingo was his physician. (c) Disorders of perception. — He was almost completely indifferent to what was going on about him. He also failed to recognize the true value of objects shown him, that is he failed to recognized the 'Saturday Evening Post' nor would he deny that it was a will when presented as such. He also failed to show normal intellectual perception. Making no effort to correlate facts or to understand matters discussed in their proper light. (d) Emotional deterioration. — The patient was not known during his time of physical incapacity to express in any way or lament the fact that he was unable to enjoy the happiness that was due him with his wealth. As a matter of fact, he showed complete indifference. He showed loss of emotional control by furious outbreaks over trifling matter and actually behaved like a child; for example, if his food did not arrive immediately of when his cigar was not lit soon, he would becomes abusive in his language and show marked

emotional outburst. If the servants did not immediately answer his call, he would break down and cry as a child. (e) Symptoms of decreased intellectual capacity. — There was a laxity of the internal connection of ideas. The patient has shown no insight regarding his own condition. He did not appreciate the attitude of the parties concerned in his case; he would on several occasion become suspicious and fail to comprehend the purpose of our examination. He was inconsistent in his ideas and failed to grasp the meaning of his own statements. When questioned whether he would make a will, he stated to Doctor Tietze that he intended to bequeath his money to San Juan de Dios Hospital and Hospicio de San Jose. When He was informed, however, that he had made a will on January 31, 1924, he denied the latter statement, and failed to explain the former. Although for a long time confined to bed and seriously ill for a long period, he expressed himself as sound physically and mentally, and in the false belief that he was fully able to administer his business personally. His impairment of the intellectual field was further shown by his inability, despite his knowledge of world affairs, to appreciate the relative value of the statement made by Doctor Tietze as follows: 'We have here a cheque of P2,000 from the King of Africa payable to you so that you may deposit it in the bank. Do you want to accept the cheque?' His answer was as follows: 'Now I cannot give my answer. It may be a surprise.' Such answer given by a man after long experience in business life, who had handled real estate property, well versed in the transaction of cheques, certainly shows a breaking down of the above field. No proper question were asked why the cheque was given by the King, who the King was, why he was selected by the King of Africa, or if there is a King of Africa at present. He further shows doubt in his mental capability by the following questions and answers: "MARCAIDA: P. ¿Tiene usted actualmente algún asunto en los tribunales de justicia de Manila? -- R. No recuerdo en este momento. "P. De tener usted algún asunto propio en los tribunales de justicia de Manila, ¿a qué abogado confiaría usted la defensa del mismo?--R. Al Sr. Marcaida, como conocido antiguo. "P. ¿Ha hablado usted y conferenciado alguna vez o varias veces en estos días, o sea desde el 25 de octubre de 1923 hasta hoy, con algún abogado para que le defendiera algún asunto ante el Juzgado de Primera Instancia de Manila?--R. Con ninguno, porque en caso de nombrar, nombraría al Sr. Marcaida. (P. 5, deposition, Nov. 19, 1923.) "ARANETA: P. ¿No recuerda usted que usted me ha encomendado como abogado para que me oponga a que le declaren a usted loco o incapacitado?--R. Sí, señor, quien ha solicitado? (P. 9, deposition, Nov. 19, 1923.) "Dr. DOMINGO: P. ¿Don Tomás, me conoce usted? ¿Se acuerda usted que soy el Doctor Domingo?--R. Sí. (P. 7, sten. N., Jan. 28, 1924.) "P. ¿Quién soy, Don Tomás, usted me conoce?--R. No sé. (P. 6, sten. N., Feb. 10, 1924.) "Dr. ÁNGELES: P. ¿Me conoce usted, D. Tomás?--R. Le conozco de vista. (P. 6, sten. N., Jan. 28, 1924.)

"P. Nos vamos a despedir ya, Don Tomás, de usted. Yo soy el Doctor Ángeles, ¿me conoce usted?--R. De nombre. "P. Este es el Doctor Burke, ¿le conoce usted?--R. De nombre. "P. Este es el Doctor Domingo, ¿le conoce usted?--R. De vista. "P. Este es el Doctor Burke, ¿recuerda usted su nombre?--R. No. (P. 10, sten. N., Jan. 28, 1924.) "P.¿Usted conoce a este Doctor? (Señalando al Doctor Burke).--R. De vista; su nombre ya lo he olvidado, ya no me acuerdo. "P.¿Usted nos ve a los tres? (Doctores Ángeles, Burke y Tietze).--R. Ya lo creo. "Dr. BURKE: P. ¿Qué profesión tenemos? (Señalando a los Sres. Ángeles, Burke y Tietze).--R. YO creo que son doctores. "P. ¿Y lso dos? (Señalando a los Doctores Ángeles y Tietze).--R. No. sé. "P. ¿Y este señor? (Señalando al Doctor Ángeles).--R. No me acuerdo en este momento. (P. 4. And 5, sten. N., Feb. 10, 1924.) (f) Other facts bearing upon the history of the case obtained by investigation of Doctor Angeles: I. Family History. — His parents were noted to be of nervous temper and irritable. II. Personal history. — He was a lawyer, but did not pursue his practice, devoting the greater part of his life to collecting antiquities, He was generally regarded by his neighbors as miserly and erratic in the ordinary habits of life. He lead a very unhygienic life, making no attempt to clean the filth of dirt that was around him. He was neglectful in personal habits. On April, 1921, he suffered an injury to his forehead, from which he became temporarily unconscious, and was confined in the Philippine General Hospital for treatment. He frequently complained of attacks of dizziness and headache, following this injury; suffered form a large hernia; and about two years ago, he was fined for failure in filing his income tax, from which incident, we have reason to believe, the onset of his mental condition took place. This incident itself can most probably be considered as a failure of memory. His condition became progressively worse up to his death. 4. The undersigned have stated all the above facts contained in this certificate to the best of our knowledge and belief. Manila, P.I., March 15, 1924. (Sgd.) SIXTO W.B. SAMUEL TIETZE (Exhibit 33 in relation with Exhibits 28 and 29.)

DE BURKE,

LOS

ANGELES M.D.

Another angle to the condition of the patient on or about January 3, 1924, is disclosed by the treatment record kept daily by the nurses, in which appear the nurse's remarks. (Exhibits 8-A, 8-B, and 8-C.) In this connection, the testimony of the nurses is that Rodriguez was in the habit for no reason at all of calling "Maria, where are my 50 centavos, where is my key." In explanation of the observation made by the nurses, the nurse Apolonio Floreza testified. Direct questions of Attorney OCAMPO: Q. Among your observations on the 1st of January, 1924, you say 'with pains all over the body, and uttered some incoherent words of the same topics whenever is awakened.' How could you observe that he had pains all over the body? APOLONIO FLOREZA, nurse: A. I observed that by the fact that whenever I touched the body of the patient he complained of some pain. Q. On what part of the body did you touch him? — A. On all the parts of his body. xxx

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Q. How did you touch him, strongly or not? — A. Slightly. Q. When you touched him slightly, what did he do? — A. He said that it was aching. Q. What words did he say when, according to your note, he uttered incoherent words whenever he awakes? — A. As for instance, 'Maria,' repeating it 'Where are my 50 centavos, where is my key?' Q. Did you hear him talk of Maria? — A. Only the word Maria. Q. How long approximately was he talking uttering the name of 'Maria, Where are my 50 centavos,' and where is my key? — A. For two or three minutes. Q. Can you tell the court whether on those occasions when he said the name of Maria he said other words and was talking with somebody? — A. He was talking to himself. Q. This remark on Exhibit 8-B when was it written by you? A. January 2, 1924. Q. In the observation correspondingly to January 2, 1924 you say, 'With pains over the body,' and later on talked too much whenever patient is awakened.' How did you happen to know the pain which you have noted here? A. The pains all over the body, I have observed them when giving him baths. Q. Besides saying that it ached when you touched the body, do you know whether he did any extraordinary thing? A. You mean to say acts? Q. Acts or words? A. Yes, sir, like those words which I have already said which he used to say — Maria, the key, 50 centavos. Q. You say that he called Maria. What did he say about Maria on that date January 2, 1924? — A. He used to say Maria where is Maria?

