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Republic of the Philippines SUPREME COURT Manila
SECOND DIVISION
G.R. No. L-22036 April 30, 1979
TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL RIGOR. THE PARISH PRIEST OF THE ROMAN CATHOLIC
CHURCH OF VICTORIA, TARLAC, petitioner-appellant, vs. BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR DE RIGOR
and JOVITA ESCOBAR DE FAUSTO, respondents-appellees.
D. Tañedo, Jr. for appellants.
J. Palanca, Sr. for appellee.
AQUINO, J.:
This case is about the efficaciousness or enforceability of a devise of ricelands located at Guimba, Nueva Ecija, w ith a total area of around
forty- four hectares That devise was made in the w ill of the late Father Pascual Rigor, a native of Victoria Tarlac, in favor of his nearest male
relative w ho w ould study for the priesthood.
The parish priest of Victoria, who claimed to be a trustee of the said lands, appealed to this Court from the decision of the Court of Appeals
affirming the order of the probate court declaring that the said devise was inoperative (Rigor vs. Parish Priest of the Roman Catholic Church of
Victoria, Tarlac, CA-G.R. No. 24319-R, August 1, 1963).
The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan, died on August 9, 1935, leaving a will executed on October 29,
1933 which was probated by the Court of First Instance of Tarlac in its order of December 5, 1935. Named as devisees in the will were the
testators nearest relatives, namely, his three sisters: Florencia Rigor-Escobar, Belina Rigor-Manaloto and Nestora Rigor-Quiambao. The
testator gave a devise to his cousin, Fortunato Gamalinda.
In addition, the w ill contained the follow ing controversial bequest (paragraphing supplied to facilitate comprehension of the testamentary
provisions):

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Doy y dejo como legado CUATRO (4) PARCELAS de terreno palayeros situados en el municipiooo de Guimba de la provinciaaa de NUEVA
ECIJA, cuyo num. de CERTIFICADO DE TRANSFERENCIA DE TITULO SON; — Titulo Num. 6530, mide 16,249 m. cuadrados de superficie
Titulo Num. 6548, mide 242,998 m. cuadrados de superficie y annual 6525, mide 62,665 m. cuadrados de superficie; y Titulo Num. 6521,
mide 119,251 m. cuadrados de superficie; a cualquier pariente mio varon mas cercano que estudie la carrera eclesiatica hasta ordenarse de
Presbiterado o sea Sacerdote; las condiciones de estate legado son;
(1.a) Prohibe en absoluto la venta de estos terrenos arriba situados objectos de este legado;
(2.a) Que el legatario pariente mio mas cercano tendra derecho de empezar a gozar y administrar de este legado al principiar a curzar la
Sagrada Teologio, y ordenado de Sacerdote, hasta su muerte; pero que pierde el legatario este derecho de administrar y gozar de este
legado al dejar de continuar sus estudios para ordenarse de Presbiterado (Sacerdote).
Que el legatario una vez Sacerdote ya estara obligado a celebrar cada año VEINTE (20) Misas rezadas en sufragio de mi alma y de mis
padres difuntos, y si el actual legatario, quedase excomulgado, IPSO FACTO se le despoja este legado, y la administracion de esto pasara a
cargo del actualParroco y sus sucesoresde la Iglecia Catolica de Victoria, Tarlac.
Y en intervalo de tiempo que no haya legatario acondicionado segun lo arriba queda expresado, pasara la administracion de este legado a
cargo del actualParroco Catolico y sus sucesores, de Victoria, Tarlac.
El Parroco administrador de estate legado, acumulara, anualmente todos los productos que puede tener estate legado, ganando o sacando
de los productos anuales el CINCO (5) por ciento para su administracion, y los derechos correspondientes de las VEINTE (20) Misas rezadas
que debiera el Parroco celebrar cada año, depositando todo lo restante de los productos de estate legado, en un banco, a nombre de estate
legado.
To implement the foregoing bequest, the administratix in 1940 submitted a project containing the follow ing item:
5. LEGACY OF THE CHURCH
That it be adjudicated in favor of the legacy purported to be given to the nearest male relative w ho shall take the priesthood, and in the interim
to be administered by the actual Catholic Priest of the Roman Catholic Church of Victoria, Tarlac, Philippines, or his successors, the real
properties hereinbelow indicated, to w it:
Title No. Lot No. Area in Has. Tax Dec. Ass. Value
T-6530 3663 1.6249 18740 P 340.00
T-6548 3445-C 24.2998 18730 7,290.00
T-6525 3670 6.2665 18736 1,880.00
T-6521 3666 11.9251 18733 3,580.00
Total amount and value — 44.1163 P13,090.00
Judge Roman A. Cruz in his order of August 15, 1940, approving the project of partition, directed that after payment of the obligations of the
estate (including the sum of P3,132.26 due to the church of the Victoria parish) the administratrix should deliver to the devisees their
respective shares.
It may be noted that the administratrix and Judge Cruz did not bother to analyze the meaning and implications of Father Rigor's bequest to his
nearest male relative who would study for the priesthood. Inasmuch as no nephew of the testator claimed the devise and as the administratrix
and the legal heirs believed that the parish priest of Victoria had no right to administer the ricelands, the same w ere not delivered to that
ecclesiastic. The testate proceeding remained pending.
About thirteen years after the approval of the project of partition, or on February 19, 1954, the parish priest of Victoria f iled in the pending
testate proceeding a petition praying for the appointment of a new administrator (succeeding the deceased administration Florencia Rigor),
who should deliver to the church the said ricelands, and further praying that the possessors thereof be ordered to render an accounting of the

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fruits. The probate court granted the petition. A new administrator was appointed. On January 31, 1957 the parish priest filed another petition
for the delivery of the ricelands to the church as trustee.
The intestate heirs of Father Rigor countered with a petition dated March 25, 1957 praying that the bequest be d inoperative and that they be
adjudged as the persons entitled to the said ricelands since, as admitted by the parish priest of Victoria, "no nearest male relative of" the
testator "has ever studied for the priesthood" (pp. 25 and 35, Record on Appeal). That petition w as opposed by the parish priest of Victoria.
Finding that petition to be meritorious, the lower court, through Judge Bernabe de Aquino, declared the bequest inoperative and adjudicated
the ricelands to the testator's legal heirs in his order of June 28, 1957. The parish priest filed tw o motions for reconsideration.
Judge De Aquino granted the respond motion for reconsideration in his order of December 10, 1957 on the ground that the testator had a
grandnephew named Edgardo G. Cunanan (the grandson of his first cousin) who was a seminarian in the San Jose Seminary of the Jesuit
Fathers in Quezon City. The administrator w as directed to deliver the ricelands to the parish priest of Victoria as trustee.
The legal heirs appealed to the Court of Appeals. It reversed that order. It held that Father Rigor had created a testamentary trust for his
nearest male relative who would take the holy orders but that such trust could exist only for twenty years because to enforce it beyond that
period would violate "the rule against perpetuities. It ruled that since no legatee claimed the ricelands within twenty years after the testator's
death, the same should pass to his legal heirs, citing articles 888 and 912(2) of the old Civil Code and article 870 of the new CivilCode.
The parish priest in this appeal contends that the Court of Appeals erred in not finding that the testator created a public charitable trust and in
not liberally construing the testamentary provisions so as to render the trust operative and to prevent intestacy.
As refutation, the legal heirs argue that the Court of Appeals d the bequest inoperative because no one among the testator's nearest male
relatives had studied for the priesthood and not because the trust was a private charitable trust. According to the legal heirs, that factual
finding is binding on this Court. They point out that appellant priest's change of theory cannot be countenanced in this appeal .
In this case, as in cases involving the law of contracts and statutory construction, where the intention of the contracting parties or of the
law making body is to be ascertained, the primary issue is the determination of the testator's intention which is the law of the case (dicat testor
et erit lex. Santos vs. Manarang, 27 Phil. 209, 215; Rodriguez vs. Court of Appeals, L-28734, March 28, 1969, 27 SCRA 546).
The w ill of the testator is the first and principal law in the matter of testaments. When his intention is clearly and precis ely expressed, any
interpretation must be in accord with the plain and literal meaning of his w ords, except when it may certainly appear that his intention was
different fromthat literally expressed (In re Estate of Calderon, 26 Phil. 333).
The intent of the testator is the cardinal rule in the construction of w ills." It is "the life and soul of a will It is "the first greatest rule, the sovereign
guide, the polestar, in giving effect to a w ill". (See Dissent of Justice Moreland in Santos vs. Manarang, 27 Phil. 209, 223, 237-8.)
One canon in the interpretation of the testamentary provisions is that "the testator's intention is to be ascertained from the words of the wilt
taking into consideration the circumstances under which it was made", but excluding the testator's oral declarations as to his intention (Art.
789, Civil Code of the Philippines).
To ascertain Father Rigor's intention, it may be usefulto make the follow ing re-statement of the provisions of his will.
1. that he bequeathed the ricelands to anyone of his nearest male relatives who would pursue an ecclesiastical career until his ordination as a
priest.
2. That the devisee could not sell the ricelands.
3. That the devisee at the inception of his studies in sacred theology could enjoy and administer the ricelands, and once ordained as a priest,
he could continue enjoying and administering the same up to the time of his death but the devisee would cease to enjoy and administer the
ricelands if he discontinued his studies for the priesthood.
4. That if the devisee became a priest, he would be obligated to celebrate every year twenty masses with prayers for the repose of the souls of
Father Rigor and his parents.
5. That if the devisee is excommunicated, he w ould be divested of the legacy and the administration of the riceland would pas s to the
incumbent parish priest of Victoria and his successors.
6. That during the interval of time that there is no qualified devisee as contemplated above, the administration of the ricelands would be under
the responsibility of the incumbent parish priest of Victoria and his successors, and

