G.R. NO.

129242 January 16, 2001

PILAR S. VDA. DE MANALO, ANTONIO S. MANALO, ORLANDO S. MANALO, and

ISABELITA MANALO ,petitioners,
vs.
HON. COURT OF APPEALS, HON. REGIONAL TRIAL COURT OF MANILA (BRANCH
35), PURITA S. JAYME, MILAGROS M. TERRE, BELEN M. ORILLANO, ROSALINA
M. ACUIN, ROMEO S. MANALO, ROBERTO S. MANALO, AMALIA MANALO and
IMELDA MANALO, respondents.

DE LEON, JR., J.:

This is a petition for review on certiorari filed by petitioners Pilar S. Vda De Manalo, et.
Al., seeking to annul the Resolution 1 of the Court of Appeals 2 affirming the Orders 3 of
the Regional Trial Court and the Resolution 4 which denied petitioner' motion for
reconsideration.

The antecedent facts 5 are as follows:

Troadio Manalo, a resident of 1996 Maria Clara Street, Sampaloc, Manila died intestate
on February 14, 1992. He was survived by his wife, Pilar S. Manalo, and his eleven (11)
children, namely: Purita M. Jayme, Antonio Manalo, Milagros M. Terre, Belen M. Orillano,
Isabelita Manalo, Rosalina M. Acuin, Romeo Manalo, Roberto Manalo, Amalia Manalo,
Orlando Manalo and Imelda Manalo, who are all of legal age.1wphi1.nt

At the time of his death on February 14, 1992, Troadio Manalo left several real
properties located in Manila and in the province of Tarlac including a business under the
name and style Manalo's Machine Shop with offices at No. 19 Calavite Street, La Loma,
Quezon City and at NO. 45 General Tinio Street, Arty Subdivision, Valenzuela, Metro
Manila.

On November 26, 1992, herein respondents, who are eight (8) of the surviving children
of the late Troadio Manalo, namely; Purita, Milagros, Belen Rocalina, Romeo, Roberto,
Amalia, and Imelda filed a petition 6with the respondent Regional Trial Court of
Manila 7 of the judicial settlement of the estate of their late father, Troadio Manalo, and
for the appointment of their brother, Romeo Manalo, as administrator thereof.

On December 15, 1992, the trial court issued an order setting the said petition for
hearing on February 11, 1993 and directing the publication of the order for three (3)
consecutive weeks in a newspaper of general circulation in Metro Manila, and further
directing service by registered mail of the said order upon the heirs named in the
petition at their respective addresses mentioned therein.

On February 11, 1993, the date set for hearing of the petition, the trial court issued an
order 'declaring the whole world in default, except the government," and set the
reception of evidence of the petitioners therein on March 16, 1993. However, the trial
court upon motion of set this order of general default aside herein petitioners
(oppositors therein) namely: Pilar S. Vda. De Manalo, Antonio, Isabelita and Orlando
who were granted then (10) days within which to file their opposition to the petition.
Several pleadings were subsequently filed by herein petitioners, through counsel,
culminating in the filling of an Omnibus Motion8 on July 23, 1993 seeking; (1) to seat
aside and reconsider the Order of the trial court dated July 9, 1993 which denied the
motion for additional extension of time file opposition; (2) to set for preliminary hearing
their affirmative defenses as grounds for dismissal of the case; (3) to declare that the
trial court did not acquire jurisdiction over the persons of the oppositors; and (4) for the
immediate inhibition of the presiding judge.

On July 30, 1993, the trial court issued an order9 which resolved, thus:

A. To admit the so-called Opposition filed by counsel for the oppositors on July 20,
1993, only for the purpose of considering the merits thereof;

B. To deny the prayer of the oppositors for a preliminary hearing of their

affirmative defenses as ground for the dismissal of this proceeding, said
affirmative defenses being irrelevant and immaterial to the purpose and issue of
the present proceeding;

C. To declare that this court has acquired jurisdiction over the persons of the
oppositors;

D. To deny the motion of the oppositors for the inhibition of this Presiding Judge;

E. To set the application of Romeo Manalo for appointment as regular

administrator in the intestate estate of the deceased Troadio Manalo for hearing on
September 9, 1993 at 2:00 o'clock in the afternoon.

Herein petitioners filed a petition for certiorari under Rule 65 of the Rules of Court with
the Court of Appeals, docketed as CA-G.R. SP. No. 39851, after the trial court in its
Order 10 dated September 15, 1993. In their petition for improperly laid in SP. PROC. No.
92-63626; (2) the trial court did not acquire jurisdiction over their persons; (3) the
share of the surviving spouse was included in the intestate proceedings; (4) there was
absence of earnest efforts toward compromise among members of the same family; and
(5) no certification of non-forum shopping was attached to the petition.

Finding the contentions untenable, the Court of Appeals dismissed the petition for
certiorari in its Resolution11 promulgated on September 30, 1996. On May 6, 1997 the
motion for reconsideration of the said resolution was likewise dismissed.12

The only issue raised by herein petitioners in the instant petition for review is whether or
not the respondent Court of Appeals erred in upholding the questioned orders of the
respondent trial court which denied their motion for the outright dismissal of the petition
for judicial settlement of estate despite the failure of the petitioners therein to aver that
earnest efforts toward a compromise involving members of the same family have been
made prior to the filling of the petition but that the same have failed.

Herein petitioners claim that the petition in SP. PROC. No. 92-63626 is actually an
ordinary civil action involving members of the same family. They point out that it
contains certain averments, which, according to them, are indicative of its adversarial
nature, to wit:

X X X

Par. 7. One of the surviving sons, ANTONIO MANALO, since the death of his father,
TROADIO MANALO, had not made any settlement, judicial or extra-judicial of the
properties of the deceased father TROADIO MANALO.

Par. 8. xxx the said surviving son continued to manage and control the properties
aforementioned, without proper accounting, to his own benefit and advantage xxx.

X X X

Par. 12. That said ANTONIO MANALO is managing and controlling the estate of the
deceased TROADIO MANALO to his own advantage and to the damage and
prejudice of the herein petitioners and their co-heirs xxx.

X X X

Par. 14. For the protection of their rights and interests, petitioners were compelled
to bring this suit and were forced to litigate and incur expenses and will continue
to incur expenses of not less than, P250,000.00 and engaged the services of
herein counsel committing to pay P200,000.00 as and attorney's fees plus
honorarium of P2,500.00 per appearance in court xxx.13

Consequently, according to herein petitioners, the same should be dismissed under Rule
16, Section 1(j) of the Revised Rules of Court which provides that a motion to dismiss a
complaint may be filed on the ground that a condition precedent for filling the claim has
not been complied with, that is, that the petitioners therein failed to aver in the petition
in SP. PROC. No. 92-63626, that earnest efforts toward a compromise have been made
involving members of the same family prior to the filling of the petition pursuant to
Article 222 14 of the Civil Code of the Philippines.

The instant petition is not impressed with merit.

It is a fundamental rule that in the determination of the nature of an action or

proceeding, the averments15 and the character of the relief sought 16 in the complaint, or
petition, as in the case at bar, shall be controlling. A careful srutiny of the Petition for
Issuance of Letters of Administration, Settlement and Distribution of Estatein SP. PROC.
No. 92-63626 belies herein petitioners' claim that the same is in the nature of an
ordinary civil action. The said petition contains sufficient jurisdictional facts required in a
petition for the settlement of estate of a deceased person such as the fat of death of the
late Troadio Manalo on February 14, 1992, as well as his residence in the City of Manila
at the time of his said death. The fact of death of the decedent and of his residence
within he country are foundation facts upon which all the subsequent proceedings in the
administration of the estate rest.17 The petition is SP.PROC No. 92-63626 also contains
an enumeration of the names of his legal heirs including a tentative list of the properties
left by the deceased which are sought to be settled in the probate proceedings. In
addition, the relief's prayed for in the said petition leave no room for doubt as regard the
intention of the petitioners therein (private respondents herein) to seek judicial
settlement of the estate of their deceased father, Troadio Manalo, to wit;

PRAYER

WHEREFORE, premises considered, it is respectfully prayed for of this Honorable Court:

a. That after due hearing, letters of administration be issued to petitioner ROMEO

MANALO for the administration of the estate of the deceased TROADIO MANALO
upon the giving of a bond in such reasonable sum that this Honorable Court may
fix.

b. That after all the properties of the deceased TROADIO MANALO have been
inventoried and expenses and just debts, if any, have been paid and the legal
heirs of the deceased fully determined, that the said estate of TROADIO MANALO
be settled and distributed among the legal heirs all in accordance with law.

c. That the litigation expenses of these proceedings in the amount of P250,000.00

and attorney's fees in the amount of P300,000.00 plus honorarium of P2,500.00
per appearance in court in the hearing and trial of this case and costs of suit be
taxed solely against ANTONIO MANALO.18

Concededly, the petition in SP. PROC. No. 92-63626 contains certain averments which
may be typical of an ordinary civil action. Herein petitioners, as oppositors therein, took
advantage of the said defect in the petition and filed their so-called Opposition thereto
which, as observed by the trial court, is actually an Answer containing admissions and
denials, special and affirmative defenses and compulsory counterclaims for actual, moral
and exemplary damages, plus attorney's fees and costs 19 in an apparent effort to make
out a case of an ordinary civil action and ultimately seek its dismissal under Rule 16,
Section 1(j) of the Rules of Court vis--vis, Article 222 of civil of the Civil Code.

It is our view that herein petitioners may not be allowed to defeat the purpose of the
essentially valid petition for the settlement of the estate of the late Troadio Manalo by
raising matters that as irrelevant and immaterial to the said petition. It must be
emphasized that the trial court, siting as a probate court, has limited and special
jurisdiction 20and cannot hear and dispose of collateral matters and issues which may be
properly threshed out only in an ordinary civil action. In addition, the rule has always
been to the effect that the jurisdiction of a court, as well as the concomitant nature of an
action, is determined by the averments in the complaint and not by the defenses
contained in the answer. If it were otherwise, it would not be too difficult to have a case
either thrown out of court or its proceedings unduly delayed by simple strategem.21 So it
should be in the instant petition for settlement of estate.

Herein petitioners argue that even if the petition in SP. PROC. No. 92-63626 were to be
considered as a special proceeding for the settlement of estate of a deceased person,
Rule 16, Section 1(j) of the Rules of Court vis--vis Article 222 of the Civil Code of the
Philippines would nevertheless apply as a ground for the dismissal of the same by virtue
of ule 1, Section 2 of the Rules of Court which provides that the 'rules shall be liberally
construed in order to promote their object and to assist the parties in obtaining just,
speedy and inexpensive determination of every action and proceedings.' Petitioners
contend that the term "proceeding" is so broad that it must necessarily include special
proceedings.

The argument is misplaced. Herein petitioners may not validly take refuge under the
provisions of Rule 1, Section 2, of the Rules of Court to justify the invocation of Article
222 of the Civil Code of the Philippines for the dismissal of the petition for settlement of
the estate of the deceased Troadio Manalo inasmuch as the latter provision is clear
enough. To wit:

Art. 222. No suit shall be filed or maintained between members of the same family
unless it should appear that earnest efforts toward a compromise have been made, but
that the same have failed, subject to the limitations in Article 2035(underscoring
supplied).22

The above-quoted provision of the law is applicable only to ordinary civil actions. This is
clear from the term 'suit' that it refers to an action by one person or persons against
another or other in a court of justice in which the plaintiff pursues the remedy which the
law affords him for the redress of an injury or the enforcement of a right, whether at law
or in equity. 23 A civil action is thus an action filed in a court of justice, whereby a party
sues another for the enforcement of a right, or the prevention or redress of a
wrong.24 Besides, an excerpt form the Report of the Code Commission unmistakably
reveals the intention of the Code Commission to make that legal provision applicable
only to civil actions which are essentially adversarial and involve members of the same
family, thus:

It is difficult to imagine a sadder and more tragic spectacle than a litigation

between members of the same family. It is necessary that every effort should be
made toward a compromise before litigation is allowed to breed hate and passion
in the family. It is know that lawsuit between close relatives generates deeper
bitterness than stranger.25

It must be emphasized that the oppositors (herein petitioners) are not being sued in SP.
PROC. No. 92-63626 for any cause of action as in fact no defendant was imploded
therein. The Petition for issuance of letters of Administration, Settlement and
Distribution of Estate in SP. PROC. No. 92-63626 is a special proceeding and, as such, it
is a remedy whereby the petitioners therein seek to establish a status, a right, or a
particular fact. 26 the petitioners therein (private respondents herein) merely seek to
establish the fat of death of their father and subsequently to be duly recognized as
among the heirs of the said deceased so that they can validly exercise their right to
participate in the settlement and liquidation of the estate of the decedent consistent with
the limited and special jurisdiction of the probate court.1wphi1.nt

WHEREFORE, the petition in the above-entitled case, is DENIED for lack of merit, Costs
against petitioners.

SO ORDERED.
G.R. No. L-23678 June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased.

PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.

Vicente R. Macasaet and Jose D. Villena for oppositors appellants.

Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.

BENGZON, J.P., J.:

This is a direct appeal to Us, upon a question purely of law, from an order of the Court of
First Instance of Manila dated April 30, 1964, approving the project of partition filed by
the executor in Civil Case No. 37089 therein.1wph1.t

The facts of the case are as follows:

Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United
States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate
children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A.
Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who
survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and
Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria
Cristina Bellis and Miriam Palma Bellis.

On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he

directed that after all taxes, obligations, and expenses of administration are paid for, his
distributable estate should be divided, in trust, in the following order and manner: (a)
$240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate
children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each
and (c) after the foregoing two items have been satisfied, the remainder shall go to his
seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry
A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and
Dorothy E. Bellis, in equal shares.1wph1.t

Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas,
U.S.A. His will was admitted to probate in the Court of First Instance of Manila on
September 15, 1958.

The People's Bank and Trust Company, as executor of the will, paid all the bequests
therein including the amount of $240,000.00 in the form of shares of stock to Mary E.
Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis
and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of
their respective legacies, or a total of P120,000.00, which it released from time to time
according as the lower court approved and allowed the various motions or petitions filed
by the latter three requesting partial advances on account of their respective legacies.

On January 8, 1964, preparatory to closing its administration, the executor submitted

and filed its "Executor's Final Account, Report of Administration and Project of Partition"
wherein it reported, inter alia, the satisfaction of the legacy of Mary E. Mallen by the
delivery to her of shares of stock amounting to $240,000.00, and the legacies of Amos
Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00
each or a total of P120,000.00. In the project of partition, the executor pursuant to
the "Twelfth" clause of the testator's Last Will and Testament divided the residuary
estate into seven equal portions for the benefit of the testator's seven legitimate children
by his first and second marriages.

On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective
oppositions to the project of partition on the ground that they were deprived of their
legitimes as illegitimate children and, therefore, compulsory heirs of the deceased.

Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which
is evidenced by the registry receipt submitted on April 27, 1964 by the executor.1

After the parties filed their respective memoranda and other pertinent pleadings, the
lower court, on April 30, 1964, issued an order overruling the oppositions and approving
the executor's final account, report and administration and project of partition. Relying
upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this
case is Texas law, which did not provide for legitimes.

Their respective motions for reconsideration having been denied by the lower court on
June 11, 1964, oppositors-appellants appealed to this Court to raise the issue of which
law must apply Texas law or Philippine law.

In this regard, the parties do not submit the case on, nor even discuss, the doctrine of
renvoi, applied by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963.
Said doctrine is usually pertinent where the decedent is a national of one country, and a
domicile of another. In the present case, it is not disputed that the decedent was both a
national of Texas and a domicile thereof at the time of his death.2 So that even
assuming Texas has a conflict of law rule providing that the domiciliary system (law of
the domicile) should govern, the same would not result in a reference back (renvoi) to
Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts
rule adopting the situs theory (lex rei sitae) calling for the application of the law of the
place where the properties are situated, renvoi would arise, since the properties here
involved are found in the Philippines. I N THE ABSENCE , HOWEVER , OF PROOF AS TO
THE CONFLICT OF LAW RULE OF T EXAS , IT SHOULD NOT BE PRESUMED
DIFFERENT FROM OURS .3 Appellants' position is therefore not rested on the doctrine
of renvoi. As stated, they never invoked nor even mentioned it in their arguments.
Rather, they argue that their case falls under the circumstances mentioned in the third
paragraph of Article 17 in relation to Article 16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of
the decedent, in intestate or testamentary successions, with regard to four items: (a)
the order of succession; (b) the amount of successional rights; (e) the intrinsic validity
of the provisions of the will; and (d) the capacity to succeed. They provide that

ART. 16. Real property as well as personal property is subject to the law of the
country where it is situated.

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

ART. 1039. Capacity to succeed is governed by the law of the nation of the
decedent.

Appellants would however counter that Art. 17, paragraph three, of the Civil Code,
stating that

Prohibitive laws concerning persons, their acts or property, and those which have
for their object public order, public policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.

prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not
correct. Precisely, Congress deleted the phrase, "notwithstanding the provisions of this
and the next preceding article" when they incorporated Art. 11 of the old Civil Code as
Art. 17 of the new Civil Code, while reproducing without substantial change the second
paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been their
purpose to make the second paragraph of Art. 16 a specific provision in itself which must
be applied in testate and intestate succession. As further indication of this legislative
intent, Congress added a new provision, under Art. 1039, which decrees that capacity to
succeed is to be governed by the national law of the decedent.

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

Appellants would also point out that the decedent executed two wills one to govern
his Texas estate and the other his Philippine estate arguing from this that he intended
Philippine law to govern his Philippine estate. Assuming that such was the decedent's
intention in executing a separate Philippine will, it would not alter the law, for as this
Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the
effect that his properties shall be distributed in accordance with Philippine law and not
with his national law, is illegal and void, for his national law cannot be ignored in regard
to those matters that Article 10 now Article 16 of the Civil Code states said national
law should govern.

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

Wherefore, the order of the probate court is hereby affirmed in toto, with costs against
appellants. So ordered.

G.R. No. L-22595 November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator,petitioner-

appellee,
vs.
ANDRE BRIMO, opponent-appellant.

Ross, Lawrence and Selph for appellant.

Camus and Delgado for appellee.

ROMUALDEZ, J.:

The partition of the estate left by the deceased Joseph G. Brimo is in question in this
case.

The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of
the brothers of the deceased, opposed it. The court, however, approved it.

The errors which the oppositor-appellant assigns are:

(1) The approval of said scheme of partition; (2) denial of his participation in the
inheritance; (3) the denial of the motion for reconsideration of the order approving the
partition; (4) the approval of the purchase made by the Pietro Lana of the deceased's
business and the deed of transfer of said business; and (5) the declaration that the
Turkish laws are impertinent to this cause, and the failure not to postpone the approval
of the scheme of partition and the delivery of the deceased's business to Pietro Lanza
until the receipt of the depositions requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the partition in question puts into
effect the provisions of Joseph G. Brimo's will which are not in accordance with the laws
of his Turkish nationality, for which reason they are void as being in violation or article
10 of the Civil Code which, among other things, provides the following:

Nevertheless, legal and testamentary successions, in respect to the order of

succession as well as to the amount of the successional rights and the intrinsic
validity of their provisions, shall be regulated by the national law of the person
whose succession is in question, whatever may be the nature of the property or
the country in which it may be situated.

But the fact is that the oppositor did not prove that said testimentary dispositions are
not in accordance with the Turkish laws, inasmuch as he did not present any evidence
showing what the Turkish laws are on the matter, and in the absence of evidence on
such laws, they are presumed to be the same as those of the Philippines. (Lim and
Lim vs. Collector of Customs, 36 Phil., 472.)

It has not been proved in these proceedings what the Turkish laws are. He, himself,
acknowledges it when he desires to be given an opportunity to present evidence on this
point; so much so that he assigns as an error of the court in not having deferred the
approval of the scheme of partition until the receipt of certain testimony requested
regarding the Turkish laws on the matter.

The refusal to give the oppositor another opportunity to prove such laws does not
constitute an error. It is discretionary with the trial court, and, taking into consideration
that the oppositor was granted ample opportunity to introduce competent evidence, we
find no abuse of discretion on the part of the court in this particular. There is, therefore,
no evidence in the record that the national law of the testator Joseph G. Brimo was
violated in the testamentary dispositions in question which, not being contrary to our
laws in force, must be complied with and executed. lawphil.net

Therefore, the approval of the scheme of partition in this respect was not erroneous.

In regard to the first assignment of error which deals with the exclusion of the herein
appellant as a legatee, inasmuch as he is one of the persons designated as such in will,
it must be taken into consideration that such exclusion is based on the last part of the
second clause of the will, which says:

Second. I like desire to state that although by law, I am a Turkish citizen, this
citizenship having been conferred upon me by conquest and not by free choice,
nor by nationality and, on the other hand, having resided for a considerable length
of time in the Philippine Islands where I succeeded in acquiring all of the property
that I now possess, it is my wish that the distribution of my property and
everything in connection with this, my will, be made and disposed of in accordance
with the laws in force in the Philippine islands, requesting all of my relatives to
respect this wish, otherwise, I annul and cancel beforehand whatever disposition
found in this will favorable to the person or persons who fail to comply with this
request.
The institution of legatees in this will is conditional, and the condition is that the
instituted legatees must respect the testator's will to distribute his property, not in
accordance with the laws of his nationality, but in accordance with the laws of the
Philippines.

If this condition as it is expressed were legal and valid, any legatee who fails to comply
with it, as the herein oppositor who, by his attitude in these proceedings has not
respected the will of the testator, as expressed, is prevented from receiving his legacy.

The fact is, however, that the said condition is void, being contrary to law, for article 792
of the civil Code provides the following:

Impossible conditions and those contrary to law or good morals shall be

considered as not imposed and shall not prejudice the heir or legatee in any
manner whatsoever, even should the testator otherwise provide.

And said condition is contrary to law because it expressly ignores the testator's national
law when, according to article 10 of the civil Code above quoted, such national law of the
testator is the one to govern his testamentary dispositions.

Said condition then, in the light of the legal provisions above cited, is considered
unwritten, and the institution of legatees in said will is unconditional and consequently
valid and effective even as to the herein oppositor.

It results from all this that the second clause of the will regarding the law which shall
govern it, and to the condition imposed upon the legatees, is null and void, being
contrary to law.

All of the remaining clauses of said will with all their dispositions and requests are
perfectly valid and effective it not appearing that said clauses are contrary to the
testator's national law.

Therefore, the orders appealed from are modified and it is directed that the distribution
of this estate be made in such a manner as to include the herein appellant Andre Brimo
as one of the legatees, and the scheme of partition submitted by the judicial
administrator is approved in all other respects, without any pronouncement as to costs.

So ordered.

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. 93980 June 27, 1994

CLEMENTE CALDE, petitioner,

vs.
THE COURT OF APPEALS, PRIMO AGAWIN and DOMYAAN APED, respondents.

Nestor P. Mondok for petitioner.

Lazaro Padong for private respondents.

PUNO, J.:

This is a petition for review by certiorari of the Decision, dated March 27, 1990, of the
Court of appeals 1 in CA-G.R. CV No. 19071, disallowing probate of the Last Will and
Codicil executed by Calibia Lingdan Bulanglang, who died on March 20, 1976.

The records show that decedent left behind nine thousand pesos (P9,000.00) worth of
property. She also left a Last Will and Testament, dated October 30, 1972, and a Codicil
thereto, dated July 24, 1973. Both documents contained the thumbmarks of decedent.
They were also signed by three (3) attesting witnesses each, and acknowledged before
Tomas A. Tolete, then the Municipal Judge and Notary Public Ex-Officio of Bauko, Mt.
Province.

Nicasio Calde, the executor named in the will, filed a Petition for its allowance before the
RTC of Bontoc, Mt. Province, Br. 36. 2 He died during the pendency of the proceedings,
and was duly substituted by petitioner. Private respondents, relatives of decedent,
opposed the Petitioner filed by Calde, on the following grounds: that the will and codicil
were written in Ilocano, a dialect that decedent did not know; that decedent was
mentally incapacitated to execute the two documents because of her advanced age,
illness and deafness; that decedents thumbmarks were procured through fraud and
undue influence; and that the codicil was not executed in accordance with law.
On June 23, 1988, the trial court rendered judgment on the case, approving and
allowing decedents will and its codicil. The decision was appealed to and reversed by the
respondent Court of Appeals. It held:

. . . (T)he will and codicil could pass the safeguards under Article 805 of the
New Civil Code but for one crucial factor of discrepancy in the color of ink
when the instrumental witnesses affixed their respective signatures. When
subjected to cross-examination, Codcodio Nacnas as witness testified as
follows:

Q And all of you signed on the same table?

A Yes, sir.

Q And when you were all signing this Exhibit "B" and "B-1",
Exhibit "B" and "B-1" which is the testament was passed around
all of you so that each of you will sign consecutively?

A Yes, sir.

Q Who was the first to sign?

A Calibia Lingdan Bulanglang.

Q After Calibia Lingdan Bulanglang was made to sign I

withdraw the question. How did Calibia Lingdan Bulanglang sign
the last will and testament?

A She asked Judge Tolete the place where she will affix her
thumbmark so Judge Tolete directed her hand or her thumb to
her name.

Q After she signed, who was the second to sign allegedly all of
you there present?

A Jose Becyagen.

Q With what did Jose Becyagen sign the testament, Exhibit "B"
and "B-1"?

A Ballpen.

Q And after Jose Becyagen signed his name with the ballpen,
who was the next to sign?

A Me, sir.

Q And Jose Becyagen passed you the paper and the ballpen,
Exhibit "B" and "B-1" plus the ballpen which used to sign so that
you could sign your name, is that correct?
 A Yes, sir.

Q And then after you signed, who was the next to sign the
document, Exhibit "B" and "B-1"?

A Hilario Coto-ong.

Q So you passed also to Hilario Coto-ong the same Exhibit "B"

and "B-1" and the ballpen so that he could sign his name as
witness to the document, is it not?

A Yes, sir.

Q And that is the truth and you swear that to be the truth before
the Honorable Court?

ATTY. DALOG:

He already testified under oath, Your Honor.

COURT:

Witness may answer

A Yes, sir.

For his part, Obanan Ticangan likewise admitted during cross-examination in

regard to the codicil that:

Q When you signed Exhibit "D" and "D-1", did you all sign with
the same ballpen?

A One.

Such admissions from instrumental witnesses are indeed significant since

they point to no other conclusion than that the documents were not signed
by them in their presence but on different occasions since the same ballpen
used by them supposedly in succession could not have produced a different
color from blue to black and from black to blue. In fact, the attestation
clause followed the same pattern. The absurd sequence was repeated when
they signed the codicil, for which reason, We have no other alternative but
to disallow the Last Will and Codicil. Verily, if the witnesses and testatrix
used the same ballpen, then their signatures would have been in only one
color, not in various ones as shown in the documents. Moreover, the
signatures, in different colors as they are, appear to be of different
broadness, some being finer than the others, indicating that, contrary to
what the testamentary witnesses declared on the witness stand, not only
one ballpen was used, and, therefore, showing that the documents were not
 signed by the testatrix and instrumental witnesses in the presence of one
another. . . " (Rollo, pp. 44-46. Citations omitted.)

Petitioner unsuccessfully moved for reconsideration of the impugned Decision. His

motion was denied by the respondent court in its Order, dated May 24, 1990.

Thus, this appeal by petitioner who now puts in issue the correctness of the respondent
courts conclusion that both decedents will and codicil were not subscribed by the
witnesses in the presence of the testator and of one another, contrary to the
requirements of Article 805 of the Civil Code. He contends that:

1. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF

SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE
APPLICABLE DECISION OF THE SUPREME COURT BY CONCLUDING BASED
ON PURE SPECULATION OR SURMISES AND WITHOUT REGARD TO THE
TESTIMONY OF JUDGE TOLETE WHICH IS AN EVIDENCE OF SUBSTANCE
THAT THE WILL AND THE CODICIL OF THE LATE CALIBIA LINGDAN
BULANGLANG WERE SIGNED BY HER AND BY HER INSTRUMENTAL
WITNESSES ON DIFFERENT OCCASIONS;

2. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF

SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE
APPLICABLE DECISIONS OF THE SUPREME COURT BY DISREGARDING THE
PROBATIVE VALUE OF THE ATTESTATION CLAUSES OF THE LAST WILL AND
TESTAMENT AND THE CODICIL OF THE LATE CALIBIA LINGDAN
BULANGLANG.

The petition must fail.

The question in the case at bench is one of fact: whether or not, based on the evidence
submitted, respondent appellate court erred in concluding that both decedents Last Will
and Testament, and its Codicil were subscribed by the instrumental witnesses on
separate occasions. As a general rule, factual findings of the Court of Appeals are
considered final and conclusive, and cannot be reviewed on appeal to this court. In the
present instance, however, there is reason to make an exception to that rule, since the
finding of the respondent court is contrary to that of the trial court, viz.:

. . . (Private respondents) pointed out however, that the assertions of

petitioners witnesses are rife with contradictions, particularly the fact that
the latters signatures on the documents in issue appear to have been
written in ballpens of different colors contrary to the statements of said
witnesses that all of them signed with only one ballpen. The implication is
that the subscribing witnesses to the Will and Codicil, and the testatrix did
not simultaneously sign each of the documents in one sitting but did it
piecemeal a violation of Art. 805 of the Code. This conclusion of the
(private respondents) is purely circumstantial. From this particular set of
facts, numerous inferences without limits can be drawn depending on which
side of the fence one is on. For instance, considering the time interval that
elapsed between the making of the Will and Codicil, and up to the filing of
 the petition for probate, the possibility is not remote that one or two of the
attesting witnesses may have forgotten certain details that transpired when
they attested the documents in question . . . (Rollo, pp. 36-37.)

