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

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

Francisco G. Banzon for petitioner.

Renecio R. Espiritu for private respondents.

 

FERNAN, C.J.:

This is a petition for review on certiorari seeking the reversal of: (a) the decision of the Fourth Civil Cases Division of the Intermediate Appellate Court dated August 31, 1983 in AC-G.R. CV No. 56626 entitled "Jesus Yanes et al. v. Dr. Rodolfo Siason et al." affirming the decision dated July 8, 1974 of the Court of First Instance of Negros Occidental insofar as it ordered the petitioners to pay jointly and severally the private respondents the sum of P20,000.00 representing the actual value of Lots Nos. 773-A and 773-B of the cadastral survey of Murcia, Negros Occidental and reversing the subject decision insofar as it awarded the sums of P2,000.00, P5,000.00 and P2,000.00 as actual damages, moral damages and attorney's fees, respectively and (b) the resolution of said appellate court dated May 30, 1984, denying the motion for reconsideration of its decision.

The real properties involved are two parcels of land identified as Lot 773-A and Lot 773-B which were originally known as Lot 773 of the cadastral survey of Murcia, Negros Occidental. Lot 773, with an area of 156,549 square meters, was registered in the name of the heirs of Aniceto Yanes under Original Certificate of Title No. RO-4858 (8804) issued on October 9, 1917 by the Register of Deeds of Occidental Negros (Exh. A).

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

Aniceto left his children Lots 773 and 823. Teodora cultivated only three hectares of Lot 823 as she could not attend to the other portions of the two lots which had a total area of around twenty-four hectares. The record does not show whether the children of Felipe also cultivated some portions of the lots but it is established that Rufino and his children left the province to settle in other places as a result of the outbreak of World War II. According to Estelita, from the "Japanese time up to peace time", they did not

visit the parcels of land in question but "after liberation", when her brother went there to get their share of the sugar produced therein, he was informed that Fortunato Santiago, Fuentebella (Puentevella) and Alvarez were in possession of Lot 773. 2

It is on record that on May 19, 1938, Fortunato D. Santiago was issued Transfer Certificate of Title No. RF 2694 (29797) covering Lot 773-A with an area of 37,818 square meters. 3 TCT No. RF 2694 describes Lot 773-A as a portion of Lot 773 of the cadastral survey of Murcia and as originally registered under OCT No. 8804.

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

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

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

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

During the pendency in court of said case or on November 13, 1961, Alvarez sold Lots 773-A, 773-B and another lot for P25,000.00 to Dr. Rodolfo Siason. 12 Accordingly, TCT Nos. 30919 and 30920 were issued to Siason, 13 who thereafter, declared the two lots in his name for assessment purposes. 14

Meanwhile, on November 6, 1962, Jesus Yanes, in his own behalf and in behalf of the other plaintiffs, and assisted by their counsel, filed a manifestation in Civil Case No. 5022 stating that the therein plaintiffs "renounce, forfeit and quitclaims (sic) any claim, monetary or otherwise, against the defendant Arsenia Vda. de Fuentebella in connection with the above-entitled case." 15

On October 11, 1963, a decision was rendered by the Court of First Instance of Negros Occidental in Civil Case No. 5022, the dispositive portion of which reads:

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

SO ORDERED. 16

It will be noted that the above-mentioned manifestation of Jesus Yanes was not mentioned in the aforesaid decision.

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

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

Expectedly, Siason filed a manifestation stating that he purchased Lots 773-A, 773-B and 658, not Lots 773 and 823, "in good faith and for a valuable consideration without any knowledge of any lien or encumbrances against said properties"; that the decision in the cadastral proceeding 19 could not be enforced against him as he was not a party thereto; and that the decision in Civil Case No. 5022 could neither be enforced against him not only because he was not a party-litigant therein but also because it had long become final and executory. 20 Finding said manifestation to be well-founded, the cadastral court, in its order of September 4, 1965, nullified its previous order requiring Siason to surrender the certificates of title mentioned therein. 21

In 1968, the Yaneses filed an ex-parte motion for the issuance of an alias writ of execution in Civil Case No. 5022. Siason opposed it. 22 In its order of September 28, 1968 in Civil Case No. 5022, the lower court, noting that the Yaneses had instituted another action for the recovery of the land in question, ruled that at the judgment therein could not be enforced against Siason as he was not a party in the case. 23

The action filed by the Yaneses on February 21, 1968 was for recovery of real property with damages. 24 Named defendants therein were Dr. Rodolfo Siason, Laura Alvarez, Flora Alvarez, Raymundo Alvarez and the Register of Deeds of Negros Occidental. The Yaneses prayed for the cancellation of TCT Nos. T-19291 and 19292 issued to Siason

(sic) for being null and void; the issuance of a new certificate of title in the name of the Yaneses "in accordance with the sheriffs return of service dated October 20, 1965;" Siason's delivery of possession of Lot 773 to the Yaneses; and if, delivery thereof could not be effected, or, if the issuance of a new title could not be made, that the Alvarez and Siason jointly and severally pay the Yaneses the sum of P45,000.00. They also prayed that Siason render an accounting of the fruits of Lot 773 from November 13, 1961 until the filing of the complaint; and that the defendants jointly and severally pay the Yaneses moral damages of P20,000.00 and exemplary damages of P10,000.00 plus attorney's fees of P4, 000.00. 25

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

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

IN VIEW OF THE FOREGOING CONSIDERATION, judgment is hereby rendered in the following manner:

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

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

C. The cross-claim filed by the defendant Dr. Rodolfo Siason against the defendants, Laura, Flora and Raymundo, all surnamed Alvarez is hereby dismissed.

D. Defendants, Laura, Flora and Raymundo, all surnamed Alvarez are hereby ordered to pay the costs of this suit.

SO ORDERED. 29

The Alvarez appealed to the then Intermediate Appellate Court which in its decision of August 31, 1983 30 affirmed the lower court's decision "insofar as it ordered defendants-

appellants to pay jointly and severally the plaintiffs-appellees the sum of P20,000.00 representing the actual value of Lots Nos. 773-A and 773-B of the cadastral survey of Murcia, Negros Occidental, and is reversed insofar as it awarded the sums of P2,000.00, P5,000.00 and P2,000.00 as actual damages, moral damages and attorney's fees, respectively." 31 The dispositive portion of said decision reads:

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

SO ORDERED. 32

Finding no cogent reason to grant appellants motion for reconsideration, said appellate court denied the same.

Hence, the instant petition. ln their memorandum petitioners raised the following issues:

1. Whethere or not the defense of prescription and estoppel had been timely and properly invoked and raised by the petitioners in the lower court.

2. Whether or not the cause and/or causes of action of the private respondents, if ever there are any, as alleged in their complaint dated February 21, 1968 which has been docketed in the trial court as Civil Case No. 8474 supra, are forever barred by statute of limitation and/or prescription of action and estoppel.

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

4. Whether or not the liability or liabilities of Rosendo Alvarez arising from the sale of Lots Nos. 773-A and 773-B of Murcia Cadastre to Dr. Rodolfo Siason, if ever there is any, could be legally passed or transmitted by operations (sic) of law to the petitioners without violation of law and due process . 33

The petition is devoid of merit.

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

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

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

Under the circumstances, the trial court did not annul the sale executed by Alvarez in favor of Dr. Siason on November 11, 1961 but in fact sustained it. The trial court ordered the heirs of Rosendo Alvarez who lost in Civil Case No. 5022 to pay the plaintiffs (private respondents herein) the amount of P20,000.00 representing the actual value of the subdivided lots in dispute. It did not order defendant Siason to pay said amount. 38

As to the propriety of the present case, it has long been established that the sole remedy of the landowner whose property has been wrongfully or erroneously registered in another's name is to bring an ordinary action in the ordinary court of justice for reconveyance or, if the property has passed into the hands of an innocent purchaser for value, for damages. 39 "It is one thing to protect an innocent third party; it is entirely a different matter and one devoid of justification if deceit would be rewarded by allowing the perpetrator to enjoy the fruits of his nefarious decided As clearly revealed by the undeviating line of decisions coming from this Court, such an undesirable eventuality is precisely sought to be guarded against." 40

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

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

Such contention is untenable for it overlooks the doctrine obtaining in this jurisdiction on the general transmissibility of the rights and obligations of the deceased to his legitimate children and heirs. Thus, the pertinent provisions of the Civil Code state:

Art. 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law.

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

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

As explained by this Court through Associate Justice J.B.L. Reyes in the case of Estate of Hemady vs. Luzon Surety Co., Inc. 41

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

Under our law, therefore. the general rule is that a party's contractual rights and obligations are transmissible to the successors.

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

xxx xxx xxx

Petitioners being the heirs of the late Rosendo Alvarez, they cannot escape the legal consequences of their father's transaction, which gave rise to the present claim for damages. That petitioners did not inherit the property involved herein is of no moment because by legal fiction, the monetary equivalent thereof devolved into the mass of their father's hereditary estate, and we have ruled that the hereditary assets are always liable in their totality for the payment of the debts of the estate. 42

It must, however, be made clear that petitioners are liable only to the extent of the value of their inheritance. With this clarification and considering petitioners' admission that there are other properties left by the deceased which are sufficient to cover the amount adjudged in favor of private respondents, we see no cogent reason to disturb the findings and conclusions of the Court of Appeals.

WHEREFORE, subject to the clarification herein above stated, the assailed decision of the Court of Appeals is hereby AFFIRMED. Costs against petitioners.

SO ORDERED.

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

In the matter of the estate of Tomas Rodriguez, deceased. MANUEL TORRES, special administrator, and LUZ LOPEZ DE BUENO, heir, appellee, vs.MARGARITA LOPEZ, opponent-appellant.

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

 

STREET, J.:

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

          The facts necessary to an understanding of the case are these: On January 3, 1924, Tomas Rodriguez executed his last will and testament, in the second clause of which he declared:

          I institute as the only and universal heirs to all my property, my cousin Vicente F. Lopez and his daughter Luz Lopez de Bueno.

          Prior to the time of the execution of this will the testator, Tomas Rodriguez, had been judicially declared incapable of taking care of himself and had been placed under the care of his cousin Vicente F. Lopez, as guardian. On January 7, 1924, or only four days after the will above-mentioned was made, Vicente F. Lopez died; and the testator, Tomas Rodriguez, died on February 25, 1924, thereafter. At the time the will was made Vicente F. Lopez had not presented his final accounts as guardian, and no such accounts had been presented by him at the time of his death. Margariat Lopez was a cousin and nearest relative of the decedent. The will referred to,

and after having been contested, has been admitted to probate by judicial determination (Torres and Lopez de Bueno vs. Lopez, 48 Phil., 772).

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

          We now pass to article 982 of the Civil Code, defining the right of accretion. It is there declared, in effect, that accretion take place in a testamentary succession, first when the two or more persons are called to the same inheritance or the same portion thereof without special designation of shares; and secondly, when one of the persons so called dies before the testator or renounces the inheritance or is disqualifying to receive it. In the case before us we have a will calling Vicente F. Lopez and his daughter, Luz Lopez de Bueno, to the same inheritance without special designation of shares. In addition to this, one of the persons named as heir has predeceased the testator, this person being also disqualified to receive the estate even if he had been alive at the time of the testator's death. This article (982) is therefore also of exact application to the case in hand; and its effect is to give to the survivor, Luz Lopez de Bueno, not only the undivided half which she would have received in conjunction with her father if he had been alive and qualified to take, but also the half which pertained to him. There was no error whatever, therefore, in the order of the trial court declaring Luz Lopez de Bueno entitled to the whole estate.

          The argument in favor of the appellant supposes that there has supervened a partial intestacy with respect to the half of the estate which was intended for Vicente F. Lopez and that this half has descended to the appellant, Margarita Lopez, as next of kin and sole heir at law of the decedent. In this connection attention is directed to article 764 of the Civil Code wherein it is declared, among other things, that a will may be valid even though the person instituted as heir is disqualified to inherit. Our attention is next invited to article 912 wherein it is declared, among other things, that legal succession takes place if the heir dies before the testator and also when the heir instituted is disqualified to succeed. Upon these provisions an argument is planted conducting to the conclusion that the will of Tomas Rodriguez was valid, notwithstanding the fact that one of the individuals named as heirs in the will was disqualified to take, and that as a consequence Margarita Lopez s entitled to inherit the share of said disqualified heir.

          We are the opinion that this contention is untenable and that the appellee clearly has the better right. In playing the provisions of the Code it is the duty of the court to harmonize its provisions as far as possible, giving due effect to all; and in case of conflict between two provisions the more general is to be considered as being limited by the more specific. As between articles 912 and 983, it is obvious that the former is the more general of the two, dealing, as it does, with the general topic of intestate succession while the latter is more specific, defining the particular conditions under which accretion takes place. In case of conflict, therefore, the provisions of the former article must be considered limited by the latter. Indeed, in

subsection 3 of article 912 the provision with respect to intestate succession is expressly subordinated to article 983 by the expression "and (if) there is no right of accretion." It is true that the same express qualification is not found in subsection 4 of article 912, yet it must be so understood, in view of the rule of interpretation above referred to, by which the more specific is held to control the general. Besides, this interpretation supplies the only possible means of harmonizing the two provisions. In addition to this, article 986 of the Civil Code affords independent proof that intestate succession to a vacant portion can only occur when accretion is impossible.

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

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

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

          The judgment appealed from will be affirmed, and it is so ordered, with costs against the appellant.

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

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner, vs.JULIANA LACUESTA, ET AL., respondents.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause:

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

In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA

(Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

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

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of

certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such recital because the cross written by the testator after his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.

It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.

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

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

Jose W. Diokno for petitioner-appellee.Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.

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

Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte, deceased, and appointing as executor Celso Icasiano, the person named therein as such.

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

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

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on November 10, 1958, she petitioned to have herself appointed as a special administrator, to which proponent objected. Hence, on November 18, 1958, the court issued an order appointing the Philippine Trust Company as special administrator. 1äwphï1.ñët

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

On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June 1, 1959, he filed a motion for the admission of an amended and supplemental petition, alleging that the decedent left a will executed in duplicate with all the legal requirements, and that he was, on that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their joint opposition to the admission of the amended and supplemental petition, but by order of July 20, 1959, the court admitted said petition, and on July 30, 1959, oppositor Natividad Icasiano filed her amended opposition. Thereafter, the parties presented their respective evidence, and after several hearings the court issued the order admitting the will and its duplicate to probate. From this order, the oppositors appealed directly to this Court, the amount involved being over P200,000.00, on the ground that the same is contrary to law and the evidence.

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

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

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

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

Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same occasion as the original, and further aver that granting that the documents were genuine, they were executed through mistake and with undue influence and pressure because the testatrix was deceived into adopting as her last will and testament the wishes of those who will stand to benefit from the provisions of the will, as may be inferred from the facts and circumstances surrounding the execution of the will and the provisions and dispositions thereof, whereby proponents-appellees stand to profit from properties held by them as attorneys-in-fact of the deceased and not enumerated or mentioned therein, while oppositors-appellants are enjoined not to look for other properties not mentioned in the will, and not to oppose the probate of it, on penalty of forfeiting their share in the portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that the testatrix signed both original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the same in the presence of the three attesting witnesses, the notary public who acknowledged the will; and Atty. Samson, who actually prepared the documents; that the will and its duplicate were executed in Tagalog, a language known to and spoken by both the testator and the witnesses, and read to and by the testatrix and Atty. Fermin Samson, together before they were actually signed; that the attestation clause is also in a language known to and spoken by the testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing in the duplicate original were not written by the same had which wrote the signatures in the original will leaves us unconvinced, not merely because it is directly contradicted by expert Martin Ramos for the proponents, but principally because of the paucity of the standards used by him to support the conclusion that the differences between the standard and questioned signatures are beyond the writer's range of normal scriptural variation. The expert has, in fact, used as standards only three other signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and we feel that with so few standards the expert's opinion and the signatures in the duplicate could not be those of the testatrix becomes extremely hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to show convincingly that the are radical differences that would justify the charge of

forgery, taking into account the advanced age of the testatrix, the evident variability of her signatures, and the effect of writing fatigue, the duplicate being signed right the original. These, factors were not discussed by the expert.

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

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate. The testamentary dispositions that the heirs should not inquire into other property and that they should respect the distribution made in the will, under penalty of forfeiture of their shares in the free part do not suffice to prove fraud or undue influence. They appear motivated by the desire to prevent prolonged litigation which, as shown by ordinary experience, often results in a sizeable portion of the estate being diverted into the hands of non-heirs and speculators. Whether these clauses are valid or not is a matter to be litigated on another occassion. It is also well to note that, as remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will.

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

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

This would not be the first time that this Court departs from a strict and literal application of the statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the

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

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

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

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.

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

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee, vs.PELAGIO CAGRO, ET AL., oppositors-appellants.

Clouduallo Lucero and Vicente C. Santos for appellants.Marciano Chitongco and Zosimo B. Echanova for appellee.

PARAS, C.J.:

This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar, admitting to probate the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan, Samar, on February 14, 1949.

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

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

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

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

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

Separate Opinions

BAUTISTA ANGELO, J., dissenting:

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

This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40 Phil., 476), this court said that when the testamentary dispositions "are wholly written on only one sheet signed at the bottom by the testator and three witnesses (as the instant case),their signatures on the left margin of said sheet would be completely purposeless." In such a case, the court said, the requirement of the signatures on the left hand margin was not necessary because the purpose of the law — which is to avoid the substitution of any of the sheets of the will, thereby changing the testator's dispositions — has already been accomplished. We may say the same thing in

connection with the will under consideration because while the three instrumental witnesses did not sign immediately by the majority that it may have been only added on a subsequent occasion and not at the uncontradicted testimony of said witnesses to the effect that such attestation clause was already written in the will when the same was signed.

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

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

We should not also overlook the liberal trend of the New Civil Code in the matter of interpretation of wills, the purpose of which, in case of doubt, is to give such interpretation that would have the effect of preventing intestacy (article 788 and 791, New Civil Code)

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

Feria, J., concurs.

TUASON, J., dissenting:

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

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

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.

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

TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-appellee; JOSE DE BORJA, as administrator, CAYETANO DE BORJA, MATILDE

DE BORJA and CRISANTO DE BORJA (deceased) as Children of Josefa Tangco, appellees, vs.TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of Francisco de Borja, appellant. .

G.R. No L-28568 August 18, 1972

TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O. VDA. DE DE BORJA, special Administratrix appellee, vs.JOSE DE BORJA, oppositor-appellant.

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

TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate of the late Francisco de Borja, plaintiff-appellee, vs.JOSE DE BORJA, as Administrator of the Testate Estate of the late Josefa Tangco, defendant-appellant.

L-28040

Pelaez, Jalandoni & Jamir for administrator-appellee.

Quiogue & Quiogue for appellee Matilde de Borja.

Andres Matias for appellee Cayetano de Borja.

Sevilla & Aquino for appellant.

L-28568

Sevilla & Aquino for special administratrix-appellee.

Pelaez, Jalandoni & Jamir for oppositor-appellant.

L-28611

Sevilla & Aquino for plaintiff-appellee.

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

 

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

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

Case No. L-28568 is an appeal by administrator Jose Borja from the disapproval of the same compromise agreement by the Court of First Instance of Nueva Ecija, Branch II, in its Special Proceeding No. 832, entitled, "Testate Estate of Francisco de Borja, Tasiana O. Vda. de de Borja, Special Administratrix".

And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision of the Court of First Instance of Rizal, Branch X, in its Civil Case No. 7452, declaring the Hacienda Jalajala Poblacion, which is the main object of the aforesaid compromise agreement, as the separate and exclusive property of the late Francisco de Borja and not a conjugal asset of the community with his first wife, Josefa Tangco, and that said hacienda pertains exclusively to his testate estate, which is under administrator in Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija, Branch II.

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

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

A G R E E M E N T

THIS AGREEMENT made and entered into by and between

The heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco,

A N D

The heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr.

W I T N E S S E T H

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

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

1. That the parties agree to sell the Poblacion portion of the Jalajala properties situated in Jalajala, Rizal, presently under administration in the Testate Estate of Josefa Tangco (Sp. Proc. No. 7866, Rizal), more specifically described as follows:

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

with a segregated area of approximately 1,313 hectares at the amount of P0.30 per square meter.

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

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

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

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

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

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

IN WITNESS WHEREOF, the parties hereto have her unto set their hands in the City of Manila, Philippines, the 12th of October, 1963.

On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12 October 1963 to the Court of First Instance of Rizal, in Special Proceeding No. R-7866; and again, on 8 August 1966, to the Court of First Instance of Nueva Ecija, in Special Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja opposed in both instances. The Rizal court approved the compromise agreement, but the Nueva Ecija court declared it void and unenforceable. Special administratrix Tasiana Ongsingco Vda. de de Borja appealed the Rizal Court's order of approval (now Supreme Court G.R. case No. L-28040), while administrator Jose de Borja appealed the order of disapproval (G.R. case No. L-28568) by the Court of First Instance of Nueva Ecija.

The genuineness and due execution of the compromised agreement of 12 October 1963 is not disputed, but its validity is, nevertheless, attacked by Tasiana Ongsingco on the ground that: (1) the heirs cannot enter into such kind of agreement without first probating the will of Francisco de Borja; (2) that the same involves a compromise on the

validity of the marriage between Francisco de Borja and Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to have force and effect.