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7. That the parish priest-administrator of the ricelands would accumulate annually the products thereof, obtaining or getting from the annual
produce five percent thereof for his administration and the fees corresponding to the twenty masses with prayers that the parish priest would
celebrate for each year, depositing the balance of the income of the devise in the bank in the name of his bequest.
From the foregoing testamentary provisions, it may be deduced that the testator intended to devise the ricelands to his nearest male relative
who would become a priest, who was forbidden to sell the ricelands, who would lose the devise if he discontinued his studies for the
priesthood, or having been ordained a priest, he was excommunicated, and who would be obligated to say annually twenty masses with
prayers for the repose of the souls of the testator and his parents.
On the other hand, it is clear that the parish priest of Victoria would administer the ricelands only in two situations: one, during the interval of
time that no nearest male relative of the testator was studying for the priesthood and two, in case the testator's nephew became a priest and
he w as excommunicated.
What is not clear is the duration of "el intervalo de tiempo que no haya legatario acondicionado", or how long after the testator's death would it
be determined that he had a nephew who would pursue an ecclesiastical vocation. It is that patent ambiguity that has brought about the
controversybetweenthe parish priest of Victoria and the testator's legal heirs.
Interw oven w ith that equivocal provision is the time when the nearest male relative who would study for the priesthood should be determined.
Did the testator contemplate only his nearest male relative at the time of his death? Or did he have in mind any of his nearest male relatives at
anytime after his death?
We hold that the said bequest refers to the testator's nearest male relative living at the time of his death and not to any indefinite time
thereafter. "In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in
case of representation, when it is proper" (Art. 1025, Civil Code).
The said testamentary provisions should be sensibly or reasonably construed. To construe them as referring to the testator's nearest male
relative at anytime after his death would render the provisions difficult to apply and create uncertainty as to the disposition of his estate. That
could not have been his intention.
In 1935, w hen the testator died, his nearest leagal heirs were his three sisters or second-degree relatives, Mrs. Escobar, Mrs. Manaloto and
Mrs. Quiambao. Obviously, when the testator specified his nearest male relative, he must have had in mind his nephew or a son of his sister,
who would be his third-degree relative, or possibly a grandnephew. But since he could not prognosticate the exact date of his death or state
with certitude what category of nearest male relative w ould be living at the time of his death, he could not specify that his nearest male relative
w ould be his nephew or grandnephews(the son of his nephew or niece) and so he had to use the term "nearest male relative".
It is contended by the legal heirs that the said devise was in reality intended for Ramon Quiambao, the testator's nephew and godchild, who
was the son of his sister, Mrs. Quiambao. To prove that contention, the legal heirs presented in the lower court the affidavit of Beatriz
Gamalinda, the maternal grandmother of Edgardo Cunanan, who deposed that after Father Rigor's death her own son, Valentin Gamalinda,
Jr., did not claim the devise, although he was studying for the priesthood at the San Carlos Seminary, because she (Beatriz) knew that Father
Rigor had intended that devise for his nearest male relative beloning to the Rigor family (pp. 105-114, Record on Appeal).
Mrs. Gamalinda further deposed that her ow n grandchild, Edgardo G. Cunanan, w as not the one contemplated in Father Rigor's w ill and that
Edgardo's father told her that he w as not consulted by the parish priest of Victoria before the latter filed his second motion for reconsideration
w hich wasbased on the ground that the testator's grandnephew, Edgardo, w asstudying for the priesthood at the San Jose Seminary.
Parenthetically, it should be stated at this juncture that Edgardo ceased to be a seminarian in 1961. For that reason, the legal heirs apprised
the Court of Appeals that the probate court's order adjudicating the ricelands to the parish priest of Victoria had no more leg to stand on (p. 84,
Appellant's brief).
Of course, Mrs. Gamalinda's affidavit, which is tantamount to evidence aliunde as to the testator's intention and w hich is hearsay, has no
probative value. Our opinion that the said bequest refers to the testator's nephew who was living at the time of his death, when his succession
w as opened and the successionalrights to his estate became vested, rests on a judicious and unbiased reading of the terms of the w ill.
Had the testator intended that the "cualquier pariente mio varon mas cercano que estudie la camera eclesiatica" would include indefinitely
anyone of his nearest male relatives born after his death, he could have so specified in his will He must have known that such a broad
provision w ould suspend foran unlimited period of time the efficaciousnessof his bequest.
What then did the testator mean by "el intervalo de tiempo que no haya legatario acondicionado"? The reasonable view is that he was
referring to a situation whereby his nephew living at the time of his death, who would like to become a priest, was still in grade school or in
high school or was not yet in the seminary. In that case, the parish priest of Victoria would administer the ricelands before the nephew entered
the seminary. But the moment the testator's nephew entered the seminary, then he would be entitled to enjoy and administer the ricelands and
receive the fruits thereof. In that event, the trusteeship w ould be terminated.

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Follow ing that interpretation of the will the inquiry w ould be w hether at the time Father Rigor died in 1935 he had a nephew who was studying
for the priesthood or who had manifested his desire to follow the ecclesiastical career. That query is categorically answered in paragraph 4 of
appellant priest's petitions of February 19, 1954 and January 31, 1957. He unequivocally alleged therein that "not male relative of the late
(Father) Pascual Rigor has ever studied for the priesthood" (pp. 25 and 35, Record on Appeal).
Inasmuch as the testator was not survived by any nephew who became a priest, the unavoidable conclusion is that the bequest in question
was ineffectual or inoperative. Therefore, the administration of the ricelands by the parish priest of Victoria, as envisaged in the wilt was
likew ise inoperative.
The appellant in contending that a public charitable trust was constituted by the testator in is favor assumes that he was a trus tee or a
substitute devisee That contention is untenable. A reading of the testamentary provisions regarding the disputed bequest not support the view
that the parish priest of Victoria was a trustee or a substitute devisee in the event that the testatorwas not survived by a nephew who became
a priest.
It should be understood that the parish priest of Victoria could become a trustee only when the testator's nephew living at the time of his death,
who desired to become a priest, had not yet entered the seminary or, having been ordained a priest, he was excommunicated. Those two
contingencies did not arise, and could not have arisen in this case because no nephew of the testator manifested any intention to enter the
seminary or ever became a priest.
The Court of Appeals correctly ruled that this case is covered by article 888 of the old Civil Code, now article 956, which provides that if "the
bequest for any reason should be inoperative, it shall be merged into the estate, except in cases of substitution and those in w hich the right of
accretion exists" ("el legado ... por qualquier causa, no tenga efecto se refundira en la masa de la herencia, fuera de los casos de sustitucion
y derecho de acrecer").
This case is also covered by article 912(2) of the old Civil Code, now article 960 (2), which provides that legal succession takes place when
the w ill "does not dispose of all that belongs to the testator." There being no substitution nor accretion as to the said ricelands the same should
be distributed among the testator's legal heirs. The effect is as if the testator had made no disposition as to the said ricelands.
The Civil Code recognizes that a person may die partly testate and partly intestate, or that there may be mixed succession. The old rule as to
the indivisibility of the testator's win is no longer valid. Thus, if a conditional legacy does not take effect, there will be intestate succession as to
the property recovered by the said legacy (Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).
We find no merit in the appeal The Appellate Court's decision is affirmed. Costs against the petitioner.
SO ORDERED
Republic of the Philippines SUPREME COURT Manila
FIRST DIVISION
G.R. No. L-54919 May 30, 1984
POLLY CAYETANO, petitioner, vs. HON. TOMAS T.
LEONIDAS, in his capacity as the PresidingJudge of Branch
XXXVIII, Court of First Instance of Manila and NENITA
CAMPOS PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari, seeking to annul the
order of the respondent judge of the Court of First Instance of
Manila, Branch XXXVIII, w hich admitted to and allow ed the
probate of the last will and testament of Adoracion C. Campos,
after an ex-parte presentation of evidence by herein private
respondent.
On January 31, 1977, Adoracion C. Campos died, leaving her
father, petitioner Hermogenes Campos and her sisters, private
respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C.
Medina as the surviving heirs. As Hermogenes Campos was the
only compulsory heir, he executed an Affidavit of Adjudication
under Rule 74, Section I of the Rules of Court whereby he
adjudicated unto himself the ownership of the entire estate of the
deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia
filed a petition for the reprobate of a w ill of the deceased,
Adoracion Campos, which was allegedly executed in the United
States and for her appointment as administratrix of the estate of
the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an American
citizen at the time of her death and was a permanent resident of
4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the
testatrix died in Manila on January 31, 1977 while temporarily
residing with her sister at 2167 Leveriza, Malate, Manila; that
during her lifetime, the testatrix made her last wig and testament
on July 10, 1975, according to the laws of Pennsylvania, U.S.A.,
nominating Wilfredo Barzaga of New Jersey as executor; that
after the testatrix death, her last will and testament was
presented, probated, allowed, and registered with the Registry of
Wins at the County of Philadelphia, U.S.A., that Clement L.
McLaughlin, the administrator who was appointed after Dr.
Barzaga had declined and waived his appointment as executor in

