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

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

Federico Paredes for petitioners.

Demetrio V. Pre for private respondents.

MARTIN, J:

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

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

On May 9, 1975, defendants filed a written motion to dismiss the complaint, but before the hearing of the motion to dismiss, the counsel for the plaintiff moved to amend the complaint in order to include certain allegations therein. The motion to amend the complaint was granted and on July 17, 1975, plaintiffs filed their amended complaint.

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

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

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

Hence, this petition for review.

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

Under Section 17, Rule 3 of the Rules of Court "after a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and be substituted for the deceased, within such time as may be granted ... ." The question as to whether an action survives or not depends on the nature of the action and the damage sued for. 6 In the causes of action which survive the wrong complained affects primarily and principally property and property rights, the injuries to the person being merely incidental, while in the causes of action which do not survive the injury complained of is to the person, the property and rights of property affected being incidental. 7 Following the foregoing criterion the claim of the deceased plaintiff which is an action to quiet title over the parcels of land in litigation affects primarily and principally property and property rights and therefore is one that survives even after her death. It is, therefore, the duty of the respondent Court to order the legal representative of the deceased plaintiff to appear and to be substituted for her. But what the respondent Court did, upon being informed by the counsel for the deceased plaintiff that the latter was dead, was to dismiss the complaint. This should not have been done for under the same Section 17, Rule 3 of the Rules of Court, it is even the duty of the court, if the legal

representative fails to appear, to order the opposing party to procure the appointment of a legal representative of the deceased. In the instant case the respondent Court did not have to bother ordering the opposing party to procure the appointment of a legal representative of the deceased because her counsel has not only asked that the minor children be substituted for her but also suggested that their uncle be appointed as guardian ad litem for them because their father is busy in Manila earning a living for the family. But the respondent Court refused the request for substitution on the ground that the children were still minors and cannot sue in court. This is another grave error because the respondent Court ought to have known that under the same Section 17, Rule 3 of the Rules of Court, the court is directed to appoint a guardian ad litem for the minor heirs. Precisely in the instant case, the counsel for the deceased plaintiff has suggested to the respondent Court that the uncle of the minors be appointed to act as guardian ad litem for them. Unquestionably, the respondent Court has gravely abused its discretion in not complying with the clear provision of the Rules of Court in dismissing the complaint of the plaintiff in Civil Case No. 856 and refusing the substitution of parties in the case.

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

SO ORDERED.

EN BANC

[G.R. No. L-8437. November 28, 1956.]

ESTATE OF K. H. HEMADY, deceased, vs. LUZON SURETY CO., INC., claimant-Appellant.

D E C I S I O N

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

Appeal by Luzon Surety Co., Inc., from an order of the Court of First Instance of Rizal, presided by Judge Hermogenes Caluag, dismissing its claim against the Estate of K. H. Hemady (Special Proceeding No. Q-293) for failure to state a cause of action.

The Luzon Surety Co. had filed a claim against the Estate based on twenty different indemnity agreements, or counter bonds, each subscribed by a distinct principal and by the deceased K. H. Hemady, a surety solidary guarantor) in all of them, in consideration of the Luzon Surety Co.’s of having guaranteed, the various principals in favor of different creditors. The twenty counterbonds, or indemnity agreements, all contained the following stipulations:chanroblesvirtuallawlibrary

“Premiums. — As consideration for this suretyship, the undersigned jointly and severally, agree to pay the COMPANY the sum of ________________ (P______) pesos, Philippines Currency, in advance as premium there of for every __________ months or fractions thereof, this ________ or any renewal or substitution thereof is in effect.

Indemnity. — The undersigned, jointly and severally, agree at all times to indemnify the COMPANY and keep it indemnified

and hold and save it harmless from and against any and all damages, losses, costs, stamps, taxes, penalties, charges, and expenses of whatsoever kind and nature which the COMPANY shall or may, at any time sustain or incur in consequence of having become surety upon this bond or any extension, renewal, substitution or alteration thereof made at the instance of the undersigned or any of them or any order executed on behalf of the undersigned or any of them; chan roblesvirtualawlibraryand to pay, reimburse and make good to the COMPANY, its successors and assigns, all sums and amount of money which it or its representatives shall pay or cause to be paid, or become liable to pay, on account of the undersigned or any of them, of whatsoever kind and nature, including 15% of the amount involved in the litigation or other matters growing out of or connected therewith for counsel or attorney’s fees, but in no case less than P25. It is hereby further agreed that in case of extension or renewal of this ________ we equally bind ourselves for the payment thereof under the same terms and conditions as above mentioned without the necessity of executing another indemnity agreement for the purpose and that we hereby equally waive our right to be notified of any renewal or extension of this ________ which may be granted under this indemnity agreement.

Interest on amount paid by the Company. — Any and all sums of money so paid by the company shall bear interest at the rate of 12% per annum which interest, if not paid, will be accummulated and added to the capital quarterly order to earn the same interests as the capital and the total sum thereof, the capital and interest, shall be paid to the COMPANY as soon as the COMPANY shall have become liable therefore, whether it shall have paid out such sums of money or any part thereof or not.

x x x x x x x x x

Waiver. — It is hereby agreed upon by and between the undersigned that any question which may arise between them by reason of this document and which has to be submitted for decision to Courts of Justice shall be brought before the Court of competent jurisdiction in the City of Manila, waiving for this purpose any other venue. Our right to be notified of the acceptance and approval of this indemnity agreement is hereby likewise waived.

x x x x x x x x x

Our Liability Hereunder. — It shall not be necessary for the COMPANY to bring suit against the principal upon his default, or to exhaust the property of the principal, but the liability hereunder of the undersigned indemnitor shall be jointly and severally, a primary one, the same as that of the principal, and shall be exigible immediately upon the occurrence of such default.” (Rec. App. pp. 98- 102.)

The Luzon Surety Co., prayed for allowance, as a contingent claim, of the value of the twenty bonds it had executed in consideration of the counterbonds, and further asked for judgment for the unpaid premiums and documentary stamps affixed to the bonds, with 12 per cent interest thereon.

Before answer was filed, and upon motion of the administratrix of Hemady’s estate, the lower court, by order of September 23, 1953, dismissed the claims of Luzon Surety Co., on two grounds:chanroblesvirtuallawlibrary (1) that the premiums due and cost of documentary stamps were not contemplated under the indemnity agreements to be a part of the undertaking of the guarantor (Hemady), since they were not liabilities incurred after the execution of the counterbonds; chan roblesvirtualawlibraryand (2) that “whatever losses may occur after Hemady’s death, are not chargeable to his estate, because upon his death he ceased to be guarantor.”

Taking up the latter point first, since it is the one more far reaching in effects, the reasoning of the court below ran as follows:chanroblesvirtuallawlibrary

“The administratrix further contends that upon the death of Hemady, his liability as a guarantor terminated, and therefore, in the absence of a showing that a loss or damage was suffered, the claim cannot be considered contingent. This Court believes that there is merit in this contention and finds support in Article 2046 of the new Civil Code. It should be noted that a new requirement has been added for a person to qualify as a guarantor, that is:chanroblesvirtuallawlibrary integrity. As correctly pointed out by the Administratrix, integrity is something purely personal and is not transmissible. Upon the death of Hemady, his integrity was not transmitted to his estate or successors. Whatever loss therefore, may occur after Hemady’s death, are not chargeable to his estate because upon his death he ceased to be a guarantor.

Another clear and strong indication that the surety company has exclusively relied on the personality, character, honesty and integrity of the now deceased K. H. Hemady, was the fact that in the printed form of the indemnity agreement there is a paragraph entitled ‘Security by way of first mortgage, which was expressly waived and renounced by the security company. The security company has not demanded from K. H. Hemady to comply with this requirement of giving security by way of first mortgage. In the supporting papers of the claim presented by Luzon Surety Company, no real property was mentioned in the list of properties mortgaged which appears at the back of the indemnity agreement.” (Rec. App., pp. 407-408).

We find this reasoning untenable. Under the present Civil Code (Article 1311), as well as under the Civil Code of 1889 (Article 1257), the rule is that —

“Contracts take effect only as between the parties, their assigns and heirs, except in the case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law.”

While in our successional system the responsibility of the heirs for the debts of their decedent cannot exceed the value of the inheritance they receive from him, the principle remains intact that these heirs succeed not only to the rights of the deceased but also to his obligations. Articles 774 and 776 of the New Civil Code (and Articles 659 and 661 of the preceding one) expressly so provide, thereby confirming Article 1311 already quoted.

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

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

In Mojica vs. Fernandez, 9 Phil. 403, this Supreme Court ruled:chanroblesvirtuallawlibrary

“Under the Civil Code the heirs, by virtue of the rights of succession are subrogated to all the rights and obligations of the deceased (Article 661) and cannot be regarded as third parties with respect to a contract to which the deceased was a party, touching the estate of the deceased (Barrios vs. Dolor, 2 Phil. 44).

x x x x x x x x x

“The principle on which these decisions rest is not affected by the provisions of the new Code of Civil Procedure, and, in

accordance with that principle, the heirs of a deceased person cannot be held to be “third persons” in relation to any contracts touching the real estate of their decedent which comes in to their hands by right of inheritance; chan roblesvirtualawlibrarythey take such property subject to all the obligations resting thereon in the hands of him from whom they derive their rights.”

(See also Galasinao vs. Austria, 51 Off. Gaz. (No. 6) p. 2874 and de Guzman vs. Salak, 91 Phil., 265).

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

Under our law, therefore, the general rule is that a party’s contractual rights and obligations are transmissible to the successors. The rule is a consequence of the progressive “depersonalization” of patrimonial rights and duties that, as observed by Victorio Polacco, has characterized the history of these institutions. From the Roman concept of a relation from person to person, the obligation has evolved into a relation from patrimony to patrimony, with the persons occupying only a representative position, barring those rare cases where the obligation is strictly personal, i.e., is contracted intuitu personae, in consideration of its performance by a specific person and by no other. The transition is marked by the disappearance of the imprisonment for debt.

Of the three exceptions fixed by Article 1311, the nature of the obligation of the surety or guarantor does not warrant the conclusion that his peculiar individual qualities are contemplated as a principal inducement for the contract. What did the creditor Luzon Surety Co. expect of K. H. Hemady when it accepted the latter as surety in the counterbonds? Nothing but the reimbursement of the moneys that the Luzon Surety Co. might have to disburse on account of the obligations of the principal debtors. This reimbursement is a payment of a sum of money, resulting from an obligation to give; chan roblesvirtualawlibraryand to the Luzon Surety Co., it was indifferent that the reimbursement should be made by Hemady himself or by some one else in his behalf, so long as the money was paid to it.

The second exception of Article 1311, p. 1, is intransmissibility by stipulation of the parties. Being exceptional and contrary to the general rule, this intransmissibility should not be easily implied, but must be expressly established, or at the very least, clearly inferable from the provisions of the contract itself, and the text of the agreements sued upon nowhere indicate that they are non-transferable.

“(b) Intransmisibilidad por pacto. — Lo general es la transmisibilidad de darechos y obligaciones; chan roblesvirtualawlibraryle excepcion, la intransmisibilidad. Mientras nada se diga en contrario impera el principio de la transmision, como elemento natural a toda relacion juridica, salvo las personalisimas. Asi, para la no transmision, es menester el pacto expreso, porque si no, lo convenido entre partes trasciende a sus herederos.

Siendo estos los continuadores de la personalidad del causante, sobre ellos recaen los efectos de los vinculos juridicos creados por sus antecesores, y para evitarlo, si asi se quiere, es indespensable convension terminante en tal sentido.

Por su esencia, el derecho y la obligacion tienden a ir más allá de las personas que les dieron vida, y a ejercer presion sobre los sucesores de esa persona; chan roblesvirtualawlibrarycuando no se quiera esto, se impone una estipulacion limitativa expresamente de la transmisibilidad o de cuyos tirminos claramente se deduzca la concresion del concreto a las mismas personas que lo otorgon.” (Scaevola, Codigo Civil, Tomo XX, p. 541-542) (Emphasis supplied.)

Because under the law (Article 1311), a person who enters into a contract is deemed to have contracted for himself and his heirs and assigns, it is unnecessary for him to expressly stipulate to that effect; chan roblesvirtualawlibraryhence, his failure to do so is no sign that he intended his bargain to terminate upon his death. Similarly, that the Luzon Surety Co., did not require bondsman Hemady to execute a mortgage indicates nothing more than the company’s faith and confidence in the financial stability of the surety, but not that his obligation was strictly personal.

The third exception to the transmissibility of obligations under Article 1311 exists when they are “not transmissible by operation of law”. The provision makes reference to those cases where the law expresses that the rights or obligations are extinguished by death, as is the case in legal support (Article 300), parental authority (Article 327), usufruct (Article 603), contracts for a piece of work (Article 1726), partnership (Article 1830 and agency (Article 1919). By contract, the articles of the Civil Code that regulate guaranty or suretyship (Articles 2047 to 2084) contain no provision that the guaranty is extinguished upon the death of the guarantor or the surety.

The lower court sought to infer such a limitation from Art. 2056, to the effect that “one who is obliged to furnish a guarantor must present a person who possesses integrity, capacity to bind himself, and sufficient property to answer for the obligation which he guarantees”. It will be noted, however, that the law requires these qualities to be present only at the time of the perfection of the contract of guaranty. It is self-evident that once the contract has become perfected and binding, the supervening incapacity of the guarantor would not operate to exonerate him of the eventual liability he has contracted; chan roblesvirtualawlibraryand if that be true of his capacity to bind himself, it should also be true of his integrity, which is a quality mentioned in the article alongside the capacity.

The foregoing concept is confirmed by the next Article 2057, that runs as follows:chanroblesvirtuallawlibrary

“ART. 2057. — If the guarantor should be convicted in first instance of a crime involving dishonesty or should become insolvent, the creditor may demand another who has all the qualifications required in the preceding article. The case is excepted where the creditor has required and stipulated that a specified person should be guarantor.”

From this article it should be immediately apparent that the supervening dishonesty of the guarantor (that is to say, the disappearance of his integrity after he has become bound) does not terminate the contract but merely entitles the creditor to demand a replacement of the guarantor. But the step remains optional in the creditor:chanroblesvirtuallawlibrary it is his right, not his duty; chan roblesvirtualawlibraryhe may waive it if he chooses, and hold the guarantor to his bargain. Hence Article 2057 of the present Civil Code is incompatible with the trial court’s stand that the requirement of integrity in the guarantor or surety makes the latter’s undertaking strictly personal, so linked to his individuality that the guaranty automatically terminates upon his death.

The contracts of suretyship entered into by K. H. Hemady in favor of Luzon Surety Co. not being rendered intransmissible due to the nature of the undertaking, nor by the stipulations of the contracts themselves, nor by provision of law, his eventual liability thereunder necessarily passed upon his death to his heirs. The contracts, therefore, give rise to contingent claims provable against his estate under section 5, Rule 87 (2 Moran, 1952 ed., p. 437; chan roblesvirtualawlibraryGaskell & Co. vs. Tan Sit, 43 Phil. 810, 814).

“The most common example of the contigent claim is that which arises when a person is bound as surety or guarantor for a principal who is insolvent or dead. Under the ordinary contract of suretyship the surety has no claim whatever against his principal until he himself pays something by way of satisfaction upon the obligation which is secured. When he does this, there instantly arises in favor of the surety the right to compel the principal to exonerate the surety. But until the surety has contributed something to the payment of the debt, or has performed the secured obligation in whole or in part, he has no right of action against anybody — no claim that could be reduced to judgment. (May vs. Vann, 15 Pla., 553; chan roblesvirtualawlibraryGibson vs. Mithell, 16 Pla., 519; chan roblesvirtualawlibraryMaxey vs. Carter, 10 Yarg. [Tenn.], 521 Reeves vs. Pulliam, 7 Baxt. [Tenn.], 119; chan roblesvirtualawlibraryErnst vs. Nou, 63 Wis., 134.)”