In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on this Court's decision in Guevara vs. Guevara. 74 Phil. 479, wherein the Court's majority held the view that the presentation of a will for probate is mandatory and that the settlement and distribution of an estate on the basis of intestacy when the decedent left a will, is against the law and public policy. It is likewise pointed out by appellant Tasiana Ongsingco that Section 1 of Rule 74 of the Revised Rules explicitly conditions the validity of an extrajudicial settlement of a decedent's estate by agreement between heirs, upon the facts that "(if) the decedent left no will and no debts, and the heirs are all of age, or the minors are represented by their judicial and legal representatives ..." The will of Francisco de Borja having been submitted to the Nueva Ecija Court and still pending probate when the 1963 agreement was made, those circumstances, it is argued, bar the validity of the agreement.

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

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

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

This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the cases at bar. There was here no attempt to settle or distribute the estate of Francisco de Borja among the heirs thereto before the probate of his will. The clear object of the contract was merely the conveyance by Tasiana Ongsingco of any and all her individual share and interest, actual or eventual in the estate of Francisco de Borja and Josefa Tangco. There is no stipulation as to any other claimant, creditor or legatee. And as a hereditary share in a decedent's estate is transmitted or vested immediately from the moment of the death of such causante or predecessor in interest (Civil Code of the Philippines, Art. 777) 3 there is no legal bar to a successor (with requisite contracting capacity) disposing of her or his hereditary share immediately after

such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate. 4 Of course, the effect of such alienation is to be deemed limited to what is ultimately adjudicated to the vendor heir. However, the aleatory character of the contract does not affect the validity of the transaction; neither does the coetaneous agreement that the numerous litigations between the parties (the approving order of the Rizal Court enumerates fourteen of them, Rec. App. pp. 79-82) are to be considered settled and should be dismissed, although such stipulation, as noted by the Rizal Court, gives the contract the character of a compromise that the law favors, for obvious reasons, if only because it serves to avoid a multiplicity of suits.

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

Since the compromise contract Annex A was entered into by and between "Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco" on the one hand, and on the other, "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", it is clear that the transaction was binding on both in their individual capacities, upon the perfection of the contract, even without previous authority of the Court to enter into the same. The only difference between an extrajudicial compromise and one that is submitted and approved by the Court, is that the latter can be enforced by execution proceedings. Art. 2037 of the Civil Code is explicit on the point:

8. Art. 2037. A compromise has upon the parties the effect and authority of res judicata; but there shall be no execution except in compliance with a judicial compromise.

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

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

Ongsingco's argument loses validity when it is considered that Jose de Borja was not a party to this particular contract (Annex 1), and that the same appears not to have been

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

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

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

If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof to a coheir could not be forbidden.

Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is void because it amounts to a compromise as to her status and marriage with the late Francisco de Borja. The point is without merit, for the very opening paragraph of the agreement with Jose de Borja (Annex "A") describes her as "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de

Borja", which is in itself definite admission of her civil status. There is nothing in the text of the agreement that would show that this recognition of Ongsingco's status as the surviving spouse of Francisco de Borja was only made in consideration of the cession of her hereditary rights.

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

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

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

In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has affected her unfavorably, in that while the purchasing power of the agreed price of P800,000 has diminished, the value of the Jalajala property has increased. But the fact

is that her delay in receiving the payment of the agreed price for her hereditary interest was primarily due to her attempts to nullify the agreement (Annex "A") she had formally entered into with the advice of her counsel, Attorney Panaguiton. And as to the devaluation de facto of our currency, what We said in Dizon Rivera vs. Dizon, L-24561, 30 June 1970, 33 SCRA 554, that "estates would never be settled if there were to be a revaluation with every subsequent fluctuation in the values of currency and properties of the estate", is particularly opposite in the present case.

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

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

It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been originally acquired jointly by Francisco de Borja, Bernardo de Borja and Marcelo de Borja and their title thereto was duly registered in their names as co-owners in Land Registration Case No. 528 of the province of Rizal, G.L.R.O. Rec. No. 26403 (De Barjo vs. Jugo, 54 Phil. 465). Subsequently, in 1931, the Hacienda was partitioned among the co-owners: the Punta section went to Marcelo de Borja; the Bagombong section to Bernardo de Borja, and the part in Jalajala proper (Poblacion) corresponded to Francisco de Borja (V. De Borja vs. De Borja 101 Phil. 911, 932).

The lot allotted to Francisco was described as —

Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E. Hermogena Romero; S. Heirs of Marcelo de Borja O. Laguna de Bay; containing an area of 13,488,870 sq. m. more or less, assessed at P297,410. (Record on Appeal, pages 7 and 105)

On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate Estate of Francisco de Borja, instituted a complaint in the Court of First Instance of Rizal (Civil Case No. 7452) against Jose de Borja, in his capacity as Administrator of Josefa Tangco (Francisco de Borja's first wife), seeking to have the Hacienda above described declared exclusive private property of Francisco, while in his answer defendant (now appellant) Jose de Borja claimed that it was conjugal property of his parents (Francisco de Borja and Josefa Tangco), conformably to the presumption established by Article

160 of the Philippine Civil Code (reproducing Article 1407 of the Civil Code of 1889), to the effect that:

Art. 160. All property of the marriage is presumed to belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband or to the wife.

Defendant Jose de Borja further counterclaimed for damages, compensatory, moral and exemplary, as well as for attorney's fees.

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

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

Notwithstanding the four statements aforesaid, and the fact that they are plain admissions against interest made by both Francisco de Borja and the Administratrix of his estate, in the course of judicial proceedings in the Rizal and Nueva Ecija Courts, supporting the legal presumption in favor of the conjugal community, the Court below declared that the Hacienda de Jalajala (Poblacion) was not conjugal property, but the private exclusive property of the late Francisco de Borja. It did so on the strength of the following evidences: (a) the sworn statement by Francis de Borja on 6 August 1951 (Exhibit "F") that —

He tomado possession del pedazo de terreno ya delimitado (equivalente a 1/4 parte, 337 hectareas) adjunto a mi terreno personal y exclusivo (Poblacion de Jalajala, Rizal).

and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire Hacienda had been bought at a foreclosure sale for P40,100.00, of which amount

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

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

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

The following shall be the exclusive property of each spouse:

xxx xxx xxx

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

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

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

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

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

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

G.R. No. L-28397 June 17, 1976

THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs.JAIME JOSE and GEORGE TILLMAN, defendant and appellant.

Sabiniano Balagtas and Francisco R. Sotto for appellant George Tillman.

Solicitor General Felix v. Makasiar and Solicitor August M. Amores for appellee.

 

ESGUERRA, J.:

Automatic review of the decision of the Court of First Instance of Rizal (Branch VII, Pasay City) in Criminal Case No. 7511-P for Robbery and Criminal Case No. 7525-P for Forcible Abduction With Rape, entitled "People of the Philippines v. Jaime Jose, et al.", the dispositive part of which reads:

In view of all the foregoing, the Court

(1) Finds Jaime Jose and George Tillman not guilty of the crime of robbery charged in Criminal Case No. 7511-P;

(2) Finds Jaime Jose and George Tillman guilty beyond reasonable doubt of the complex crime of forcible abduction with rape charged in Criminal Case No. 7525-P and sentences them to the penalty of death, with the recommendation, however, that the same be commuted to life imprisonment:

(3) Orders Jaime Jose and George Tillman, jointly and severally, to pay Zenaida de la Cruz, as moral and exemplary damages, the sum of P6,000.00:

(4) Orders the forfeiture in favor of the Philippine Government of the Mercedes Benz of Jaime Jose, which car bears Plate No. 9978; and

(5) Orders Jaime Jose and George Tillman to pay the costs.

In this Court's resolution dated January 2, 1973, it was stated:

Considering further that appellant Jaime Jose has already been executed pursuant to the decision rendered in L-28232, the Court Resolved to DISMISS the case against said appellant but only insofar as his criminal liability is concerned.

There is no need to discuss Criminal Case No. 7511-P, for Robbery, because both accused Jaime Jose and George Tillman were acquitted of the charge. It is readily noted, however, that in this criminal case the original information filed On July 12, 1967, mentioned of P1,000 worth of jewelry and cash allegedly robbed from Zenaida de la Cruz (supposed victim of abduction with multiple rape in Criminal Case No. 7525-P) and P573.00 worth of jewelry and cash allegedly robbed from Arceli Sy. But the amended information that gave rise to Criminal Case No. 7511-P mentioned only the alleged robbery of P573.00 from Araceli Sy alone.

In Criminal Case No. 7525-P, Jaime Jose and George Tillman, with John Doe and Roy, Peter Roe, and Richard Roe, the latter four being unidentified and whose whereabouts are unknown, were charged by virtue of a complaint dated July 20, 1967, with crime of forcible Abduction With Rape, allegedly committed against Zenaida de la Cruz, as follows:

That on or about the 4th day of July, 1966, at nighttime, a circumstance deliberately sought to insure success in the commission of the offense, in Pasay City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, armed with deadly weapons, by means and use of a motor vehicle, and prompted by lewd designs, did then and there willfully, unlawfully and feloniously abduct, take and carry away the undersigned while on her way home, against her will and consent; and thereafter the accused Jaime Jose y Gomez, George Tillman, John Doe and Peter Doe, in accordance with and pursuant to their conspiracy aforesaid and with malice aforethought, by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of and sexual intercourse with the undersigned, in succession and one after the other, against her will and consent.

By agreement between the Prosecution and the Defense, Criminal Case No. 751-P for Robbery and Criminal Case No 7525-P for Forcible Abduction With Rape were jointly

tried. Upon arraignment on July 28, 1967, Jaime Jose and George Tillman, represented by counsel, pleaded "not guilty".

The trial court summed up the evidence presented by both the Prosecution and the Defense, principally the testimonies of offended parties Zenaida de la Cruz and Araceli Sy together with those of accused Jaime Jose and George Tillman, unquestionably as follows: (1) that in the early morning hours of July 4, 1966, the two offended parties and the five accused were together; (2) that they were at Roxas Boulevard, and later at the Queen's Court Motel, both in Pasay City.

Prosecution's version of what happened that early - morning hour of July 4, 1966, is that Zenaida de la Cruz, while riding a Golden Taxicab driven by Osmundo de la Cruz, was forcibly taken by five armed men riding in a Mercedes Benz car with plate no. 9978; that one of the five divested her of her wrist watch, ring and necklace; that she was brought to the "Golden Gate" Motel, but there was no vacancy, so she was taken to the "Queen's Court" Motel; that inside room no. 3 of said motel she was raped by four of the accused, one at a time, when alone in the room; that during the time three of the accused left the place and when they returned they brought with them Araceli Sy who was also taken by force by three of the group from a Golden Taxi while on her way home to Makati, Rizal. and Zenaida de la Cruz was being held by the two others in the room of the "Queen's Court" Motel; that Araceli Sy was likewise divested of jewelry and cash by the "short fellow" sitting beside her; that Araceli Sy was crying and vomiting at the time while she pretended to have "heart condition"; that the group did not further molest Araceli Sy: that the two (Zenaida and Araceli) were subsequently taken by the five men to Epifanio de los Santos Avenue from the "Queen's Court" Motel in the Mercedes Benz car from where a taxi was hailed for them; that the alleged kidnapping was immediately reported to the Pasay City Police by the taxi driver, Osmundo de la Cruz; that Zenaida de la Cruz and Araceli Sy immediately reported the crime to the authorities after they were released by the accused.

The Defense's version of the incident, on the other hand, is that on the night of July 3, 1966, Vincent Crisologo with two companions went to the house of accused Jaime Jose, where George Tillman was temporarily staying, to borrow the car of Jaime Jose, that Jaime Jose could not lend his car because he and George had to go to a party; that they agreed that the five of them would go to the party first and afterwards they would use the car to go to Bayside nightclub where Vincent Crisologo had a date with a girl; that after the party, they went to Bayside but Crisologo's friend was not there, so they went to eat at the barbecue stand after which, when they were on their way home, a taxi wherein rode Zenaida de la Cruz and Araceli Sy overtook their car at the Roxas Boulevard; that the two girls hailed them and joined them in the Mercedes Benz car of Jaime Jose; that they proceeded to the "Queen's Court" Motel where Vincent Crisologo and Zenaida de la Cruz went inside a room; that afterwards the two had an altercation because Vincent Crisologo had no money to pay Zenaida de la Cruz; that the other four persons could not contribute money because they had no money; that there was no abduction nor rape because Zenaida de la Cruz and Vincent Crisologo were the only ones who entered the room at the "Queen's Court" Motel.

As the Hon. Francisco de la Rosa, trial judge, gave so much emphasis and importance to the credibility of Zenaida de la Cruz, the only witness on the supposed multiple rape committed against her, in convincing the accused Jose and Tillman, necessarily We have to subject her sworn statements to a searching scrutiny to determine if she really told the whole truth in her narrations supporting the prosecution's version of the incident.

In her sworn statement Exh. "B", taken on July 4, 1966, at 10:00 A.M. or shortly after the supposed crime was committed, she stated that she was filing a case of rape and robbery against Jaime Jose, George Tillman, Roy and two others because her "Zandoz" watch, pearl necklace and P300 cash were forcibly taken from her; that four persons who were armed alighted from a Mercedes Benz car and forced her to ride with them to "Queen's Court" motel where she was taken by force inside Room 3; that while in Room 3, three of her abductors left with the car, while two were left in the room with her; that one of the two persons with her in the room went outside while the other one raped her; that after the man who was left with her in the room had raped her, the other man entered and raped her also, that the car returned and Araceli Sy was brought inside the room; that the car left again and Araceli Sy was brought to the bathroom after which a small man (Vincent Crisologo) raped Zenaida; that the car arrived and again George (Tillman) raped her; that Jaime raped her first followed by the man with glasses and by the small man who turned out to be Crisologo, and then again by George (Tillman); that Jaime was the one who removed her panties while she was struggling; that her jewelry was taken from her in the car while her bag was taken from her before she was forced inside the motel room; that the guns used were a 22 caliber, black, held by Jaime; a 38 caliber black held by the man with glasses; a 38 caliber black held by the small man (Crisologo) while she did not notice if Roy had a gun.

As previously stated, the original information in Criminal Case No. 7511-P, for Robbery, mentioned P1,000 worth of jewelry and cash allegedly robbed from Zenaida de la Cruz, while the amended information mentioned only P573.00 worth of jewelry and cash allegedly robbed from Araceli Sy. As to why Zenaida de la Cruz did not press her charge of robbery is not at all explained.

When Zenaida de la Cruz testified in court on August 4, 1967, she stated, that after she was brought inside Room 3 of "Queen's Court" motel by the five men, she was told to wash; one was guarding her and three of them went out and she heard the sound of the engine when the Mercedes Benz car left; that the two who were left in the room were George Tillman and Jaime Jose, that one of the two (Tillman) left the room and Jaime Jose was left behind in the room alone with her and Jaime Jose raped her (pp. 9-12, t.s.n. Hearing of August 4, 1967); that after she was raped by Jaime Jose, the man with eyeglasses (not Tillman) entered the room and with Jaime Jose outside, raped her in turn (pp. 12-14, t.s.n. Hearing of August 4, 1967); that when the man with eyeglasses (not Tillman) was still on top of her, she heard the sound of a gun, the man stood up and dressed, then Araceli Sy was pushed into the room (p. 14, t.s.n.. Hearing of August 4, 1967); that the small man (Crisologo) talked with her to have "intercourse with me", and Araceli Sy was brought to the bathroom, after which the small man raped her (pp.

16-18, t.s.n. Hearing of August 4, 1967); and that George Tillman was the next to rape her (pp. 20- 21, t.s.n. Hearing of August 4, 1967).

In her sworn statement (Exh. 1-Jose, Exh. 1- Tillman) given in the fiscal's office during the preliminary investigation of the case (Joint investigation of I.S. No. 50116, Zenaida de la Cruz vs. Jaime Jose, et al., for Kidnapping with multiple rape and robbery; I.S. No. 50116-X, Araceli Sy vs. Jaime Jose, et al., for Kidnapping with Robbery, and I.S. No. 50345, Osmundo de la Cruz vs. Vincent Crisologo, et al., for Grave Threats), Zenaida de la Cruz stated that in the garage of the Queen's Court Motel, the small man (Vincent Crisologo) got her bag (p. 14, t.s.n., Hearing of September 5, 1966); that when she was inside the room, she heard the car leave; that after the car had left, two persons remained inside the room with her, Jaime Jose and another person she did not know (p. 15, t.s.n. Hearing of Sept. 5, 1966); then the one wearing glasses (not George Tillman) left the room and Jaime Jose raped her (pp. 16-19, t.s.n. Hearing of Sept. 5, 1966); then the man wearing glasses (not George Tillman) entered the room and also raped her (pp. 20-22, t.s.n. Hearing of Sept. 5, 1966); that the car returned and George, Vincent Crisologo and Roy entered the room together with Araceli Sy (pp. 22-23, t.s.n. Hearing of Sept. 5, 1966); that Vincent Crisologo told Araceli Sy to lie down on the sofa and then to go inside the bathroom (pp, 25-26, t.s.n. Hearing of Sept. 5, 1966); the car left again and then Vincent Crisologo raped her (pp. 26-28, t.s.n. Hearing of Sept. 5, 1966); then George Tillman raped her (pp. 31-33, t.s.n. Hearing of Sept. 5, 1966); she was very sure Vincent Crisologo was the third man who raped her and she filed a complaint against Vincent Crisologo (pp. 60-62, t.s.n. Hearing of Sept. 5, 1966). (The charges against Crisologo were however later dropped on grounds of mistaken identity upon statements of desistance executed by both Zeniada and Araceli.)

While certain discrepancies or inaccuracies may be noted from the foregoing sworn statements of complainant due perhaps as shown by experience to confusion or an imperfect memory or deficiencies in the questions propounded to her or in the transcribing of her answers, the record satisfies Us as it did the trial judge who heard and observed the prosecution witnesses testify, "that the substance of the testimony of Zenaida de la Cruz and the manner she testified also argue favorably to the truth of her testimony" and "that what Zenaida de la Cruz told was the whole truth when she testified. The fact that there are minor discrepancies, pointed out by the Defense, in her testimony, does not materially affect its intrinsic value."

We cannot see Our way clear as urged by the defense to alter the trial court's conclusion since whatever weight may be given to the testimonies of Jaime Jose and George Tillman, testimonies which are uncorroborated and contain improbabilities, cannot prevail over the prosecution's evidence ably presented by the Prosecutor especially as the defense failed to present available corroborating evidence, a situation giving rise to the presumption that had the same been presented, such evidence would had been adverse. A thorough scrutiny of the evidence shows Us no reason for altering or reversing the findings and conclusion of the trial court for its judgment of conviction, founded as it is on the trial judge's superior vantage point for the ascertainment of truth and the detection of falsehood from direct observation of the witnesses on the stand.

But even on the hypothesis that George Tillman is guilty of the offense charged, the death sentence cannot be imposed upon him as there is in his favor the circumstance of minority or being less than eighteen (18) years of age when he allegedly committed the offense (See Manifestation & Ex Parte Motion, dated October 20, 1975, submitted by Francisco R. Sotto, one of the counsels for accused George Tillman, pp. 283-289 Record). Although the Solicitor General objects to the consideration of this piece of evidence, consisting of the duly authenticated birth certificate of George Tillman showing that he was born on January 18, 1949, as it was not offered and formally presented in evidence during the trial, this Court resolved in its Resolution of January 8, 1976, to consider the circumstance of George Tillman's minority in the impositon of the Penalty on him. In the exercise of Our sound discretion and so as not to allow sheer technicality to overcome Our sense of justice in considering the merits of this case, We hereby admit in evidence the birth certificate showing that George Tillman was a minor of seventeen (17) years, five (5) months and sixteen (16) days at the time of the commission of the crime in question since there is no doubt as to its veracity.

Under Article 68, par. 2, of the Revised Penal Code, a person who is less than eighteen years old at the time of the commission of the crime is entitled to a penalty one degree lower than that provided by law (People vs. Moises Sanidad, et al., L-32495, August 13, 1975; 66 SCRA pp. 151, 163-164; People vs. Li Bun Juan, L-11077, August 23, 1966; 17 SCRA, pp. 934, 945; People vs. Boduso, L-30450-51, September 30, 1974; 60 SCRA pp. 60, 71). The penalty for the complex crime of forcible abduction with rape is reclusion perpetua to death because it was committed with the use of a deadly weapon and by two or more persons, Considering all the aggravating circumstances that attended the commission of the crime, the penalty of death should be imposed on him. But because of his minority, the next lower penalty to be imposed on George Tillman should be, as it is hereby, reduced to reclusion temporal which is the next lower penalty to reclusion perpetua to death which is the penalty prescribed by law for rape under Article 335, par. 3, of the Revised Penal Code. (Art. 61, par. 2, and Art. 71, Revised Penal Code). Applying the Indeterminate Sentence Law, the proper penalty to be imposed on George Tillman should be, as it is hereby, reduced to ten (10) years and one (1) day, as minimum to seventeen (17) years and one (1) day as maximum. In all other respects the penalties and liabilities imposed by the trial court are affirmed.