6. 6
favor of the former, is also a resident of Philadelphia, U.S.A., and
that therefore, there is an urgent need for the appointment of an
administratrix to administer and eventually distribute the
properties of the estate located in the Philippines.
On January 11, 1978, an opposition to the reprobate of the w ill
was filed by herein petitioner alleging among other things, that he
has every reason to believe that the will in question is a forgery;
that the intrinsic provisions of the will are null and void; and that
even if pertinent American laws on intrinsic provisions are
invoked, the same could not apply inasmuch as they would work
injustice and injury to him.
On December 1, 1978, however, the petitioner through his
counsel, Atty. Franco Loyola, filed a Motion to Dismiss Opposition
(With Waiver of Rights or Interests) stating that he "has been able
to verify the veracity thereof (of the w ill) and now confirms the
same to be truly the probated w ill of his daughter Adoracion."
Hence, an ex-parte presentation of evidence for the reprobate of
the questioned w illw as made.
On January 10, 1979, the respondent judge issued an order, to
w it:
At the hearing, it has been satisfactorily established that
Adoracion C. Campos, in her lifetime, w as a citizen of the United
States of America w ith a permanent residence at 4633 Ditman
Street, Philadelphia, PA 19124, (Exhibit D) that w hen alive,
Adoracion C. Campos executed a Last Will and Testament in the
county of Philadelphia, Pennsylvania, U.S.A., according to the
laws thereat (Exhibits E-3 to E-3-b) that while in temporary
sojourn in the Philippines, Adoracion C. Campos died in the City
of Manila (Exhibit C) leaving property both in the Philippines and
in the United States of America; that the Last Will and Testament
of the late Adoracion C. Campos w as admitted and granted
probate by the Orphan's Court Division of the Court of Common
Pleas, the probate court of the Commonw ealth of Pennsylvania,
County of Philadelphia, U.S.A., and letters of administration were
issued in favor of Clement J. McLaughlin all in accordance w ith
the laws of the said foreign country on procedure and allowance
of wills (Exhibits E to E-10); and that the petitioner is not suffering
from any disqualification which would render her unfit as
administratrix of the estate in the Philippines of the late Adoracion
C. Campos.
WHEREFORE, the Last Will and Testament of the late Adoracion
C. Campos is hereby admitted to and allow ed probate in the
Philippines, and Nenita Campos Paguia is hereby appointed
Administratrix of the estate of said decedent; let Letters of
Administration with the Will annexed issue in favor of said
Administratrix upon her filing of a bond in the amount of
P5,000.00 conditioned under the provisions of Section I, Rule 81
of the Rules of Court.
Another manifestation was filed by the petitioner on April 14,
1979, confirming the withdrawal of his opposition, acknow ledging
the same to be his voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a petition for relief,
praying that the order allow ing the will be set aside on the ground
that the w ithdrawal of his opposition to the same w as secured
through fraudulent means. According to him, the "Motion to
Dismiss Opposition" was inserted among the papers which he
signed in connection with two Deeds of Conditional Sales w hich
he executed with the Construction and Development Corporation
of the Philippines (CDCP). He also alleged that the lawyer who
filed the w ithdrawal of the opposition w as not his counsel-of-
record in the specialproceedings case.
The petition for relief was set for hearing but the petitioner failed
to appear. He made several motions for postponement until the
hearing w as set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled "Motion
to Vacate and/or Set Aside the Order of January 10, 1979, and/or
dismiss the case for lack of jurisdiction. In this motion, the notice
of hearing provided:
Please include this motion in your calendar for hearing on May
29, 1980 at 8:30 in the morning for submission for reconsideration
and resolution of the Honorable Court. Until this Motion is
resolved, may I also request for the future setting of the case for
hearing on the Oppositor's motion to set aside previously filed.
The hearing of May 29, 1980 w as re-set by the court for June 19,
1980. When the case was called for hearing on this date, the
counsel for petitioner tried to argue his motion to vacate instead of
adducing evidence in support of the petition for relief. Thus, the
respondent judge issued an order dismissing the petition for relief
for failure to present evidence in support thereof. Petitioner filed a
motion for reconsideration but the same was denied. In the same
order, respondent judge also denied the motion to vacate for lack
of merit. Hence, this petition.
Meanw hile, on June 6,1982, petitioner Hermogenes Campos died
and left a w ill, w hich, incidentally has been questioned by the
respondent, his children and forced heirs as, on its face, patently
null and void, and a fabrication, appointing Polly Cayetano as the
executrix of his last will and testament. Cayetano, therefore, filed
a motion to substitute herself as petitioner in the instant case
w hich wasgranted by the court on September 13, 1982.
A motion to dismiss the petition on the ground that the rights of
the petitioner Hermogenes Campos merged upon his death w ith
the rights of the respondent and her sisters, only remaining
children and forced heirs w as denied on September 12, 1983.
Petitioner Cayetano persists w ith the allegations that the
respondent judge acted w ithout or in excess of his jurisdiction
w hen:
1) He ruled the petitioner lost his standing in court deprived the
Right to Notice (sic) upon the filing of the Motion to Dismiss
opposition w ith waiver of rights or interests against the estate of
deceased Adoracion C. Campos, thus, paving the w ay for the
hearing ex-parte of the petition for the probate of decedent w ill.
2) He ruled that petitioner can waive, renounce or repudiate (not
made in a public or authenticated instrument), or by way of a
petition presented to the court but by way of a motion presented
prior to an order for the distribution of the estate-the law
especially providing that repudiation of an inheritance must be
presented, within 30 days after it has issued an order for the
distribution of the estate in accordance with the rules of Court.
3) He ruled that the right of a forced heir to his legitime can be
divested by a decree admitting a w ill to probate in which no
provision is made for the forced heir in complete disregard of Law
of Succession

7. 7
4) He denied petitioner's petition for Relief on the ground that no
evidence was adduced to support the Petition for Relief when no
Notice nor hearing was set to afford petitioner to prove the merit
of his petition — a denial of the due process and a grave abuse of
discretion amounting to lack of jurisdiction.
5) He acquired no jurisdiction over the testate case, the fact that
the Testator at the time of death w as a usual resident of
Dasmariñas, Cavite, consequently Cavite Court of First Instance
has exclusive jurisdiction over the case (De Borja vs. Tan, G.R.
No. L-7792, July 1955).
The first two issues raised by the petitioner are anchored on the
allegation that the respondent judge acted with grave abuse of
discretion when he allowed the withdrawal of the petitioner's
opposition to the reprobate of the w ill.
We find no grave abuse of discretion on the part of the
respondent judge. No proof was adduced to support petitioner's
contention that the motion to w ithdraw was secured through
fraudulent means and that Atty. Franco Loyola w as not his
counsel of record. The records show that after the firing of the
contested motion, the petitioner at a later date, filed a
manifestation wherein he confirmed that the Motion to Dismiss
Opposition was his voluntary act and deed. Moreover, at the time
the motion w as filed, the petitioner's former counsel, Atty. Jose P.
Lagrosa had long withdrawn from the case and had been
substituted by Atty. Franco Loyola who in turn filed the motion.
The present petitioner cannot, therefore, maintain that the old
man's attorney of record was Atty. Lagrosa at the time of filing the
motion. Since the w ithdrawal was in order, the respondent judge
acted correctly in hearing the probate of the will ex-parte, there
being no other opposition to the same.
The third issue raised deals with the validity of the provisions of
the w ill. As a general rule, the probate court's authority is limited
only to the extrinsic validity of the will, the due execution thereof,
the testatrix's testamentary capacity and the compliance w ith the
requisites or solemnities prescribed by law. The intrinsic validity of
the w ill normally comes only after the court has declared that the
will has been duly authenticated. However, where practical
considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should meet
the issue. (Maninang vs. Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the
respondent judge allowed the reprobate of Adoracion's w ill,
Hermogenes C. Campos w as divested of his legitime w hich was
reserved by the law for him.
This contention is w ithout merit.
Although on its face, the w ill appeared to have preterited the
petitioner and thus, the respondent judge should have denied its
reprobate outright, the private respondents have sufficiently
established that Adoracion was, at the time of her death, an
American citizen and a permanent resident of Philadelphia,
Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and
1039 of the Civil Code w hich respectively provide:
Art. 16 par. (2).
xxx xxx xxx
How ever, intestate and testamentary successions, both w ith
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said
property may be found.
Art. 1039.
Capacity to succeed is governed by the law of the nation of the
decedent.
the law which governs Adoracion Campo's w ill is the law of
Pennsylvania, U.S.A., which is the national law of the decedent.
Although the parties admit that the Pennsylvania law does not
provide for legitimes and that all the estate may be given aw ay by
the testatrix to a complete stranger, the petitioner argues that
such law should not apply because it would be contrary to the
sound and established public policy and would run counter to the
specific provisions of Philippine Law .
It is a settled rule that as regards the intrinsic validity of the
provisions of the will, as provided for by Article 16(2) and 1039 of
the Civil Code, the national law of the decedent must apply. This
was squarely applied in the case of Bellis v. Bellis (20 SCRA 358)
w herein we ruled:
It is therefore evident that whatever public policy or good customs
may be involved in our system of legitimes, Congress has not
intended to extend the same to the succession of foreign
nationals. For it has specifically chosen to leave, inter alia, the
amount of successional rights, to the decedent's national law.
Specific provisions must prevailover general ones.
xxx xxx xxx
The parties admit that the decedent, Amos G. Bellis, w as a citizen
of the State of Texas, U.S.A., and under the law of Texas, there
are no forced heirs or legitimes. Accordingly, since the intrinsic
validity of the provision of the w ill and the amount of successional
rights are to be determined under Texas law, the Philippine Law
on legitimes cannot be applied to the testacy of Amos G. Bellis.
As regards the alleged absence of notice of hearing for the
petition for relief, the records wig bear the fact that what was
repeatedly scheduled for hearing on separate dates until June 19,
1980 w as the petitioner's petition for relief and not his motion to
vacate the order of January 10, 1979. There is no reason why the
petitioner should have been led to believe otherw ise. The court
even admonished the petitioner's failing to adduce evidence when
his petition for relief was repeatedly set for hearing. There was no
denial of due process. The fact that he requested "for the future
setting of the case for hearing . . ." did not mean that at the next
hearing, the motion to vacate would be heard and given
preference in lieu of the petition for relief. Furthermore, such
request should be embodied in a motion and not in a mere notice
of hearing.
Finally, we find the contention of the petition as to the issue of
jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of
the Rules of Court, it is provided that:
SECTION 1. Where estate of deceased persons settled. — If the
decedent is an inhabitant of the Philippines at the time of his
death, whether a citizen or an alien, his w ill shall be proved, or