A review of the facts and circumstances upon which respondent Court of Appeals based
its impugned finding, however, fails to convince us that the testamentary documents in
question were subscribed and attested by the instrumental witnesses during a single
occasion.

As sharply noted by respondent appellate court, the signatures of some attesting

witnesses in decedents will and its codicil were written in blue ink, while the others were
in black. This discrepancy was not explained by petitioner. Nobody of his six (6)
witnesses testified that two pens were used by the signatories on the two documents. In
fact, two (2) of petitioners witnesses even testified that only one (1) ballpen was used
in signing the two testamentary documents.

It is accepted that there are three sources from which a tribunal may properly acquire
knowledge for making its decisions, namely: circumstantial evidence, testimonial
evidence, and real evidence or autoptic proference. Wigmore explains these sources as
follows:

If, for example, it is desired to ascertain whether the accused has lost his
right hand and wears an iron hook in place of it, one source of belief on the
subject would be the testimony of a witness who had seen the arm; in
believing this testimonial evidence, there is an inference from the human
assertion to the fact asserted. A second source of belief would be the mark
left on some substance grasped or carried by the accused; in believing this
circumstantial evidence, there is an inference from the circumstance to the
thing producing it. A third source of belief remains, namely, the inspection
by the tribunal of the accuseds arm. This source differs from the other two
in omitting any step of conscious inference or reasoning, and in proceeding
by direct self-perception, or autopsy.

It is unnecessary, for present purposes, to ask whether this is not, after all,
a third source of inference, i.e., an inference from the impressions or
perceptions of the tribunal to the objective existence of the thing perceived.
The law does not need and does not attempt to consider theories of
psychology as to the subjectivity of knowledge or the mediateness of
perception. It assumes the objectivity of external nature; and, for the
purposes of judicial investigation, a thing perceived by the tribunal as
existing does exist.

There are indeed genuine cases of inference by the tribunal from things
perceived to other things unperceived as, for example, from a persons
size, complexion, and features, to his age; these cases of a real use of
inference can be later more fully distinguished . . . But we are here
concerned with nothing more than matters directly perceived for example,
that a person is of small height or is of dark complexion; as to such matters,
the perception by the tribunal that the person is small or large, or that he
 has a dark or light complexion, is a mode of acquiring belief which is
independent of inference from either testimonial or circumstantial evidence.
It is the tribunals self-perception, or autopsy, of the thing itself.

From the point of view of the litigant party furnishing this source of belief, it
may be termed Autoptic Proference. 3 (Citations omitted.)

In the case at bench, the autoptic proference contradicts the testimonial evidence
produced by petitioner. The will and its codicil, upon inspection by the respondent court,
show in black and white or more accurately, in black and blue that more than one
pen was used by the signatories thereto. Thus, it was not erroneous nor baseless for
respondent court to disbelieve petitioners claim that both testamentary documents in
question were subscribed to in accordance with the provisions of Art. 805 of the Civil
Code.

Neither did respondent court err when it did not accord great weight to the testimony of
Judge Tomas A. Tolete. It is true that his testimony contains a narration of how the two
testamentary documents were subscribed and attested to, starting from decedents
thumbmarking thereof, to the alleged signing of the instrumental witnesses thereto in
consecutive order. Nonetheless, nowhere in Judge Toletes testimony is there any kind of
explanation for the different-colored signatures on the testaments.

IN VIEW WHEREOF, the instant Petition for Review is DENIED. The Decision of
respondent Court of Appeals, dated March 27, 1988, in CA-G.R. CV No. 19071
disallowing the Last Will and Testament, and the Codicil thereto, of the decedent Calibia
Lingdan Bulanglang is AFFIRMED IN TOTO. Costs against petitioner.

SO ORDERED.

G.R. No. 72706 October 27, 1987

CONSTANTINO C. ACAIN, petitioner,

vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division),
VIRGINIA A. FERNANDEZ and ROSA DIONGSON, respondents.

PARAS, J.:

This is a petition for review on certiorari of the decision * of respondent. Court of

Appeals in AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108)
ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and its
Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners
herein) motion for reconsideration.

The dispositive portion of the questioned decision reads as follows:

WHEREFORE, the petition is hereby granted and respondent Regional Trial

Court of the Seventh Judicial Region, Branch XIII (Cebu City), is hereby
ordered to dismiss the petition in Special Proceedings No. 591 ACEB No
special pronouncement is made as to costs.

The antecedents of the case, based on the summary of the Intermediate Appellate
Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows:

On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu
City Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for
the issuance to the same petitioner of letters testamentary, docketed as Special
Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain died
leaving a will in which petitioner and his brothers Antonio, Flores and Jose and his sisters
Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly
executed by Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27)
with a translation in English (Rollo, p. 31) submi'tted by petitioner without objection
raised by private respondents. The will contained provisions on burial rites, payment of
debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of
the testament. On the disposition of the testator's property, the will provided:

THIRD: All my shares that I may receive from our properties. house, lands
and money which I earned jointly with my wife Rosa Diongson shall all be
given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal age
and presently residing at 357-C Sanciangko Street, Cebu City. In case my
brother Segundo Acain pre-deceased me, all the money properties, lands,
houses there in Bantayan and here in Cebu City which constitute my share
shall be given to me to his children, namely: Anita, Constantino, Concepcion,
Quirina, laura, Flores, Antonio and Jose, all surnamed Acain.

Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are
claiming to be heirs, with Constantino as the petitioner in Special Proceedings No. 591
ACEB

After the petition was set for hearing in the lower court on June 25, 1984 the oppositors
(respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased
and the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the
following grounds for the petitioner has no legal capacity to institute these proceedings;
(2) he is merely a universal heir and (3) the widow and the adopted daughter have been
pretirited. (Rollo, p. 158). Said motion was denied by the trial judge.

After the denial of their subsequent motion for reconsideration in the lower court,
respondents filed with the Supreme Court a petition for certiorari and prohibition with
preliminary injunction which was subsequently referred to the Intermediate Appellate
Court by Resolution of the Court dated March 11, 1985 (Memorandum for Petitioner, p.
3; Rollo, p. 159).

Respondent Intermediate Appellate Court granted private respondents' petition and

ordered the trial court to dismiss the petition for the probate of the will of Nemesio Acain
in Special Proceedings No. 591 ACEB

His motion for reconsideration having been denied, petitioner filed this present petition
for the review of respondent Court's decision on December 18, 1985 (Rollo, p. 6).
Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146).

On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153).
Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the
Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177).

Petitioner raises the following issues (Memorandum for petitioner, p. 4):

(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with
preliminary injunction is not the proper remedy under the premises;

(B) The authority of the probate courts is limited only to inquiring into the
extrinsic validity of the will sought to be probated and it cannot pass upon
the intrinsic validity thereof before it is admitted to probate;

(C) The will of Nemesio Acain is valid and must therefore, be admitted to
probate. The preterition mentioned in Article 854 of the New Civil Code
refers to preterition of "compulsory heirs in the direct line," and does not
apply to private respondents who are not compulsory heirs in the direct line;
their omission shall not annul the institution of heirs;

(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;

(E) There may be nothing in Article 854 of the New Civil Code, that suggests
that mere institution of a universal heir in the will would give the heir so
instituted a share in the inheritance but there is a definite distinct intention
of the testator in the case at bar, explicitly expressed in his will. This is what
matters and should be in violable.

(F) As an instituted heir, petitioner has the legal interest and standing to file
the petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio
Acain and

(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore
unconstitutional and ineffectual.

The pivotal issue in this case is whether or not private respondents have been pretirited.

Article 854 of the Civil Code provides:

 Art. 854. The preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of the will
or born after the death of the testator, shall annul the institution of heir; but
the devisees and legacies shall be valid insofar as they are not; inofficious.

If the omitted compulsory heirs should die before the testator, the institution
shall he effectual, without prejudice to the right of representation.

Preterition consists in the omission in the testator's will of the forced heirs or anyone of
them either because they are not mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA
450 [1966]; Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow
is concerned, Article 854 of the Civil Code may not apply as she does not ascend or
descend from the testator, although she is a compulsory heir. Stated otherwise, even if
the surviving spouse is a compulsory heir, there is no preterition even if she is omitted
from the inheritance, for she is not in the direct line. (Art. 854, Civil code) however, the
same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal
adoption by the testator has not been questioned by petitioner (.Memorandum for the
Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as the Child and Youth
Welfare Code, adoption gives to the adopted person the same rights and duties as if he
were a legitimate child of the adopter and makes the adopted person a legal heir of the
adopter. It cannot be denied that she has totally omitted and preterited in the will of the
testator and that both adopted child and the widow were deprived of at least their
legitime. Neither can it be denied that they were not expressly disinherited. Hence, this
is a clear case of preterition of the legally adopted child.

Pretention annuls the institution of an heir and annulment throws open to intestate
succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto
en virtual de legado mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra;
Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions which do not
result in intestacy are the legacies and devises made in the will for they should stand
valid and respected, except insofar as the legitimes are concerned.

The universal institution of petitioner together with his brothers and sisters to the entire
inheritance of the testator results in totally abrogating the will because the nullification
of such institution of universal heirs-without any other testamentary disposition in the
will-amounts to a declaration that nothing at all was written. Carefully worded and in
clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation
(Nuguid v. Nuguid), supra. No legacies nor devises having been provided in the will the
whole property of the deceased has been left by universal title to petitioner and his
brothers and sisters. The effect of annulling the "Institution of heirs will be, necessarily,
the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper
legacies and devises must, as already stated above, be respected.

We now deal with another matter. In order that a person may be allowed to intervene in
a probate proceeding he must have an interest iii the estate, or in the will, or in the
property to be affected by it either as executor or as a claimant of the estate and an
interested party is one who would be benefited by the estate such as an heir or one who
has a claim against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA
1369/1967). Petitioner is not the appointed executor, neither a devisee or a legatee
there being no mention in the testamentary disposition of any gift of an individual item
of personal or real property he is called upon to receive (Article 782, Civil Code). At the
outset, he appears to have an interest in the will as an heir, defined under Article 782 of
the Civil Code as a person called to the succession either by the provision of a will or by
operation of law. However, intestacy having resulted from the preterition of respondent
adopted child and the universal institution of heirs, petitioner is in effect not an heir of
the testator. He has no legal standing to petition for the probate of the will left by the
deceased and Special Proceedings No. 591 A-CEB must be dismissed.

As a general rule certiorari cannot be a substitute for appeal, except when the
questioned order is an oppressive exercise of j judicial authority (People v. Villanueva,
110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan
Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA
587 [1985]). It is axiomatic that the remedies of certiorari and prohibition are not
available where the petitioner has the remedy of appeal or some other plain, speedy and
adequate remedy in the course of law (DD Comendador Construction Corporation v.
Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to correct a grave
abuse of discretion of the trial court in not dismissing a case where the dismissal is
founded on valid grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).

Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent
Court, the general rule is that the probate court's authority is limited only to the
extrinsic validity of the will, the due execution thereof, the testator's testamentary
capacity and the compliance with the requisites or solemnities prescribed by law. The
intrinsic validity of the will normally comes only after the Court has declared that the will
has been duly authenticated. Said court at this stage of the proceedings is not called
upon to rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid v.
Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of
Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and
Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).

The rule, however, is not inflexible and absolute. Under exceptional circumstances, the
probate court is not powerless to do what the situation constrains it to do and pass upon
certain provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v.
Nuguid the oppositors to the probate moved to dismiss on the ground of absolute
preteriton The probate court acting on the motion held that the will in question was a
complete nullity and dismissed the petition without costs. On appeal the Supreme Court
upheld the decision of the probate court, induced by practical considerations. The Court
said:

We pause to reflect. If the case were to be remanded for probate of the will,
nothing will be gained. On the contrary, this litigation will be protracted. And
for aught that appears in the record, in the event of probate or if the court
rejects the will, probability exists that the case will come up once again
before us on the same issue of the intrinsic validity or nullity of the will.
Result: waste of time, effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief that we might as well meet
 head-on the issue of the validity of the provisions of the will in question.
After all there exists a justiciable controversy crying for solution.

In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by
the surviving spouse was grounded on petitioner's lack of legal capacity to institute the
proceedings which was fully substantiated by the evidence during the hearing held in
connection with said motion. The Court upheld the probate court's order of dismissal.

In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the
petition deals with the validity of the provisions of the will. Respondent Judge allowed
the probate of the will. The Court held that as on its face the will appeared to have
preterited the petitioner the respondent judge should have denied its probate outright.
Where circumstances demand that intrinsic validity of testamentary provisions be passed
upon even before the extrinsic validity of the will is resolved, the probate court should
meet the issue. (Nepomuceno v. Court of Appeals, supra; Nuguid v. Nuguid, supra).

In the instant case private respondents filed a motion to dismiss the petition in Sp.
Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the following grounds:
(1) petitioner has no legal capacity to institute the proceedings; (2) he is merely a
universal heir; and (3) the widow and the adopted daughter have been preterited (Rollo,
p. 158). It was denied by the trial court in an order dated January 21, 1985 for the
reason that "the grounds for the motion to dismiss are matters properly to be resolved
after a hearing on the issues in the course of the trial on the merits of the case (Rollo, p.
32). A subsequent motion for reconsideration was denied by the trial court on February
15, 1985 (Rollo, p. 109).

For private respondents to have tolerated the probate of the will and allowed the case to
progress when on its face the will appears to be intrinsically void as petitioner and his
brothers and sisters were instituted as universal heirs coupled with the obvious fact that
one of the private respondents had been preterited would have been an exercise in
futility. It would have meant a waste of time, effort, expense, plus added futility. The
trial court could have denied its probate outright or could have passed upon the intrinsic
validity of the testamentary provisions before the extrinsic validity of the will was
resolved (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of
certiorari and prohibition were properly availed of by private respondents.

Thus, this Court ruled that where the grounds for dismissal are indubitable, the
defendants had the right to resort to the more speedy, and adequate remedies of
certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of
jurisdiction, committed by the trial court in not dismissing the case, (Vda. de Bacang v.
Court of Appeals, supra) and even assuming the existence of the remedy of appeal, the
Court harkens to the rule that in the broader interests of justice, a petition for certiorari
may be entertained, particularly where appeal would not afford speedy and adequate
relief. (Maninang Court of Appeals, supra).

PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the
questioned decision of respondent Court of Appeals promulgated on August 30, 1985
and its Resolution dated October 23, 1985 are hereby AFFIRMED.
SO ORDERED.