Q. On that date January 2, 1924, did you answer him when he said Maria? — A. No sir. Q. In this observation of yours appearing on page 8-C you say among other things with pain all over the body and shouted whenever he is given injection.' Did you really observe this in the patient? — A. Yes, sir. Q. How did he shout? ARANETA: Objection as being immaterial. COURT: Overruled. ARANETA: Exception. A. In a loud voice. Q. Besides shouting do you remember whether he said anything? — A . He repeated the same words I have said before — Maria the 50 centavos the key. Q. When did this observation occur which appear on page 8-C? — A. On January 3, 1924. (S. R. p. 5595.) On certain facts pertaining to the condition of Tomas Rodriguez there is no dispute. On January 3, 1924, Rodriguez had reached the advanced age of 76 years. He was suffering from anemia, hernia inguinal, chronic dypsia, and senility. Physically he was a wreck. As to the mental state of Tomas Rodriguez on January 3, 1924, Doctors Calderon, Domingo and Herrera admit that he was senile. They, together with Doctors De los Angeles, Tietze, and Burke, further declare that his memory however for remote events was generally good. He was given to irrational exclamations symptomatic of a deceased mind. While, however, Doctors Calderon Domingo, and Herrera certify that the intellectual faculties of the patient are "sound, except that his memory is weak," and that in executing the will the testator had full understanding of the act he was performing and full knowledge of the contents thereof, Doctors De Los Angeles, Tietze and Burke certify that Tomas Rodriguez was of unsound mind and that they diagnosed his case as senile dementia of the simple type approaching the deteriorated stage. Without attempting at this stage to pass in judgment on the antagonistic conclusions of the medical witnesses, or on other disputed point, insofar as the facts are concerned, a resolution of the case comes down to this: Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will, or had he passed so far along in senile dementia as to require the court to find him of unsound? We leave the facts in this situation to pass on to a discussion of the legal phases of the case. B. Law. — The Code of Civil Procedure prescribes as a requisite to the allowance of a will that the testator be of "sound mind" (Code of Civil Procedure, sec. 614). A "sound mind" is a "disposing mind." One of the grounds for disallowing a will is "If the testator was insane or otherwise mentally incapable of the execution." (Code of Civil Procedure, sec. 634 [2].) Predicated on these statutory provisions, this court has adopted the following definition of testamentary capacity: "'Testamentary capacity is the capacity to comprehend the nature of the transaction in which the testator is engaged at the time, to recollect the property to be disposed of and the persons who would naturally be supposed to have claims upon the testator, and to comprehend the manner in which the instrument

will distribute his property among the objects of his bounty.'" (Bugnao vs. Ubag [1909], 14 Phil., 163, followed in Bagtas vs. Paguio [1912], 46 Phil., 701.) The mental capacity of the testator is determined as of the date of the execution of his will (Civil Code, art. 666). Various tests of testamentary capacity have been announced by the courts only later to be rejected as incomplete. Of the specific tests of capacity, neither old age, physical infirmities, feebleness of mind, weakness of the memory, the appointment of a guardian, nor eccentricities are sufficient singly or jointly to show testamentary incapacity. Each case rests on its own facts and must be decided by its own facts. There is one particular test relative to the capacity to make a will which is of some practical utility. This rule concerns the nature and rationality of the will. Is the will simple or complicated? Is it natural or unnatural? The mere exclusion of heirs will not, however, in itself indicate that the will was the offspring of an unsound mind. On the issue of testamentary capacity, the evidence should be permitted to take a wide range in order that all facts may be brought out which will assist in determining the question. The testimony of subscribing witnesses to a will concerning the testator's mental condition is entitled to great weight where they are truthful and intelligent. The evidence of those present at the execution of the will and of the attending physician is also to be relied upon. (Alexander on Willis, vol. I, pp. 433, 484; Wharton & Stille's Medical Jurisprudence, vol. I pp. 100 et seq.) The presumption is that every adult is sane. It is only when those seeking to overthrow the will have clearly established the charge of mental incapacity that the courts will intervene to set aside a testamentary document. (Hernaez vs. Hernaez [1903], 1 Phil., 689; Bagtas vs. Paguio, supra.) Counsel for the appellee make capital of the testator being under guardianship at the time he made his will. Citing section 306 of the Code of Civil Procedure and certain authorities, they insist that the effect of the judgment is conclusive with respect to the condition of the person. To this statement we cannot write down our conformity. The provisions of the cited section were taken from California, and there the Supreme court has never held what is now urged upon us by the appellee. The rule announced that in some states, by force of statute, the finding of insanity is conclusive as to the existence of insanity during the continuance of adjudication, is found to rest on local statutes, of which no counterpart is found in the Philippines. (32 C.J., 647; Gridley vs. Boggs [1882], 62 Cal., 190; In the matter of the Estate of Johnson [1881], 57 Cal., 529.) Even where the question of insanity is out in issue in the guardianship proceedings, the most that can be said for the finding is that it raises a presumption of incapacity to make a will but does not invaluable the testament if competency can be shown. The burden of providing sanity in such case is cast upon the proponents. It is here claimed that the unsoundness of mind of the testator was the result of senile dementia. This is the form of mental decay of the aged upon which will are most often contested. A Newton, Paschal, a Cooley suffering under the variable weather of the mind, the flying vapors of incipient lunacy," would have proved historic subjects for expert dispute. Had Shakespeare's King Lear made a will, without any question it would have invited litigation and doubt. Senile dementia usually called childishness has various forms and stages. To constitute complete senile dementiathere must be such failure of the mind as to deprive the testator of intelligent action,. In the first stages of the diseases, a person may possess reason and have will power. (27 L. R. A., N. S. [1910], p. 89; Wharton & Stille's Medical Jurisprudence, vol. I. pp. 791 et seq.; Schouler on Wills, vol. I, pp. 145 et seq.)

It is a rather remarkable coincidence that of all the leading cases which have gone forth from this court, relating to the testator having a sound and disposing mind, and which have been brought to our notice by counsel, every one of them has allowed the will, even when it was necessary to reverse the judgment of the trial court. A study of these cases discloses a consistent tendency to protect the wishes of the deceased whenever it be legally possible. These decisions also show great tenderness on the part of the court towards the last will and testament of the aged. (See Hernaez vs. Hernaez [1903], 1 Phil., 689, per Arellano, C. J., In the matter of the will o f Butalid [1908] 10 Phil., 27 per Arellano, C. J.; Bugnao vs. Ubag [1909] 14. Phil., 163, per Carson, J.; Macapinlac vs. Alimurong [1910], 16 Phil., 41, per Arellano, C.J.; Bagtas vs. Paguio [1912], 22 Phil., 227, per Trent, J.; Galvez vs. Galvez [1913], 26 Phil., 243, per Torres, J.; Samson vs. Corrales Tan Quintin [1923], 44 Phil., 573, per Ostrand, J.; and Jocson vs. Jocson [1922], 46 Phil., 701, per Villamor, J.) Because of their peculiar applicability, we propose to make particular mention of four of the earlier cases of this court. In the case of Hernaez vs. Hernaez supra the subject of the action was the will executed by Dona Juana Espinosa. The annulment of the will was sought first upon the ground of the incapacity of the testatrix. She was over 80 years of age, so ill that three days extreme unction, and two days afterwards she died. Prior thereto she walked in a stooping attitude and gave contradictory orders," as a result of her senile debility." The chief Justice reached the conclusion that neither from the facts elicited by the interrogatories nor the documents presented "can the conclusion be reached that the testatrix was deprived of her mental faculties." The will was held valid and efficacious. In the case of In the matter of the will of Butalid, supra, the will was contested for the reason that Dominga Butalid at the date of the execution of the document was not in the date of the execution of the document was not in the free use of her intellectual powers, she being over 90 years of age, lying in bed seriously ill, senseless and unable to utter a single word so that she did not know what she was doing when she executed the will while the document was claimed to have been executed under the influence and by the direction of one of the heirs designated in the will. Yet after an examination of the evidence in the will. Yet after an examination of the evidence in the will. The Chief Justice rendered judgment reversing the judgment appealed from and declaring the will presented for legalization to be valid and sufficient. In the case of Bugnao vs. Ubag, supra the court gave credence to the testimony of the subscribing witnesses who swore positively that at the time of the execution of the will the testator was of sound mind and memory. Based on these and other facts, Mr. Justice Carson, speaking for court, laid down the following legal principles: Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary known as insanity or idiocy there are numberless degrees of mental capacity or incapacity and while on one hand it had been held that mere weakness of mind or partial imbecility from disease of body, or from age, will to render a person incapable of making a will a weak or feeble minded person may make a valid will provided he has understanding and memory sufficient to enable him to know what he is about and how or to whom he is disposing of his property' (Lodge vs. Lodge, 2 Houst. [Del.] 418); that, "To constitute a sound be unbroken or unimpaired, unshattered by disease or otherwise (Sloan vs. Maxwell, # N. J. Eq., 563); that it has not been understood that a testator must possess these qualities (of sound and disposing mind and memory) in the highest degree. . . .Few indeed would be the wills confirmed it this is correct. Pain, sickness, debility of body from age or infirmity, would according to its violence or duration in a greater or less degree, break in upon, weaken, or derange the mind, but the derangement must be such as deprives him of the rational faculties common to man' (Den. vs. Vancleve, 5 N. J. L., 680); and that Sound mind does not mean a perfectly balanced mind. The question of soundness is one of degree' (Boughton vs. Knight. L. R., 3 P. & D., 64; 42 L. P. P., 25); on the other hand, it has been