For Defendant administratrix it is averred that the above doctrine refers to a case where the surety files claims against the estate of the principal debtor; chan roblesvirtualawlibraryand it is urged that the rule does not apply to the case before us, where the late Hemady was a surety, not a principal debtor. The argument evinces a superficial view of the relations between parties. If under the Gaskell ruling, the Luzon Surety Co., as guarantor, could file a contingent claim against the estate of the principal debtors if the latter should die, there is absolutely no reason why it could not file such a claim against the estate of Hemady, since Hemady is a solidary co-debtor of his principals. What the Luzon Surety Co. may claim from the estate of a principal debtor it may equally claim from the estate of Hemady, since, in view of the existing solidarity, the latter does not even enjoy the benefit of exhaustion of the assets of the principal debtor.

The foregoing ruling is of course without prejudice to the remedies of the administratrix against the principal debtors under Articles 2071 and 2067 of the New Civil Code.

Our conclusion is that the solidary guarantor’s liability is not extinguished by his death, and that in such event, the Luzon Surety Co., had the right to file against the estate a contingent claim for reimbursement. It becomes unnecessary now to discuss the estate’s liability for premiums and stamp taxes, because irrespective of the solution to this question, the Luzon Surety’s claim did state a cause of action, and its dismissal was erroneous.

Wherefore, the order appealed from is reversed, and the records are ordered remanded to the court of origin, with instructions to proceed in accordance with law. Costs against the Administratrix- Appellee. SO ORDERED.

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

TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-appellee; JOSE DE BORJA, as administrator, CAYETANO DE BORJA, MATILDE DE BORJA and CRISANTO DE BORJA (deceased) as Children of Josefa Tangco, appellees, vs.

TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of Francisco de Borja,appellant. .

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

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

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

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

L-28040

Pelaez, Jalandoni & Jamir for administrator-appellee.

Quiogue & Quiogue for appellee Matilde de Borja.

Andres Matias for appellee Cayetano de Borja.

Sevilla & Aquino for appellant.

L-28568

Sevilla & Aquino for special administratrix-appellee.

Pelaez, Jalandoni & Jamir for oppositor-appellant.

L-28611

Sevilla & Aquino for plaintiff-appellee.

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

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

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

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

And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision of the Court of First Instance of Rizal, Branch X, in its Civil Case No. 7452, declaring the Hacienda Jalajala Poblacion, which is the main object of the aforesaid compromise agreement, as the separate and exclusive property of the late Francisco de Borja and not a conjugal

asset of the community with his first wife, Josefa Tangco, and that said hacienda pertains exclusively to his testate estate, which is under administrator in Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija, Branch II.

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

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

A G R E E M E N T

THIS AGREEMENT made and entered into by and between

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

A N D

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

W I T N E S S E T H

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

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

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

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

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

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

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

of the Philippines and the heirs-children of Francisco de Borja.

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

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

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

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

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

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

The genuineness and due execution of the compromised agreement of 12 October 1963 is not disputed, but its validity is, nevertheless, attacked by Tasiana Ongsingco on the ground that: (1) the heirs cannot enter into such kind of agreement without first probating the will of Francisco de Borja; (2) that the same involves a compromise on the validity of the marriage between Francisco de Borja and Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to have force and effect.

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

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

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

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

This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the cases at bar. There was here no attempt to settle or distribute the estate of Francisco de Borja among the heirs thereto before the probate of his will. The clear object of the contract was merely the conveyance by Tasiana Ongsingco of any and all her individual share and interest, actual or eventual in the estate of Francisco de Borja and Josefa Tangco. There is no stipulation as to any other claimant, creditor or legatee. And as a hereditary share in a decedent's estate is transmitted or vested immediately from the moment of the death of such causante or predecessor in interest (Civil Code of the Philippines, Art. 777) 3 there is no legal bar to a successor (with requisite contracting capacity) disposing of her or his hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate. 4 Of course, the effect of such alienation is to be deemed limited to what is ultimately adjudicated to the vendor heir. However, the aleatory character of the contract does not affect the validity of the transaction; neither does the coetaneous agreement that the numerous litigations between the parties (the approving order of the Rizal Court enumerates fourteen of them, Rec. App. pp. 79-82) are to be considered settled and should be dismissed, although such stipulation, as noted by the Rizal Court, gives the contract the character of a compromise that the law favors, for obvious reasons, if only because it serves to avoid a multiplicity of suits.

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

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

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

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

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

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

This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction to approve the compromise with Jose de Borja (Annex A) because Tasiana Ongsingco was not an heir in the estate of Josefa Tangco pending settlement in the Rizal Court, but she was an heir of Francisco de Borja,

whose estate was the object of Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija. This circumstance is irrelevant, since what was sold by Tasiana Ongsingco was only her eventual share in the estate of her late husband, not the estate itself; and as already shown, that eventual share she owned from the time of Francisco's death and the Court of Nueva Ecija could not bar her selling it. As owner of her undivided hereditary share, Tasiana could dispose of it in favor of whomsoever she chose. Such alienation is expressly recognized and provided for by article 1088 of the present Civil Code:

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

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

Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is void because it amounts to a compromise as to her status and marriage with the late Francisco de Borja. The point is without merit, for the very opening paragraph of the agreement with Jose de Borja (Annex "A") describes her as "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", which is in itself definite admission of her civil status. There is nothing in the text of the agreement that would show that this recognition of Ongsingco's status as the surviving spouse of Francisco de Borja was only made in consideration of the cession of her hereditary rights.

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

It is difficult to believe, however, that the amicable settlement referred to in the order and motion above-mentioned was the compromise agreement of 13 October 1963, which already had been formally signed and executed by the parties and duly notarized. What the record discloses is that some time after its formalization, Ongsingco had unilaterally attempted to back out from the compromise agreement, pleading various reasons restated in the opposition to the Court's approval of Annex "A" (Record on Appeal, L-20840, page 23): that the same was invalid because of the lapse of the allegedly intended resolutory period of 60 days and because the contract was not preceded by the probate of Francisco de Borja's will, as required by this Court's Guevarra vs. Guevara ruling; that Annex "A" involved a compromise affecting Ongsingco's status as wife and widow of Francisco de Borja, etc., all of which objections have been already discussed. It was natural that in view of the widow's attitude, Jose de Borja should attempt to reach a new settlement or novatory agreement before seeking judicial sanction and enforcement of Annex "A", since the latter step might ultimately entail a longer delay in attaining final

remedy. That the attempt to reach another settlement failed is apparent from the letter of Ongsingco's counsel to Jose de Borja quoted in pages 35-36 of the brief for appellant Ongsingco in G.R. No. 28040; and it is more than probable that the order of 21 September 1964 and the motion of 17 June 1964 referred to the failure of the parties' quest for a more satisfactory compromise. But the inability to reach a novatory accord can not invalidate the original compromise (Annex "A") and justifies the act of Jose de Borja in finally seeking a court order for its approval and enforcement from the Court of First Instance of Rizal, which, as heretofore described, decreed that the agreement be ultimately performed within 120 days from the finality of the order, now under appeal.

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

In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has affected her unfavorably, in that while the purchasing power of the agreed price of P800,000 has diminished, the value of the Jalajala property has increased. But the fact is that her delay in receiving the payment of the agreed price for her hereditary interest was primarily due to her attempts to nullify the agreement (Annex "A") she had formally entered into with the advice of her counsel, Attorney Panaguiton. And as to the devaluation de facto of our currency, what We said in Dizon Rivera vs. Dizon, L-24561, 30 June 1970, 33 SCRA 554, that "estates would never be settled if there were to be a revaluation with every subsequent fluctuation in the values of currency and properties of the estate", is particularly opposite in the present case.

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

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

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

The lot allotted to Francisco was described as —

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

On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate Estate of Francisco de Borja, instituted a complaint in the Court of First Instance of Rizal (Civil Case No. 7452) against Jose de Borja, in his capacity as Administrator of Josefa Tangco (Francisco de Borja's first wife), seeking to have the Hacienda above described declared exclusive private property of Francisco, while in his answer defendant (now appellant) Jose de Borja claimed that it was conjugal property of his parents (Francisco de Borja and Josefa Tangco), conformably to the presumption established by Article 160 of the Philippine Civil Code (reproducing Article 1407 of the Civil Code of 1889), to the effect that:

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

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

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

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

Notwithstanding the four statements aforesaid, and the fact that they are plain admissions against interest made by both

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

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

and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire Hacienda had been bought at a foreclosure sale for P40,100.00, of which amount P25,100 was contributed by Bernardo de Borja and P15,000. by Marcelo de Borja; that upon receipt of a subsequent demand from the provincial treasurer for realty taxes the sum of P17,000, Marcelo told his brother Bernardo that Francisco (son of Marcelo) wanted also to be a co-owner, and upon Bernardo's assent to the proposal, Marcelo issue a check for P17,000.00 to pay the back taxes and said that the amount would represent Francisco's contribution in the purchase of the Hacienda. The witness further testified that —

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

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

The following shall be the exclusive property of each spouse:

xxx xxx xxx

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

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

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

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

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

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

Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

Fernando, J., took no part.

G.R. No. L-15499 February 28, 1962

ANGELA M. BUTTE, plaintiff-appellant, vs. MANUEL UY and SONS, INC., defendant-appellee.

Delgado, Flores and Macapagal for plaintiff-appellant. Pelaez and Jalandoni for defendant-appellee.

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

Appeal from a decision of the Court of First instance of Manila dismissing the action for legal redemption filed by plaintiff-appellant.

It appears that Jose V. Ramirez, during his lifetime, was a co-owner of a house and lot located at Sta. Cruz, Manila, as shown by Transfer Certificate of Title No. 52789, issued in the name of the following co-owners: Marie Garnier Vda. de Ramirez, 1/6; Jose V. Ramirez, 1/6; Jose E. Ramirez, 1/6; Rita de Ramirez, 1/6; and Jose Ma. Ramirez, 1/6.

On October 20, 1951, Jose V. Ramirez died. Subsequently, Special Proceeding No. 15026 was instituted to settle his estate, that included the one-sixth (1/6) undivided share in the aforementioned property. And although his last will and testament, wherein he bequeathed his estate to his children and grandchildren and one-third (1/3) of the free portion to Mrs. Angela M. Butte, hereinafter referred to as plaintiff-appellant, has been admitted to probate, the estate proceedings are still pending up to the present on account of the claims of creditors which exceed the assets of the deceased. The Bank of the Philippine Islands was appointed judicial administrator.

Meanwhile, on December 9, 1958, Mrs. Marie Garnier Vda. de Ramirez, one of the co-owners of the late Jose V. Ramirez in the Sta. Cruz property, sold her undivided 1/6 share to Manuel Uy & Sons, Inc. defendant-appellant herein, for the sum of P500,000.00. After the execution by her attorney-in-fact, Mrs. Elsa R. Chambers, of an affidavit to the effect that formal notices of the sale had been sent to all possible redemptioners, the deed of sale was duly registered and Transfer Certificate of Title No. 52789 was cancelled in lieu of which a new one was issued in the name of the vendee and the other-co-owners.

On the same day (December 9, 1958), Manuel Uy & Sons, Inc. sent a letter to the Bank of the Philippine Islands as judicial administrator of the estate of the late Jose V. Ramirez informing it of the above-mentioned sale. This letter, together with that of the bank, was forwarded by the latter to Mrs. Butte c/o her counsel Delgado, Flores & Macapagal, Escolta, Manila, and having received the same on December 10, 1958, said law office delivered them to plaintiff-appellant's son, Mr. Miguel Papa, who in turn personally handed the letters to his mother, Mrs. Butte, on December 11 and 12, 1958. Aside from this letter of defendant-appellant, the vendor, thru her attorney-in-fact Mrs. Chambers, wrote said bank on December 11, 1958 confirming vendee's letter regarding the sale of her 1/6 share in the Sta. Cruz property for the sum of P500,000.00. Said letter was received by the bank on December 15, 1958 and having endorsed it to Mrs. Butte's counsel, the latter received the same on December 16, 1958. Appellant received the letter on December 19, 1958.

On January 15, 1959, Mrs. Angela M. Butte, thru Atty. Resplandor Sobretodo, sent a letter and a Philippine National Bank cashier's check in the amount of P500,000.00 to Manuel Uy & Sons, Inc. offering to redeem the 1/6 share sold by Mrs. Marie Garnier Vda. de Ramirez. This tender having been refused, plaintiff on the same day consigned the amount in court and filed the corresponding action for legal redemption. Without prejudice to the determination by the court of the reasonable and fair market value of the property sold which she alleged to be grossly excessive, plaintiff prayed for conveyance of the property, and for actual, moral and exemplary damages.

After the filing by defendant of its answer containing a counterclaim, and plaintiff's reply thereto, trial was held, after which the court rendered decision on May 13, 1959, dismissing plaintiff's complaint on the grounds that she has no right to redeem the property and that, if ever she had any, she exercised the same beyond the statutory 30-day period for legal redemptions provided by the Civil Code. The counterclaim of defendant for damages was likewise dismissed for not being sufficiently established. Both parties appealed directly to this Court.

Based on the foregoing facts, the main issues posed in this appeal are: (1) whether or not plaintiff-appellant, having been bequeathed 1/3 of the free portion of the estate of Jose V. Ramirez, can exercise the right of legal redemption over the 1/6 share sold by Mrs. Marie Garnier Vda. de Ramirez despite the presence of the judicial administrator and pending the final distribution of her share in the testate proceedings; and (2) whether or not she exercised the right of legal redemption within the period prescribed by law.

The applicable law involved in the present case is contained in Articles 1620, p. 1, and 1623 of the Civil Code of the Philippines, which read as follows:

ART. 1620. A co-owner of a thing may exercise the right of redemption in case the shares of all the other-co-owners or of any of them, are sold to a third person. If the price of the alienation is grossly excessive, the redemptioner shall pay only a reasonable one.

Should two or more co-owners desire to exercise the right of redemption, they may only do so in proportion to the share they may respectively have in the thing owned in common. (1522a)

ART. 1623. The right of legal predemption or redemption shall not be exercised except within thirty days from the notice in writing by the respective vendor, or by the vendor, as the case may be. The deed of sale shall not be accorded in the Registry of Property, unless accompanied by an affidavit of the vendor that he has given written notice thereof at all possible redemptioners.

The right of redemption of co-owners excludes that of adjoining owners. (1524a)

That the appellant Angela M. Butte is entitled to exercise the right of legal redemption is clear. As testamentary heir of the estate of J.V. Ramirez, she and her co-heirs acquired an interest in the undivided one-sixth (1/6) share owned by her predecessor (causante) in the Santa Cruz property, from the moment of the death of the aforesaid co-owner, J.V. Ramirez. By law, the rights to the succession of a deceased persons are transmitted to his heirs from the moment of his death, and the right of succession includes all property rights and obligations that survive the decedent.

ART. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. (659)

ART. 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a)

ART. 947. The legatee or devisee acquires a right to the pure and simple legacies or devisees from the death of the testator, and transmits it to his heirs. (881a)

The principle of transmission as of the time of the predecessor's death is basic in our Civil Code, and is supported by other related articles. Thus, the capacity of the heir is determined as of the time the decedent died (Art. 1034); the legitime is to be computed as of the same moment(Art. 908), and so is the in officiousness of the donation inter vivos (Art. 771). Similarly, the legacies of credit

and remission are valid only in the amount due and outstanding at the death of the testator (Art. 935),and the fruits accruing after that instant are deemed to pertain to the legatee (Art. 948).

As a consequence of this fundamental rule of succession, the heirs of Jose V. Ramirez acquired his undivided share in the Sta. Cruz property from the moment of his death, and from that instant, they became co-owners in the aforesaid property, together with the original surviving co-owners of their decedent (causante). A co-owner of an undivided share is necessarily a co-owner of the whole. Wherefore, any one of the Ramirez heirs, as such co-owner, became entitled to exercise the right of legal redemption (retracto de comuneros) as soon as another co-owner (Maria Garnier Vda. de Ramirez) had sold her undivided share to a stranger, Manuel Uy & Sons, Inc. This right of redemption vested exclusively in consideration of the redemptioner's share which the law nowhere takes into account.