8. 8
letters of administration granted, and his estate settled, in the
Court of First Instance in the province in which he resided at the
time of his death, and if he is an inhabitant of a foreign country,
the Court of First Instance of any province in w hich he had estate.
The court first taking cognizance of the settlement of the estate of
a decedent, shall exercise jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a court, so far as it depends
on the place of residence of the decedent, or of the location of his
estate, shall not be contested in a suit or proceeding, except in an
appeal from that court, in the original case, or when the want of
jurisdiction appears on the record.
Therefore, the settlement of the estate of Adoracion Campos w as
correctly filed w ith the Court of First Instance of Manila w here she
had an estate since it was alleged and proven that Adoracion at
the time of her death was a citizen and permanent resident of
Pennsylvania, United States of America and not a "usual resident
of Cavite" as alleged by the petitioner. Moreover, petitioner is now
estopped from questioning the jurisdiction of the probate court in
the petition for relief. It is a settled rule that a party cannot invoke
the jurisdiction of a court to secure affirmative relief, against his
opponent and after failing to obtain such relief, repudiate or
question that same jurisdiction. (See Saulog Transit, Inc. vs. Hon.
Manuel Lazaro, et al., G. R. No. 63 284, April4, 1984).
WHEREFORE, the petition for certiorari and prohibition is hereby
dismissed for lack of merit.
SO ORDERED.
Republic of the Philippines SUPREME COURT Manila
THIRD DIVISION
G.R. No. L-41171 July 23, 1987
INTESTATE ESTATE OF THE LATE VITOBORROMEO,
PATROCINIO BORROMEO-HERRERA, petitioner,
vs. FORTUNATO BORROMEO and HON. FRANCISCO P.
BURGOS, Judge of the Court of First Instance of Cebu,
Branch II, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-55000 July 23, 1987
IN THE MATTEROF THE ESTATE OF VITOBORROMEO,
DECEASED, PILAR N. BORROMEO, MARIA B. PUTONG,
FEDERICO V. BORROMEO, JOSE BORROMEO, CONSUELO
B. MORALES, AND CANUTO V. BORROMEO, JR., heirs-
appellants, vs. FORTUNATO BORROMEO, claimant-appellee.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-62895 July 23, 1987
JOSE CUENCO BORROMEO, petitioner, vs. HONORABLE
COURT OF APPEALS, HON. FRANCISCO P. BURGOS, As
presidingJudge of the (now) Regional Trial Court, Branch
XV, Region VII, RICARDO V. REYES, as Administrator of the
Estate of Vito Borromeoin Sp. Proc. No. 916-R, NUMERIANO
G. ESTENZO and DOMINGO L. ANTIGUA, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-63818 July 23, 1987
DOMINGO ANTIGUA AND RICARDO V. REYES, as
Administrator of the Intestate Estate of VITOBORROMEO,
Sp. Proceedings No. 916-R, Regional Trial Court of Cebu,
joined by HON. JUDGE FRANCISCO P. BURGOS, as
Presiding Judge of Branch XV of the Regional Trial Court of
Cebu, as a formal party, and ATTYS. FRANCIS M. ZOSA,
GAUDIOSO RUIZ and NUMERIANO ESTENZO, petitioners,
vs. HONORABLE INTERMEDIATE APPELLATE COURT,
JOSE CUENCO BORROMEO, and PETRA O. BORROMEO,
respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-65995 July 23, 1987
PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA
BORROMEO, and JOSE CUENCO BORROMEO, petitioners,
vs. HONORABLE FRANCISCO P. BURGOS, Presiding
Judge of Branch XV, Regional Trial Courtof Cebu;RICARDO
V. REYES, Administrator of the Estate of VITOBORROMEO in
Sp. Proc. No. 916-R; and DOMINGO L. ANTIGUA, respondents.
GUTIERREZ, JR., J.:
These cases before us allstem fromSP. PROC. NO. 916-R of
the then Court of First Instance of Cebu.
G.R. No. 41171
Vito Borromeo, a widower and permanent resident of Cebu City,
died on March 13, 1952, in Paranaque, Rizal at the age of 88
years, w ithout forced heirs but leaving extensive properties in the
province of Cebu.
On April 19, 1952, Jose Junquera filed w ith the Court of First
Instance of Cebu a petition for the probate of a one page
document as the last will and testament left by the said deceased,
devising all his properties to Tomas, Fortunato and Amelia, all
surnamed Borromeo, in equal and undivided shares, and
designating Junquera as executor thereof. The case was
docketed as Special Proceedings No. 916-R. The document,
drafted in Spanish, was allegedly signed and thumbmarked by the
deceased in the presence of Cornelio Gandionco, Eusebio
Cabiluna, and Felixberto Leonardo w ho acted as witnesses.
Oppositions to the probate of the willw ere filed. On May 28, 1960,
after due trial, the probate court held that the document presented
as the w illof the deceased w as a forgery.
On appeal to this Court, the decision of the probate court
disallow ing the probate of the w ill was affirmed in Testate Estate
of Vito Borromeo, Jose H. Junquera et al. v. Crispin Borromeo et
al. (19 SCRA 656).
The testate proceedings was converted into an intestate
proceedings. Several parties came before the court filing claims
or petitions alleging themselves as heirs of the intestate estate of
Vito Borromeo.

9. 9
The follow ing petitions or claims w ere filed:
1. On August 29, 1967, the heirs of Jose Ma. Borromeo and
Cosme Borromeo filed a petition for declaration of heirs and
determination of heirship. There was no opposition filed against
said petition.
2. On November 26, 1967, Vitaliana Borromeo also filed a petition
for declaration as heir. The heirs of Jose Ma. Borromeo and
Cosme Borromeo filed an opposition to this petition.
3. On December 13, 1967, Jose Barcenilla, Jr., Anecita Ocampo
de Castro, Ramon Ocampo, Lourdes Ocampo, Elena Ocampo,
Isagani Morre, Rosario Morre, Aurora Morre, Lila Morre, Lamberto
Morre, and Patricia Morre, filed a petition for declaration of heirs
and determination of shares. The petition w as opposed by the
heirs of Jose and Cosme Borromeo.
4. On December 2, 1968, Maria Borromeo Atega, Luz Borromeo,
Hermenegilda Borromeo Nonnenkamp, Rosario Borromeo, and
Fe Borromeo Queroz filed a claim. Jose Cuenco Borromeo,
Crispin Borromeo, Vitaliana Borromeo and the heirs of Carlos
Borromeo represented by Jose Talam filed oppositions to this
claim.
When the aforementioned petitions and claims w ere heard jointly,
the follow ing facts were established:
1. Maximo Borromeo and Hermenegilda Galan, husband and w ife
(the latter having predeceased the former), were survived by their
eight (8) children, namely,
Jose Ma. Borromeo
Cosme Borromeo
Pantaleon Borromeo
Vito Borromeo
Paulo Borromeo
Anecita Borromeo
Quirino Borromeo and
Julian Borromeo
2. Vito Borromeo died a widower on March 13, 1952, without any
issue, and all his brothers and sisters predeceased him.
3. Vito's brother Pantaleon Borromeo died leaving the follow ing
children:
a. Ismaela Borromeo,w ho died on Oct. 16, 1939
b. Teofilo Borromeo, w ho died on Aug. 1, 1955, or 3 years after
the death of Vito Borromeo. He w as married to Remedios Cuenco
Borromeo, w ho died on March 28, 1968. He had an only son-Atty.
Jose Cuenco Borromeo one of the petitioners herein.
c. Crispin Borromeo, w ho is still alive.
4. Anecita Borromeo, sister of Vito Borromeo, died ahead of him
and left an only daughter, Aurora B. Ocampo, w ho died on Jan.
30, 1950 leaving the follow ing children:
a. Anecita Ocampo Castro
b. Ramon Ocampo
c. Lourdes Ocampo
d. Elena Ocampo, all living, and
e. Antonieta Ocampo Barcenilla (deceased), survived by claimant
Jose Barcenilla, Jr.
5. Cosme Borromeo, another brother of Vito Borromeo, died
before the w ar and left the follow ing children:
a. Marcial Borromeo
b. Carlos Borromeo,w ho died on Jan. 18, 1965,survived by his
w ife, Remedios Alfonso, and his only daughter, Amelinda
Borromeo Talam
c. Asuncion Borromeo
d. Florentina Borromeo, w ho died in 1948.
e. Amilio Borromeo, w ho died in 1944.
f. Carmen Borromeo, w ho died in 1925.
The last three died leaving no issue.
6. Jose Ma. Borromeo, another brother of Vito Borromeo, died
before the w ar and left the follow ing children:
a. Exequiel Borromeo,w ho died on December 29, 1949
b. Canuto Borromeo, w ho died on Dec. 31, 1959, leaving the
follow ing children:
aa. Federico Borromeo
bb. Marisol Borromeo (Maria B. Putong, Rec. p. 85)
cc. Canuto Borromeo, Jr.
dd. Jose Borromeo
ee. Consuelo Borromeo
ff. Pilar Borromeo
gg. Salud Borromeo

