I. GENERAL PROVISIONS

B.

In re Will of Rev. Abadia, 50 O.G. #9, p. 4185

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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

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

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

MONTEMAYOR, J.:

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

During the hearing one of the attesting witnesses, the other two being dead, testified without contradiction that in his presence and in the presence of his co-witnesses, Father Sancho wrote out in longhand Exhibit "A" in Spanish which the testator spoke and understood; that he (testator) signed on he left hand margin of the front page of each of the three folios or sheets of which the document is composed, and numbered the same with Arabic numerals, and finally signed his name at the end of his writing at the last page, all this, in the presence of the three attesting witnesses after telling that it was his last will and that the said three witnesses signed their names on the last page after the attestation clause in his presence and in the presence of each other. The oppositors did not submit any evidence.

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

The oppositors are appealing from that decision; and because only questions of law are involved in the appeal, the case was certified to us by the Court of Appeals.

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

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

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

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

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

What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new Civil Code which not allows holographic wills, like Exhibit "A" which provisions were invoked by the appellee-petitioner and applied by the lower court? But article 795 of this same new Civil Code expressly provides: "The validity of a will as to its form depends upon the observance of the law in force at the time it is made." The above provision is but an expression or statement of the weight of authority to the affect that the validity of a will is to be judged not by the law enforce at the time of the testator's death or at the time the supposed will is presented in court for probate or when the petition is decided by the court but at the time the instrument was executed. One reason in support of the rule is that although the will operates upon and after the death of the testator, the wishes of the testator about the disposition of his estate among his heirs and among the legatees is given solemn expression at the time the will is executed, and in reality, the legacy or bequest then becomes a completed act. This ruling has been laid down by this court in the case of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should be followed.

Of course, there is the view that the intention of the testator should be the ruling and controlling factor and that all adequate remedies and interpretations should be resorted to in order to carry out said intention, and that when statutes passed after the execution of the will and after the death of the testator lessen the formalities required by law for the execution of wills, said subsequent statutes should be applied so as to validate wills defectively executed

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

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

Paras, C.J., Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion and Reyes J.B.L., JJ., concur.

Fleumer v. Hix, 54 Phil. 610

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-32636             March 17, 1930

In the matter Estate of Edward Randolph Hix, deceased. A.W. FLUEMER, petitioner-appellant, vs.ANNIE COUSHING HIX, oppositor-appellee.

C.A. Sobral for appellant.Harvey & O' Brien and Gibbs & McDonough for appellee.

MALCOLM, J.:

The special administrator of the estate of Edward Randolph Hix appeals from a decision of Judge of First Instance Tuason denying the probate of the document alleged to by the last will and testament of the deceased. Appellee is not authorized to carry on this appeal. We think, however, that the appellant, who appears to have been the moving party in these proceedings, was a "person interested in the allowance or disallowance of a will by a Court of First Instance," and so should be permitted to appeal to the Supreme Court from the disallowance of the will (Code of Civil Procedure, sec. 781, as amended; Villanueva vs. De Leon [1925], 42 Phil., 780).

It is theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West Verginia Code, Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and as certified to by the Director of the National Library. But this was far from a compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. the courts of the Philippine Islands are not authorized to take American Union. Such laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no was printed or published under the authority of the State of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having charge of the original, under the sale of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the time the alleged will was executed.

In addition, the due execution of the will was not established. The only evidence on this point is to be found in the testimony of the petitioner. Aside from this, there was nothing to indicate that the will was acknowledged by the testator in the presence of two competent witnesses, of that these witnesses subscribed the will in the presence of the testator and of each other as the law of West Virginia seems to require. On the supposition that the witnesses to the will reside without the Philippine Islands, it would then the duty of the petitioner to prove execution by some other means (Code of Civil Procedure, sec. 633.)

It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia and not establish this fact consisted of the recitals in the CATHY will and the testimony of the petitioner. Also in beginning administration proceedings orginally in the Philippine Islands, the petitioner violated his own theory by attempting to have the principal administration in the Philippine Islands.

While the appeal pending submission in this court, the attorney for the appellant presented an unverified petition asking the court to accept as part of the evidence the documents attached to the petition. One of these documents discloses that a paper writing purporting to be the was presented for probate on June 8, 1929, to the clerk of Randolph Country, State of West Virginia, in vacation, and was duly proven by the oaths of Dana Wamsley and Joseph L. MAdden, the subscribing witnesses thereto , and ordered to be recorded and filed. It was shown by another document that, in vacation, on June 8, 1929, the clerk of court of Randolph Country, West Virginia, appointed Claude W. Maxwell as administrator, cum testamento annexo, of the estate of Edward Randolph Hix, deceased. In this connection, it is to be noted that the application for the probate of the will in the Philippines was filed on February 20, 1929, while the proceedings in West Virginia appear to have been initiated on June 8, 1929. These facts are strongly indicative of an intention to make the Philippines the principal administration and West Virginia the ancillary administration. However this may be, no attempt has been made to comply with Civil Procedure, for no hearing on the question of the allowance of a will said to have been proved and allowed in West Virginia has been requested. There is no showing that the deceased left any property at any place other than the Philippine Islands and no contention that he left any in West Virginia.

Reference has been made by the parties to a divorce purported to have been awarded Edward Randolph Hix from Annie Cousins Hix on October 8, 1925, in the State of West specific pronouncements on the validity or validity of this alleged divorce.

For all of the foregoing, the judgment appealed from will be affirmed, with the costs of this instance against the appellant.

Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

Estate of Giberson, 48 O.G. #7, 2657

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-4113             June 30, 1952

Testamentaria del finado William R. Giberson. LELA G. DALTON, solicitante-apelante, vs.SPRING GIBERSON, opositor-apelado.

Los hechos aparecen relacionados en la decision del Tribunal.Sres. C. D. Johnston y A. P. Deen en representacion de la apelante.D. Francisco E. F. Remotique en representacion del apelado.

PABLO, J.:

Lela G. Dalton presento' en 10 de febrero de 1949 una solicitud en el Juzgado de Primera Instancia de Cebupidiendo la legalizacion de un documento que, segun alega ella, es testamento olografo de William R. Giberson, otorgadoen 29 de abril de 1920 en San Francisco, California; que Giberson era ciudadano del estado de Illinois, Estados Unidos, y residente de Cebu; y que fallecio en 6 de agosto de 1943 en el campo de concentracion de la Universidad de Sto, Tomas, Manila, Filipinas.

Spring Giberson, hijo legitimo de William R. Giberson, presento un oposicion alegando que el testamento es apocrifo; que no representa la verdadera voluntad del finado Giberson: y que no ha sido otor gado de acuerdo con la ley.

En 1.º de julio de 1949, el opositor presento una mocionpidiendo el sobreseimiento de la solicitud, alegando que, antes de que un testamento otorgado en pais extranjeropueda ser legalizado en las Islas Filipinas, debe demostrarse que dicho testamento habia sido legalizado previamenteen dicho pais, de acuerdo con el articulo 1 de la Regla 78; que la solicitud no alega que el testamento habia sido ya legalizado en California.

La solicitante se opuso a la mocion de sobreseimiento. En 20 de junio de 1950 el Juez sobreseyo la solicitud, declarando: ". . . under our existing rules only those wills that have previously been proved and allowed in the United States, or any state or territory thereof, or any foreign country, according to the laws of such state, territory, or country, may be allowed, filed or recorded in the proper court of first instance in the Philippines. . . ." Contra esta orden la solicitante apela.

El opositor, en apoyo de su teoria, sostiene que el articulo 635 del Codigo de Procedimiento Civil ha sido derogado por la Regla 78, en virtud de la seccion 13, Articulo VIII de la Constitucion. Dicho articulo 635 del Codigo de Procedimiento Civil dice asi:

El testamento otorgado fuera de las Islas Filipinas, que pudiere autenticarse y legalizarse conforme a las leyes del estado o pais en donde se otorgo, podra autenticarse, legalizarse y registrarse en las Islas Filipinas, y tendra la misma eficacia quesi se hubiere otorgado de conformidad con las leyes de estas Islas.

Este articulo y ha sido aplicado en la causa de Babcock Templeton contra Rider Babcock, 52 Jur. Fil., 134, en la cual se declaro que el testamento otorgado en California y que podia legalizarse en dicho estado, puede ser legalizado en Filipinas. En el asunto de Varela contra Varela Calderon, 57 Jur. Fil., 291, se legalizo el testamento otorgado en Paris, Francia, por el finado Dr. Francisco Varela Calderon porque era un testamento que podiaser legalizado de acuerdo con las leyes de Francia.

Una persona puede disponer de sus bienes para despues de su muerte por testamento. El otorgamiento de un testamentoes un acto juridico que puede realizarse en Filipinas o en el extranjero; si se otorga en pais extranjero, tiene que hacerse de acuerdo con las leyes de dicho pais, que es regla universalmente adoptada.

El extranjero puede disponer para despues de su muerte de sus bienes en Filipinas por testamento y no es forzoso que lo otorgue en Filipinas; puede hacerlo en su propio pais o en otro, pero de acuerdo con las leyes del pais en que lo otorga. El articulo 635 del Codigo de Procedimiento Civil, respetando la libertad del testador de otorgar su testamento en cualquier lugar, dispone que el testamento que puede legalizarse en un pais extranjero en consonancia con las leyes de dicho pais puede legalizsarse tambien en Filipinas. Esa disposicion es sustantiva, crea los derechos de los beneficiarios del testamento: se les asegura poder legalizar en Filipinas los testamentos otorgadosfuera de las Islas si pueden ser legalizados en el pais en que fueron otorgados, dandoles causa de accion para pedirjudicialmente el cumplimiento de la ultima voluntad del testador sea cual fuere el lugar de su otorgamiento. Sinesa disposicion quedaria truncada la facultad de testar.

Al enmendar este Tribunal el Codigo de Procedimiento Civil, solamente enmendo la parte procesal, pero no la parte sustantiva. "La ley sustantiva no puede ser enmendadapor reglas de procedimiento." (Reyes contra Viuda de Luz,*16 Lawyer Journal, 623.) For tanto, queda aun subsistente como derecho sustantivo el articulo635 del Codigo de Procedimiento Civil.

Y el articulo 637 dice asi: "Los testamentos autenticados y legalizados en los Estados Unidos, o en cualquier estado o territorio de los mismos, o en un estado o paisextranjero, de conformidad con las leyes de dicho estado, territorio o pais, podran ser legalizados, registrados yarchivados en el Juzgado de Primera Instancia de la provinciaen que el testador tuviere bienes muebles, o inmuebles efectados por dichos testamentos." Este articulono esta en conflicto con el articulo 635; en realidad, noes mas que su corolario. Si un testamento otorgado en pais extranjero que puede legalizarse de acuerdo con las leyes de dicho pais puede tambien legalizarse en las Islas Filipinas, con mayor razon los testamentos ya legalizadosen paises extranjeros de acuerdo con las leyes de dichos paises, pueden legalizarse tambien en Filipinas.

El articulo 1 de la Regla 78 no es mas que una transplantacion del articulo 637 del Codigo de Procedimiento Civil. Reproducimos las dos disposiciones:

RULE 78, — SECTION 1. Wills proved outside Philippines may be allowed here. — Wills proved and allowed in a foreign country,according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines.

SEC. 637. Wills proved outside islands may be allowed here. — Wills proved and allowed in the United States, or any State or Territory thereof, or in a foreign state or country, according to the laws of such State, Territory, or country, may be allowed, filed,and recorded in the Court of First Instance of the province in which the testator has real or personal estate on which such will may operate.

Las palabras subrayadas en la segunda disposicion son las que no aparecen en la primera.

El articulo 1 de la Regla 78 no impide que puede legalizarse en Filipinas un testamento otorgado en un pais extranjero,si puede ser legalizado de acuerdo con las leyes de dicho pais, ni exige que sea previamente legalizado en dicho pais. Es insostenible, por tanto, la teoria del opositor.

Se revoca la orden apelada con costas contra el apelado.

Paras, Pres., Feria, Bengzon, Padilla, Tuason, Montemayor, Bautista Angelo y Labrador, MM., estan conformes.

Footnotes

*88 Phil., 580.

Dela Cerna v. Potot, 12 SCRA 576

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-20234      December 23, 1964

PAULA DE LA CERNA, ET AL., petitioners, vs.MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF APPEALS, respondents.

Philip M. Alo and Crispin M. Menchavez for petitioners.Nicolas Jumapao for respondents.

REYES, J.B.L., J.:

Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R-3819) and ordering the dismissal of an action for partition.

The factual background appears in the following portion of the decision of the Court of Appeals (Petition, Annex A, pp. 2-4):

It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca, executed a joint last will and testament in the local dialect whereby they willed that "our two parcels of land acquired during our marriage together with all improvements thereon shall be given to Manuela Rebaca, our niece, whom we have nurtured since childhood, because God did not give us any child in our union, Manuela Rebaca being married to Nicolas Potot", and that "while each of the testators is yet living, he or she will continue to enjoy the fruits of the two lands aforementioned", the said two parcels of land being covered by Tax No. 4676 and Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of Cebu. Bernabe dela Serna died on August 30, 1939, and the aforesaid will was submitted to probate by said Gervasia and Manuela before the Court of First Instance of Cebu which, after due publication as required by law and there being no opposition, heard the evidence, and, by Order of October 31, 1939; in Special Proceedings No. 499, "declara legalizado el documento Exhibit A como el testamento y ultima voluntad del finado Bernabe de la Serna con derecho por parte du su viuda superstite Gervasia Rebaca y otra testadora al propio tiempo segun el Exhibit A de gozar de los frutos de los terranos descritos en dicho documents; y habido consideracion de la cuantia de dichos bienes, se decreta la distribucion sumaria de los mismos en favor de la logataria universal Manuela Rebaca de Potot previa prestacion por parte de la misma de una fianza en la sum de P500.00 para responder de cualesquiera reclamaciones que se presentare contra los bienes del finado Bernabe de la Serna de los años desde esta fecha" (Act Esp. 499, Testamentaria Finado Bernabe de la Serna) Upon the death of Gervasia Rebaca on October 14, 1952, another petition for the probate of the same will insofar as Gervasia was concerned was filed on November 6, 1952, being Special Proceedings No. 1016-R of the same Court of First Instance of Cebu, but for failure of the petitioner, Manuela R. Potot and her attorney, Manuel Potot to appear, for the hearing of said petition, the case was dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia Rebaca).

The Court of First Instance ordered the petition heard and declared the testament null and void, for being executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but on appeal by the testamentary heir, the Court of Appeals reversed, on the ground that the decree of probate in 1939 was issued by a court of probate jurisdiction and conclusive on the due execution of the testament. Further, the Court of Appeals declared that:

... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits the making of a will jointly by two or more persons either for their reciprocal benefit or for the benefit of a third person. However, this form of will has long been sanctioned by use, and the same has continued to be used; and when, as in the present case, one such joint last will and testament has been admitted to probate by final order of a Court of competent jurisdiction, there seems to be no alternative except to give effect to the provisions thereof that are not contrary to law, as was done in the case of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to the provisions of the joint will therein mentioned, saying, "assuming that the joint will in question is valid."

Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.

The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect as to his last will and testament despite the fact that even then the Civil Code already decreed the invalidity of joint wills, whether in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old Civil Code). The error thus committed by the probate court was an error of law, that should have been corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final decision, however erroneous. A final judgment rendered on a petition for the probate of a will is binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156); and public policy and sound practice demand that at the risk of occasional errors judgment of courts should become final at some definite date fixed by law. Interest rei publicae ut finis set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939 decree admitting his will to probate. The contention that being void the will cannot be validated, overlooks that the ultimate decision on Whether an act is valid or void rests with the courts, and here they have spoken with finality when the will was probated in 1939. On this court, the dismissal of their action for partition was correct.

But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that the probate decree in 1989 could only affect the share of the deceased husband, Bernabe de la Cerna. It could not include the disposition of the share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest in the conjugal properties the probate court acquired no jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior to the new Civil Code, a will could not be probated during the testator's lifetime.

It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of each testator. Thus regarded, the holding of the court of First Instance of Cebu that the joint will is one prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the properties in question, for the reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that explained the previous holding in Macrohon vs. Saavedra, 51 Phil. 267.

Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist, or unless she be the only heir intestate of said Gervasia.

It is unnecessary to emphasize that the fact that joint wills should be in common usage could not make them valid when our Civil Codes consistently invalidated them, because laws are only repealed by other subsequent laws, and no usage to the contrary may prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950).

WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.

Bengzon, C.J., Bautista, Angelo, Concepcion, Barrera, Paredes, Dizon Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.

Estate of Rodriguez, 46 O.G. # 2, p. 584

C.

Estate of Christensen, 61 O.G. # 46, p. 7302Estate of Amos Bellis, 20 SCRA 358

Cayetano v. Leonides, 129 SCRA 524

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. L-54919 May 30, 1984

POLLY CAYETANO, petitioner, vs.HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court of First Instance of Manila and NENITA CAMPOS PAGUIA, respondents.

Ermelo P. Guzman for petitioner.

Armando Z. Gonzales for private respondent.

 

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to annul the order of the respondent judge of the Court of First Instance of Manila, Branch XXXVIII, which admitted to and allowed the probate of the last will and testament of Adoracion C. Campos, after an ex-parte presentation of evidence by herein private respondent.

On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos.

Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased, Adoracion Campos, which was allegedly executed in the United States and for her appointment as administratrix of the estate of the deceased testatrix.

In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania,

U.S.A.; that the testatrix died in Manila on January 31, 1977 while temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last wig and testament on July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as executor; that after the testatrix death, her last will and testament was presented, probated, allowed, and registered with the Registry of Wins at the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after Dr. Barzaga had declined and waived his appointment as executor in favor of the former, is also a resident of Philadelphia, U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix to administer and eventually distribute the properties of the estate located in the Philippines.

On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging among other things, that he has every reason to believe that the will in question is a forgery; that the intrinsic provisions of the will are null and void; and that even if pertinent American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they would work injustice and injury to him.

On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights or Interests) stating that he "has been able to verify the veracity thereof (of the will) and now confirms the same to be truly the probated will of his daughter Adoracion." Hence, an ex-partepresentation of evidence for the reprobate of the questioned will was made.

On January 10, 1979, the respondent judge issued an order, to wit:

At the hearing, it has been satisfactorily established that Adoracion C. Campos, in her lifetime, was a citizen of the United States of America with a permanent residence at 4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D) that when alive, Adoracion C. Campos executed a Last Will and Testament in the county of Philadelphia, Pennsylvania, U.S.A., according to the laws thereat (Exhibits E-3 to E-3-b) that while in temporary sojourn in the Philippines, Adoracion C. Campos died in the City of Manila (Exhibit C) leaving property both in the Philippines and in the United States of America; that the Last Will and Testament of the late Adoracion C. Campos was admitted and granted probate by the Orphan's Court Division of the Court of Common Pleas, the probate court of the Commonwealth of Pennsylvania, County of Philadelphia, U.S.A., and letters of administration were issued in favor of Clement J. McLaughlin all in accordance with the laws of the said foreign country on procedure and allowance of wills (Exhibits E to E-10); and that the petitioner is not suffering from any disqualification which would render her unfit as administratrix of the estate in the Philippines of the late Adoracion C. Campos.

WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby admitted to and allowed probate in the Philippines, and Nenita Campos Paguia is hereby appointed Administratrix of the estate of said decedent; let Letters of Administration with the Will annexed issue in favor of said Administratrix upon her filing of a bond in the amount of P5,000.00 conditioned under the provisions of Section I, Rule 81 of the Rules of Court.

Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal of his opposition, acknowledging the same to be his voluntary act and deed.

On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the will be set aside on the ground that the withdrawal of his opposition to the same was secured through fraudulent means. According to him, the "Motion to Dismiss Opposition" was inserted among the papers which he signed in connection with two Deeds of Conditional Sales which he executed with the Construction and Development Corporation of the Philippines (CDCP). He also alleged that the lawyer who filed the withdrawal of the opposition was not his counsel-of-record in the special proceedings case.

The petition for relief was set for hearing but the petitioner failed to appear. He made several motions for postponement until the hearing was set on May 29, 1980.

On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside the Order of January 10, 1979, and/or dismiss the case for lack of jurisdiction. In this motion, the notice of hearing provided:

Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in the morning for submission for reconsideration and resolution of the Honorable Court. Until this Motion is resolved, may I also request for the future setting of the case for hearing on the Oppositor's motion to set aside previously filed.

The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was called for hearing on this date, the counsel for petitioner tried to argue his motion to vacate instead of adducing evidence in support of the petition for relief. Thus, the respondent judge issued an order dismissing the petition for relief for failure to present evidence in support thereof. Petitioner filed a motion for reconsideration but the same was denied. In the same order, respondent judge also denied the motion to vacate for lack of merit. Hence, this petition.

Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which, incidentally has been questioned by the respondent, his children and forced heirs as, on its face, patently null and void, and a fabrication, appointing Polly Cayetano as the executrix of his last will and testament. Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant case which was granted by the court on September 13, 1982.

A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos merged upon his death with the rights of the respondent and her sisters, only remaining children and forced heirs was denied on September 12, 1983.

Petitioner Cayetano persists with the allegations that the respondent judge acted without or in excess of his jurisdiction when:

1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic) upon the filing of the Motion to Dismiss opposition with waiver of rights or interests against the estate of deceased Adoracion C. Campos, thus, paving the way for the hearing ex-parte of the petition for the probate of decedent will.

2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or authenticated instrument), or by way of a petition presented to the court but by way of a motion presented prior to an order for the distribution of the estate-the law especially providing that repudiation of an inheritance must

be presented, within 30 days after it has issued an order for the distribution of the estate in accordance with the rules of Court.

3) He ruled that the right of a forced heir to his legitime can be divested by a decree admitting a will to probate in which no provision is made for the forced heir in complete disregard of Law of Succession

4) He denied petitioner's petition for Relief on the ground that no evidence was adduced to support the Petition for Relief when no Notice nor hearing was set to afford petitioner to prove the merit of his petition — a denial of the due process and a grave abuse of discretion amounting to lack of jurisdiction.

5) He acquired no jurisdiction over the testate case, the fact that the Testator at the time of death was a usual resident of Dasmariñas, Cavite, consequently Cavite Court of First Instance has exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No. L-7792, July 1955).

The first two issues raised by the petitioner are anchored on the allegation that the respondent judge acted with grave abuse of discretion when he allowed the withdrawal of the petitioner's opposition to the reprobate of the will.

We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced to support petitioner's contention that the motion to withdraw was secured through fraudulent means and that Atty. Franco Loyola was not his counsel of record. The records show that after the firing of the contested motion, the petitioner at a later date, filed a manifestation wherein he confirmed that the Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and had been substituted by Atty. Franco Loyola who in turn filed the motion. The present petitioner cannot, therefore, maintain that the old man's attorney of record was Atty. Lagrosa at the time of filing the motion. Since the withdrawal was in order, the respondent judge acted correctly in hearing the probate of the will ex-parte, there being no other opposition to the same.

The third issue raised deals with the validity of the provisions of the will. As a general rule, the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court has declared that the will has been duly authenticated. However, where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue. (Maninang vs. Court of Appeals, 114 SCRA 478).

In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of Adoracion's will, Hermogenes C. Campos was divested of his legitime which was reserved by the law for him.

This contention is without merit.

Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have denied its reprobate outright, the private respondents have sufficiently established that Adoracion was, at the time of her death, an American citizen and

a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively provide:

Art. 16 par. (2).

xxx xxx xxx

However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.

Art. 1039.

Capacity to succeed is governed by the law of the nation of the decedent.

the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Although the parties admit that the Pennsylvania law does not provide for legitimes and that all the estate may be given away by the testatrix to a complete stranger, the petitioner argues that such law should not apply because it would be contrary to the sound and established public policy and would run counter to the specific provisions of Philippine Law.

It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article 16(2) and 1039 of the Civil Code, the national law of the decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20 SCRA 358) wherein we ruled:

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

xxx xxx xxx

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

As regards the alleged absence of notice of hearing for the petition for relief, the records wig bear the fact that what was repeatedly scheduled for hearing on separate dates until June 19, 1980 was the petitioner's petition for relief and not his motion to vacate the order of January 10, 1979. There is no reason why the petitioner should have been led to believe otherwise. The court even admonished the petitioner's failing to adduce evidence when his petition for relief was repeatedly set for hearing. There was no denial of due process. The fact that he requested "for the future setting of the case for hearing . . ." did not mean that at

the next hearing, the motion to vacate would be heard and given preference in lieu of the petition for relief. Furthermore, such request should be embodied in a motion and not in a mere notice of hearing.

Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it is provided that:

SECTION 1. Where estate of deceased persons settled. — If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resided at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record.

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

WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.

SO ORDERED.

Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

Teehankee, J., (Chairman), took no part.

D. Parish Priest of Victoria v. Rigor

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-22036 April 30, 1979

TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL RIGOR. THE PARISH PRIEST OF THE ROMAN CATHOLIC CHURCH OF VICTORIA, TARLAC, petitioner-appellant, 

vs.BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR DE RIGOR and JOVITA ESCOBAR DE FAUSTO,respondents-appellees.

D. Tañedo, Jr. for appellants.

J. Palanca, Sr. for appellee.

 

AQUINO, J.:

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

The parish priest of Victoria, who claimed to be a trustee of the said lands, appealed to this Court from the decision of the Court of Appeals affirming the order of the probate court declaring that the said devise was inoperative (Rigor vs. Parish Priest of the Roman Catholic Church of Victoria, Tarlac, CA-G.R. No. 24319-R, August 1, 1963).

The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan, died on August 9, 1935, leaving a will executed on October 29, 1933 which was probated by the Court of First Instance of Tarlac in its order of December 5, 1935. Named as devisees in the will were the testators nearest relatives, namely, his three sisters: Florencia Rigor-Escobar, Belina Rigor-Manaloto and Nestora Rigor-Quiambao. The testator gave a devise to his cousin, Fortunato Gamalinda.

In addition, the will contained the following controversial bequest (paragraphing supplied to facilitate comprehension of the testamentary provisions):

Doy y dejo como legado CUATRO (4) PARCELAS de terreno palayeros situados en el municipiooo de Guimba de la provinciaaa de NUEVA ECIJA, cuyo num. de CERTIFICADO DE TRANSFERENCIA DE TITULO SON; — Titulo Num. 6530, mide 16,249 m. cuadrados de superficie Titulo Num. 6548, mide 242,998 m. cuadrados de superficie y annual 6525, mide 62,665 m. cuadrados de superficie; y Titulo Num. 6521, mide 119,251 m. cuadrados de superficie; a cualquier pariente mio varon mas cercano que estudie la carrera eclesiatica hasta ordenarse de Presbiterado o sea Sacerdote; las condiciones de estate legado son;

(1.a) Prohibe en absoluto la venta de estos terrenos arriba situados objectos de este legado;

(2.a) Que el legatario pariente mio mas cercano tendra derecho de empezar a gozar y administrar de este legado al principiar a curzar la Sagrada Teologio, y ordenado de Sacerdote, hasta su muerte; pero que pierde el legatario este derecho de administrar y gozar de este legado al dejar de continuar sus estudios para ordenarse de Presbiterado (Sacerdote).

Que el legatario una vez Sacerdote ya estara obligado a celebrar cada año VEINTE (20) Misas rezadas en sufragio de mi alma y de mis padres difuntos, y si el actual legatario, quedase excomulgado, IPSO FACTO se le despoja este legado, y la administracion de esto pasara a cargo del actual Parroco y sus sucesores de la Iglecia Catolica de Victoria, Tarlac.

Y en intervalo de tiempo que no haya legatario acondicionado segun lo arriba queda expresado, pasara la administracion de este legado a cargo del actual Parroco Catolico y sus sucesores, de Victoria, Tarlac.

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

To implement the foregoing bequest, the administratix in 1940 submitted a project containing the following item:

5. LEGACY OF THE CHURCH

That it be adjudicated in favor of the legacy purported to be given to the nearest male relative who shall take the priesthood, and in the interim to be administered by the actual Catholic Priest of the Roman Catholic Church of Victoria, Tarlac, Philippines, or his successors, the real properties hereinbelow indicated, to wit:

Title No.

Lot No.

Area in Has.

Tax Dec.

Ass. Value

T-6530

3663

1.6249

18740

P 340.00

T-6548

3445-C

24.

18730

7,2

2998

90.00

T-6525

3670

6.2665

18736

1,880.00

T-6521

3666

11.9251

18733

3,580.00

Total amount and value — 44.1163 P13,090.00

Judge Roman A. Cruz in his order of August 15, 1940, approving the project of partition, directed that after payment of the obligations of the estate (including the sum of P3,132.26 due to the church of the Victoria parish) the administratrix should deliver to the devisees their respective shares.

It may be noted that the administratrix and Judge Cruz did not bother to analyze the meaning and implications of Father Rigor's bequest to his nearest male relative who would study for the priesthood. Inasmuch as no nephew of the testator claimed the devise and as the administratrix and the legal heirs believed that the parish priest of Victoria had no right to administer the ricelands, the same were not delivered to that ecclesiastic. The testate proceeding remained pending.

About thirteen years after the approval of the project of partition, or on February 19, 1954, the parish priest of Victoria filed in the pending testate proceeding a petition praying for the appointment of a new administrator (succeeding the deceased administration Florencia Rigor), who should deliver to the church the said ricelands, and further praying that the possessors thereof be ordered to render an accounting of the fruits. The probate court granted the petition. A new administrator was appointed. On January 31, 1957 the parish priest filed another petition for the delivery of the ricelands to the church as trustee.

The intestate heirs of Father Rigor countered with a petition dated March 25, 1957 praying that the bequest be d inoperative and that they be adjudged as the persons entitled to the said ricelands since, as admitted by the parish priest of Victoria, "no nearest male relative of" the testator "has ever studied for the priesthood" (pp. 25 and 35, Record on Appeal). That petition was opposed by the parish priest of Victoria.

Finding that petition to be meritorious, the lower court, through Judge Bernabe de Aquino, declared the bequest inoperative and adjudicated the ricelands to the testator's legal heirs in his order of June 28, 1957. The parish priest filed two motions for reconsideration.

Judge De Aquino granted the respond motion for reconsideration in his order of December 10, 1957 on the ground that the testator had a grandnephew named Edgardo G. Cunanan (the grandson of his first cousin) who was a seminarian in the San Jose Seminary of the Jesuit Fathers in Quezon City. The administrator was directed to deliver the ricelands to the parish priest of Victoria as trustee.

The legal heirs appealed to the Court of Appeals. It reversed that order. It held that Father Rigor had created a testamentary trust for his nearest male relative who would take the holy orders but that such trust could exist only for twenty years because to enforce it beyond that period would violate "the rule against perpetuities. It ruled that since no legatee claimed the ricelands within twenty years after the testator's death, the same should pass to his legal heirs, citing articles 888 and 912(2) of the old Civil Code and article 870 of the new Civil Code.

The parish priest in this appeal contends that the Court of Appeals erred in not finding that the testator created a public charitable trust and in not liberally construing the testamentary provisions so as to render the trust operative and to prevent intestacy.

As refutation, the legal heirs argue that the Court of Appeals d the bequest inoperative because no one among the testator's nearest male relatives had studied for the priesthood and not because the trust was a private charitable trust. According to the legal heirs, that factual finding is binding on this Court. They point out that appellant priest's change of theory cannot be countenanced in this appeal .

In this case, as in cases involving the law of contracts and statutory construction, where the intention of the contracting parties or of the lawmaking body is to be ascertained, the primary issue is the determination of the testator's intention which is the law of the case (dicat testor et erit lex. Santos vs. Manarang, 27 Phil. 209, 215; Rodriguez vs. Court of Appeals, L-28734, March 28, 1969, 27 SCRA 546).

The will of the testator is the first and principal law in the matter of testaments. When his intention is clearly and precisely expressed, any interpretation must be in accord with the plain and literal meaning of his words, except when it may certainly appear that his intention was different from that literally expressed (In re Estate of Calderon, 26 Phil. 333).

The intent of the testator is the cardinal rule in the construction of wills." It is "the life and soul of a will It is "the first greatest rule, the sovereign guide, the polestar, in giving effect to a will". (See Dissent of Justice Moreland in Santos vs. Manarang, 27 Phil. 209, 223, 237-8.)

One canon in the interpretation of the testamentary provisions is that "the testator's intention is to be ascertained from the words of the wilt taking into consideration the circumstances under which it was made", but excluding the testator's oral declarations as to his intention (Art. 789, Civil Code of the Philippines).

To ascertain Father Rigor's intention, it may be useful to make the following re-statement of the provisions of his will.

1. that he bequeathed the ricelands to anyone of his nearest male relatives who would pursue an ecclesiastical career until his ordination as a priest.

2. That the devisee could not sell the ricelands.

3. That the devisee at the inception of his studies in sacred theology could enjoy and administer the ricelands, and once ordained as a priest, he could continue enjoying and administering the same up to the time of his death but the devisee would cease to enjoy and administer the ricelands if he discontinued his studies for the priesthood.

4. That if the devisee became a priest, he would be obligated to celebrate every year twenty masses with prayers for the repose of the souls of Father Rigor and his parents.

5. That if the devisee is excommunicated, he would be divested of the legacy and the administration of the riceland would pass to the incumbent parish priest of Victoria and his successors.

6. That during the interval of time that there is no qualified devisee as contemplated above, the administration of the ricelands would be under the responsibility of the incumbent parish priest of Victoria and his successors, and

7. That the parish priest-administrator of the ricelands would accumulate annually the products thereof, obtaining or getting from the annual produce five percent thereof for his administration and the fees corresponding to the twenty masses with prayers that the parish priest would celebrate for each year, depositing the balance of the income of the devise in the bank in the name of his bequest.

From the foregoing testamentary provisions, it may be deduced that the testator intended to devise the ricelands to his nearest male relative who would become a priest, who was forbidden to sell the ricelands, who would lose the devise if he discontinued his studies for the priesthood, or having been ordained a priest, he was excommunicated, and who would be obligated to say annually twenty masses with prayers for the repose of the souls of the testator and his parents.

On the other hand, it is clear that the parish priest of Victoria would administer the ricelands only in two situations: one, during the interval of time that no nearest male relative of the testator was studying for the priesthood and two, in case the testator's nephew became a priest and he was excommunicated.

What is not clear is the duration of "el intervalo de tiempo que no haya legatario acondicionado", or how long after the testator's death would it be determined that he had a nephew who would pursue an ecclesiastical vocation. It is that patent ambiguity that has brought about the controversy between the parish priest of Victoria and the testator's legal heirs.

Interwoven with that equivocal provision is the time when the nearest male relative who would study for the priesthood should be determined. Did the testator contemplate only his nearest male relative at the time of his death? Or did he have in mind any of his nearest male relatives at anytime after his death?

We hold that the said bequest refers to the testator's nearest male relative living at the time of his death and not to any indefinite time thereafter. "In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper" (Art. 1025, Civil Code).

The said testamentary provisions should be sensibly or reasonably construed. To construe them as referring to the testator's nearest male relative at anytime after his death would render the provisions difficult to apply and create uncertainty as to the disposition of his estate. That could not have been his intention.

In 1935, when the testator died, his nearest leagal heirs were his three sisters or second-degree relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously, when the testator specified his nearest male relative, he must have had in mind his nephew or a son of his sister, who would be his third-degree relative, or possibly a grandnephew. But since he could not prognosticate the exact date of his death or state with certitude what category of nearest male relative would be living at the time of his death, he could not specify that his nearest male relative would be his nephew or grandnephews (the son of his nephew or niece) and so he had to use the term "nearest male relative".

It is contended by the legal heirs that the said devise was in reality intended for Ramon Quiambao, the testator's nephew and godchild, who was the son of his sister, Mrs. Quiambao. To prove that contention, the legal heirs presented in the lower court the affidavit of Beatriz Gamalinda, the maternal grandmother of Edgardo Cunanan, who deposed that after Father Rigor's death her own son, Valentin Gamalinda, Jr., did not claim the devise, although he was studying for the priesthood at the San Carlos Seminary, because she (Beatriz) knew that Father Rigor had intended that devise for his nearest male relative beloning to the Rigor family (pp. 105-114, Record on Appeal).

Mrs. Gamalinda further deposed that her own grandchild, Edgardo G. Cunanan, was not the one contemplated in Father Rigor's will and that Edgardo's father told her that he was not consulted by the parish priest of Victoria before the latter filed his second motion for reconsideration which was based on the ground that the testator's grandnephew, Edgardo, was studying for the priesthood at the San Jose Seminary.

Parenthetically, it should be stated at this juncture that Edgardo ceased to be a seminarian in 1961. For that reason, the legal heirs apprised the Court of Appeals that the probate court's order adjudicating the ricelands to the parish priest of Victoria had no more leg to stand on (p. 84, Appellant's brief).

Of course, Mrs. Gamalinda's affidavit, which is tantamount to evidence aliunde as to the testator's intention and which is hearsay, has no probative value. Our opinion that the said bequest refers to the testator's nephew who was living at the time of his death, when his succession was opened and the successional rights to his estate became vested, rests on a judicious and unbiased reading of the terms of the will.

Had the testator intended that the "cualquier pariente mio varon mas cercano que estudie la camera eclesiatica" would include indefinitely anyone of his nearest male relatives born after his death, he could have so specified in his will He must have known that such a broad provision would suspend for an unlimited period of time the efficaciousness of his bequest.

What then did the testator mean by "el intervalo de tiempo que no haya legatario acondicionado"? The reasonable view is that he was referring to a situation whereby his

nephew living at the time of his death, who would like to become a priest, was still in grade school or in high school or was not yet in the seminary. In that case, the parish priest of Victoria would administer the ricelands before the nephew entered the seminary. But the moment the testator's nephew entered the seminary, then he would be entitled to enjoy and administer the ricelands and receive the fruits thereof. In that event, the trusteeship would be terminated.