The situation is in no wise altered by the existence of a judicial administrator of the estate of Jose V. Ramirez while under the Rules of Court the administrator has the right to the possession of the real and personal estate of the deceased, so far as needed for the payment of the decedent's debts and the expenses of administration (sec. 3, Rule 85), and the administrator may bring or defend actions for the recovery or protection of the property or rights of the deceased (sec. 2, Rule 88), such rights of possession and administration do not include the right of legal redemption of the undivided share sold to Uy & Company by Mrs. Garnier Ramirez. The reason is obvious: this right of legal redemption only came into existence when the sale to Uy & Sons, Inc. was perfected, eight (8) years after the death of Jose V. Ramirez, and formed no part of his estate. The redemption right vested in the heirs originally, in their individual capacity, they did not derivatively acquire it from their decedent, for when Jose V. Ramirez died, none of the other co-owners of the Sta. Cruz property had as yet sold his undivided share to a stranger. Hence, there was nothing to redeem and no right of redemption; and if the late Ramirez had no such right at his death, he could not transmit it to his own heirs. Much less could Ramirez acquire such right of redemption eight years after his death, when the sale to Uy & Sons, Inc. was made; because death extinguishes civil personality, and, therefore, all further juridical capacity to acquire or transmit rights and obligations of any kind (Civil Code of the Phil., Art. 42).

It is argued that the actual share of appellant Mrs. Butte in the estate of Jose V. Ramirez has not been specifically determined as yet, that it is still contingent; and that the liquidation of estate of Jose V. Ramirez may require the alienation of the decedent's undivided portion in the Sta. Cruz property, in which event Mrs. Butte would have no interest in said undivided portion. Even if it were true, the fact would remain that so long as that undivided share remains in the estate, the heirs of Jose V. Ramirez own it, as the deceased did own it before his demise, so that his heirs are now as much co-owners of the Sta. Cruz property as Jose V. Ramirez was himself a co-owner thereof during his lifetime. As co-owners of the property, the heirs of Jose V. Ramirez, or any one of them, became personally vested with right of legal redemption as soon as Mrs. Garnier sold her own pro-indiviso interest to Uy & Sons. Even if subsequently, the undivided share of Ramirez (and of his heirs) should eventually be sold to satisfy the creditors of the estate, it would not destroy their ownership of it before the sale, but would only convey or transfer it as in turn sold (of it actually is sold) to pay his creditors. Hence, the right of any of the Ramirez heirs to redeem the Garnier share will not be

retroactively affected. All that the law requires is that the legal redemptioner should be a co-owner at the time the undivided share of another co-owner is sold to a stranger. Whether or not the redemptioner will continue being a co-owner after exercising the legal redemptioner is irrelevant for the purposes of law.

Nor it can be argued that if the original share of Ramirez is sold by the administrator, his heirs would stand in law as never having acquired that share. This would only be true if the inheritance is repudiated or the heir's quality as such is voided. But where the heirship is undisputed, the purchaser of hereditary property is not deemed to have acquired the title directly from the deceased Ramirez, because a dead man can not convey title, nor from the administrator who owns no part of the estate; the purchaser can only derive his title from the Ramirez heirs, represented by the administrator, as their trustee or legal representative.

The right of appellant Angela M. Butte to make the redemption being established, the next point of inquiry is whether she had made or tendered the redemption price within the 30 days from notices as prescribed by law. This period, be it noted, is peremptory, because the policy of the law is not to leave the purchaser's title in uncertainty beyond the established 30-day period. In considering whether or not the offer to redeem was timely, we think that the notice given by the vendee (buyer) should not be taken into account. The text of Article 1623 clearly and expressly prescribes that the thirty days for making the redemption are to be counted from notice in writing by the vendor. Under the old law (Civ. Code of 1889, Art. 1524), it was immaterial who gave the notice; so long as the redeeming co-owner learned of the alienation in favor of the stranger, the redemption period began to run. It is thus apparent that the Philippine legislature in Article 1623 deliberately selected a particular method of giving notice, and that method must be deemed exclusive (39 Am. Jur., 237; Payne vs. State, 12 S.W. [2d] 528). As ruled in Wampler vs. Lecompte, 150 Atl. 458 (affd. in 75 Law Ed. [U.S.] 275) —

Why these provisions were inserted in the statute we are not informed, but we may assume until the contrary is shown, that a state of facts in respect thereto existed, which warranted the legislature in so legislating.

The reasons for requiring that the notice should be given by the seller, and not by the buyer, are easily divined. The seller of an undivided interest is in the best position to know who are his co-owners that under the law must be notified of the sale. Also, the notice by the seller removes all doubts as to the fact of the sale, its perfection; and its validity, the notice being a reaffirmation thereof, so that the party need not entertain doubt that the seller may still contest the alienation. This assurance would not exist if the notice should be given by the buyer.

The notice which became operative is that given by Mrs. Chambers, in her capacity as attorney-in-fact of the vendor Marie Garnier Vda. de Ramirez. Under date of December 11, 1958, she wrote the Administrator Bank of the Philippine Islands that her principal's one-sixth (1/6) share in the Sta. Cruz property had been sold to Manuel Uy & Sons, Inc. for P500,000.00. The Bank received this notice on December 15, 1958, and on the same day endorsed it to Mrs. Butte, care of Delgado, Flores and Macapagal (her attorneys), who received the same on December 16, 1958. Mrs. Butte tendered redemption and upon the vendee's refusal, judicially consigned the price of P500,000.00 on January 15, 1959. The

latter date was the last one of the thirty days allowed by the Code for the redemption, counted by excluding December 16, 1958 and including January 15, 1959, pursuant to Article 13 of the Civil Code. Therefore, the redemption was made in due time.

The date of receipt of the vendor's notice by the Administrator Bank (December 15) can not be counted as determining the start of thirty days; for the Administrator of the estate was not a proper redemptioner, since, as previously shown, the right to redeem the share of Marie Garnier did not form part of the estate of Jose V. Ramirez.

We find no jurisdiction for appellant's claim that the P500,000,00. paid by Uy & Sons, Inc. for the Garnier share is grossly excessive. Gross excess cannot be predicated on mere individual estimates of market price by a single realtor.

The redemption and consignation having been properly made, the Uy counterclaim for damages and attorney's fees predicated on the assumption that plaintiff's action was clearly unfounded, becomes untenable.

PREMISES CONSIDERED, the judgment appealed from is hereby reversed and set aside, and another one entered:

(a) Declaring the consignation of P500,000,00 made by appellant Angela M. Butte duly and properly made;

(b) Declaring that said appellant properly exercised in due time the legal redemption of the one-sixth (1/6) undivided portion of the land covered by Certificate of Title No. 59363 of the Office of the Register of Deeds of the City of Manila, sold on December 9, 1958 by Marie Garnier Vda. de Ramirez to appellant Manuel Uy & Sons, Inc.

(c) Ordering appellant Manuel Uy & Sons, Inc. to accept the consigned price and to convey to Angela M. Butte the undivided portion above referred to, within 30 days from the time our decision becomes final, and subsequently to account for the rentals and fruits of the redeemed share from and after January 15, 1958, until its conveyance; and.

(d) Ordering the return of the records to the court of origin for further proceedings conformable to this opinion.

Without finding as to costs.

G.R. No. L-10470 June 26, 1958

SERAFIN SALDAÑA, plaintiff-appellant, vs. CITY OF ILOILO, defendant-appellee.

Serafin B. Saldaña for appellant. City Fiscal Filemon R. Consolacion for appellee.

MONTEMAYOR, J.:

Serafin Saldaña is appealing the decision of the Court of First Instance of Iloilo in Civil Case No. 2236, dismissing his complaint against the City of Iloilo, for the refund of taxes paid by him under protest, and upholding the legality of

Ordinance No. 28, Series of 1946, as amended by Ordinance No. 30, same series of the defendant City.

On May 25, 1946, the defendant City of Iloilo promulgated Ordinance No. 28, series of 1946, which for purposes of reference we reproduce below:

ORDINANCE No. 28

AN ORDINANCE REGULATING THE EXIT OF FOOD SUPPLY AND LABOR ANIMALS AND IMPOSING PERMIT FEE THEREFOR.

Be it ordained by the Municipal Board of the City of Iloilo, that:

ARTICLE 1. — For the purpose of regulating during this state of emergency, the exit of food supply and labor animals in order to avert shortage of the same in the City of Iloilo, it is strictly prohibited to send outside of the City of Iloilo, without first obtaining the necessary license permit from the Mayor, the following:

Large cattle, pigs, goats, sheep or the like; Domestic fowls, eggs; Fish, whether fresh, salted or dried; Milkfish (semilla), bagoon (guinamos, crabs, prawn or the like); Fruits, such as bananas, melon, papayas or the like.

ART. 2. — The City Treasurer shall, for issuance of license permit required in article one hereof, collect a fee as follows:

Large cattle, whether alive or slaughtered, P10 per head. Pigs, goats, and sheep, whether alive or slaughtered, P5 each. Chicken and other domestic fowls, whether alive or dressed — P0.50 each. Eggs, P2.00 per hundred or P0.02 each. Fish, whether fresh, dried or salted, P0.20 per kilo. Bagoon (guinamos) P0.10 per kilo. Crabs, prawn or the like, P0.20 per kilo. Milkfish (semilla), P2 per pot. Banana, P2, per hundred bunches or P0.02 per bunch. Other fruits not mentioned herein — P0.02 per kilo.

Art. 3. — It shall be unlawful for any carrier whether land, water, or air, to load any of the articles mentioned herein which is not provided with the corresponding permit as required by this ordinance.

Art. 4. — Violation of this ordinance shall be punished with a fine of not less than One Hundred (P100) Pesos, or more than Two Hundred (P200) Pesos, imprisonment of not less than ten (10) days but not exceeding six (6) months and to suffer subsidiary imprisonment in case of insolvency to pay the fine. . . .

Ordinance No. 30, passed on June 4, 1946, amended Ordinance No. 28 by reducing the fees for each chicken from P.50 to P.20, eggs from P2 to P1 per hundred, and for fish

from P.20 to P.10 per kilo, bananas from P2 to P1 per hundred bunches etc. Under said ordinances, Saldaña had been paying, though under protest, so-called fees on fish bought in the City of Iloilo and sent by him to Manila by plane, during the period from September 16, 1946 to December 6, 1946, totalling P1,359.80.

On September 17, 1951, plaintiff commenced the present proceedings by complaint for the reimbursement to him of the said amount with interest, on the ground that the ordinances in question were illegal, null and void, having been enacted beyond the powers of the Municipal Board of the City. In its answer, the defendant contended that the imposition and collection of the municipal licenses were within the power and duties of the Municipal Board in the exercise of its police power. The parties submitted an agreed statement of facts to the effect that during the period above-mentioned, Saldaña had sent fish out of Iloilo City to Manila, for the sending of which, the City collected P1,359.80 under the two ordinances in question, and that the payment of said amount was made under protest. On the basis of the agreed statement of facts, the lower court rendered the decision now appealed to us, holding that Ordinance No. 28 as amended was valid; that the purpose of the said ordinances was to regulate the exit of food supply and labor animals from the city of Iloilo and their sale beyond city limits, and falls squarely within the provisions of paragraph (aa), Section 21 of the Charter of the City, namely, Commonwealth Act No. 158; that the ordinance does not restrict trade but only regulates the business of purchase of foodstuffs for the purpose of taking them outside, with the purpose of averting the scarcity of foodstuffs; that the imposition and collection of the license fees provided in the said ordinance was included within the police power and that said fees were reasonable amounts, necessary to cover the expenses in the issuance of the licenses and the cost of the necessary inspection or police surveillance.

One question involved in the appeal is whether the licensed fees imposed and collected were in reality taxes. The following authorities are illuminating:

. . . . The differences between the license and the property tax are well established. The license represents the permission conceded to do an act, is not supposed to be imposed for revenue, and is in the main for police purposes. A property tax, on the other hand, is a tax in the ordinary sense, assessed according to the value of property. (City of Manila vs. Tanquintic, 58 Phil. 297, 300).

. . . . Estos dos terminos "derechos" e "impuesto" no entranan el mismo concepto, porque Impuestos oTaxes son, segun todas las autoridades conocidas, "an enforced contribution of money or other property assessed in accordance with some reasonable rule of apportionment by authority of a sovereign state, on persons or property within its jurisdiction, for the purpose of defraying the public expenses" (26 R. C. L. par. 2, page 13); or "a rate or sum of money assessed on the person or property of a citizen by government for the use of the nation or state; burdens or charges imposed by the legislative power upon persons or property to raise money for public purposes" (61 C. J., 65); y Derechos o Fees, son por otra parte, "a reward or compensation allowed by law to an officer for specific services performed by him in the discharge of his official duties; a sum certain given for a particular service; the sum prescribed by law as for services rendered

by public officers" (25 C. J., 1009). (Manila Electric Co. vs. Auditor General, et al., 73 Phil. 128, 133).

. . . . So-called license taxes are of two kinds. The one is a tax for the purpose of revenue. The other, which is, strictly speaking, not a tax at all but merely an exercise of the police power, is a fee imposed for the purpose of regulation. . . . But a charge of a fixed sum which bears no relation to the cost of inspection and which is payable into the general revenue of the state is a tax rather than an exercise of the police power. (Cooley, Taxation, 4th ed., Vol. I, pp. 97-98).

Judging from the amount of the fees fixed in the ordinances in question, we do not hesitate to find and to hold that the so-called fees were in reality taxes for city revenue. For instance, the P10.00 fee for every head of large cattle, whether alive or slaughtered, and the P5.00 fee for every pig, goat, or sheep, whether alive or slaughtered, cannot possibly be considered as mere expense incurred for, or the cost of the inspection of each animal and the issuance of the corresponding permit. If a pig, goat, or sheep costs, say, P15 or even P20, then the P5.00 fee would constitute quite a considerable slice or portion of said cost; and if the animals and articles listed in the ordinances were sent out from the City of Iloilo in large quantities and numbers, there would be no doubt that the fees collected would amount to a sizable sum and augment greatly the revenues of the municipal corporation, way in excess of the cost of inspections and the issuance of the permits.

Another important question is that Article 1 of the ordinance also strictly prohibits the sending out of the City of Iloilo, of the animals and articles enumerated therein, like large cattle, pigs, fowl, fish, eggs, fruits, etc., without first obtaining the necessary license permit from the mayor; and Article 3 declares it unlawful for any carrier whether land water or air, to load any of said animals or articles without the corresponding permit. The ordinance fails to provide for any regulations or conditions under which the permit can be granted or denied. In other words, the mayor has absolute power to refuse to issue any permit, practically making him absolute dictator over the subject matter. With merely telling the applicant and prospective licensee that said animals and articles are needed in the City of Iloilo, the mayor could refuse to grant the permit. To realize the danger of the grant of said absolute power is not difficult.

As to the reasonableness of the prohibition of selling and taking out of the City of Iloilo of any of the animals and articles enumerated in the ordinance, appellant asks us to consider or take judicial notice of the fact that those animals and articles are not all produced in the City of Iloilo, but come from other towns of the province, even from other provinces adjacent, and are taken to the City of Iloilo only for the purpose of transportation to other places, like Manila. In other words, they are not brought into the City of Iloilo for the consumption of the residents thereof, but for export to other places. But once inside the city limits, under the ordinance, the mayor takes absolute control and has jurisdiction to allow or disallow their being taken out of the city, and in case he issues the permit for their being taken away, taxes are imposed thereon under the guise of license fees.