In view of the death of Jaime Jose during the pendency of this case which was imposed as his penalty for another similar capital offense previously committed by him, the case against him is dismissed and said accused is relieved in this case of all personal and pecuniary penalties attendant to his crime, his death occurring before rendition of final judgment herein. (Art. 89, par. 1, Revised Penal Code)

Costs against George Tillman.

SO ORDERED.

G.R. No. L-50911 August 21, 1987

MIGUEL PEREZ RUBIO, petitioner, vs.COURT OF APPEALS, ROBERTO O. PHILLIPS & SONS, INC., MAGDALENA YSMAEL PHILLIPS, MANUFACTURERS BANK & TRUST CO., INC., HACIENDA BENITO, INC., ET AL., respondents.

Daniel M. Malabonga for petitioner.

Argel-Guevarra & Associates for respondent Hacienda Benito, Inc.

Meer, Meer & Meer Law Office for respondent Victoria Valley.

Magtanggol C. Gunigundo for respondents Robert O. Phillips & Sons, Inc., Magdalena Ysmael Phillips and Heirs of Robert Phillips.

Ambrosia Padilla, Mempin & Reyes Law Office for respondent Manufacturers Bank & Trust Co Inc.

 

GUTIERREZ, JR., J.:

Before us for reconsideration are the various motions for reconsideration of the March 12, 1986 decision, the dispositive portion of which reads:

WHEREFORE, the petition is GRANTED. The decision of the former Court of Appeals is hereby REVERSED and SET ASIDE. The respondents Phillips and Sons and the Phillips spouses are declared to be jointly and severally liable to the petitioner for the outstanding debt of Phillips and Sons in the amount of FOUR MILLION TWO HUNDRED FIFTY THOUSAND PESOS (P4,250,000.00) with interest at the rate of eight (8%) percent per annum from April 30, 1964 until fully paid as provided for in the parties' agreement dated August 13, 1963. Costs against the respondents. (p. 869, rollo)

The petitioner asks that the decision be reconsidered insofar as it makes no finding against respondent Phillips for moral and exemplary damages as well as attorney's fees and to the extent that the same decision absolves from joint and solidary liability respondents Manufacturers Bank and Trust Company (hereinafter called MBTC), Hacienda Benito (hereinafter called HB, and Victoria Valley Development Corporation (hereinafter called VVDC).

The petitioner restates his position that the respondents conspired amongst themselves to put the properties of Hacienda Benito beyond his reach and thus make it impossible for him to collect the sum of P4,250,000.00 still unpaid on the purchase price of his shares of stock in Hacienda Benito.

It may be recalled that on June 5, 1965, respondent Hacienda Benito, Inc., represented by Robert O. Phillips, president and Victoria Valley Development Corporation which was in the process of incorporation and represented by Alfonso Yuchengco with the conformity of Manufacturers Bank and Trust Company represented by Galicano Calapatia executed a "MEMORANDUM AGREEMENT. (Exhibit "31" — Miguel Perez Rubio).

The thrust of the agreement is that respondent VVDC will acquire under conditions stated therein 134.1668 hectares of land including account receivables belonging to respondent HBI Moreover, it was specifically provided in the agreement that " ... HB warrants that the properties to be acquired by VVDC are not subject to any other obligations, liens, encumbrances, charges or claims of whatever nature than those mentioned herein, including real estate taxes up to the first semester of 1965." (Memorandum Agreement, supra, pp. 3-4).

Included in this 134.1668 hectares are the 78 hectares mortgaged to MBTC. These parcels of land were mortgaged to MBTC to secure obligation and liabilities incurred by HBI and other affiliate companies owned by the Phillips. Of the P7,419,130.19 amount due from these companies, only P1,456,276.48 was the liability of HBI.

Under this agreement, MBTC will institute judicial foreclosure of mortgage after which all the companies would confess judgment and enter into a compromise agreement in full satisfaction of the claim of MBTC under the several deeds of mortgage. It was further provided that HBI will convey all the 78 hectares in favor of MBTC after which VVDC will purchase from MBTC the same parcels of land together with the receivables. A final proviso was to the effect that VVDC and HBI will enter into a separate agreement whereby HBI will expressly assign in favor of VVDC its right to redeem the properties foreclosed by MBTC.

The consideration of the agreement amounted to Pl1,621,889.11 which VVDC agreed to assume in order to settle the obligations of HBI and the other Phillips companies.

The Memorandum Agreement was executed under the following factual background: (1) Respondent ROPSI had still to pay its outstanding P4,250.000.00 debt to the petitioner as the result of the latter's sale of his shares of stock of HBI; (2) Negotiations had broken down between the Phillips spouses, ROPSI and Alfonso Yuchengco as regards the sale of the shares of stock of Hacienda Benito, Inc.; and (3) Petitioner had threatened to rescind the contract of sale of his shares of stock of Hacienda Benito.

Obviously, Hacienda Benito through Robert O. Phillips, and VVDC through Alfonso Yuchengco were fully aware of the petitioner's still being unpaid the P4,250,000.00 balance on his shares of stocks of Hacienda Benito sold to ROPSI. MBTC, too, because of the unrebutted evidence that its top officers are also the top officers of VVDC is conclusively presumed to know the petitioner's predicament. These same personalities figures prominently in the negotiations involving the shares of stock of Hacienda Benito

including the unpaid P4,250,000.00 collectibles of the petitioner from the ROPSI as full payment for the sale of his shares of stock in Hacienda Benito.

Hence, the scheme provided for in the Memorandum Agreement wherein all the properties of Hacienda Benito will be ultimately transferred to VVDC without any mention at all and completely ignoring the petitioner's interest in said Hacienda placed the petitioner's rightful claim to the payment of his shares of stock in clear jeopardy.

The fact that the Memorandum Agreement was not fully implemented is immaterial. The intent to defraud the petitioner and the damage which led to the filing of this case was present in the execution of the Memorandum Agreement.

Therefore, an award for damages in favor of the petitioner is in order against respondents Hacienda Benito, VVDC and MBTC.

Article 19 of the New Civil Code provides that:

Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

while Article 20 thereof provides that:

Every person who, contrary to law, wilfully or negligently causes damage to another shall indemnify the latter for the same.

Parenthetically, these respondents did not observe honesty and good faith in dealing with the rightful claim of the petitioner to the still unpaid P4,250,000.00 collectibles from ROPSI. The respondents' acts are tortious pursuant to Articles 19 and 20 of the New Civil Code. Hence, these respondents are obliged to pay for the damage done to the petitioner. (See Article 2176, New Civil Code).

In the case at bar, the tortious and fraudulent scheme of the private respondents made it impossible for the petitioner to collect the P4,250,000.00 still unpaid purchase price of his shares of stock in Hacienda Benito. All the respondents are, therefore, solidarity liable for these actual damages suffered by the petitioner. (See Article 2194 of the New Civil Code).

Consequently, we rule that Hacienda Benito, VVDC and MBTC together with ROPSI and the Phillips spouses are solidarity liable to the petitioner for the outstanding debt of ROPSI in the amount of P14,250,000.00 with interest at the rate of eight (8 % per cent per annum from April 30, 1964 until fully paid as provided for in the parties' agreement dated August 13,1963.

Also, an award for moral damages in favor of the petitioner is in order against respondents Hacienda Benito, VVDC and MBTC. The planned transfer of all the assets of Hacienda Benito to VVDC which the respondents sought to accomplish through the Memorandum Agreement created further anguish and anxiety on the part of the

petitioner who at that time was still trying to collect the P4,250,000.00 full payment of his shares of stock in Hacienda Benito.

Considering the circumstances under which the respondents executed the Memorandum Agreement and the social status of the parties herein, the amount of P100,000.00 as moral damages in favor of the petitioner is awarded.

However, we find no reasonable ground to set aside our findings in the March 12, 1986 decision that respondents Phillips spouses are not liable for moral and exemplary damages and attorney's fees.

Juan Miguel Phillips also filed a motion to intervene in the instant case stating therein that Robert O. Phillips had died leaving as heirs respondent Magdalena Ysmael Phillips and four legitimate children; that he is one of the four (4) children; that as such legal heir, he has a legal interest in the subject matter of the instant case and will be favored or prejudiced in his interest depending on the final outcome of the instant case. He cites Rule 12, Section 2, Rules of Court.

The right of the movant-intervenor proceeds only from the fact of heirship. Hence his interest to specific portions of the property of the deceased is, if not conjectural, stin contingent and expectant. At this point, he cannot specify any property nor segregate any as his own before the liquidation of the estate is completed. This is in accordance with Article 657 of the Civil Code (Article 777, Civil Code) which provides that the rights to succession of a person are transmitted from the moment of death.

Thus, the heir has the right to impugn the validity of the decedent's transaction only when he is made answerable or when his specific right or property would be affected thereby. The instant case is a personal action against Robert O. Phillips, filed while he was still alive. It is Robert O. Phillips and his estate which are sought to be made liable, not the movant-intervenor or any of his legal heirs.

WHEREFORE, the petitioners motion for reconsideration is GRANTED in that respondent's Hacienda Benito, Victoria Valley Development Corporation and Manufacturers Bank and Trust Company (now Filipinas Bank) together with respondents Robert 0. Phillips & Sons and the Phillips spouses are declared to be jointly and severally liable to the petitioner for the outstanding debt of Phillips and Sons in the amount of FOUR MILLION TWO HUNDRED FIFTY THOUSAND PESOS (P4,250,000.00) with interest at the rate of eight (8%) per cent per annum from April 30, 1964 until fully paid as provided for in the parties' agreement dated August 13, 1963; that respondents Hacienda Benito, Inc., Victoria Valley Development Corporation and Manufacturers Bank and Trust Company (now Filipinas Bank) are jointly and severally liable to the petitioner in the amount of ONE HUNDRED THOUSAND PESOS (P100,000.00) as moral damages. Juan Miguel Phillips' motion for reconsideration is DENIED for lack of merit. The motions for reconsideration filed by Robert O. Phillips and Sons, Magdalena Ysmael Phillips and the heirs of Robert O. Phillips, Hacienda Benito, Inc., and Manufacturers Bank and Trust Company are DENIED it appearing that no new

substantial reasons have been invoked to warrant reconsideration of the said decision as far as these parties' motions are concerned, and this DENIAL is FINAL.

SO ORDERED.

G.R. No. L-46364 April 6, 1990

SULPICIA JIMENEZ and TORIBIO MATIAS, petitioners, vs.VICENTE FERNANDEZ alias HOSPICIO FERNANDEZ and TEODORA GRADO, respondents.

Antonio E. Bengzon III for petitioners.

Agustin U. Cruz for private respondents.

 

PARAS, J.:

Before Us is a petition for review on certiorari of the following Decision 1 and Resolution 2 of the Honorable Court of Appeals: (1) Decision, dated March 1, 1977 in C.A.-G.R. No. 49178-R entitled "Sulpicia Jimenez, et al., v. Vicente Fernandez, et al." affirming in toto the judgment of the Court of First Instance of Pangasinan, Third Judicial District in Civil Case No. 14802-I between the same parties and (2) Resolution dated June 3, 1977 denying plaintiffs-appellants' motion for reconsideration.

As gathered from the records, the factual background of this case is as follows:

The land in question is the Eastern portion with an area of Four Hundred Thirty Six (436) square meters of that parcel of residential land situated in Barrio Dulig (now Magsaysay), Municipality of Labrador, Pangasinan actually covered by Transfer Certificate of Title No. 82275 (Exhibit A) issued in the name of Sulpicia Jimenez.

The entire parcel of land with an area of 2,932 square meters, formerly belonged to Fermin Jimenez. Fermin Jimenez has two (2) sons named Fortunato and Carlos Jimenez. This Fortunato Jimenez who predeceased his father has only one child, the petitioner Sulpicia Jimenez. After the death of Fermin Jimenez, the entire parcel of land was registered under Act 496 in the name of Carlos Jimenez and Sulpicia Jimenez (uncle and niece) in equal shares pro-indiviso. As a result of the registration case Original Certificate of Title No. 50933 (Exhibit 8) was issued on February 28, 1933, in the names of Carlos Jimenez and Sulpicia Jimenez, in equal shares pro-indiviso.

Carlos Jimenez died on July 9, 1936 and his illegitimate daughter, Melecia Cayabyab, also known as Melecia Jimenez, took possession of the eastern portion of the property consisting of 436 square meters.

On January 20, 1944, Melecia Jimenez sold said 436 square meter-portion of the property to Edilberto Cagampan and defendant Teodora Grado executed a contract entitled "Exchange of Real Properties" whereby the former transferred said 436 square meter-portion to the latter, who has been in occupation since.

On August 29, 1969, plaintiff Sulpicia Jimenez executed an affidavit adjudicating unto herself the other half of the property appertaining to Carlos Jimenez, upon manifestation that she is the only heir of her deceased uncle. Consequently Transfer Certificate of Title No. 82275 was issued on October 1, 1969 in petitioner's name alone over the entire 2,932 square meter property.

On April 1, 1970, Sulpicia Jimenez, joined by her husband, instituted the present action for the recovery of the eastern portion of the property consisting of 436 square meters occupied by defendant Teodora Grado and her son.

After trial on the merits, the lower court rendered judgment, the dispositive portion of which reads:

WHEREFORE, decision is hereby rendered dismissing the complaint and holding the defendant, Teodora Grado, the absolute owner of the land in question; ordering the plaintiffs to pay to the defendant the amount of P500.00 as damages, as attorney's fees, and to pay the costs of suit.

SO ORDERED. (Rollo, p. 20)

Petitioner appealed the above judgment to the respondent Court of Appeals and on March 1, 1977, respondent Court of Appeals rendered a decision affirming the same in toto. Said decision was rendered by a special division of five (5) justices, with the Hon. Lourdes San Diego, dissenting.

Petitioners within the reglementary period granted by the Honorable Court of Appeals, filed therewith a motion for reconsideration. But said motion for reconsideration was denied by the Court of Appeals in its resolution dated June 3, 1977.

In their appeal to the respondent Court of Appeals from the aforequoted decision of the trial court, herein petitioner raised the following assignments of error to wit:

ASSIGNMENTS OF ERROR

I

THE LOWER COURT ERRED IN NOT DECLARING THAT MELECIA CAYABYAB, ALSO KNOWN AS MELECIA JIMENEZ, IS NOT THE DAUGHTER OF CARLOS JIMENEZ.

II

THE LOWER COURT ERRED IN NOT DECLARING THAT MELECIA CAYABYAB, ALSO KNOWN AS MELECIA JIMENEZ, HAS NO RIGHT TO SELL THE LAND IN QUESTION TO EDILBERTO CAGAMPAN.

III

THE LOWER COURT ERRED IN NOT DECLARING THAT EDILBERTO CAGAMPAN DID NOT BECOME THE OWNER OF THE LAND IN QUESTION BY VIRTUE OF THE DEED OF SALE (EXH. "1") EXECUTED BY MELECIA CAYABYAB, ALIAS MELECIA JIMENEZ, IN HIS FAVOR.

IV

THE LOWER COURT ERRED IN NOT DECLARING THAT TEODORA GRADO DID NOT BECOME THE OWNER OF THE LAND IN QUESTION BY VIRTUE OF THE DEED OF EXCHANGE (EXH. "7") EXECUTED BY HER AND EDILBERTO CAGAMPAN.

V

THE LOWER COURT ERRED IN NOT DECLARING THAT THE TITLE OF APPELLANT SULPICIA JIMENEZ OVER THE LAND IN QUESTION CAN NOT BE DEFEATED BY THE ADVERSE OPEN AND NOTORIOUS POSSESSION OF APPELLEE TEODORA GRADO.

VI

THE LOWER COURT ERRED IN DECLARING THAT THE APPELLEE TEODORA GRADO IS THE ABSOLUTE OWNER OF THE LAND IN QUESTION IN THE LIGHT OF THE DECISION OF THE SUPREME COURT IN THE CASE OF LOURDES ARCUINO, ET AL., V. RUFINA APARIS AND CASIANO PURAY, G.R. NO. L-23424, PROMULGATED JANUARY 31, 1968, WHICH CASE IS NOT APPLICABLE TO THE CASE AT BAR.

VII

THE LOWER COURT ERRED IN DISMISSING THE COMPLAINT AND ORDERING THE APPELLANTS TO PAY THE APPELLEES THE SUM OF P500.00 AS ATTORNEYS FEES PLUS THE COSTS.

From the foregoing, this petition for review was filed.

We find merit in the petition.

From the start the respondent court erred in not declaring that Melecia Jimenez Cayabyab also known as Melecia Jimenez, is not the daughter of Carlos Jimenez and therefore, had no right over the property in question. Respondents failed to present concrete evidence to prove that Melecia Cayabyab was really the daughter of Carlos Jimenez. Nonetheless, assuming for the sake of argument that Melecia Cayabyab was the illegitimate daughter of Carlos Jimenez there can be no question that Melecia

Cayabyab had no right to succeed to the estate of Carlos Jimenez and could not have validly acquired, nor legally transferred to Edilberto Cagampan that portion of the property subject of this petition.

It is well-settled in this jurisdiction that the rights to the succession are transmitted from the moment of the death of the decedent (Art. 777, Civil Code). Moreover, Art. 2263 of the Civil Code provides as follows:

Rights to the inheritance of a person who died with or without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of Court . . . (Rollo, p. 17)

Thus, since Carlos Jimenez, owner of one-half pro-indiviso portion of that parcel of land then covered by Original Certificate of title No. 50933, died on July 9, 1936 (Exhibit "F") way before the effectivity of the Civil Code of the Philippines, the successional rights pertaining to his estate must be determined in accordance with the Civil Code of 1889.

Citing the case of Cid v. Burnaman (24 SCRA 434) wherein this Court categorically held that:

To be an heir under the rules of Civil Code of 1889 (which was the law in force when Carlos Jimenez died and which should be the governing law in so far as the right to inherit from his estate was concerned), a child must be either a child legitimate, legitimated, or adopted, or else an acknowledged natural child — for illegitimate not natural are disqualified to inherit. (Civil Code of 1889, Art. 807, 935)

Even assuming that Melecia Cayabyab was born out of the common-law-relationship between her mother (Maria Cayabyab) and Carlos Jimenez, she could not even be considered an acknowledged natural child because Carlos Jimenez was then legally married to Susana Abalos and therefore not qualified to marry Maria Cayabyab and consequently Melecia Cayabyab was an illegitimate spurious child and not entitled to any successional rights in so far as the estate of Carlos Jimenez was concerned.

Melecia Cayabyab in the absence of any voluntary conveyance to her by Carlos Jimenez or Sulpicia Jimenez of the litigated portion of the land could not even legally transfer the parcel of land to Edilberto Cagampan who accordingly, could not also legally transfer the same to herein private respondents.

Analyzing the case before Us in this manner, We can immediately discern another error in the decision of the respondent court, which is that the said court sustained and made applicable to the case at bar the ruling in the case of Arcuino, et al., v. Aparis and Puray, No. L-23424, January 31, 1968, 22 SCRA 407, wherein We held that:

. . . it is true that the lands registered under the Torrens System may not be acquired by prescription but plaintiffs herein are not the registered owners. They merely claim to have acquired by succession, their alleged title or interest in lot No. 355. At any rate plaintiffs herein are guilty of laches.

The respondent court relying on the Arcuino case, concluded that respondents had acquired the property under litigation by prescription. We cannot agree with such conclusion, because there is one very marked and important difference between the case at bar and that of the Arcuino case, and that is, that since 1933 petitioner Sulpicia Jimenez was a title holder, the property then being registered in her and her uncle Carlos Jimenez' name. In the Arcuino case, this Supreme Court held. "(I)t is true that lands registered under the Torrens System may not be acquired by prescription but plaintiffs herein are not the registered owners." (Rollo, p. 38) Even in the said cited case the principle of imprescriptibility of Torrens Titles was respected.

Melecia Cayabyab's possession or of her predecessors-in-interest would be unavailing against the petitioner Sulpicia Jimenez who was the holder pro-indiviso with Carlos Jimenez of the Torrens Certificate of Title covering a tract of land which includes the portion now in question, from February 28, 1933, when the Original Certificate of Title No. 50933 (Exhibit 8) was issued.

No possession by any person of any portion of the land covered by said original certificate of titles, could defeat the title of the registered owner of the land covered by the certificate of title. (Benin v. Tuason, L-26127, June 28, 1974, 57 SCRA 531)

Sulpicia's title over her one-half undivided property remained good and continued to be good when she segregated it into a new title (T.C.T No. 82275, Exhibit "A") in 1969. Sulpicia's ownership over her one-half of the land and which is the land in dispute was always covered by a Torrens title, and therefore, no amount of possession thereof by the respondents, could ever defeat her proprietary rights thereon. It is apparent, that the right of plaintiff (now petitioner) to institute this action to recover possession of the portion of the land in question based on the Torrens Title of Sulpicia Jimenez, T.C.T. No. 82275 (Exhibit "A") is imprescriptible and not barred under the doctrine of laches. (J.M. Tuason & Co. v. Macalindong, L-15398, December 29, 1962, Francisco v. Cruz, et al., 43 O.G. 5105) Rollo, p. 39)

The respondent Court of Appeals declared the petitioner Sulpicia Jimenez guilty of laches and citing the ruling in the case of Heirs of Lacamen v. Heirs of Laruan (65 SCRA 605), held that, since petitioner Sulpicia Jimenez executed her Affidavit of Self-Adjudication only in 1969, she lost the right to recover possession of the parcel of land subject of the litigation.