Following that interpretation of the will the inquiry would be whether at the time Father Rigor died in 1935 he had a nephew who was studying for the priesthood or who had manifested his desire to follow the ecclesiastical career. That query is categorically answered in paragraph 4 of appellant priest's petitions of February 19, 1954 and January 31, 1957. He unequivocally alleged therein that "not male relative of the late (Father) Pascual Rigor has ever studied for the priesthood" (pp. 25 and 35, Record on Appeal).

Inasmuch as the testator was not survived by any nephew who became a priest, the unavoidable conclusion is that the bequest in question was ineffectual or inoperative. Therefore, the administration of the ricelands by the parish priest of Victoria, as envisaged in the wilt was likewise inoperative.

The appellant in contending that a public charitable trust was constituted by the testator in is favor assumes that he was a trustee or a substitute devisee That contention is untenable. A reading of the testamentary provisions regarding the disputed bequest not support the view that the parish priest of Victoria was a trustee or a substitute devisee in the event that the testator was not survived by a nephew who became a priest.

It should be understood that the parish priest of Victoria could become a trustee only when the testator's nephew living at the time of his death, who desired to become a priest, had not yet entered the seminary or, having been ordained a priest, he was excommunicated. Those two contingencies did not arise, and could not have arisen in this case because no nephew of the testator manifested any intention to enter the seminary or ever became a priest.

The Court of Appeals correctly ruled that this case is covered by article 888 of the old Civil Code, now article 956, which provides that if "the bequest for any reason should be inoperative, it shall be merged into the estate, except in cases of substitution and those in which the right of accretion exists" ("el legado ... por qualquier causa, no tenga efecto se refundira en la masa de la herencia, fuera de los casos de sustitucion y derecho de acrecer").

This case is also covered by article 912(2) of the old Civil Code, now article 960 (2), which provides that legal succession takes place when the will "does not dispose of all that belongs to the testator." There being no substitution nor accretion as to the said ricelands the same should be distributed among the testator's legal heirs. The effect is as if the testator had made no disposition as to the said ricelands.

The Civil Code recognizes that a person may die partly testate and partly intestate, or that there may be mixed succession. The old rule as to the indivisibility of the testator's win is no longer valid. Thus, if a conditional legacy does not take effect, there will be intestate succession as to the property recovered by the said legacy (Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).

We find no merit in the appeal The Appellate Court's decision is affirmed. Costs against the petitioner.

SO ORDERED

Fernando, C.J.(Actg. ), Barredo (Actg. Chairman), Antonio, Concepcion, Jr., and Santos, JJ., concur.

Abad Santos, J., took no part.

E. Reyes v. CA, S.C. L-5620 July 31, 1954

Guinto v. Medina

F.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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

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

Priscilo Evangelista for appellee.Brigido G. Estrada for appellant.

BAUTISTA ANGELO, J.:

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

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

Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and her husband, the late Faustino Nebreda, executed a public document whereby they agreed to separate as husband and wife and, in consideration of their separation, Maria Uson was given a parcel of land by way of alimony and in return she renounced her right to inherit any other property that may be left by her husband upon his death (Exhibit 1).

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

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

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

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

There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are declared for the first time shall have retroactive effect even though the event which gave rise to them may have occurred under the former legislation, but this is so only when the new rights do not prejudice any vested or acquired right of the same origin. Thus, said article provides that "if a right should be declared for the first time in this Code, it shall be effective at once, even though the act or event which gives rise thereto may have been done or may have occurred under the prior legislation, provided said new right does not prejudice or impair any vested or acquired right, of the same origin." As already stated in the early part of this decision, the right of ownership of Maria Uson over the lands in question became vested in 1945 upon the death of her late husband and this is so because of the imperative provision of the law which commands that the rights to succession are transmitted from the moment of death (Article 657, old Civil Code). The new right recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in dispute.

As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of pity or compassion, agreed to assign the lands in question to the minor children

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

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

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

De Borja v. De Borja

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-6622             July 31, 1957

Intestate Estate of the deceased MARCELO DE BORJA. CRISANTO DE BORJA, administrator-appellant, vs.JUAN DE BORJA, ET AL., oppositors-appellees.

E. V. Filamor for appellant.Juan de Borja for himself and co-appellees.

FELIX, J.:

The case. — Quintin, Francisco, Crisanta and Juliana, all surnamed de Borja, are legitimate children of Marcelo de Borja who, upon his demise sometime in 1924 or 1925, left a considerable amount of property. Intestate proceedings must have followed, and the pre-war records of the case either burned, lost or destroyed during the last war, because the record shows that in 1930 Quintin de Borja was already the administrator of the Intestate Estate of Marcelo de Borja.

In the early part of 1938, Quintin de Borja died and Crisanto de Borja, son of Francisco de Borja, was appointed and took over as administrator of the Estate. Francisco de Borja, on the other hand, assumed his duties as executor of the will of Quintin de Borja, but upon petition of the heirs of said deceased on the ground that his interests were conflicting with that of his brother's estate he was later required by the Court to resign as such executor and was succeeded by Rogelio Limaco, a son-in-law of Quintin de Borja.

It also appears that on February 16, 1940, at the hearing set for the approval of the statement of accounts of the late administrator of the Intestate Estate of Marcelo de Borja, then being opposed by Francisco de Borja, the parties submitted an agreement, which was approved by the Court (Exh. A). Said agreement, translated into English, reads as follows:

1. All the accounts submitted and those that are to be submitted corresponding to this year will be considered approved;

2. No heir shall claim anything of the harvests from the lands in Cainta that came from Exequiel Ampil, deceased, nor from the land in Tabuatin, Nueva Ecija;

3. That the amounts of money taken by each heir shall be considered as deposited in conjunction with the other properties of the intestate and shall form part of the mass without drawing any interest;

4. That it shall be understood as included in this mass the sum of twelve thousand pesos (P12,000) that the sisters Crisanta and Juliana de Borja paid of their own money as part of the price the lands and three thousand pesos (P3,000) the price of the machinery for irrigation;

5. The right, interests or participation that the deceased Quintin de Borja has or may have in Civil Case No. 6190 of the Court of First Instance of Nueva Ecija, shall be likewise included in the total mass of the inheritance of the Intestate;

6. Not only the lands in Tabuatin but also those in Cainta coming from the now deceased Exequiel Ampil shall also from part of the total mass of the inheritance of the Intestate of the late Marcelo de Borja;

7. Once the total of the inheritance of the intestate is made up as specified before in this Agreement, partition thereof will be made as follows:

From the total mass shall be deducted in case or in kind, Twelve Thousand Pesos (P12,000) that shall be delivered to Da. Juliana de Borja and Da. Crisanta de Borja in equal shares, and the rest shall be divided among the four heirs, i. e., Don Francisco de Borja, the heirs of Quintin de Borja, Da. Juliana de Borja, and Da. Crisanta de Borja, in equal parts. (TRANSLATION)

The Intestate remained under the administration of Crisanto de Borja until the then outbreak of the war. From then on and until the termination of the war, there was a lull and state of inaction in Special proceeding No. 2414 of the Court of First Instance of Rizal, Pasig branch (In the Matter of the Intestate Estate of Marcelo de Borja), until upon petition filed by Miguel B. Dayco, as administrator of the estate of his deceased mother, Crisanta de Borja, who is one of heirs, for reconstitution of the records of this case, the Court on December 11, 1945, ordered the reconstitution of the same, requiring the administrator to submit his report and a copy of the project of partition.

On January 3, 1946, the administrator, Dr. Crisanto de Borja, filed his accounts for the period ranging from March 1 to December 22, 1945, which according to the heirs of Quintin de Borja were so inadequate and general that on February 28, 1946, they filed a motion for specification. On April 30, 1946, they also filed their opposition to said statement of accounts alleging that the income reported in said statement was very much less than the true and

actual income of the estate and that the expenses appearing therein were exaggerated and/or not actually incurred, and prayed that the statement of accounts submitted by the administrator be disapproved.

The administrator later filed another report of his administration, dated August 9, 1949, corresponding to the period lapsed from December 23, 1945, to July 31, 1949, showing a cash balance of P71.96, but with pending obligation amounting to P35,415.

On August 22, 1949, Juan de Borja and sisters, heirs of the deceased Quintin de Borja, filed their opposition to the statement of accounts filed by the administrator on the ground that same was not detailed enough to enable the interested parties to verify the same; that they cannot understand why the Intestate could suffer any loss considering that during the administration of the same by Quintin de Borja, the Estate accumulated gains of more than P100,000 in the form of advances to the heirs as well as cash balance; that they desired to examine the accounts of Dr. Crisanto de Borja to verify the loss and therefore prayed that the administrator be ordered to deposit with the Clerk of Court all books, receipts, accounts and other papers pertaining to the Estate of Marcelo de Borja. This motion was answered by the administrator contending that the Report referred to was already clear and enough, the income as well as the expenditures being specified therein; that he had to spend for the repairs of the properties of the Estate damaged during the Japanese occupation; that the allegation that during the administration of Quintin de Boria the Estate realized a profit of P100,000 was not true, because instead of gain there was even a shortage in the funds although said administrator had collected all his fees (honorarios) and commissions corresponding to the entire period of his incumbency; that the obligations mentioned in said report will be liquidated before the termination of the proceedings in the same manner as it is done in any other intestate case; that he was willing to submit all the receipts of the accounts for the examination of the interested parties before the Clerk or before the Court itself; that this Intestate could be terminated, the project of partition having been allowed and confirmed by the Supreme Court and that the Administrator was also desirous of terminating it definitely for the benefit of all the parties.

On September 14, 1949, the administrator filed another statement of accounts covering the period of from March 1, 1945, to July 31, 1949, which showed a cash balance of P71.95, with pending obligations in the sum of P35,810.

The heirs of Quintin de Borja, Juan de Borja and his sisters, registered their opposition said statement of accounts and prayed the Court to disapprove the same and to appoint an account to go over the books of the administrator and to submit a report thereon as soon as possible. The heir Juliana de Borja also formally offered her objection to the approval of the accounts submitted by the administrator and prayed further that said administrator be required to submit a complete accounting of his administration of the Estate from 1937 to 1949. On the other hand, Francisco de Borja and Miguel B. Dayco, as the only heir of the deceased Crisanta de Borja, submitted to the Court an agreement to relieve the administrator from accounting for the period of the Japanese occupation; that as to the accounting from 1937 to 1941, they affirmed their conformity with the agreement entered into by all the heirs appearing in the Bill of Exceptions of Juliana de Borja; and they have no objection to the approval of the statement of accounts submitted by the administrator covering of the years 1945 to 1949.

On December 6, 1949, the administrator, answered the opposition of the heir Juliana de Borja, alleging that the corresponding statement of accounts for the years 1937, 1938, 1939, 1940 and 1941 were presented and approved by the Court before and during the Japanese

occupation, but the records of the same were destroyed in the Office of the Clerk of that Court during the liberation of the province of Rizal, and his personal records were also lost during the Japanese occupation, when his house was burned; that Judge Peña who was presiding over the Court in 1945 impliedly denied the petition of heirs to require him to render an accounting for the period from 1942 to the early part of 1945, for the reason that whatever money obtained from the Estate during said period could not be made the subject of any adjudication it having been declared fiat money and without value, and ordered that the statement of accounts be presented only for the period starting from March 1, 1945. The administrator further stated that he was anxious to terminate this administration but some of the heirs had not yet complied with the conditions imposed in the project of partition which was approved by the Supreme Court; that in accordance with said partition agreement, Juliana de Borja must deliver to the administrator all the jewelry, objects of value, utensils and other personal belongings of the deceased spouses Marcelo de Borja and Tircila Quiogue, which said heir had kept and continued to retain in her possession; that the heirs of Quintin de Borja should deliver to the administrator all the lands and a document transferring in favor of the Intestate the two parcels of land with a total area of 71 hectares of cultivated land in Cabanatuan, Nueva Ecija which were in the possession of said heirs, together with the house of Feliciana Mariano Vda. de Sarangaya, which were the objects of Civil Case No. 6190 mentioned in Paragraph 11 of the project of partition; that as consequence of the said dispossession the heirs of Quintin de Borja must deliver to the administrator the products of the 71 hectares of land in Cabanatuan, Nueva Ecija, and the rentals of the house of Feliciana Mariano or else render to the Court an accounting of the products of these properties from the time they took possession of the same in 1937 to the present; that there was a pending obligation amounting to P36,000 as of September 14, 1949, which the heirs should pay before the properties adjudicated to them would be delivered. The Court, however, ordered the administrator on December 10, 1949, to show and prove by evidence why he should not be accounts the proceeds of his administration from 1937.

Meantime, Juliana de Borja filed a Constancia denying possession of any jewelry belonging to the deceased spouses Marcelo de Borja and Tarcilla Quiogue or any other personal belonging of said spouses, and signified her willingness to turn over to the administrator the silver wares mentioned in Paragraph III of the project of partition, which were the only property in her care, on the date that she would expect the delivery to her of her share in the inheritance from her deceased parents.

On July 6, 1950, Juan de Borja and his sisters Marcela, Saturnina, Eufracia, Jacoba and Olimpia, all surnamed de Borja, as heirs of Quintin de Borja, filed a motion for the delivery to them of their inheritance in the estate, tendering to the administrator a document ceding and transferring to the latter all the rights, interests and participation of Quintin de Borja in Civil Case No. 7190 of the Court of First Instance of Nueva Ecija, pursuant to the provisions of the project of Partition, and expressing their willingness to put up a bond if required to do so by the Court, and on July 18, 1950, the Court ordered the administrator to deliver to Marcela, Juan, Saturniana, Eufracia, Jacoba and Olimpia, all surnamed de Borja, all the properties adjudicated to them in the Project of Partition dated February 8, 1944, upon the latter's filing a bond in the sum of P10,000 conditioned upon the payment of such obligation as may be ordered by the Court after a hearing on the controverted accounts of the administrator. The Court considered the fact that the heirs had complied with the requirement imposed by the Project of Partition when they tendered the document ceding and transferring the rights and interests of Quintin de Borja in the aforementioned lands and expressed the necessity of terminating the proceedings as soon as practicable, observing that the Estate had been under administration for over twenty-five years already. The Court, however, deferred action on the petition filed by the special administratrix of the Intestate Estate of Juliana de Borja until after compliance with the conditions imposed by the project of partition. But on July 20,

1950, apparently before the properties were delivered to the heirs, Francisco de Borja and Miguel B. Dayco filed a motion informing the Court that the two parcels of land located in Cabanatuan, Nueva Ecija, produced some 21,300 cavans of palay, amounting to P213,000 at P10 per cavan, which were enjoyed by some heirs; that the administrator Crisanto de Borja had not taken possession of the same for circumstances beyond his control; and that there also existed the sum of P70,204 which the former administrator, Quintin de Borja, received from properties that were redeemed, but which amount did not come into the hands of the present, administrator because according to reliable information, same was delivered to the heir Juliana de Borja who deposited it in her name at the Philippine National Bank. It was, therefore prayed that the administrator be required to exert the necessary effort to ascertain the identity of the person or persons who were in possession of the same amount and of the value of the products of the lands in Mayapyap, Cabanatuan, Nueva Ecija, and to recover the same for the Intestate Estate.

On July 28, 1950, the special administratrix of the estate of Juliana de Borja, then deceased, filed an answer to the motion of these two heirs, denying the allegation that said heir any product of the lands mentioned from Quintin de Borja, and informed the Court that the Mayapyap property had always been in the possession of Francisco de Borja himself and prayed the court that the administrator be instructed to demand all the fruits and products of said property from Francisco de Borja.

On July 28, 1950, the heirs of Quintin de Borja also filed their opposition to the said motion of Francisco de Borja and Miguel B. Dayco on the ground that the petition was superfluous because the present proceeding was only for the approval of the statement of accounts filed by the administrator; that said motion was improper because it was asking the Court to order the administrator to perform what he was duty bound to do; and that said heirs were already barred or stopped from raising that question in view of their absolute ratification of and assent to the statement of accounts submitted by the administrator.

On August 16, 1950, by order of the Court, the properties adjudicated to Juliana de Borja in the project of Partition were finally delivered to the estate of said heir upon the filing of a bond for P20,000. In that same order, the Court denied the administrator's motion to reconsider the order of July 18, 1950, requiring him to deliver to the heirs of Quintin de Borja the properties corresponding to them, on the ground that there existed no sufficient reason to disturb said order. It also ruled that as the petition of Francisco de Borja and Miguel B. Dayco made mention of certain properties allegedly belonging to the Intestate, said petition should properly be considered to gather with the final accounts of the administrator.

The administrator raised the matter by certiorari to this Tribunal, which was, docketed as G.R. No. L-4179, and on May 30, 1951, We rendered decision affirming the order complained of, finding that the Juan de Borja and sisters have complied with the requirement imposed in the Project of Partition upon the tender of the document of cession of rights and quit-claim executed by Marcela de Borja, the administratrix of the Estate of Quintin de Borja, and holding that the reasons advanced by the administrator in opposing the execution of the order of delivery were trivial.

On August 27, 1951, the administrator filed his amended statement of accounts covering the period from March 1, 1945, to July 31, 1949, which showed a cash balance of P36,660. An additional statement of accounts filed on August 31, 1961 for the period of from August 1, 1949, to August 31, 1951, showed a cash balance of P5,851.17 and pending obligations in the amount of P6,165.03.

The heirs of Quintin de Borja again opposed the approval of the statements of accounts charging the administrator with having failed to include the fruits which the estate should have accrued from 1941 to 1951 amounting to P479,429.70, but as the other heirs seemed satisfied with the accounts presented by said administrator and as their group was only one of the 4 heirs of Intestate Estate, they prayed that the administrator be held liable for only P119,932.42 which was 1/4 of the amount alleged to have been omitted. On October 4, 1951, the administrator filed a reply to said opposition containing a counterclaim for moral damages against all the heirs of Quintin de Borja in the sum of P30,000 which was admitted by the Court over the objection of the heirs of Quintin de Borja that the said pleading was filed out of time.

The oppositors, the heirs of Quintin de Borja, then filed their answer to the counterclaim denying the charges therein, but later served interrogatories on the administrator relative to the averments of said counterclaim. Upon receipt of the answer to said interrogatories specifying the acts upon which the claim for moral damages was based, the oppositors filed an amended answer contending that inasmuch as the acts, manifestations and pleadings referred to therein were admittedly committed and prepared by their lawyer, Atty. Amador E. Gomez, same cannot be made the basis of a counterclaim, said lawyer not being a party to the action, and furthermore, as the acts upon which the claim for moral damages were based had been committed prior to the effectivity of the new Civil Code, the provisions of said Code on moral damages could not be invoked. On January 15, 1952, the administrator filed an amended counterclaim including the counsel for the oppositors as defendant.