As correctly argued by the appellant, nowhere in the charter of the defendant City is it authors to regulate and collect fees or taxes for, the taking out of the city, of animals and articles listed in the ordinance. On the other hand, a municipal corporation like the defendant City has no inherent power of

taxation. To enact a valid ordinance, the City must find in its charter the power to do so, for said power cannot be assumed.

A municipal corporation, unlike a sovereign state, is clothed with no inherent power of taxation. Its charter must plainly show an intent to confer that power or the corporation cannot assume it. And the power when granted is to be construed strictissimi juris. Any doubt or ambiguity arising out of the term used must be resolved against the corporation. (Santos Lumber Co. vs. City of Cebu, et al., 102 Phil., 870; See also Arong vs. Raffiñan, 98 Phil., 422).

Aside from this lack of inherent power of taxation by a municipal corporation, Section 2287 of the Revised Administrative Code provides that municipal revenue obtainable by taxation shall be derived from such sources only as are expressly authorized by law; and it further provides, and this is very important, that:

It shall not be in the power of the municipal council to impose a tax in any form whatever upon goods and merchandise into the municipality, or out of the same, and any attempt to impose an import or export taxupon such goods in the guise of an unreasonable charge for wharfage, use of bridges or otherwise, shall be void. (Emphasis supplied).

This last provision is reproduced in Section 2629, of the same Revised Administrative Code, entitled "General Rules for Municipal Taxation and Licenses."

In conclusion, we find that the ordinance in question as amended, is ultra vires, enacted beyond the general powers of a municipal corporation and not authorized by the defendant-appellee's charter, and consequently null and void; that the prohibition against taking animals and articles out of the City of Iloilo without permit of the mayor is in restraint of trade and a curtailment of the rights of the owners of the said animals and articles to freely sell and of prospective purchasers to buy and dispose of them without the city limits in the ordinary course of commerce and trade; that the fees imposed in the said ordinances are in fact taxes not only unauthorized by the law or the charter of defendant City, but also in contravention of the provisions of Sections 2287 and 2629 of the Revised Administrative Code, which prohibit municipal corporations from imposing any tax in any form upon goods and merchandise carried into or out of the town or City.

In view of the foregoing, the appealed decision is hereby reversed and the City of Iloilo is hereby ordered to reimburse plaintiff the amount of P1,359.80, with legal interest and costs.

G.R. No. 125888 August 13, 1998

SPOUSES ERNESTO and EVELYN SICAD, petitioners, vs. COURT OF APPEALS, CATALINO VALDERRAMA, JUDY CRISTINA M. VALDERRAMA and JESUS ANTONIO VALDERRAMA, respondents.

NARVASA, C.J.:

The issue raised in the appeal by certiorari at bar centers on the character of a deed of donation executed by the late Aurora Virto DA. de Motinola of the City of Iloilo — as either inter vivos or mortis causa. That deed, entitled "DEED OF DONATION INTER VIVOS," 1 was executed by Montinola on December 11, 1979. It named as donees her grandchildren, namely: Catalino Valderrama, Judy Cristina Valderrama and Jesus Antonio Valderrama: and treated of a parcel of land, Lot 3231 of the Cadastral Survey of Panay, located at Brgy. Pawa, Panay, Capiz, covered by Transfer Certificate of Title No. T-16105 in the name of Montinola. The deed also contained the signatures of the donees in acknowledgment of their acceptance of the donation.

Montinola's Secretary, Gloria Salvilla, afterwards presented the deed for recording in the Property Registry, and the Register of Deeds cancelled TCT No. T-16105 (the donor's title) and, in its place, issued TCT No. T-16622 on February 7, 1980, in the names of the donees. 2 Montinola however retained the owner's duplicate copy of the new title (No. T-16622), as well as the property itself, until she transferred the same ten (10) years later, on July 10, 1990, to the spouses, Ernesto and Evelyn Sicad.

On March 12, 1987, Aurora Montinola drew up a deed of revocation of the donation, 3 and caused it to be annotated as an adverse claim on TCT No. T-16622 (issued, as aforestated, in her grandchildren's names). Then, on August 24, 1990, she filed a petition with the Regional Trial Court in Roxas City for the cancellation of said TCT No. T-16622 and the reinstatement of TCT No. T- 16105 (in her name), the case being docketed as Special Proceeding No. 3311. Her petition was founded on the theory that the donation to her three (3) grandchildren was one mortis causa which thus had to comply with the formalities of a will; and since it had not, the donation was void and could not effectively serve as basis for the cancellation of TCT No. T-16105 and the issuance in its place of TCT No. T-16622.

The donees (Montinola's grandchildren) opposed the petition. In their opposition dated August 29, 1990, they averred that the donation in their favor was one inter vivos which, having fully complied with the requirements therefor set out in Article 729 of the Civil Code, was perfectly valid and efficacious. They also expressed doubt about the sincerity of their grandmother's intention to recover the donated property, since she had not pursued the matter of its revocation after having it annotated as an adverse claim.

The case, originally treated as a special proceeding, was subsequently considered by the lower Court as an ordinary civil action in view of the allegations and issues raised in the pleadings. Pre-trial was had, followed by trial on the merits which was concluded with the filing of the parties' memoranda. The Trial Court then rendered judgment on March 27, 1991, holding that the donation was indeed one inter vivos, and dismissing Aurora Montinola's petition for lack of merit. 4 The matter of its revocation was not passed upon.

Montinola elevated the case to the Court of Appeals, her appeal being docketed as CA-G.R. CV No. 33202. She however died on March 10, 1993, 5 while the appeal was pending.

Shortly after Montinola's demise, a "Manifestation and Motion" dated March 31, 1993 was filed by Ernesto Sicad and Evelyn Bofill-Sicad, herein petitioners, 6 in which they (a) alleged that they had become the owners of the property covered by TCT No. T-16622 in virtue of a "deed of definite

sale dated May 25, 1992" accomplished by Montinola in their favor, which was confirmed by "an affidavit dated November 26, 1997 also executed by the latter, and (b) prayed that they be substituted as appellants and allowed to prosecute the case in their own behalf.

Another motion was subsequently presented under date of April 7, 1993, this time by the legal heirs of Aurora Montinola, namely: Ofelia M. de Leon, Estela M. Jaen and Teresita M. Valderama. They declared that they were not interested in pursuing the case, and asked that the appeal be withdrawn. Montinola's counsel opposed the motion.

On June 21, 1993, the Court of Appeals issued a Resolution: (a) ordering the substitution of the persons above mentioned — Ofelia de Leon, Estela M, Jaen, and Teresita M. Valderama — as plaintiffs-appellants in place of the late Aurora Montinola, as well as the joinder of the spouses Ernesto and Evelyn Bofill-Sicad as additional appellants; 7 and (b) denying the motion for the withdrawal of the appeal.

On June 30, 1995, the Eighth Division of the Court of Appeals promulgated its Decision on the case affirming the judgment of the Regional Trial Court; 8 and on July 31, 1996, it denied the separate motions for reconsideration filed by Ofelia M. de Leon, Estela M. Jaen, and Teresita M. Valderrama, on the one hand, and by the spouses, Ernest and Evelyn Sicad, on the other. 9

The Sicad Spouses have appealed to this Court; and here, they contend that the following errors were committed by the Appellate Tribunal, to wit:

1) ** in ruling that the donation was inter vivos and in not giving due weight to the revocation of the donation; and

2) ** in not ordering that the case be remanded for further reception of evidence. 10

The Comment filed for private respondents (the donees) under date of December 19, 1996 deals with what they consider the "principal issue in this case ** (i.e.) whether the donation is mortis causa or inter vivos," and sets forth the argument that the "donor clearly intended to effect the immediate transfer of ownership to the donees." that the prohibition in the deed of donation "against selling the property within ten (10) years after the death of the donor does not indicate that the donation ismortis causa," that the donor's "alleged act of physically keeping the title does not suggest any intention to defer the effectivity of the donation," that the "payment of real property taxes is consistent with the donor's' reservation of the right of usufruct," that the donor's intent "is not determined by ** (her) self-serving post-execution declarations," the "donation was never effectively revoked," and petitioners "have waived their right to question the proceedings in the trial court." 11

The Reply of the Sicad Spouses dated March 14, 1997 reiterates their thesis that the donation was mortis causa, that "the provisions of the deed of donation indicate that it was intended to take effect upon the death of the donor," that "the circumstances surrounding the execution of the deed, and the subsequent actions of the donor

incontrovertibly signify the donor's intent to transfer the property only after her death," that the donor "did not intend to give effect to the donation," and that the procedure adopted by the Trial Court in the case was fatally defective. 12 A "Rejoinder" dated April 3, 1997 was then submitted by the Valderramas, traversing the assertions of the Reply. 13

Considering the focus of the opposing parties, and their conflicting theories, on the intention of Aurora Montinola in executing the document entitled "Deed of Donation Inter Vivos," it is needful to review the circumstances of the signing of that document by Montinola, as ostensible donor, and her grandchildren, as ostensible donees.

The evidence establishes that on December 11, 1979, when the deed of donation prepared by Montinola's lawyer (Atty. Treñas) was read and explained by the latter to the parties, Montinola expressed her wish that the donation take effect only after ten (10) years from her death, and that the deed include a prohibition on the sale of the property for such period. Accordingly, a new proviso was inserted in the deed reading: "however, the donees shall not sell or encumber the properties herein donated within 10 years after the death of the donor." 14 The actuality of the subsequent insertion of this new proviso is apparent on the face of the instrument: the intercalation is easily perceived and identified — it was clearly typed on a different machine, and is crammed into the space between the penultimate paragraph of the deed and that immediately preceding it. 15

Not only did Aurora Montinola order the insertion in the deed of that restrictive proviso, but also, after recordation of the deed of donation, she never stopped treating the property as her own. She continued, as explicity authorized in the deed itself, to possess the property, enjoy its fruits and otherwise exercise the rights of dominion, paying the property taxes as they fell due — all these she did until she transferred the Property to the Sicad Spouses on July 10, 1990. She did not give the new certificate of title to the ostensible donees but retained it, too, until she delivered it to the Sicads on the occasion of the sale of the property to them. In any event, the delivery of the title to the donees would have served no useful purpose since, as just stated, they were prohibited to effect any sale or encumbrance thereof for a period of ten (10) years after the ostensible donor's decease. And consistent with these acts denoting retention of ownership of the property was Montinola's openly expressed view that the donation was ineffectual and could not be given effect even after ten (10) years from her death. For this view she sought to obtain judicial approval. She brought suit on August 24, 1990 to cancel TCT No. T-16622 (issued to her grandchildren) premised precisely on the invalidity of the donation for failure to comply with the requisites of testamentary dispositions. Before that, she attempted to undo the conveyance to her grandchildren by executing a deed of revocation of the donation on March 12, 1987, and causing annotation thereof as an adverse claim on said TCT No. T-16622. She also exercised indisputable acts of ownership over said property by executing, as just stated, deeds intended to pass title over it to third parties — petitioners herein. 16

As already intimated, the real nature of a deed is to be ascertained by both its language and the intention of the parties as demonstrated by the circumstances attendant upon its execution. In this respect, case law has laid down significant parameters. Thus, in a decision handed down in 1946, 17 this Court construed a deed purporting to be a donation inter vivosto be in truth one mortis causa because it stipulated (like the one now being inquired into) "that all

rents, proceeds, fruits, of the donated properties shall remain for the exclusive benefit and disposal of the donor, Margarita David, during her lifetime; and that, without the knowledge and consent of the donor, the donated properties could not be disposed of in any way, whether by sale, mortgage, barter, or in any other way possible," On these essential premises, the Court said, such a donation must be deemed one "mortis causa, because the combined effect of the circumstances surrounding the execution of the deed of donation and of the above-quoted clauses thereof ** (was that) the most essential elements of ownership — the right to dispose of the donated properties and the right to enjoy the products, profits, possession — remained with Margarita David during her lifetime, and would accrue to the donees only after Margarita David's death." So, too, in the case at bar, did these rights remain with Aurora Montinola during her lifetime, and could not pass to the donees until ten (10) years after her death.

In another case decided in 1954 involving a similar issue, Bonsato v. Court of Appeals, 18 this Court emphasized that the decisive characteristics of a donation mortis causa, which it had taken into account in David v. Sison, were that "the donor not only reserved for herself all the fruits of the property allegedly conveyed, but what is even more important, specially provided that "without the knowledge and consent of the donor, the donated properties could not be disposed of in any way,; thereby denying to the transferees the most essential attribute of ownership, the power to dispose of the properties."

A donation which purports to be one inter vivos but withholds from the donee the right to dispose of the donated property during the donor's lifetime is in truth one mortis causa. In a donation mortis causa "the right of disposition is not transferred to the donee while the donor is still alive." 19

In the instant case, nothing of any consequence was transferred by the deed of donation in question to Montinola's grandchildren, the ostensible donees. They did not get possession of the property donated. They did not acquire the right to the fruits thereof, or any other right of dominion over the property. More importantly, they did not acquire the right to dispose of the property — this would accrue to them only after ten (10) years from Montinola's death. Indeed, they never even laid hands on the certificate of title to the same. They were therefore simply "paper owners" of the donated property. All these circumstances, including, to repeat, the explicit provisions of the deed of donation — reserving the exercise of rights of ownership to the donee and prohibiting the sale or encumbrance of the property until ten (10) years after her death — ineluctably lead to the conclusion that the donation in question was a donation mortis causa, contemplating a transfer of ownership to the donees only after the donor's demise.

The case of Alejandro v. Geraldez 20 cited by the Court of Appeals in support of its challenged judgment is not quite relevant. For in the deed of donation there in issue, there was a partial relinquishment of the right to dispose of the property, in the event only that this became necessary "to defray the expenses and support of the donors." That limited right to dispose of the donated lots, said this Court, "implies that ownership had passed to ** (the donees) by means of the donation and **, therefore, the donation was already effective during the donors' lifetime. That is a characteristic of a donation inter vivos." On the other hand, in the case at bar, the donees were expressly prohibited to make any disposition of any nature or for any purpose whatever during the donor's lifetime, and until ten (10) years after her death

— a prohibition which, it may be added, makes inapplicable the ruling in Castro v. Court of Appeals, 21 where no such prohibition was imposed, and the donor retained only the usufruct over the property.

The Valderramas' argument that the donation is inter vivos in character and that the prohibition against their disposition of the donated property is merely a condition which, if violated, would give cause for its revocation, begs the question. It assumes that they have the right to make a disposition of the property, which they do not. The argument also makes no sense, because if they had the right to dispose of the property and did in fact dispose of it to a third person, the revocation of the donation they speak of would be of no utility or benefit to the donor, since such a revocation would not necessarily result in the restoration of the donor's ownership and enjoyment of the property.

It is also error to suppose that the donation under review should be deemed one inter vivos simply because founded on considerations of love and affection. In Alejandro v. Geraldez, supra, 22 this Court also observed that "the fact that the donation is given in consideration of love and affection ** is not a characteristic of donations inter vivos (solely) because transfers mortis causa may also be made for the same reason." Similarly, in Bonsato v. Court of Appeals, supra, this Court opined that the fact "that the conveyance was due to the affection of the donor for the donees and the services rendered by the latter, is of no particular significance in determining whether the deeds, Exhs. "1" and "2," constitute transfers inter vivosor not, because a legacy may have identical motivation." 23

Finally, it is germane to advert to the legal principle in Article 1378 of the Civil Code to the effect that in case of doubt relative to a gratuitous contract, the construction must be that entailing "the least transmission of rights and interests," 24

The donation in question, though denominated inter vivos, is in truth one mortis causa; it is void because the essential requisites for its validity have not been complied with.

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CV No. 33202 dated June 30, 1995 as well as the Resolution denying reconsideration thereof, and the Decision of the Regional Trial Court in Special Case No. 3311 are SET ASIDE. The Deed of Donation Inter Vivos (Exh. "A") executed by Aurora Virto Vda. de Montinola on December 11, 1979 in favor of Catalino M. Valderrama, Judy Cristina M. Valderrama and Jesus Antonio M. Valderrama is declared null and void. The Register of Deeds of Roxas City is directed to cancel Transfer Certificate of Title No. T-16622, revive and reinstate Transfer Certificate of Title No. T-16105.