In this instance, again We rule for the petitioner. There is no absolute rule as to what constitutes laches or staleness of demand; each case is to be determined according to its particular circumstances. The question of laches is addressed to the sound discretion of the court and since laches is an equitable doctrine, its application is controlled by equitable considerations. It cannot be worked to defeat justice or to perpetrate fraud and injustice. It would be rank injustice and patently inequitous to deprive the lawful heirs of their rightful inheritance.

Petitioner Sulpicia Jimenez is entitled to the relief prayed for, declaring her to be the sole and absolute owner of the land in question with right to its possession and enjoyment. Since her uncle Carlos Jimenez died in 1936, his pro-indiviso share in the properties then owned in co-ownership with his niece Sulpicia descended by intestacy to Sulpicia Jimenez alone because Carlos died without any issue or other heirs.

After all, the professed objective of Act No. 496, otherwise known as the Land Registration Act or the law which established the Torrens System of Land Registration in the Philippines is that the stability of the landholding system in the Philippines depends on the confidence of the people in the titles covering the properties. And to this end, this Court has invariably upheld the indefeasibility of the Torrens Title and in, among others, J.M. Tuason and Co., Inc. v. Macalindong (6 SCRA 938), held that "the right of the appellee to file an action to recover possession based on its Torrens Title is imprescriptible and not barred under the doctrine of laches.

WHEREFORE, the Petition for Review is hereby GRANTED. The Decision and Resolution dated March 1, 1977 and June 3, 1977 in CA G.R. No. L-49178-R are SET ASIDE.

SO ORDERED.

[G.R. No. 125835.  July 30, 1998]

NATALIA CARPENA OPULENCIA, petitioner, vs. COURT OF APPEALS, ALADIN SIMUNDAC and MIGUEL OLIVAN, respondents.

D E C I S I O N

PANGANIBAN, J.

Is a contract to sell a real property involved in testate proceedings valid and binding without the approval of the probate court?

Statement of the Case

This is the main question raised in this petition for review before us, assailing the Decision of the Court of Appeals in CA-GR CV No. 41994 promulgated on February 6, 1996 and its Resolution dated July 19, 1996.  The challenged Decision disposed as follows:

“WHEREFORE, premises considered, the order of the lower court dismissing the complaint is SET ASIDE and judgment is hereby rendered declaring the CONTRACT TO SELL executed  by appellee in favor of appellants as valid and binding, subject to the result of the administration proceedings of the testate Estate of Demetrio Carpena.

SO ORDERED.”

Petitioner’s Motion for Reconsideration was denied in the challenged Resolution.

The Facts

The antecedent facts, as succinctly narrated by Respondent Court of Appeals are:

“In a complaint for specific performance filed with the court a quo [herein private respondents] Aladin Simundac and Miguel Oliven alleged that [herein petitioner] Natalia Carpena Opulencia executed in their favor a “CONTRACT TO SELL” Lot 2125 of the Sta. Rosa Estate, consisting of 23,766 square meters located in Sta. Rosa, Laguna at P150.00 per square meter; that plaintiffs paid a downpayment of P300,000.00 but defendant, despite demands, failed to comply with her obligations under the contract.  [Private respondents] therefore prayed that [petitioner] be ordered to perform her contractual obligations and to further pay damages, attorney’s fee and litigation expenses.

In her traverse, [petitioner] admitted the execution of the contract in favor of plaintiffs and receipt of P300,000.00 as downpayment.  However, she put forward the following affirmative defenses: that the property subject of the contract formed part of the Estate of Demetrio Carpena (petitioner’s father), in respect of which a petition for probate was filed with the Regional Trial Court, Branch 24, Biñan, Laguna; that at the time the contract was executed, the parties were aware of the pendency of the probate proceeding; that the contract to sell was not approved by the probate court; that realizing the nullity of the contract [petitioner] had offered to return the downpayment received from [private respondents], but the latter refused to accept it; that [private respondents] further failed to provide funds for the tenant who demanded P150,00.00 in payment of his tenancy rights on the land; that [petitioner] had chosen to rescind the contract.

At the pre-trial conference the parties stipulated on [sic] the following facts:

1.            That on February 3, 1989, [private respondents] and [petitioner] entered into a contract to sell involving a parcel of land situated in Sta. Rosa, Laguna, otherwise known as Lot No. 2125 of the Sta. Rosa Estate.

2.            That the price or consideration of the said sell [sic] is P150.00 per square meters;

3.            That the amount of P300,000.00 had already been received by [petitioner];

4.            That the parties have knowledge that the property subject of the contract to sell is subject of the probate proceedings;

5.            That [as] of this time, the probate Court has not yet issued an order either approving or denying  the said sale.  (p. 3, appealed Order of September 15, 1992, pp. 109-112, record).

[Private respondents] submitted their evidence in support of the material allegations of the complaint.  In addition to testimonies of witnesses, [private respondents] presented the following

documentary evidences: (1) Contract to Sell (Exh A); (2) machine copy of the last will and testament of Demetrio Carpena (defendant’s father) to show that the property sold by defendant was one of those devised to her in said will (Exh B); (3) receipts signed by defendant for the downpayment in the total amount of P300,000.00 (Exhs C, D & E); and (4) demand letters sent to defendant (Exhs F & G).

It appears that [petitioner], instead of submitting her evidence, filed a Demurrer to Evidence.  In essence, defendant maintained that the contract to sell was null and void for want of approval by the probate court.  She further argued that the contract was subject to a suspensive condition, which was the probate of the will of defendant’s father Demetrio Carpena.  An Opposition was filed by [private respondents].  It appears further that in an Order dated December 15, 1992 the court a quo granted the demurrer to evidence and dismissed the complaint.  It justified its action in dismissing the complaint in the following manner:

It is noteworthy that when the contract to sell was consummated, no petition was filed in the Court with notice to the heirs of the time and place of hearing, to show that the sale is necessary and beneficial.  A sale of properties of an estate as beneficial to the interested parties must comply with the requisites provided by law, (Sec. 7, Rule 89, Rules of Court) which are mandatory, and without them, the authority to sell, the sale itself, and the order approving it, would be null and void ab initio.  (Arcilla vs. David, 77 Phil. 718, Gabriel, et al., vs. Encarnacion, et al., L-6736, May 4, 1954; Bonaga vs. Soler, 2 Phil. 755)  Besides, it is axiomatic that where the estate of a deceased person is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without prior approval of the probate Court.  (Estate of Obave, vs. Reyes, 123 SCRA 767).

As held by the Supreme Court, a decedent’s representative (administrator) is not estopped from questioning the validity of his own void deed purporting to convey land.  (Bona vs. Soler, 2 Phil, 755).  In the case at bar, the [petitioner,] realizing the illegality of the transaction[,] has interposed the nullity of the contract as her defense, there being no approval from the probate Court, and, in good faith offers to return the money she received from the [private respondents].  Certainly, the administratrix is not estop[ped] from doing so and the action to declare the inexistence of contracts do not prescribe.  This is what precipitated the filing of [petitioner’s] demurrer to evidence.”

The trial court’s order of dismissal was elevated to the Court of Appeals by private respondents who alleged:

“1.     The lower court erred in concluding that the contract to sell is null and void, there being no approval of the probate court.

2.       The lower court erred in concluding that [petitioner] in good faith offers to return the money to [private respondents].

3.       The lower court erred in concluding that [petitioner] is not under estoppel to question the validity of the contract to sell.

4.      The lower court erred in not ruling on the consideration of the contract to sell which is tantamount to plain unjust enrichment of [petitioner] at the expense of [private respondents].”

Public Respondent’s Ruling

Declaring the Contract to Sell valid, subject to the outcome of the testate proceedings on Demetrio Carpena’s estate, the appellate court set aside the trial court’s dismissal of the complaint and correctly ruled as follows:

“It is apparent from the appealed order that the lower court treated the contract to sell executed by appellee as one made by the administratrix of the Estate of Demetrio Carpena for the benefit of the estate.  Hence, its main reason for voiding the contract in question was the absence of the probate court’s approval.  Presumably, what the lower court had in mind was the sale of the estate or part thereof made by the administrator for the benefit of the estate, as authorized under Rule 89 of the Revised Rules of Court, which requires the approval of the probate court upon application therefor with notice to the heirs, devisees and legatees.

However, as adverted to by appellants in their brief, the contract to sell in question is not covered by Rule 89 of the Revised Rules of Court since it was made by appellee in her capacity as an heir, of a property that was devised to her under the will sought to be probated.  Thus, while the document inadvertently stated that appellee executed the contract in her capacity as “executrix and administratrix” of the estate, a cursory reading of the entire text of the contract would unerringly show that what she undertook to sell to appellants was one of the “other properties given to her by her late father,” and more importantly, it was not made for the benefit of the estate but for her own needs.  To illustrate this point, it is apropos to refer to the preambular or preliminary portion of the document, which reads:

WHEREAS, the SELLER is the lawful owner of a certain parcel of land, which is more particularly described as follows:

x x x                                                                      x x x x x x

x x x                                                                      x x x x x x

x x x                                                                      x x x x x x

WHEREAS, the SELLER suffers difficulties in her living and has forced to offer the sale of the above-described property, “which property was only one among the other properties given to her by her late father,” to anyone who can wait for complete clearance of the court on the Last Will Testament of her father.

WHEREAS, the SELLER in order to meet her need of cash, has offered for sale the said property at ONE HUNDRED FIFTY PESOS (150.00) Philippine Currency, per square meter unto the BUYERS, and with this offer, the latter has accepted to buy and/or purchase the same, less the area for the road and other easements indicated at the back of Transfer Certificate of

Title No. 2125 duly confirmed after the survey to be conducted by the BUYER’s Licensed Geodetic Engineer, and whatever area [is] left.  (Emphasis added).

To emphasize, it is evident from the foregoing clauses of the contract that appellee sold Lot 2125 not in her capacity as executrix of the will or administratrix of the estate of her father, but as an heir and more importantly as owner of said lot which, along with other properties, was devised to her under the will sought to be probated.  That being so, the requisites stipulated in Rule 89 of the Revised Rules of Court which refer to a sale made by the administrator for the benefit of the estate do not apply.

x x x                                                                      x x x x x x

It is noteworthy that in a Manifestation filed with this court by appellants, which is not controverted by appellee, it is mentioned that the last will and testament of Demetrio Carpena was approved in a final judgment rendered in Special Proceeding No. B-979 by the Regional Trial Court, Branch 24 Binan, Laguna.  But of course such approval does not terminate the proceeding[s] since the settlement of the estate will ensue.  Such proceedings will consist, among others, in the issuance by the court of a notice to creditors (Rule 86), hearing of money claims and payment of taxes and estate debts (Rule 88)  and distribution of the residue to the heirs or persons entitled thereto (Rule 90).  In effect, the final execution of the deed of sale itself upon appellants’ payment of the balance of the purchase price will have to wait for the settlement or termination of the administration proceedings of the Estate of Demetrio Carpena.  Under the foregoing premises, what the trial court should have done with the complaint was not to dismiss it but to simply put on hold further proceedings until such time that the estate or its residue will be distributed in accordance with the approved will.

The rule is that when a demurrer to the evidence is granted by the trial court but reversed on appeal, defendant loses the right to adduce his evidence.  In such a case, the appellate court will decide the controversy on the basis of plaintiff’s evidence.  In the case at bench, while we find the contract to sell valid and binding between the parties, we cannot as yet order appellee to perform her obligations under the contract because the result of the administration proceedings of the testate Estate of Demetrio Carpena has to be awaited.  Hence, we shall confine our adjudication to merely declaring the validity of the questioned Contract to Sell.”

Hence, this appeal.

The Issue

Petitioner raises only one issue:

“Whether or not the Contract to Sell dated 03 February 1989 executed by the [p]etitioner and [p]rivate [r]espondent[s] without the requisite probate court approval is valid.”

The Court’s Ruling

The petition has no merit.

Contract to Sell Valid

In a nutshell, petitioner contends that “where the estate of the deceased person is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without prior approval of the Probate Court.” She maintains that the Contract to Sell is void because it was not approved by the probate court, as required by Section 7, Rule 89 of the Rules of Court:

“SEC. 7. Regulations for granting authority to sell, mortgage, or otherwise encumber estate. – The court having jurisdiction of the estate of the deceased may authorize the executor or administrator to sell, mortgage, or otherwise encumber real estate, in cases provided by these rules and when it appears necessary or beneficial, under the following regulations:

xxx”

Insisting that the above rule should apply to this case, petitioner argues that the stipulations in the Contract to Sell require her to act in her capacity as an executrix or administratrix.  She avers that her obligation to eject tenants pertains to the administratrix or executrix, the estate being the landlord of the said tenants. Likewise demonstrating that she entered into the contract in her capacity as executor is the stipulation that she must effect the conversion of subject land from irrigated rice land to residential land and secure the necessary clearances from government offices.  Petitioner alleges that these obligations can be undertaken only by an executor or administrator of an estate, and not by an heir.

The Court is not persuaded.  As correctly ruled by the Court of Appeals, Section 7 of Rule 89 of the Rules of Court is not applicable, because petitioner entered into the Contract to Sell in her capacity as an heiress, not as an executrix or administratrix of the estate.  In the contract, she represented herself as the “lawful owner” and seller of the subject parcel of land. She also explained the reason for the sale to be “difficulties in her living” conditions and consequent “need of cash.” These representations clearly evince that she was not acting on behalf of the estate under probate when she entered into the Contract to Sell.  Accordingly, the jurisprudence cited by petitioner has no application to the instant case.

We emphasize that hereditary rights are vested in the heir or heirs from the moment of the decedent’s death. Petitioner, therefore, became the owner of her hereditary share the moment her father died.  Thus, the lack of judicial approval does not invalidate the Contract to Sell, because the petitioner has the substantive right to sell the whole or a part of her share in the estate of her late father. Thus, in Jakosalem vs. Rafols, the Court resolved an identical issue under the old Civil Code and held:

“Article 440 of the Civil Code provides that ‘the possession of hereditary property is deemed to be transmitted to the heir without interruption from the instant of the death of the decedent, in case the inheritance be accepted.’  And Manresa with reason states that upon the death of  a person, each of his heirs ‘becomes the undivided owner of the whole estate left with respect to

the part or portion which might be adjudicated to him, a community of ownership being thus formed among the coowners of the estate while it remains undivided.’ xxx And according to article 399 of the Civil Code, every part owner may assign or mortgage his part in the common property, and the effect of such assignment or mortgage shall be limited to the portion which may be allotted  him in the partition upon the dissolution of the community.  Hence, where some of the heirs, without the concurrence of the others, sold a property left by their deceased father, this Court, speaking thru its then Chief Justice Cayetano Arellano, said that the sale was valid, but that the effect thereof was limited to the share which may be allotted to the vendors upon the partition of the estate.”

Administration of the Estate Not Prejudiced by the Contract to Sell

Petitioner further contends that “[t]o sanction the sale at this stage would bring about a partial distribution of the decedent’s estate pending the final termination of the testate proceedings.” This becomes all the more significant in the light of the trial court’s finding, as stated in its Order dated August 20, 1997, that “the legitime of one of the heirs has been impaired.”

Petitioner’s contention is not convincing.  The Contract to Sell stipulates that petitioner’s offer to sell is  contingent on the “complete clearance of the court on the Last Will Testament of her father.” Consequently, although the Contract to Sell was perfected between the petitioner and private respondents during the pendency of the probate proceedings, the consummation of the sale or the transfer of ownership over the parcel of land to the private respondents is subject to the full payment of the purchase price and to the termination and outcome of the testate proceedings.  Therefore, there is no basis for petitioner’s apprehension that the Contract to Sell may result in a premature partition and distribution of the properties of the estate.  Indeed, it is settled that “the sale made by an heir of his share in an inheritance, subject to the pending administration, in no wise stands in the way of such administration.”

Estoppel

Finally, petitioner is estopped from backing out of her representations in her valid Contract to Sell with private respondents, from whom she had already received P300,000 as initial payment of the purchase price.  Petitioner may not renege on her own acts and representations, to the prejudice of the private respondents who have relied on them. Jurisprudence teaches us that neither the law nor the courts will extricate a party from an unwise or undesirable contract he or she entered into with all the required formalities and with full awareness of its consequences.

WHEREFORE, the petition is hereby DENIED and the assailed Decision of the Court of Appeals AFFIRMED.  Costs against petitioner.

SO ORDERED.

G.R. No. 77029 August 30, 1990

BIENVENIDO, ESTELITA, MACARIO, LUIS, ADELAIDE, ENRIQUITA and CLAUDIO, all surnamed, GEVERO, petitioners, vs.INTERMEDIATE APPELLATE COURT and DEL MONTE DEVELOPMENT CORPORATION, respondents.

Carlito B. Somido for petitioners.

Benjamin N. Tabios for private respondent.

 

PARAS, J.:

This is a petition for review on certiorari of the March 20, 1988 decision 1 of the then Intermediate Appellate Court (now Court of Appeals) in AC-GR CV No. 69264, entitled Del Monte Development Corporation vs. Enrique Ababa, et al., etc. affirming the decision 2 of the then Court of First Instance (now Regional Trial Court) of Misamis Oriental declaring the plaintiff corporation as the true and absolute owner of that portion of Lot 476 of the Cagayan Cadastre, particularly Lot No. 2476-D of the subdivision plan (LRC) Psd-80450, containing an area of Seven Thousand Eight Hundred Seventy Eight (7,878) square meters more or less.

As found by the Appellate Court, the facts are as follows:

The parcel of land under litigation is Lot No. 2476 of the Subdivision Plan Psd-37365 containing an area of 20,119 square meters and situated at Gusa, Cagayan de Oro City. Said lot was acquired by purchase from the late Luis Lancero on September 15, 1964 as per Deed of Absolute Sale executed in favor of plaintiff and by virtue of which Transfer Certificate of Title No. 4320 was issued to plaintiff (DELCOR for brevity). Luis Lancero, in turn acquired the same parcel from Ricardo Gevero on February 5, 1952 per deed of sale executed by Ricardo Gevero which was duly annotated as entry No. 1128 at the back of Original Certificate of Title No. 7610 covering the mother lot identified as Lot No. 2476 in the names of Teodorica Babangha — 1/2 share and her children: Maria; Restituto, Elena, Ricardo, Eustaquio and Ursula, all surnamed surnamed Gevero, 1/2 undivided share of the whole area containing 48,122 square meters.

Teodorica Babangha died long before World War II and was survived by her six children aforementioned. The heirs of Teodorica Babangha on October 17,1966 executed an Extra-Judicial Settlement and Partition of the estate of Teodorica Babangha, consisting of two lots, among them was lot 2476. By virtue of the extra-judicial settlement and partition executed by the said heirs of Teodorica Babangha, Lot 2476-A to Lot 2476-I, inclusive, under subdivision plan (LRC) Psd-80450 duly approved by the Land Registration Commission, Lot 2476-D, among others, was adjudicated to Ricardo Gevero who was then alive at the time of extra-judicial settlement and partition in 1966. Plaintiff (private respondent herein) filed an action with the CFI (now RTC) of Misamis Oriental to quiet title and/or annul the partition made by the heirs of Teodorica Babangha insofar as the same prejudices the land which it acquired a portion of lot 2476.

Plaintiff now seeks to quiet title and/or annul the partition made by the heirs of Teodorica Babangha insofar as the same prejudices the land which it acquired, a portion of Lot 2476. Plaintiff proved that before purchasing Lot 2476-A it first investigated and checked the title of Luis Lancero and found the same to be intact in the office of the Register of Deeds of Cagayan de Oro City. The same with the subdivision plan (Exh. "B"), the corresponding technical description (Exh. "P") and the Deed of Sale executed by Ricardo Gevero — all of which were found to be unquestionable. By reason of all these, plaintiff claims to have bought the land in good faith and for value, occupying the land since the sale and taking over from Lancero's possession until May 1969, when the defendants Abadas forcibly entered the property. (Rollo, p. 23)

After trial the court a quo on July 18, 1977 rendered judgment, the dispositive portion of which reads as follows:

WHEREFORE, premises considered, judgment is hereby rendered declaring the plaintiff corporation as the true and absolute owner of that portion of Lot No. 2476 of the Cagayan Cadastre, particularly Lot No. 2476-D of the subdivision plan (LRC) Psd-80450, containing an area of SEVEN THOUSAND EIGHT HUNDRED SEVENTY EIGHT (7,878) square meters, more or less. The other portions of Lot No. 2476 are hereby adjudicated as follows:

Lot No. 2476 – B – to the heirs of Elena Gevero;

Lot No. 2476 – C – to the heirs of Restituto Gevero;

Lot No. 2476 – E – to the defendant spouses Enrique C. Torres and Francisca Aquino;

Lot No. 2476 – F – to the defendant spouses Eduard Rumohr and Emilia Merida Rumohf ;

Lot Nos. 2476-H, 2476-I and 2476 — G — to defendant spouses Enrique Abada and Lilia Alvarez Abada.