There followed a momentary respite in the proceedings until another judge was assigned to preside over said court to dispose of the old case pending therein. On August 15, 1952, Judge Encarnacion issued an order denying admission to administrator's amended counterclaim directed against the lawyer, Atty. Amador E. Gomez, holding that a lawyer, not being a party to the action, cannot be made answerable for counterclaims. Another order was also issued on the same date dismissing the administrator's counterclaim for moral damages against the heirs of Quintin de Borja and their counsel for the alleged defamatory acts, manifestation and utterances, and stating that granting the same to be meritorious, yet it was a strictly private controversy between said heirs and the administrator which would not in any way affect the interest of the Intestate, and, therefore, not proper in an intestate proceedings. The Court stressed that to allow the ventilation of such personal controversies would further delay the proceedings in the case which had already lagged for almost 30 years, a situation which the Court would not countenance.

Having disposed of these pending incidents which arose out of the principal issue, that is, the disputed statement of accounts submitted by the administrator, the Court rendered judgment on September 5, 1952, ordering the administrator to distribute the funds in his possession to the heirs as follows: P1,395.90 to the heirs of Quintin de Borja; P314.99 to Francisco de Borja; P314.99 to the Estate of Juliana de Borja and P314.99 to Miguel B. Dayco, but as the latter still owed the intestate the sum of P900, said heirs was ordered to pay instead the 3 others the sum of P146.05 each. After considering the testimonies of the witnesses presented by both parties and the available records on hand, the Court found the administrator guilty of maladministration and sentenced Crisanto de Borja to pay to the oppositors, the heirs of Quintin de Borja, the sum of P83,337.31, which was 1/4 of the amount which the state lost, with legal interest from the date of the judgment. On the same day, the Court also issued an order requiring the administrator to deliver to the Clerk of that Court PNB Certificate of Deposit No. 211649 for P978.50 which was issued in the name of Quintin de Borja.

The administrator, Dr. Crisanto de Borja, gave notice to appeal from the lower Court's orders of August 15, 1952, the decision of September 5, 1952, and the order of even date, but when the Record on Appeal was finally approved, the Court ordered the exclusion of the appeal from the order of September 5, 1952, requiring the administrator to deposit the PNB Certificate of Deposit No. 2114649 with the Clerk of Court, after the oppositors had shown that during the hearing of that incident, the parties agreed to abide by whatever resolution the Court would make on the ownership of the funds covered by that deposit.

The issues. — Reducing the issues to bare essentials, the questions left for our determination are: (1) whether the counsel for a party in a case may be included as a defendant in a counterclaim; (2) whether a claim for moral damages may be entertained in a proceeding for the settlement of an estate; (3) what may be considered as acts of maladministration and whether an administrator, as the one in the case at bar, may be held accountable for any loss or damage that the estate under his administration may incur by reason of his negligence, bad faith or acts of maladministration; and (4) in the case at bar has the Intestate or any of the heirs suffered any loss or damage by reason of the administrator's negligence, bad faith or maladministration? If so, what is the amount of such loss or damage?

I. — Section 1, Rule 10, of the Rules of Court defines a counterclaim as:

SECTION 1. Counterclaim Defined. — A counterclaim is any claim, whether for money or otherwise, which a party may have against the opposing party. A counterclaim need not dismiss or defeat the recovery sought by the opposing party, but may claim relief exceeding in amount or different in kind from that sought by the opposing party's claim.

It is an elementary rule of procedure that a counterclaim is a relief available to a party-defendant against the adverse party which may or may not be independent from the main issue. There is no controversy in the case at bar, that the acts, manifestations and actuations alleged to be defamatory and upon which the counterclaim was based were done or prepared by counsel for oppositors; and the administrator contends that as the very oppositors manifested that whatever civil liability arising from acts, actuations, pleadings and manifestations attributable to their lawyer is enforceable against said lawyer, the amended counterclaim was filed against the latter not in his individual or personal capacity but as counsel for the oppositors. It is his stand, therefore, that the lower erred in denying admission to said pleading. We differ from the view taken by the administrator. The appearance of a lawyer as counsel for a party and his participation in a case as such counsel does not make him a party to the action. The fact that he represents the interests of his client or that he acts in their behalf will not hold him liable for or make him entitled to any award that the Court may adjudicate to the parties, other than his professional fees. The principle that a counterclaim cannot be filed against persons who are acting in representation of another — such as trustees — in their individual capacities (Chambers vs. Cameron, 2 Fed. Rules Service, p. 155; 29 F. Supp. 742) could be applied with more force and effect in the case of a counsel whose participation in the action is merely confined to the preparation of the defense of his client. Appellant, however, asserted that he filed the counterclaim against said lawyer not in his individual capacity but as counsel for the heirs of Quintin de Borja. But as we have already stated that the existence of a lawyer-client relationship does not make the former a party to the action, even this allegation of appellant will not alter the result We have arrived at.

Granting that the lawyer really employed intemperate language in the course of the hearings or in the preparation of the pleadings filed in connection with this case, the remedy against said counsel would be to have him cited for contempt of court or take other administrative measures that may be proper in the case, but certainly not a counterclaim for moral damages.

II. — Special Proceedings No. 6414 of the Court of First Instance of Rizal (Pasig branch) was instituted for the purpose of settling the Intestate Estate of Marcelo de Borja. In taking cognizance of the case, the Court was clothed with a limited jurisdiction which cannot expand to collateral matters not arising out of or in any way related to the settlement and adjudication of the properties of the deceased, for it is a settled rule that the jurisdiction of a probate court is limited and special (Guzman vs. Anog, 37 Phil. 361). Although there is a tendency now to relax this rule and extend the jurisdiction of the probate court in respect to matters incidental and collateral to the exercise of its recognized powers (14 Am. Jur. 251-252), this should be understood to comprehend only cases related to those powers specifically allowed by the statutes. For it was even said that:

Probate proceedings are purely statutory and their functions limited to the control of the property upon the death of its owner, and cannot extend to the adjudication of collateral questions (Woesmes, The American Law of Administration, Vol. I, p. 514, 662-663).

It was in the acknowledgment of its limited jurisdiction that the lower court dismissed the administrator's counterclaim for moral damages against the oppositors, particularly against Marcela de Borja who allegedly uttered derogatory remarks intended to cast dishonor to said administrator sometime in 1950 or 1951, his Honor's ground being that the court exercising limited jurisdiction cannot entertain claims of this kind which should properly belong to a court general jurisdiction. From what ever angle it may be looked at, a counterclaim for moral damages demanded by an administrator against the heirs for alleged utterances, pleadings and actuations made in the course of the proceeding, is an extraneous matter in a testate or intestate proceedings. The injection into the action of incidental questions entirely foreign in probate proceedings should not be encouraged for to do otherwise would run counter to the clear intention of the law, for it was held that:

The speedy settlement of the estate of deceased persons for the benefit of the creditors and those entitled to the residue by way of inheritance or legacy after the debts and expenses of administration have been paid, is the ruling spirit of our probate law (Magabanua vs. Akel, 72 Phil., 567, 40 Off Gaz., 1871).

III. and IV. — This appeal arose from the opposition of the heirs of Quintin de Borja to the approval of the statements of accounts rendered by the administrator of the Intestate Estate of Marcelo de Borja, on the ground that certain fruits which should have been accrued to the estate were unaccounted for, which charge the administrator denied. After a protracted and extensive hearing on the matter, the Court, finding the administrator, Dr. Crisanto de Borja, guilty of certain acts of maladministration, held him liable for the payment to the oppositors, the heirs of Quintin de Borja, of 1/4 of the unreported income which the estate should have received. The evidence presented in the court below bear out the following facts:

(a) The estate owns a 6-door building, Nos. 1541, 1543, 1545, 1547, 1549 and 1551 in Azcarraga Street, Manila, situated in front of the Arranque market. Of this property, the administrator reported to have received for the estate the following rentals:

Period of time Total rentalsAnnual

monthly rental

March to December, 1945 P3,085.00 P51.42

January to December, 1946 4,980.00 69.17

January to December, 1947 8,330.00 115.70

January to December, 1948 9,000.00 125.00

January to December, 1949 8,840.00 122.77

January to December, 1950     6,060.00 184.16

                Total P40,295.00

The oppositors, in disputing this record income, presented at the witness stand Lauro Aguila, a lawyer who occupied the basement of Door No. 1541 and the whole of Door No. 1543 from 1945 to November 15, 1949, and who testified that he paid rentals on said apartments as follows:

1945

Door No. 1541 (basement)

February P20.00 Door No. 1543

March 20.00 For 7 months at P300

April 60.00 a month P2,100.00

May-December   800.00

Total P900.00

1946

January-December P1,200.00 January-December P4,080.00

1947

January P100.00 January P380.00

February 100.00 February 380.00

March 180.00 March 1-15 190.00

April-December 1,140.00 March 16-December 4,085.00

P1,820.00 P5,035.00

1948

January-December P1,920.00 January-December P5,150.00

1949

January-November 15 P1,680.00 January-December P4,315.00

From the testimony of said witness, it appears that from 1945 to November 15,1949, he paid a total of P28,200 for the lease of Door No. 1543 and the basement of Door No. 1541. These figures were not controverted or disputed by the administrator but claim that said tenant subleased the apartments occupied by Pedro Enriquez and Soledad Sodora and paid the said rentals, not to the administrator, but to said Enriquez. The transcript of the testimony of this witness really bolster this contention — that Lauro Aguila talked with said Pedro Enriquez when he leased the aforementioned apartments and admitted paying the rentals to

the latter and not to the administrator. It is interesting to note that Pedro Enriquez is the same person who appeared to be the administrator's collector, duly authorized to receive the rentals from this Azcarraga property and for which services, said Enriquez received 5 per cent of the amount he might be able to collect as commission. If we are to believe appellant's contention, aside from the commission that Pedro Enriquez received he also sublet the apartments he was occupying at a very much higher rate than that he actually paid the estate without the knowledge of the administrator or with his approval. As the administrator also seemed to possess that peculiar habit of giving little importance to bookkeeping methods, for he never kept a ledger or book of entry for amounts received for the estate, We find no record of the rentals the lessees of the other doors were paying. It was, however, brought about at the hearing that the 6 doors of this building are of the same sizes and construction and the lower Court based its computation of the amount this property should have earned for the estate on the rental paid by Atty. Aguila for the 1 1/2 doors that he occupied. We see no excuse why the administrator could not have taken cognizance of these rates and received the same for the benefit of the estate he was administering, considering the fact that he used to make trips to Manila usually once a month and for which he charged to the estate P8 as transportation expenses for every trip.

Basing on the rentals paid by Atty. Aguila for 1 1/2 doors, the estate received P112,800 from February 1, 1945, to November 15, 1949, for the 6 doors, but the lower Court held him accountable not only for the sum of P34,235 reported for the period ranging from March 1, 1945, to December 31, 1949, but also for a deficit of P90,525 or a total of P124,760. The record shows, however that the upper floor of Door No. 1549 was vacant in September, 1949, and as Atty. Aguila used to pay P390 a month for the use of an entire apartment from September to November, 1949, and he also paid P160 for the use of the basement of an apartment (Door No. 1541), the use, therefore, of said upper floor would cost P230 which should be deducted, even if the computation of the lower Court would have to be followed.

There being no proper evidence to show that the administrator collected more rentals than those reported by him, except in the instance already mentioned, We are reluctant to bold him accountable in the amount for which he was held liable by the lower Court, and We think that under the circumstances it would be more just to add to the sum reported by the administrator as received by him as rents for 1945-1949 only, the difference between the sum reported as paid by Atty. Aguila and the sum actually paid by the latter as rents of 1 1/2 of the apartments during the said period, or P25,457.09 1/4 of which is P6,364.27 which shall be paid to the oppositors.

The record also shows that in July, 1950, the administrator delivered to the other heirs Doors Nos. 1545, 1547, 1549 and 1551 although Doors Nos. 1541 and 1543 adjudicated to the oppositors remained under his administration. For the period from January to June, 1950, that the entire property was still administered by him, the administrator reported to have received for the 2 oppositors' apartments for said period of six months at P168.33 a month, the sum of P1,010 which belongs to the oppositors and should be taken from the amount reported by the administrator.

The lower Court computed at P40 a month the pre-war rental admittedly received for every apartment, the income that said property would have earned from 1941 to 1944, or a total of P11,520, but as We have to exclude the period covered by the Japanese occupation, the estate should receive only P2,880 1/4 of which P720 the administrator should pay to the oppositors for the year 1941.

(b) The Intestate estate also owned a parcel of land in Mayapyap, Nueva Ecija, with an area of 71 hectares, 95 ares and 4 centares, acquired by Quintin de Borja the spouses Cornelio Sarangaya and Feliciana Mariano in Civil Case NO. 6190 of the Court of First Instance of said province, In virtue of the agreement entered into by the heirs, this property was turned over by the estate of Quintin de Borja to the intestate and formed part of the general mass of said estate. The report of the administrator failed to disclose any return from this property alleging that he had not taken possession of the same. He does not deny however that he knew of the existence of this land but claimed that when he demanded the delivery of the Certificate of Title covering this property, Rogelio Limaco, then administrator of the estate of Quintin de Borja, refused to surrender the same and he did not take any further action to recover the same.

To counteract the insinuation that the Estate of Quintin de Borja was in possession of this property from 1940 to 1950, the oppositors presented several witnesses, among them was an old man, Narciso Punzal, who testified that he knew both Quintin and Francisco de Borja; that before the war or sometime in 1937, the former administrator of the Intestate, Quintin de Borja, offered him the position of overseer (encargado) of this land but he was notable to assume the same due to the death of said administrator; that on July 7, 1951, herein appellant invited him to go to his house in Pateros, Rizal, and while in said house, he was instructed by appellant to testify in court next day that he was the overseer of the Mayapyap property for Quintin de Borja from 1937-1944, delivering the yearly proceeds of 1,000 cavanes of Palay to Rogelio Limaco; that he did not need to be afraid because both Quintin de Borja and Rogelio Limaco were already dead. But as he knew that the facts on which he was to testify were false, he went instead to the house of one of the daughters of Quintin de Borja, who, together with her brother, Atty. Juan de Borja, accompanied him to the house of the counsel for said oppositors before whom his sworn declaration was taken (Exh. 3).

Other witnesses, i.e., Isidro Benuya, Federico Cojo, Emilio de la Cruz and Ernesto Mangulabnan, testified that they were some of the tenants of the Mayapyap property; that they were paying their shares to the overseers of Francisco de Borja and sometimes to his wife, which the administrator was not able to contradict, and the lower Court found no reason why the administrator would fail to take possession of this property considering that this was even the subject of the agreement of February 16, 1940, executed by the heirs of the Intestate.

The lower Court, giving due credence to the testimonies of the witnesses for the oppositors, computed the loss the estate suffered in the form of unreported income from the rice lands for 10 years at P67,000 (6,700 a year)and the amount of P4,000 from the remaining portion of the land not devoted to rice cultivation which was being leased at P20 per hectare. Consequently, the Court held the administrator liable to appellees in the sum of P17,750 which is 1/4 of the total amount which should have accrued to the estate for this item.

But if We exclude the 3 years of occupation, the income for 7 years would be P46,900 for the ricelands and P2,800 (at P400 a year) for the remaining portion not developed to rice cultivation or a total of P48,700, 1/4 of which isP12,175 which We hold the administrator liable to the oppositors.

(c) The Hacienda Jalajala located in said town of Rizal, was divided into 3 parts: the Punta section belonged to Marcelo de Borja, the Bagombong pertained to Bernardo de Borja and Francisco de Borja got the Jalajala proper. For the purpose of this case, we will just deal with that part called Junta. This property has an area of 1,345, hectares, 29 ares and 2 centares (Exh. 36) of which, according to the surveyor who measured the same, 200 hectares were of

cultivated rice fields and 100 hectares dedicated to the planting of upland rice. It has also timberland and forest which produce considerable amount of trees and firewoods. From the said property which has an assessed value of P115,000 and for which the estates pay real estate tax of P1,500 annually, the administrator reported the following:

Year Income

Expenditure (not including

administration's fees

1945........... P625.00 P1,310.42

1946............. 1,800.00 3,471.00

1947............. 2,550.00 2,912.91

1948............. 1,828.00 3,311.88

1949............. 3,204.50 4,792.09

1950............. 2,082.00 2,940.91

P12,089.50 P18,739.21

This statement was assailed by the oppositors and to substantiate their charge that the administrator did not file the true income of the property, they presented several witnesses who testified that there were about 200 tenants working therein; that these tenants paid to Crisanto de Borja rentals at the rate of 6 cavanes of palay per hectare; that in the years of 1943 and 1944, the Japanese were the ones who collected their rentals, and that the estate could have received no less than 1,000 cavanes of palay yearly. After the administrator had presented witnesses to refute the facts previously testified to by the witnesses for the oppositors, the Court held that the report of the administrator did not contain the real income of the property devoted to rice cultivation, which was fixed at 1,000 cavanes every year — for 1941, 1942, 1945, 1946, 1947, 1948, 1949 and 1950, or a total of 8,000 cavanes valued at P73,000. But as the administrator accounted for the sum of P11,155 collected from rice harvests and if to this amount we add the sum of P8,739.20 for expenses, this will make a total of P19,894.20, thus leaving a deficit of P53,105.80, ¼ of which will be P13,276.45 which the administrator is held liable to pay the heirs of Quintin de Borja.

It was also proved during the hearing that the forest land of this property yields considerable amount of marketable firewoods. Taking into consideration the testimonies of witnesses for both parties, the Court arrived at the conclusion that the administrator sold to Gregorio Santos firewoods worth P600 in 1941, P3,500 in 1945 and P4,200 in 1946 or a total of P8,300. As the report included only the amount of P625, there was a balance of P7,675 in favor of the estate. The oppositors were not able to present any proof of sales made after these years, if there were any and the administrator was held accountable to the oppositors for only P1,918.75.

(d) The estate also, owned ricefields in Cainta, Rizal, with a total area of 22 hectares, 76 ares and 66 centares. Of this particular item, the administrator reported an income of P12,104 from 1945 to 1951. The oppositors protested against this report and presented witnesses to disprove the same.

Basilio Javier worked as a tenant in the land of Juliana de Borja which is near the land belonging to the Intestate, the 2 properties being separated only by a river. As tenant of Juliana de Borja, he knew the tenants working on the property and also knows that both lands are of the same class, and that an area accommodating one cavan of seedlings yields

at most 100 cavanes and 60 cavanes at the least. The administrator failed to overcome this testimony. The lower Court considering the facts testified to by this witness made a finding that the property belonging to this Intestate was actually occupied by several persons accommodating 13 ½ cavanes of seedlings; that as for every cavan of seedlings, the land produces 60 cavanes of palay, the whole area under cultivation would have yielded 810 cavanes a year and under the 50-50 sharing system (which was testified by witness Javier), the estate would have received no less than 405 cavanes every year. Now, for the period of 7 years — from 1941 to 1950, excluding the 3 years of war — the corresponding earning of the estate should be 2,835 cavanes, out of which the 405 cavanes from the harvest of 1941 is valued at P1,215 and the rest 2,430 cavanes at P10 is valued at P24,300, or all in all P25,515. If from this amount the reported income of P12,104 is deducted, there will be a balance of P13,411.10 1/4 of which or P3,352.75 the administrator is held liable to pay to the oppositors.