SO ORDERED.

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

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

Vicente R. Macasaet and Jose D. Villena for oppositors appellants. Paredes, Poblador, Cruz and Nazareno for heirs-appellees E.

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

BENGZON, J.P., J.:

This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein.1äwphï1.ñët

The facts of the case are as follows:

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

On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.1äwphï1.ñët

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

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

On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition, the executor — pursuant to the "Twelfth" clause of the testator's Last Will and Testament — divided the residuary estate into seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages.

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

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

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

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

In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death.2 So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here involved are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be presumed different from ours.3Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code.

Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that —

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

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

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

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

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

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

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

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

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

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

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.

G.R. No. L-24569 February 26, 1926

MANUEL TORRES, petitioner-appellant and LUZ LOPEZ DE BUENO, appellant, vs. MARGARITA LOPEZ, opponent-appellee.

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

MALCOLM, J.:

This case concerns the probate of the alleged will of the late Tomas Rodriguez y Lopez.

Tomas Rodriguez died in the City of Manila Philippine Islands. On February 25, 1924, leaving a considerable estate. Shortly thereafter Manuel Torres, one of the executors named in the will asked that the will of Rodriguez be allowed. Opposition was entered by Margarita Lopez, the first cousin of the deceased on the grounds: (1) That the testator lacked mental capacity because at the time of senile dementia and was under guardianship; (2) that undue influence had been exercised by the persons benefited in the document in conjunction with others who acted in their behalf; and (3) that the signature of Tomas Rodriguez to the document was obtained through fraud and deceit. After a prolonged trial judgment was rendered denying the legalization of the will. In the decision of the trial judge appeared, among others, these findings:

All this evidence taken together with the circumstances that before and at the time Tomas Rodriguez was caused to sign the supposed will Exhibit A, and the copies thereof there already existed a final judgment as to his mental condition wherein he was declared physically and mentally incapacitated to take care of himself and manage his estate shows in a clear and conclusive manner that at the time of signing the supposed will of Tomas Rodriguez did not possess such mental capacity as was necessary to be able him to dispose of his property by the supposed will.

But even supposing as contended by petitioner's counsel that Tomas Rodriguez was at the time of execution of the will, competent to make a will, the court is of the opinion that the will cannot be probated for it appears from the declaration of the attesting witness Elias Bonoan that when the legatee Luz Lopez presented the supposed will, Exhibit A, to Tomas Rodriguez, she told him to sign said Exhibit A because it was a document relative to the complaint against one Castito, which Exhibit 4, then pending in the justice of the peace court, and for the further reason that said Tomas Rodriguez was then under guardianship, due to his being mentally and physically incapacitated and therefore unable to manage his property and take care of himself. It must also be taken into account that Tomas Rodriguez was an old man 76 years of age, and was sick in the hospital when his signature to the supposed will was obtained. All of this shows that the signature of Tomas Rodriguez appearing in the will was obtained through fraudulent and deceitful representations of those who were interested in it. (Record on Appeal, p. 23)

From the decision and judgment above-mentioned the proponents have appealed. Two errors are specified, viz: (1) The court below erred in holding that at the time of signing his will, Tomas Rodriguez did not possess the mental capacity necessary to make the same, and (2) the court below erred in holding that the signatures of Tomas Rodriguez to the will were obtained through fraudulent and deceitful

representations, made by persons interested in the executions of said will.

The record is voluminous — close to two thousand typewritten pages, with a varied assortment of exhibits. One brief contains two hundred seventy-four pages, the other four hundred fifteen pages. The usual oral argument has been had. The court must scale this mountains of evidence more or less relevant and of argument intense and prolific to discover the fertile valleys of fact and principle.

The topics suggested by the assignments of error — Testamentary Capacity and Undue Influence — will be taken up separately and in order. An attempt will be made under each subject first to make findings of fact quite separate and apart from those of the judge and second to make findings of law and the law by rendering judgment.

I. TESTAMENTARY CAPACITY

A. Facts. — For a long time prior to October, 1923, Tomas Rodriguez was in feeble health. His breakdown was undoubtedly due to organic weakness, to advancing years and to an accident which occurred in 1921 (Exhibit 6). Ultimately, on August 10 1923, on his initiative, Tomas Rodriguez designated Vicente F. Lopez as the administrator of his property (Exhibit 7).

On October 22, 1923, Margarita Lopez petitioned the Court of First Instance of Manila to name a guardian for Tomas Rodriguez because of his age and pathological state. This petition was opposed by Attorney Gregorio Araneta acting on behalf of Tomas Rodriguez for the reason that while Rodriguez was far from strong on account of his years, he was yet capable of looking after his property with the assistance of his administrator, Vicente F. Lopez. The deposition of Tomas Rodriguez was taken and a perusal of the same shows that he was able to answer nearly all of the questions propounded intelligently (Exhibit 5-g). A trial had at which considerable oral testimony for the petitioner was received. At the conclusion of the hearing, an order was issued by the presiding judge, declaring Tomas Rodriguez incapacitated to take care of himself and to manage his property and naming Vicente F. Lopez as his guardian. (Exhibit 37).

Inasmuch as counsel for the appellee make such of one incident which occurred in connection with the guardianship proceedings, it may as well be mentioned here as later. This episode concerns the effort of deputy sheriff Joaquin Garcia to make service on Tomas Rodriguez on October 31, 1923. We will let the witness tell in his own words what happened on the occasions in question:

I found him lying down on his bed. . . . And when it (the cleaning of his head) was finished, I again entered his room, and told him that I had an order of the court which I wanted to read as I did read to him, but after reading the order he asked me what the order meant; 'I read it to you so that you may appear before the court, understand,' then I read it again, but he asked what the order said; in view of that fact I left the order and departed from the house. (S. R., p. 642.)

To return to our narrative — possibly inspired by the latter portion of the order of Judge Diaz, Tomas Rodriguez was taken to the Philippine General Hospital on November 27, 1923. There he was to remain sick in bed until his death. The physician in charge during this period was Dr. Elias Domingo.

In the clinical case record of the hospital under the topic "Diagnosis (in full)," we find the following "Senility; Hernia inguinal; Decubitus" (Exhibit 8).

On the door of the patient's room was placed a placard reading — "No visitors, except father, mother, sisters, and brothers." (Testimony of head nurse physician, there were permitted to visit the patient only the following named persons: Santiago Lopez, Manuel Ramirez, Romana Lopez, Luz Lopez de Bueno, Remedio Lopez, Benita Lopez, Trinidad Vizcarra, Apolonia Lopez, Antonio Haman, and Gregorio Araneta ((Exhibit 9). The list did not include the names of Margarita Lopez and her husband Antonio Ventura. Indeed the last named persons experienced considerable difficulty in penetrating in to the room of Rodriguez.

Santiago Lopez states that on one occasion when he was visiting Tomas Rodriguez in the hospital , Rodriguez expressed to him a desire to make a will and suggested that the matter be taken up with Vicente F. Lopez (S. R., p. 550). This information Santiago Lopez communicated to Vicente F. Lopez, who then interviewed Maximino Mina, a practicing attorney in the City of Manila, for the purpose of securing him to prepare the will. In accordance with this request, Judge Mina conferred with Tomas Rodriguez in the hospital in December 16th and December 29th. He ascertained the wishes of Rodriguez and wrote up a testament in rough draft. The attorney expected to return to the hospital on December 31st to have the will executed but was unable to do so on account of having to make a trip to the provinces. Accordingly, the papers were left with Santiago Lopez.

In corroboration of the above statements, we transcribe a portion of Judge Mina's testimony which has not been challenged in any way:

ARANETA: Q. Will you please tell your motive for holding an interview with Vicente Lopez?

MAXIMINO MINA: A. Then I arrived in the house of Vicente Lopez, after the usual greeting and other unimportant things, he consulted me or presented the question as to whether or not D. Tomas could make his will, having announced his desire to do so. I told him that it seemed that we were not called upon to decide or give an opinion as to whether or not he can make a will; it is a question to be submitted to the court, but as he had announced his desire, it is our duty to comply with it. Then he requested me to do what was necessary to comply with his wishes: I told him I was to see him; then we agreed that on the morning next to the following evening that is on the 16th, I should go to the General Hospital and so I did.

Q. Did you go to the hospital in the evening of the 16th? — A. Yes, sir.

Q. Did you meet D. Tomas? — A. Yes, sir.

Q. Did D. Tomas tell you his desire to make a will?

OCAMPO: Leading.

ARANETA: I withdraw. What, if anything, did D. Tomas tell you on that occasion when you saw him there? — A. He told me that.

Q. Please tell us what conversation you had with D. Tomas Rodriguez? — A. The conversation I had with him that evening — according to my best recollection — I cannot tell the exact words and perhaps the order. After the usual greetings, Good evening, D. Tomas, ' Good evening,' How are you,' ' How do you do? Very well, just came here in the name of D. Vicente Lopez why does he not come. He cannot come because he has many things to do, and besides it is hard for him and makes him tired, so he told me to come.' Mina, your tenant, attorney.' Are you an attorney? Yes.' Where do you live? I live in Quiapo.' Oh, in Quiapo, a good district, it is gay a commercial place you must have some business there because that is a commercial place. Unfortunately, I have none, D. Tomas.' Well, you must be have because the profession alone does not give enough. Where is your office? I work in the office of Mr. Chicote. That Mr. Chicote must be rich, it seems to me that he is. The profession gives almost nothing it is better to have properties. I am an attorney but do not depend upon my profession. I interrupted D. Tomas saying, since you want to make a will, when and to whom do you want to leave your fortune? Then he said, To whom else? To my cousin Vicente Lopez and his daughter Luz Lopez. Which properties do you want to give to your cousin and niece? All my properties, Won't you specify the property to be given to each of them? What for? All my property. Don't you have any other relatives? Yes, sir I have. Won't you give any to those relatives? What for? was his answer. Well, do you want to specify said properties, to say what they are? and he again said, What for? they know them, he is my attorney-in-fact as to all property. I also said, Well and as legacy won't you give property to other persons? answers, I think, something, they will know it. After being asked, Whom do you think, would you want to be your executor? After hesitating a little, This Torres, Manuel or Santiago Lopez also. Then I asked him, What is your religion? He answered, Roman Apostolic Catholic, and then he also asked me, and your? Also Roman Apostolic Catholic, Where have you studied?' 'In the University of Santo Tomas.' 'It is convenient to preserve the Catholic religion that our descendants have left us. And you, what did you have anything more to say as to your testamentary dispositions? No, he answered. Then I remind him, 'You know that Vicente Lopez has sent me to get these dispositions of yours, and he said, Yes, do it.' I asked him, When do you want it done? Later on, I will send for you. After this believing to have done my duty, I bade him good-bye.

Q. Did you have any other occasion to see him? — A. Yes.

Q. When? — A. On December 29, 1923, also in the evening.

Q. Why did you go to see him? — A. Because as I had not received any message either from Vicente Lopez or Tomas Rodriguez, as I had received notices in connection with the few cases I had in the provinces particularly in Tayabas, which compelled me to be absent from Manila until January 1st at least, for I might be there for several days, so I went to the General Hospital of my own accord — since I had not received any messages from them — with a rough draft which I had prepared in accordance with what

he had told me in our conversation. After the greetings, I told him, Here I am D. Tomas; this is the rough draft of your will in accordance with your former statements to me in order to submit it to you. Do you want to read it?' 'Please do me the favor of reading it. I read it slowly to him in order that he could understand it . After reading, Is it all right, that is the way,— few words — you see it takes only a few minutes; now I can execute the will. We can do it takes only a few minutes.' In view of that statement of his, I called his attention, ' But we don't have witnesses, D. Tomas.' I looked out through the door to see if I could call some witnesses but it was late then and it was thought better to do it on the 31st of December. Then we talked about other things, and he again asked. Where were you born? I told him in Quiapo. Ah, good district, and especially now that the fiesta of Quiapo is coming near,' and then I interrupted him, Yes, the fiesta of the Holy Child and of Our Lady of Mount Carmel' because we also talked about the fiesta of San Sebastian. I again reminded him that we could not do it because the witnesses were not there and he explained, Good Christmas present, isn't it?' I did not tell him anything and in view of that I did not deem it necessary to stay there any longer.

Q. With whom did you make the arrangement to make the will on the evening of the 31st of December — you said that it was agreed that the will be executed on the evening of December 31st? — A. With Santiago Lopez and Don Tomas.

Q. Was the will executed on the 31st of December? — A. What happened is this: In view of that agreement, I fixed up the draft which I had, dating it the 31st of December, putting everything in order; we agreed that Santiago would meet me on 31st day between five and six in the evening or a little before, but it happened that before the arrival of that date Santiago Lopez came and told me that I need not trouble about going to the General Hospital; because it could not be carried out for the reason that certain requisites were lacking. In view of this and bearing always in mind that on the following day I had to go to the provinces, I told Santiago Lopez that I would leave the papers with him because I might go to the provinces.

Q. What may be the meaning of those words good Christmas present? — A. They are given a Christmas present when Christmas comes or on the occasion of Christmas.

Q. I show you this document which is marked Exhibit A, tell me if that is the will or copy of the will which you delivered to Santiago Lopez on December 21, 31, 1923? — A. With the exception of the words '3 de enero de 1924' It seems to be literally identical. (S. R. pp. 244-249.)

As the witness stated, the will which was prepared by him is identical with that signed by the testator and the attesting witnesses with the single exception of the change of the date from December 31, 1923, to January 3, 1924. Two copies besides the original of the will were made. The will is brief and simple in terminology.

For purposes of record, we copy the will as here translated into English:

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In the City of Manila, Philippines Islands, this January 3, 1924, I, Tomas Rodriguez, of age and resident of the City of Manila, Philippine Islands, do freely and voluntarily make this my will and testament in the Spanish language which I know, with the following clauses:

First I declare that I am a Roman Apostolic Catholic, and order that my body be buried in accordance with my religion, standing and circumstances.

Second. I name my cousin Vicente F. Lopez and his daughter Luz Lopez de Bueno as my only universal heirs of all my property.

Third. I appoint D. Manuel Torres and D. Santiago Lopez as my prosecutors.

In witness whereof I sign this typewritten will, consisting of one single page, in the presence of the witness who sign below.

(Sgd.) TOMAS RODRIGUEZ

(Left marginal signatures:) TOMAS RODRIGUEZ ELIAS BONOAN V. L. LEGARDA A. DE ASIS

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

(Sgd.) V. L. LEGARDA ELIAS BONOAN A. DE ASIS (Exhibit A.)

On the afternoon of January 3, 1924 there gathered in the quarters of Tomas Rodriguez in the Philippine General Hospital, Santiago Lopez and Dr. A. De Asis, attesting witness; and Dr. Elias Fernando Calderon, Dr. Elias Domingo and Dr. Florentino Herrera, physicians, there for purposes of observation. (Testimony of Elias Bonoan, S. R., p. 8 of Vl. Legarda, S. R. p. 34. ) Possibly also Mrs. Luz Lopez de Bueno and Mrs. Nena Lopez were present; at least they were hovering in the background.

As to what actually happened, we have in the record two absolutely contradictory accounts. One emanates from the attesting witness, Doctor Bonoan. The other is the united testimony of all remaining persons who were there.

Doctor Elias Bonoan was the first witness called at the trial. He testified on direct examination as to formal matters, such as the identification of the signatures to the will .On cross-examination, he rather started the proponents of the will by stating that Luz Lopez de Bueno told Tomas Rodriguez to sign

the document it concerned a complaint against Castito and that nobody read the will to the testator. Doctor Bonoan's testimony along this line is as follows:

QUESTIONS.

MARCAIDA : Q. Why were you a witness to the will of Tomas Rodriguez?

Araneta: I object to the question as being immaterial.

Court: Objection overruled.