G.R. No. L-4275 March 23, 1909

PAULA CONDE, plaintiff-appellee,

vs.
ROMAN ABAYA, defendant-appellant.

C. Oben for appellant.

L. Joaquin for appellee.

ARELLANO, C.J.:

From the hearing of the appeal interposed by Roman Abaya in the special proceedings
brought in the Court of First Instance of La Laguna for the settlement of the intestate
estate and the distribution of the property of Casiano Abaya it appears:

I. As antecedents: that Casiano Abaya, unmarried, the son of Romualdo Abaya and
Sabrina Labadia, died on the 6th of April, 1899; that Paula Conde, as the mother of the
natural children Jose and Teopista Conde, whom the states she had by Casiano Abaya,
on the 6th of November, 1905, moved the settlement of the said intestate succession;
that an administrator having been appointed for the said estate on the 25th of
November, 1905, Roman Abaya, a son of the said Romualdo Abaya and Sabrina Labadia,
the parents of the late Casiano Abaya, came forward and opposed said appointment and
claimed it for himself as being the nearest relative of the deceased; that this was
granted by the court below on the 9th of January, 1906; that on the 17th of November,
1906, Roman Abaya moved that, after due process of law, the court declare him to be
the sole heir of Casiano Abaya, to the exclusion of all other persons, especially of Paula
Conde, and to be therefore entitled to take possession of all the property of said estate,
and that it be adjudicated to him; and that on November 22, 1906, the court ordered
the publication of notices for the declaration of heirs and distribution of the property of
the estate.

II. That on the 28th of November, 1906, Paula Conde, in replying to the foregoing
motion of Roman Abaya, filed a petition wherein she stated that she acknowledged the
relationship alleged by Roman Abaya, but that she considered that her right was
superior to his and moved for a hearing of the matter, and, in consequence of the
evidence that she intended to present she prayed that she be declared to have
preferential rights to the property left by Casiano Abaya, and that the same be
adjudicated to her together with the corresponding products thereof.

III. That the trial was held, both parties presenting documentary and oral evidence, and
the court below entered the following judgment:

That the administrator of the estate of Casiano Abaya should recognize Teopista
and Jose Conde as being natural children of Casiano Abaya; that the petitioner
Paula Conde should succeed to the hereditary rights of her children with respect to
the inheritance of their deceased natural father Casiano Abaya; and therefore, it is
hereby declared that she is the only heir to the property of the said intestate
estate, to the exclusion of the administrator, Roman Abaya.

IV. That Roman Abaya excepted to the foregoing judgment, appealed to this court, and
presented the following statement of errors:

1. The fact that the court below found that an ordinary action for the acknowledgment of
natural children under articles 135 and 137 of the Civil Code, might be brought in special
probate proceedings.

2. The finding that after the death of a person claimed to be an unacknowledged natural
child, the mother of such presumed natural child, as heir to the latter, may bring an
action to enforce the acknowledgment of her deceased child in accordance with articles
135 and 137 of the Civil Code.

3. The finding in the judgment that the alleged continuos possession of the deceased
children of Paula Conde of the status of natural children of the late Casiano Abaya, has
been fully proven in these proceedings; and

4. On the hypothesis that it was proper to adjudicate the property of this intestate estate
to Paula Conde, as improperly found by the court below, the court erred in not having
declared that said property should be reserved in favor of relatives of Casiano Abaya to
the third degree, and in not having previously demanded securities from Paula Conde to
guarantee the transmission of the property to those who might fall within the
reservation.

As to the first error assigned, the question is set up as to whether in special proceedings
for the administration and distribution of an intestate estate, an action might be brought
to enforce the acknowledgment of the natural child of the person from whom the
inheritance is derived, that is to say, whether one might appear as heir on the ground
that he is a recognized natural child of the deceased, not having been so recognized by
the deceased either voluntarily or compulsorily by reason of a preexisting judicial
decision, but asking at the same time that, in the special proceeding itself, he be
recognized by the presumed legitimate heirs of the deceased who claim to be entitled to
the succession opened in the special proceeding.

According to section 782 of the Code of Civil Procedure

 If there shall be a controversy before the Court of First Instance as to who the
lawful heirs of the deceased person are, or as to the distributive share to which
each person is entitled under the law, the testimony as to such controversy shall
be taken in writing by the judge, under oath, and signed by the witness. Any party
in interest whose distributive share is affected by the determination of such
controversy, may appeal from the judgment of the Court of First Instance
determining such controversy to the Supreme Court, within the time and in the
manner provided in the last preceding section.

This court has decided the present question in the manner shown in the case of Juana
Pimentel vs. Engracio Palanca (5 Phil. Rep., 436.)

The main question with regard to the second error assigned, is whether or not the
mother of a natural child now deceased, but who survived the person who, it is claimed,
was his natural father, also deceased, may bring an action for the acknowledgment of
the natural filiation in favor of such child in order to appear in his behalf to receive the
inheritance from the person who is supposed to be his natural father.

In order to decide in the affirmative the court below has assigned the following as the
only foundation:

In resolving a similar question Manresa says: "An acknowledgment can only be

demanded by the natural child and his descendants whom it shall benefit, and
should they be minors or otherwise incapacitated, such person as legally
represents them; the mother may ask it in behalf of her child so long as he is
under her authority." On this point no positive declaration has been made,
undoubtedly because it was not considered necessary. A private action is in
question and the general rule must be followed. Elsewhere the same author adds:
"It may so happen that the child dies before four years have expired after
attaining majority, or that the document supporting his petition for
acknowledgment is discovered after his death, such death perhaps occurring after
his parents had died, as is supposed by article 137, or during their lifetime. In any
case such right of action shall pertain to the descendants of the child whom the
acknowledgment may interest." (See Commentaries to arts. 135 and 137, Civil
Code, Vol. I.)

The above doctrine, advanced by one of the most eminent commentators of the Civil
Code, lacks legal and doctrinal foundation. The power to transmit the right of such action
by the natural child to his descendants can not be sustained under the law, and still less
to his mother.

It is without any support in law because the rule laid down in the code is most positive,
limiting in form, when establishing the exception for the exercise of such right of action
after the death of the presumed parents, as is shown hereafter. It is not supported by
any doctrine, because up to the present time no argument has been presented, upon
which even an approximate conclusion could be based.

Although the Civil Code considerably improved the condition of recognized natural
children, granting them rights and actions that they did not possess under the former
laws, they were not, however, placed upon the same place as legitimate ones. The
difference that separates these two classes of children is still great, as proven by so
many articles dealing with the rights of the family and the succession in relation to the
members thereof. It may be laid down as legal maxim, that whatever the code does not
grant to the legitimate children, or in connection with their rights, must still less be
understood as granted to recognized natural children or in connection with their rights.
There is not a single exception in its provisions.

If legitimacy is the attribute that constitutes the basis of the absolute family rights of the
child, the acknowledgment of the natural child is, among illegitimate ones, that which
unites him to the family of the father or the mother who recognized him, and affords
him a participation in the rights of the family, relatively advantageous according to
whether they are alone or whether they concur with other individuals of the family of his
purely natural father or mother.

Thus, in order to consider the spirit of the Civil Code, nothing is more logical than to
establish a comparison between an action to claim the legitimacy, and one to enforce
acknowledgment.

ART. 118. The action to claim its legitimacy may be brought by the child at any
time of its lifetime and shall be transmitted to its heirs, should it die during
minority or in a state of insanity. In such cases the heirs shall be allowed a period
of five years in which to institute the action.

The action already instituted by the child is transmitted by its death to the heirs, if it has
not lapsed before then.

ART. 137. The actions for the acknowledgment of natural children can be
instituted only during the life of the presumed parents, except in the following
cases:

1. If the father or mother died during the maturity of the child, in which case the
latter may institute the action before the expiration of the first four years of its
maturity.

2. If, after the death of the father or mother, some instrument, before unknown,
should be discovered in which the child is expressly acknowledged.

In this case the action must be instituted with the six months following the
discovery of such instrument.

On this supposition the first difference that results between one action and the other
consists in that the right of action for legitimacy lasts during the whole lifetime of the
child, that is, it can always be brought against the presumed parents or their heirs by
the child itself, while the right of action for the acknowledgment of a natural child does
not last his whole lifetime, and, as a general rule, it can not be instituted against the
heirs of the presumed parents, inasmuch as it can be exercised onlyduring the life of the
presumed parents.
With regard to the question at issue, that is, the transmission to the heirs of the
presumed parents of the obligation to admit the legitimate filiation, or to recognize the
natural filiation, there exists the most radical difference in that the former continues
during the life of the child who claims to be legitimate, and he may demand it either
directly and primarily from the said presumed parents, or indirectly and secondarily from
the heirs of the latter; while the second does not endure for life; as a general rule,
it only lasts during the life of the presumed parents. Hence the other difference, derived
as a consequence, that an action for legitimacy is always brought against the heirs of
the presumed parents in case of the death of the latter, while the action for
acknowledgment is not brought against the heirs of such parents, with the exception of
the two cases prescribed by article 137 transcribed above.

So much for the passive transmission of the obligation to admit the legitimate filiation,
or to acknowledge the natural filiation.

As to the transmission to the heirs of the child of the latter's action to claim his
legitimacy, or to obtain the acknowledgment of his natural filiation, it is seen that the
code grants it in the first case, but not in the second. It contains provisions for the
transmission of the right of action which, for the purpose claiming his legitimacy inheres
in the child, but it does not say a word with regard to the transmission of the right to
obtain the acknowledgment of the natural filiation.

Therefore, the respective corollary of each of the two above-cited articles is: (1) That
the right of action which devolves upon the child to claim his legitimacy under article
118, may be transmitted to his heirs in certain cases designated in the said article; (2)
That the right of action for the acknowledgment of natural children to which article 137
refers, can never be transmitted, for the reason that the code makes no mention of it in
any case, not even as an exception.

It is most illogical and contrary to every rule of correct interpretation, that the right of
action to secure acknowledgment by the natural child should be presumed to be
transmitted, independently, as a rule, to his heirs, while the right of action to claim
legitimacy from his predecessor is not expressly, independently, or, as a general rule,
conceded to the heirs of the legitimate child, but only relatively and as an exception.
Consequently, the pretension that the right of action on the part of the child to obtain
the acknowledgment of his natural filiation is transmitted to his descendants is
altogether unfounded. No legal provision exists to sustain such pretension, nor can an
argument of presumption be based on the lesser claim when there is no basis for the
greater one, and when it is only given as an exception in well-defined cases. It is placing
the heirs of the natural child on a better footing than the heirs of the legitimate one,
when, as a matter of fact, the position of a natural child is no better than, no even equal
to, that of a legitimate child.

From the express and precise precepts of the code the following conclusions are derived:

The right of action that devolves upon the child to claim his legitimacy lasts during his
whole life, while the right to claim the acknowledgment of a natural child lasts only
during the life of his presumed parents.
Inasmuch as the right of action accruing to the child to claim his legitimacy lasts during
his whole life, he may exercise it either against the presumed parents, or their heirs;
while the right of action to secure the acknowledgment of a natural child, since it does
not last during his whole life, but depends on that of the presumed parents, as a general
rule can only be exercised against the latter.

Usually the right of action for legitimacy devolving upon the child is of a personal
character and pertains exclusively to him, only the child may exercise it at any time
during his lifetime. As an exception, and in three cases only, it may be transmitted to
the heirs of the child, to wit, if he died during his minority, or while insane, or after
action had been already instituted.

An action for the acknowledgment of a natural child may, as an exception, be exercised

against the heirs of the presumed parents in two cases: first, in the event of the death
of the latter during the minority of the child, and second, upon the discovery of some
instrument of express acknowledgment of the child, executed by the father or mother,
the existence of which was unknown during the life of the latter.

But such action for the acknowledgment of a natural child can only be exercised by him.
It can not be transmitted to his descendants, or his ascendants.

In support of the foregoing the following authorities may be cited:

Sanchez Roman, in his Treatise of Civil Law, propounds the question as to whether said
action should be considered transmissive to the heirs or descendants of the natural
child, whether he had or had not exercised it up to the time of his death, and decides it
as follows:

There is an entire absence of legal provisions, and at most, it might be deemed

admissible as a solution, that the right of action to claim the acknowledgment of a
natural child is transmitted by the analogy to his heirs on the same conditions and
terms that it is transmitted to the descendants of a legitimate child, to claim his
legitimacy, under article 118, but nothing more; because on this point nothing
warrants placing the heirs of a natural child on a better footing than those of the
legitimate child, and even to compare them would not fail to be a strained and
questionable matter, and one of great difficulty for decision by the courts, for the
simple reason that for the heirs of the legitimate child, the said article 118 exists,
while for those of the natural child, as we have said, there is no provision in the
code authorizing the same, although on the other hand there is none that prohibits
it. (Vol. V.)

Diaz Guijarro and Martinez Ruiz in their work on "The Civil Code as construed by the
supreme court of Spain," commenting upon article 137, say:

Article 118, taking into account the privileges due to the legitimacy of children,
grants them the right to claim said legitimacy during their lifetime, and even
authorizes the transmission of said right for the space of five years to the heirs
thereof, if the child die during his minority or in a state of insanity. But as article
137 is based on the consideration that in the case of a natural child, ties are less
 strong and sacred in the eyes of the law, it does not fix such a long and indefinite
period for the exercise of the action; it limits it to the life of the parents, excepting
in the two cases mentioned in said article; and it does not allow, as does article
118, the action to pass on to the heirs, inasmuch as, although it does not prohibit
it, and for that reason it might be deemed on general principles of law to consent
to it, such a supposition is inadmissible for the reason that a comparison of both
articles shows that the silence of the law in the latter case is not, nor it can be, an
omission, but a deliberate intent to establish a wide difference between the
advantages granted to a legitimate child and to a natural one.

(Ibid., Vol. II, 171.)

Navarro Amandi (Cuestionario del Cdigo Civil) raises the question: "Can the heirs of a
natural child claim the acknowledgment in those cases wherein the father or mother are
under obligation to acknowledge"? And says:

Opinions are widely divergent. The court of Rennes held (on April 13, 1844) that
the right of investigation forms a part of the estate of the child, and along with his
patrimony is transmitted to his heirs. The affirmation is altogether too categorical
to be admissible. If it were correct the same thing would happen as when the
legitimacy of a child is claimed, and as already seen, the right of action to demand
the legitimacy is not transmitted to the heirs in every case and as an absolute
right, but under certain limitations and circumstances. Now, were we to admit the
doctrine of the court of Rennes, the result would be that the claim for natural
filiation would be more favored than one for legitimate filiation. This would be
absurd, because it can not be conceived that the legislator should have granted a
right of action to the heirs of the natural child, which is only granted under great
limitations and in very few cases to those of a legitimate one. Some persons insist
that the same rules that govern legitimate filiation apply by analogy to natural
child are entitled to claim it in the cases prescribed by the article 118. The
majority, however, are inclined to consider the right to claim acknowledgment as a
personal right, and consequently, not transmissive to the heirs. Really there are no
legal grounds to warrant the transmission. (Vol. 2, 229.)