No adjudication can be made with respect to Lot No. 2476-A considering that the said lot is the subject of a civil case between the Heirs of Maria Gevero on one hand and the spouses Daniel Borkingkito and Ursula Gevero on the other hand, which case is now pending appeal before the Court of Appeals. No pronouncement as to costs,

SO ORDERED. (Decision, Record on Appeal, p. 203; Rollo, pp. 21-22)

From said decision, defendant heirs of Ricardo Gevero (petitioners herein) appealed to the IAC (now Court of Appeals) which subsequently, on March 20, 1986, affirmed the decision appealed from.

Petitioners, on March 31, 1986, filed a motion for reconsideration (Rollo, p. 28) but was denied on April 21, 1986.

Hence, the present petition.

This petition is devoid of merit.

Basically, the issues to be resolved in the instant case are: 1) whether or not the deed of sale executed by Ricardo Gevero to Luis Lancero is valid; 2) in the affirmative, whether or not the 1/2 share of interest of Teodorica Babangha in one of the litigated lots, lot no. 2476 under OCT No. 7610 is included in the deed of sale; and 3) whether or not the private respondents' action is barred by laches.

Petitioners maintain that the deed of sale is entirely invalid citing alleged flaws thereto, such as that: 1) the signature of Ricardo was forged without his knowledge of such fact; 2) Lancero had recognized the fatal defect of the 1952 deed of sale when he signed the document in 1968 entitled "Settlement to Avoid the Litigation"; 3) Ricardo's children remained in the property notwithstanding the sale to Lancero; 4) the designated Lot No. is 2470 instead of the correct number being Lot No. 2476; 5) the deed of sale included the share of Eustaquio Gevero without his authority; 6) T.C.T. No. 1183 of Lancero segregated the area of 20,119 square meters from the bigger area (OCT No. 7616) without the consent of the other co-owners; 7) Lancero caused the 1952 Subdivision survey without the consent of the Geveros' to bring about the segregation of the 20,119 square meters lot from the mother lot 2476 which brought about the issuance of his title T-1183 and to DELCOR's title T4320, both of which were illegally issued; and 8) the area sold as per document is 20,649 square meters whereas the segregated area covered by TCT No. T-1183 of Lancero turned out to be 20,119 square meters (Petitioners Memorandum, pp. 62-78).

As to petitioners' claim that the signature of Ricardo in the 1952 deed of sale in favor of Lancero was forged without Ricardo's knowledge of such fact (Rollo, p. 71) it will be observed that the deed of sale in question was executed with all the legal formalities of a public document. The 1952 deed was duly acknowledged by both parties before the notary public, yet petitioners did not bother to rebut the legal presumption of the regularity of the notarized document (Dy v. Sacay, 165 SCRA 473 [1988]); Nuguid v. C.A., G.R. No. 77423, March 13, 1989). In fact it has long been settled that a public document executed and attested through the intervention of the notary public is evidence of the facts in clear, unequivocal manner therein expressed. It has the presumption of regularity and to contradict all these, evidence must be clear, convincing and more than merely preponderant (Rebuleda v. I.A.C., 155 SCRA 520-521 [1987]). Forgery cannot be presumed, it must be proven (Siasat v. IAC, No. 67889, October 10, 1985). Likewise, petitioners allegation of absence of consideration of the deed was not substantiated. Under Art. 1354 of the Civil Code, consideration is presumed unless the contrary is proven.

As to petitioners' contention that Lancero had recognized the fatal defect of the 1952 deed when he signed the document in 1968 entitled "Settlement to Avoid Litigation" (Rollo, p. 71), it is a basic rule of evidence that the right of a party cannot be prejudiced by an act, declaration, or omission of another (Sec. 28. Rule 130, Rules of Court). This particular rule is embodied in the maxim "res inter alios acta alteri nocere non debet." Under Section 31, Rule 130, Rules of Court "where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property is evidence against the former." It is however stressed that the

admission of the former owner of a property must have been made while he was the owner thereof in order that such admission may be binding upon the present owner (City of Manila v. del Rosario, 5 Phil. 227 [1905]; Medel v. Avecilla, 15 Phil. 465 [1910]). Hence, Lanceros' declaration or acts of executing the 1968 document have no binding effect on DELCOR, the ownership of the land having passed to DELCOR in 1964.

Petitioners' claim that they remained in the property, notwithstanding the alleged sale by Ricardo to Lancero (Rollo, p. 71) involves a question of fact already raised and passed upon by both the trial and appellate courts. Said the Court of Appeals:

Contrary to the allegations of the appellants, the trial court found that Luis Lancero had taken possession of the land upon proper investigation by plaintiff the latter learned that it was indeed Luis Lancero who was the owner and possessor of Lot 2476 D. . . . (Decision, C.A., p. 6).

As a finding of fact, it is binding upon this Court (De Gola-Sison v. Manalo, 8 SCRA 595 [1963]; Gaduco vs. C.A., 14 SCRA 282 [1965]; Ramos v. Pepsi-Cola, 19 SCRA 289 [1967]; Tan v. C.A., 20 SCRA 54 [1967]; Ramirez Tel. Co. v. Bank of America, 33 SCRA 737 [1970]; Lucero v. Loot, 25 SCRA 687 [1968]; Guerrero v. C.A., 142 SCRA 130 [1986]).

Suffice it to say that the other flaws claimed by the petitioners which allegedly invalidated the 1952 deed of sale have not been raised before the trial court nor before the appellate court. It is settled jurisprudence that an issue which was neither averred in the complaint nor raised during the trial in the court below cannot be raised for the first time on appeal as it would be offensive to the basic rules of fair play, justice and due process. (Matienzo v. Servidad, 107 SCRA 276 [1981]; Dela Santa v. C.A., 140 SCRA 44 [1985]; Dihiansan v. C.A., 157 SCRA 434 [1987]; Anchuelo v. IAC, 147 SCRA 434 [1987]; Dulos Realty and Development Corporation v. C.A., 157 SCRA [1988]; Kamos v. IAC, G.R. No. 78282, July 5, 1989).

Petitioners aver that the 1/2 share of interest of Teodorica (mother of Ricardo) in Lot 2476 under OCT No. 7610 was not included in the deed of sale as it was intended to limit solely to Ricardos' proportionate share out of the undivided 1/2 of the area pertaining to the six (6) brothers and sisters listed in the Title and that the Deed did not include the share of Ricardo, as inheritance from Teodorica, because the Deed did not recite that she was deceased at the time it was executed (Rollo, pp. 67-68).

The hereditary share in a decedents' estate is transmitted or vested immediately from the moment of the death of the "causante" or predecessor in interest (Civil Code of the Philippines, Art. 777), and there is no legal bar to a successor (with requisite contracting capacity) disposing of his hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate (De Borja v. Vda. de Borja, 46 SCRA 577 [1972]).

Teodorica Babangha died long before World War II, hence, the rights to the succession were transmitted from the moment of her death. It is therefore incorrect to state that it

was only in 1966, the date of extrajudicial partition, when Ricardo received his share in the lot as inheritance from his mother Teodorica. Thus, when Ricardo sold his share over lot 2476 that share which he inherited from Teodorica was also included unless expressly excluded in the deed of sale.

Petitioners contend that Ricardo's share from Teodorica was excluded in the sale considering that a paragraph of the aforementioned deed refers merely to the shares of Ricardo and Eustaquio (Rollo, p. 67-68).

It is well settled that laws and contracts shall be so construed as to harmonize and give effect to the different provisions thereof (Reparations Commission v. Northern Lines, Inc., 34 SCRA 203 [1970]), to ascertain the meaning of the provisions of a contract, its entirety must be taken into account (Ruiz v. Sheriff of Manila, 34 SCRA 83 [1970]). The interpretation insisted upon by the petitioners, by citing only one paragraph of the deed of sale, would not only create contradictions but also, render meaningless and set at naught the entire provisions thereof.

Petitioners claim that DELCOR's action is barred by laches considering that the petitioners have remained in the actual, open, uninterrupted and adverse possession thereof until at present (Rollo, p. 17).

An instrument notarized by a notary public as in the case at bar is a public instrument (Eacnio v. Baens, 5 Phil. 742). The execution of a public instrument is equivalent to the delivery of the thing (Art. 1498, 1st Par., Civil Code) and is deemed legal delivery. Hence, its execution was considered a sufficient delivery of the property (Buencamino v. Viceo, 13 Phil. 97; [1906]; Puato v. Mendoza, 64 Phil. 457 [1937]; Vda. de Sarmiento v. Lesaca, 108 Phil. 900 [1960]; Phil. Suburban Development Corp. v. Auditor Gen., 63 SCRA 397 (1975]).

Besides, the property sold is a registered land. It is the act of registration that transfers the ownership of the land sold. (GSIS v. C.A., G.R. No. 42278, January 20, 1989). If the property is a registered land, the purchaser in good, faith has a right to rely on the certificate of title and is under no duty to go behind it to look for flaws (Mallorca v. De Ocampo, No. L-26852, March 25, 1970; Unchuan v. C.A., 161 SCRA 710 [1988]; Nuguid v. CA-G.R. No. 77427, March 13, 1989).

Under the established principles of land registration law, the person dealing with registered land may generally rely on the correctness of its certificate of title and the law will in no way oblige him to go behind the certificate to determine the condition of the property (Tiongco v. de la Merced, L-2446, July 25, 1974; Lopez vs. CA., G.R. No. 49739, January 20, 1989; Davao Grains Inc. vs. IAC, 171 SCRA 612 [1989]). This notwithstanding, DELCOR did more than that. It did not only rely on the certificate of title. The Court of Appeals found that it had first investigated and checked the title (T.C.T. No. T-1183) in the name of Luis Lancero. It likewise inquired into the Subdivision Plan, the corresponding technical description and the deed of sale executed by Ricardo Gevero in favor of Luis Lancero and found everything in order. It even went

to the premises and found Luis Lancero to be in possession of the land to the exclusion of any other person. DELCOR had therefore acted in good faith in purchasing the land in question.

Consequently, DELCOR's action is not barred by laches.

The main issues having been disposed of, discussion of the other issues appear unnecessary.

PREMISES CONSIDERED, the instant petition is hereby DISMISSED and the decision of the Court of Appeals is hereby AFFIRMED.

SO ORDERED.

G.R. No. 118248 April 5, 2000

DKC HOLDINGS CORPORATION,petitioner,vs.COURT OF APPEALS, VICTOR U. BARTOLOME and REGISTER OF DEEDS FOR METRO MANILA, DISTRICT III, respondents.

YNARES-SANTIAGO, J.

This is a petition for review on certiorari seeking the reversal of the December 5, 1994 Decision of the Court of Appeals in CA-G.R. CV No. 40849 entitled "DKC Holdings Corporation vs. Victor U. Bartolome, et al.",1 affirming in toto the January 4, 1993 Decision of the Regional Trial Court of Valenzuela, Branch 172,2 which dismissed Civil Case No. 3337-V-90 and ordered petitioner to pay P30,000.00 as attorney's fees.

The subject of the controversy is a 14,021 square meter parcel of land located in Malinta, Valenzuela, Metro Manila which was originally owned by private respondent Victor U. Bartolome's deceased mother, Encarnacion Bartolome, under Transfer Certificate of Title No. B-37615 of the Register of Deeds of Metro Manila, District III. This lot was in front of one of the textile plants of petitioner and, as such, was seen by the latter as a potential warehouse site.

On March 16, 1988, petitioner entered into a Contract of Lease with Option to Buy with Encarnacion Bartolome, whereby petitioner was given the option to lease or lease with purchase the subject land, which option must be exercised within a period of two years counted from the signing of the Contract. In turn, petitioner undertook to pay P3,000.00 a month as consideration for the reservation of its option. Within the two-year period, petitioner shall serve formal written notice upon the lessor Encarnacion Bartolome of its desire to exercise its option. The contract also provided that in case petitioner chose to lease the property, it may take actual possession of the premises. In such an event, the lease shall be for a period of six years, renewable for another

six years, and the monthly rental fee shall be P15,000.00 for the first six years and P18,000.00 for the next six years, in case of renewal.

Petitioner regularly paid the monthly P3,000.00 provided for by the Contract to Encarnacion until her death in January 1990. Thereafter, petitioner coursed its payment to private respondent Victor Bartolome, being the sole heir of Encarnacion. Victor, however, refused to accept these payments.

Meanwhile, on January 10, 1990, Victor executed an Affidavit of Self-Adjudication over all the properties of Encarnacion, including the subject lot. Accordingly, respondent Register of Deeds cancelled Transfer Certificate of Title No. B-37615 and issued Transfer Certificate of Title No. V-14249 in the name of Victor Bartolome.

On March 14, 1990, petitioner served upon Victor, via registered mail, notice that it was exercising its option to lease the property, tendering the amount of P15,000.00 as rent for the month of March. Again, Victor refused to accept the tendered rental fee and to surrender possession of the property to petitioner.

Petitioner thus opened Savings Account No. 1-04-02558-I-1 with the China Banking Corporation, Cubao Branch, in the name of Victor Bartolome and deposited therein the P15,000.00 rental fee for March as well as P6,000.00 reservation fees for the months of February and March.

Petitioner also tried to register and annotate the Contract on the title of Victor to the property. Although respondent Register of Deeds accepted the required fees, he nevertheless refused to register or annotate the same or even enter it in the day book or primary register.1âwphi1.nêt

Thus, on April 23, 1990, petitioner filed a complaint for specific performance and damages against Victor and the Register of Deeds,3 docketed as Civil Case No. 3337-V-90 which was raffled off to Branch 171 of the Regional Trial Court of Valenzuela. Petitioner prayed for the surrender and delivery of possession of the subject land in accordance with the Contract terms; the surrender of title for registration and annotation thereon of the Contract; and the payment of P500,000.00 as actual damages, P500,000.00 as moral damages, P500,000.00 as exemplary damages and P300,000.00 as attorney's fees.

Meanwhile, on May 8, 1990, a Motion for Intervention with Motion to Dismiss4 was filed by one Andres Lanozo, who claimed that he was and has been a tenant-tiller of the subject property, which was agricultural riceland, for forty-five years. He questioned the jurisdiction of the lower court over the property and invoked the Comprehensive Agrarian Reform Law to protect his rights that would be affected by the dispute between the original parties to the case.

On May 18, 1990, the lower court issued an Order5 referring the case to the Department of Agrarian Reform for preliminary determination and certification as to whether it was proper for trial by said court.

On July 4, 1990, the lower court issued another Order6 referring the case to Branch 172 of the RTC of Valenzuela which was designated to hear cases involving agrarian land, after the Department of Agrarian Reform issued a letter-certification stating that referral to it for preliminary determination is no longer required.

On July 16, 1990, the lower court issued an Order denying the Motion to Intervene,7 holding that Lanozo's rights may well be ventilated in another proceeding in due time.

After trial on the merits, the RTC of Valenzuela, Branch 172 rendered its Decision on January 4, 1993, dismissing the Complaint and ordering petitioner to pay Victor P30,000.00 as attorney's fees. On appeal to the CA, the Decision was affirmed in toto.

Hence, the instant Petition assigning the following errors:

(A)

FIRST ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE PROVISION ON THE NOTICE TO EXERCISE OPTION WAS NOT TRANSMISSIBLE.

(B)

SECOND ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE NOTICE OF OPTION MUST BE SERVED BY DKC UPON ENCARNACION BARTOLOME PERSONALLY.

(C)

THIRD ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE CONTRACT WAS ONE-SIDED AND ONEROUS IN FAVOR OF DKC.

(D)

FOURTH ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE EXISTENCE OF A REGISTERED TENANCY WAS FATAL TO THE VALIDITY OF THE CONTRACT.

(E)

FIFTH ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT PLAINTIFF-APPELLANT WAS LIABLE TO DEFENDANT-APPELLEE FOR ATTORNEY'S FEES.8

The issue to be resolved in this case is whether or not the Contract of Lease with Option to Buy entered into by the late Encarnacion Bartolome with petitioner was terminated upon her death or whether it binds her sole heir, Victor, even after her demise.

Both the lower court and the Court of Appeals held that the said contract was terminated upon the death of Encarnacion Bartolome and did not bind Victor because he was not a party thereto.

Art. 1311 of the Civil Code provides, as follows —

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

xxx xxx xxx

The general rule, therefore, is that heirs are bound by contracts entered into by their predecessors-in-interest except when the rights and obligations arising therefrom are not transmissible by (1) their nature, (2) stipulation or (3) provision of law.

In the case at bar, there is neither contractual stipulation nor legal provision making the rights and obligations under the contract intransmissible. More importantly, the nature of the rights and obligations therein are, by their nature, transmissible.

The nature of intransmissible rights as explained by Arturo Tolentino, an eminent civilist, is as follows:

Among contracts which are intransmissible are those which are purely personal, either by provision of law, such as in cases of partnerships and agency, or by the very nature of the obligations arising therefrom, such as those requiring special personal qualifications of the obligor. It may also be stated that contracts for the payment of money debts are not transmitted to the heirs of a party, but constitute a charge against his estate. Thus, where the client in a contract for professional services of a lawyer died, leaving minor heirs, and the lawyer, instead of presenting his claim for professional services under the contract to the probate court, substituted the minors as parties for his client, it was held that the contract could not be enforced against the minors; the lawyer was limited to a recovery on the basis of quantum meruit.9

In American jurisprudence, "(W)here acts stipulated in a contract require the exercise of special knowledge, genius, skill, taste, ability, experience, judgment, discretion, integrity, or other personal qualification of one or both parties, the agreement is of a personal nature, and terminates on the death of the party who is required to render such service." 10

It has also been held that a good measure for determining whether a contract terminates upon the death of one of the parties is whether it is of such a character that it may be performed by the promissor's personal representative. Contracts to perform personal acts which cannot be as well performed by others are discharged by the death of the promissor. Conversely, where the service or act is of such a character that it may as well be performed by another, or where the contract, by its terms, shows that performance by others was contemplated, death does not terminate the contract or excuse nonperformance. 11

In the case at bar, there is no personal act required from the late Encarnacion Bartolome. Rather, the obligation of Encarnacion in the contract to deliver possession of the subject property to petitioner upon the exercise by the latter of its option to lease the same may very well be performed by her heir Victor.

As early as 1903, it was held that "(H)e who contracts does so for himself and his heirs." 12 In 1952, it was ruled that if the predecessor was duty-bound to reconvey land to another, and at his death the reconveyance had not been made, the heirs can be compelled to execute the proper deed for reconveyance. This was grounded upon the principle that heirs cannot escape the legal consequence of a transaction entered into by their predecessor-in-interest because they have inherited the property subject to the liability affecting their common ancestor. 13

It is futile for Victor to insist that he is not a party to the contract because of the clear provision of Article 1311 of the Civil Code. Indeed, being an heir of Encarnacion, there is privity of interest between him and his deceased mother. He only succeeds to what rights his mother had and what is valid and binding against her is also valid and binding as against him. 14 This is clear from Parañaque Kings Enterprises vs. Court of Appeals, 15 where this Court rejected a similar defense —

With respect to the contention of respondent Raymundo that he is not privy to the lease contract, not being the lessor nor the lessee referred to therein, he could thus not have violated its provisions, but he is nevertheless a proper party. Clearly, he stepped into the shoes of the owner-lessor of the land as, by virtue of his purchase, he assumed all the obligations of the lessor under the lease contract. Moreover, he received benefits in the form of rental payments. Furthermore, the complaint, as well as the petition, prayed for the annulment of the sale of the properties to him. Both pleadings also alleged collusion between him and respondent Santos which defeated the exercise by petitioner of its right of first refusal.

In order then to accord complete relief to petitioner, respondent Raymundo was a necessary, if not indispensable, party to the case. A favorable judgment for the petitioner will necessarily affect the rights of respondent Raymundo as the buyer

of the property over which petitioner would like to assert its right of first option to buy.

In the case at bar, the subject matter of the contract is likewise a lease, which is a property right. The death of a party does not excuse nonperformance of a contract which involves a property right, and the rights and obligations thereunder pass to the personal representatives of the deceased. Similarly, nonperformance is not excused by the death of the party when the other party has a property interest in the subject matter of the contract. 16

Under both Article 1311 of the Civil Code and jurisprudence, therefore, Victor is bound by the subject Contract of Lease with Option to Buy.

That being resolved, we now rule on the issue of whether petitioner had complied with its obligations under the contract and with the requisites to exercise its option. The payment by petitioner of the reservation fees during the two-year period within which it had the option to lease or purchase the property is not disputed. In fact, the payment of such reservation fees, except those for February and March, 1990 were admitted by Victor. 17 This is clear from the transcripts, to wit —

ATTY. MOJADO:

One request, Your Honor. The last payment which was allegedly made in January 1990 just indicate in that stipulation that it was issued November of 1989 and postdated January 1990 and then we will admit all.

COURT:

All reservation fee?

ATTY. MOJADO:

Yes, Your Honor.

COURT:

All as part of the lease?

ATTY. MOJADO:

Reservation fee, Your Honor. There was no payment with respect to payment of rentals. 18

Petitioner also paid the P15,000.00 monthly rental fee on the subject property by depositing the same in China Bank Savings Account No. 1-04-02558-I-1, in the name of Victor as the sole heir

of Encarnacion Bartolome, 19 for the months of March to July 30, 1990, or a total of five (5) months, despite the refusal of Victor to turn over the subject property. 20

Likewise, petitioner complied with its duty to inform the other party of its intention to exercise its option to lease through its letter dated Match 12, 1990, 21 well within the two-year period for it to exercise its option. Considering that at that time Encarnacion Bartolome had already passed away, it was legitimate for petitioner to have addressed its letter to her heir.