Dr. Bonoan: A. Because I was called up by Mrs. Luz by telephone telling me to be in the hospital at 3 o'clock sharp in the afternoon of the 3d of January.

Q. Who is that Luz whom you have mentioned? — A. Luz Lopez, daughter of Vicente Lopez.

Q. What day, January 3, 1924? A. Yes, sir.

Q. When did Luz Lopez talk to you in connection with your going to the hospital? — A. On the morning of the 3d she called me up by telephone.

Q. On the morning? — A. On the morning.

Q. Before January 3, 1924, when the will of Tomas Rodriguez was signed, did Luz Lopez talk to you? A. Yes, sir.

Q. How many days approximately before was it? — A. I cannot tell the day, it was approximately one week before, — on that occasion when I was called up by her about the deceased Vicente Lopez.

Q. What did she tell you when you went to the house of Vicente Lopez one week approximately before signing the will? - A. That Tomas Rodriguez would make a will.

Q. Don't you know where the will of Tomas Rodriguez was made? - A. In the General Hospital.

Q. Was that document written in the hospital? — A. I have not seen it.

Q. When you went to the General Hospital on January 3, 1924, who were the persons you met in the room where the patients was ? — A. I met one of the nieces of the deceased Tomas Rodriguez, Mrs. Nena Lopez and Dna. Luz Lopez.

Q. Were those the only persons? — A. Yes, sir.

Q. What time approximately did you go to the General Hospital on January 3d? — A. A quarter to 3.

Q. After you, who came? — A. Antonio de Asis, Doctor Herrera, later on Doctor Calderon arrived with Doctor Elias Domingo and lastly Santiago Lopez came and then Mr. Legarda.

Q. When you entered the room of the patient, D. Tomas Rodriguez, in the General Hospital in what position did you find him?— A. He was lying down.

Q. Did you greet D. Tomas Rodriguez? A. I did.

Q. Did D. Tomas Rodriguez answer you? — A. Dna. Nena immediately answered in advance and introduced me to him saying that I was the brother of his godson.

Q. Did other persons whom you have mentioned, viz, Messrs. Calderon, Herrera, Domingo, De Asis and Legarda greet Tomas Rodriguez?

ARANETA: I object to the question as being improper cross-examination. It has not been the subject of the direct examination.

COURT: Objection overruled.

ARANETA: Exception.

A. No, sir, they joined us.

Q. What was D. Tomas told when he signed the will.? — A. To sign it.

Q. Who told D. Tomas to sign the will? — A. Luz Lopez.

Q. What did Luz Lopez tell Tomas Rodriguez in order that he should sign the will? — A. She told him to sign the document; the deceased Tomas Rodriguez before signing the document asked what that was which he was to sign.

Q. What did anybody answer to that question of D. Tomas? — A. Luz Lopez told him to sign it because it concerned a complaint against Castito. D. Tomas said, 'What is this?" And Luz Lopez answered, 'You sign this document, uncle Tomas, because this is about the complaint against Castito.

Q. Then Tomas Rodriguez signed the will? — A. Yes, sir.

Q. Who had the will? Who was holding it? — A. Mr. Vicente Legarda had it his own hands.

Q. Was the will signed by Tomas Rodriguez lying down, on his feet or seated? — A. Lying down.

Q. Was the will read by Tomas Rodriguez or any person present at the time of signing the will, did they read it to him? — A. Nobody read the will to him.

Q. Did not D. Tomas read the will? — A. I have not seen it.

Q. Were you present? — A. Yes, sir. ( S. R. p. 8)

As it would be quite impracticable to transcribe the testimony of all the others who attended the making of the will, we will let Vicente L. Legarda, who appears to have assumed the leading role, tell what transpired. He testified in part:

ARANETA : Q. Who exhibited to you those documents, Exhibits A, A-1, and A-2?

LEGARDA: A. Santiago Lopez.

Q. Did he show you the same document? — A. First that is to say the first document he presented to me was a rough draft, a tentative will, and it was dated December 31st, and I called his attention to the fact that the date was not December 31, 1923, and that it was necessary to change the date to January 3, 1924, and it was done.

Q. And it was then, was it not when Exhibits A, A-1, and A-2 were written? — A. Yes, sir.

Q. Do you any know where it was written? — A. In the General Hospital.

Q. Did any time elapse from your making the suggestion that the document which you delivered to Santiago Lopez be written until those three Exhibits A, A-1, and A-2 were presented to you? — A. About nine or ten minutes approximately.

Q. The time to make it clean? — A. Yes, sir.

Q. Where were you during that time? — A. In the room of D. Tomas Rodriguez.

Q. Were you talking with him during that time. — A. Yes, sir.

Q. About what things were you talking with him? — A. He was asking me about my health, that of my family how my family was my girl, whether we were living in Pasay, he asked me about the steamer Ildefonso, he said that it was a pity that it had been lost because he knew that my father-in-law was the owner of the steamer Ildefonso.

x x x x x x x x x

Q. When those documents, Exhibit A, A-1, and A-2, that is the original and two copies of the will signed by D. Tomas Rodriguez were written clean, will you please tell what happened? — A. When Santiago Lopez gave them to me clean, I approached D. Tomas Rodriguez and told him: Don Tomas, here is this will which is ready for your signature.

Q. What did D. Tomas do when you said that his will you were showing to him was ready? — A. The first thing he asked was: the witnesses? Then I called the witnesses — Gentlemen, please come forward, and they came forward, and I handed the documents to D. Tomas. D. Tomas got up and then took his eyeglasses, put them on and as he saw that the electric lamp at the center was not sufficiently clear, he said: 'There is no more light;' then somebody came forward bringing an electric lamp.

Q. What did D. Tomas do when that electric lamp was put in place? — A. The eyeglasses were adjusted again and then he began to read, and as he could not read much for a long time, for he unexpectedly felt tired and took off the eyeglasses, and as I saw that the poor man was tired, I suggested that it be

read to him and he stopped reading and I read the will to him.

Q. What happened after you had read it to him? — A. He said to me, 'Well, it is all right. It is my wish and my will. Don't you have any pen?' I asked a pen of those who were there and handed it to D. Tomas.

Q. Is it true that Tomas Rodriguez asked at that time 'What is that which I am going to sign?' and Luz Lopez told him: 'It is in connection with the complaint against Castito?' — A. It is not true, no, sir.

Q. During the signing of the will, did you hear Luz Lopez say anything to Tomas Rodriguez? — A. No, Sir, she said nothing.

Q. According to you, Tomas Rodriguez signed of his own accord? — A. Yes, sir.

Q. Did nobody tell him to sign? — A. Nobody.

Q. What happened after the signing of the will by Tomas Rodriguez? — A. I called the witnesses and we signed in the presence of each other and of Tomas Rodriguez.

Q. After the signing of the will, did you have any conversation with Tomas Rodriguez? — A. Doctor Calderon asked D. Tomas Rodriguez some questions.

Q. Do you remember the questions and the conversation held between Doctor Calderon and D. Tomas after the signing of the will? — A. I remember that afterwards Doctor Calderon talked to him about business. He asked him how the business of making loans at 18 per cent. It seems that Tomas Rodriguez answered: That loan at 18 per cent is illegal, it is usury. (S. R., p. 38.)

In addition to the statements under oath made by Mr. Legarda, an architect and engineer in the Bureau of Public Works and professor of engineering and architecture in the University of Santo Tomas, suffice it to say that Luz Lopez de Bueno denied categorically the statements attributed to her by Doctor Bonoan (S. R., p. 568). In this stand, she is corroborated by Doctor Calderon, Domingo, and Herrera, the attending physicians. On this point, Doctor Calderon the Director of the Philippine General Hospital and Dean of the College of Medicine in the University of the Philippines, testified:

Mr. ARANETA: Q. What have you seen or heard with regard to the execution of the will?

Dr. CALDERON: A. Mr. Legarda handled the will to D. Tomas Rodriguez. D. Tomas asked for his eyeglass, wanted to read and it was extremely hard for him to do so. Mr. Legarda offered to read the will, it was read to him and he heard that in that will Vicente Lopez and Luz Lopez were appointed heirs; we also saw him sign that will, and he signed not only the original but also the other copies of the will and we also saw how the witnesses signed the will; we heard that D. Tomas asked for light at that moment; he heard that D. Tomas asked for light at that moment; he was at that time in a perfect mental state. And we remained there after the will was executed. I asked him, 'How do you feel, how are

you? Well I am well, ' he answered. ' How is the business? There is a crisis at there is one good business, namely, that of making loans at the rate of 18 per cent, 'and he answered, 'That is usury.; When a man answers in that way, ' That is usury it shows that he is all right.

Q. Were you present when Mr. Legarda handed the will to him? — A. Yes, sir.

Q. Did any person there tell Don Tomas that was a complaint to be filed against one Castito? — A. No, sir, I have not heard anything of the kind.

Q. It was said here that when the will was handed to him, D. Tomas Rodriguez asked what that was which he was to sign and that Luz Lopez answered, 'That is but a complaint in connection with Castito.' Is that true? — A. I have not heard anything of the kind.

Q. Had anybody told that to the deceased, would you have heard it? A. Yes, sir.

Q. Was Luz Lopez there? — A. I don't remember having seen her; I am not sure; D. Santiago Lopez and the three witnesses were there; I don't remember that Luz Lopez was there.

Q. Had anybody told that to the deceased, would you have heard it? — A. Yes, sir.

Q. Do you remember whether he was given a pen or he himself asked for it? — A. I don't know; it is a detail which I don't remember well; so that whether or not he was given a pen or he himself asked for it, I do not remember.

Q. But did he sign without hesitation ? — A. With no hesitation.

Q. Did he sign without anybody having indicated to him where he was to sign? — A. Yes, without anybody having indicated it to him.

Q. Do you know whether D. Tomas Rodriguez asked for more light before signing? — A. He asked for more lights, as I have said before.

Q. Do you remember that detail? — A. Yes, sir. They first lighted the lamps, but as the light was not sufficient, he asked for more light.

Q. Do you remember very well that he asked for light? — A. Yes, sir. (S. R. p.993).

A clear preponderance of the evidence exists in favor of the testimony of Vicente Legarda, corroborated as it is by other witnesses of the highest standing in the community. The only explanation we can offer relative to the testimony of Doctor Bonoan is that possibly he may have arrived earlier than the others with the exception of Luz Lopez de Bueno, and that Luz Lopez de Bueno may have made some sort of an effort to influence Tomas Rodriguez. There is however no possible explanation of the statement of Doctor Bonoan to the effect that no one read the will to Rodriguez when at least five other persons recollect that Vicente Legarda read it to him and recall the details connected with the reading.

There is one curious occurrence which transpired shortly after the making of the will which should here be mentioned. It is that on January 7, 1923 (1924), Luz Lopez de Bueno signed a document in favor of Doctor Bonoan in the amount of one thousand pesos (P1,000). This paper reads as follow:

Be it know by these present:

That I, Luz Lopez de Bueno in consideration of the services which at my instance were and will when necessary be rendered by Dr. Elias Bonoan in connection with the execution of the will of my uncle, Don Tomas Rodriguez and the due probate thereof, do hereby agree to pay said doctor, by way of remuneratory donation, the sum of one thousand pesos (P1,000), Philippine currency, as soon as said services shall have been fully rendered and I shall be in possession of the inheritance which in said will is given to me.

In witness whereof, I sign this document which was freely and spontaneously executed by me in Manila, this January 7, 1923.

(Sgd.) LUZ LOPEZ DE BUENO (Exhibit 1)

There is a sharp conflict of testimony, as is natural between Doctor Bonoan and Luz Lopez de Bueno relative to the execution of the above document. We shall not attempt to settle these differences as in the final analysis it will not affect the decision one way or the other. The most reasonable supposition is that Luz Lopez de Bueno imprudently endeavored to bring over Doctor Bonoan to her side of the race by signing and giving to him Exhibit 1. But the event cannot easily be explained away.

Tomas Rodriguez passed away in the Philippine General Hospital, as we said on February 25, 1924. Not even prior to his demise the two actions in the Lopez family had prepared themselves for a fight over the estate. The Luz Lopez faction had secured the services of Doctor Domingo, the physician in charge of the Department of Insane of San Lazaro Hospital an Assistant Professor of Nervous and Mental Diseases in the University of the Philippines, as attending physician; as associated with him for purposes of investigation Dr. Fernando Calderon the Director of the Philippine General Hospital and Dr. Florentino Herrera, a physician in active practice in the City of Manila; and had arranged to have two members of the medical fraternity, Doctors De Asis and Bonoan as attesting witnesses. The Margarita Lopez faction had taken equal precautions by calling a witnesses in the guardship proceedings Dr. Sixto de los Angeles Professor and Chief of the Department of Legal Medicine in the University of the Philippines, and Dr. Samuel Tietze, with long experience in mental diseases; thereafter by continuing Doctors de Los Angeles and Tietze to examine Tomas Rodriguez and by associating with them Dr. William Burke, a well-known physician of the City of Manila. Skilled lawyers were available to aid and abet the medical experts. Out of such situations, do will contests arise.

An examination of the certificates made by the two sets of physicians and of their testimony shows that on most facts they concur. Their deductions from these facts disclose a substantial divergence of opinion. It is a hopeless task to try to reconcile the views of these distinguished gentlemen who honestly arrived at definite but contradictory conclusions. The best that we can do under the circumstances is to set

forth the findings of the Calderon committed on the hand and of the De Los Angeles committee on the other.

Doctors Calderon, Domingo and Herrera examined Tomas Rodriguez individually and jointly before the date when the will was executed. All of them, as we have noticed were, present at the signing of the will to note the reactions of the testator. On the same day that the will was accomplished, the three doctors signed the following certificate:

The undersigned, Drs. of Medicine, with offices in the City of Manila, and engaged in the practice of their profession do hereby certify:

That they have jointly examined Mr. Tomas Rodriguez, confined in the General Hospital, floor No. 3, room No. 361 on three different occasion and on different days and have found that said patient is suffering from anemia, hernia inguinal, chronic dyspepsia and senility.

As to his mental state the result of the different tests to which this patient was submitted is that his intellectual faculties are sound, except that his memory is weak, which is almost a loss for recent facts, or events which have recently occurred, due to his physical condition and old age.

They also certify that they were present at the time he signed his will on January 3, 1924, at 1:25 p.m. and have found his mental state in the same condition as was found by the undersigned in their former examination and that in executing said will the testator and full knowledge of the contents thereof.

In testimony whereof, we sign in Manila this January 3, 1924.

(Sgd.) FLORENTINO HERRERA Tuberias 1264 Quiapo

(Sgd.) Dr. FERNANDO CALDERON General Hospital Manila

(Sgd.) Dr. ELIAS DOMINGO 613 Remedios Malate

(Exhibit E in relation with Exhibits C and D.)

Doctor Calderon while on the witness-stand expressed a definite opinion as to the mentality of Tomas Rodriguez What follows is possibly the most significant of the doctor's statements:

Dr. CALDERON testifying after interruption:

A. I was naturally interested in finding out the true mental state of Tomas Rodriguez and that was the chief reason why I accepted and gave my cooperation to Messrs. Elias Domingo and Florentino Herrera because had I found that Tomas Rodriguez and Florentino Herrera because had I found that Tomas Rodriguez was really insane, I should have ordered his transfer to the San Lazaro Hospital or to

other places, and would not have left him in the General Hospital. Pursuant to my desire, I saw Tomas Rodriguez in his room alone twice to have interviews with his, he begging a person whom I knew since several years ago; at the end of the interviews I became convinced that there was nothing wrong with him; I had not seen anything indicating that he was insane and for this reason I accepted the request of my companions and joined them; we have been on five different occasions examining Tomas Rodriguez jointly from the physical standpoint but chiefly from the standpoint of his mental state; I have been there with Messrs. Herrera and Elias Domingo, examining Tomas Rodriguez and submitting to a mental test on the 28, 29, 10 and 31 of December and the 22nd of January, 1924 — five consecutive days in which he have been together besides my particular visits.