In a decision like the present one it is impossible to bring forward the argument of
analogy for the purpose of considering that the heirs of the natural child are entitled to
the right of action which article 118 concedes to the heirs of the legitimate child. The
existence of a provision for the one case and the absence thereof for the other is a
conclusive argument that inclusio unius est exclusio alterius, and it can not be
understood that the provision of law should be the same when the same reason does not
hold in the one case as in the other.

The theory of law of transmission is also entirely inapplicable in this case. This theory,
which in the Roman Law expressed the general rule than an heir who did not accept an
inheritance during his lifetime was incapacitated from transmitting it to his own heirs,
included at the same time the idea that if the inheritance was not transmitted because
the heir did not possess it, there were, however, certain things which the heir held and
could transmit. Such was the law and the right to accept the inheritance, for the existing
reason that all rights, both real and personal, shall pass to the heir; quia haeres
representat defunctum in omnibus et per omnia. According to the article 659 of the Civil
Code, "the inheritance includes all the property, rights, and obligations of a person,
which are not extinguished by his death." If the mother is the heir of her natural child,
and the latter, among other rights during his lifetime was entitled to exercise an action
of his acknowledgment against his father, during the life of the latter, if after his death
in some of the excepting cases of article 137, such right, which is a portion of his
inheritance, is transmitted to his mother as being his heir, and it was so understood by
the court of Rennes when it considered the right in question, not as a personal and
exclusive right of the child which is extinguished by his death, but a any other right
which might be transmitted after his death. This right of supposed transmission is even
less tenable than that sought to be sustained by the argument of analogy.

The right of action pertaining to the child to claim his legitimacy is in all respects
superior to that of the child who claims acknowledgment as a natural child. And it is
evident that the right of action to claim his legitimacy is not one of those rights which
the legitimate child may transmit by inheritance to his heirs; it forms no part of the
component rights of his inheritance. If it were so, there would have been no necessity to
establish its transmissibility to heirs as an exception in the terms and conditions of
article 118 of the code. So that, in order that it may constitute a portion of the child's
inheritance, it is necessary that the conditions and the terms contained in article 118
shall be present, since without them, the right that the child held during his lifetime,
being personal and exclusive in principle, and therefore, as a general rule not susceptible
of transmission, would and should have been extinguished by his death. Therefore,
where no express provision like that of article 118 exists, the right of action for the
acknowledgment of a natural child is, in principle and without exception, extinguished by
his death, and can not be transmitted as a portion of the inheritance of the deceased
child.

On the other hand, if said right of action formed a part of the child's inheritance, it would
be necessary to establish the doctrine that the right to claim such an acknowledgment
from the presumed natural father and from his heirs is an absolute right of the heirs of
the child, not limited by certain circumstances as in the case of the heirs of a natural
child with a legitimate one to place the heirs of a natural child and his inheritance on a
better footing than those of a legitimate child would not only be unreasonable, but, as
stated in one of the above citations, most absurd and illegal in the present state of the
law and in accordance with the general principles thereof.

For all of the foregoing reasons we hereby reverse the judgment appealed from in all its
parts, without any special ruling as to the costs of this instance.

Mapa, Johnson, Carson, and Willard, JJ., concur.

Separate Opinions

TORRES, J., dissenting:

The questions arising from the facts and points of law discussed in this litigation between
the parties thereto, decided in the judgment appealed from, and set up and discussed in
this instance by the said parties in their respective briefs, are subordinate in the first
place to the main point, submitted among others to the decision of this court, that is,
whether the right of action brought to demand from the natural father, or from his heirs,
the acknowledgment of the natural child which the former left at his death was, by
operation of the law, transmitted to the natural mother by reason of the death of the
said child acknowledged by her.

The second error assigned by the appellant in his brief refers exclusively to this
important point of law.

Article 846 of the Civil Code prescribes:

The right of succession which the law grants natural children extends reciprocally
in similar cases to the natural father or mother.

Article 944 reads:

If the acknowledged natural or legitimized child should die without issue, either
legitimate or acknowledged by it, the father or mother who acknowledged it shall
succeed to its entire estate, and if both acknowledged it and are alive, they shall
inherit from it share and share alike.

It can not be inferred from the above legal provisions that from the right succession
which the law grants the natural father or mother upon the death of their natural child,
the right of heirs of any of the said parents to claim the acknowledgment of the natural
child is excluded. No article is to be found in the Civil Code that expressly provides for
such exclusion or elimination of the right of the heirs of the deceased child to claim his
acknowledgment.

If under article 659 of said code, the inheritance includes all the property, rights, and
obligations of a person, which are not extinguished by his death, it is unquestionable
that among such rights stands that which the natural child had, while alive, to claim his
acknowledgment as such from his natural father, or from the heirs of the latter. There is
no reason or legal provision whatever to prevent the consideration that the right to claim
acknowledgment of the filiation of a deceased child from his natural father, or from the
heirs of the latter, is included in the hereditary succession of the deceased child in favor
of his natural mother.

It is to be regretted that such an eminent writer as Manresa is silent on this special

point, or that he is not very explicit in his comments on article 137 of the Civil Code.
Among the various noted writers on law, Professor Sanchez Roman is the only one who
has given his opinion in a categorical manner as to whether or not the right of action for
the acknowledgment of a deceased natural child shall be considered transmissive to his
heirs, as may bee seen from the following:

In order to complete the explanation of this article 137 of the Civil Code, three
points must be decided: (1) Against whom shall an action for acknowledgment be
 brought under the cases and terms to which the two exceptions indicate in
paragraphs 1 and 2 of article 137 refer? (2) Who is to represent the minor in
bringing this action when neither the father nor the mother has acknowledged
him? (3) Should this right of action be considered as transmitted to the heirs or
descendants of the natural child whether or not it was exercised at the time of his
death?

With respect to the third, there is an entire absence of legal provisions, and at
most, it might be deemed admissible as a solution, that the right of action to claim
acknowledgment of a natural child is transmitted by analogy to his heirs on the
same conditions and terms that it is transmitted to the descendants of the
legitimate child, to claim his legitimacy, under article 118, but no more; because
on his point nothing warrants placing the heirs of a natural child on a better
footing than those of the legitimate child, and even to compare them would not fail
to be strained and questionable matter, and one of great difficulty for decision by
the courts, for the simple reason that for the heirs of the legitimate child the said
article 118 exists, while for those of the natural child, as we have said, there is no
provision in the code authorizing the same, although on the other hand there is
none that prohibits it.

Certainly there is no article in the Civil Code, or any special law that bars the
transmission to the heirs of a natural child, particularly to his natural mother, of the
right of action to claim the acknowledgment of said natural child from the heirs of his
deceased natural father.

According to the above-cited article 944 of the Civil Code, the only persons designated
to succeed to the intestate estate of a natural child who died during minority or without
issue are its natural father or mother who acknowledged it; consequently if by operation
of the law his parents are his legal successors or heirs, it is unquestionable that by
reason of the child's death the property, rights, and obligations of the deceased minor
were, as a matter of fact, transmitted to them, among which was the right to demand
the acknowledgment of the said deceased natural child from the heirs of the deceased
natural father or mother, respectively, on account of having enjoyed uninterruptedly the
status of natural child of the said deceased parents. (Arts. 135 and 136, Civil Code.)

At the death of the children, Teopista in 1902, and Jose in 1903, during their minority,
and after the death of their natural father which took place in 1899, the natural mother
of the said minors, Paula Conde, succeeded them in all of their property and rights,
among which must necessarily appear and be included the right of action to claim the
acknowledgment of said two children from the heirs of Icasiano Abaya, their deceased
natural father. There is no legal provision or precept whatever excluding such right from
those which, by operation of the law, were transmitted to the mother, Paula Conde, or
expressly declaring that the said right to claim such acknowledgment is extinguished by
the death of the natural children.

It is true that, as a general rule, an action for acknowledgment can not be brought by a
surviving natural child after the death of his parents, except in the event he was a minor
at the time of the death of either of his parents, as was the case with minors Teopista
and Jose Conde, who, if living, would unquestionably be entitled to institute an action for
acknowledgment against the presumed heirs of their natural father; and as there is no
law that provides that said right is extinguished by the death of the same, and that the
mother did not inherit it from the said minors, it is also unquestionable that Paula
Conde, the natural mother and successor to the rights of said minors, is entitled to
exercise the corresponding action for acknowledgment.

If the natural mother had no right of action against the heirs of the natural father, for
the acknowledgment for her natural child, the unlimited and unconditional reciprocity
established by the article 846 of the code would neither be true nor correct. It should be
noticed that the relation of paternity and that of filiation between the above-mentioned
father and children are both natural in character; therefore, the intestate succession of
the said children of Paula Conde is governed exclusively by articles 944 and 945 of the
said code.

It is true that nothing is provided by article 137 with reference to the transmission to the
natural mother of the right to claim the acknowledgment of her natural children, but, as
Sanchez Roman says, it does not expressly prohibit it; and as opposed to the silence of
the said article, we find the provisions of articles 846 and 944 of the Civil Code, which
expressly recognize the right of the natural mother to succeed her natural child, a right
which is transmitted to her by operation of law from the moment that the child ceases to
exist.

The question herein does not bear upon the right of a child to claim his legitimacy, as
provided in article 118 of the code, nor is it claimed that the rights of natural children
and their mother are equal to those of legitimate ones, even by analogy.

The foundations of this opinion are based solely on the provisions of the above-
mentioned articles of the code, and I consider that they are sustainable so long as it is
not positively proven that the so often-mentioned right of action for acknowledgment is
extinguished by the death of the minor natural child, and is not transmitted to the
natural mother by express declaration or prohibition of the law, together with the
property and other rights in the intestate succession.

In view of the considerations above set forth it is my opinion that it should be held: that
Paula Conde, as the natural mother and sole heir of her children Teopista and Jose, was
and is entitled to the right to institute proceedings to obtain the acknowledgment of the
latter as natural children of the late Icasiano Abaya, from Roman Abaya, as heir and
administrator of the estate of the said Icasiano Abaya; and that the said Teopista and
Jose who died during their minority, three years after the death of their father, should
be considered and acknowledged as such natural children of the latter, for the reason
that while living they uninterruptedly enjoyed the status of his natural children. The
judgment appealed from should be affirmed without any special ruling as to costs.

With regard to the declaration that the property of the late Icasiano, which Paula Conde
might take, are of a reservable character, together with the other matter contained in
the third error assigned by the appellant to the said judgment, the writer withholds his
opinion until such time as the question may be raised between the parties in proper
form.
G.R. No. 150164 November 26, 2002

GLORIOSA V. VALARAO, petitioner,

vs.
CONRADO C. PASCUAL and MANUEL C. DIAZ,1 respondents.

DECISION

BELLOSILLO, J.:

FELICIDAD C. PASCUAL died at seventy-one (71) years, femme sole, leaving a substantial inheritance for her
querulous collateral relatives who all appear disagreeable to any sensible partition of their windfall.

To divide the disputed estate are five (5) groups of legal heirs which include respondents Conrado C. Pascual, a
brother of the deceased, and Manuel C. Diaz, a nephew, son of her sister Carmen P. Diaz, and petitioner Gloriosa
V. Valarao who is the decedent's niece. The bloodlines marking the groups of heirs are: (a) the legitimate children of
her late sister Leoncia P. Villanueva, including petitioner Gloriosa V. Valarao; (b) the legitimate children of her late
sister Carmen P. Diaz including respondent Manuel C. Diaz; (c) the legitimate children of her late brother Macario
Pascual; (d) the legitimate children of her late sister Milagros P. de Leon; and, (e) the decedent's surviving sister
Augustia C. Pascual and brothers Leonardo C. Pascual and Conrado C. Pascual, the latter being one of
respondents herein.

On 27 May 1998 petitioner Gloriosa V. Valarao initiated before the Regional Trial Court of Paraaque City special
proceedings docketed as SP No. 98-061 for the issuance of letters of administration in her favor over the estate of
Felicidad C. Pascual. On 29 September 1998 respondent Conrado C. Pascual and some of his co-heirs, including
respondent Diaz, filed with the same probate court a petition for probate, docketed as SP No. 98-0124, of an alleged
holographic will of Felicidad C. Pascual. The two (2) special proceedings were consolidated.

On 26 January 1999, by agreement of the parties in the proceedings a quo, petitioner Valarao and respondent Diaz
were appointed joint administrators of the estate of Felicidad C. Pascual. On 8 February 2000, RTC-Br. 260 of
Paraaque City rendered a Decision which dismissed SP No. 98-0124, denying probate of the alleged holographic
will of the decedent and giving due course to the intestate settlement of the estate.2 On 22 March 2000 respondent
Pascual appealed the Decision to the Court of Appeals by notice of appeal.

On 2 May 2000, in view of the appeal taken from the disallowance of the holographic will, petitioner Valarao moved
in the probate court for her appointment as special administratrix of the estate. On 9 May 2000 respondent Diaz also
asked for his designation as special co-administrator of the estate alongside petitioner. On 10 May 2000 the motions
were heard wherein petitioner opposed the request of respondent Diaz on the ground that he had allegedly
neglected his previous assignment as co-administrator of the estate.

On 7 June 2000 the probate court issued an Order appointing petitioner Valarao as special administratrix based on
this observation -

Weighing the pros and cons of the situation, considering the unanimity of choice by the heirs, of Mrs. Valarao as
special administratrix, and the vigorous objection to Mr. Diaz as co-administrator, not to mention the fact that the
heirs on the side of Mrs. Valarao represent a numerical majority of the legal heirs of the deceased, the Court
believes that it will be to the best interest of the estate and the heirs themselves if Mrs. Gloriosa Valarao is
appointed special administratrix.3
On 29 June 2000 the probate court approved petitioner's bond of P500,000.00, and on 6 July 2000 she took her
oath of office as special administratrix.

On 19 July 2000 respondent Diaz moved for reconsideration of his rejection as special co-administrator of the
estate. He contested the allegation of petitioner Valarao that he had been remiss in his duties as co-administrator.
He cited as examples of his services the collection of rentals for properties included in the estate, the payment of
estate taxes and the deposit of about P4,000,000.00 in a joint bank account held in trust for the estate by him and
petitioner as co-administrators. Respondent Diaz further alleged that justice and equity demanded that his group of
heirs be also represented in the management of the estate.

On the other hand, petitioner reiterated the alleged uncooperative conduct of respondent Diaz in discharging his
tasks as co-administrator, and at the same time moved that he and his group of sympathetic heirs be compelled to
surrender to her as special administratrix the books and records of a corporation where the estate owned substantial
interests.