(e) The records show that the administrator paid surcharges and penalties with a total of P988.75 for his failure to pay on time the taxes imposed on the properties under his administration. He advanced the reason that he lagged in the payment of those tax obligations because of lack of cash balance for the estate. The oppositors, however, presented evidence that on October 29, 1939, the administrator received from Juliana de Borja the sum of P20,475.17 together with certain papers pertaining to the intestate (Exh. 4),aside from the checks in the name of Quintin de Borja. Likewise, for his failure to pay the taxes on the building at Azcarraga for 1947, 1948 and 1949, said property was sold at public auction and the administrator had to redeem the same at P3,295.48, although the amount that should have been paid was only P2,917.26. The estate therefore suffered a loss of P378.22. Attributing these surcharges and penalties to the negligence of the administrator, the lower Court adjudged him liable to pay the oppositors ¼ of P1,366.97, the total loss suffered by the Intestate, or P341.74.

(f) Sometime in 1942, a big fire razed numerous houses in Pateros, Rizal, including that of Dr. Crisanto de Borja. Thereafter, he claimed that among the properties burned therein was his safe containing P15,000 belonging to the estate under his administration. The administrator contended that this loss was already proved to the satisfaction of the Court who, approved the same by order of January 8, 1943, purportedly issued by Judge Servillano Platon(Exh. B). The oppositors contested the genuineness of this order and presented on April 21, 1950, an expert witness who conducted several tests to determine the probable age of the questioned document, and arrived at the conclusion that the questioned ink writing "(Fdo)" appearing at the bottom of Exhibit B cannot be more than 4 years old (Exh. 39). However, another expert witness presented by the administrator contradicted this finding and testified that this conclusion arrived at by expert witness Mr. Pedro Manzañares was not supported by authorities and was merely the result of his own theory, as there was no method yet discovered that would determine the age of a document, for every document has its own reaction to different chemicals used in the tests. There is, however, another fact that called the attention of the lower Court: the administrator testified that the money and other papers delivered by Juliana de Borja to him on October 29, 1939, were saved from said fire. The administrator justified the existence of these valuables by asserting that these properties were locked by Juliana de Borja in her drawer in the "casa solariega" in Pateros and hence was not in his safe when his house, together with the safe, was burned. This line of reasoning is really subject to doubt and the lower Court opined, that it runs counter to the ordinary course of human behaviour for an administrator to leave in the drawer of the "aparador" of Juliana de Borja the money and other documents belonging to the estate under his administration, which delivery has receipted for, rather than to keep it in his safe together with the alleged P15,000 also belonging to the Intestate. The subsequent orders of Judge Platon also put the defense of appellant to bad light, for on February 6, 1943, the Court

required Crisanto de Borja to appear before the Court of examination of the other heirs in connection with the reported loss, and on March 1, 1943, authorized the lawyers for the other parties to inspect the safe allegedly burned (Exh. 35). It is inconceivable that Judge Platon would still order the inspection of the safe if there was really an order approving the loss of those P15,000. We must not forget, in this connection, that the records of this case were burned and that at the time of the hearing of this incident in 1951, Judge Platon was already dead. The lower Court also found no reason why the administrator should keep in his such amount of money, for ordinary prudence would dictate that as an administration funds that come into his possession in a fiduciary capacity should not be mingled with his personal funds and should have been deposited in the Bank in the name of the intestate. The administrator was held responsible for this loss and ordered to pay ¼ thereof, or the sum of P3,750.

(g) Unauthorized expenditures —

1. The report of the administrator contained certain sums amounting to P2,130 paid to and receipted by Juanita V. Jarencio the administrator's wife, as his private secretary. In explaining this item, the administrator alleged that he needed her services to keep receipts and records for him, and that he did not secure first the authorization from the court before making these disbursements because it was merely a pure administrative function.

The keeping of receipts and retaining in his custody records connected with the management of the properties under administration is a duty that properly belongs to the administrator, necessary to support the statement of accounts that he is obliged to submit to the court for approval. If ever his wife took charge of the safekeeping of these receipts and for which she should be compensated, the same should be taken from his fee. This disbursement was disallowed by the Court for being unauthorized and the administrator required to pay the oppositors ¼, thereof or P532.50.

2. The salaries of Pedro Enriquez, as collector of the Azcarraga property; of Briccio Matienzo and Leoncio Perez, as encargados, and of Vicente Panganiban and Herminigildo Macetas as forest-guards were found justified, although un authorized, as they appear to be reasonable and necessary for the care and preservation of the Intestate.

3. The lower Court disallowed as unjustified and unnecessary the expenses for salaries paid to special policemen amounting to P1,509. Appellant contended that he sought for the services of Macario Kamungol and others to act as special policemen during harvest time because most of the workers tilting the Punta property were not natives of Jalajala but of the neighboring towns and they were likely to run away with the harvest without giving the share of the estate if they were not policed. This kind of reasoning did not appear to be convincing to the trial judge as the cause for such fear seemed to exist only in the imagination. Granting that such kind of situation existed, the proper thing for the administrator to do would have been to secure the previous authorization from the Court if he failed to secure the help of the local police. He should be held liable for this unauthorized expenditure and pay the heirs of Quintin de Borja ¼ thereof or P377.25.

4. From the year 1942 when his house was burned, the administrator and his family took shelter at the house belonging to the Intestate known as "casa solariega" which, in the Project of Partition was adjudicated to his father, Francisco de Borja. This property, however, remained under his administration and for its repairs he spent from 1945-1950, P1465,14, duly receipted.

None of these repairs appear to be extraordinary for the receipts were for nipa, for carpenters and thatchers. Although it is true that Rule 85, section 2 provides that:

SEC. 2. EXECUTOR OR ADMINISTRATOR TO KEEP BUILDINGS IN REPAIR. — An executor or administrator shall maintain in tenant able repair the houses and other structures and fences belonging to the estate, and deliver the same in such repair to the heirs or devisees when directed so to do by the court.

yet considering that during his occupancy of the said "casa solariega" he was not paying any rental at all, it is but reasonable that he should take care of the expenses for the ordinary repair of said house. Appellant asserted that had he and his family not occupied the same, they would have to pay someone to watch and take care of said house. But this will not excuse him from this responsibility for the disbursements he made in connection with the aforementioned repairs because even if he stayed in another house, he would have had to pay rentals or else take charge also of expenses for the repairs of his residence. The administrator should be held liable to the oppositors in the amount of P366.28.

5. Appellant reported to have incurred expenses amounting to P6,304.75 for alleged repairs on the rice mill in Pateros, also belonging to the Intestate. Of the disbursements made therein, the items corresponding, to Exhibits I, I-1, I-21, L-26, L-15, L-64 and L-65, in the total sum of P570.70 were rejected by the lower court on the ground that they were all unsigned although some were dated. The lower Court, however, made an oversight in including the sum of P150 covered by Exhibit L-26 which was duly signed by Claudio Reyes because this does not refer to the repair of the rice-mill but for the roofing of the house and another building and shall be allowed. Consequently, the sum of P570.70 shall be reduced to P420.70 which added to the sum of P3,059 representing expenditures rejected as unauthorized to wit:

Exhibit L-59 ............. P500.00     Yek Wing

Exhibit L-60 ............. 616.00     Yek Wing

Exhibit L-61 ............. 600.00     Yek Wing

Exhibit L-62 ............. 840.00     Yek Wing

Exhibit L-63 ............. 180.00     Yek Wing

Exhibit Q-2 .............     323.00     scale "Howe"

       Total ...................... P3,059.00

will give a total of P3,479 1/4 of which is P869.92 that belongs to the oppositors.

6. On the expenses for planting in the Cainta ricefields: — In his statement of accounts, appellant reported to have incurred a total expense of P5,977 for the planting of the ricefields in Cainta, Rizal, from the agricultural year 1945-46 to 1950-51. It was proved that the prevailing sharing system in this part of the country was on 50-50 basis. Appellant admitted that expenses for planting were advanced by the estate and liquidated after each harvest. But the report, except for the agricultural year 1950 contained nothing of the payments that the tenants should have made. If the total expenses for said planting amounted to P5,977, ½ thereof or P2,988.50 should have been paid by the tenants as their share of such expenditures, and as P965 was reported by the administrator as paid back in 1950, there still remains a balance of P2,023.50 unaccounted for. For this shortage, the administrator is responsible and should pay the oppositors ¼ thereof or P505.87.

7. On the transportation expenses of the administrator: — It appears that from the year 1945 to 1951, the administrator charged the estate with a total of P5,170 for transportation expenses. The un receipted disbursements were correspondingly itemized, a typical example of which is as follows:

1950

Gastos de viaje del administrador From Pateros

To Pasig ................ 50 x P4.00 = P200.00

To Manila ............... 50 x P10.00 = P500.00

To Cainta ................ 8 x P8.00 = P64.00

To Jalajala ............... 5 x P35.00 = P175.00

= P399.00

(Exhibit W-54).

From the report of the administrator, We are being made to believe that the Intestate estate is a losing proposition and assuming arguendo that this is true, that precarious financial condition which he, as administrator, should know, did not deter Crisanto de Borja from charging to the depleted funds of the estate comparatively big amounts for his transportation expenses. Appellant tried to justify these charges by contending that he used his own car in making those trips to Manila, Pasig and Cainta and a launch in visiting the properties in Jalajala, and they were for the gasoline consumed. This rather unreasonable spending of the estate's fund prompted the Court to observe that one will have to spend only P0.40 for transportation in making a trip from Pateros to Manila and practically the same amount in going to Pasig. From his report for 1949 alone, appellant made a total of 97 trips to these places or an average of one trip for every 3 1/2 days. Yet We must not forget that it was during this period that the administrator failed or refused to take cognizance of the prevailing rentals of commercial places in Manila that caused certain loss to the estate and for which he was accordingly held responsible. For the reason that the alleged disbursements made for transportation expenses cannot be said to be economical, the lower Court held that the administrator should be held liable to the oppositors for ¼ thereof or the sum of P1,292.50, though We think that this sum should still be reduced to P500.

8. Other expenses:

The administrator also ordered 40 booklets of printed contracts of lease in the name of the Hacienda Jalajala which cost P150. As the said hacienda was divided into 3 parts one belonging to this Intestate and the other two parts to Francisco de Boria and Bernardo de

Borja, ordinarily the Intestate should only shoulder ¹/3 of the said expense, but as the tenants who testified during the hearing of the matter testified that those printed forms were not being used, the Court adjudged the administrator personally responsible for this amount. The records reveal, that this printed form was not utilized because the tenants refused to sign any, and We can presume that when the administrator ordered for the printing of the same, he did not foresee this situation. As there is no showing that said printed contracts were used by another

and that they are still in the possession of the administrator which could be utilized anytime, this disbursement may be allowed.

The report also contains a receipt of payment made to Mr. Severo Abellera in the sum of P375 for his transportation expenses as one of the two commissioners who prepared the Project of Partition. The oppositors were able to prove that on May 24, 1941, the Court authorized the administrator to withdraw from the funds of the intestate the sum of P300 to defray the transportation expenses of the commissioners. The administrator, however, alleged that he used this amount for the payment of certain fees necessary in connection with the approval of the proposed plan of the Azcarraga property which was then being processed in the City Engineer's Office. From that testimony, it would seem that appellant could even go to the extent of disobeying the order of the Court specifying for what purpose that amount should be appropriated and took upon himself the task of judging for what it will serve best. Since he was not able to show or prove that the money intended and ordered by the Court to be paid for the transportation expenses of the commissioners was spent for the benefit of the estate as claimed, the administrator should be held responsible therefor and pay to the oppositors ¼ of P375 or the sum of P93.75.

The records reveal that for the service of summons to the defendants in Civil Case No. 84 of the Court of First Instance of Rizal, P104 was paid to the Provincial Sheriff of the same province (Exhibit H-7). However, an item for P40 appeared to have been paid to the Chief of Police on Jalajala allegedly for the service of the same summons. Appellant claimed that as the defendants in said civil case lived in remote barrios, the services of the Chief of Police as delegate or agent of the Provincial Sheriff were necessary. He forgot probably the fact that the local chiefs of police are deputy sheriffs ex-officio. The administrator was therefore ordered by the lower Court to pay ¼ of said amount or P10 to the oppositors.

The administrator included in his Report the sum of P550 paid to Atty. Filamor for his professional services rendered for the defense of the administrator in G.R. No. L-4179, which was decided against him, with costs. The lower Court disallowed this disbursement on the ground that this Court provided that the costs of that litigation should not be borne by the estate but by the administrator himself, personally.

Costs of a litigation in the Supreme Court taxed by the Clerk of Court, after a verified petition has been filed by the prevailing party, shall be awarded to said party and will only include his fee and that of his attorney for their appearance which shall not be more than P40; expenses for the printing and the copies of the record on appeal; all lawful charges imposed by the Clerk of Court; fees for the taking of depositions and other expenses connected with the appearance of witnesses or for lawful fees of a commissioner (De la Cruz, Philippine Supreme Court Practice, p. 70-71). If the costs provided for in that case, which this Court ordered to be chargeable personally against the administrator are not recoverable by the latter, with more reason this item could not be charged against the Intestate. Consequently, the administrator should pay the oppositors ¼ of the sum of P550 or P137.50.

(e) The lower Court in its decision required appellant to pay the oppositors the sum of P1,395 out of the funds still in the possession of the administrator.

In the statement of accounts submitted by the administrator, there appeared a cash balance of P5,851.17 as of August 31, 1961. From this amount, the sum of P1,002.96 representing the Certificate of Deposit No. 21619 and Check No. 57338, both of the Philippine National Bank and in the name of Quintin de Borja, was deducted leaving a balance of P4,848. As Judge Zulueta ordered the delivery to the oppositors of the amount of P1,890 in his order of

October 8, 1951; the delivery of the amount of P810 to the estate of Juliana de Borja in his order of October 23, 1951, and the sum of P932.32 to the same estate of Juliana de Borja by order of the Court of February 29, 1952, or a total of P3,632.32 after deducting the same from the cash in the possession of the administrator, there will only be a remainder of P134.98.

The Intestate is also the creditor of Miguel B. Dayco, heir and administrator of the estate of Crisanta de Borja, in the sum of P900 (Exhibits S and S-1). Adding this credit to the actual cash on hand, there will be a total of P1,034.98, ¼, of which or P258.74 properly belongs to the oppositors. However, as there is only a residue of P134.98 in the hands of the administrator and dividing it among the 3 groups of heirs who are not indebted to the Intestate, each group will receive P44.99, and Miguel B. Dayco is under obligation to reimburse P213.76 to each of them.

The lower Court ordered the administrator to deliver to the oppositors the amount of P1,395.90 and P314.99 each to Francisco de Borja and the estate of Juliana de Borja, but as We have arrived at the computation that the three heirs not idebted to the Intestate ought to receive P44.99 each out of the amount of P134.98, the oppositors are entitled to the sum of P1,080.91 — the amount deducted from them as taxes but which the Court ordered to be returned to them — plus P44.99 or a total of P1,125.90. It appearing however, that ina Joint Motion dated November 27, 1952, duly approved by the Court, the parties agreed to fix the amount at P1,125.58, as the amount due and said heirs have already received this amount in satisfaction of this item, no other sum can be chargeable against the administrator.

(f) The probate Court also ordered the administrator to render an accounting of his administration during the Japanese occupation on the ground that although appellant maintained that whatever money he received during that period is worthless, same having been declared without any value, yet during the early years of the war, or during 1942-43, the Philippine peso was still in circulation, and articles of prime necessity as rice and firewood commanded high prices and were paid with jewels or other valuables.

But We must not forget that in his order of December 11, 1945, Judge Peña required the administrator to render an accounting of his administration only from March 1, 1945, to December of the same year without ordering said administrator to include therein the occupation period. Although the Court below mentioned the condition then prevailing during the war-years, We cannot simply presume, in the absence of proof to that effect, that the administrator received such valuables or properties for the use or in exchange of any asset or produce of the Intestate, and in view of the aforementioned order of Judge Peña, which We find no reason to disturb, We see no practical reason for requiring appellant to account for those occupation years when everything was affected by the abnormal conditions created by the war. The records of the Philippine National Bank show that there was a current account jointly in the names of Crisanto de Borja and Juanita V. Jarencio, his wife, with a balance of P36,750.35 in Japanese military notes and admittedly belonging to the Intestate and We do not believe that the oppositors or any of the heirs would be interested in an accounting for the purpose of dividing or distributing this deposit.

(g) On the sum of P13,294 for administrator's fees:

It is not disputed that the administrator set aside for himself and collected from the estate the sum of P13,294 as his fees from 1945 to 1951 at the rate of P2,400 a year. There is no controversy as to the fact that this appropriated amount was taken without the order or

previous approval by the probate Court. Neither is there any doubt that the administration of the Intestate estate by Crisanto de Borja is far from satisfactory.

Yet it is a fact that Crisanto de Borja exercised the functions of an administrator and is entitled also to a certain amount as compensation for the work and services he has rendered as such. Now, considering the extent and size of the estate, the amount involved and the nature of the properties under administration, the amount collected by the administrator for his compensation at P200 a month is not unreasonable and should therefore be allowed.

It might be argued against this disbursement that the records are replete with instances of highly irregular practices of the administrator, such as the pretended ignorance of the necessity of a book or ledger or at least a list of chronological and dated entries of money or produce the Intestate acquired and the amount of disbursements made for the same properties; that admittedly he did not have even a list of the names of the lessees to the properties under his administration, nor even a list of those who owed back rentals, and although We certainly agree with the probate Court in finding appellant guilty of acts of maladministration, specifically in mixing the funds of the estate under his administration with his personal funds instead of keeping a current account for the Intestate in his capacity as administrator, We are of the opinion that despite these irregular practices for which he was held already liable and made in some instances to reimburse the Intestate for amounts that were not properly accounted for, his claim for compensation as administrator's fees shall be as they are hereby allowed.

Recapitulation. — Taking all the matters threshed herein together, the administrator is held liable to pay to the heirs of Quintin de Borja the following:

Under Paragraphs III and IV:

(a) ...............................................................................

P7,084.27

(b) ...............................................................................

12,175.00

(c) ...............................................................................

16,113.95

(d) ...............................................................................

3,352.75

(e) ...............................................................................

341.74

(f) ................................................................................

3,750.00

(g) 1 ..................................................................... 532.50

      2 ..................................................................... 377.25

      3 ..................................................................... 366.28

      4 ..................................................................... 869.92

      5 ..................................................................... 505.87

      6 ..................................................................... 500.00

      7-a

          b .................................................................. 93.75

          c .................................................................. 10.00

          d ...................................................................       137.50

P46,210.00

In view of the foregoing, the decision appealed from is modified by reducing the amount that the administrator was sentenced to pay the oppositors to the sum of P46,210.78 (instead of P83,337.31), plus legal interests on this amount from the date of the decision appealed from, which is hereby affirmed in all other respects. Without pronouncement as to costs. It is so ordered.