Q. Will you place state the result of the observation you made alone before those made by the three of you jointly? — A. I asked Tomas Rodriguez some questions when I went alone there, I asked him were he was living formerly and he well remembered that in Intramuros, Calle Real; I asked him whether he remembered one Calderon who was living in the upper floor of the house and then he told me yes; than I asked him about his tenant by the name of Antonio Jimenez and he told me yes, — now I remember that he had two daughters, Matilde and Paz. Then I told him that I had been living in the house of the gentlemen, Antonio Jimenez already dead — in the upper story of the house belonged to Tomas Rodriguez; I told him that Antonio Jimenez was his tenant of the upper story, that is that he was living on the ground floor and Antonio Jimenez upstairs and he remembered all of this I also began to talk of my brother, Felipe Calderon, who he said of course that he knew; he remembered him because he was his companion and was a successful attorney. This was when I had an interview with him. Then in order to observe better and to be sure of my judgment or opinion about the mental state of Tomas Rodriguez, I saw him again and we began to speak of something which I don't remember now. In fine, we talked of things of interest and as I had finally accepted the request of Drs. Elias Domino and Florentino Herrera to join then the first and second time that Herrera, Domingo and myself went there, no stenographic notes were taken of what happened there.

Q. So that before joining Doctors Herrera and Domingo you had already paid two visits to the patient? — A. Yes, sir.

Q. From the result f the conversation you had with Tomas Rodriguez on those two visits what is your opinion as to his mental capacity? — A. That he was sick; that he was weak, but I have found absolutely no incoherence in his ideas; he answered my questions well and as I was observing him there were times when he did not remember things of the present — because this must be admitted — but on the other hand he had a wonderful memory of past events; in talking with him, you would not notice in the conversation any alteration in his mind nor that man had lost the reasoning power or logic.

Q. Did you notice any loss of memory, or that his memory was weakening about things of the past? — A. About things of the past, I mean that you talk to him now about specific matters, and after about five or ten minutes he no longer remembers what had been talked of.

x x x x x x x x x

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

Q. Did you talk with him on that occasion about his estate? — A. Yes, sir, he told me that he had three estates, — one on Calle Magallanes, another on Calle Cabildo and the third on Calle Juan Luna and besides he had money in the Monte de Piedad and Hogar Filipino.

x x x x x x x x x

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

Doctor Elias Domingo, who was the attending physician for Tomas Rodriguez throughout all the time that Rodriguez in the hospital had examined him, was likewise certain that Rodriguez possessed sufficient mentality to make a will. Among other things, Doctor Domingo testified:

ARANETA: Q. Have you known D. Tomas Rodriguez?

Dr. DOMINGO: A. Yes, sir.

Q. Did you attend D. Tomas Rodriguez as physician? — A. Yes, sir.

Q. When did you begin to attend him as physician? — A. On November 28, until his death.

Q. On November 28 or October 28, 1923, do you remember? — A. I had been attending him as physician from November 28th although it true that I had opportunities to see and examine him during the months of October and November.

Q. What was the object of your visits or attendance during the months of October and November? — A. It was for the purpose of observing his mental state.

Q. Did you really examine his mental condition or capacity during the months of October and November? — A. Yes, sir.

Q. How many times did you visit him? — A. I don't remember exactly but I visited him about five or six times.

x x x x x x x x x

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

Q. Did you ask him about his property? — A. No, at that time.

Q. Proceed. — A. I also observed his emotional status and effectivity. I found it rather superficial, and he oftentimes got angry due to his physical disease; I asked him if he had any relatives and he answered correctly saying that he had. He

mentioned Vicente Lopez, Margarita Lopez, and Luz Lopez. As to his memory. His memory of the past. He very easily remembered past events and when he described them he did it with such pleasure the he used to smile afterwards — if it was a fact upon which one must smile, His memory of recent facts was very much lessened. I say this because on various occasions and not having known me when he had a better memory, after I had seen him thrice he remembered my name and he recognized me. Insight and judgment. I arrived at the conclusion that he had fair knowledge of himself because he knew that he was sick and could not be moving with ease, but he believed that he could perform with sufficient ease mental acts; his judgment was also all right because I asked him this question: 'Supposing that you could find a bill of P5 in the vestibule of a hotel, what would you do with it ?' He told me that he would take the bill and give it to the manager in order that the latter may look for the owner if possible. His reasoning. I found that he showed a moderated retardation in the flow of his thought, especially with regard to recent events, but was quite all right as to past events, His capacity, He believed that he was capable of thinking properly although what did not permit him to do so was his physical decrepit condition. The conclusion is that his memory is lost for recent events tho not totally and diminution of his intellectual vigor. This is in few words the result of my examination.

Tomas Rodriguez was likewise examined thoroughly by Doctors De los Angeles, Tietze, and Burke. Doctor De los Angeles had been a witness in the gurardianship proceedings and had seen the patient of November 6 and 7, 1923. Doctor Tietze had also been a witness in the guardianship case and had visited the patient on November 9 and 12, 1923, and on January 15, 1924. Doctors Tietze and Burke together examined Rodriguez on January 17, 20, and 24, 1924. The three physicians conducted a joint examination result, on March 15, 1924, they prepared and signed the following:

MEDICAL CERTIFICATE

In the Matter of Tomas Rodriguez y Lopez, male, 76 years of age, single and residing or being confined in the Philippine General Hospital.

We, the undersigned Doctors, Sixto de los Angeles, W. B. Burke, and Samuel Tietze, do hereby certify as follows:

1. That we are physicians, duly registered under the Medical Act, and are in the actual practice of the medical profession in the Philippines.

2. That on January 27th and 28th, and February 10th, 1924, at the Philippine General Hospital, we three have with care the diligence jointly and personally examined the person of said Tomas Rodriguez y Lopez; and previous to these dated, we have separately and partly jointly observed and examined said patient on various occasions; Dr. Sixto de los Angeles, at the patient's home, 246 Magallanes St., Manila, on November 6th and 7th , 1923; Dr. Samuel Tietze, at the patient's home on November 9th and 12th, 1923, and at the Philippine General Hospital no January 17th, 20th, and 24, 1924; and as a result of the medical examinations

and the history of the case we found and hereby certify to the following conclusions:

(a) That he was of unsound mind suffering from senile dementia, or of mental impairment exceeding to a pathological extent the unusual conditions and changes found to occur in the involutional period of life.

(b) That he was under the influence of the above condition continuously, at least from November, 1923, till the date of our joint reexamination, January 27th and 28th, and February 10th, 1924; and that he would naturally have continued without improvement, as these cases of insanity are due to organic pathological changes of the brain. This form of mental disease is progressive in its pathological tendency, going on to progressive atropy and degeneration of the brain, the mental symptoms, of course, running parallel with such pathological basis.

(c) That on account of such disease and conditions his mind and memory were so greatly impaired as to make him unable to know or to appreciate sufficiently the nature, effect, and consequences of the business he was engaged in; to understand and comprehend the extent and condition of his properties; to collect and to hold in his mind the particulars and details of his business transactions and his relations to the persons who were or might have been the objects of his bounty; and to free himself from the influences of importunities, threats and ingenuities, so that with a relatively less resistance, he might had been induced to do what others would not have done.

3. We have diagnosed this case as senile demential of the simple type, approaching the deteriorated stage upon the following detailed mental examination:

(a) Disorder of memory. — There was almost an absolute loss of memory of recent events, to the extent that things and occurrences seen or observed only a few minutes previously were completely forgotten. Faces and names of person introduced to him were not remembered after a short moment even without leaving his bedside . He showed no comprehension of the elemental routine required in the management of his properties, i.e.: who were the lessees of his houses, what rents they were paying, who was the administrator of his properties, in what banks he deposited his money or the amount of money deposited in such banks. Regarding his personal relation, he forgot that Mr. Antonio Ventura is the husband of his nearest woman cousin; the Mrs. Margarita Lopez was married, saying that the latter was single or spinster, in spite of the fact that formerly, during the past twenty-five years, he was aware of their marriage life, He did not know the names of the sons and daughters of Mr. Vicente Lopez, one of his nearest relatives, even failing to name Mrs. Luz Lopez de Bueno, a daughter of said Vicente Lopez, and who now appears to be the only living beneficiary of his will. He also stated that Mr. Vicente Lopez frequently visited him in the hospital, though the latter died on January 7th, 1924. He did not recognized and remember the name and face of Doctor Domingo, his own physician. However, the memory for remote

events was generally good, which is a characteristic symptom of senile dementia.

(b) Disorientation of time, place and persons. — He could not name the date when asked (day or month); could not name the hospital wherein he was confined; and failed to recognize the fact that Doctor Domingo was his physician.

(c) Disorders of perception. — He was almost completely indifferent to what was going on about him. He also failed to recognize the true value of objects shown him, that is he failed to recognized the 'Saturday Evening Post' nor would he deny that it was a will when presented as such. He also failed to show normal intellectual perception. Making no effort to correlate facts or to understand matters discussed in their proper light.

(d) Emotional deterioration. — The patient was not known during his time of physical incapacity to express in any way or lament the fact that he was unable to enjoy the happiness that was due him with his wealth. As a matter of fact, he showed complete indifference. He showed loss of emotional control by furious outbreaks over trifling matter and actually behaved like a child; for example, if his food did not arrive immediately of when his cigar was not lit soon, he would becomes abusive in his language and show marked emotional outburst. If the servants did not immediately answer his call, he would break down and cry as a child.

(e) Symptoms of decreased intellectual capacity. — There was a laxity of the internal connection of ideas. The patient has shown no insight regarding his own condition. He did not appreciate the attitude of the parties concerned in his case; he would on several occasion become suspicious and fail to comprehend the purpose of our examination. He was inconsistent in his ideas and failed to grasp the meaning of his own statements. When questioned whether he would make a will, he stated to Doctor Tietze that he intended to bequeath his money to San Juan de Dios Hospital and Hospicio de San Jose. When He was informed, however, that he had made a will on January 31, 1924, he denied the latter statement, and failed to explain the former. Although for a long time confined to bed and seriously ill for a long period, he expressed himself as sound physically and mentally, and in the false belief that he was fully able to administer his business personally.

His impairment of the intellectual field was further shown by his inability, despite his knowledge of world affairs, to appreciate the relative value of the statement made by Doctor Tietze as follows: 'We have here a cheque of P2,000 from the King of Africa payable to you so that you may deposit it in the bank. Do you want to accept the cheque?' His answer was as follows: 'Now I cannot give my answer. It may be a surprise.' Such answer given by a man after long experience in business life, who had handled real estate property, well versed in the transaction of cheques, certainly shows a breaking down of the above field. No proper question were asked why the cheque was given by the King, who the King was, why he was selected by the King of Africa, or if there is a King of Africa at present. He

further shows doubt in his mental capability by the following questions and answers:

"MARCAIDA: P. ¿Tiene usted actualmente algún asunto en los tribunales de justicia de Manila? -- R. No recuerdo en este momento.

"P. De tener usted algún asunto propio en los tribunales de justicia de Manila, ¿a qué abogado confiaría usted la defensa del mismo?--R. Al Sr. Marcaida, como conocido antiguo.

"P. ¿Ha hablado usted y conferenciado alguna vez o varias veces en estos días, o sea desde el 25 de octubre de 1923 hasta hoy, con algún abogado para que le defendiera algún asunto ante el Juzgado de Primera Instancia de Manila?--R. Con ninguno, porque en caso de nombrar, nombraría al Sr. Marcaida. (P. 5, deposition, Nov. 19, 1923.)

"ARANETA: P. ¿No recuerda usted que usted me ha encomendado como abogado para que me oponga a que le declaren a usted loco o incapacitado?--R. Sí, señor, quien ha solicitado? (P. 9, deposition, Nov. 19, 1923.)

"Dr. DOMINGO: P. ¿Don Tomás, me conoce usted? ¿Se acuerda usted que soy el Doctor Domingo?--R. Sí. (P. 7, sten. N., Jan. 28, 1924.)

"P. ¿Quién soy, Don Tomás, usted me conoce?--R. No sé. (P. 6, sten. N., Feb. 10, 1924.)

"Dr. ÁNGELES: P. ¿Me conoce usted, D. Tomás?--R. Le conozco de vista. (P. 6, sten. N., Jan. 28, 1924.)

"P. Nos vamos a despedir ya, Don Tomás, de usted. Yo soy el Doctor Ángeles, ¿me conoce usted?--R. De nombre.

"P. Este es el Doctor Burke, ¿le conoce usted?--R. De nombre.

"P. Este es el Doctor Domingo, ¿le conoce usted?--R. De vista.

"P. Este es el Doctor Burke, ¿recuerda usted su nombre?--R. No. (P. 10, sten. N., Jan. 28, 1924.)

"P.¿Usted conoce a este Doctor? (Señalando al Doctor Burke).--R. De vista; su nombre ya lo he olvidado, ya no me acuerdo.

"P.¿Usted nos ve a los tres? (Doctores Ángeles, Burke y Tietze).--R. Ya lo creo.

"Dr. BURKE: P. ¿Qué profesión tenemos? (Señalando a los Sres. Ángeles, Burke y Tietze).--R. YO creo que son doctores.

"P. ¿Y lso dos? (Señalando a los Doctores Ángeles y Tietze).--R. No. sé.

"P. ¿Y este señor? (Señalando al Doctor Ángeles).--R. No me acuerdo en este momento. (P. 4. And 5, sten. N., Feb. 10, 1924.)

(f) Other facts bearing upon the history of the case obtained by investigation of Doctor Angeles:

I. Family History. — His parents were noted to be of nervous temper and irritable.

II. Personal history. — He was a lawyer, but did not pursue his practice, devoting the greater part of his life to collecting antiquities, He was generally regarded by his neighbors as miserly and erratic in the ordinary habits of life. He lead a very unhygienic life, making no attempt to clean the filth of dirt that was around him. He was neglectful in personal habits. On April, 1921, he suffered an injury to his forehead, from which he became temporarily unconscious, and was confined in the Philippine General Hospital for treatment. He frequently complained of attacks of dizziness and headache, following this injury; suffered form a large hernia; and about two years ago, he was fined for failure in filing his income tax, from which incident, we have reason to believe, the onset of his mental condition took place. This incident itself can most probably be considered as a failure of memory. His condition became progressively worse up to his death.

4. The undersigned have stated all the above facts contained in this certificate to the best of our knowledge and belief.

Manila, P.I., March 15, 1924.

(Sgd.) SIXTO DE LOS ANGELES W.B. BURKE, M.D. SAMUEL TIETZE

(Exhibit 33 in relation with Exhibits 28 and 29.)

Another angle to the condition of the patient on or about January 3, 1924, is disclosed by the treatment record kept daily by the nurses, in which appear the nurse's remarks. (Exhibits 8-A, 8-B, and 8-C.) In this connection, the testimony of the nurses is that Rodriguez was in the habit for no reason at all of calling "Maria, where are my 50 centavos, where is my key." In explanation of the observation made by the nurses, the nurse Apolonio Floreza testified.

Direct questions of Attorney OCAMPO:

Q. Among your observations on the 1st of January, 1924, you say 'with pains all over the body, and uttered some incoherent words of the same topics whenever is awakened.' How could you observe that he had pains all over the body?

APOLONIO FLOREZA, nurse: A. I observed that by the fact that whenever I touched the body of the patient he complained of some pain.

Q. On what part of the body did you touch him? — A. On all the parts of his body.

x x x x x x x x x

Q. How did you touch him, strongly or not? — A. Slightly.

Q. When you touched him slightly, what did he do? — A. He said that it was aching.

Q. What words did he say when, according to your note, he uttered incoherent words whenever he awakes? — A. As for instance, 'Maria,' repeating it 'Where are my 50 centavos, where is my key?'