held that testamentary incapacity does not necessarily require that a person shall actually be insane or of an unsound mind. Weakness of intellect, whether it arises from extreme old age, from disease, or great bodily infirmities of suffering, or from all these combined, may render the testator in capable of making a valid will, providing such weakness really disqualifies for from knowing or appreciating the nature, effects, or consequences of the act she is engaged in (Manatt vs. Scott, 106 Iowa, 203; 68 Am. St. Rep., 293, 302). In the case of Nagtas vs. Paquio, supra, the record shows that the testator for some fourteen or fifteen years prior to the time of his death suffered from a paralysis of the left side of his body, that a few years prior to his death his hearing became impaired and that he had lost the power of speech. However, he retained the use of his hand and could write fairly well. Through the medium of signs, he was able to indicate his wishes to his family. The will was attacked n the ground that the testator lacked mental capacity at the time of its execution. The will was nevertheless admitted to probate, Mr. Justice Trent, speaking for the court, announcement the following pertinent legal doctrines: * * * There are many cases and authorities which we might cite to show that the courts have repeatedly held that mere weakness of mind and body, induced by age and disease do not render a person incapable of making a will. The law does not require that a person shall continue in the full enjoyment and use of his pristine physical and mental powers in order to execute a valid will. If such were the legal standard few indeed would be the number of wills that could meet such exacting requirements. The authorities, both medical and legal are universal in the statement that the question of mental capacity is one of degree and that there are many graduations from the highest degree of mental soundness to the lowest conditions of diseased mentality which are denominated as insanity and idiocy. The right to dispose of property by testamentary disposition is as sacred as any other right which a person may exercise and this right should be nullified unless mental incapacity is established in a positive and conclusive manner. In discussing the question of testamentary capacity, it is stated in volume 28, page 70, of the American and English Encyclopedia of Law that — 'Contrary to the very prevalent lay impression perfect soundness of mind is not essential to testamentary capacity. A testator may be afflicted with a variety of mental weakness, disorders or peculiarities and still be capable in law of executing a valid will.' (See the numerous cases there cited in support of this statement.) The rule relating to testamentary capacity is stated in Buswel on Insanity, section 365 and quoted with approval in Campbell vs. Campbell (130 Ill. 466) as follows: To constitute a sound and disposing mind, it is not necessary that the mind shall be wholly unbroken unimpaired or unshattered by disease or otherwise or that the testator should be in the full possession of his reasoning faculties. In note, 1 Jarnan on Wills, 38, the rule is thus stated: The question is not so much, what was the degree of memory possessed by the testator as had, he a disposing memory? Was he able to remember the property he was about to bequeth the manner of distributing it and the object of his bounty? In a word, were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time when he executed his will.' (See authorities there cited)

In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared upon the trial of the case: The testator died at the age of nearly 102 years. In his early years he was an intelligent and well informed man. About seven years prior to his death he suffered a paralytic stroke and from that time his mind and memory were much enfeebled. He became very dull of hearing and in consequence of the shrinking of his brain he was affected with senile cataract causing total blindness. He became filthy and obscene in his habits, although formerly he was observant of the proprieties of life. The court, in commenting upon the case, said: Neither age, nor sickness, nor extreme distress, nor debility of body will affect the capacity to make a will, if sufficient intelligence remains. The failure of memory is not sufficient to create the incapacity, unless it be total or extend to his immediate family to property. . . . xxx

xxx

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Dougal (the testator) had lived over one hundred years before he made the will and his physical and mental weakness and defective memory were in striking contrast with their strength in the meridian of his life. He was blind; not deaf, but hearing impaired; his mind acted slowly, he was forgetful of recent events, especially of names and repeated questions in conversation; and sometimes, when aroused from sleep or slumber, would seem bewildered. It is not singular that some of those who had known him when he was remarkable for vigor and intelligence are of the opinion that his reason was so far gone that he was incapable of making a will, although they never heard him utter an irrational expression. In the above case the will was sustained. In the case at bar we might draw the same contract as was pictured by the court in the case just quoted. . . . The particular difference between all of the Philippine case which are cited and the case at bar are that in none of the Philippine cases was there any declaration of incomplicated and in none of them were the facts quite as complicated as they are here. A case in point where the will was contested, because the testator was not of sound and disposing mind and memory and because at the time of the making of the will he was acting under the undue influence of his brothers and where he had a guardian when he executed his will, is Ames' Will ([1902] 40 Ore., 495). Mr. Justice Moore, delivering the opinion of the court, in part said: It is contended by contestant's counsel that on the day said pretended will purports to have been executed, Lowell was declared incompetent by a court which had jurisdiction of the person and subject-matter and that the decree therein appointing a guardian of his person and estate raises the distable presumption that he did not possess sufficient testamentary capacity at the time to overcome which required evidence so strong as to leave no reasonable doubt as to his capacity to make a valid will, and the testimony introduced by the proponent being insufficient for that purpose the court erred in admitting it to probate. The appointment of a guardian of a person alleged to be non compos mentis, by a court having jurisdiction must necessarily create a presumption of the mental infirmity of the ward; but such decree does not conclusively show that the testamentary capacity of the person under guardianship is entirely destroyed and the presumption thus created may be overcome by evidence proving that such person at the time he executed a will was in fact of sound and disposing mind and memory: Stone vs. Damon, 12 Mass., 487; Breed vs. Pratt, 18 Pick, 115: In re Slinger's Will, 72 Wis., 22 (37 N. W. 236).

The testimony shows that the testator retained a vivid recollection of the contents of the books he had read and studied when he was young but that he could not readily recall to his mind the ordinary incidents of his later life. The depth and intensity of mental impression always depend upon and are measured by the degree of attention given to the perception of truth, which demands reflection; and hence the inability of a person to recollect events and hence the inability is evidence of mental decay, because it manifest a want of power on concentration of the mind. The aged live in the past and the impression retained in their minds are those that were made in their younger days, because at that period of their lives they were able to exercise will power by giving attention. While the inability of a person of advanced years to remember recent events distinctly undoubtedly indicates a decay of the human faculties, it does not conclusively establish senile dementia, which is something more than a mere loss of mental power, resulting from old age and is not only a feeble condition of the mind but a derangement thereof. . . . The rule is settled in this state that if a testator at the time he executes his will understand the business in which he is engaged and has a knowledge of his property and how he wishes to dispose of it among those entitled to his bounty, he possess sufficient testamentary capacity, notwithstanding his old age, sickness debility of body, or extreme distress. xxx

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It is contented by contestant's counsel that if Lowell at the time he executed the pretended will, was not wholly lacking in testamentary capacity, he was, in consequence of age ill health, debility of body and infirmity of will power, Andrew and Joseph having knowledge thereof took advantage of his physical and mental condition and unduly influenced him to device and bequeth his property in the manner indicated, attempting thereby to deprive the contestant of all interest therein except such as was given her by statute. . . . Assuming that he was easily persuaded and that his brothers and the persons employed by them to care for him took advantage of his enfeebled condition and prejudiced his mind against the contestant did such undue influence render the will therefore executed void? . . . When a will has been properly executed, it is the duty of the courts to uphold it, if the testator possessed a sound and disposing mind and memory and was free from restraint and not acting under undue influence notwithstanding sympathy for persons legally entitled to the testator's bounty and a sense of innate justice might suggest a different testamentary disposition. Believing, as we do, that the findings of the circuit court are supported by the weight of the testimony its decree is affirmed. Insofar as the law on testamentary capacity to make a will is concerned and carrying alone one step further the question suggested at the end of the presentation of the facts on the same subject a resolution of the case comes down to this: Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will which would meet the legal test regarding testamentary capacity and have the proponents of the will carried successfully the burden of proof and shown him to be of sound mind on that date? II. UNDUE INFLUENCE A. Facts. — The will was attacked on the further ground of undue influence exercised by the persons benefited in the will in collaboration with others. The trial judge found this allegation to have been established and made it one of the bases of his decision. it is now for us to say if the facts justify this finding.