10. 10
hh. Patrocinio Borromeo Herrera
c. Maximo Borromeo, w ho died in July, 1948
d. Matilde Borromeo, w ho died on Aug. 6, 1946
e. Andres Borromeo, w ho died on Jan. 3, 1923, but survived by
his children:
aa. Maria Borromeo Atega
bb. Luz Borromeo
cc. Hermenegilda Borromeo Nonnenkamp
dd. Rosario Borromeo
ee. Fe Borromeo Queroz
On April 10, 1969, the trial court, invoking Art. 972 of the Civil
Code, issued an order declaring the follow ing, to the exclusion of
all others, as the intestate heirs of the deceased Vito Borromeo:
1. Jose Cuenco Borromeo
2. Judge Crispin Borromeo
3. Vitaliana Borromeo
4. Patrocinio Borromeo Herrera
5. Salud Borromeo
6. Asuncion Borromeo
7. Marcial Borromeo
8. Amelinda Borromeo de Talam, and
9. The heirs of Canuto Borromeo
The court also ordered that the assets of the intestate estate of
Vito Borromeo shall be divided into 4/9 and 5/9 groups and
distributed in equal and equitable shares among the 9
abovenamed declared intestate heirs.
On April 21 and 30, 1969, the declared heirs, with the exception
of Patrocinio B. Herrera, signed an agreement of partition of the
properties of the deceased Vito Borromeo w hichwas approved by
the trial court, in its order of August 15, 1969. In this same order,
the trial court ordered the administrator, Atty Jesus Gaboya, Jr., to
partition the properties of the deceased in the way and manner
they are divided and partitioned in the said Agreement of Partition
and further ordered that 40% of the market value of the 4/9 and
5/9 of the estate shall be segregated. All attorney's fees shall be
taken and paid fromthis segregated portion.
On August 25, 1972, respondent Fortunato Borromeo, who had
earlier claimed as heir under the forged w ill, filed a motion before
the trial court praying that he be declared as one of the heirs of
the deceased Vito Borromeo, alleging that he is an illegitimate
son of the deceased and that in the declaration of heirs made by
the trial court, he w as omitted, in disregard of the law making him
a forced heir entitled to receive a legitime like all other forced
heirs. As an acknowledged illegitimate child, he stated that he
was entitled to a legitime equal in every case to four-fifths of the
legitime of an acknow ledged naturalchild.
Finding that the motion of Fortunato Borromeo w as already
barred by the order of the court dated April 12, 1969 declaring the
persons named therein as the legal heirs of the deceased Vito
Borromeo, the court dismissed the motion on June 25, 1973.
Fortunato Borromeo filed a motion for reconsideration. In the
memorandum he submitted to support his motion for
reconsideration, Fortunato changed the basis for his claim to a
portion of the estate. He asserted and incorporated a Waiver of
Hereditary Rights dated July 31, 1967, supposedly signed by Pilar
N. Borromeo, Maria B. Putong, Jose Borromeo, Canuto V.
Borromeo, Jr., Salud Borromeo, Patrocinio Borromeo-Herrera,
Marcial Borromeo, Asuncion Borromeo, Federico V. Borromeo,
Consuelo B. Morales, Remedios Alfonso and Amelinda B. Talam
In the waiver, five of the nine heirs relinquished to Fortunato their
shares in the disputed estate. The motion was opposed on the
ground that the trial court, acting as a probate court, had no
jurisdiction to take cognizance of the claim; that respondent
Fortunato Borromeo is estopped from asserting the waiver
agreement; that the waiver agreement is void as it was executed
before the declaration of heirs; that the same is void having been
executed before the distribution of the estate and before the
acceptance of the inheritance; and that it is void ab initio and
inexistent for lackof subject matter.
On December 24, 1974, after due hearing, the trial court
concluding that the five declared heirs who signed the waiver
agreement assigning their hereditary rights to Fortunato
Borromeo had lost the same rights, declared the latter as entitled
to 5/9 of the estate of Vito Borromeo.
A motion for reconsideration of this order was denied on July 7,
1975.
In the present petition, the petitioner seeks to annul and set aside
the trial court's order dated December 24, 1974, declaring
respondent Fortunato Borromeo entitled to 5/9 of the estate of
Vito Borromeo and the July 7, 1975 order, denying the motion for
reconsideration.
The petitioner argues that the trial court had no jurisdiction to take
cognizance of the claim of respondent Fortunato Borromeo
because it is not a money claim against the decedent but a claim
for properties, real and personal, which constitute all of the shares
of the heirs in the decedent's estate, heirs who allegedly waived
their rights in his favor. The claim of the private respondent under
the w aiver agreement, according to the petitioner, may be likened
to that of a creditor of the heirs which is improper. He alleges that
the claim of the private respondent under the waiver agreement
was filed beyond the time allow ed for filing of claims as it w as filed
only sometime in 1973, after there had been a declaration of heirs
(April 10, 1969), an agreement of partition (April 30, 1969), the
approval of the agreement of partition and an order directing the
administrator to partition the estate (August 15, 1969), when in a
mere memorandum, the existence of the w aiver agreement w as
brought out.

11. 11
It is further argued by the petitioner that the document entitled "
waiver of Hereditary Rights" executed on July 31, 1967, aside
from having been cancelled and revoked on June 29, 1968, by
Tomas L. Borromeo, Fortunato Borromeo and Amelia Borromeo,
is w ithout force and effect because there can be no effective
waiver of hereditary rights before there has been a valid
acceptance of the inheritance the heirs intend to transfer.
Pursuant to Article 1043 of the Civil Code, to make acceptance or
repudiation of inheritance valid, the person must be certain of the
death of the one from whom he is to inherit and of his right to the
inheritance. Since the petitioner and her co-heirs were not certain
of their right to the inheritance until they were declared heirs, their
rights were, therefore, uncertain. This view, according to the
petitioner, is also supported by Article 1057 of the same Code
which directs heirs, devicees, and legatees to signify their
acceptance or repudiation within thirty days after the court has
issued an order for the distribution of the estate.
Respondent Fortunato Borromeo on the other hand, contends
that under Article 1043 of the Civil Code there is no need for a
person to be first declared as heir before he can accept or
repudiate an inheritance. What is required is that he must first be
certain of the death of the person from w hom he is to inherit and
that he must be certain of his right to the inheritance. He points
out that at the time of the signing of the waiver document on July
31, 1967, the signatories to the waiver document were certain that
Vito Borromeo was already dead as well as of their rights to the
inheritance as show n in the w aiver document itself.
With respect to the issue of jurisdiction of the trial court to pass
upon the validity of the waiver of hereditary rights, respondent
Borromeo asserts that since the waiver or renunciation of
hereditary rights took place after the court assumed jurisdiction
over the properties of the estate it partakes of the nature of a
partition of the properties of the estate needing approval of the
court because it was executed in the course of the proceedings.
lie further maintains that the probate court loses jurisdiction of the
estate only after the payment of all the debts of the estate and the
remaining estate is distributed to those entitled to the same.
The prevailing jurisprudence on waiver of hereditary rights is that
"the properties included in an existing inheritance cannot be
considered as belonging to third persons with respect to the heirs,
who by fiction of law continue the personality of the former. Nor
do such properties have the character of future property, because
the heirs acquire a right to succession from the moment of the
death of the deceased, by principle established in article 657 and
applied by article 661 of the Civil Code, according to which the
heirs succeed the deceased by the mere fact of death. More or
less, time may elapse from the moment of the death of the
deceased until the heirs enter into possession of the hereditary
property, but the acceptance in any event retroacts to the moment
of the death, in accordance with article 989 of the Civil Code. The
right is vested, although conditioned upon the adjudication of the
corresponding hereditary portion." (Osorio v. Osorio and
Ynchausti Steamship Co., 41 Phil., 531). The heirs, therefore,
could waive their hereditary rights in 1967 even if the order to
partition the estate w as issued only in 1969.
In this case, however, the purported "Waiver of Hereditary Rights"
cannot be considered to be effective. For a waiver to exist, three
elements are essential: (1) the existence of a right; (2) the
know ledge of the existence thereof; and (3) an intention to
relinquish such right. (People v. Salvador, (CA) 53 O.G. No. 22, p.
8116, 8120). The intention to waive a right or advantage must be
shown clearly and convincingly, and when the only proof of
intention rests in what a party does, his act should be so
manifestly consistent w ith, and indicative of an intent to,
voluntarily relinquish the particular right or advantage that no
other reasonable explanation of his conduct is possible (67 C.J.,
311). (Fernandez v. Sebido, et al., 70 Phil., 151, 159).
The circumstances of this case show that the signatories to the
waiver document did not have the clear and convincing intention
to relinquish their rights, Thus: (1) On October 27, 1967.
Fortunato, Tomas, and Amelia Borromeo filed a pleading entitled
"Compliance" wherein they submitted a proposal for the amicable
settlement of the case. In that Compliance, they proposed to
concede to all the eight (8) intestate heirs of Vito Borromeo all
properties, personal and real, including all cash and sums of
money in the hands of the Special Administrator, as of October
31, 1967, not contested or claimed by them in any action then
pending in the Court of First Instance of Cebu. In turn, the heirs
would waive and concede to them all the 14 contested lots. In this
document, the respondent recognizes and concedes that the
petitioner, like the other signatories to the waiver document, is an
heir of the deceased Vito Borromeo, entitled to share in the
estate. This shows that the "Waiver of Hereditary Rights" was
never meant to be what the respondent now purports it to be. Had
the intent been otherwise, there would not be any reason for
Fortunato, Tomas, and Amelia Borromeo to mention the heirs in
the offer to settle the case amicably, and offer to concede to them
parts of the estate of the deceased; (2) On April 21 and 30, 1969,
the majority of the declared heirs executed an Agreement on how
the estate they inherited shall be distributed. This Agreement of
Partition w as approved by the trial court on August 15, 1969; (3)
On June 29, 1968, the petitioner, among others, signed a
document entitled Deed of Assignment" purporting to transfer and
assign in favor of the respondent and Tomas and Amelia
Borromeo all her (Patrocinio B. Herrera's) rights, interests, and
participation as an intestate heir in the estate of the deceased Vito
Borromeo. The stated consideration for said assignment was
P100,000.00; (4) On the same date, June 29, 1968, the
respondent Tomas, and Amelia Borromeo (assignees in the
aforementioned deed of assignment) in turn executed a "Deed of
Reconveyance" in favor of the heirs-assignors named in the same
deed of assignment. The stated consideration was P50,000.00;
(5) A Cancellation of Deed of Assignment and Deed of
Reconveyance was signed by Tomas Borromeo and Amelia
Borromeo on October 15, 1968, while Fortunato Borromeo signed
this document on March 24, 1969.
With respect to the issue of jurisdiction, we hold that the trial court
had jurisdiction to pass upon the validity of the waiver agreement.
It must be noted that in Special Proceedings No. 916-R the lower
court disallowed the probate of the will and declared it as fake.
Upon appeal, this Court affirmed the decision of the low er court
on March 30, 1967, in G.R. No. L-18498. Subsequently, several
parties came before the lower court filing claims or petitions
alleging themselves as heirs of the intestate estate of Vito
Borromeo. We see no impediment to the trial court in exercising
jurisdiction and trying the said claims or petitions. Moreover, the
jurisdiction of the trial court extends to matters incidental and
collateral to the exercise of its recognized powers in handling the
settlement of the estate.
In view of the foregoing, the questioned order of the trial court
dated December 24, 1974, is hereby SET ASIDE.
G.R. No. 55000
This case was originally an appeal to the Court of Appeals from
an order of the Court of First Instance of Cebu, Branch 11, dated
December 24, 1974, declaring the waiver document earlier
discussed in G.R. No. 41171 valid. The appellate court certified