On 11 September 2000 the probate court denied the motion for reconsideration and ordered respondent Diaz and all
the heirs to respect the authority of petitioner Valarao as special administratrix, especially by furnishing her with
copies of documents pertinent to the properties comprising the estate. Anent the charges of nonfeasance in his
tasks as co-administrator, the probate court found -

x x x [respondent] Diaz has not disputed these charges beyond making a mere general denial, stating that he had
been diligent and regular in the performance of his duties when he was still the estates co-administrator.
Considering the allegations of both Manuel Diaz and Gloriosa Valarao and assessing the circumstances surrounding
the case, this Court is of the considered view that the best interest of the estate will be best protected if only one
administrator is appointed for, in that way, conflicting interests which might work to the detriment of the estate may
be avoided.4

On 25 September 2000 respondents Pascual and Diaz along with other heirs moved for reconsideration of the 11
September 2000 Order on the ground that petitioner Valarao as special administratrix was not authorized to
dispossess the heirs of their rightful custody of properties in the absence of proof that the same properties were
being dissipated by them, and that the possessory right of petitioner as special administratrix had already been
exercised by her "constructively" when the heirs on her side took possession of the estate supposedly in her behalf.
Respondents further alleged that the motion was pending resolution by the probate court.

On 10 October 2000, while the motion for reconsideration was pending resolution, respondents filed a petition for
certiorari under Rule 65 of the 1997 Rules of Civil Procedure with the Court of Appeals, docketed as CA-G.R. SP
No. 61193, to reverse and set aside the Orders dated 7 June 2000 and 11 September 2000 insofar as the probate
court appointed only petitioner Valarao as special administratrix, and to order the appointment of respondent Diaz as
special co-administrator of the estate.

On 15 May 2001 the probate court upon motion cited respondents for indirect contempt of court for refusing to turn
over to petitioner Valarao documents covering properties belonging to the estate and ordered them arrested until
compliance with the order to hand over the documents. The warrant of arrest was subsequently lifted by the probate
court after respondents promised to deliver the documents.

On 13 June 2001 respondents filed their supplemental petition for certiorari in CA-G.R. SP No. 61193 seeking
permanent injunction against the enforcement of the Orders of 7 June 2000 and 11 September 2000 also as they
mandated the turn over of documents to petitioner Valarao.

On 28 September 2001 the Court of Appeals promulgated its Decision reversing and setting aside the Order of 7
June 2000 of RTC-Br. 260, Paraaque City, appointing petitioner Valarao as lone special administratrix although the
fallo of the CA Decision was silent on whether the probate court should also appoint respondent Diaz as special co-
administrator of the estate of Felicidad C. Pascual.5 The appellate court explained that since the heirs were divided
into two (2) scrappy factions, justice and equity demanded that both factions be represented in the management of
the estate of the deceased, citing Matias v. Gonzales,6 Corona v. Court of Appeals,7 and Vda. de Dayrit v.
Ramolete.8 Hence, this petition for review on certiorari.
Petitioner Valarao claims that the probate court did not commit grave abuse of discretion when it rejected the
application of respondent Diaz for appointment as special co-administrator of the estate because of his indubitable
uncooperative attitude towards effective administration of the estate. She also argues that diverse interests among
different groups of heirs do not give each of them the absolute right to secure the appointment of a co-administrator
from within their ranks since it remains the discretion of the probate court to designate the administrators of an
estate. She further asserts that as special administratrix of the estate she possesses the authority to demand the
surrender of documents pertinent to the estate insofar as necessary to fulfill her mandate.

On 26 February 2002 respondents filed their Comment on the petition alleging the absence of special reasons to
justify a review of the assailed Decision and of the partiality of the trial judge in favor of petitioner.

We grant the petition. To begin with, the probate court had ample jurisdiction to appoint petitioner Valarao as special
administratrix and to assist her in the discharge of her functions, even after respondents had filed a notice of appeal
from the Decision disallowing probate of the holographic will of Felicidad C. Pascual. This is because the appeal is
one where multiple appeals are allowed and a record on appeal is required.9 In this mode of appeal, the probate
court loses jurisdiction only over the subject matter of the appeal but retains jurisdiction over the special proceeding
from which the appeal was taken for purposes of further remedies which the parties may avail of, including the
appointment of a special administrator.10

Moreover, there is nothing whimsical nor capricious in the action of the probate court not to appoint respondent Diaz
as special co-administrator since the Orders of 7 June 2000 and 11 September 2000 clearly stipulate the grounds
for the rejection. The records also manifest that the probate court weighed the evidence of the applicants for special
administrator before concluding not to designate respondent Diaz because the latter was found to have been remiss
in his previous duty as co-administrator of the estate in the early part of his administration. Verily, the process of
decision-making observed by the probate court evinces reason, equity, justice and legal principle unmistakably
opposite the core of abusive discretion correctible by the special civil action of certiorari under which the appellate
court was bound to act. Finally, the extraordinary writ does not operate to reverse factual findings where evidence
was assessed in the ordinary course of the proceedings since perceived errors in the appreciation of evidence do
not embroil jurisdictional issues.11

Respondents cannot take comfort in the cases of Matias v. Gonzales,12 Corona v. Court of Appeals13 and Vda. de
Dayrit v. Ramolete,14 cited in the assailed Decision. Contrary to their claim, these cases do not establish an absolute
right demandable from the probate court to appoint special co-administrators who would represent the respective
interests of squabbling heirs. Rather, the cases constitute precedents for the authority of the probate court to
designate not just one but also two or more special co-administrators for a single estate. Now whether the probate
court exercises such prerogative when the heirs are fighting among themselves is a matter left entirely to its sound
discretion.15

Furthermore, the cases of Matias, Corona and Vda. de Dayrit hinge upon factual circumstances other than the
incompatible interests of the heirs which are glaringly absent from the instant case. In Matias this Court ordered the
appointment of a special co-administrator because of the applicant's status as the universal heir and executrix
designated in the will, which we considered to be a "special interest" deserving protection during the pendency of
the appeal. Quite significantly, since the lower court in Matias had already deemed it best to appoint more than one
special administrator, we found grave abuse of discretion in the act of the lower court in ignoring the applicant's
distinctive status in the selection of another special administrator.

In Corona we gave "highest consideration" to the "executrix's choice of Special Administrator, considering her own
inability to serve and the wide latitude of discretion given her by the testatrix in her will,"16 for this Court to compel
her appointment as special co-administrator. It is also manifest from the decision in Corona that the presence of
conflicting interests among the heirs therein was not per se the key factor in the designation of a second special
administrator as this fact was taken into account only to disregard or, in the words of Corona, to "overshadow" the
objections to the appointment on grounds of "impracticality and lack of kinship."17

Finally in Vda. de Dayrit we justified the designation of the wife of the decedent as special co-administrator because
it was "our considered opinion that inasmuch as petitioner-wife owns one-half of the conjugal properties and that
she, too, is a compulsory heir of her husband, to deprive her of any hand in the administration of the estate prior to
the probate of the will would be unfair to her proprietary interests."18 The special status of a surviving spouse in the
special administration of an estate was also emphasized in Fule v. Court of Appeals19 where we held that the widow
would have more interest than any other next of kin in the proper administration of the entire estate since she
possesses not only the right of succession over a portion of the exclusive property of the decedent but also a share
in the conjugal partnership for which the good or bad administration of the estate may affect not just the fruits but
more critically the naked ownership thereof. And in Gabriel v. Court of Appeals20 we recognized the distinctive status
of a surviving spouse applying as regular administrator of the deceased spouse's estate when we counseled the
probate court that "there must be a very strong case to justify the exclusion of the widow from the administration."

Clearly, the selection of a special co-administrator in Matias, Corona and Vda. de Dayrit was based upon the
independent proprietary interests and moral circumstances of the appointee that were not necessarily related to the
demand for representation being repeatedly urged by respondents.

We also rule that the probate court in issuing the Order of 11 September 2000 did not err in commanding
respondents to turn over all documents pertinent to the estate under special administration and in enforcing such
order by means of contempt of court. The powers of a special administrator are plainly delineated in Sec. 2, Rule 80
of the Rules of Court, vesting upon him the authority to "take possession and charge of the goods, chattels, rights,
credits and estate of the deceased and preserve the same for the executor or administrator afterwards appointed x x
x x"

Contrary to respondents' assertion, there is nothing in Sec. 2 requiring a special administrator to take possession of
the estate only upon a prior finding that the heirs have been wasting properties of the estate which are in their
possession. The law explicitly authorizes him to take possession of the properties in whatever state they are,
provided he does so to preserve them for the regular administrator appointed afterwards. Clearly, the special
administrator enjoys not merely subsidiary possession to be carried out when the heirs dissipate the properties but
the primary and independent discretion of keeping them so they may be preserved for regular administration.

Moreover, respondents cannot deprive the special administratrix of access to and custody of essential documents
by arguing that their possession thereof allegedly in behalf of petitioner is already the equivalent of "constructive
possession" which constitutes full compliance with the possessory powers of petitioner as special administratrix
under Sec. 2 of Rule 80. Contrary to what respondents seem to understand by "constructive possession," the right
of possession whether characterized as actual or constructive invariably empowers the special administrator with
the discretion at any time to exercise dominion or control over the properties and documents comprising the
estate.21 Hence, even if we are to give credence to the theory that petitioner also has "constructive possession" of
the documents alongside respondents' actual possession thereof, respondents would nonetheless be under the
obligation to turn them over whenever the special administratrix requires their actual delivery.

In any event, as we have held in De Guzman v. Guadiz,22 the partisan possession exercised by litigants over
properties of the estate differs greatly from the neutral possession of a special administrator under the Rules of
Court. Quite obviously, with this distinction, the possession of portions of the estate by respondents as heirs
necessarily excludes the possessory right over the same properties inherent in the mandate of a special
administrator.

The language of Sec. 2, Rule 80 of the Rules of Court, also unmistakably gives a special administrator the discretion
to take actual custody of the properties of the estate for the purpose of preserving them for regular administration.
This appreciation of the powers of a special administrator is fairly evident from the combination of the words
"possession" and "charge" in Sec. 2, so much so that even if we have to concede that "possession" means only the
fictitious custody of a thing as respondents suggest, the word "charge," i.e., the commitment of a thing to the care
and custody of another,23 would emphasize the requirement of actual possession of the properties of the estate
whenever vital according to the discretion of the special administrator. When taken together, the words "possession"
and "charge" serve to highlight the fact that a special administrator must be able to subject the properties of the
estate to his control and management when in his good judgment such action is needed. Indeed, this understanding
of the possessory right of a special administrator is indispensable in fulfilling his mandate to preserve the properties
of the estate until a regular administrator is designated, for fiction and illusion cannot stand in place of the concrete
and tangible exercise of possession if he is to function effectively.

Finally, respondents cannot disobey the reasonable exercise of the authority of a special administrator on the
dubious ground that the order appointing petitioner Valarao as special administratrix had not in the meantime
become final and executory because of a pending motion for reconsideration filed by them. The fallacy of this
reasoning is apparent, for an interlocutory order is not instantly appealable and therefore there is no period nor
action to suspend or interrupt by a motion for reconsideration;24 it is even well settled that a special civil action for
certiorari does not suspend the immediate enforceability of an interlocutory order absent a temporary restraining
order or an injunction.25 In the same manner, the appointment of a special administrator being an interlocutory order
is not interrupted by a motion for reconsideration and thus must be obeyed as the proceedings in the probate court
progress.26 The ruling in PAFLU v. Salvador27 reiterated in Republic Commodities Corporation v. Oca28 is
enlightening -

[The] refusal to accord due respect and yield obedience to what a court or administrative tribunal ordains is fraught
with such grave consequences x x x x If such a conduct were not condemned, some other group or groups
emboldened by the absence of any reproof or disapproval may conduct themselves similarly. The injury to the rule
of law may well-nigh be irreparable x x x x When judicial or quasi-judicial tribunals speak, what they decree must be
obeyed; what they ordain must be followed. A party dissatisfied may ask for reconsideration and, if denied, may go
on to higher tribunal. As long as the orders stand unmodified, however, they must, even if susceptible to well-
founded doubts on jurisdictional grounds be faithfully complied with.

Needless to state, the special administratrix appointed by the probate court must be constantly aware that she is not
a representative nor the agent of the parties suggesting the appointment but the administrator in charge of the
estate and in fact an officer of the court. As an officer of the court, she is subject to the supervision and control of the
probate court and is expected to work for the best interests of the entire estate, especially its smooth administration
and earliest settlement.29 Whatever differences that may exist between the heirs shall be ironed out fairly and
objectively for the attainment of that end. She ought to be sensitive to her position as special administratrix and
neutral possessor which under the Rules of Court is both fiduciary and temporary in character upon which
accountability attaches in favor of the estate as well as the other heirs, especially respondents Pascual and Diaz in
light of her alleged rivalry with them.

WHEREFORE, the instant Petition for Review is GRANTED. The Decision of the Court of Appeals dated 28
September 2001 in CA-G.R. SP No. 61193, "Conrado C. Pascual and Manuel P. Diaz v. The Hon. RTC of
Paraaque City, Branch 260, and Gloriosa V. Valarao," is REVERSED and SET ASIDE. The Orders dated 7 June
2000 and 11 September 2000 of the Regional Trial Court, Branch 260, of Paraaque City, rejecting the application
of respondent Manuel C. Diaz30 as special co-administrator of the estate of Felicidad C. Pascual and ordering
respondents Conrado C. Pascual and Manuel C. Diaz and all other heirs who may have in their possession or
custody papers, records, certificates of titles over parcels of land, etc., pertaining to properties of the estate of the
late Felicidad C. Pascual to turn over such papers, records and titles to petitioner Gloriosa V. Valarao as special
administratrix thereof, are REINSTATED and AFFIRMED. No costs.

SO ORDERED.

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

PAULA DE LA CERNA, ET AL., petitioners,

vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF APPEALS, respondents.

Philip M. Alo and Crispin M. Menchavez for petitioners.

Nicolas Jumapao for respondents.

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

Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division (C.A.-G.R. No.
23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R-3819) and ordering the dismissal of
an action for partition.
The factual background appears in the following portion of the decision of the Court of Appeals (Petition, Annex A,
pp. 2-4):

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

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

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

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

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

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939 decree admitting
his will to probate. The contention that being void the will cannot be validated, overlooks that the ultimate decision
on Whether an act is valid or void rests with the courts, and here they have spoken with finality when the will was
probated in 1939. On this court, the dismissal of their action for partition was correct.
But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that the probate
decree in 1989 could only affect the share of the deceased husband, Bernabe de la Cerna. It could not include the
disposition of the share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest in the
conjugal properties the probate court acquired no jurisdiction, precisely because her estate could not then be in
issue. Be it remembered that prior to the new Civil Code, a will could not be probated during the testator's lifetime.