Tomas Rodriguez voluntary named Vicente F. Lopez as his administrator. The latter subsequently became his guardian. There is every indication that of all his relatives Tomas Rodriguez reposed the most confidence in Vicente F. Lopez and his daughter Luz Lopez de Bueno. Again, it was Vicente F. Lopez, who, on the suggestion of Rodriguez secured Maximino Mina to prepare the will, and it was Luz Lopez de Bueno who appears to have gathered the witnesses and physicians for the execution of the will. This faction of the Lopez family was also a favor through the orders of Doctor Domingo as to who could be admitted to see the patient. The trial judge entertained the opinion that there existed "a preconceived plan on the part of the persons who surrounded Tomas Rodriguez" to secure his signature to the testament. The trial judge may be correct in this supposition. It is hard to believe, however, that men of the standing of Judge Mina, Doctors Calderon, Domingo, Herrera, and De Asis and Mr. Legarda would so demean themselves and so fully their characters and reputation as to participate in a scheme having for its purpose to delude and to betray an old man in his age, rather named was acting according to the best of his ability to assist in a legitimate act in a legitimate manner. Moreover, considering the attitude of Tomas Rodriguez toward Margarita Lopez and her husband and his apparent enmity toward them, it seems fairly evident that even if the will had been made in previous years when Rodriguez was more nearly in his prime, he would have prepared somewhat a similar document. B. LAW. — One of the grounds for disallowing a will is that it was procured by undue and improper pressure and influence on the art of the beneficiary or some other person for his benefit (Code of Civil Procedure, sec., 634[4]). Undue influence, as here mentioned in connection with the law of wills and as further mentioned in the Civil Code (art. 1265), may be defined as that which compelled the testator to do that which is against the will from fear the desire of peace or from other feeling which is unable to resist. The theory of undue influence is totally rejected as not proved. III. JUDGMENT To restate the combined issued of fact and law in this case pertaining to testamentary capacity: Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will which would meet the legal test regarding testamentary capacity and have the proponents of the will carried successfully the burden of proof and shown him to be of sound mind on that date? Two of the subscribing witnesses to the will, one a physician clearly to the regular manner in which the will was executed and to the testator's mental condition. The other subscribing witness, also, a physician on the contrary testified to a fact which, if substantiated, would require the court to disallow the will. The attending physician and three other eminent members of the medical fraternity, who were present at the execution of the will, expressed opinions entirely favorable to the capacity of the testator. As against this we have the professional speculations of three other equally eminent members of the medical profession when the will was executed. The advantage on those facts is all with those who offer the will for probate. The will was short. It could easily be understood by a person in physical distress. It was reasonable, that is, it was reasonable if we take into account the evident prejustice of the testator against the husband of Margarita Lopez. With special reference of the definition of testamentary capacity, we may say this: On January 3, 1924, Tomas Rodriguez, in our opinion comprehended the nature of the transaction in which he was engaged. He had two conferences with his lawyer, Judge Mina, and knew what the will was to contain. The will was read to him by Mr. Legarda. He signed the will and its two copies in the proper

places at the bottom and on the left margin. At that time the testator recollected the property to be disposed of and the persons who would naturally be supposed to have claims upon him While for some months prior to the making of the will he had not manage his property he seem to have retained a distinct recollection of what it consisted and of his income. Occasionally his memory failed him with reference to the names of his relatives. Ordinarily, he knew who they were, he seemed to entertain a prediliction towards Vicente F. Lopez as would be natural since Lopez was nearest in which the instrument distributed the property naming the objects of his bounty. His conversations with Judge Mina disclosed as insistence on giving all of his property to the two persons whom he specified. On January 3, 1924, Tomas Rodriguez may have been of advanced years, may have been physically decrepit, may have been weak in intellect, may have suffered a loss of memory, may have had a guardian and may have a been extremely eccentric, but he still possessed the spark of reason and of life, that strength of mind to form a fixed intention and to summon his enfeebled thoughts to enforce that intention, which the law terms "testamentary capacity." That in effect is the definite opinion which we reach after an exhaustive and exhausting study of a tedious record, after weighing the evidence for the oppositors, and after giving to the case the serious consideration which it deserves. The judgment of the trial court will be set aside and the will of Tomas Rodriguez will be admitted to probate without special pronouncement as to costs in this instance. Avanceña, C. J., Johnson, Villamor, Johns, Romualdez, and Villa-Real, JJ., concur.

Separate Opinions STREET AND OSTRAND, JJ., dissenting: We are of the opinion that the judgment which is the subject of appeal in this case is in all respects correct and should be affirmed. The testator was clearly suffering from senile dementia and lacked the "disposing mind and memory" the possession of which is a condition precedent to the exercise of testamentary power.

Dorotheo v CA G.R. No. 108581 December 8, 1999 LOURDES L. DOROTHEO, petitioner, vs. COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of VICENTE DOROTHEO and JOSE DOROTHEO, respondents.

YNARES-SANTIAGO, J.:

May a last will and testament admitted to probate but declared intrinsically void in an order that has become final and executory still be given effect? This is the issue that arose from the following antecedents: Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter died in 1969 without her estate being settled. Alejandro died thereafter. Sometime in 1977, after Alejandro's death, petitioner, who claims to have taken care of Alejandro before he died, filed a special proceeding for the probate of the latter's last will and testament. In 1981, the court issued an order admitting Alejandro's will to probate. Private respondents did not appeal from said order. In 1983, they filed a "Motion To Declare The Will Intrinsically Void." The trial court granted the motion and issued an order, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes Legaspi not the wife of the late Alejandro Dorotheo, the provisions of the last will and testament of Alejandro Dorotheo as intrinsically void, and declaring the oppositors Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo Quintana as the only heirs of the late spouses Alejandro Dorotheo and Aniceta Reyes, whose respective estates shall be liquidated and distributed according to the laws on intestacy upon payment of estate and other taxes due to the government. 1 Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took care of Alejandro prior to his death although she admitted that they were not married to each other. Upon denial of her motion for reconsideration, petitioner appealed to the Court of Appeals, but the same was dismissed for failure to file appellant's brief within the extended period granted. 2 This dismissal became final and executory on February 3, 1989 and a corresponding entry of judgment was forthwith issued by the Court of Appeals on May 16, 1989. A writ of execution was issued by the lower court to implement the final and executory Order. Consequently, private respondents filed several motions including a motion to compel petitioner to surrender to them the Transfer Certificates of Titles (TCT) covering the properties of the late Alejandro. When petitioner refused to surrender the TCT's, private respondents filed a motion for cancellation of said titles and for issuance of new titles in their names. Petitioner opposed the motion.

An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and executory Order dated January 30, 1986, as well as the Order directing the issuance of the writ of execution, on the ground that the order was merely "interlocutory", hence not final in character. The court added that the dispositive portion of the said Order even directs the distribution of the estate of the deceased spouses. Private respondents filed a motion for reconsideration which was denied in an Order dated February 1, 1991. Thus, private respondents filed a petition before the Court of Appeals, which nullified the two assailed Orders dated November 29, 1990 and February 1, 1991. Aggrieved, petitioner instituted a petition for review arguing that the case filed by private respondents before the Court of Appeals was a petition under Rule 65 on the ground of grave abuse of discretion or lack of jurisdiction. Petitioner contends that in issuing the two assailed orders, Judge Angas cannot be said to have no jurisdiction because he was particularly designated to hear the case. Petitioner likewise assails the Order of the Court of Appeals upholding the validity of the January 30, 1986 Order which declared the intrinsic invalidity of Alejandro's will that was earlier admitted to probate. Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to maintain thestatus quo or lease of the premises thereon to third parties. 3 Private respondents opposed the motion on the ground that petitioner has no interest in the estate since she is not the lawful wife of the late Alejandro.