It appears, therefore, that the exercise by petitioner of its option to lease the subject property was made in accordance with the contractual provisions. Concomitantly, private respondent Victor Bartolome has the obligation to surrender possession of and lease the premises to petitioner for a period of six (6) years, pursuant to the Contract of Lease with Option to Buy.

Coming now to the issue of tenancy, we find that this is not for this Court to pass upon in the present petition. We note that the Motion to Intervene and to Dismiss of the alleged tenant, Andres Lanozo, was denied by the lower court and that such denial was never made the subject of an appeal. As the lower court stated in its Order, the alleged right of the tenant may well be ventilated in another proceeding in due time.

WHEREFORE, in view of the foregoing, the instant Petition for Review is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 40849 and that of the Regional Trial Court of Valenzuela in Civil Case No. 3337-V-90 are both SET ASIDE and a new one rendered ordering private respondent Victor Bartolome to:

(a) surrender and deliver possession of that parcel of land covered by Transfer Certificate of Title No. V-14249 by way of lease to petitioner and to perform all obligations of his predecessor-in-interest, Encarnacion Bartolome, under the subject Contract of Lease with Option to Buy;

(b) surrender and deliver his copy of Transfer Certificate of Title No. V-14249 to respondent Register of Deeds for registration and annotation thereon of the subject Contract of Lease with Option to Buy;

(c) pay costs of suit.

Respondent Register of Deeds is, accordingly, ordered to register and annotate the subject Contract of Lease with Option to Buy at the back of Transfer Certificate of Title No. V-14249 upon submission by petitioner of a copy thereof to his office.

SO ORDERED.

G.R. No. 113725 June 29, 2000

JOHNNY S. RABADILLA, 1 petitioner,vs.COURT OF APPEALS AND MARIA MARLENA 2 COSCOLUELLA Y BELLEZA VILLACARLOS, respondents.

PURISIMA, J.:

This is a petition for review of the decision of the Court of Appeals, 3 dated December 23, 1993, in CA-G.R. No. CV-35555, which set aside the decision of Branch 52 of the Regional Trial Court in Bacolod City, and ordered the defendants-appellees (including herein petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.1âwphi1.nêt

The antecedent facts are as follows:

In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511, 855 square meters of that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre. The said Codicil, which was duly probated and admitted in Special Proceedings No. 4046 before the then Court of First Instance of Negros Occidental, contained the following provisions:

FIRST

I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of 141 P. Villanueva, Pasay City:

(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), which is registered in my name according to the records of the Register of Deeds of Negros Occidental.

(b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla.

xxx xxx xxx

FOURTH

(a) It is also my command, in this my addition (Codicil), that should I die and Jorge Rabadilla shall have already received the ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), and also at the time that the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge Rabadilla shall have the obligation until he dies, every year to give to Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies.

FIFTH

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10492), shall have the obligation to still give yearly, the sugar as specified in the Fourth paragraph of his testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year.

SIXTH

I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have left and bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina shall die, lastly should the buyer, lessee or the mortgagee of this lot, not have respected my command in this my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter's heirs, and shall turn it over to my near desendants; (sic) and the latter shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further command in this my addition (Codicil) that my heir and his heirs of this Lot No. 1392, that they will obey and follow that should they decide to sell, lease, mortgage, they cannot negotiate with others than my near descendants and my sister. 4

Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge Rabadilla, and Transfer Certificate of Title No. 44498 thereto issued in his name.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed Rabadilla.

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint, docketed as Civil Case No. 5588, before Branch 52 of the Regional Trial Court in Bacolod City, against the above-mentioned heirs of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The Complaint alleged that the defendant-heirs violated the conditions of the Codicil, in that:

1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic Planters Bank in disregard of the testatrix's specific instruction to sell, lease, or mortgage only to the near descendants and sister of the testatrix.

2. Defendant-heirs failed to comply with their obligation to deliver one hundred (100) piculs of sugar (75 piculs export sugar and 25 piculs domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza from sugar crop years 1985 up to the filing of the complaint as mandated by the Codicil, despite repeated demands for compliance.

3. The banks failed to comply with the 6th paragraph of the Codicil which provided that in case of the sale, lease, or mortgage of the property, the buyer, lessee, or mortgagee shall likewise have the obligation to deliver 100 piculs of sugar per crop year to herein private respondent.

The plaintiff then prayed that judgment be rendered ordering defendant-heirs to reconvey/return Lot No. 1392 to the surviving heirs of the late Aleja Belleza, the cancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge Rabadilla, and the issuance of a new certificate of title in the names of the surviving heirs of the late Aleja Belleza.

On February 26, 1990, the defendant-heirs were declared in default but an March 28, 1990 the Order of Default was lifted, with respect to defendant Johnny S. Rabadilla, who filed his Answer, accordingly.

During the pre-trial, the parties admitted that:

On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of the herein petitioner who was lessee of the property and acting as attorney-in-fact of defendant-heirs, arrived at an amicable settlement and entered into a Memorandum of Agreement on the obligation to deliver one hundred piculs of sugar, to the following effect:

That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will be delivered not later than January of 1989, more specifically, to wit:

75 piculs of "A" sugar, and 25 piculs of "B" sugar, or then existing in any of our names, Mary Rose Rabadilla y Azurin or Alan Azurin, during December of each sugar crop year, in Azucar Sugar Central; and, this is considered compliance of the annuity as mentioned, and in the same manner will compliance of the annuity be in the next succeeding crop years.

That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be complied in cash equivalent of the number of piculs as mentioned therein and which is as herein agreed upon, taking into consideration the composite price of sugar during each sugar crop year, which is in the total amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).

That the above-mentioned amount will be paid or delivered on a staggered cash installment, payable on or before the end of December of every sugar crop year, to wit:

For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1988-89;

For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1989-90;

For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1990-91; and

For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year1991-92. 5

However, there was no compliance with the aforesaid Memorandum of Agreement except for a partial delivery of 50.80 piculs of sugar corresponding to sugar crop year 1988-1989.

On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and disposing as follows:

WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is prematurely filed as no cause of action against the defendants has as yet arose in favor of plaintiff. While there maybe the non-performance of the command as mandated exaction from them simply because they are the children of Jorge Rabadilla, the title holder/owner of the lot in question, does not warrant the filing of the present complaint. The remedy at bar must fall. Incidentally, being in the category as creditor of the left estate, it is opined that plaintiff may initiate the intestate proceedings, if only to establish the heirs of Jorge Rabadilla and in order to give full meaning and semblance to her claim under the Codicil.

In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSED without prejudice.

SO ORDERED. 6

On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the trial court; ratiocinating and ordering thus:

Therefore, the evidence on record having established plaintiff-appellant's right to receive 100 piculs of sugar annually out of the produce of Lot No. 1392; defendants-appellee's obligation under Aleja Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-appellant; defendants-appellee's admitted non-compliance with said obligation since 1985; and, the punitive consequences enjoined by both the codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in case of such non-compliance, this Court deems it proper to order the reconveyance of title over Lot No. 1392 from the estates of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant must institute separate proceedings to re-open Aleja Belleza's estate, secure the appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to enforce her right, reserved to her by the codicil, to receive her legacy of 100 piculs of sugar per year out of the produce of Lot No. 1392 until she dies.

Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.

SO ORDERED. 7

Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this Court via the present petition, contending that the Court of Appeals erred in ordering the reversion of Lot 1392 to the estate of the testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil, and in ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview of Article 882 of the New Civil Code.

The petition is not impressed with merit.

Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with Article 882 of the New Civil Code on modal institutions and in deviating from the sole issue raised which is the absence or prematurity of the cause of action. Petitioner maintains that Article 882 does not find application as there was no modal institution and the testatrix intended a mere simple substitution — i.e. the instituted heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix's "near descendants" should the obligation to deliver the fruits to herein private respondent be not complied with. And since the testatrix died single and without issue, there can be no valid substitution and such testamentary provision cannot be given any effect.

The petitioner theorizes further that there can be no valid substitution for the reason that the substituted heirs are not definite, as the substituted heirs are merely referred to as "near descendants" without a definite identity or reference as to who are the "near

descendants" and therefore, under Articles 843 8 and 845 9 of the New Civil Code, the substitution should be deemed as not written.

The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals deviated from the issue posed before it, which was the propriety of the dismissal of the complaint on the ground of prematurity of cause of action, there was no such deviation. The Court of Appeals found that the private respondent had a cause of action against the petitioner. The disquisition made on modal institution was, precisely, to stress that the private respondent had a legally demandable right against the petitioner pursuant to subject Codicil; on which issue the Court of Appeals ruled in accordance with law.

It is a general rule under the law on succession that successional rights are transmitted from the moment of death of the decedent 10 and compulsory heirs are called to succeed by operation of law. The legitimate children and descendants, in relation to their

legitimate parents, and the widow or widower, are compulsory heirs. 11 Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the later by operation of law, without need of further proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla.

Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the condition that the usufruct thereof would be delivered to the herein private respondent every year. Upon the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over the said property, and they also assumed his (decedent's) obligation to deliver the

fruits of the lot involved to herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the right of private respondent over the usufruct, the fulfillment or performance of which is now being demanded by the latter through the institution of the case at bar. Therefore, private respondent has a cause of action against petitioner and the trial court erred in dismissing the complaint below.

Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable because what the testatrix intended was a substitution — Dr. Jorge Rabadilla was to be substituted by the testatrix's near descendants should there be non-compliance with the obligation to deliver the piculs of sugar to private respondent.

Again, the contention is without merit.

Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted. Under substitutions in general, the testator may either (1) provide for the designation of another heir to whom the property shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution, 12 or (2) leave his/her property to one person with the express charge that it be transmitted subsequently to another or others, as

in a fideicommissary substitution. 13 The Codicil sued upon contemplates neither of the two.

In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or

renunciation. 14 In the case under consideration, the provisions of subject Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or renunciation, the testatrix's near descendants would substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property referred to shall be seized and turned over to the testatrix's near descendants.

Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary substitution, the

first heir is strictly mandated to preserve the property and to transmit the same later to the second heir. 15 In the case under consideration, the instituted heir is in fact allowed under the Codicil to alienate the property provided the negotiation is with the near descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second heir. "Without

this obligation to preserve clearly imposed by the testator in his will, there is no fideicommissary substitution." 16 Also, the near descendants' right to inherit from the testatrix is not definite. The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private respondent.

Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the fiduciary. A

fideicommissary substitution is therefore, void if the first heir is not related by first degree to the second heir. 17 In the case under scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla.

The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject Codicil is in the nature of a modal institution and therefore, Article 882 of the New Civil Code is the provision of law in point. Articles 882 and 883 of the New Civil Code provide:

Art. 882. The statement of the object of the institution or the application of the property left by the testator, or the charge imposed on him, shall not be considered as a condition unless it appears that such was his intention.

That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation.

Art. 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall he complied with in a manner most analogous to and in conformity with his wishes.

The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as an institucion sub modo or a modal institution. In a modal institution, the testator states (1) the object of the institution, (2) the purpose or application

of the property left by the testator, or (3) the charge imposed, by the testator upon the heir. 18 A "mode" imposes an obligation

upon the heir or legatee but it does not affect the efficacy of his rights to the succession. 19 On the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. The

condition suspends but does not obligate; and the mode obligates but does not suspend. 20 To some extent, it is similar to a

resolutory condition. 21

From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended that subject property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed an obligation on the said instituted heir and his successors-in-interest to deliver one hundred piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza, during the lifetime of the latter. However, the testatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity of his institution as a devisee, dependent on the performance of the said obligation. It is clear, though, that should the obligation be not complied with, the property shall be turned over to the testatrix's near descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature because it imposes a charge upon the instituted heir without, however, affecting the efficacy of such institution.

Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case of doubt, the

institution should be considered as modal and not conditional. 22

Neither is there tenability in the other contention of petitioner that the private respondent has only a right of usufruct but not the right to seize the property itself from the instituted heir because the right to seize was expressly limited to violations by the buyer, lessee or mortgagee.

In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the Will, taking into consideration the circumstances under which it was

made. 23 Such construction as will sustain and uphold the Will in all its parts must be adopted. 24

Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella. Such obligations is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they sell, lease, mortgage or otherwise negotiate the property involved. The Codicil further provides that in the event that the obligation to deliver the sugar is not respected, Marlena Belleza Coscuella shall seize the property and turn it over to the testatrix's near descendants. The non-performance of the said obligation is thus with the sanction of seizure of the property and reversion thereof to the testatrix's near descendants. Since the said obligation is clearly imposed by the testatrix, not only on the instituted heir but also on his successors-in-interest, the sanction imposed by the testatrix in case of non-fulfillment of said obligation should equally apply to the instituted heir and his successors-in-interest.

Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement, the said obligation imposed by the Codicil has been assumed by the lessee, and whatever obligation petitioner had become the obligation of the lessee; that petitioner is deemed to have made a substantial and constructive compliance of his obligation through the consummated settlement between the lessee and the private respondent, and having consummated a settlement with the petitioner, the recourse of the private respondent is the fulfillment of the obligation under the amicable settlement and not the seizure of subject property.

Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person disposes of his property, to take effect

after his death. 25 Since the Will expresses the manner in which a person intends how his properties be disposed, the wishes and desires of the testator must be strictly followed. Thus, a Will cannot be the subject of a compromise agreement which would thereby defeat the very purpose of making a Will.

WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No pronouncement as to costs.

SO ORDERED.

Vitug, J., please see separate (concurring in result) opinion.

Melo, J., I concur as well in the separate opinion of Justice Vitug.

Panganiban, J., I join the separate opinion of Justice Vitug.

Gonzaga-Reyes, J., took no part.

Separate Opinions

VITUG, J., separate opinion;

By virtue of a codicil appended to her will, Aleja Belleza devised a 511,856-square meter parcel of land in Bacolod City,

denominated Lot No. 1392 of the Bacolod Cadastral Survey, to Jorge Ravadilla (predecessor-in-interest of petitioner), 1 carrying with it an obligation to deliver to private respondent, Maria Marlena Cosculluela y Belleza, one hundred piculs of sugar per crop year during her lifetime. The portions of the codicil, pertinent to the instant controversy, read:

FIRST

I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla, resident of 141 P. Villanueva Pasay City:

(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002(10942), which is registered in my name according to the records of the Register of Deeds of Negros Occidental.

(b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla.

xxx xxx xxx

FOURTH

(a) It is also my command, in this my addition (codicil), that should I die and Jorge Rabadilla shall have already received the ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002(10942), and also at the time that the lease of Balbinito Guanzon of the said lot shall expire, Jorge Rabadilla shall have the obligation until he dies, every year to give to Maria Marlina Coscolluela y Belleza, Seventeen (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies.

FIFTH

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002(10942), shall have the obligation to still give yearly, the sugar as specified in the Fourth paragraph of this testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year.

SIXTH

I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have left and bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina shall die, lastly should the buyer, lessee, or the mortgagee of this lot, not have respected my command in this my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter's heirs, and shall turn it over to my near descendants, 2 and the latter shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further command in this my addition (Codicil) that my heirs of this Lot No. 1392,

that they will obey and follow that should decide to sell, lease, mortgage, they cannot negotiate with others than my near descendants and my sister. 3

Pursuant to the above provisions of the codicil, ownership of Lot No. 1392 was transferred to Jorge Rabadilla and Transfer Certified of Title No. T-44498 was issued in his name.

Sometime in 1983, Jorge Rabadilla died, survived by his wife, Rufina, and their children Johnny, Aurora, Ofelia and Zenaida.

On 21 August 1989, on account of the failure of the heirs of Jorge Rabadilla to comply with the obligation under the codicil, private respondent filed an action, docketed Civil Case No. 5588, against the Rabadilla heirs before the Regional Trial Court, Branch 52, of Bacolod City for the reconveyance of Lot 1392 to the heirs of Aleja Belleza and the cancellation of Transfer Certificate of Title No. 44498 covering the property in the name of Jorge Rabadilla.

The trial court dismissed the complaint "without prejudice." 4 On appeal taken by private respondent to the Court of Appeals, the appellate court set aside the appealed decision and held:

Therefore, the evidence on record having established plaintiff-appellant's right to receive 100 piculs of sugar annually out of the produce of Lot No. 1392; defendants-appellees' obligation under Aleja Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-appellant; defendant-appellees' admitted non-compliance with said obligation since 1985; and, the punitive consequences enjoined by both codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in case of such non-compliance, this Court deems it proper to order the reconveyance of title over Lot No. 1392 from the estate of Aleja Belleza. However, plaintiff-appellant must institute separate proceedings to re-open Aleja Belleza's estate, secure the appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza's legal heirs on order to enforce her right, reversed to her by the codicil, to receive her legacy of 100 piculs of sugar per year out of the produce of Lot No. 1392 until she dies.

Accordingly, the decision appealed from its SET ASIDE and another one entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.

SO ORDERED. 5

Petitioner, in the instant petition for review, submits that the appellate court has erred in: (1) ordering the reversion of Lot 1392 to the estate of Aleja Belleza on the basis of paragraph six of the codicil, and (2) in ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview of Article 882 of the Civil Code. Additionally, he avers that respondent court has improvidently deviated from the sole issue raised which is the prematurity of the action before the court a quo. Upon the other hand, respondent would have this Court sustain the assailed decision of the Court of Appeals contending that the appellate court is completely justified in delving into the nature of the institution in the codicil, the same having a direct significance on the issue of whether or not the complaint before the trial court has been prematurely filed. Private respondent adds that the institution in question is modal within the context of Article 882 of the Civil Code which gives her the right her the right to seize the subject property.

I agree with my colleagues that "substitution" is not here apropos. Substitution is the appointment of another heir so that he may

enter into the inheritance in default of the heir originally instituted. 6 Substitution is simple when the testator designates one or more persons to substitute the heir or heirs instituted in case the latter should die before him, or should not wish, or should be incapacitated to accept the inheritance, and a substitution without a statement of the cases to which it refers shall compromise all

said three cases. 7 There is no simple substitution that takes place where the heir originally instituted is able to succeed. 8 Fideicommissary substitution, on the other hand, occurs when the fiduciary or first heir instituted us entrusted with the obligation

to preserve and to transmit to a second heir the whole or part of the inheritance. 9 Every fideicommissary substitution should be

expressly made in order that it may be valid. 10 The term "fideicommissary substitution" need not, however, be used in the will; it is enough that there is a clear and unequivocal statement that one shall usufructuary or other rights, short of naked ownership or

title, over certain property of the testator with the obligation to preserve the property and to transmit it to a second heir. 11 It is essential for the validity of a fideicommissary substitution that both heirs are living and qualified to succeed at the time of death by the testator and that the substitute does not go beyond one degree from the heir originally instituted. The term "one degree" has been the subject of varies interpretation. One view is to the effect that the term means one transfer, citing the Supreme Tribunal of

Spain and as advocated by eminent civilists as Justices J.B.L. Reyes, R. Puno, E. Caguioa, and D. Jurado. In Ramirez vs. Ramirez, 12 decided on 15 February 1982, the Court, however, adopted the literal view that "one decree" means relationship or generation as so advanced by equally eminent writers Dr. A. Padilla, Justice E. Paras and Dr. A. Tolentino. In the subsequent case of the Testate

Estate case of Fr. Aranas, 13 however, the Court upheld the usufructuary right of the Roman Catholic Church under a legacy that now renders doubtful the continued validity of the Ramirez doctrine.

The institution of Jorge Rabadilla in the Belleza codicil partook the nature of an institution sub modo, rather than one of substitution, governed by the provisions of Article 882 of the Civil Code. This law provides:

Art. 882. The statement of the object of the institution, or the application of the property, left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention.

That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation. (Emphasis supplied)

A mode is distinguished from a condition contemplated in the rules on succession in that the latter dictates the efficacy, either in a suspensive or resolutory manner, of a testamentary disposition while the former obligates the instituted heir to comply with the mandate made by the testator but does not prevent the heir from at once claiming the inheritance provided he gives a security to ensure compliance with the will of the testator and the return of the thing received together with its fruits and interest, "should (the heir) disregarding this obligation." The obligation imposed upon the heir or legatee is deemed not to be a condition for his entry forthwith into the inheritance unless a contrary intention of the testator is evident. In case of doubt, the institution is considered

modal, rather than conditional. Much of the variance in the legal effects of two classes, 14 however, is now practically theoretical

and merely conceptual. Under the old Civil Code 15 an instuticion sub modo could be said to be more akin to an institution sub deminstratione, or an expression of a wish or suggestion of the testator that did not have any real obligatory force, that matter being left instead to the discretion of the heir, i.e., whether to abide by it or not. The amendatory provisions of the new Civil Code now hardly differentiates between the principal effect of the non-compliance with the mode and that of the occurrence of a resolutory expressed in the will. In both instances, the property must be returned to the estate of the decedent to then pass on under the rules on intestacy.1âwphi1.nêt

ACCORDINGLY, I also vote for the dismissal of the instant petition.