12. 12
this case to this Court as the questions raised are all of law .
The appellants not only assail the validity of thewaiver agreement
but they also question the jurisdiction of the lower court to hear
and decide the action filed by claimant Fortunato Borromeo.
The appellants argue that w hen the waiver of hereditary right was
executed on July 31, 1967, Pilar Borromeo and her children did
not yet possess or own any hereditary right in the intestate estate
of the deceased Vito Borromeo because said hereditary right was
only acquired and owned by them on April 10, 1969, when the
estate w as ordered distributed.
They further argue that in contemplation of law, there is no such
contract of waiver of hereditary right in the present case because
there was no object, which is hereditary right, that could be the
subject matter of said waiver, and, therefore, said waiver of
hereditary right was not only null and void ab initio but was
inexistent.
With respect to the issue of jurisdiction, the appellants contend
that w ithout any formal pleading filed by the lawyers of Fortunato
Borromeo for the approval of the waiver agreement and w ithout
notice to the parties concerned, two things which are necessary
so that the lower court would be vested w ith authority and
jurisdiction to hear and decide the validity of said waiver
agreement, nevertheless, the lower court set the hearing on
September 25, 1973 and w ithout asking for the requisite pleading.
This resulted in the issuance of the appealed order of December
24, 1974, which approved the validity of the waiver agreement.
The appellants contend that this constitutes an error in the
exercise of jurisdiction.
The appellee on the other hand, maintains that by waiving their
hereditary rights in favor of Fortunato Borromeo, the signatories to
the w aiver document tacitly and irrevocably accepted the
inheritance and by virtue of the same act, they lost their rights
because the rights from that moment on became vested in
Fortunato Borromeo.
It is also argued by the appellee that under Article 1043 of the
Civil Code there is no need for a person to be declared as heir
first before he can accept or repudiate an inheritance. What is
required is that he is certain of the death of the person fromw hom
he is to inherit, and of his right to the inheritance. At the time of
the signing of the waiver document on July 31, 1967, the
signatories to the waiver document were certain that Vito
Borromeo was already dead and they were also certain of their
right to the inheritance as show n by the waiverdocument itself.
On the allegation of the appellants that the lower court did not
acquire jurisdiction over the claim because of the alleged lack of a
pleading invoking its jurisdiction to decide the claim, the appellee
asserts that on August 23, 1973, the lower court issued an order
specifically calling on all oppositors to the w aiver document to
submit their comments w ithin ten days from notice and setting the
same for hearing on September 25, 1973. The appellee also
avers that the claim as to a 5/9 share in the inheritance involves
no question of title to property and, therefore, the probate court
can decide the question.
The issues in this case are similar to the issues raised in G.R. No.
41171. The appellants in this case, who are all declared heirs of
the late Vito Borromeo are contesting the validity of the trial
court's order dated December 24, 1974, declaring Fortunato
Borromeo entitled to 5/9 of the estate of Vito Borromeo under the
w aiver agreement.
As stated in G.R. No. 41171, the supposed waiver of hereditary
rights can not be validated. The essential elements of a w aiver,
especially the clear and convincing intention to relinquish
hereditary rights, are not found in this case.
The October 27, 1967 proposal for an amicable settlement
conceding to all the eight (8) intestate heirs various properties in
consideration for the heirs giving to the respondent and to Tomas,
and Amelia Borromeo the fourteen (14) contested lots was filed
inspite of the fact that on July 31, 1967, some of the heirs had
allegedly already waived or sold their hereditary rights to the
respondent.
The agreement on how the estate is to be distributed, the June
29, 1968 deed of assignment, the deed of reconveyance, and the
subsequent cancellation of the deed of assignment and deed of
reconveyance all argue against the purported waiver of hereditary
rights.
Concerning the issue of jurisdiction, we have already stated in
G.R. No. 41171 that the trial court acquired jurisdiction to pass
upon the validity of the waiver agreement because the trial court's
jurisdiction extends to matters incidental and collateral to the
exercise of its recognized powers in handling the settlement of the
estate.
The questioned order is, therefore, SET ASIDE.
G.R. No. 62895
A motion dated April 28, 1972, was filed by Atty. Raul M.
Sesbreno, representative of some of the heirs-distributees,
praying for the immediate closure of Special Proceeding No. 916-
R. A similar motion dated May 29, 1979 w as filed by Atty. Jose
Amadora. Both motions w ere grounded on the fact that there was
nothing more to be done after the payment of all the obligations of
the estate since the order of partition and distribution had long
become final.
Alleging that respondent Judge Francisco P. Burgos failed or
refused to resolve the aforesaid motions, petitioner Jose Cuenco
Borromeo-filed a petition for mandamus before the Court of
Appeals to compel the respondent judge to terminate and close
Special Proceedings No. 916-R.
Finding that the inaction of the respondent judge was due to
pending motions to compel the petitioner, as co-administrator, to
submit an inventory of the real properties of the estate and an
accounting of the cash in his hands, pending claims for attorney's
fees, and that mandamus w ill not lie to compel the performance of
a discretionary function, the appellate court denied the petition on
May 14, 1982. The petitioner's motion for reconsideration was
likew ise denied for lack of merit. Hence, this petition.
The petitioner's stand is that the inaction of the respondent judge
on the motion filed on April 28, 1972 for the closure of the
administration proceeding cannot be justified by the filing of the
motion for inventory and accounting because the latter motion
was filed only on March 2, 1979. He claimed that under the then
Constitution, it is the duty of the respondent judge to decide or
resolve a case or matter within three months from the date of its
submission.

13. 13
The respondents contend that the motion to close the
administration had already been resolved when the respondent
judge cancelled all settings of all incidents previously set in his
court in an order dated June 4, 1979, pursuant to the resolution
and restraining order issued by the Court of Appeals enjoining
him to maintain status quo on the case.
As stated in G.R. No. 41171, on April 21 and 30, 1969, the
declared heirs, w ith the exception of Patrocinio B. Herrera, signed
an agreement of partition of the properties of the deceased Vito
Borromeo w hich was approved by the trial court, in its order dated
August 15, 1969. In this same order, the trial court ordered the
administrator, Atty. Jesus Gaboya, Jr., to partition the properties
of the deceased in the w ay and manner they are divided and
partitioned in the said Agreement of Partition and further ordered
that 40% of the market value of the 4/9 and 5/9 of the estate shall
be segregated and reserved for attorney's fees.
According to the manifestation of Judge Francisco Burgos dated
July 5, 1982, (p. 197, Rollo, G. R. No. 41171) his court has not
finally distributed to the nine (9) declared heirs the properties due
to the follow ing circumstances:
1. The court's determination of the market value of the estate in
order to segregate the 40% reserved for attorney'sfees;
2. The order of December 24, 1974, declaring Fortunato
Borromeo as beneficiary of the 5/9 of the estate because of the
waiver agreement signed by the heirs representing the 5/9 group
w hich is stillpending resolution by this Court (G.R. No. 4117 1);
3. The refusal of administrator Jose Cuenco Borromeo to render
his accounting; and
4. The claim of Marcela Villegas for 1/2 of the estate causing
annotations of notices of lis pendens on the different titles of the
properties of the estate.
Since there are still real properties of the estate that were not vet
distributed to some of the declared heirs, particularly the 5/9
group of heirs due to the pending resolution of the waiver
agreement, this Court in its resolution of June 15, 1983, required
the judge of the Court of First Instance of Cebu, Branch 11, to
expedite the determination of Special Proceedings No. 916-R and
ordered the co-administrator Jose Cuenco Borromeo to submit an
inventory of real properties of the estate and to render an
accounting of cash and bank deposits realized from rents of
severalproperties.
The matter of attorney's fees shall be discussed in G.R. No.
65995.
Considering the pronouncements stated in:
1. G.R. No. 41171 & G.R. No. 55000, setting aside the Order of
the trial court dated December 24, 1974;
2. G.R. No. 63818, denying the petition for review seeking to
modify the decision of the Intermediate Appellate Court insofar as
it disqualifies and inhibits Judge Francisco P. Burgos from further
hearing the Intestate Estate of Vito Borromeo and ordering the
remand of the case to the Executive,Judge of the Regional trial
Court of Cebu for re-raffling; and
3. G.R. No. 65995, granting the petition to restrain the
respondents from further acting on any and all incidents in Special
proceedings No. 916-11 because of the affirmation of the decision
of the Intermediate Appellate Court in G.R. No. 63818.
the trial court may now terminate and close Special Proceedings
No. 916-R, subject to the submission of an inventory of the real
properties of the estate and an accounting of the call and bank
deposits of the petitioner, as co-administrator of the estate, if he
has not vet done so, as required by this Court in its Resolution
dated June 15, 1983. This must be effected w ith all deliberate
speed.
G.R. No. 63818
On June 9, 1979, respondents Jose Cuenco Borromeo and Petra
0. Borromeo filed a motion for inhibition in the Court of First
Instance of Cebu, Branch 11, presided over by Judge Francisco
P. Burgos to inhibit the judge from further acting in Special
Proceedings No. 916-R. 'The movants alleged, among others, the
follow ing:
x x x x x x x x x
6. To keep the agitation to sell moving, Atty. Antigua filed a
motion for the production of the certificates of title and to deposit
the same w ith the Branch Clerk of Court, presumably for the
ready inspection of interested buyers. Said motion w as granted by
the Hon. Court in its order of October 2, 1978 which, however,
became the subject of various motions for reconsideration from
heirs-distributees who contended that as owners they cannot be
deprived of their titles for the flimsy reasons advanced by Atty,
Antigua. In view of the motions for reconsideration, Atty Antigua
ultimately w ithdraw his motions for production of titles.
7. The incident concerning the production of titles triggered
another incident involving Atty. Raul H. Sesbreno who was then
the counsel of herein movants Petra O. Borromeo and Amelinda
B. Talam In connection w ith said incident, Atty. Sesbreno filed a
pleading w hich the tion. presiding, Judge Considered direct
contempt because among others, Atty. Sesbreno insinuated that
the Hon. Presiding Judge stands to receive "fat commission" from
the sale of the entire property. Indeed, Atty. Sesbreno was
seriously in danger of being declared in contempt of court w ith the
dim prospect of suspension from the practice of his profession.
But obviously to extricate himself from the prospect of contempt
and suspension. Atty. Sesbreno chose rapproachment and
ultimately joined forces with Atty. Antigua, et al., who, together,
continued to harass administrator
x x x x x x x x x
9. The herein movants are informed and so they allege, that a
brother of the Hon. Presiding Judge is married to a sister of Atty.
Domingo L. Antigua.
10. There is now a clear tug of war bet ween Atty. Antigua, et al.
who are agitating for the sale of the entire estate or to buy out the
individual heirs, on the one hand, and the herein movants, on the
other, who are not willing to sell their distributive shares under the
terms and conditions presently proposed. In this tug of w ar, a
pattern of harassment has become apparent against the herein
movants, especially Jose Cuenco Borromeo. Among the
harassments employed by Atty Antigua et al. are the pending
motions for the removal of administrator Jose Cuenco Borromeo,