The petition is without merit. A final and executory decision or order can no longer be disturbed or reopened no matter how erroneous it may be. In setting aside the January 30, 1986 Order that has attained finality, the trial court in effect nullified the entry of judgment made by the Court of Appeals. It is well settled that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do so would be to negate the hierarchy of courts and nullify the essence of review. It has been ruled that a final judgment on probated will, albeit erroneous, is binding on the whole world. 4 It has been consistently held that if no appeal is taken in due time from a judgment or order of the trial court, the same attains finality by mere lapse of time. Thus, the order allowing the will became final and the question determined by the court in such order can no longer be raised anew, either in the same proceedings or in a different motion. The matters of due execution of the will and the capacity of the testator acquired the character ofres judicata and cannot again be brought into question, all juridical questions in connection therewith being for once and forever closed. 5 Such final order makes the will conclusive against the whole world as to its extrinsic validity and due execution. 6

It should be noted that probate proceedings deals generally with the extrinsic validity of the will sought to be probated, 7 particularly on three aspects: n whether the will submitted is indeed, the decedent's last will and testament; n compliance with the prescribed formalities for the execution of wills; n the testamentary capacity of the testator; 8 n and the due execution of the last will and testament. 9

Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing mind at the time of its execution, that he had freely executed the will and was not acting under duress, fraud, menace or undue influence and that the will is genuine and not a forgery, 10 that he was of the proper testamentary age and that he is a person not expressly prohibited by law from making a will. 11

The intrinsic validity is another matter and questions regarding the same may still be raised even after the will has been authenticated. 12 Thus, it does not necessarily follow that an extrinsically valid last will and testament is always intrinsically valid. Even if the will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to the laws on succession, 13 the unlawful provisions/dispositions thereof cannot be given effect. This is specially so when the courts had already determined in a final and executory decision that the will is intrinsically void. Such determination having attained that character of finality is binding on this Court which will no longer be disturbed. Not that this Court finds the will to be intrinsically valid, but that a final and executory decision of which the party had the opportunity to challenge before the higher tribunals must stand and should no longer be reevaluated. Failure to avail of the remedies provided by law constitutes waiver. And if the party does not avail of other remedies despite its belief that it was aggrieved by a decision or court action, then it is deemed to have fully agreed and is satisfied with the decision or order. As early as 1918, it has been declared that public policy and sound practice demand that, at the risk of occasional errors, judgments of courts must at some point of time fixed by law 14become final otherwise there will be no end to litigation. Interes rei publicae ut finis sit litium — the very object of which the courts were constituted was to put an end to controversies. 15 To fulfill this purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set up to spur on the slothful. 16 The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when

he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence, 17 which circumstances do not concur herein.

Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she precisely appealed from an unfavorable order therefrom. Although the final and executory Order of January 30, 1986 wherein private respondents were declared as the only heirs do not bind those who are not parties thereto such as the alleged illegitimate son of the testator, the same constitutes res judicata with respect to those who were parties to the probate proceedings. Petitioner cannot again raise those matters anew for relitigation otherwise that would amount to forumshopping. It should be remembered that forum shopping also occurs when the same issue had already been resolved adversely by some other court. 18 It is clear from the executory order that the estates of Alejandro and his spouse should be distributed according to the laws of intestate succession.

Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set aside by the trial court. In support thereof, petitioner argues that "an order merely declaring who are heirs and the shares to which set of heirs is entitled cannot be the basis of execution to require delivery of shares from one person to another particularly when no project of partition has been filed." 19 The trial court declared in the January 30, 1986 Order that petitioner is not the legal wife of Alejandro, whose only heirs are his three legitimate children (petitioners herein), and at the same time it nullified the will. But it should be noted that in the same Order, the trial court also said that the estate of the late spouses be distributed according to the laws of intestacy. Accordingly, it has no option but to implement that order of intestate distribution and not to reopen and again re-examine the intrinsic provisions of the same will.

It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that testacy is preferred to intestacy. 20 But before there could be testate distribution, the will must pass the scrutinizing test and safeguards provided by law considering that the deceased testator is no longer available to prove the voluntariness of his actions, aside from the fact that the transfer of the estate is usually onerous in nature and that no one is presumed to give — Nemo praesumitur donare. 21 No intestate distribution of the estate can be done until and unless the will had failed to pass both its extrinsic and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically valid, the next test is to determine its intrinsic validity — that is whether the provisions of the will are valid according to the laws of succession. In this case, the court had ruled that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of intestacy apply as correctly held by the trial court.

Furthermore, Alejandro's disposition in his will of the alleged share in the conjugal properties of his late spouse, whom he described as his "only beloved wife", is not a valid reason to reverse a final and executory order. Testamentary dispositions of properties not belonging exclusively to the testator or properties which are part of the conjugal regime cannot be given effect. Matters with respect to who owns the properties that were disposed of by Alejandro in the void will may still be properly ventilated and determined in the intestate proceedings for the settlement of his and that of his late spouse's estate. Petitioner's motion for appointment as administratrix is rendered moot considering that she was not married to the late Alejandro and, therefore, is not an heir. WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED. SO ORDERED. Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

Balus v Balus THIRD DIVISION

CELESTINO BALUS, Petitioner,

G.R. No. 168970 Present:

- versus -

SATURNINO BALUS andLEONARDA BALUS VDA. DE CALUNOD, Respondents.

CORONA, J., Chairperson, VELASCO, JR., NACHURA, PERALTA, and MENDOZA, JJ. Promulgated: January 15, 2010

x----------------------------------------------------------------------------------------x

DECISION

PERALTA, J.: Assailed in the present petition for review on certiorari under Rule 45 of the Rules of Court is the Decision[1] of the Court of Appeals (CA) dated May 31, 2005 in CA-G.R. CV No. 58041 which set aside the February 7, 1997 Decision of the Regional Trial Court (RTC) of Lanao del Norte, Branch 4 in Civil Case No. 3263. The facts of the case are as follows: Herein petitioner and respondents are the children of the spouses Rufo and Sebastiana Balus. Sebastiana died on September 6, 1978, while Rufo died on July 6, 1984. On January 3, 1979, Rufo mortgaged a parcel of land, which he owns, as security for a loan he obtained from the Rural Bank of Maigo, Lanao del Norte (Bank). The said property was originally covered by Original Certificate of Title No. P-439(788) and more particularly described as follows:

A parcel of land with all the improvements thereon, containing an area of 3.0740 hectares, more or less, situated in the Barrio of Lagundang, Bunawan, Iligan City, and bounded as follows: Bounded on the NE., along line 1-2, by Lot 5122, Csd292; along line 2-12, by Dodiongan River; along line 12-13 by Lot 4649, Csd-292; and along line 12-1, by Lot 4661, Csd-292. x x x [2] Rufo failed to pay his loan. As a result, the mortgaged property was foreclosed and was subsequently sold to the Bank as the sole bidder at a public auction held for that purpose.On November 20, 1981, a Certificate of Sale[3] was executed by the sheriff in favor of the Bank. The property was not redeemed within the period allowed by law. More than two years after the auction, or on January 25, 1984, the sheriff executed a Definite Deed of Sale[4] in the Bank's favor. Thereafter, a new title was issued in the name of the Bank. On October 10, 1989, herein petitioner and respondents executed an Extrajudicial Settlement of Estate[5] adjudicating to each of them a specific one-third portion of the subject property consisting of 10,246 square meters. The Extrajudicial Settlement also contained provisions wherein the parties admitted knowledge of the fact that their father mortgaged the subject property to the Bank and that they intended to redeem the same at the soonest possible time. Three years after the execution of the Extrajudicial Settlement, herein respondents bought the subject property from the Bank. On October 12, 1992, a Deed of Sale of Registered Land[6] was executed by the Bank in favor of respondents. Subsequently, Transfer Certificate of Title (TCT) No. T-39,484(a.f.)[7] was issued in the name of respondents.Meanwhile, petitioner continued possession of the subject lot. On June 27, 1995, respondents filed a Complaint[8] for Recovery of Possession and Damages against petitioner, contending that they had already informed petitioner of the fact that they were the new owners of the disputed property, but the petitioner still refused to surrender possession of the same to them. Respondents claimed that they had exhausted all remedies for the amicable settlement of the case, but to no avail. On February 7, 1997, the RTC rendered a Decision[9] disposing as follows: WHEREFORE, judgment is hereby rendered, ordering the plaintiffs to execute a Deed of Sale in favor of the defendant, the one-third share of the property in question, presently possessed by him, and described in the deed of partition, as follows: A one-third portion of Transfer Certificate of Title No. T-39,484 (a.f.), formerly Original Certificate of Title No. P-788, now in the name of Saturnino Balus and Leonarda B. Vda. de Calunod, situated at Lagundang, Bunawan, Iligan City, bounded on the North by Lot 5122; East by shares of Saturnino Balus and Leonarda Balus-Calunod; South by Lot 4649, Dodiongan River; West by Lot 4661, consisting of 10,246 square meters, including improvements thereon. and dismissing all other claims of the parties.