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

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

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

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

G.R. No. L-43082 June 18, 1937

PABLO LORENZO, as trustee of the estate of Thomas Hanley, deceased, plaintiff-appellant,

vs.
JUAN POSADAS, JR., Collector of Internal Revenue, defendant-appellant.

Pablo Lorenzo and Delfin Joven for plaintiff-appellant.

Office of the Solicitor-General Hilado for defendant-appellant.

LAUREL, J.:

On October 4, 1932, the plaintiff Pablo Lorenzo, in his capacity as trustee of the estate of Thomas Hanley,
deceased, brought this action in the Court of First Instance of Zamboanga against the defendant, Juan Posadas, Jr.,
then the Collector of Internal Revenue, for the refund of the amount of P2,052.74, paid by the plaintiff as inheritance
tax on the estate of the deceased, and for the collection of interst thereon at the rate of 6 per cent per annum,
computed from September 15, 1932, the date when the aforesaid tax was [paid under protest. The defendant set up
a counterclaim for P1,191.27 alleged to be interest due on the tax in question and which was not included in the
original assessment. From the decision of the Court of First Instance of Zamboanga dismissing both the plaintiff's
complaint and the defendant's counterclaim, both parties appealed to this court.

It appears that on May 27, 1922, one Thomas Hanley died in Zamboanga, Zamboanga, leaving a will (Exhibit 5) and
considerable amount of real and personal properties. On june 14, 1922, proceedings for the probate of his will and
the settlement and distribution of his estate were begun in the Court of First Instance of Zamboanga. The will was
admitted to probate. Said will provides, among other things, as follows:

4. I direct that any money left by me be given to my nephew Matthew Hanley.

 5. I direct that all real estate owned by me at the time of my death be not sold or otherwise disposed of for a
period of ten (10) years after my death, and that the same be handled and managed by the executors, and
proceeds thereof to be given to my nephew, Matthew Hanley, at Castlemore, Ballaghaderine, County of
Rosecommon, Ireland, and that he be directed that the same be used only for the education of my brother's
children and their descendants.

6. I direct that ten (10) years after my death my property be given to the above mentioned Matthew Hanley
to be disposed of in the way he thinks most advantageous.

xxx xxx xxx

8. I state at this time I have one brother living, named Malachi Hanley, and that my nephew, Matthew
Hanley, is a son of my said brother, Malachi Hanley.

The Court of First Instance of Zamboanga considered it proper for the best interests of ther estate to appoint a
trustee to administer the real properties which, under the will, were to pass to Matthew Hanley ten years after the
two executors named in the will, was, on March 8, 1924, appointed trustee. Moore took his oath of office and gave
bond on March 10, 1924. He acted as trustee until February 29, 1932, when he resigned and the plaintiff herein was
appointed in his stead.

During the incumbency of the plaintiff as trustee, the defendant Collector of Internal Revenue, alleging that the
estate left by the deceased at the time of his death consisted of realty valued at P27,920 and personalty valued at
P1,465, and allowing a deduction of P480.81, assessed against the estate an inheritance tax in the amount of
P1,434.24 which, together with the penalties for deliquency in payment consisting of a 1 per cent monthly interest
from July 1, 1931 to the date of payment and a surcharge of 25 per cent on the tax, amounted to P2,052.74. On
March 15, 1932, the defendant filed a motion in the testamentary proceedings pending before the Court of First
Instance of Zamboanga (Special proceedings No. 302) praying that the trustee, plaintiff herein, be ordered to pay to
the Government the said sum of P2,052.74. The motion was granted. On September 15, 1932, the plaintiff paid said
amount under protest, notifying the defendant at the same time that unless the amount was promptly refunded suit
would be brought for its recovery. The defendant overruled the plaintiff's protest and refused to refund the said
amount hausted, plaintiff went to court with the result herein above indicated.

In his appeal, plaintiff contends that the lower court erred:

I. In holding that the real property of Thomas Hanley, deceased, passed to his instituted heir, Matthew
Hanley, from the moment of the death of the former, and that from the time, the latter became the owner
thereof.

II. In holding, in effect, that there was deliquency in the payment of inheritance tax due on the estate of said
deceased.

III. In holding that the inheritance tax in question be based upon the value of the estate upon the death of the
testator, and not, as it should have been held, upon the value thereof at the expiration of the period of ten
years after which, according to the testator's will, the property could be and was to be delivered to the
instituted heir.

IV. In not allowing as lawful deductions, in the determination of the net amount of the estate subject to said
tax, the amounts allowed by the court as compensation to the "trustees" and paid to them from the
decedent's estate.

V. In not rendering judgment in favor of the plaintiff and in denying his motion for new trial.

The defendant-appellant contradicts the theories of the plaintiff and assigns the following error besides:

The lower court erred in not ordering the plaintiff to pay to the defendant the sum of P1,191.27, representing
part of the interest at the rate of 1 per cent per month from April 10, 1924, to June 30, 1931, which the
 plaintiff had failed to pay on the inheritance tax assessed by the defendant against the estate of Thomas
Hanley.

The following are the principal questions to be decided by this court in this appeal: (a) When does the inheritance
tax accrue and when must it be satisfied? (b) Should the inheritance tax be computed on the basis of the value of
the estate at the time of the testator's death, or on its value ten years later? (c) In determining the net value of the
estate subject to tax, is it proper to deduct the compensation due to trustees? (d) What law governs the case at bar?
Should the provisions of Act No. 3606 favorable to the tax-payer be given retroactive effect? (e) Has there been
deliquency in the payment of the inheritance tax? If so, should the additional interest claimed by the defendant in his
appeal be paid by the estate? Other points of incidental importance, raised by the parties in their briefs, will be
touched upon in the course of this opinion.

(a) The accrual of the inheritance tax is distinct from the obligation to pay the same. Section 1536 as amended, of
the Administrative Code, imposes the tax upon "every transmission by virtue of inheritance, devise, bequest,
giftmortis causa, or advance in anticipation of inheritance,devise, or bequest." The tax therefore is upon
transmission or the transfer or devolution of property of a decedent, made effective by his death. (61 C. J., p. 1592.)
It is in reality an excise or privilege tax imposed on the right to succeed to, receive, or take property by or under a
will or the intestacy law, or deed, grant, or gift to become operative at or after death. Acording to article 657 of the
Civil Code, "the rights to the succession of a person are transmitted from the moment of his death." "In other words",
said Arellano, C. J., ". . . the heirs succeed immediately to all of the property of the deceased ancestor. 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." (Bondad vs. Bondad, 34 Phil., 232. See also, Mijares vs.
Nery, 3 Phil., 195; Suilong & Co., vs. Chio-Taysan, 12 Phil., 13; Lubrico vs. Arbado, 12 Phil., 391; Innocencio vs.
Gat-Pandan, 14 Phil., 491; Aliasas vs.Alcantara, 16 Phil., 489; Ilustre vs. Alaras Frondosa, 17 Phil., 321; Malahacan
vs. Ignacio, 19 Phil., 434; Bowa vs. Briones, 38 Phil., 27; Osario vs. Osario & Yuchausti Steamship Co., 41 Phil.,
531; Fule vs. Fule, 46 Phil., 317; Dais vs. Court of First Instance of Capiz, 51 Phil., 396; Baun vs. Heirs of Baun, 53
Phil., 654.) Plaintiff, however, asserts that while article 657 of the Civil Code is applicable to testate as well as
intestate succession, it operates only in so far as forced heirs are concerned. But the language of article 657 of the
Civil Code is broad and makes no distinction between different classes of heirs. That article does not speak of
forced heirs; it does not even use the word "heir". It speaks of the rights of succession and the transmission thereof
from the moment of death. The provision of section 625 of the Code of Civil Procedure regarding the authentication
and probate of a will as a necessary condition to effect transmission of property does not affect the general rule laid
down in article 657 of the Civil Code. The authentication of a will implies its due execution but once probated and
allowed the transmission is effective as of the death of the testator in accordance with article 657 of the Civil Code.
Whatever may be the time when actual transmission of the inheritance takes place, succession takes place in any
event at the moment of the decedent's death. The time when the heirs legally succeed to the inheritance may differ
from the time when the heirs actually receive such inheritance. "Poco importa", says Manresa commenting on article
657 of the Civil Code, "que desde el falleimiento del causante, hasta que el heredero o legatario entre en posesion
de los bienes de la herencia o del legado, transcurra mucho o poco tiempo, pues la adquisicion ha de retrotraerse al
momento de la muerte, y asi lo ordena el articulo 989, que debe considerarse como complemento del presente." (5
Manresa, 305; see also, art. 440, par. 1, Civil Code.) Thomas Hanley having died on May 27, 1922, the inheritance
tax accrued as of the date.

From the fact, however, that Thomas Hanley died on May 27, 1922, it does not follow that the obligation to pay the
tax arose as of the date. The time for the payment on inheritance tax is clearly fixed by section 1544 of the Revised
Administrative Code as amended by Act No. 3031, in relation to section 1543 of the same Code. The two sections
follow:

SEC. 1543. Exemption of certain acquisitions and transmissions. The following shall not be taxed:

(a) The merger of the usufruct in the owner of the naked title.

(b) The transmission or delivery of the inheritance or legacy by the fiduciary heir or legatee to the
trustees.

(c) The transmission from the first heir, legatee, or donee in favor of another beneficiary, in
accordance with the desire of the predecessor.
 In the last two cases, if the scale of taxation appropriate to the new beneficiary is greater than that paid by
the first, the former must pay the difference.

SEC. 1544. When tax to be paid. The tax fixed in this article shall be paid:

(a) In the second and third cases of the next preceding section, before entrance into possession of
the property.

(b) In other cases, within the six months subsequent to the death of the predecessor; but if judicial
testamentary or intestate proceedings shall be instituted prior to the expiration of said period, the
payment shall be made by the executor or administrator before delivering to each beneficiary his
share.

If the tax is not paid within the time hereinbefore prescribed, interest at the rate of twelve per centum per
annum shall be added as part of the tax; and to the tax and interest due and unpaid within ten days after the
date of notice and demand thereof by the collector, there shall be further added a surcharge of twenty-five
per centum.

A certified of all letters testamentary or of admisitration shall be furnished the Collector of Internal Revenue
by the Clerk of Court within thirty days after their issuance.

It should be observed in passing that the word "trustee", appearing in subsection (b) of section 1543, should read
"fideicommissary" or "cestui que trust". There was an obvious mistake in translation from the Spanish to the English
version.

The instant case does fall under subsection (a), but under subsection (b), of section 1544 above-quoted, as there is
here no fiduciary heirs, first heirs, legatee or donee. Under the subsection, the tax should have been paid before the
delivery of the properties in question to P. J. M. Moore as trustee on March 10, 1924.

(b) The plaintiff contends that the estate of Thomas Hanley, in so far as the real properties are concerned, did not
and could not legally pass to the instituted heir, Matthew Hanley, until after the expiration of ten years from the death
of the testator on May 27, 1922 and, that the inheritance tax should be based on the value of the estate in 1932, or
ten years after the testator's death. The plaintiff introduced evidence tending to show that in 1932 the real properties
in question had a reasonable value of only P5,787. This amount added to the value of the personal property left by
the deceased, which the plaintiff admits is P1,465, would generate an inheritance tax which, excluding deductions,
interest and surcharge, would amount only to about P169.52.

If death is the generating source from which the power of the estate to impose inheritance taxes takes its being and
if, upon the death of the decedent, succession takes place and the right of the estate to tax vests instantly, the tax
should be measured by the vlaue of the estate as it stood at the time of the decedent's death, regardless of any
subsequent contingency value of any subsequent increase or decrease in value. (61 C. J., pp. 1692, 1693; 26 R. C.
L., p. 232; Blakemore and Bancroft, Inheritance Taxes, p. 137. See also Knowlton vs. Moore, 178 U.S., 41; 20 Sup.
Ct. Rep., 747; 44 Law. ed., 969.) "The right of the state to an inheritance tax accrues at the moment of death, and
hence is ordinarily measured as to any beneficiary by the value at that time of such property as passes to him.
Subsequent appreciation or depriciation is immaterial." (Ross, Inheritance Taxation, p. 72.)

Our attention is directed to the statement of the rule in Cyclopedia of Law of and Procedure (vol. 37, pp. 1574, 1575)
that, in the case of contingent remainders, taxation is postponed until the estate vests in possession or the
contingency is settled. This rule was formerly followed in New York and has been adopted in Illinois, Minnesota,
Massachusetts, Ohio, Pennsylvania and Wisconsin. This rule, horever, is by no means entirely satisfactory either to
the estate or to those interested in the property (26 R. C. L., p. 231.). Realizing, perhaps, the defects of its anterior
system, we find upon examination of cases and authorities that New York has varied and now requires the
immediate appraisal of the postponed estate at its clear market value and the payment forthwith of the tax on its out
of the corpus of the estate transferred. (In re Vanderbilt, 172 N. Y., 69; 69 N. E., 782; In re Huber, 86 N. Y. App. Div.,
458; 83 N. Y. Supp., 769; Estate of Tracy, 179 N. Y., 501; 72 N. Y., 519; Estate of Brez, 172 N. Y., 609; 64 N. E.,
958; Estate of Post, 85 App. Div., 611; 82 N. Y. Supp., 1079. Vide also, Saltoun vs. Lord Advocate, 1 Peter. Sc.
App., 970; 3 Macq. H. L., 659; 23 Eng. Rul. Cas., 888.) California adheres to this new rule (Stats. 1905, sec. 5, p.
343).
But whatever may be the rule in other jurisdictions, we hold that a transmission by inheritance is taxable at the time
of the predecessor's death, notwithstanding the postponement of the actual possession or enjoyment of the estate
by the beneficiary, and the tax measured by the value of the property transmitted at that time regardless of its
appreciation or depreciation.

(c) Certain items are required by law to be deducted from the appraised gross in arriving at the net value of the
estate on which the inheritance tax is to be computed (sec. 1539, Revised Administrative Code). In the case at bar,
the defendant and the trial court allowed a deduction of only P480.81. This sum represents the expenses and
disbursements of the executors until March 10, 1924, among which were their fees and the proven debts of the
deceased. The plaintiff contends that the compensation and fees of the trustees, which aggregate P1,187.28
(Exhibits C, AA, EE, PP, HH, JJ, LL, NN, OO), should also be deducted under section 1539 of the Revised
Administrative Code which provides, in part, as follows: "In order to determine the net sum which must bear the tax,
when an inheritance is concerned, there shall be deducted, in case of a resident, . . . the judicial expenses of the
testamentary or intestate proceedings, . . . ."