14. 14
the subpoena duces tecum issued to the bank which seeks to
invade into the privacy of the personal account of Jose Cuenco
Borromeo, and the other matters mentioned in paragraph 8
hereof. More harassment motions are expected until the herein
movants shall finally yield to the proposed sale. In such a
situation, the herein movants beg for an entirely independent and
impartial judge to pass upon the merits of said incidents.
11. Should the Hon. Presiding Judge continue to sit and take
cognizance of this proceeding, including the incidents above-
mentioned, he is liable to be misunderstood as being biased in
favor of Atty Antigua, et al. and prejudiced against the herein
movants. Incidents which may create this impression need not be
enumerated herein. (pp. 39-41, Rollo)
The motion for inhibition was denied by Judge Francisco P.
Burgos. Their motion for reconsideration having been denied, the
private respondents filed a petition for certiorari and/or prohibition
with preliminary injunction before the Intermediate Appellate
Court.
In the appellate court, the private respondents alleged, among
others, the follow ing:
x x x x x x x x x
16. With all due respect, petitioners regret the necessity of having
to state herein that respondent Hon. Francisco P. Burgos has
shown undue interest in pursing the sale initiated by Atty.
Domingo L. Antigua, et al. Significantly, a brother of respondent
Hon. Francisco P. Burgos is married to a sister of Atty. Domingo
L. Antigua.
17. Evidence the proposed sale of the entire properties of the
estate cannot be legally done w ithout the conformity of the heirs-
distributees because the certificates of title are already registered
in their names Hence, in pursuit of the agitation to sell,
respondent Hon. Francisco P. Burgos urged the heirs-distributees
to sell the entire property based on the rationale that proceeds
thereof deposited in the bank w ill earn interest more than the
present income of the so called estate. Most of the heirs-
distributees, however. have been petitioner timid to say their
piece. Only the 4/9 group of heirs led by Jose Cuenco Borromeo
have had the courage to stand up and refuse the proposal to sell
clearly favored by respondent Hon. Francisco P. Burgos.
x x x x x x x x x
20. Petitioners w ill refrain from discussing herein the merits of the
shotgun motion of Atty. Domingo L. Antigua as well as other
incidents now pending in the court below which smack of
harassment against the herein petitioners. For, regardless of the
merits of said incidents, petitioners respectfully contend that it is
highly improper for respondent Hon. Francisco P. Burgos to
continue to preside over Sp. Proc. No. 916-R by reason of the
follow ing circumstances:
(a) He has shown undue interest in the sale of the properties as
initiated by Atty. Domingo L. Antigua whose sister is married to a
brother of respondent.
(b) The proposed sale cannot be legally done without the
conformity of the heirs-distributees, and petitioners have openly
refused the sale, to the great disappointment of respondent.
(c) The shot gun motion of Atty. Antigua and similar incidents are
clearly intended to harass and embarrass administrator Jose
Cuenco Borromeo in order to pressure him into acceding to the
proposed sale.
(d) Respondent has shown bias and prejudice against petitioners
by failing to resolve the claim for attorney's fees filed by Jose
Cuenco Borromeo and the late Crispin Borromeo. Similar claims
by the other lawyers were resolved by respondent after petitioners
refused the proposed sale. (pp. 41-43, Rollo)
On March 1, 1983, the appellate court rendered its decision
granting the petition for certiorari and/or prohibition and
disqualifying Judge Francisco P. Burgos from taking further
cognizance of Special Proceedings No. 916-R. The court also
ordered the transmission of the records of the case to the
Executive Judge of the Regional Trial Court of Region VII for re-
raffling.
A motion for reconsideration of the decision was denied by the
appellate court on April 11, 1983. Hence, the present petition for
review seeking to modify the decision of the Intermediate
Appellate Court insofar as it disqualifies and inhibits Judge
Francisco P. Burgos from further hearing the case of Intestate
Estate of Vito Borromeo and orders the remand of the case to the
Executive Judge of the Regional Trial Court of Cebu for re-
raffling.
The principal issue in this case has become moot and academic
because Judge Francisco P. Burgos decided to retire from the
Regional Trial Court of Cebu sometime before the latest
reorganization of the judiciary. However, we decide the petition on
its merits for the guidance of the judge to whom this case will be
reassigned and others concerned.
The petitioners deny that respondent Jose Cuenco Borromeo has
been harassed. They contend that Judge Burgos has benn shown
unusual interest in the proposed sale of the entire estate for
P6,700,000.00 in favor of the buyers of Atty. Antigua. They claim
that this disinterest is shown by the judge's order of March 2,
1979 assessing the property of the estate at P15,000,000.00.
They add that he only ordered the administrator to sell so much of
the properties of the estate to pay the attorney's fees of the
lawyers-claimants. To them, the inhibition of Judge Burgos would
have been unreasonable because his orders against the failure of
Jose Cuenco Borromeo, as administrator, to give an accounting
and inventory of the estate were all affirmed by the appellate
court. They claim that the respondent court, should also have
taken judicial notice of the resolution of this Court directing the
said judge to "expedite the settlement and adjudication of the
case" in G.R. No. 54232. And finally, they state that the
disqualification of judge Burgos would delay further the closing of
the administration proceeding as he is the only judge who is
conversant with the 47 volumes of the records of the case.
Respondent Jose Cuenco Borromeo, to show that he had been
harassed. countered that Judge Burgos appointed Ricardo V.
Reyes as co-administrator of the estate on October 11, 1972, yet
Borromeo was singled out to make an accounting of what t he
was supposed to have received as rentals for the land upon which
the Juliana Trade Center is erected, from January, 1977 to
February 1982, inclusive, w ithout mentioning the w ithholding tax
for the Bureau of Internal Revenue. In order to bolster the
agitation to sell as proposed by Domingo L. Antigua, Judge
Burgos invited Antonio Barredo, Jr., to a series of conferences
from February 26 to 28, 1979. During the conferences, Atty.
Antonio Barredo, Jr., offered to buy the shares of the heirs-

15. 15
distributees presumably to cover up the projected sale initiated by
Atty. Antigua.
On March 2, 1979, or two days after the conferences, a motion
was filed by petitioner Domingo L. Antigua praying that Jose
Cuenco Borromeo be required to file an inventory when he has
already filed one to account for cash, a report on which the
administrators had already rendered: and to appear and be
examined under oath in a proceeding conducted by Judge Burgos
lt w as also prayed that subpoena duces tecum be issued for the
appearance of the Manager of the Consolidated Bank and Trust
Co., bringing all the bank records in the name of Jose Cuenco
Borromeo jointly with his wife as well as the appearance of heirs-
distributees Amelinda Borromeo Talam and another heir
distributee Vitaliana Borromeo. Simultaneously w ith the filing of
the motion of Domingo Antigua, Atty. Raul H. Sesbreno filed a
request for the issuance of subpoena duces tecum to the
Manager of Consolidated Bank and 'Trust Co., Inc.; Register of
Deeds of Cebu City; Register of Deeds for the Province of Cebu
and another subpoena duces tecum to Atty. Jose Cuenco
Borromeo.
On the same date, the Branch Clerk of Court issued a subpoena
duces tecum to the Managert of the bank, the Register of deeds
for the City of Cebu, the Register of Deeds for the Province, of
Cebu. and to Jose Cuenco Borromeo.
On the follow ing day, March 3, 1979, Atty Gaudioso v.
Villagonzalo in behalf of the heirs of Marcial Borromeo w ho had a
common cause w ith Atty Barredo, Jr., joined petitioner Domingo
L. Antigua by filing a motion for relief of the administrator.
On March 5, 1979, Atty. Villagonzalo filed a request for the
issuance of a subpoena duces tecum to private respondent Jose
Cuenco Borromeo to bring and produce all the owners" copies of
the titles in the court presided order by Judge Burgos.
Consequently. the Branch Clerk of Court issued a subpoena
duces tecum commanding Atty. Jose Cuenco Borromeo to bring
and produce the titles in court.
All the above-incidents were set for hearing on June 7, 1979 but
on June 14, 1979, before the date of the hearing, Judge Burgos
issued an order denying the private respondents' motion for
reconsideration and the motion to quash the subpoena.1avvphi1
It w as further argued by the private respondents that if ,judge
Francisco P. Burgos is not inhibited or disqualified from trying Sp.
Proc. No. 916-R, there w ould be a miscarriage of justice Because
for the past twelve years, he had not done anything towards the
closure of the estate proceedings except to sell the properties of
the heirs-distributees as initiated by petitioner Domingo L. Antigua
at 6.7 million pesos while the Intestate Court had already
evaluated it at 15 million pesos.
The allegations of the private respondents in their motion for
inhibition, more specifically, the insistence of the trial judge to sell
the entire estate at P6,700,000.00, where 4/9 group of heirs
objected, cannot easily be ignored. Suspicion of partiality on the
part of a trial judge must be avoided at all costs. In the case of
Bautista v. Rebeuno (81 SCRA 535), this Court stated:
... The Judge must maintain and preserve the trust and faith of the
parties litigants. He must hold himself above reproach and
suspicion. At the very first sign of lack of faith and trust to his
actions, whether well grounded or not, the Judge has no other
alternative but inhibit himself from the case. A judge may not be
legally Prohibited from sitting in a litigation, but w hen
circumstances appear that will induce doubt to his honest
actuations and probity in favor or of either partly or incite such
state of mind, he should conduct a careful self-examination. He
should exercise his discretion in a w ay that the people's faith in
the Courts of Justice is not impaired, "The better course for the
Judge under such circumstances is to disqualify himself "That
way he avoids being misunderstood, his reputation for probity and
objectivity is preserve ed. what is more important, the Ideal of
impartial administration of justice is lived up to.
In this case, the fervent distrust of the private respondents is
based on sound reasons. As Earlier stated, however, the petition
for review seeking to modify the decision of the Intermediate
Appellate Court insofar as it disqualifies and inhibits Judge
Francisco P. Burgos from further hearing the Intestate Estate of
Vito Borromeo case and ordering the remand of the case to the
Executive Judge of the Regional Trial Court for re-raffling should
be DENIED for the decision is not only valid but the issue itself
has become moot and academic.
G.R. No. 65995
The petitioners seek to restrain the respondents from further
acting on any and all incidents in Special Proceedings No. 916-R
during the pendency of this petition and No. 63818. They also
pray that all acts of the respondents related to the said special
proceedings after March 1, 1983 when the respondent Judge was
disqualified by the appellate court be declared null and void and
w ithout force and effect whatsoever.
The petitioners state that the respondent Judge has set for
hearing all incidents in Special Proceedings No. 916-R, including
the reversion from the heirs-distributees to the estate, of the
distributed properties already titled in their names as early as
1970, notw ithstanding the pending inhibition case elevated before
this Court w hich is docketed as G.R. No. 63818.
The petitioners further argue that the present status of Special
Proceeding No. 916-R requires only the appraisal of the attorney's
fees of the lawyers-claimants who were individually hired by their
respective heirs-clients, so their attorney's fees should be legally
charged against their respective clients and not against the
estate.
On the other hand, the respondents maintain that the petition is a
dilatory one and barred by res judicata because this Court on July
8, 1981, in G.R. No. 54232 directed the respondent Judge to
expedite the settlement and liquidation of the decedent's estate.
They claim that this resolution, which was already final and
executory, was in effect reversed and nullified by the Intermediate
Appellate Court in its case-AC G.R.-No. SP - 11145 — when it
granted the petition for certiorari and or prohibition and
disqualified Judge Francisco P. Burgos from taking further
cognizance of Special Proceedings No. 916R as well as ordering
the transmission of the records of the case to the Executive Judge
of the Regional Trial Court of Region VII for re-raffling on March 1,
1983, w hich was appealed to this Court by means of a Petition for
Review (G.R. No. 63818).
We agree with the petitioners' contention that attorney's fees are
not the obligation of the estate but of the individual heirs w ho
individually hired their respective lawyers. The portion, therefore,
of the Order of August 15, 1969, segregating the exhorbitantly