The amount of P6,733.33 consigned by the defendant with the Clerk of Court is hereby ordered delivered to the plaintiffs, as purchase price of the one-third portion of the land in question. Plaintiffs are ordered to pay the costs. SO ORDERED.[10] The RTC held that the right of petitioner to purchase from the respondents his share in the disputed property was recognized by the provisions of the Extrajudicial Settlement of Estate, which the parties had executed before the respondents bought the subject lot from the Bank. Aggrieved by the Decision of the RTC, herein respondents filed an appeal with the CA. On May 31, 2005, the CA promulgated the presently assailed Decision, reversing and setting aside the Decision of the RTC and ordering petitioner to immediately surrender possession of the subject property to the respondents. The CA ruled that when petitioner and respondents did not redeem the subject property within the redemption period and allowed the consolidation of ownership and the issuance of a new title in the name of the Bank, their co-ownership was extinguished. Hence, the instant petition raising a sole issue, to wit: WHETHER OR NOT CO-OWNERSHIP AMONG THE PETITIONER AND THE RESPONDENTS OVER THE PROPERTY PERSISTED/CONTINUED TO EXIST (EVEN AFTER THE TRANSFER OF TITLE TO THE BANK) BY VIRTUE OF THE PARTIES' AGREEMENT PRIOR TO THE REPURCHASE THEREOF BY THE RESPONDENTS; THUS, WARRANTING THE PETITIONER'S ACT OF ENFORCING THE AGREEMENT BY REIMBURSING THE RESPONDENTS OF HIS (PETITIONER'S) JUST SHARE OF THE REPURCHASE PRICE.[11] The main issue raised by petitioner is whether co-ownership by him and respondents over the subject property persisted even after the lot was purchased by the Bank and title thereto transferred to its name, and even after it was eventually bought back by the respondents from the Bank. Petitioner insists that despite respondents' full knowledge of the fact that the title over the disputed property was already in the name of the Bank, they still proceeded to execute the subject Extrajudicial Settlement, having in mind the intention of purchasing back the property together with petitioner and of continuing their co-ownership thereof. Petitioner posits that the subject Extrajudicial Settlement is, in and by itself, a contract between him and respondents, because it contains a provision whereby the parties agreed to continue their co-ownership of the subject property by redeeming or repurchasing the same from the Bank. This agreement, petitioner contends, is the law between the parties and, as such, binds the respondents. As a result, petitioner asserts that respondents' act of buying the disputed property from the Bank without notifying him inures to his benefit as to give him the right to claim his rightful portion of the property, comprising 1/3 thereof, by reimbursing respondents the equivalent 1/3 of the sum they paid to the Bank.

The Court is not persuaded. Petitioner and respondents are arguing on the wrong premise that, at the time of the execution of the Extrajudicial Settlement, the subject property formed part of the estate of their deceased father to which they may lay claim as his heirs. At the outset, it bears to emphasize that there is no dispute with respect to the fact that the subject property was exclusively owned by petitioner and respondents' father, Rufo, at the time that it was mortgaged in 1979. This was stipulated by the parties during the hearing conducted by the trial court on October 28, 1996.[12] Evidence shows that a Definite Deed of Sale[13] was issued in favor of the Bank on January 25, 1984, after the period of redemption expired. There is neither any dispute that a new title was issued in the Bank's name before Rufo died on July 6, 1984. Hence, there is no question that the Bank acquired exclusive ownership of the contested lot during the lifetime of Rufo. The rights to a person's succession are transmitted from the moment of his death.[14] In addition, the inheritance of a person consists of the property and transmissible rights and obligations existing at the time of his death, as well as those which have accrued thereto since the opening of the succession.[15] In the present case, since Rufo lost ownership of the subject property during his lifetime, it only follows that at the time of his death, the disputed parcel of land no longer formed part of his estate to which his heirs may lay claim. Stated differently, petitioner and respondents never inherited the subject lot from their father. Petitioner and respondents, therefore, were wrong in assuming that they became co-owners of the subject lot. Thus, any issue arising from the supposed right of petitioner as co-owner of the contested parcel of land is negated by the fact that, in the eyes of the law, the disputed lot did not pass into the hands of petitioner and respondents as compulsory heirs of Rufo at any given point in time. The foregoing notwithstanding, the Court finds a necessity for a complete determination of the issues raised in the instant case to look into petitioner's argument that the Extrajudicial Settlement is an independent contract which gives him the right to enforce his right to claim a portion of the disputed lot bought by respondents. It is true that under Article 1315 of the Civil Code of the Philippines, contracts are perfected by mere consent; and from that moment, the parties are bound not only to the fulfillment of what has been expressly stipulated but also to all the consequences which, according to their nature, may be in keeping with good faith, usage and law. Article 1306 of the same Code also provides that the contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided these are not contrary to law, morals, good customs, public order or public policy. In the present case, however, there is nothing in the subject Extrajudicial Settlement to indicate any express stipulation for petitioner and respondents to continue with their supposed coownership of the contested lot. On the contrary, a plain reading of the provisions of the Extrajudicial Settlement would not, in any way, support petitioner's contention that it was his and his sibling's intention to buy the subject property from the Bank and continue what they believed to be co-ownership thereof. It is a cardinal rule in the interpretation of contracts that the intention of the parties shall be accorded

primordial consideration.[16] It is the duty of the courts to place a practical and realistic construction upon it, giving due consideration to the context in which it is negotiated and the purpose which it is intended to serve.[17] Such intention is determined from the express terms of their agreement, as well as their contemporaneous and subsequent acts.[18] Absurd and illogical interpretations should also be avoided.[19] For petitioner to claim that the Extrajudicial Settlement is an agreement between him and his siblings to continue what they thought was their ownership of the subject property, even after the same had been bought by the Bank, is stretching the interpretation of the said Extrajudicial Settlement too far. In the first place, as earlier discussed, there is no co-ownership to talk about and no property to partition, as the disputed lot never formed part of the estate of their deceased father. Moreover, petitioner's asseveration of his and respondents' intention of continuing with their supposed co-ownership is negated by no less than his assertions in the present petition that on several occasions he had the chance to purchase the subject property back, but he refused to do so. In fact, he claims that after the Bank acquired the disputed lot, it offered to re-sell the same to him but he ignored such offer. How then can petitioner now claim that it was also his intention to purchase the subject property from the Bank, when he admitted that he refused the Bank's offer to re-sell the subject property to him? In addition, it appears from the recitals in the Extrajudicial Settlement that, at the time of the execution thereof, the parties were not yet aware that the subject property was already exclusively owned by the Bank. Nonetheless, the lack of knowledge on the part of petitioner and respondents that the mortgage was already foreclosed and title to the property was already transferred to the Bank does not give them the right or the authority to unilaterally declare themselves as co-owners of the disputed property; otherwise, the disposition of the case would be made to depend on the belief and conviction of the party-litigants and not on the evidence adduced and the law and jurisprudence applicable thereto. Furthermore, petitioner's contention that he and his siblings intended to continue their supposed co-ownership of the subject property contradicts the provisions of the subject Extrajudicial Settlement where they clearly manifested their intention of having the subject property divided or partitioned by assigning to each of the petitioner and respondents a specific 1/3 portion of the same. Partition calls for the segregation and conveyance of a determinate portion of the property owned in common. It seeks a severance of the individual interests of each co-owner, vesting in each of them a sole estate in a specific property and giving each one a right to enjoy his estate without supervision or interference from the other.[20] In other words, the purpose of partition is to put an end to co-ownership,[21] an objective which negates petitioner's claims in the present case. WHEREFORE, the instant petition is DENIED. The assailed Decision of the Court of Appeals, dated May 31, 2005 in CA-G.R. CV No. 58041, is AFFIRMED. SO ORDERED.