Paras, C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador and Endencia, JJ., concur.

Bonilla v. Barcena

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

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

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

Federico Paredes for petitioners.

Demetrio V. Pre for private respondents.

 

MARTIN, J:

This is a petition for review 1 of the Order of the Court of First Instance of Abra in Civil Case No. 856, entitled Fortunata Barcena vs. Leon Barcena, et al., denying the motions for reconsideration of its order dismissing the complaint in the aforementioned case.

On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and Salvacion Bonilla and wife of Ponciano Bonilla, instituted a civil action in the Court of First Instance of Abra, to quiet title over certain parcels of land located in Abra.

On May 9, 1975, defendants filed a written motion to dismiss the complaint, but before the hearing of the motion to dismiss, the counsel for the plaintiff moved to amend the complaint

in order to include certain allegations therein. The motion to amend the complaint was granted and on July 17, 1975, plaintiffs filed their amended complaint.

On August 4, 1975, the defendants filed another motion to dismiss the complaint on the ground that Fortunata Barcena is dead and, therefore, has no legal capacity to sue. Said motion to dismiss was heard on August 14, 1975. In said hearing, counsel for the plaintiff confirmed the death of Fortunata Barcena, and asked for substitution by her minor children and her husband, the petitioners herein; but the court after the hearing immediately dismissed the case on the ground that a dead person cannot be a real party in interest and has no legal personality to sue.

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

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

Hence, this petition for review.

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

interest in the case. There is, therefore, no reason for the respondent Court not to allow their substitution as parties in interest for the deceased plaintiff.

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

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

SO ORDERED.

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

Footnotes

1 Which this Court treats as special civil action as per its Resolution dated February 11, 1976.

2 Section 16. Duty of Attorney upon which death, incapacity or incompetency of party. - Whenever a party to a pending case dies, becomes incapacitated or incompetent, it shall be the duty of his attorney to inform the court promptly of such death, incapacity or incompetency, and to give the name and

residence of his executor, administrator, guardian or other legal representative.

Section 17. Death of party.—After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for deceased, within a period of thirty (30) days, or within such time as may be granted. If the legal representative fails to appear within said time, the court may order the opposing party to procure the appointment of a legal representative of the within a time to be specified by the court, and the representative shall immediately appear for and on behalf of the interest of the deceased. The court charges involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint guardian ad litemfor the minor heirs.

3 Buan vs. Heirs of Buan, 53 Phil. 654.

4 Ibarle vs. Po, 92 Phil. 721.

5 Morales, et al. vs. Ybanez, 98 Phil. 677.

6 Iron Gate Bank vs. Brady, 184 U.S. 665, 22 SCT 529, 46 L. ed. 739.

7 Wenber vs. St. Paul City Co., 97 Feb. 140 R. 39 C.C.A. 79.

Cruz v. Cruz, G.R. No. 173292

 SECOND DIVISION

   MEMORACION Z. CRUZ, represented by EDGARDO Z. CRUZ,

G.R. No. 173292

Petitioner, Present:

- versus -

CARPIO, J., Chairperson,NACHURA,BERSAMIN,*

ABAD, and MENDOZA, JJ.

OSWALDO Z. CRUZ, Promulgated:Respondent. September 1, 2010

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

D E C I S I O N  CARPIO, J.: 

 The Case

 This is a petition for review[1] of the Court of Appeals (CA)

Decision[2] dated 20 December 2005 and Resolution dated 21 June 2006 in CA-G.R. CV No. 80355. The CA affirmed with modification the Order[3] dated 2 June 1997 of the Regional Trial Court of the National Capital Judicial Region, Branch 30, Manila (RTC). 

The Antecedent Facts The undisputed facts, as summarized by the Court of Appeals, are as follows: 

On October 18, 1993, Memoracion Z. Cruz filed with the Regional Trial Court in Manila a Complaint against her son, defendant-appellee Oswaldo Z. Cruz, for Annulment of Sale, Reconveyance and Damages. Memoracion claimed that during her union with her common-law husband (deceased) Architect Guido M. Cruz, she acquired a parcel of land located at Tabora corner Limay Streets, Bo. Obrero, Tondo Manila; that the said lot was registered in her name under TCT No. 63467 at the Register of Deeds of Manila; that sometime in July 1992, she discovered that the title to the said property was transferred by appellee and the latters wife in their names in August 1991 under TCT No. 0-199377 by virtue of a Deed of Sale dated February 12, 1973; that the said deed was executed through fraud, forgery, misrepresentation and simulation, hence, null and void; that she, with the help of her husbands relatives, asked appellee to settle the problem; that despite repeated pleas and demands, appellee refused to reconvey to her the said property; that she filed a complaint against appellee before the office of the Barangay having jurisdiction over the subject property; and that since the matter was unsettled, the barangay x x

x issued x x x a certification to file [an] action in court, now the subject of controversy. After Memoracion x x x finished presenting her evidence in chief, she died on October 30, 1996. Through a Manifestation, Memoracions counsel, Atty. Roberto T. Neri, notified the trial court on January 13, 1997 of the fact of such death, evidenced by a certificate thereof. For his part, appellee filed a Motion to Dismiss on the grounds that (1) the plaintiffs reconveyance action is a personal action which does not survive a partys death, pursuant to Section 21, Rule 3 of the Revised Rules of Court, and (2) to allow the case to continue would result in legal absurdity whereby one heir is representing the defendant [and is a] co-plaintiff in this case. On June 2, 1997, the trial court issued the appealed Order in a disposition that reads:

Wherefore, in view of the foregoing, this case is ordered dismissed without prejudice to the prosecution thereof in the proper estate proceedings.

     On October 17, 1997, Memoracions son-heir, Edgardo Z. Cruz, manifested to the trial court that he is retaining the services of Atty. Neri for the plaintiff.Simultaneously, Atty. Neri filed a Motion for Reconsideration of the June 2, 1997 Order. However, the said motion was subsequently denied by Acting Presiding Judge Cielito N. Mindaro-Grulla [on October 31, 2000]. Thereafter, Edgardo Cruz, as an heir of Memoracion Cruz, filed a notice of appeal in behalf of the deceased plaintiff, signed by Atty. Neri, but the appeal was dismissed by Judge Mindaro-Grulla, [stating that] the proper remedy being certiorari under Rule 65 of the Rules of Court. On appellants motion for reconsideration, Judge Lucia Pena Purugganan granted the same, stating that the remedy under the circumstances is ordinary appeal.[4]

 

 The Court of Appeals Ruling

 Petitioner Memoracion Z. Cruz, represented by Edgardo Z. Cruz, filed with the Court of Appeals a Petition for Review under Rule 45 of the 1997

Revised Rules of Civil Procedure. On 20 December 2005, the CA rendered judgment affirming with modification the RTC decision. We quote the dispositive portion of the CAs decision below.

 

WHEREFORE, the appealed Order is AFFIRMED, with MODIFICATION. The trial courts directive as to the prosecution of the action in the proper estate proceedings is DELETED.

 SO ORDERED.[5]

  

Petitioners Motion for Reconsideration was denied by the CA in its Resolution of 21 June 2006.[6]

 Hence, this appeal.

   

The Issues The issues for resolution in this case are:

1.     Whether the Court of Appeals erred in ruling that Memoracion Z. Cruzs Petition for Annulment of Deed of Sale, Reconveyance and Damages is a purely personal action which did not survive her death; and 

2.     Whether the Court of Appeals erred in affirming with modification the RTC Order dismissing the Petition for Annulment of Deed of Sale, Reconveyance and Damages.

   

The Courts Ruling We find the appeal meritorious.

The Petition for Annulment of Sale, Reconveyanceand Damages survived the death of petitioner

  The criterion for determining whether an action survives the death of a petitioner was elucidated in Bonilla v. Barcena,[7] to wit: 

The question as to whether an action survives or not depends on the nature of the action and the damage sued for. In the causes of action which survive, the wrong complained [of] affects primarily and principally property and property rights, the injuries to the person being merely incidental, while in the causes of action which do not survive, the injury complained of is to the person, the property and rights of property affected being incidental.[8]

  

If the case affects primarily and principally property and property rights, then it survives the death of the plaintiff or petitioner. In Sumaljag v. Literato,[9] we held that a Petition for Declaration of Nullity of Deed of Sale of Real Property is one relating to property and property rights, and therefore, survives the death of the petitioner. Accordingly, the instant case for annulment of sale of real property merits survival despite the death of petitioner Memoracion Z. Cruz.

 The CA erred in affirming RTCs dismissal of the

Petition for Annulment of Deed of Sale,Reconveyance and Damages

  When a party dies during the pendency of a case, Section 16, Rule 3 of the 1997 Revised Rules of Civil Procedure necessarily applies, viz:

Sec. 16. Death of party; duty of counsel. - Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action.

The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.

The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice.

If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. 

 

 

The foregoing section is a revision of Section 17, Rule 3 of the old Rules of Court:

SEC. 17. Death of party. - After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for the deceased, within a period of thirty (30) days, or within such time as may be granted. If the legal representative fails to appear within said time, the court may order the opposing party to procure the appointment of a legal representative of the deceased within a time to be specified by the court, and the representative shall immediately appear for and on behalf of the interest of the deceased. The court charges involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint guardian ad litem for the minor heirs.

 

If the action survives despite death of a party, it is the duty of the deceaseds counsel to inform the court of such death, and to give the names and addresses of the deceaseds legal representatives. The deceased may be substituted by his heirs in the pending action. As explained in Bonilla:

 x x x Article 777 of the Civil Code provides that the rights to the succession are transmitted from the moment of the death of the decedent. From the moment of the death of the decedent, the heirs become the absolute owners of his property, subject to the rights and obligations of the decedent, and they cannot be deprived of their rights thereto except by the methods provided for by law. 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. The right of the heirs to the property of the deceased vests in them even before judicial declaration of their being heirs in the testate or intestate proceedings. When [plaintiff], therefore, died[,] her claim or right to the parcels of land x x x was not extinguished by her death but was transmitted to her heirs upon her death. Her heirs have thus acquired interest in the properties in litigation and became parties in interest in the case. There is, therefore, no reason for the respondent Court not to allow their substitution as parties in interest for the deceased plaintiff.[10]

 

If no legal representative is named by the counsel of the deceased, or the legal representative fails to appear within a specified period, it is the duty of the court where the case is pending to order the opposing party to procure the appointment of an executor or administrator for the estate of the deceased. The reason for this rule is to protect all concerned who may be affected by the intervening death, particularly the deceased and his estate.[11]

In the instant case, petitioner (plaintiff) Memoracion Z. Cruz died on 30 October 1996. Her counsel, Atty. Roberto T. Neri, notified the trial court of such death on 13 January 1997, through a Manifestation stating thus: 

COMES NOW the undersigned counsel and to this Honorable Court respectfully gives notice that the plaintiff, Memoracion Z. Cruz, died on October 30, 1996, in Manila as shown by a Certificate of Death, a certified true copy of which is hereto attached as Annex A hereof. The legal representative of the deceased plaintiff is her son EDGARDO CRUZ whose address is at No. 3231-E Tabora St., Bo. Obrero, Tondo, Manila. x x x x[12]

  

On 24 January 1997, respondent (defendant) Oswaldo Z. Cruz moved to dismiss the case alleging that it did not survive Memoracions death. The RTC granted the motion to dismiss in the assailed Order dated 2 June 1997.

 

We rule that it was error for the RTC to dismiss the case. As mentioned earlier, the petition for annulment of deed of sale involves property and property rights, and hence, survives the death of petitioner Memoracion. The RTC was informed, albeit belatedly,[13] of the death of Memoracion, and was

supplied with the name and address of her legal representative, Edgardo Cruz. What the RTC could have done was to require Edgardo Cruz to appear in court and substitute Memoracion as party to the pending case, pursuant to Section 16, Rule 3 of the 1997 Revised Rules of Civil Procedure, and established jurisprudence. We note that on 17 October 1997, Edgardo Cruz filed with the RTC a Manifestation, stating that he is retaining the services of Atty. Roberto T. Neri. We quote:[14]

 

UNDERSIGNED HEIR of the late Memoracion Z. Cruz respectfully manifests that he is retaining the services of ATTY. ROBERTO T. NERI as counsel for the plaintiff. (Sgd.) EDGARDO Z. CRUZPlaintiff 

Consistent with our ruling in Heirs of Haberer v. Court of Appeals,[15] we consider such Manifestation, signed by Memoracions heir, Edgardo Cruz, and retaining Atty. Neris services as counsel, a formal substitution of deceased Memoracion by her heir, Edgardo Cruz. It also needs mention that Oswaldo Cruz, although also an heir of Memoracion, should be excluded as a legal representative in the case for being an adverse party therein.[16]

 WHEREFORE, we GRANT the petition. We REVERSE the Court of Appeals Decision dated 20 December 2005 and Resolution dated 21 June 2006 in CA-G.R. CV No. 80355. We REMAND this case to the Regional Trial Court of the National Capital Judicial Region, Branch 30, Manila, for further proceedings.

 SO ORDERED.

 

 

ANTONIO T. CARPIOAssociate Justice

WE CONCUR:

 

 

 

 

ANTONIO EDUARDO B. NACHURA

Associate Justice

 

 

 

 

LUCAS P. BERSAMIN ROBERTO A. ABAD

Associate Justice Associate Justice

 

 

 

 

JOSE C. MENDOZA

Associate Justice

 

ATTESTATION

I attest that the conclusions in the above Decision had been reached in

consultation before the case was assigned to the writer of the opinion of the

Courts Division.

 

 

 

ANTONIO T. CARPIO

Associate Justice

Chairperson

 

 

 

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the

Division Chairpersons Attestation, I certify that the conclusions in the above

Decision had been reached in consultation before the case was assigned to

the writer of the opinion of the Courts Division.

 

 

 

RENATO C. CORONA

Chief Justice

 

 

 

 

 

 

* Designated additional member per Special Order No. 882 dated 31 August 2010.[1] Under Rule 45 of the 1997 Revised Rules of Civil Procedure.[2] Penned by Associate Justice Magdangal M. De Leon, with Associate Justices Portia Alio- Hormachuelos and Mariano Del Castillo (now a member of the Supreme Court), concurring.[3] Issued by RTC Judge Senecio O. Ortile.[4] Rollo, pp. 32-33. Citations omitted.[5] Id. at 39.

[6] Id. at 43-44.[7] 163 Phil. 516 (1976). See also Torres v. Rodellas, G.R. No. 177836, 4 September 2009, 598 SCRA 390.[8] Id. at 521, citing Iron Gate Bank v. Brady, 184 U.S. 665, 22 SCT 529, 46 L.ed. 739 and Wenber v. St. Paul City Co., 97 Feb. 140 R. 39 C.C.A. 79.[9] G.R. No. 149787, 18 June 2008, 555 SCRA 53, 60.[10] Bonilla v. Barcena, supra note 7 at 520-521. Citations omitted.[11] Sumaljag v. Literato, supra note 9 at 62.[12] Records, pp. 172-173.[13] The counsels late filing of the Notice of Death of Memoracion Z. Cruz was not questioned by defendant Oswaldo Cruz.[14] Records, p. 196.[15] 192 Phil. 62, 73 (1981).[16] In Sumaljag v. Literato, supra note 9, the deceaseds sister, although a legal heir, was excluded as a legal representative for being one of the adverse parties in the pending cases.

Bough v. Modesto

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. L-41171               July 23, 1987

INTESTATE ESTATE OF THE LATE VITO BORROMEO, PATROCINIO BORROMEO-HERRERA, petitioner, vs.FORTUNATO BORROMEO and HON. FRANCISCO P. BURGOS, Judge of the Court of First Instance of Cebu, Branch II, respondents.

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

No. L-55000               July 23, 1987

IN THE MATTER OF THE ESTATE OF VITO BORROMEO, DECEASED, PILAR N. BORROMEO, MARIA B. PUTONG, FEDERICO V. BORROMEO, JOSE BORROMEO, CONSUELO B. MORALES, AND CANUTO V. BORROMEO, JR., heirs-appellants, vs.FORTUNATO BORROMEO, claimant-appellee.

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

No. L-62895               July 23, 1987

JOSE CUENCO BORROMEO, petitioner, vs.HONORABLE COURT OF APPEALS, HON. FRANCISCO P. BURGOS, As presiding Judge of the (now) Regional Trial Court, Branch XV, Region VII, RICARDO V. REYES,

as Administrator of the Estate of Vito Borromeo in Sp. Proc. No. 916-R, NUMERIANO G. ESTENZO and DOMINGO L. ANTIGUA, respondents.

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

No. L-63818               July 23, 1987

DOMINGO ANTIGUA AND RICARDO V. REYES, as Administrator of the Intestate Estate of VITO BORROMEO, Sp. Proceedings No. 916-R, Regional Trial Court of Cebu, joined by HON. JUDGE FRANCISCO P. BURGOS, as Presiding Judge of Branch XV of the Regional Trial Court of Cebu, as a formal party, and ATTYS. FRANCIS M. ZOSA, GAUDIOSO RUIZ and NUMERIANO ESTENZO, petitioners, vs.HONORABLE INTERMEDIATE APPELLATE COURT, JOSE CUENCO BORROMEO, and PETRA O. BORROMEO, respondents.

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

No. L-65995               July 23, 1987

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

GUTIERREZ, JR., J.:

These cases before us all stem from SP. PROC. NO. 916-R of the then Court of First Instance of Cebu.

G.R. No. 41171

Vito Borromeo, a widower and permanent resident of Cebu City, died on March 13, 1952, in Paranaque, Rizal at the age of 88 years, without forced heirs but leaving extensive properties in the province of Cebu.

On April 19, 1952, Jose Junquera filed with the Court of First Instance of Cebu a petition for the probate of a one page document as the last will and testament left by the said deceased, devising all his properties to Tomas, Fortunato and Amelia, all surnamed Borromeo, in equal and undivided shares, and designating Junquera as executor thereof. The case was docketed as Special Proceedings No. 916-R. The document, drafted in Spanish, was allegedly signed and thumbmarked by the deceased in the presence of Cornelio Gandionco, Eusebio Cabiluna, and Felixberto Leonardo who acted as witnesses.

Oppositions to the probate of the will were filed. On May 28, 1960, after due trial, the probate court held that the document presented as the will of the deceased was a forgery.

On appeal to this Court, the decision of the probate court disallowing the probate of the will was affirmed in Testate Estate of Vito Borromeo, Jose H. Junquera et al. v. Crispin Borromeo et al. (19 SCRA 656).

The testate proceedings was converted into an intestate proceedings. Several parties came before the court filing claims or petitions alleging themselves as heirs of the intestate estate of Vito Borromeo.

The following petitions or claims were filed:

1. On August 29, 1967, the heirs of Jose Ma. Borromeo and Cosme Borromeo filed a petition for declaration of heirs and determination of heirship. There was no opposition filed against said petition.