A trustee, no doubt, is entitled to receive a fair compensation for his services (Barney vs. Saunders, 16 How., 535;
14 Law. ed., 1047). But from this it does not follow that the compensation due him may lawfully be deducted in
arriving at the net value of the estate subject to tax. There is no statute in the Philippines which requires trustees'
commissions to be deducted in determining the net value of the estate subject to inheritance tax (61 C. J., p. 1705).
Furthermore, though a testamentary trust has been created, it does not appear that the testator intended that the
duties of his executors and trustees should be separated. (Ibid.; In re Vanneck's Estate, 161 N. Y. Supp., 893; 175
App. Div., 363; In re Collard's Estate, 161 N. Y. Supp., 455.) On the contrary, in paragraph 5 of his will, the testator
expressed the desire that his real estate be handled and managed by his executors until the expiration of the period
of ten years therein provided. Judicial expenses are expenses of administration (61 C. J., p. 1705) but, in State vs.
Hennepin County Probate Court (112 N. W., 878; 101 Minn., 485), it was said: ". . . The compensation of a trustee,
earned, not in the administration of the estate, but in the management thereof for the benefit of the legatees or
devises, does not come properly within the class or reason for exempting administration expenses. . . . Service
rendered in that behalf have no reference to closing the estate for the purpose of a distribution thereof to those
entitled to it, and are not required or essential to the perfection of the rights of the heirs or legatees. . . . Trusts . . . of
the character of that here before the court, are created for the the benefit of those to whom the property ultimately
passes, are of voluntary creation, and intended for the preservation of the estate. No sound reason is given to
support the contention that such expenses should be taken into consideration in fixing the value of the estate for the
purpose of this tax."

(d) The defendant levied and assessed the inheritance tax due from the estate of Thomas Hanley under the
provisions of section 1544 of the Revised Administrative Code, as amended by section 3 of Act No. 3606. But Act
No. 3606 went into effect on January 1, 1930. It, therefore, was not the law in force when the testator died on May
27, 1922. The law at the time was section 1544 above-mentioned, as amended by Act No. 3031, which took effect
on March 9, 1922.

It is well-settled that inheritance taxation is governed by the statute in force at the time of the death of the decedent
(26 R. C. L., p. 206; 4 Cooley on Taxation, 4th ed., p. 3461). The taxpayer can not foresee and ought not to be
required to guess the outcome of pending measures. Of course, a tax statute may be made retroactive in its
operation. Liability for taxes under retroactive legislation has been "one of the incidents of social life." (Seattle vs.
Kelleher, 195 U. S., 360; 49 Law. ed., 232 Sup. Ct. Rep., 44.) But legislative intent that a tax statute should operate
retroactively should be perfectly clear. (Scwab vs. Doyle, 42 Sup. Ct. Rep., 491; Smietanka vs. First Trust & Savings
Bank, 257 U. S., 602; Stockdale vs. Insurance Co., 20 Wall., 323; Lunch vs. Turrish, 247 U. S., 221.) "A statute
should be considered as prospective in its operation, whether it enacts, amends, or repeals an inheritance tax,
unless the language of the statute clearly demands or expresses that it shall have a retroactive effect, . . . ." (61 C.
J., P. 1602.) Though the last paragraph of section 5 of Regulations No. 65 of the Department of Finance makes
section 3 of Act No. 3606, amending section 1544 of the Revised Administrative Code, applicable to all estates the
inheritance taxes due from which have not been paid, Act No. 3606 itself contains no provisions indicating legislative
intent to give it retroactive effect. No such effect can begiven the statute by this court.

The defendant Collector of Internal Revenue maintains, however, that certain provisions of Act No. 3606 are more
favorable to the taxpayer than those of Act No. 3031, that said provisions are penal in nature and, therefore, should
operate retroactively in conformity with the provisions of article 22 of the Revised Penal Code. This is the reason
why he applied Act No. 3606 instead of Act No. 3031. Indeed, under Act No. 3606, (1) the surcharge of 25 per cent
is based on the tax only, instead of on both the tax and the interest, as provided for in Act No. 3031, and (2) the
taxpayer is allowed twenty days from notice and demand by rthe Collector of Internal Revenue within which to pay
the tax, instead of ten days only as required by the old law.

Properly speaking, a statute is penal when it imposes punishment for an offense committed against the state which,
under the Constitution, the Executive has the power to pardon. In common use, however, this sense has been
enlarged to include within the term "penal statutes" all status which command or prohibit certain acts, and establish
penalties for their violation, and even those which, without expressly prohibiting certain acts, impose a penalty upon
their commission (59 C. J., p. 1110). Revenue laws, generally, which impose taxes collected by the means ordinarily
resorted to for the collection of taxes are not classed as penal laws, although there are authorities to the contrary.
(See Sutherland, Statutory Construction, 361; Twine Co. vs. Worthington, 141 U. S., 468; 12 Sup. Ct., 55; Rice vs.
U. S., 4 C. C. A., 104; 53 Fed., 910; Com. vs. Standard Oil Co., 101 Pa. St., 150; State vs. Wheeler, 44 P., 430; 25
Nev. 143.) Article 22 of the Revised Penal Code is not applicable to the case at bar, and in the absence of clear
legislative intent, we cannot give Act No. 3606 a retroactive effect.

(e) The plaintiff correctly states that the liability to pay a tax may arise at a certain time and the tax may be paid
within another given time. As stated by this court, "the mere failure to pay one's tax does not render one delinqent
until and unless the entire period has eplased within which the taxpayer is authorized by law to make such payment
without being subjected to the payment of penalties for fasilure to pay his taxes within the prescribed period." (U. S.
vs. Labadan, 26 Phil., 239.)

The defendant maintains that it was the duty of the executor to pay the inheritance tax before the delivery of the
decedent's property to the trustee. Stated otherwise, the defendant contends that delivery to the trustee was delivery
to the cestui que trust, the beneficiery in this case, within the meaning of the first paragraph of subsection (b) of
section 1544 of the Revised Administrative Code. This contention is well taken and is sustained. The appointment of
P. J. M. Moore as trustee was made by the trial court in conformity with the wishes of the testator as expressed in
his will. It is true that the word "trust" is not mentioned or used in the will but the intention to create one is clear. No
particular or technical words are required to create a testamentary trust (69 C. J., p. 711). The words "trust" and
"trustee", though apt for the purpose, are not necessary. In fact, the use of these two words is not conclusive on the
question that a trust is created (69 C. J., p. 714). "To create a trust by will the testator must indicate in the will his
intention so to do by using language sufficient to separate the legal from the equitable estate, and with sufficient
certainty designate the beneficiaries, their interest in the ttrust, the purpose or object of the trust, and the property or
subject matter thereof. Stated otherwise, to constitute a valid testamentary trust there must be a concurrence of
three circumstances: (1) Sufficient words to raise a trust; (2) a definite subject; (3) a certain or ascertain object;
statutes in some jurisdictions expressly or in effect so providing." (69 C. J., pp. 705,706.) There is no doubt that the
testator intended to create a trust. He ordered in his will that certain of his properties be kept together undisposed
during a fixed period, for a stated purpose. The probate court certainly exercised sound judgment in appointment a
trustee to carry into effect the provisions of the will (see sec. 582, Code of Civil Procedure).

P. J. M. Moore became trustee on March 10, 1924. On that date trust estate vested in him (sec. 582 in relation to
sec. 590, Code of Civil Procedure). The mere fact that the estate of the deceased was placed in trust did not remove
it from the operation of our inheritance tax laws or exempt it from the payment of the inheritance tax. The
corresponding inheritance tax should have been paid on or before March 10, 1924, to escape the penalties of the
laws. This is so for the reason already stated that the delivery of the estate to the trustee was in esse delivery of the
same estate to the cestui que trust, the beneficiary in this case. A trustee is but an instrument or agent for the cestui
que trust (Shelton vs. King, 299 U. S., 90; 33 Sup. Ct. Rep., 689; 57 Law. ed., 1086). When Moore accepted the
trust and took possesson of the trust estate he thereby admitted that the estate belonged not to him but to his cestui
que trust (Tolentino vs. Vitug, 39 Phil.,126, cited in 65 C. J., p. 692, n. 63). He did not acquire any beneficial interest
in the estate. He took such legal estate only as the proper execution of the trust required (65 C. J., p. 528) and, his
estate ceased upon the fulfillment of the testator's wishes. The estate then vested absolutely in the beneficiary (65
C. J., p. 542).

The highest considerations of public policy also justify the conclusion we have reached. Were we to hold that the
payment of the tax could be postponed or delayed by the creation of a trust of the type at hand, the result would be
plainly disastrous. Testators may provide, as Thomas Hanley has provided, that their estates be not delivered to
their beneficiaries until after the lapse of a certain period of time. In the case at bar, the period is ten years. In other
cases, the trust may last for fifty years, or for a longer period which does not offend the rule against petuities. The
collection of the tax would then be left to the will of a private individual. The mere suggestion of this result is a
sufficient warning against the accpetance of the essential to the very exeistence of government. (Dobbins vs. Erie
Country, 16 Pet., 435; 10 Law. ed., 1022; Kirkland vs. Hotchkiss, 100 U. S., 491; 25 Law. ed., 558; Lane County vs.
Oregon, 7 Wall., 71; 19 Law. ed., 101; Union Refrigerator Transit Co. vs. Kentucky, 199 U. S., 194; 26 Sup. Ct.
Rep., 36; 50 Law. ed., 150; Charles River Bridge vs. Warren Bridge, 11 Pet., 420; 9 Law. ed., 773.) The obligation to
pay taxes rests not upon the privileges enjoyed by, or the protection afforded to, a citizen by the government but
upon the necessity of money for the support of the state (Dobbins vs. Erie Country, supra). For this reason, no one
is allowed to object to or resist the payment of taxes solely because no personal benefit to him can be pointed out.
(Thomas vs. Gay, 169 U. S., 264; 18 Sup. Ct. Rep., 340; 43 Law. ed., 740.) While courts will not enlarge, by
construction, the government's power of taxation (Bromley vs. McCaughn, 280 U. S., 124; 74 Law. ed., 226; 50 Sup.
Ct. Rep., 46) they also will not place upon tax laws so loose a construction as to permit evasions on merely fanciful
and insubstantial distictions. (U. S. vs. Watts, 1 Bond., 580; Fed. Cas. No. 16,653; U. S. vs. Wigglesirth, 2 Story,
369; Fed. Cas. No. 16,690, followed in Froelich & Kuttner vs. Collector of Customs, 18 Phil., 461, 481; Castle Bros.,
Wolf & Sons vs. McCoy, 21 Phil., 300; Muoz & Co. vs. Hord, 12 Phil., 624; Hongkong & Shanghai Banking
Corporation vs. Rafferty, 39 Phil., 145; Luzon Stevedoring Co. vs. Trinidad, 43 Phil., 803.) When proper, a tax
statute should be construed to avoid the possibilities of tax evasion. Construed this way, the statute, without
resulting in injustice to the taxpayer, becomes fair to the government.

That taxes must be collected promptly is a policy deeply intrenched in our tax system. Thus, no court is allowed to
grant injunction to restrain the collection of any internal revenue tax ( sec. 1578, Revised Administrative Code;
Sarasola vs. Trinidad, 40 Phil., 252). In the case of Lim Co Chui vs. Posadas (47 Phil., 461), this court had
occassion to demonstrate trenchment adherence to this policy of the law. It held that "the fact that on account of
riots directed against the Chinese on October 18, 19, and 20, 1924, they were prevented from praying their internal
revenue taxes on time and by mutual agreement closed their homes and stores and remained therein, does not
authorize the Collector of Internal Revenue to extend the time prescribed for the payment of the taxes or to accept
them without the additional penalty of twenty five per cent." (Syllabus, No. 3.)

". . . It is of the utmost importance," said the Supreme Court of the United States, ". . . that the modes adopted to
enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers,
upon whom the duty is developed of collecting the taxes, may derange the operations of government, and thereby,
cause serious detriment to the public." (Dows vs. Chicago, 11 Wall., 108; 20 Law. ed., 65, 66; Churchill and Tait vs.
Rafferty, 32 Phil., 580.)

It results that the estate which plaintiff represents has been delinquent in the payment of inheritance tax and,
therefore, liable for the payment of interest and surcharge provided by law in such cases.

The delinquency in payment occurred on March 10, 1924, the date when Moore became trustee. The interest due
should be computed from that date and it is error on the part of the defendant to compute it one month later. The
provisions cases is mandatory (see and cf. Lim Co Chui vs. Posadas, supra), and neither the Collector of Internal
Revenuen or this court may remit or decrease such interest, no matter how heavily it may burden the taxpayer.

To the tax and interest due and unpaid within ten days after the date of notice and demand thereof by the Collector
of Internal Revenue, a surcharge of twenty-five per centum should be added (sec. 1544, subsec. (b), par. 2, Revised
Administrative Code). Demand was made by the Deputy Collector of Internal Revenue upon Moore in a
communiction dated October 16, 1931 (Exhibit 29). The date fixed for the payment of the tax and interest was
November 30, 1931. November 30 being an official holiday, the tenth day fell on December 1, 1931. As the tax and
interest due were not paid on that date, the estate became liable for the payment of the surcharge.

In view of the foregoing, it becomes unnecessary for us to discuss the fifth error assigned by the plaintiff in his brief.

We shall now compute the tax, together with the interest and surcharge due from the estate of Thomas Hanley
inaccordance with the conclusions we have reached.

At the time of his death, the deceased left real properties valued at P27,920 and personal properties worth P1,465,
or a total of P29,385. Deducting from this amount the sum of P480.81, representing allowable deductions under
secftion 1539 of the Revised Administrative Code, we have P28,904.19 as the net value of the estate subject to
inheritance tax.
The primary tax, according to section 1536, subsection (c), of the Revised Administrative Code, should be imposed
at the rate of one per centum upon the first ten thousand pesos and two per centum upon the amount by which the
share exceed thirty thousand pesos, plus an additional two hundred per centum. One per centum of ten thousand
pesos is P100. Two per centum of P18,904.19 is P378.08. Adding to these two sums an additional two hundred per
centum, or P965.16, we have as primary tax, correctly computed by the defendant, the sum of P1,434.24.

To the primary tax thus computed should be added the sums collectible under section 1544 of the Revised
Administrative Code. First should be added P1,465.31 which stands for interest at the rate of twelve per centum per
annum from March 10, 1924, the date of delinquency, to September 15, 1932, the date of payment under protest, a
period covering 8 years, 6 months and 5 days. To the tax and interest thus computed should be added the sum of
P724.88, representing a surhcarge of 25 per cent on both the tax and interest, and also P10, the compromise sum
fixed by the defendant (Exh. 29), giving a grand total of P3,634.43.

As the plaintiff has already paid the sum of P2,052.74, only the sums of P1,581.69 is legally due from the estate.
This last sum is P390.42 more than the amount demanded by the defendant in his counterclaim. But, as we cannot
give the defendant more than what he claims, we must hold that the plaintiff is liable only in the sum of P1,191.27
the amount stated in the counterclaim.

The judgment of the lower court is accordingly modified, with costs against the plaintiff in both instances. So
ordered.