DIOSDADO M. PERALTA Associate Justice

Unionbank v Santibanez SECOND DIVISION

[G.R. No. 149926. February 23, 2005]

UNION BANK OF THE PHILIPPINES, petitioner, vs. EDMUND SANTIBAEZ and FLORENCE SANTIBAEZ ARIOLA, respondents. DECISION CALLEJO, SR., J.: Before us is a petition for review on certiorari under Rule 45 of the Revised Rules of Court which seeks the reversal of the Decision[1] of the Court of Appeals dated May 30, 2001 in CAG.R. CV No. 48831 affirming the dismissal[2] of the petitioners complaint in Civil Case No. 18909 by the Regional Trial Court (RTC) of Makati City, Branch 63. The antecedent facts are as follows: On May 31, 1980, the First Countryside Credit Corporation (FCCC) and Efraim M. Santibaez entered into a loan agreement[3] in the amount of P128,000.00. The amount was intended for the payment of the purchase price of one (1) unit Ford 6600 Agricultural AllPurpose Diesel Tractor. In view thereof, Efraim and his son, Edmund, executed a promissory note in favor of the FCCC, the principal sum payable in five equal annual amortizations of P43,745.96 due on May 31, 1981 and every May 31st thereafter up to May 31, 1985. On December 13, 1980, the FCCC and Efraim entered into another loan agreement, [4] this time in the amount of P123,156.00. It was intended to pay the balance of the purchase price of another unit of Ford 6600 Agricultural All-Purpose Diesel Tractor, with accessories, and one (1) unit Howard Rotamotor Model AR 60K. Again, Efraim and his son, Edmund, executed a promissory note for the said amount in favor of the FCCC. Aside from such promissory note, they also signed a Continuing Guaranty Agreement[5] for the loan dated December 13, 1980. Sometime in February 1981, Efraim died, leaving a holographic will.[6] Subsequently in March 1981, testate proceedings commenced before the RTC of Iloilo City, Branch 7, docketed as Special Proceedings No. 2706. On April 9, 1981, Edmund, as one of the heirs, was appointed as the special administrator of the estate of the decedent.[7] During the pendency of the testate proceedings, the surviving heirs, Edmund and his sister Florence Santibaez Ariola, executed a Joint Agreement[8] dated July 22, 1981, wherein they agreed to divide between themselves and take possession of the three (3) tractors; that is, two (2) tractors for Edmund and one (1) tractor for Florence. Each of them was to assume the indebtedness of their late father to FCCC, corresponding to the tractor respectively taken by them. On August 20, 1981, a Deed of Assignment with Assumption of Liabilities[9] was executed by and between FCCC and Union Savings and Mortgage Bank, wherein the FCCC as the

assignor, among others, assigned all its assets and liabilities to Union Savings and Mortgage Bank. Demand letters[10] for the settlement of his account were sent by petitioner Union Bank of the Philippines (UBP) to Edmund, but the latter failed to heed the same and refused to pay. Thus, on February 5, 1988, the petitioner filed a Complaint[11] for sum of money against the heirs of Efraim Santibaez, Edmund and Florence, before the RTC of Makati City, Branch 150, docketed as Civil Case No. 18909. Summonses were issued against both, but the one intended for Edmund was not served since he was in the United States and there was no information on his address or the date of his return to the Philippines.[12] Accordingly, the complaint was narrowed down to respondent Florence S. Ariola. On December 7, 1988, respondent Florence S. Ariola filed her Answer[13] and alleged that the loan documents did not bind her since she was not a party thereto. Considering that the joint agreement signed by her and her brother Edmund was not approved by the probate court, it was null and void; hence, she was not liable to the petitioner under the joint agreement. On January 29, 1990, the case was unloaded and re-raffled to the RTC of Makati City, Branch 63.[14] Consequently, trial on the merits ensued and a decision was subsequently rendered by the court dismissing the complaint for lack of merit. The decretal portion of the RTC decision reads: WHEREFORE, judgment is hereby rendered DISMISSING the complaint for lack of merit. [15] The trial court found that the claim of the petitioner should have been filed with the probate court before which the testate estate of the late Efraim Santibaez was pending, as the sum of money being claimed was an obligation incurred by the said decedent. The trial court also found that the Joint Agreement apparently executed by his heirs, Edmund and Florence, on July 22, 1981, was, in effect, a partition of the estate of the decedent. However, the said agreement was void, considering that it had not been approved by the probate court, and that there can be no valid partition until after the will has been probated. The trial court further declared that petitioner failed to prove that it was the now defunct Union Savings and Mortgage Bank to which the FCCC had assigned its assets and liabilities. The court also agreed to the contention of respondent Florence S. Ariola that the list of assets and liabilities of the FCCC assigned to Union Savings and Mortgage Bank did not clearly refer to the decedents account. Ruling that the joint agreement executed by the heirs was null and void, the trial court held that the petitioners cause of action against respondent Florence S. Ariola must necessarily fail. The petitioner appealed from the RTC decision and elevated its case to the Court of Appeals (CA), assigning the following as errors of the trial court: 1. THE COURT A QUO ERRED IN FINDING THAT THE JOINT AGREEMENT (EXHIBIT A) SHOULD BE APPROVED BY THE PROBATE COURT. 2. THE COURT A QUO ERRED IN FINDING THAT THERE CAN BE NO VALID PARTITION AMONG THE HEIRS UNTIL AFTER THE WILL HAS BEEN PROBATED. 3. THE COURT A QUO ERRED IN NOT FINDING THAT THE DEFENDANT HAD WAIVED HER RIGHT TO HAVE THE CLAIM RE-LITIGATED IN THE ESTATE PROCEEDING.[16] The petitioner asserted before the CA that the obligation of the deceased had passed to his legitimate children and heirs, in this case, Edmund and Florence; the unconditional signing of

the joint agreement marked as Exhibit A estopped respondent Florence S. Ariola, and that she cannot deny her liability under the said document; as the agreement had been signed by both heirs in their personal capacity, it was no longer necessary to present the same before the probate court for approval; the property partitioned in the agreement was not one of those enumerated in the holographic will made by the deceased; and the active participation of the heirs, particularly respondent Florence S. Ariola, in the present ordinary civil action was tantamount to a waiver to re-litigate the claim in the estate proceedings. On the other hand, respondent Florence S. Ariola maintained that the money claim of the petitioner should have been presented before the probate court.[17] The appellate court found that the appeal was not meritorious and held that the petitioner should have filed its claim with the probate court as provided under Sections 1 and 5, Rule 86 of the Rules of Court. It further held that the partition made in the agreement was null and void, since no valid partition may be had until after the will has been probated. According to the CA, page 2, paragraph (e) of the holographic will covered the subject properties (tractors) in generic terms when the deceased referred to them as all other properties. Moreover, the active participation of respondent Florence S. Ariola in the case did not amount to a waiver. Thus, the CA affirmed the RTC decision, viz.: WHEREFORE, premises considered, the appealed Decision of the Regional Trial Court of Makati City, Branch 63, is hereby AFFIRMED in toto. SO ORDERED.[18] In the present recourse, the petitioner ascribes the following errors to the CA: I. THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT THE JOINT AGREEMENT SHOULD BE APPROVED BY THE PROBATE COURT. II. THE COURT OF APPEALS ERRED IN FINDING THAT THERE CAN BE NO VALID PARTITION AMONG THE HEIRS OF THE LATE EFRAIM SANTIBAEZ UNTIL AFTER THE WILL HAS BEEN PROBATED. III. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE RESPONDENT HAD WAIVED HER RIGHT TO HAVE THE CLAIM RE-LITIGATED IN THE ESTATE PROCEEDING. IV. RESPONDENTS CAN, IN FACT, BE HELD JOINTLY AND SEVERALLY LIABLE WITH THE PRINCIPAL DEBTOR THE LATE EFRAIM SANTIBAEZ ON THE STRENGTH OF THE CONTINUING GUARANTY AGREEMENT EXECUTED IN FAVOR OF PETITIONERAPPELLANT UNION BANK. V.

THE PROMISSORY NOTES DATED MAY 31, 1980 IN THE SUM OF P128,000.00 AND DECEMBER 13, 1980 IN THE AMOUNT OF P123,000.00 CATEGORICALLY ESTABLISHED THE FACT THAT THE RESPONDENTS BOUND THEMSELVES JOINTLY AND SEVERALLY LIABLE WITH THE LATE DEBTOR EFRAIM SANTIBAEZ IN FAVOR OF PETITIONER UNION BANK.[19] The petitioner claims that the obligations of the deceased were transmitted to the heirs as provided in Article 774 of the Civil Code; there was thus no need for the probate court to approve the joint agreement where the heirs partitioned the tractors owned by the deceased and assumed the obligations related thereto. Since respondent Florence S. Ariola signed the joint agreement without any condition, she is now estopped from asserting any position contrary thereto. The petitioner also points out that the holographic will of the deceased did not include nor mention any of the tractors subject of the complaint, and, as such was beyond the ambit of the said will. The active participation and resistance of respondent Florence S. Ariola in the ordinary civil action against the petitioners claim amounts to a waiver of the right to have the claim presented in the probate proceedings, and to allow any one of the heirs who executed the joint agreement to escape liability to pay the value of the tractors under consideration would be equivalent to allowing the said heirs to enrich themselves to the damage and prejudice of the petitioner. The petitioner, likewise, avers that the decisions of both the trial and appellate courts failed to consider the fact that respondent Florence S. Ariola and her brother Edmund executed loan documents, all establishing the vinculum juris or the legal bond between the late Efraim Santibaez and his heirs to be in the nature of a solidary obligation. Furthermore, the Promissory Notes dated May 31, 1980 and December 13, 1980 executed by the late Efraim Santibaez, together with his heirs, Edmund and respondent Florence, made the obligation solidary as far as the said heirs are concerned. The petitioner also proffers that, considering the express provisions of the continuing guaranty agreement and the promissory notes executed by the named respondents, the latter must be held liable jointly and severally liable thereon. Thus, there was no need for the petitioner to file its money claim before the probate court. Finally, the petitioner stresses that both surviving heirs are being sued in their respective personal capacities, not as heirs of the deceased. In her comment to the petition, respondent Florence S. Ariola maintains that the petitioner is trying to recover a sum of money from the deceased Efraim Santibaez; thus the claim should have been filed with the probate court. She points out that at the time of the execution of the joint agreement there was already an existing probate proceedings of which the petitioner knew about. However, to avoid a claim in the probate court which might delay payment of the obligation, the petitioner opted to require them to execute the said agreement. According to the respondent, the trial court and the CA did not err in declaring that the agreement was null and void. She asserts that even if the agreement was voluntarily executed by her and her brother Edmund, it should still have been subjected to the approval of the court as it may prejudice the estate, the heirs or third parties. Furthermore, she had not waived any rights, as she even stated in her answer in the court a quo that the claim should be filed with the probate court. Thus, the petitioner could not invoke or claim that she is in estoppel. Respondent Florence S. Ariola further asserts that she had not signed any continuing guaranty agreement, nor was there any document presented as evidence to show that she had caused herself to be bound by the obligation of her late father. The petition is bereft of merit.