G.R. No. 127827            March 5, 2003

ELEUTERIO, ANATALIA, JOSELITO, ROGELIO, EVANGELINE, NOEL, GUILLERMO, LORENZO, DOMINGO, AMADO, and VICTORIA, all surnamed LOPEZ, petitioners, vs.THE HONORABLE COURT OF APPEALS, and spouses MARCELINO and CRISTINA S. LOPEZ, FELISA LOPEZ and RAMON CORTEZ, ZOILO LOPEZ, LEONARDO LOPEZ and LEONILA LOPEZ and spouses ROGELIO M. AMURAO and NOAMI T. AMURAO, respondents.

PUNO, J.:

Before us is a petition for review on certiorari of the Decision1 dated September 30, 1996 of the Court of Appeals in C.A.-G.R. CV No. 43837, which affirmed with modification the Decision dated March 30, 1993 of the Regional Trial Court of Antipolo, Rizal, Branch 71, in Civil Case No. 677-A.

The evidence shows that in 1920, Fermin Lopez occupied, possessed, and declared for taxation purposes a parcel of public land containing an area of 19 hectares, 48 ares, 88 centares, more or less, situated in Makatubong, Barrio De la Paz, Antipolo, Rizal. He filed a homestead application over the land, but his application was not acted upon until his death in 1934. When he died, he was survived by the following: (1) Hermogenes Lopez, now deceased, leaving his children, respondents Marcelino, Felisa, Zoilo, and Leonardo, all surnamed Lopez, as his heirs; (2) petitioner Eleuterio Lopez; (3) Juan Lopez, now deceased, leaving his children, Guillermo, Lorenzo, Domingo, Amado, and Victoria, all surnamed Lopez, as his heirs;2 and (4) Nazario, now deceased, leaving his wife, petitioner Anatalia, and children, petitioners Joselito, Rogelio, Evangeline and Noel, all surnamed Lopez, as his heirs.

Following Fermin's death, Hermogenes, being the eldest child, worked and introduced additional improvements on the land. In 1936, he inquired from the Bureau of Lands the status of his late father's application for a homestead grant. An official3 of the bureau informed him that the application remained unacted upon and suggested that he file a new application. Following the suggestion, Hermogenes filed a homestead application in his own name, which was docketed as No. 138612. After ascertaining that the land was free from claim of any private person, the Bureau approved his application. In 1939, Hermogenes submitted his final proof of compliance with the residency and cultivation requirements of the law. The land was surveyed and a resulting plan, H-138612, was approved by the Director of Lands, who thereafter ordered the issuance of the homestead patent. The patent was later transmitted to the Register of Deeds of Rizal for transcription and issuance of the corresponding certificate of title in his name.

Unaware that he has been awarded a homestead patent, Hermogenes executed on February 11, 1956 an Extra-judicial Partition of the disputed land with his brothers — petitioner Eleuterio, Juan, and Nazario. On September 12, 1958, however, the three executed a Deed of Absolute Sale of their share in the land in favor of Hermogenes. The succeeding year, Hermogenes applied with the Land Registration Commission for the registration of the property in his name. This was docketed as LRC Case No. 2531. To his surprise, he found that the land has been registered in the names of Fernando Gorospe, Salvador de Tagle, Rosario de Tagle, Beatriz de Suzuarrequi and Eduardo Santos, who collectively opposed his application.

In December 1959, Hermogenes filed a complaint for the annulment of the free patent and title against these persons before the Court of First Instance of Rizal,4 docketed as Civil Case No. 5957. Some of the defendants moved for its dismissal alleging that Hermogenes was not a real party in interest since he previously sold his right to the land to one Ambrocio Aguilar on July 31, 1959.

The case was dismissed.

Aguilar instituted on November 18, 1976 a new civil action before the CFI of Rizal,5 docketed as Civil Case No. 24873. It was similar to Civil Case No. 5957 except for the change in plaintiff and the addition of the Bureau of Lands as co-defendant. On April 15, 1982, the lower court declared Aguilar as the absolute owner of the land and OCT No. 537 and all subsequent certificates of title emanating therefrom as void ab initio. This decision was affirmed in toto by

the Court of Appeals. In G.R. No. 90380, we affirmed the decision of the appellate court in a decision promulgated on September 13, 1990.6

After the April 15, 1982 decision of the CFI, and while the case was on appeal, respondent Lopezes, as heirs of Hermogenes (who died on August 20, 1982), filed a complaint against Aguilar before the RTC of Antipolo, Rizal. The July 14, 1984 complaint was for the cancellation of the deed of sale executed by Hermogenes in favor of Aguilar dated July 31, 1959 and/or reconveyance. It was docketed as Civil Case No. 463-A. On February 5, 1985, the lower court declared the deed of absolute sale null and void ab initio and the respondents as the true and absolute owner of the disputed land. Aguilar sought relief with the Court of Appeals, which affirmed in toto the decision of the RTC in a Decision promulgated on August 18, 1987.7 In G.R. No. 81092, we denied Aguilar's petition for review in a resolution dated April 6, 1998 for having been filed late.

On April 25, 1985, after the RTC of Antipolo rendered its February 5, 1987 decision in Civil Case No. 463-A and pending its appeal, respondent Lopezes sold a large portion of the disputed property to respondent spouses Amurao.

On May 31, 1985, petitioners Eleuterio, Anatalia, Joselito, Rogelio, Evangeline and Noel, all heirs of Nazario Lopez, along with Guillermo, Lorenzo, Domingo, Amado, and Victoria, all heirs of Juan Lopez, instituted the present action against the respondents before the RTC of Antipolo, Rizal, Branch 71, docketed as Civil Case No. 677-A. They prayed, among others, that they be declared co-owners of the property subject matter hereof and that private respondents be ordered to reconvey to them 3/5 thereof as its co-owners, or in the alternative, to pay its value. On June 26, 1985, respondents filed their Answer with Compulsory Counterclaim alleging that they are the absolute owners of the contested land on the basis of the homestead grant to their predecessor-in-interest, Hermogenes.

After the pre-trial on November 27, 1987, trial ensued. In the August 28, 1986 hearing petitioners' counsel failed to appear, causing the case to be dismissed. The dismissal, however, was reconsidered upon motion of petitioners' counsel, and the case was again set for hearing. In the scheduled hearing of October 17, 1986, counsel for respondent was absent. Upon proper motion, petitioners were allowed to present their evidence ex-parte on December 5, 1986. Following the presentation of ex-parte evidence, the case was deemed submitted for resolution.

On June 25, 1987, the court a quo rendered a decision in favor of the petitioners ordering the division of the disputed lot in equal portions among the four children of Fermin or their heirs. Respondents failed to appeal the decision but on September 10, 1987, they filed a petition for relief from judgment, alleging that accident/excusable negligence prevented them from attending the trial and that they have a good, substantial and meritorious defense. On December 28, 1989, the court a quo set aside its decision dated June 25, 1987 and ordered a pre-trial conference.

On January 30, 1990, respondents filed a Motion to Admit Amended Answer alleging for the first time that petitioners have already sold to Hermogenes their shares in the contested property: Petitioners opposed the motion on the ground that the amendments constituted substantial alteration of the theory of the defense. On February 13, 1990, the court a quo allowed

respondents to amend the answer. When their motion for reconsideration was denied, petitioners elevated the issue directly to this court via a Petition for Certiorari. On April 25, 1990, we denied the petition for failure to comply with the requirements of Circular 1-88, with a further pronouncement that, "besides, even if the petition were admitted, the same would still be dismissed as the Court finds that no grave abuse of discretion was committed by public respondent." Trial on the merits once more proceeded in the court a quo.

While the case was on trial, complainants therein Guillermo, Lorenzo, Domingo, Amado and Victoria, all children of Juan Lopez, entered into a compromise agreement with the respondent Lopezes, heirs of Hermogenes, recognizing the latter's ownership and possession of the property subject of the case. They confirmed the sale made by their father Juan to Hermogenes. On July 20, 1992, the court a quo rendered a partial decision approving the compromise agreement.8

On March 30, 1993, the court a quo rendered a Decision dismissing the complaint, the dispositive portion of which states:

"WHEREFORE, judgment is hereby rendered:

1. Ordering the dismissal of the case;

2. Declaring Hermogenes Lopez as the exclusive owner of the property in question;

3. Ordering the plaintiffs to pay the defendants the amount of P20,000.00 as attorney's fees; and

4. Ordering plaintiffs to pay the costs.

SO ORDERED."9

Feeling aggrieved, petitioners appealed to the Court of Appeals, which affirmed with modification the above Decision, thus:

"Finally, We have to delete and disallow the award of attorney's fees for want of factual and legal premise in the text of the appealed Decision.

IN VIEW OF ALL THE FOREGOING, the decision appealed from is AFFIRMED with a modification that the award of attorney's fees is deleted. Costs against the appellants."10

Hence, the present course of action where petitioners contend:

"I. The Honorable Court of Appeals in ruling that the propriety of the grant of respondents' petition for relief from judgment has been rendered moot is not in accord with the decisions of this Honorable Supreme Court.

II. The Court of Appeals' ruling that Fermin Lopez, the common predecessor-in-interest, was not entitled to the grant of the homestead patent, hence petitioners are not co-owners

of the disputed property is not in accord with the evidence and the decisions of this Honorable Supreme Court.

III. The Court of Appeals' ruling that the statement or declarations in the extra-judicial partition (Exh. N); the special power of attorney (Exh. O); and the letter dated January 11, 1984 (Exh. Q) were based on a wrong assumption that the property is owned by their common predecessor-in-interest — is not in accord with the evidence and decisions of this Honorable Supreme Court.

IV. The Court of Appeals committed reversible error in ruling that the forged absolute deed of sale dated September 12, 1958 has no bearing on the respondents' claim over the disputed property.

V. The Court of Appeals in not ruling that the remedy of partition is available to the petitioners is not in accord with law.

VI. The Court of Appeals' ruling that laches applies to the herein (sic) who are close relatives is not in accord with the decisions of this Honorable Supreme Court."11

First, the procedural issue. Petitioners contend that the grant of relief from judgment is erroneous as the respondents did not substantiate their allegation of fraud, accident, mistake, or excusable negligence which unjustly deprived them of a hearing. They add that while respondents had ample opportunity to avail of other remedies, such as a motion for reconsideration or an appeal, from the time they received a copy of the decision on July 10, 1987, yet they did not do so.

Rule 38 of the 1997 Rules of Civil Procedure governs the petition for relief from judgment. Sections 2 and 3 of the Rules provide:

"Section 2. Petition for relief from judgment, order or other proceedings. — When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake or excusable negligence, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside."12

"Section 3. Time for filing petition; contents and verification. — A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60) days after the petitioner learns of the judgment, final order or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered or such proceeding was taken; and must be accompanied with affidavits showing the fraud, accident, mistake or excusable negligence relied upon, and the facts constituting the petitioners' good and substantial cause of action or defense, as the case may be."13

We find that respondents were deprived of their right to a hearing due to accident. In the October 17, 1986 hearing, their counsel was absent due to asthma, which disabled him and made it difficult for him to talk. Similarly, when petitioners presented their evidence ex-parte on

December 5, 1986, the counsel for the respondents again failed to appear as he experienced another severe asthma attack. On both occasions, his absence is clearly excusable.

Nor is there any doubt that respondents were able to show that they have a good and substantial defense. They attached to their affidavit of merit the following documents:14 the decision of the Court of First Instance of Pasig in Civil Case No. 5957 entitled "Hermogenes Lopez v. Fernando Gorospe, et al."; the decision also of the Pasig CFI, in Civil Case No. 24873, entitled "Ambrocio Aguilar v. Fernando Gorospe"; the decisions of the lower and appellate courts in the case of Marcelino Lopez, et al. v. Ambrocio Aguilar"; the decision of the Municipal Trial Court of Antipolo in the case of "Ambrocio Aguilar v. Santos"; and the Deed of Sale executed by and between Hermogenes and his brothers — petitioner Eleuterio, Nazario and Juan. The ruling in the foregoing cases recognized the absolute ownership and possession of respondents' predecessor-in-interest, Hermogenes Lopez. The deed showed that petitioner Eleuterio, Juan and Nazario sold their rights and interests in the contested lot to their brother Hermogenes.

Time and again, we have stressed that the rules of procedure are not to be applied in a very strict and technical sense. The rules of procedure are used only to help secure and not override substantial justice.15 If a stringent application of the rules would hinder rather than serve the demands of substantial justice, the former must yield to the latter.16

We now address the substantive issues. The most pivotal is the petitioners' contention that the appellate court erred in holding that they are not co-owners of the disputed property. They argue that Fermin, their predecessor-in-interest, has complied with all the requirements of the Public Land Act pertaining to a homestead grant, and is therefore entitled to a patent as a matter of right. They claim that Fermin filed a homestead application over the land, cultivated at least one-fifth of it, and resided on it for at least one year. Upon his death, they argue that they became its co-owners through succession.

We do not agree. Homestead settlement is one of the modes by which public lands suitable for agricultural purposes are disposed of.17 Its object is to provide a home for each citizen of the state, where his family may shelter and live beyond the reach of financial misfortune, and to inculcate in individuals those feelings of independence which are essential to the maintenance of free institutions.18

The record is bereft of any evidence as to when Fermin exactly filed his homestead application over the lot in controversy, but it must have been filed after 1920, the year he first occupied and possessed the land, and before 1934, the year he died. During this period, Act No. 2874 was the governing law.19 Section 12 thereof provides:

"Sec. 12. Any citizen of the Philippine Islands or of the United States, over the age of eighteen years, or the head of a family, who does not own more than twenty-four hectares of land in said Islands or has not had any benefit of any gratuitous allotment of more than twenty-four hectares of land since the occupation of the Philippine Islands by the United States, may enter a homestead of not exceeding twenty-four hectares of agricultural land of the public domain."20

A person who is legally qualified has to file his application for a homestead patent with the Bureau of Lands. If in order, the application shall be approved by the Director. The applicant will be authorized to enter the land upon payment of an entry fee of five pesos.21 Within six months after approval of the application, the applicant has to improve and cultivate the land.22 He must cultivate at least one-fifth of the land for a period of not less than two years nor more than five years from the date of approval of the application.23 He must also continuously reside in the same municipality where the homestead is located, or in an adjacent municipality, for at least one year.24 He must finally present his final proof to the Bureau of Lands that he has complied with the cultivation and residency requirements.25

It bears emphasis that Act No. 2874 requires that for an application to be valid, it must be approved by the Director of Lands. This is expressly mandated by Section 13 of the law, viz:

"Sec. 13. Upon filing of an application for a homestead, the Director of Lands, if he finds that the application should be approved, shall do so and authorize the applicant to take possession of the land upon the payment of ten pesos, Philippine currency, as entry fee. Within six months from and after the date of the approval of the application, the applicant shall begin to work the homestead, otherwise he shall lose his prior right to the land."26 (emphasis supplied)

This provision gives the Director of Lands discretion to approve or deny an application. He is not a mere automaton who must perfunctorily approve an application upon its filing. He is tasked to satisfy himself that, among others, the application papers meet the requirements of the law, the land is a disposable public land, and the land is not subject of a previous valid application.27 Only when he finds the application sufficient in form and substance should he favorably act on it. Otherwise, he should deny it.

The application of Fermin unfortunately remained unacted upon up to the time of his death. It was neither approved nor denied by the Director, as the Bureau failed to process it. Hence, he could not have acquired any vested rights as a homestead applicant over the property because his application was never acted upon.

Reliance on the cases of Davao Grains, Inc. v. IAC28 and Balboa v. Farrales29 by the petitioners is misplaced. Those two had different factual backdrops. In both Davao Grains, Inc. and Balboa, the disputed lots were subject of valid applications for public land grants. The valid applications became our bases for ruling that once an applicant has complied with the cultivation, residency and other requirements of Act No. 2874, which entitle him to a patent for a particular tract of land, "he is deemed to have already acquired by operation of law not only a right to a grant, but a grant of the government for it is not necessary that a certificate of title be issued in order that said grant may be sanctioned by the courts — an application therefor being sufficient under the provisions of Section 47 of Act No. 2874."30

A valid application is sadly lacking in the case of Fermin. This circumstance prevented him from acquiring any vested right over the land and fully owning it at the time of his death. Conformably, his heirs did not inherit any property right from him.31

Had the application of Fermin been duly approved, his heirs would have succeeded him in his rights and obligations with respect to the land he has applied for. Sec. 103 of Act No. 2874 covers such a contingency, thus:

"Sec. 103. If at any time the applicant or grantee shall die before the issuance of the patent or the final grant of the land, or during the life of the lease, or while the applicant or grantee still has obligations pending towards the Government, in accordance with this Act, he shall be succeeded in his rights and obligations with respect to the land applied for or granted or leased under this Act by his widow, who shall be entitled to have issued to her the patent or final concession if she shows that she has complied with the requirement therefore, or in case he has left no widow or the widow refuses the succession, he shall be succeeded by the person or persons who are his heirs by law and who shall be subrogated in all his rights and obligations for the purposes of this Act."32

The failure of the Bureau of Lands to act on the application of Fermin up to the time of his death, however, prevented his heirs to be subrogated in all his rights and obligations with respect to the land applied for.

Perforce, at the time Hermogenes applied for a homestead grant over the disputed property, it was still part of alienable public land. As he applied for it in his own name, his application inures to his sole benefit. After complying with the cultivation and residency requirements, he became a grantee of a homestead patent over it, thereby making him its absolute and exclusive owner.33

Petitioners, however, claim that Hermogenes and his heirs, respondent Lopezes, recognized their rights as co-owners of the disputed property, as shown by the following documents: an Extra-judicial Partition of the real property executed by Hermogenes and his brothers — petitioner Eleuterio, Nazario, and Juan ;34 a Special Power of Attorney to sell the lot in question executed by petitioner Eleuterio, Nazario and Juan in favor of Hermogenes;35 and a letter dated January 16, 1984, which contains the statement that petitioners are co-heirs of the property, and which respondent Marcelino Lopez signed.36 Petitioners argue that respondents are precluded from denying the contents of these documents based on the principle of estoppel by deed. They add that while only Hermogenes applied for a homestead grant, nonetheless, there was an agreement among the brothers that his application was for and in behalf of all them.

These arguments fail to impress. Estoppel by deed is a bar which precludes one party from asserting as against the other party and his privies any right or title in derogation of the deed, or from denying the truth of any material facts asserted in it.37 The principle is that when a man has entered into a solemn engagement by deed, he shall not be permitted to deny any matter which he has asserted therein, for a deed is a solemn act to any part of which the law gives effect as the deliberate admission of the maker.38 It promotes the judicious policy of making certain formal documents final and conclusive of their contents.39

A void deed, however, will not work, and may not be the basis of, an estoppel.40 Covenants do not work an estoppel unless the deed in which they are contained is itself a valid instrument.41 In the case at bar, the deed and instruments at issue were void. The extra-judicial partition and the special power of attorney to sell did not have an object certain, which is the subject matter of the

deed. The disputed land cannot be their object because petitioners do not have any right or interest over it. They are not its co-owners as it is owned absolutely by Hermogenes. Well to note, the two instruments were executed on the mistaken assumption that Hermogenes and his brothers inherited the property from Fermin. Moreover, at the time the documents were made, Hermogenes was unaware that he was granted a homestead patent. As correctly ruled by the appellate court, estoppel does not operate to confer property rights where there are none.42

Apropos the letter dated January 16, 1984,43 suffice it to state that we agree with the trial court's pronouncement that respondent Marcelino Lopez signed it merely "to gain the favors of his uncle Eleuterio Lopez and in no way does it constitute an admission that the plaintiffs (petitioners herein) are co-owners of the property."44 Under these circumstances, respondents cannot be held guilty of estoppel by deed.

The claim of the petitioners that Hermogenes filed the application in behalf of all the heirs of Fermin pursuant to a previous agreement does not hold water. There is paucity of evidence in support of this allegation. Aside from the uncorroborated testimony of petitioner Eleuterio, petitioners were not able to present other proof of the agreement. Besides, we cannot easily give credence to such a claim considering that under Act No. 2874, an applicant must personally comply with the legal requirements for a homestead grant. He must possess the necessary qualifications. He must cultivate the land and reside on it himself. It would be a circumvention of the law if an individual were permitted to apply "in behalf of another," as the latter may be disqualified or might not comply with the residency and cultivation requirements.

In respect of the fourth assigned error, we find that petitioners' attack on the authenticity and validity of the Deed of Absolute Sale dated September 12, 1958, where petitioner Eleuterio, Juan, and Nazario allegedly sold their share in the disputed property to Hermogenes, bereft of merit. It did not change the fact that no co-ownership existed among Hermogenes and his brothers. Hermogenes is the absolute owner of the disputed property just as his brothers do not own any share in it. Hence, they cannot validly sell anything to Hermogenes by virtue of the deed.

Prescinding from the lack of co-ownership, petitioners' argument that they are entitled to have the land partition must be rejected. Partition, in general, is the separation, division and assignment of a thing held in common among those to whom it may belong.45 The purpose of partition is to put an end to co-ownership.46 It seeks a severance of the individual interests of each co-owner, vesting in each a sole estate in specific property and giving to each one a right to enjoy his estate without supervision or interference from the other.47 Not being co-owners of the disputed lot, petitioners cannot demand its partition. They do not have any interest or share in the property upon which they can base their demand to have it divided.