2. On November 26, 1967, Vitaliana Borromeo also filed a petition for declaration as heir. The heirs of Jose Ma. Borromeo and Cosme Borromeo filed an opposition to this petition.

3. On December 13, 1967, Jose Barcenilla, Jr., Anecita Ocampo de Castro, Ramon Ocampo, Lourdes Ocampo, Elena Ocampo, Isagani Morre, Rosario Morre, Aurora Morre, Lila Morre, Lamberto Morre, and Patricia Morre, filed a petition for declaration of heirs and determination of shares. The petition was opposed by the heirs of Jose and Cosme Borromeo.

4. On December 2, 1968, Maria Borromeo Atega, Luz Borromeo, Hermenegilda Borromeo Nonnenkamp, Rosario Borromeo, and Fe Borromeo Queroz filed a claim. Jose Cuenco Borromeo, Crispin Borromeo, Vitaliana Borromeo and the heirs of Carlos Borromeo represented by Jose Talam filed oppositions to this claim.

When the aforementioned petitions and claims were heard jointly, the following facts were established:

1. Maximo Borromeo and Hermenegilda Galan, husband and wife (the latter having predeceased the former), were survived by their eight (8) children, namely,

Jose Ma. Borromeo

Cosme Borromeo

Pantaleon Borromeo

Vito Borromeo

Paulo Borromeo

Anecita Borromeo

Quirino Borromeo and

Julian Borromeo

2. Vito Borromeo died a widower on March 13, 1952, without any issue, and all his brothers and sisters predeceased him.

3. Vito's brother Pantaleon Borromeo died leaving the following children:

a. Ismaela Borromeo,who died on Oct. 16, 1939

b. Teofilo Borromeo, who died on Aug. 1, 1955, or 3 years after the death of Vito Borromeo. He was married to Remedios Cuenco Borromeo, who died on March 28, 1968. He had an only son-Atty. Jose Cuenco Borromeo one of the petitioners herein.

c. Crispin Borromeo, who is still alive.

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

a. Anecita Ocampo Castro

b. Ramon Ocampo

c. Lourdes Ocampo

d. Elena Ocampo, all living, and

e. Antonieta Ocampo Barcenilla (deceased), survived by claimant Jose Barcenilla, Jr.

5. Cosme Borromeo, another brother of Vito Borromeo, died before the war and left the following children:

a. Marcial Borromeo

b. Carlos Borromeo,who died on Jan. 18, 1965,survived by his wife, Remedios Alfonso, and his only daughter, Amelinda Borromeo Talam

c. Asuncion Borromeo

d. Florentina Borromeo, who died in 1948.

e. Amilio Borromeo, who died in 1944.

f. Carmen Borromeo, who died in 1925.

The last three died leaving no issue.

6. Jose Ma. Borromeo, another brother of Vito Borromeo, died before the war and left the following children:

a. Exequiel Borromeo,who died on December 29, 1949

b. Canuto Borromeo, who died on Dec. 31, 1959, leaving the following children:

aa. Federico Borromeo

bb. Marisol Borromeo (Maria B. Putong, Rec. p. 85)

cc. Canuto Borromeo, Jr.

dd. Jose Borromeo

ee. Consuelo Borromeo

ff. Pilar Borromeo

gg. Salud Borromeo

hh. Patrocinio Borromeo Herrera

c. Maximo Borromeo, who died in July, 1948

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

e. Andres Borromeo, who died on Jan. 3, 1923, but survived by his children:

aa. Maria Borromeo Atega

bb. Luz Borromeo

cc. Hermenegilda Borromeo Nonnenkamp

dd. Rosario Borromeo

ee. Fe Borromeo Queroz

On April 10, 1969, the trial court, invoking Art. 972 of the Civil Code, issued an order declaring the following, to the exclusion of all others, as the intestate heirs of the deceased Vito Borromeo:

1. Jose Cuenco Borromeo

2. Judge Crispin Borromeo

3. Vitaliana Borromeo

4. Patrocinio Borromeo Herrera

5. Salud Borromeo

6. Asuncion Borromeo

7. Marcial Borromeo

8. Amelinda Borromeo de Talam, and

9. The heirs of Canuto Borromeo

The court also ordered that the assets of the intestate estate of Vito Borromeo shall be divided into 4/9 and 5/9 groups and distributed in equal and equitable shares among the 9 abovenamed declared intestate heirs.

On April 21 and 30, 1969, the declared heirs, with the exception of Patrocinio B. Herrera, signed an agreement of partition of the properties of the deceased Vito Borromeo which was approved by the trial court, in its order of August 15, 1969. In this same order, the trial court ordered the administrator, Atty Jesus Gaboya, Jr., to partition the properties of the deceased in the way and manner they are divided and partitioned in the said Agreement of Partition and further ordered that 40% of the market value of the 4/9 and 5/9 of the estate shall be segregated. All attorney's fees shall be taken and paid from this segregated portion.

On August 25, 1972, respondent Fortunato Borromeo, who had earlier claimed as heir under the forged will, filed a motion before the trial court praying that he be declared as one of the heirs of the deceased Vito Borromeo, alleging that he is an illegitimate son of the deceased and that in the declaration of heirs made by the trial court, he was omitted, in disregard of the law making him a forced heir entitled to receive a legitime like all other forced heirs. As an acknowledged illegitimate child, he stated that he was entitled to a legitime equal in every case to four-fifths of the legitime of an acknowledged natural child.

Finding that the motion of Fortunato Borromeo was already barred by the order of the court dated April 12, 1969 declaring the persons named therein as the legal heirs of the deceased Vito Borromeo, the court dismissed the motion on June 25, 1973.

Fortunato Borromeo filed a motion for reconsideration. In the memorandum he submitted to support his motion for reconsideration, Fortunato changed the basis for his claim to a portion of the estate. He asserted and incorporated a Waiver of Hereditary Rights dated July 31, 1967, supposedly signed by Pilar N. Borromeo, Maria B. Putong, Jose Borromeo, Canuto V. Borromeo, Jr., Salud Borromeo, Patrocinio Borromeo-Herrera, Marcial Borromeo, Asuncion Borromeo, Federico V. Borromeo, Consuelo B. Morales, Remedios Alfonso and Amelinda B. Talam In the waiver, five of the nine heirs relinquished to Fortunato their shares in the disputed estate. The motion was opposed on the ground that the trial court, acting as a probate court, had no jurisdiction to take cognizance of the claim; that respondent Fortunato Borromeo is estopped from asserting the waiver agreement; that the waiver agreement is void as it was executed before the declaration of heirs; that the same is void having been executed before the distribution of the estate and before the acceptance of the inheritance; and that it is void ab initio and inexistent for lack of subject matter.

On December 24, 1974, after due hearing, the trial court concluding that the five declared heirs who signed the waiver agreement assigning their hereditary rights to Fortunato Borromeo had lost the same rights, declared the latter as entitled to 5/9 of the estate of Vito Borromeo.

A motion for reconsideration of this order was denied on July 7, 1975.

In the present petition, the petitioner seeks to annul and set aside the trial court's order dated December 24, 1974, declaring respondent Fortunato Borromeo entitled to 5/9 of the estate of Vito Borromeo and the July 7, 1975 order, denying the motion for reconsideration.

The petitioner argues that the trial court had no jurisdiction to take cognizance of the claim of respondent Fortunato Borromeo because it is not a money claim against the decedent but a claim for properties, real and personal, which constitute all of the shares of the heirs in the decedent's estate, heirs who allegedly waived their rights in his favor. The claim of the private respondent under the waiver agreement, according to the petitioner, may be likened to that of a creditor of the heirs which is improper. He alleges that the claim of the private respondent under the waiver agreement was filed beyond the time allowed for filing of claims as it was filed only sometime in 1973, after there had been a declaration of heirs (April 10, 1969), an agreement of partition (April 30, 1969), the approval of the agreement of partition and an order directing the administrator to partition the estate (August 15, 1969), when in a mere memorandum, the existence of the waiver agreement was brought out.

It is further argued by the petitioner that the document entitled " waiver of Hereditary Rights" executed on July 31, 1967, aside from having been cancelled and revoked on June 29, 1968, by Tomas L. Borromeo, Fortunato Borromeo and Amelia Borromeo, is without force and effect because there can be no effective waiver of hereditary rights before there has been a valid acceptance of the inheritance the heirs intend to transfer. Pursuant to Article 1043 of the Civil Code, to make acceptance or repudiation of inheritance valid, the person must be certain of the death of the one from whom he is to inherit and of his right to the inheritance. Since the petitioner and her co-heirs were not certain of their right to the inheritance until they were declared heirs, their rights were, therefore, uncertain. This view, according to the petitioner, is also supported by Article 1057 of the same Code which directs heirs, devicees, and legatees to signify their acceptance or repudiation within thirty days after the court has issued an order for the distribution of the estate.

Respondent Fortunato Borromeo on the other hand, contends that under Article 1043 of the Civil Code there is no need for a person to be first declared as heir before he can accept or repudiate an inheritance. What is required is that he must first be certain of the death of the person from whom he is to inherit and that he must be certain of his right to the inheritance. He points out that at the time of the signing of the waiver document on July 31, 1967, the signatories to the waiver document were certain that Vito Borromeo was already dead as well as of their rights to the inheritance as shown in the waiver document itself.

With respect to the issue of jurisdiction of the trial court to pass upon the validity of the waiver of hereditary rights, respondent Borromeo asserts that since the waiver or renunciation of hereditary rights took place after the court assumed jurisdiction over the properties of the estate it partakes of the nature of a partition of the properties of the estate needing approval of the court because it was executed in the course of the proceedings. lie further maintains that the probate court loses jurisdiction of the estate only after the payment of all the debts of the estate and the remaining estate is distributed to those entitled to the same.

The prevailing jurisprudence on waiver of hereditary rights is that "the properties included in an existing inheritance cannot be considered as belonging to third persons with respect to the heirs, who by fiction of law continue the personality of the former. Nor do such properties have the character of future property, because the heirs acquire a right to succession from the moment of the death of the deceased, by principle established in article 657 and applied by article 661 of the Civil Code, according to which the heirs succeed the deceased by the mere fact of death. More or less, time may elapse from the moment of the death of the deceased until the heirs enter into possession of the hereditary property, but the acceptance in any event retroacts to the moment of the death, in accordance with article 989 of the Civil Code. The right is vested, although conditioned upon the adjudication of the corresponding

hereditary portion." (Osorio v. Osorio and Ynchausti Steamship Co., 41 Phil., 531). The heirs, therefore, could waive their hereditary rights in 1967 even if the order to partition the estate was issued only in 1969.

In this case, however, the purported "Waiver of Hereditary Rights" cannot be considered to be effective. For a waiver to exist, three elements are essential: (1) the existence of a right; (2) the knowledge of the existence thereof; and (3) an intention to relinquish such right. (People v. Salvador, (CA) 53 O.G. No. 22, p. 8116, 8120). The intention to waive a right or advantage must be shown clearly and convincingly, and when the only proof of intention rests in what a party does, his act should be so manifestly consistent with, and indicative of an intent to, voluntarily relinquish the particular right or advantage that no other reasonable explanation of his conduct is possible (67 C.J., 311). (Fernandez v. Sebido, et al., 70 Phil., 151, 159).

The circumstances of this case show that the signatories to the waiver document did not have the clear and convincing intention to relinquish their rights, Thus: (1) On October 27, 1967. Fortunato, Tomas, and Amelia Borromeo filed a pleading entitled "Compliance" wherein they submitted a proposal for the amicable settlement of the case. In that Compliance, they proposed to concede to all the eight (8) intestate heirs of Vito Borromeo all properties, personal and real, including all cash and sums of money in the hands of the Special Administrator, as of October 31, 1967, not contested or claimed by them in any action then pending in the Court of First Instance of Cebu. In turn, the heirs would waive and concede to them all the 14 contested lots. In this document, the respondent recognizes and concedes that the petitioner, like the other signatories to the waiver document, is an heir of the deceased Vito Borromeo, entitled to share in the estate. This shows that the "Waiver of Hereditary Rights" was never meant to be what the respondent now purports it to be. Had the intent been otherwise, there would not be any reason for Fortunato, Tomas, and Amelia Borromeo to mention the heirs in the offer to settle the case amicably, and offer to concede to them parts of the estate of the deceased; (2) On April 21 and 30, 1969, the majority of the declared heirs executed an Agreement on how the estate they inherited shall be distributed. This Agreement of Partition was approved by the trial court on August 15, 1969; (3) On June 29, 1968, the petitioner, among others, signed a document entitled Deed of Assignment" purporting to transfer and assign in favor of the respondent and Tomas and Amelia Borromeo all her (Patrocinio B. Herrera's) rights, interests, and participation as an intestate heir in the estate of the deceased Vito Borromeo. The stated consideration for said assignment was P100,000.00; (4) On the same date, June 29, 1968, the respondent Tomas, and Amelia Borromeo (assignees in the aforementioned deed of assignment) in turn executed a "Deed of Reconveyance" in favor of the heirs-assignors named in the same deed of assignment. The stated consideration was P50,000.00; (5) A Cancellation of Deed of Assignment and Deed of Reconveyance was signed by Tomas Borromeo and Amelia Borromeo on October 15, 1968, while Fortunato Borromeo signed this document on March 24, 1969.

With respect to the issue of jurisdiction, we hold that the trial court had jurisdiction to pass upon the validity of the waiver agreement. It must be noted that in Special Proceedings No. 916-R the lower court disallowed the probate of the will and declared it as fake. Upon appeal, this Court affirmed the decision of the lower court on March 30, 1967, in G.R. No. L-18498. Subsequently, several parties came before the lower court filing claims or petitions alleging themselves as heirs of the intestate estate of Vito Borromeo. We see no impediment to the trial court in exercising jurisdiction and trying the said claims or petitions. Moreover, the jurisdiction of the trial court extends to matters incidental and collateral to the exercise of its recognized powers in handling the settlement of the estate.

In view of the foregoing, the questioned order of the trial court dated December 24, 1974, is hereby SET ASIDE.

G.R. No. 55000

This case was originally an appeal to the Court of Appeals from an order of the Court of First Instance of Cebu, Branch 11, dated December 24, 1974, declaring the waiver document earlier discussed in G.R. No. 41171 valid. The appellate court certified this case to this Court as the questions raised are all of law.

The appellants not only assail the validity of the waiver agreement but they also question the jurisdiction of the lower court to hear and decide the action filed by claimant Fortunato Borromeo.

The appellants argue that when the waiver of hereditary right was executed on July 31, 1967, Pilar Borromeo and her children did not yet possess or own any hereditary right in the intestate estate of the deceased Vito Borromeo because said hereditary right was only acquired and owned by them on April 10, 1969, when the estate was ordered distributed.

They further argue that in contemplation of law, there is no such contract of waiver of hereditary right in the present case because there was no object, which is hereditary right, that could be the subject matter of said waiver, and, therefore, said waiver of hereditary right was not only null and void ab initio but was inexistent.

With respect to the issue of jurisdiction, the appellants contend that without any formal pleading filed by the lawyers of Fortunato Borromeo for the approval of the waiver agreement and without notice to the parties concerned, two things which are necessary so that the lower court would be vested with authority and jurisdiction to hear and decide the validity of said waiver agreement, nevertheless, the lower court set the hearing on September 25, 1973 and without asking for the requisite pleading. This resulted in the issuance of the appealed order of December 24, 1974, which approved the validity of the waiver agreement. The appellants contend that this constitutes an error in the exercise of jurisdiction.

The appellee on the other hand, maintains that by waiving their hereditary rights in favor of Fortunato Borromeo, the signatories to the waiver document tacitly and irrevocably accepted the inheritance and by virtue of the same act, they lost their rights because the rights from that moment on became vested in Fortunato Borromeo.

It is also argued by the appellee that under Article 1043 of the Civil Code there is no need for a person to be declared as heir first before he can accept or repudiate an inheritance. What is required is that he is certain of the death of the person from whom he is to inherit, and of his right to the inheritance. At the time of the signing of the waiver document on July 31, 1967, the signatories to the waiver document were certain that Vito Borromeo was already dead and they were also certain of their right to the inheritance as shown by the waiver document itself.

On the allegation of the appellants that the lower court did not acquire jurisdiction over the claim because of the alleged lack of a pleading invoking its jurisdiction to decide the claim, the appellee asserts that on August 23, 1973, the lower court issued an order specifically calling on all oppositors to the waiver document to submit their comments within ten days from notice and setting the same for hearing on September 25, 1973. The appellee also

avers that the claim as to a 5/9 share in the inheritance involves no question of title to property and, therefore, the probate court can decide the question.

The issues in this case are similar to the issues raised in G.R. No. 41171. The appellants in this case, who are all declared heirs of the late Vito Borromeo are contesting the validity of the trial court's order dated December 24, 1974, declaring Fortunato Borromeo entitled to 5/9 of the estate of Vito Borromeo under the waiver agreement.

As stated in G.R. No. 41171, the supposed waiver of hereditary rights can not be validated. The essential elements of a waiver, especially the clear and convincing intention to relinquish hereditary rights, are not found in this case.

The October 27, 1967 proposal for an amicable settlement conceding to all the eight (8) intestate heirs various properties in consideration for the heirs giving to the respondent and to Tomas, and Amelia Borromeo the fourteen (14) contested lots was filed inspite of the fact that on July 31, 1967, some of the heirs had allegedly already waived or sold their hereditary rights to the respondent.

The agreement on how the estate is to be distributed, the June 29, 1968 deed of assignment, the deed of reconveyance, and the subsequent cancellation of the deed of assignment and deed of reconveyance all argue against the purported waiver of hereditary rights.

Concerning the issue of jurisdiction, we have already stated in G.R. No. 41171 that the trial court acquired jurisdiction to pass upon the validity of the waiver agreement because the trial court's jurisdiction extends to matters incidental and collateral to the exercise of its recognized powers in handling the settlement of the estate.

The questioned order is, therefore, SET ASIDE.

G.R. No. 62895

A motion dated April 28, 1972, was filed by Atty. Raul M. Sesbreno, representative of some of the heirs-distributees, praying for the immediate closure of Special Proceeding No. 916-R. A similar motion dated May 29, 1979 was filed by Atty. Jose Amadora. Both motions were grounded on the fact that there was nothing more to be done after the payment of all the obligations of the estate since the order of partition and distribution had long become final.

Alleging that respondent Judge Francisco P. Burgos failed or refused to resolve the aforesaid motions, petitioner Jose Cuenco Borromeo-filed a petition for mandamus before the Court of Appeals to compel the respondent judge to terminate and close Special Proceedings No. 916-R.

Finding that the inaction of the respondent judge was due to pending motions to compel the petitioner, as co-administrator, to submit an inventory of the real properties of the estate and an accounting of the cash in his hands, pending claims for attorney's fees, and that mandamus will not lie to compel the performance of a discretionary function, the appellate court denied the petition on May 14, 1982. The petitioner's motion for reconsideration was likewise denied for lack of merit. Hence, this petition.