The Court is posed to resolve the following issues: a) whether or not the partition in the Agreement executed by the heirs is valid; b) whether or not the heirs assumption of the indebtedness of the deceased is valid; and c) whether the petitioner can hold the heirs liable on the obligation of the deceased. At the outset, well-settled is the rule that a probate court has the jurisdiction to determine all the properties of the deceased, to determine whether they should or should not be included in the inventory or list of properties to be administered.[20] The said court is primarily concerned with the administration, liquidation and distribution of the estate.[21] In our jurisdiction, the rule is that there can be no valid partition among the heirs until after the will has been probated: In testate succession, there can be no valid partition among the heirs until after the will has been probated. The law enjoins the probate of a will and the public requires it, because unless a will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory. The authentication of a will decides no other question than such as touch upon the capacity of the testator and the compliance with those requirements or solemnities which the law prescribes for the validity of a will.[22] This, of course, presupposes that the properties to be partitioned are the same properties embraced in the will.[23] In the present case, the deceased, Efraim Santibaez, left a holographic will[24] which contained, inter alia, the provision which reads as follows: (e) All other properties, real or personal, which I own and may be discovered later after my demise, shall be distributed in the proportion indicated in the immediately preceding paragraph in favor of Edmund and Florence, my children. We agree with the appellate court that the above-quoted is an all-encompassing provision embracing all the properties left by the decedent which might have escaped his mind at that time he was making his will, and other properties he may acquire thereafter. Included therein are the three (3) subject tractors. This being so, any partition involving the said tractors among the heirs is not valid. The joint agreement[25] executed by Edmund and Florence, partitioning the tractors among themselves, is invalid, specially so since at the time of its execution, there was already a pending proceeding for the probate of their late fathers holographic will covering the said tractors. It must be stressed that the probate proceeding had already acquired jurisdiction over all the properties of the deceased, including the three (3) tractors. To dispose of them in any way without the probate courts approval is tantamount to divesting it with jurisdiction which the Court cannot allow.[26] Every act intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction.[27] Thus, in executing any joint agreement which appears to be in the nature of an extra-judicial partition, as in the case at bar, court approval is imperative, and the heirs cannot just divest the court of its jurisdiction over that part of the estate. Moreover, it is within the jurisdiction of the probate court to determine the identity of the heirs of the decedent.[28] In the instant case, there is no showing that the signatories in the joint agreement were the only heirs of the decedent. When it was executed, the probate of the will was still pending before the court and the latter had yet to determine who the heirs of the decedent were. Thus, for Edmund and respondent Florence S. Ariola to adjudicate unto themselves the three (3) tractors was a premature act, and prejudicial to the other possible heirs and creditors who may have a valid claim against the estate of the deceased.

The question that now comes to fore is whether the heirs assumption of the indebtedness of the decedent is binding. We rule in the negative. Perusing the joint agreement, it provides that the heirs as parties thereto have agreed to divide between themselves and take possession and use the above-described chattel and each of them to assume the indebtedness corresponding to the chattel taken as herein after stated which is in favor of First Countryside Credit Corp.[29] The assumption of liability was conditioned upon the happening of an event, that is, that each heir shall take possession and use of their respective share under the agreement. It was made dependent on the validity of the partition, and that they were to assume the indebtedness corresponding to the chattel that they were each to receive. The partition being invalid as earlier discussed, the heirs in effect did not receive any such tractor. It follows then that the assumption of liability cannot be given any force and effect. The Court notes that the loan was contracted by the decedent. The petitioner, purportedly a creditor of the late Efraim Santibaez, should have thus filed its money claim with the probate court in accordance with Section 5, Rule 86 of the Revised Rules of Court, which provides: Section 5. Claims which must be filed under the notice. If not filed barred; exceptions. All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for funeral expenses for the last sickness of the decedent, and judgment for money against the decedent, must be filed within the time limited in the notice; otherwise they are barred forever, except that they may be set forth as counterclaims in any action that the executor or administrator may bring against the claimants. Where an executor or administrator commences an action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by answer the claims he has against the decedent, instead of presenting them independently to the court as herein provided, and mutual claims may be set off against each other in such action; and if final judgment is rendered in favor of the defendant, the amount so determined shall be considered the true balance against the estate, as though the claim had been presented directly before the court in the administration proceedings. Claims not yet due, or contingent, may be approved at their present value. The filing of a money claim against the decedents estate in the probate court is mandatory.[30] As we held in the vintage case of Py Eng Chong v. Herrera:[31] This requirement is for the purpose of protecting the estate of the deceased by informing the executor or administrator of the claims against it, thus enabling him to examine each claim and to determine whether it is a proper one which should be allowed. The plain and obvious design of the rule is the speedy settlement of the affairs of the deceased and the early delivery of the property to the distributees, legatees, or heirs. `The law strictly requires the prompt presentation and disposition of the claims against the decedent's estate in order to settle the affairs of the estate as soon as possible, pay off its debts and distribute the residue.[32] Perusing the records of the case, nothing therein could hold private respondent Florence S. Ariola accountable for any liability incurred by her late father. The documentary evidence presented, particularly the promissory notes and the continuing guaranty agreement, were executed and signed only by the late Efraim Santibaez and his son Edmund. As the petitioner failed to file its money claim with the probate court, at most, it may only go after Edmund as comaker of the decedent under the said promissory notes and continuing guaranty, of course, subject to any defenses Edmund may have as against the petitioner. As the court had not acquired jurisdiction over the person of Edmund, we find it unnecessary to delve into the matter further.

We agree with the finding of the trial court that the petitioner had not sufficiently shown that it is the successor-in-interest of the Union Savings and Mortgage Bank to which the FCCC assigned its assets and liabilities.[33] The petitioner in its complaint alleged that by virtue of the Deed of Assignment dated August 20, 1981 executed by and between First Countryside Credit Corporation and Union Bank of the Philippines[34] However, the documentary evidence[35] clearly reflects that the parties in the deed of assignment with assumption of liabilities were the FCCC, and the Union Savings and Mortgage Bank, with the conformity of Bancom Philippine Holdings, Inc. Nowhere can the petitioners participation therein as a party be found. Furthermore, no documentary or testimonial evidence was presented during trial to show that Union Savings and Mortgage Bank is now, in fact, petitioner Union Bank of the Philippines. As the trial court declared in its decision: [T]he court also finds merit to the contention of defendant that plaintiff failed to prove or did not present evidence to prove that Union Savings and Mortgage Bank is now the Union Bank of the Philippines. Judicial notice does not apply here. The power to take judicial notice is to [be] exercised by the courts with caution; care must be taken that the requisite notoriety exists; and every reasonable doubt upon the subject should be promptly resolved in the negative. (Republic vs. Court of Appeals, 107 SCRA 504).[36] This being the case, the petitioners personality to file the complaint is wanting. Consequently, it failed to establish its cause of action. Thus, the trial court did not err in dismissing the complaint, and the CA in affirming the same. IN LIGHT OF ALL THE FOREGOING, the petition is hereby DENIED. The assailed Court of Appeals Decision is AFFIRMED. No costs. SO ORDERED. Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.