Petitioners' last argument that they are not guilty of laches in enforcing their rights to the property is irrelevant. Laches is the negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it has abandoned it or declined to assert it.48 It does not involve mere lapse or passage of time, but is principally an impediment to the assertion or enforcement of a right, which has become under the circumstances inequitable or unfair to permit.49 Petitioners' insistence that they are not negligent in asserting their right over

the property proceeds from the wrong premise that they have a right to enforce over the disputed property as co-owners. There can be no delay in asserting a right where the right does not exist.

IN VIEW WHEREOF, finding no cogent reason to reverse the impugned Decision of the Court of Appeals, the petition is DENIED for lack of merit.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 144294            March 11, 2003

SOLEDAD CHANLIONGCO RAMOS, FRANCISCO D. CHANLIONGCO, ADELBERTO D. CHANLIONGCO, ARMANDO D. CHANLIONGCO and FLORENCIO D. CHANLIONGCO, petitioners, vs.TERESITA D. RAMOS, Spouses TERESITA and EDMUNDO S. MUYOT, Spouses VEDASTA and FLORENCIO M. DATO, LORETO MUYOT, Spouses TERESITA and ELMER SOLIS, LICERIA TORRES, Spouses CORAZON and VICENTE MACATUNGAL, Spouses PRECILLA and CRISOSTOMO MUYOT, and Spouses CARIDAD and SALVADOR PINGOL, respondents.

PANGANIBAN, J.:

Well-settled is the rule that a final judgment is immutable and unalterable. The only exceptions to this rule are (1) the correction of clerical errors, (2) the so-called nunc pro tunc entries which cause no prejudice to any party, and (3) void judgments.

The Case

Before us is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court, seeking to set aside the July 31, 2000 Resolution2 of the Court of Appeals (CA) in CA-GR CV No. 29507 which denied petitioners’ Motion to Set Aside the CA Decision3 dated September 28, 1995. The assailed Resolution disposed as follows:

"Finding the opposition of [respondents] to be well-taken, the [Court hereby DENIES the Motion."4

The Facts

Petitioners are children of the late Paulino V. Chanliongco Jr., who was the co-owner of a parcel of land known as Lot No. 2-G of Subdivision Plan SWO No. 7308. Situated in Tondo, Manila, it was co-owned by him, his sister Narcisa, and his brothers Mario and Antonio. By virtue of a Special Power of Attorney executed by the co-owners in favor of Narcisa, her daughter Adoracion C. Mendoza had sold the lot to herein respondents on different days in September 1986. Because of conflict among the heirs of the co-owners as to the validity of the sale, respondents filed with the Regional Trial Court (RTC)5 a Complaint6 for interpleader to resolve the various ownership claims.

The RTC upheld the sale insofar as the share of Narcisa was concerned. It ruled that Adoracion had no authority to sell the shares of the other co-owners, because the Special Power of Attorney had been executed in favor only of her mother, Narcisa.

On appeal, the CA modified the ruling of the RTC. It held that while there was no Special Power of Attorney in favor of Adoracion, the sale was nonetheless valid, because she had been authorized by her mother to be the latter’s sub-agent. There was thus no need to execute another special power of attorney in her favor as sub-agent. This CA Decision was not appealed, became final and was entered in favor of respondents on August 8, 1996.7

On April 10, 1999, petitioners filed with the CA a Motion to Set Aside the Decision. They contended that they had not been served a copy of either the Complaint or the summons. Neither had they been impleaded as parties to the case in the RTC. As it was, they argued, the CA Decision should be set aside because it adversely affected their respective shares in the property without due process.

In denying the Motion of petitioners, the CA cited the grounds raised in respondents’ Opposition: (a) the Motion was not allowed as a remedy under the 1997 Rules of Civil Procedure; (b) the Decision sought to be set aside had long become final and executory; (c) the movants did not have any legal standing; and (d) the Motion was purely dilatory and without merit.8

Hence, this Petition.9

The Issue

In their Memorandum, petitioners raise this sole issue for the Court’s consideration:

"x x x [W]hether the Court of Appeals erred in denying petitioners’ Motion and allowing its Decision dated September 25, 1995 to take its course, inspite of its knowledge that the lower court did not acquire jurisdiction over the person of petitioners and passing petitioners property in favor of respondents, hence without due process of law."10

The Court’s Ruling

The Petition is unmeritorious.

Main Issue:Entitlement to Summons

It is well settled that a decision that has acquired finality becomes immutable and unalterable. A final judgment may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact or law;11 and whether it will be made by the court that rendered it or by the highest court in the land.12 The only exceptions to this rule are the correction of (1) clerical errors, (2) the so-called nunc pro tunc entries which cause no prejudice to any party, and (3) void judgments.13 To determine whether the CA Decision of September 28, 1995 is void, the failure to implead and to serve summons upon petitioners will now be addressed.14

To be able to rule on this point, the Court needs to determine whether the action is in personam, in rem or quasi in rem. The rules on the service of summons differ depending on the nature of the action.

An action in personam is lodged against a person based on personal liability; an action in rem is directed against the thing itself instead of the person;15 while an action quasi in rem names a person as defendant, but its object is to subject that person’s interest in a property to a corresponding lien or obligation.16

The Complaint filed by respondents with the RTC called for an interpleader to determine the ownership of the real property in question.17 Specifically, it forced persons claiming an interest in the land to settle the dispute among themselves as to which of them owned the property. Essentially, it sought to resolve the ownership of the land and was not directed against the personal liability of any particular person. It was therefore a real action, because it affected title to or possession of real property.18 As such, the Complaint was brought against the deceased registered co-owners: Narcisa, Mario, Paulino and Antonio Chanliongco, as represented by their respective estates.

Clearly, petitioners were not the registered owners of the land, but represented merely an inchoate interest thereto as heirs of Paulino. They had no standing in court with respect to actions over a property of the estate, because the latter was represented by an executor or administrator.19

Thus, there was no need to implead them as defendants in the case, inasmuch as the estates of the deceased co-owners had already been made parties.

Furthermore, at the time the Complaint was filed, the 1964 Rules of Court were still in effect. Under the old Rules, specifically Section 3 of Rule 3,20 an executor or administrator may sue or be sued without joining the party for whose benefit the action is prosecuted or defended.21 The present rule,22 however, requires the joinder of the beneficiary or the party for whose benefit the action is brought. Under the former Rules, an executor or administrator is allowed to either sue or be sued alone in that capacity. In the present case, it was the estate of petitioners’ father Paulino Chanliongco, as represented by Sebrio Tan Quiming and Associates, that was included as defendant23 and served summons.24 As it was, there was no need to include petitioners as defendants. Not being parties, they were not entitled to be served summons.

Petitioner Florencio D. Chanliongco, on the other hand, was impleaded in the Complaint, but not served summons. However, the service of summons upon the estate of his deceased father was sufficient, as the estate appeared for and on behalf of all the beneficiaries and the heirs of Paulino Chanliongco, including Florencio.

We also note that the counsel of petitioners, Atty. Felino V. Quiming Jr., is a partner of the law firm that represented the estate of the deceased father. Hence, it can reasonably be expected that the service upon the law firm was sufficient notice to all the beneficiaries of the estate, including Petitioner Florencio D. Chanliongco.

WHEREFORE, the Petition is hereby DENIED and the assailed Resolution AFFIRMED. Costs against petitioners.

SO ORDERED.

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

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

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

 

ESGUERRA, J.:

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

The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805 and 806 of the new Civil

Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public.

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

It is said that there are, practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by law signed as certifying to an acknowledgment of the testator's signature under oath rather than as attesting the execution of the instrument.

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

Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attesting instrumental witnesses. For them he would be interested sustaining the validity of the will as it directly involves him and the validity of his own act. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not as acknowledging witnesses. He the notary public acted not only as attesting witness but also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:

ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will or file another with the office of the Clerk of Court. [Emphasis supplied]

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

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.

Cost against the appellee.

G.R. No. L-51546 January 28, 1980

JOSE ANTONIO GABUCAN, petitioner-appellant, vs.HON. JUDGE LUIS D. MANTA JOSEFA G. VDA. DE YSALINA and NELDA G. ENCLONAR, respondents-appellees.

Ignacio A. Calingin for appellant.

 

AQUINO, J.:

This case is about the dismissal of a petition for the probate of a notarial will on the ground that it does not bear a thirty-centavo documentary stamp.

The Court of First Instance of Camiguin in its "decision" of December 28, 1977 in Special Proceeding No. 41 for the probate of the will of the late Rogaciano Gabucan, dismissed the proceeding (erroneously characterizes as an "action")

The proceeding was dismissed because the requisite documentary stamp was not affixed to the notarial acknowledgment in the will and, hence, according to respondent Judge, it was not admissible in evidence, citing section 238 of the Tax Code, now section 250 of the 1977 Tax Code, which reads:

SEC. 238. Effect of failure to stamp taxable document. — An instrument, document, or paper which is required by law to be stamped and which has been signed, issued, accepted, or transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court until the requisite stamp or stamps shall have been affixed thereto and cancelled.

No notary public or other officer authorized to administer oaths shall add his jurat or acknowledgment to any document subject to documentary stamp tax unless the proper documentary stamps are affixed thereto and cancelled.

The probate court assumed that the notarial acknowledgment of the said will is subject to the thirty-centavo documentary stamp tax fixed in section 225 of the Tax Code, now section 237 of the 1977 Tax Code.

Respondent Judge refused to reconsider the dismissal in spite of petitioner's manifestation that he had already attached the documentary stamp to the original of the will. (See Mahilum vs. Court of Appeals, 64 O. G. 4017, 17 SCRA 482, 486.)

The case was brought to this Court by means of a petition for mandamus to compel the lower court to allow petitioner's appeal from its decision. In this Court's resolution of January 21, 1980 the petition for mandamus was treated in the interest of substantial and speedy justice as an appeal under Republic Act No. 5440 as well as a special civil action of certiorari under Rule 65 of the Rules of Court.

We hold that the lower court manifestly erred in declaring that, because no documentary stamp was affixed to the will, there was "no will and testament to probate" and, consequently, the alleged "action must of necessity be dismissed".

What the probate court should have done was to require the petitioner or proponent to affix the requisite thirty-centavo documentary stamp to the notarial acknowledgment of the will which is the taxable portion of that document.

That procedure may be implied from the provision of section 238 that the non-admissibility of the document, which does not bear the requisite documentary stamp,

subsists only "until the requisite stamp or stamps shall have been affixed thereto and cancelled."

Thus, it was held that the documentary stamp may be affixed at the time the taxable document is presented in evidence (Del Castillo vs. Madrilena 49 Phil. 749). If the promissory note does not bear a documentary stamp, the court should have allowed plaintiff's tender of a stamp to supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. 67, 71. Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, that the lack of the documentary stamp on a document does not invalidate such document. See Cia. General de Tabacos vs. Jeanjaquet 12 Phil. 195, 201-2 and Delgado and Figueroa vs. Amenabar 16 Phil. 403, 405-6.)

WHEREFORE, the lower court's dismissal of the petition for probate is reversed and set aside. It is directed to decide the case on the merits in the light of the parties' evidence. No costs.

SO ORDERED.

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

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee, vs.DOÑA MATEA LEDESMA, oppositor-appellant.

Fulgencio Vega and Felix D. Bacabac for appellant.Benjamin H. Tirot for appellee.

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

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

Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and that the dispositions were procured through undue influence. These grounds were abandoned at the hearing in the court below, where the issue was concentrated into three specific questions: (1) whether the testament of 1950 was executed by the testatrix in the presence of the instrumental witnesses; (2) whether the acknowledgment clause was signed and the notarial seal

affixed by the notary without the presence of the testatrix and the witnesses; and (3) if so, whether the codicil was thereby rendered invalid and ineffective. These questions are the same ones presented to us for resolution.

The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao and Vidal Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they saw and heard Vicente Yap (one of the witnesses to the will) inform the deceased that he had brought the "testamento" and urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go, because she was not feeling well; and that upon Yap's insistence that the will had to be signed in the attorney's office and not elsewhere, the deceased took the paper and signed it in the presence of Yap alone, and returned it with the statement that no one would question it because the property involved was exclusively hers.

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

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

evidence that those terms are of common use even in the vernacular, and that the deceased was a woman of wide business interests.

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

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

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

G.R. No. L-36033 November 5, 1982 IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, (deceased): APOLONIO TABOADA, petitioner, vs.HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III, Maasin), respondent.

Erasmo M. Diola counsel for petition.

Hon. Avelino S. Rosal in his own behalf.

 

GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied the probate of the will, the motion for reconsideration and the motion for appointment of a special administrator.

In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages. The first page contains the entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses. The second page which contains the attestation clause and the acknowledgment is signed at the end of the attestation clause by the three (3) attesting witnesses and at the left hand margin by the testatrix.

Since no opposition was filed after the petitioner's compliance with the requirement of publication, the trial court commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its genuineness and due execution.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, the petitioner was also required to submit the names of the intestate heirs with their corresponding addresses so that they could be properly notified and could intervene in the summary settlement of the estate.

Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion, ex parte praying for a thirty-day period within which to deliberate on any step to be taken as a result of the disallowance of the will. He also asked that the ten-day period required by the court to submit the names of intestate heirs with their addresses be held in abeyance.

The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion together with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said motions or incidents were still pending resolution when

respondent Judge Avelino S. Rosal assumed the position of presiding judge of the respondent court.

Meanwhile, the petitioner filed a motion for the appointment of special administrator.

Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion filed ex parte. In the same order of denial, the motion for the appointment of special administrator was likewise denied because of the petitioner's failure to comply with the order requiring him to submit the names of' the intestate heirs and their addresses.

The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix and of one another?

Article 805 of the Civil Code provides:

Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the lacier witnesses and signed the will and the pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to the witnesses, it shall be interpreted to them.

The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid, it is not enough that only the testatrix signs at the "end" but an the three subscribing witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one another because the attesting witnesses to a will attest not merely the will itself but also the signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is found, at the left hand margin of that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or a matter of absolute necessity for the extrinsic validity of the wig that the signatures of the subscribing witnesses should be specifically located

at the end of the wig after the signature of the testatrix. He contends that it would be absurd that the legislature intended to place so heavy an import on the space or particular location where the signatures are to be found as long as this space or particular location wherein the signatures are found is consistent with good faith and the honest frailties of human nature.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by the testator's name written by another person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

It must be noted that the law uses the terms attested and subscribed Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are, done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of Identification of such paper as the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was subscribed in a manner which fully satisfies the purpose of Identification.

The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the Code commission, p. 103).

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the defect in the place of signatures of the witnesses, he would have found the testimony sufficient to establish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so when the will was properly Identified by subscribing witness Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or substitution behind the questioned order.

We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire wig that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "This Last Will and Testament consists of two pages including this page".

In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with respect to the purpose of the requirement that the attestation clause must state the number of pages used:

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the win is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations.

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal approach:

... Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control where the purpose of the law to guarantee the Identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the fun observance of

the statutory requisites. Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the attestation clause.

WHEREFORE, the present petition is hereby granted. The orders of the respondent court which denied the probate of tile will, the motion for reconsideration of the denial of probate, and the motion for appointment of a special administrator are set aside. The respondent court is ordered to allow the probate of the wig and to conduct further proceedings in accordance with this decision. No pronouncement on costs.

SO ORDERED.

G.R. No. 74695 September 14, 1993

In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado, CESAR ALVARADO, petitioner, vs.HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices, Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA. RINO, respondents.

Vicente R. Redor for petitioner.

Bayani Ma. Rino for and in his own behalf.

 

BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases Division of the then Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June 1983 2 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and testament 3 with codicil 4 of the late Brigido Alvarado.

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly revoked a previously executed holographic will at the time awaiting probate before Branch 4 of the Regional Trial Court of sta. Cruz, Laguna.

As testified to by the three instrumental witnesses, the notary public and by private respondent who were present at the execution, the testator did not read the final draft of the will himself. Instead, private respondent, as the lawyer who drafted the eight-paged document, read the same aloud in the presence of the testator, the three instrumental

witnesses and the notary public. The latter four followed the reading with their own respective copies previously furnished them.

Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions in the notarial will to generate cash for the testator's eye operation. Brigido was then suffering from glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case of the notarial will, the testator did not personally read the final draft of the codicil. Instead, it was private respondent who read it aloud in his presence and in the presence of the three instrumental witnesses (same as those of the notarial will) and the notary public who followed the reading using their own copies.

A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3 January 1979 by private respondent as executor with the Court of First Instance, now Regional Trial Court, of Siniloan, Laguna. 5 Petitioner, in turn, filed an Opposition on the following grounds: that the will sought to be probated was not executed and attested as required by law; that the testator was insane or otherwise mentally incapacitated to make a will at the time of its execution due to senility and old age; that the will was executed under duress, or influence of fear and threats; that it was procured by undue and improper pressure and influence on the part of the beneficiary who stands to get the lion's share of the testator's estate; and lastly, that the signature of the testator was procured by fraud or trick.

When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was made to respondent court. The main thrust of the appeal was that the deceased was blind within the meaning of the law at the time his "Huling Habilin" and the codicil attached thereto was executed; that since the reading required by Art. 808 of the Civil Code was admittedly not complied with, probate of the deceased's last will and codicil should have been denied.

On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings: that Brigido Alvarado was not blind at the time his last will and codicil were executed; that assuming his blindness, the reading requirement of Art. 808 was substantially complied with when both documents were read aloud to the testator with each of the three instrumental witnesses and the notary public following the reading with their respective copies of the instruments. The appellate court then concluded that although Art. 808 was not followed to the letter, there was substantial compliance since its purpose of making known to the testator the contents of the drafted will was served.

The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of Art, 808 at the time his "Huling Habilin" and its codicil were executed? If so, was the double-reading requirement of said article complied with?

Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind at the time the will and codicil were executed. However, his vision on both eyes was only of "counting fingers at three (3) feet" by reason of the glaucoma which he had been suffering from for several years and even prior to his first consultation with an eye specialist on 14 December 1977.

The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind" testator under Art. 808 which reads:

Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged.

Petitioner contends that although his father was not totally blind when the will and codicil were executed, he can be so considered within the scope of the term as it is used in Art. 808. To support his stand, petitioner presented before the trial court a medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology (Philippine Eye Research Institute), 6 the contents of which were interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by private respondent. 7 Dr. Roasa explained that although the testator could visualize fingers at three (3) feet, he could no longer read either printed or handwritten matters as of 14 December 1977, the day of his first consultation. 8

On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator could still read on the day the will and the codicil were executed but chose not to do so because of "poor eyesight." 9 Since the testator was still capable of reading at that time, the court a quo concluded that Art. 808 need not be complied with.

We agree with petitioner in this respect.

Regardless of respondent's staunch contention that the testator was still capable of reading at the time his will and codicil were prepared, the fact remains and this was testified to by his witnesses, that Brigido did not do so because of his "poor," 10 "defective," 11 or "blurred" 12 vision making it necessary for private respondent to do the actual reading for him.

The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of the term "blindness" as used in Art. 808, to wit:

The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes . . .

Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or another, are "incapable of reading the(ir) will(s)." Since

Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the separate occasions of their execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us but to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so confortably with his instructions. Hence, to consider his will as validly executed and entitled to probate, it is essential that we ascertain whether Art. 808 had been complied with.

Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of the instrumental witnesses and, again, by the notary public before whom the will was acknowledged. The purpose is to make known to the incapacitated testator the contents of the document before signing and to give him an opportunity to object if anything is contrary to his instructions.

That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged will and the five-paged codicil who read the same aloud to the testator, and read them only once, not twice as Art. 808 requires.

Private respondent however insists that there was substantial compliance and that the single reading suffices for purposes of the law. On the other hand, petitioner maintains that the only valid compliance or compliance to the letter and since it is admitted that neither the notary public nor an instrumental witness read the contents of the will and codicil to Brigido, probate of the latter's will and codicil should have been disallowed.

We sustain private respondent's stand and necessarily, the petition must be denied.

This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and inflexible as to destroy the testamentary privilege. 14

In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only then did the signing and acknowledgement take place. There is no evidence, and petitioner does not so allege, that the contents of the will and codicil were not sufficiently made known and communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the execution was not the first time that Brigido had affirmed the truth and authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged that the will was drafted in accordance with his expressed wishes even prior to 5 November 1977 when Atty. Rino went to the testator's residence precisely for the purpose of securing his conformity to the draft. 15

Moreover, it was not only Atty. Rino who read the documents on 5 November and 29 December 1977. The notary public and the three instrumental witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the testator's physician) asked the testator whether the contents of the document were of his own free will. Brigido answered in the affirmative. 16 With four persons following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him (those which he affirmed were in accordance with his instructions), were the terms actually appearing on the typewritten documents. This is especially true when we consider the fact that the three instrumental witnesses were persons known to the testator, one being his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to him since childhood.

The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements of the law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testator's will. 17

As a final word to convince petitioner of the propriety of the trial court's Probate Order and its affirmance by the Court of Appeals, we quote the following pronouncement in Abangan v. Abangan, 18 to wit:

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

Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling Habilin" and the codicil attached thereto. We are unwilling to cast these aside fro the mere reason that a legal requirement intended for his protection was not followed strictly when such compliance had been rendered unnecessary by the fact that the purpose of the law, i.e., to make known to the incapacitated testator the contents of the draft of his will, had already been accomplished. To reiterate, substantial compliance suffices where the purpose has been served.

WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time that this case has remained pending, this decision is immediately executory. Costs against petitioner.

SO ORDERED.