16. 16
excessive amount of 40% of the market value of the estate from
w hich attorney'sfeesshallbe taken and paid should be deleted.
Due to our affirmance of the decision of the Intermediate
Appellate Court in G.R. No. 63818, w e grant the petition.
WHEREFORE, —
(1) In G.R. No. 41171, the order of the respondent judge dated
December 24, 1974, declaring the respondent entitled to 5/9 of
the estate of the late Vito Borromeo and the order dated July 7,
1975, denying the petitioner's motion for reconsideration of the
aforementioned order are hereby SET ASIDE for being NULL and
VOID;
(2) In G.R. No. 55000, the order of the trial court declaring the
w aiver document valid is hereby SET ASIDE;
(3) In G.R. No. 63818, the petition is hereby DENIED. The issue
in the decision of the Intermediate Appellate Court disqualifying
and ordering the inhibition of Judge Francisco P. Burgos from
further hearing Special Proceedings No. 916-R is declared moot
and academic. The judge w ho has taken over the sala of retired
Judge Francisco P. Burgos shall immediately conduct hearings
with a view to terminating the proceedings. In the event that the
successor-judge is likew ise disqualified, the order of the
Intermediate Appellate Court directing the Executive Judge of the
Regional Trial Court of Cebu to re-raffle the case shall be
implemented:
(4) In G.R. No. 65995, the petition is hereby GRANTED. 'The
issue seeking to restrain Judge Francisco P. Burgos from further
acting in G.R. No. 63818 is MOOT and ACADEMIC:
(5) In G.R, No, 62895, the trial court is hereby ordered to speedily
terminate the close Special Proceedings No. 916-R, subject to the
submission of an inventory of the real properties of the estate and
an accounting of the cash and bank deposits by the petitioner-
administrator of the estate as required by this Court in its
Resolution dated June 15, 1983; and
(6) The portion of the Order of August 15, 1969, segregating 40%
of the market value of the estate from w hich attorney's fees shall
be taken and paid should be, as it is hereby DELETED. The
lawyers should collect from the heirs-distributees who individually
hired them, attorney's fees according to the nature of the services
rendered but in amounts which should not exceed more than 20%
of the market value of the property the latter acquired from the
estate as beneficiaries.
SO ORDERED.
Republic of the Philippines SUPREME COURT Manila
FIRST DIVISION
G.R. No. L-46903 July 23, 1987
BUHAY DE ROMA, petitioner, vs. THE HONORABLE COURT
OF APPEALS and FELICIDAD CARINGAL, as Guardian of
Rosalinda de Roma, respondents.
CRUZ, J.:
Candelaria de Roma had tw o legally adopted daughters, Buhay
de Roma and Rosalinda de Roma. She died intestate on April 30,
1971, and administration proceedings were instituted in the Court
of First Instance of Laguna by the private respondent as guardian
of Rosalinda. Buhay was appointed administratrix and in due time
filed an inventory of the estate. This w as opposed by Rosalinda
on the ground that certain properties earlier donated by
Candelaria to Buhay, and the fruits thereof, had not been
included.1
The properties in question consisted of seven parcels of coconut
land w orth P10,297.50.2
There is no dispute regarding their
evaluation; what the parties cannot agree upon is whether these
lands are subject to collation. The private respondent rigorously
argues that it is, conformably to Article 1061 of the Civil Code.
Buhay, for her part, citing Article 1062, claims she has no
obligation to collate because the decedent prohibited such
collation and the donation w as not officious.
The tw o articles provide as follows:
Article 1061. Every compulsory heir, who succeeds w ith other
compulsory heirs, must bring into the mass of the estate any
property or right which he may have received from the decedent
during the lifetime of the latter, by way of donation, or any other
gratuitous title, in order that it may be computed in the
determination of the legitime of each heir, and in the account of
the partition.
Article 1062. Collation shall not take place among compulsory
heirs if the donor should have so expressly provided, or if the
donor should repudiate the inheritance, unless the donation
should be reduced as inofficious.
The issue was resolved in favor of the petitioner by the trial court,*
which held that the decedent, when she made the donation in
favor of Buhay, expressly prohibited collation. Moreover, the
donation did not impair the legitimes of the two adopted daughters
as it could be accommodated in, and in fact was imputed to, the
free portion of Candelaria's estate.3
On appeal, the order of the trial court was reversed, the
respondent court**
holding that the deed of donation contained no
express prohibition to collate as an exception to Article 1062.
Accordingly, it ordered collation and equally divided the net estate
of the decedent, including the fruits of the donated property,
betw een Buhay and Rosalinda.4
The pertinent portions of the deed of donation are as follow s:
IKALAWA. Na alang-alang sa aking pagmamahal, pagtingin at
pagsisilbi sa akin ng aking anak na si BUHAY DE ROMA, kasal
kay Arabella Castaneda, may karampatang gulang,
mamamayang Pilipino at naninirahan at may pahatirang-sulat din
dito sa Lunsod ng San Pablo sa pamamagitan ng kasulatang ito
ay kusang-loob kong ibinibigay, ipinagkakaloob at inililipat sa
nabanggit na BUHAY DE ROMA, sa kanyang mga kahalili at
tagapagmana, sa pamamagitan ng pagbibigay na di na
mababaw ing muli, ang lahat ng mga lagay ng lupa na sinasabi sa
itaas, sa ilalim ng kasunduan na ngayon pa ay siya na ang
nagmamay-aring tunay ng mga lupang ito at kanya nang maaring
ipalipat ang mga hoja declaratoria ng mga lupang ito sa kanyang
pangalan, datapw a't samantalang ako ay nabubuhay, ay ako rin

17. 17
ang makikinabang sa mga mapuputi at mamomosesion sa mga
nasabing lupa;
IKATLO. Na pinagtibay ko na ako ay marami pang ibang mga
pag-aari sa sapat pang aking ikabuhay at sa pagbibigay kong ito
ay hindi masisira ang legitimate ng mga tao na dapat magmana
sa akin, sapagkat ang mga lupang sinasabi sa itaas ay bahagui
ng aking kabuhayan na ako ay may layang ipamigay kahit na
kaninong tao na kung taw agin ay Libre Disposicion. 5
We agree w ith the respondent court that there is nothing in the
above provisions expressly prohibiting the collation of the donated
properties. As the said court correctly observed, the phrase "sa
pamamagitan ng pagbibigay na di na mababawing muli" merely
described the donation as "irrevocable" and should not be
construed as an express prohibition against collation.6
The fact
that a donation is irrevocable does not necessarily exempt the
subject thereof fromthe collation required under Article 1061.
We surmise from the use of such terms as "legitime" and "free
portion" in the deed of donation that it was prepared by a lawyer,
and w e may also presume he understood the legal consequences
of the donation being made. It is reasonable to suppose, given the
precise language of the document, that he would have included
therein an express prohibition to collate if that had been the
donor's intention.
Anything less than such express prohibition will not suffice under
the clear language of Article 1062.1awphil The suggestion that
there was an implied prohibition because the properties donated
were imputable to the free portion of the decedent's estate merits
little consideration. Imputation is not the question here, nor is it
claimed that the disputed donation is officious The sole issue is
whether or not there was an express prohibition to collate, and we
see none.
The intention to exempt from collation should be expressed
plainly and unequivocally as an exception to the general rule
announced in Article 1062. Absent such a clear indication of that
intention, w e apply not the exception but the rule, which is
categoricalenough.
There is no need to dwell long on the other error assigned by the
petitioner regarding the decision of the appealed case by the
respondent court beyond the 12-month period prescribed by
Article X, Section 11 (1) of the 1973 Constitution. As we held in
Marcelino v. Cruz,7
the said provision was merely directory and
failure to decide on time would not deprive the corresponding
courts of jurisdiction or render their decisions invalid.
It is w orth stressing that the aforementioned provision has now
been reworded in Article VIII, Section 15, of the 1987 Constitution,
which also impresses upon the courts of justice, indeed w ith
greater urgency, the need for the speedy disposition of the cases
that have been clogging their dockets these many years. Serious
studies and efforts are now being taken by the Court to meet that
need.
WHEREFORE, the appealed decision is AFFIRMED in toto, w ith
costs against the petitioner. It is so ordered.