The petitioner's stand is that the inaction of the respondent judge on the motion filed on April 28, 1972 for the closure of the administration proceeding cannot be justified by the filing of the motion for inventory and accounting because the latter motion was filed only on March 2, 1979. He claimed that under the then Constitution, it is the duty of the respondent judge to decide or resolve a case or matter within three months from the date of its submission.

The respondents contend that the motion to close the administration had already been resolved when the respondent judge cancelled all settings of all incidents previously set in his court in an order dated June 4, 1979, pursuant to the resolution and restraining order issued by the Court of Appeals enjoining him to maintain status quo on the case.

As stated in G.R. No. 41171, on April 21 and 30, 1969, the declared heirs, with the exception of Patrocinio B. Herrera, signed an agreement of partition of the properties of the deceased Vito Borromeo which was approved by the trial court, in its order dated August 15, 1969. In this same order, the trial court ordered the administrator, Atty. Jesus Gaboya, Jr., to partition the properties of the deceased in the way and manner they are divided and partitioned in the said Agreement of Partition and further ordered that 40% of the market value of the 4/9 and 5/9 of the estate shall be segregated and reserved for attorney's fees.

According to the manifestation of Judge Francisco Burgos dated July 5, 1982, (p. 197, Rollo, G. R. No. 41171) his court has not finally distributed to the nine (9) declared heirs the properties due to the following circumstances:

1. The court's determination of the market value of the estate in order to segregate the 40% reserved for attorney's fees;

2. The order of December 24, 1974, declaring Fortunato Borromeo as beneficiary of the 5/9 of the estate because of the waiver agreement signed by the heirs representing the 5/9 group which is still pending resolution by this Court (G.R. No. 4117 1);

3. The refusal of administrator Jose Cuenco Borromeo to render his accounting; and

4. The claim of Marcela Villegas for 1/2 of the estate causing annotations of notices of lis pendens on the different titles of the properties of the estate.

Since there are still real properties of the estate that were not vet distributed to some of the declared heirs, particularly the 5/9 group of heirs due to the pending resolution of the waiver agreement, this Court in its resolution of June 15, 1983, required the judge of the Court of First Instance of Cebu, Branch 11, to expedite the determination of Special Proceedings No. 916-R and ordered the co-administrator Jose Cuenco Borromeo to submit an inventory of real properties of the estate and to render an accounting of cash and bank deposits realized from rents of several properties.

The matter of attorney's fees shall be discussed in G.R. No. 65995.

Considering the pronouncements stated in:

1. G.R. No. 41171 & G.R. No. 55000, setting aside the Order of the trial court dated December 24, 1974;

2. G.R. No. 63818, denying the petition for review seeking to modify the decision of the Intermediate Appellate Court insofar as it disqualifies and inhibits Judge Francisco P. Burgos from further hearing the Intestate Estate of Vito Borromeo and ordering the remand of the case to the Executive,Judge of the Regional trial Court of Cebu for re-raffling; and

3. G.R. No. 65995, granting the petition to restrain the respondents from further acting on any and all incidents in Special proceedings No. 916-11 because of the affirmation of the decision of the Intermediate Appellate Court in G.R. No. 63818.

the trial court may now terminate and close Special Proceedings No. 916-R, subject to the submission of an inventory of the real properties of the estate and an accounting of the call and bank deposits of the petitioner, as co-administrator of the estate, if he has not vet done so, as required by this Court in its Resolution dated June 15, 1983. This must be effected with all deliberate speed.

G.R. No. 63818

On June 9, 1979, respondents Jose Cuenco Borromeo and Petra 0. Borromeo filed a motion for inhibition in the Court of First Instance of Cebu, Branch 11, presided over by Judge Francisco P. Burgos to inhibit the judge from further acting in Special Proceedings No. 916-R. 'The movants alleged, among others, the following:

x x x           x x x          x x x

6. To keep the agitation to sell moving, Atty. Antigua filed a motion for the production of the certificates of title and to deposit the same with the Branch Clerk of Court, presumably for the ready inspection of interested buyers. Said motion was granted by the Hon. Court in its order of October 2, 1978 which, however, became the subject of various motions for reconsideration from heirs-distributees who contended that as owners they cannot be deprived of their titles for the flimsy reasons advanced by Atty, Antigua. In view of the motions for reconsideration, Atty Antigua ultimately withdraw his motions for production of titles.

7. The incident concerning the production of titles triggered another incident involving Atty. Raul H. Sesbreno who was then the counsel of herein movants Petra O. Borromeo and Amelinda B. Talam In connection with said incident, Atty. Sesbreno filed a pleading which the tion. presiding, Judge Considered direct contempt because among others, Atty. Sesbreno insinuated that the Hon. Presiding Judge stands to receive "fat commission" from the sale of the entire property. Indeed, Atty. Sesbreno was seriously in danger of being declared in contempt of court with the dim prospect of suspension from the practice of his profession. But obviously to extricate himself from the prospect of contempt and suspension. Atty. Sesbreno chose rapproachment and ultimately joined forces with Atty. Antigua, et al., who, together, continued to harass administrator

x x x           x x x          x x x

9. The herein movants are informed and so they allege, that a brother of the Hon. Presiding Judge is married to a sister of Atty. Domingo L. Antigua.

10. There is now a clear tug of war bet ween Atty. Antigua, et al. who are agitating for the sale of the entire estate or to buy out the individual heirs, on the one hand, and the herein movants, on the other, who are not willing to sell their distributive shares under the terms and conditions presently proposed. In this tug of war, a pattern of harassment has become apparent against the herein movants, especially Jose Cuenco Borromeo. Among the harassments employed by Atty Antigua et al. are the pending motions for the removal of administrator Jose Cuenco Borromeo, the subpoena duces tecum issued to the bank which seeks to invade into the privacy of the personal account of Jose Cuenco Borromeo, and the other matters mentioned in paragraph 8 hereof. More harassment motions are expected until the herein movants shall finally yield to the proposed sale. In such a situation, the herein movants beg for an entirely independent and impartial judge to pass upon the merits of said incidents.

11. Should the Hon. Presiding Judge continue to sit and take cognizance of this proceeding, including the incidents above-mentioned, he is liable to be misunderstood as being biased in favor of Atty Antigua, et al. and prejudiced against the herein movants. Incidents which may create this impression need not be enumerated herein. (pp. 39-41, Rollo)

The motion for inhibition was denied by Judge Francisco P. Burgos. Their motion for reconsideration having been denied, the private respondents filed a petition for certiorari and/or prohibition with preliminary injunction before the Intermediate Appellate Court.

In the appellate court, the private respondents alleged, among others, the following:

x x x           x x x          x x x

16. With all due respect, petitioners regret the necessity of having to state herein that respondent Hon. Francisco P. Burgos has shown undue interest in pursing the sale initiated by Atty. Domingo L. Antigua, et al. Significantly, a brother of respondent Hon. Francisco P. Burgos is married to a sister of Atty. Domingo L. Antigua.

17. Evidence the proposed sale of the entire properties of the estate cannot be legally done without the conformity of the heirs-distributees because the certificates of title are already registered in their names Hence, in pursuit of the agitation to sell, respondent Hon. Francisco P. Burgos urged the heirs-distributees to sell the entire property based on the rationale that proceeds thereof deposited in the bank will earn interest more than the present income of the so called estate. Most of the heirs-distributees, however. have been petitioner timid to say their piece. Only the 4/9 group of heirs led by Jose Cuenco Borromeo have had the courage to stand up and refuse the proposal to sell clearly favored by respondent Hon. Francisco P. Burgos.

x x x           x x x          x x x

20. Petitioners will refrain from discussing herein the merits of the shotgun motion of Atty. Domingo L. Antigua as well as other incidents now pending in the court below which smack of harassment against the herein petitioners. For, regardless of the merits of said incidents, petitioners respectfully contend that it is highly improper for respondent Hon. Francisco P. Burgos to continue to preside over Sp. Proc. No. 916-R by reason of the following circumstances:

(a) He has shown undue interest in the sale of the properties as initiated by Atty. Domingo L. Antigua whose sister is married to a brother of respondent.

(b) The proposed sale cannot be legally done without the conformity of the heirs-distributees, and petitioners have openly refused the sale, to the great disappointment of respondent.

(c) The shot gun motion of Atty. Antigua and similar incidents are clearly intended to harass and embarrass administrator Jose Cuenco Borromeo in order to pressure him into acceding to the proposed sale.

(d) Respondent has shown bias and prejudice against petitioners by failing to resolve the claim for attorney's fees filed by Jose Cuenco Borromeo and the late Crispin Borromeo. Similar claims by the other lawyers were resolved by respondent after petitioners refused the proposed sale. (pp. 41-43, Rollo)

On March 1, 1983, the appellate court rendered its decision granting the petition for certiorari and/or prohibition and disqualifying Judge Francisco P. Burgos from taking further cognizance of Special Proceedings No. 916-R. The court also ordered the transmission of the records of the case to the Executive Judge of the Regional Trial Court of Region VII for re-raffling.

A motion for reconsideration of the decision was denied by the appellate court on April 11, 1983. Hence, the present petition for review seeking to modify the decision of the Intermediate Appellate Court insofar as it disqualifies and inhibits Judge Francisco P. Burgos from further hearing the case of Intestate Estate of Vito Borromeo and orders the remand of the case to the Executive Judge of the Regional Trial Court of Cebu for re-raffling.

The principal issue in this case has become moot and academic because Judge Francisco P. Burgos decided to retire from the Regional Trial Court of Cebu sometime before the latest reorganization of the judiciary. However, we decide the petition on its merits for the guidance of the judge to whom this case will be reassigned and others concerned.

The petitioners deny that respondent Jose Cuenco Borromeo has been harassed. They contend that Judge Burgos has benn shown unusual interest in the proposed sale of the entire estate for P6,700,000.00 in favor of the buyers of Atty. Antigua. They claim that this disinterest is shown by the judge's order of March 2, 1979 assessing the property of the estate at P15,000,000.00. They add that he only ordered the administrator to sell so much of the properties of the estate to pay the attorney's fees of the lawyers-claimants. To them, the inhibition of Judge Burgos would have been unreasonable because his orders against the failure of Jose Cuenco Borromeo, as administrator, to give an accounting and inventory of the estate were all affirmed by the appellate court. They claim that the respondent court, should also have taken judicial notice of the resolution of this Court directing the said judge to "expedite the settlement and adjudication of the case" in G.R. No. 54232. And finally, they state that the disqualification of judge Burgos would delay further the closing of the administration proceeding as he is the only judge who is conversant with the 47 volumes of the records of the case.

Respondent Jose Cuenco Borromeo, to show that he had been harassed. countered that Judge Burgos appointed Ricardo V. Reyes as co-administrator of the estate on October 11, 1972, yet Borromeo was singled out to make an accounting of what t he was supposed to have received as rentals for the land upon which the Juliana Trade Center is erected, from

January, 1977 to February 1982, inclusive, without mentioning the withholding tax for the Bureau of Internal Revenue. In order to bolster the agitation to sell as proposed by Domingo L. Antigua, Judge Burgos invited Antonio Barredo, Jr., to a series of conferences from February 26 to 28, 1979. During the conferences, Atty. Antonio Barredo, Jr., offered to buy the shares of the heirs-distributees presumably to cover up the projected sale initiated by Atty. Antigua.

On March 2, 1979, or two days after the conferences, a motion was filed by petitioner Domingo L. Antigua praying that Jose Cuenco Borromeo be required to file an inventory when he has already filed one to account for cash, a report on which the administrators had already rendered: and to appear and be examined under oath in a proceeding conducted by Judge Burgos lt was also prayed that subpoena duces tecum be issued for the appearance of the Manager of the Consolidated Bank and Trust Co., bringing all the bank records in the name of Jose Cuenco Borromeo jointly with his wife as well as the appearance of heirs-distributees Amelinda Borromeo Talam and another heir distributee Vitaliana Borromeo. Simultaneously with the filing of the motion of Domingo Antigua, Atty. Raul H. Sesbreno filed a request for the issuance of subpoena duces tecum to the Manager of Consolidated Bank and 'Trust Co., Inc.; Register of Deeds of Cebu City; Register of Deeds for the Province of Cebu and another subpoena duces tecum to Atty. Jose Cuenco Borromeo.

On the same date, the Branch Clerk of Court issued a subpoena duces tecum to the Managert of the bank, the Register of deeds for the City of Cebu, the Register of Deeds for the Province, of Cebu. and to Jose Cuenco Borromeo.

On the following day, March 3, 1979, Atty Gaudioso v. Villagonzalo in behalf of the heirs of Marcial Borromeo who had a common cause with Atty Barredo, Jr., joined petitioner Domingo L. Antigua by filing a motion for relief of the administrator.

On March 5, 1979, Atty. Villagonzalo filed a request for the issuance of a subpoena duces tecum to private respondent Jose Cuenco Borromeo to bring and produce all the owners" copies of the titles in the court presided order by Judge Burgos.

Consequently. the Branch Clerk of Court issued a subpoena duces tecum commanding Atty. Jose Cuenco Borromeo to bring and produce the titles in court.

All the above-incidents were set for hearing on June 7, 1979 but on June 14, 1979, before the date of the hearing, Judge Burgos issued an order denying the private respondents' motion for reconsideration and the motion to quash the subpoena. 1avvphi1

It was further argued by the private respondents that if ,judge Francisco P. Burgos is not inhibited or disqualified from trying Sp. Proc. No. 916-R, there would be a miscarriage of justice Because for the past twelve years, he had not done anything towards the closure of the estate proceedings except to sell the properties of the heirs-distributees as initiated by petitioner Domingo L. Antigua at 6.7 million pesos while the Intestate Court had already evaluated it at 15 million pesos.

The allegations of the private respondents in their motion for inhibition, more specifically, the insistence of the trial judge to sell the entire estate at P6,700,000.00, where 4/9 group of heirs objected, cannot easily be ignored. Suspicion of partiality on the part of a trial judge must be avoided at all costs. In the case of Bautista v. Rebeuno (81 SCRA 535), this Court stated:

... The Judge must maintain and preserve the trust and faith of the parties litigants. He must hold himself above reproach and suspicion. At the very first sign of lack of faith and trust to his actions, whether well grounded or not, the Judge has no other alternative but inhibit himself from the case. A judge may not be legally Prohibited from sitting in a litigation, but when circumstances appear that will induce doubt to his honest actuations and probity in favor or of either partly or incite such state of mind, he should conduct a careful self-examination. He should exercise his discretion in a way that the people's faith in the Courts of Justice is not impaired, "The better course for the Judge under such circumstances is to disqualify himself "That way he avoids being misunderstood, his reputation for probity and objectivity is preserve ed. what is more important, the Ideal of impartial administration of justice is lived up to.

In this case, the fervent distrust of the private respondents is based on sound reasons. As Earlier stated, however, the petition for review seeking to modify the decision of the Intermediate Appellate Court insofar as it disqualifies and inhibits Judge Francisco P. Burgos from further hearing the Intestate Estate of Vito Borromeo case and ordering the remand of the case to the Executive Judge of the Regional Trial Court for re-raffling should be DENIED for the decision is not only valid but the issue itself has become moot and academic.

G.R. No. 65995

The petitioners seek to restrain the respondents from further acting on any and all incidents in Special Proceedings No. 916-R during the pendency of this petition and No. 63818. They also pray that all acts of the respondents related to the said special proceedings after March 1, 1983 when the respondent Judge was disqualified by the appellate court be declared null and void and without force and effect whatsoever.

The petitioners state that the respondent Judge has set for hearing all incidents in Special Proceedings No. 916-R, including the reversion from the heirs-distributees to the estate, of the distributed properties already titled in their names as early as 1970, notwithstanding the pending inhibition case elevated before this Court which is docketed as G.R. No. 63818.

The petitioners further argue that the present status of Special Proceeding No. 916-R requires only the appraisal of the attorney's fees of the lawyers-claimants who were individually hired by their respective heirs-clients, so their attorney's fees should be legally charged against their respective clients and not against the estate.

On the other hand, the respondents maintain that the petition is a dilatory one and barred by res judicata because this Court on July 8, 1981, in G.R. No. 54232 directed the respondent Judge to expedite the settlement and liquidation of the decedent's estate. They claim that this resolution, which was already final and executory, was in effect reversed and nullified by the Intermediate Appellate Court in its case-AC G.R.-No. SP - 11145 — when it granted the petition for certiorari and or prohibition and disqualified Judge Francisco P. Burgos from taking further cognizance of Special Proceedings No. 916R as well as ordering the transmission of the records of the case to the Executive Judge of the Regional Trial Court of Region VII for re-raffling on March 1, 1983, which was appealed to this Court by means of a Petition for Review (G.R. No. 63818).

We agree with the petitioners' contention that attorney's fees are not the obligation of the estate but of the individual heirs who individually hired their respective lawyers. The portion, therefore, of the Order of August 15, 1969, segregating the exhorbitantly excessive amount

of 40% of the market value of the estate from which attorney's fees shall be taken and paid should be deleted.

Due to our affirmance of the decision of the Intermediate Appellate Court in G.R. No. 63818, we grant the petition.

WHEREFORE, —

(1) In G.R. No. 41171, the order of the respondent judge dated December 24, 1974, declaring the respondent entitled to 5/9 of the estate of the late Vito Borromeo and the order dated July 7, 1975, denying the petitioner's motion for reconsideration of the aforementioned order are hereby SET ASIDE for being NULL and VOID;

(2) In G.R. No. 55000, the order of the trial court declaring the waiver document valid is hereby SET ASIDE;

(3) In G.R. No. 63818, the petition is hereby DENIED. The issue in the decision of the Intermediate Appellate Court disqualifying and ordering the inhibition of Judge Francisco P. Burgos from further hearing Special Proceedings No. 916-R is declared moot and academic. The judge who has taken over the sala of retired Judge Francisco P. Burgos shall immediately conduct hearings with a view to terminating the proceedings. In the event that the successor-judge is likewise disqualified, the order of the Intermediate Appellate Court directing the Executive Judge of the Regional Trial Court of Cebu to re-raffle the case shall be implemented:

(4) In G.R. No. 65995, the petition is hereby GRANTED. 'The issue seeking to restrain Judge Francisco P. Burgos from further acting in G.R. No. 63818 is MOOT and ACADEMIC:

(5) In G.R, No, 62895, the trial court is hereby ordered to speedily terminate the close Special Proceedings No. 916-R, subject to the submission of an inventory of the real properties of the estate and an accounting of the cash and bank deposits by the petitioner-administrator of the estate as required by this Court in its Resolution dated June 15, 1983; and

(6) The portion of the Order of August 15, 1969, segregating 40% of the market value of the estate from which attorney's fees shall be taken and paid should be, as it is hereby DELETED. The lawyers should collect from the heirs-distributees who individually hired them, attorney's fees according to the nature of the services rendered but in amounts which should not exceed more than 20% of the market value of the property the latter acquired from the estate as beneficiaries.

SO ORDERED.

Feliciano, Bidin and Cortes, JJ., concur.Fernan (Chairman), took no part.