Q. Did you hear him talk of Maria? — A. Only the word Maria.

Q. How long approximately was he talking uttering the name of 'Maria, Where are my 50 centavos,' and where is my key? — A. For two or three minutes.

Q. Can you tell the court whether on those occasions when he said the name of Maria he said other words and was talking with somebody? — A. He was talking to himself.

Q. This remark on Exhibit 8-B when was it written by you? A. January 2, 1924.

Q. In the observation correspondingly to January 2, 1924 you say, 'With pains over the body,' and later on talked too much whenever patient is awakened.' How did you happen to know the pain which you have noted here? A. The pains all over the body, I have observed them when giving him baths.

Q. Besides saying that it ached when you touched the body, do you know whether he did any extraordinary thing? A. You mean to say acts?

Q. Acts or words? A. Yes, sir, like those words which I have already said which he used to say — Maria, the key, 50 centavos.

Q. You say that he called Maria. What did he say about Maria on that date January 2, 1924? — A. He used to say Maria where is Maria?

Q. On that date January 2, 1924, did you answer him when he said Maria? — A. No sir.

Q. In this observation of yours appearing on page 8-C you say among other things with pain all over the body and shouted whenever he is given injection.' Did you really observe this in the patient? — A. Yes, sir.

Q. How did he shout?

ARANETA: Objection as being immaterial.

COURT: Overruled.

ARANETA: Exception.

A. In a loud voice.

Q. Besides shouting do you remember whether he said anything? — A . He repeated the same words I have said before — Maria the 50 centavos the key.

Q. When did this observation occur which appear on page 8-C? — A. On January 3, 1924. (S. R. p. 5595.)

On certain facts pertaining to the condition of Tomas Rodriguez there is no dispute. On January 3, 1924, Rodriguez had reached the advanced age of 76 years. He was suffering from anemia, hernia inguinal, chronic dypsia, and senility. Physically he was a wreck.

As to the mental state of Tomas Rodriguez on January 3, 1924, Doctors Calderon, Domingo and Herrera admit that he was senile. They, together with Doctors De los Angeles, Tietze, and Burke, further declare that his memory however for remote events was generally good. He was given to irrational exclamations symptomatic of a deceased mind.

While, however, Doctors Calderon Domingo, and Herrera certify that the intellectual faculties of the patient are "sound, except that his memory is weak," and that in executing the will the testator had full understanding of the act he was performing and full knowledge of the contents thereof, Doctors De Los Angeles, Tietze and Burke certify that Tomas Rodriguez was of unsound mind and that they diagnosed his case as senile dementia of the simple type approaching the deteriorated stage. Without attempting at this stage to pass in judgment on the antagonistic conclusions of the medical witnesses, or on other disputed point, insofar as the facts are concerned, a resolution of the case comes down to this: Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will, or had he passed so far along in senile dementia as to require the court to find him of unsound? We leave the facts in this situation to pass on to a discussion of the legal phases of the case.

B. Law. — The Code of Civil Procedure prescribes as a requisite to the allowance of a will that the testator be of "sound mind" (Code of Civil Procedure, sec. 614). A "sound mind" is a "disposing mind." One of the grounds for disallowing a will is "If the testator was insane or otherwise mentally incapable of the execution." (Code of Civil Procedure, sec. 634 [2].) Predicated on these statutory provisions, this court has adopted the following definition of testamentary capacity: "'Testamentary capacity is the capacity to comprehend the nature of the transaction in which the testator is engaged at the time, to recollect the property to be disposed of and the persons who would naturally be supposed to have claims upon the testator, and to comprehend the manner in which the instrument will distribute his property among the objects of his bounty.'" (Bugnao vs. Ubag [1909], 14 Phil., 163, followed in Bagtas vs. Paguio [1912], 46 Phil., 701.) The mental capacity of the testator is determined as of the date of the execution of his will (Civil Code, art. 666).

Various tests of testamentary capacity have been announced by the courts only later to be rejected as incomplete. Of the specific tests of capacity, neither old age, physical infirmities, feebleness of mind, weakness of the memory, the appointment of a guardian, nor eccentricities are sufficient singly or jointly to show testamentary incapacity. Each case rests on its own facts and must be decided by its own facts.

There is one particular test relative to the capacity to make a will which is of some practical utility. This rule concerns the nature and rationality of the will. Is the will simple or complicated? Is it natural or unnatural? The mere exclusion of heirs will not, however, in itself indicate that the will was the offspring of an unsound mind.

On the issue of testamentary capacity, the evidence should be permitted to take a wide range in order that all facts may be brought out which will assist in determining the question. The testimony of subscribing witnesses to a will concerning the testator's mental condition is entitled to great weight where they are truthful and intelligent. The evidence of those present at the execution of the will and of the attending physician is also to be relied upon. (Alexander on Willis, vol. I, pp. 433, 484; Wharton & Stille's Medical Jurisprudence, vol. I pp. 100 et seq.)

The presumption is that every adult is sane. It is only when those seeking to overthrow the will have clearly established the charge of mental incapacity that the courts will intervene to set aside a testamentary document. (Hernaez vs. Hernaez [1903], 1 Phil., 689; Bagtas vs. Paguio, supra.)

Counsel for the appellee make capital of the testator being under guardianship at the time he made his will. Citing section 306 of the Code of Civil Procedure and certain authorities, they insist that the effect of the judgment is conclusive with respect to the condition of the person. To this statement we cannot write down our conformity. The provisions of the cited section were taken from California, and there the Supreme court has never held what is now urged upon us by the appellee. The rule announced that in some states, by force of statute, the finding of insanity is conclusive as to the existence of insanity during the continuance of adjudication, is found to rest on local statutes, of which no counterpart is found in the Philippines. (32 C.J., 647; Gridley vs. Boggs [1882], 62 Cal., 190; In the matter of the Estate of Johnson [1881], 57 Cal., 529.) Even where the question of insanity is out in issue in the guardianship proceedings, the most that can be said for the finding is that it raises a presumption of incapacity to make a will but does not invaluable the testament if competency can be shown. The burden of providing sanity in such case is cast upon the proponents.

It is here claimed that the unsoundness of mind of the testator was the result of senile dementia. This is the form of mental decay of the aged upon which will are most often contested. A Newton, Paschal, a Cooley suffering under the variable weather of the mind, the flying vapors of incipient lunacy," would have proved historic subjects for expert dispute. Had Shakespeare's King Lear made a will, without any question it would have invited litigation and doubt.

Senile dementia usually called childishness has various forms and stages. To constitute complete senile dementiathere must be such failure of the mind as to deprive the testator of intelligent action,. In the first stages of the diseases, a person may possess reason and have will power. (27 L. R. A., N. S. [1910], p. 89; Wharton & Stille's Medical Jurisprudence, vol. I. pp. 791 et seq.; Schouler on Wills, vol. I, pp. 145 et seq.)

It is a rather remarkable coincidence that of all the leading cases which have gone forth from this court, relating to the testator having a sound and disposing mind, and which have been brought to our notice by counsel, every one of them has allowed the will, even when it was necessary to reverse the judgment of the trial court. A study of these cases discloses a

consistent tendency to protect the wishes of the deceased whenever it be legally possible. These decisions also show great tenderness on the part of the court towards the last will and testament of the aged. (See Hernaez vs. Hernaez [1903], 1 Phil., 689, per Arellano, C. J., In the matter of the will o f Butalid [1908] 10 Phil., 27 per Arellano, C. J.; Bugnao vs. Ubag [1909] 14. Phil., 163, per Carson, J.; Macapinlac vs. Alimurong [1910], 16 Phil., 41, per Arellano, C.J.; Bagtas vs. Paguio [1912], 22 Phil., 227, per Trent, J.; Galvez vs. Galvez [1913], 26 Phil., 243, per Torres, J.; Samson vs. Corrales Tan Quintin [1923], 44 Phil., 573, per Ostrand, J.; and Jocson vs. Jocson [1922], 46 Phil., 701, per Villamor, J.) Because of their peculiar applicability, we propose to make particular mention of four of the earlier cases of this court.

In the case of Hernaez vs. Hernaez supra the subject of the action was the will executed by Dona Juana Espinosa. The annulment of the will was sought first upon the ground of the incapacity of the testatrix. She was over 80 years of age, so ill that three days extreme unction, and two days afterwards she died. Prior thereto she walked in a stooping attitude and gave contradictory orders," as a result of her senile debility." The chief Justice reached the conclusion that neither from the facts elicited by the interrogatories nor the documents presented "can the conclusion be reached that the testatrix was deprived of her mental faculties." The will was held valid and efficacious.

In the case of In the matter of the will of Butalid, supra, the will was contested for the reason that Dominga Butalid at the date of the execution of the document was not in the date of the execution of the document was not in the free use of her intellectual powers, she being over 90 years of age, lying in bed seriously ill, senseless and unable to utter a single word so that she did not know what she was doing when she executed the will while the document was claimed to have been executed under the influence and by the direction of one of the heirs designated in the will. Yet after an examination of the evidence in the will. Yet after an examination of the evidence in the will. The Chief Justice rendered judgment reversing the judgment appealed from and declaring the will presented for legalization to be valid and sufficient.

In the case of Bugnao vs. Ubag, supra the court gave credence to the testimony of the subscribing witnesses who swore positively that at the time of the execution of the will the testator was of sound mind and memory. Based on these and other facts, Mr. Justice Carson, speaking for court, laid down the following legal principles:

Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary known as insanity or idiocy there are numberless degrees of mental capacity or incapacity and while on one hand it had been held that mere weakness of mind or partial imbecility from disease of body, or from age, will to render a person incapable of making a will a weak or feeble minded person may make a valid will provided he has understanding and memory sufficient to enable him to know what he is about and how or to whom he is disposing of his property' (Lodge vs. Lodge, 2 Houst. [Del.] 418); that, "To constitute a sound be unbroken or unimpaired, unshattered by disease or otherwise (Sloan vs. Maxwell, # N. J. Eq., 563); that it has not been understood that a testator must possess these qualities (of sound and disposing mind and memory) in the highest degree. . . .Few indeed would be the wills confirmed it this is correct. Pain,

sickness, debility of body from age or infirmity, would according to its violence or duration in a greater or less degree, break in upon, weaken, or derange the mind, but the derangement must be such as deprives him of the rational faculties common to man' (Den. vs. Vancleve, 5 N. J. L., 680); and that Sound mind does not mean a perfectly balanced mind. The question of soundness is one of degree' (Boughton vs. Knight. L. R., 3 P. & D., 64; 42 L. P. P., 25); on the other hand, it has been held that testamentary incapacity does not necessarily require that a person shall actually be insane or of an unsound mind. Weakness of intellect, whether it arises from extreme old age, from disease, or great bodily infirmities of suffering, or from all these combined, may render the testator in capable of making a valid will, providing such weakness really disqualifies for from knowing or appreciating the nature, effects, or consequences of the act she is engaged in (Manatt vs. Scott, 106 Iowa, 203; 68 Am. St. Rep., 293, 302).

In the case of Nagtas vs. Paquio, supra, the record shows that the testator for some fourteen or fifteen years prior to the time of his death suffered from a paralysis of the left side of his body, that a few years prior to his death his hearing became impaired and that he had lost the power of speech. However, he retained the use of his hand and could write fairly well. Through the medium of signs, he was able to indicate his wishes to his family. The will was attacked n the ground that the testator lacked mental capacity at the time of its execution. The will was nevertheless admitted to probate, Mr. Justice Trent, speaking for the court, announcement the following pertinent legal doctrines:

* * * There are many cases and authorities which we might cite to show that the courts have repeatedly held that mere weakness of mind and body, induced by age and disease do not render a person incapable of making a will. The law does not require that a person shall continue in the full enjoyment and use of his pristine physical and mental powers in order to execute a valid will. If such were the legal standard few indeed would be the number of wills that could meet such exacting requirements. The authorities, both medical and legal are universal in the statement that the question of mental capacity is one of degree and that there are many graduations from the highest degree of mental soundness to the lowest conditions of diseased mentality which are denominated as insanity and idiocy.

The right to dispose of property by testamentary disposition is as sacred as any other right which a person may exercise and this right should be nullified unless mental incapacity is established in a positive and conclusive manner. In discussing the question of testamentary capacity, it is stated in volume 28, page 70, of the American and English Encyclopedia of Law that —

'Contrary to the very prevalent lay impression perfect soundness of mind is not essential to testamentary capacity. A testator may be afflicted with a variety of mental weakness, disorders or peculiarities and still be capable in law of executing a valid will.' (See the numerous cases there cited in support of this statement.)

The rule relating to testamentary capacity is stated in Buswel on Insanity, section 365 and quoted with approval in Campbell vs. Campbell (130 Ill. 466) as follows:

To constitute a sound and disposing mind, it is not necessary that the mind shall be wholly unbroken unimpaired or unshattered by disease or otherwise or that the testator should be in the full possession of his reasoning faculties.

In note, 1 Jarnan on Wills, 38, the rule is thus stated:

The question is not so much, what was the degree of memory possessed by the testator as had, he a disposing memory? Was he able to remember the property he was about to bequeth the manner of distributing it and the object of his bounty? In a word, were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time when he executed his will.' (See authorities there cited)

In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared upon the trial of the case: The testator died at the age of nearly 102 years. In his early years he was an intelligent and well informed man. About seven years prior to his death he suffered a paralytic stroke and from that time his mind and memory were much enfeebled. He became very dull of hearing and in consequence of the shrinking of his brain he was affected with senile cataract causing total blindness. He became filthy and obscene in his habits, although formerly he was observant of the proprieties of life. The court, in commenting upon the case, said:

Neither age, nor sickness, nor extreme distress, nor debility of body will affect the capacity to make a will, if sufficient intelligence remains. The failure of memory is not sufficient to create the incapacity, unless it be total or extend to his immediate family to property. . . .

x x x x x x x x x

Dougal (the testator) had lived over one hundred years before he made the will and his physical and mental weakness and defective memory were in striking contrast with their strength in the meridian of his life. He was blind; not deaf, but hearing impaired; his mind acted slowly, he was forgetful of recent events, especially of names and repeated questions in conversation; and sometimes, when aroused from sleep or slumber, would seem bewildered. It is not singular that some of those who had known him when he was remarkable for vigor and intelligence are of the opinion that his reason was so far gone that he was incapable of making a will, although they never heard him utter an irrational expression.

In the above case the will was sustained. In the case at bar we might draw the same contract as was pictured by the court in the case just quoted. . . .

The particular difference between all of the Philippine case which are cited and the case at bar are that in none of the Philippine cases was there any declaration of incomplicated

and in none of them were the facts quite as complicated as they are here. A case in point where the will was contested, because the testator was not of sound and disposing mind and memory and because at the time of the making of the will he was acting under the undue influence of his brothers and where he had a guardian when he executed his will, is Ames' Will ([1902] 40 Ore., 495). Mr. Justice Moore, delivering the opinion of the court, in part said:

It is contended by contestant's counsel that on the day said pretended will purports to have been executed, Lowell was declared incompetent by a court which had jurisdiction of the person and subject-matter and that the decree therein appointing a guardian of his person and estate raises the distable presumption that he did not possess sufficient testamentary capacity at the time to overcome which required evidence so strong as to leave no reasonable doubt as to his capacity to make a valid will, and the testimony introduced by the proponent being insufficient for that purpose the court erred in admitting it to probate.

The appointment of a guardian of a person alleged to be non compos mentis, by a court having jurisdiction must necessarily create a presumption of the mental infirmity of the ward; but such decree does not conclusively show that the testamentary capacity of the person under guardianship is entirely destroyed and the presumption thus created may be overcome by evidence proving that such person at the time he executed a will was in fact of sound and disposing mind and memory: Stone vs. Damon, 12 Mass., 487; Breed vs. Pratt, 18 Pick, 115: In re Slinger's Will, 72 Wis., 22 (37 N. W. 236).

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

x x x x x x x x x

It is contented by contestant's counsel that if Lowell at the time he executed the pretended will, was not wholly lacking in testamentary capacity, he was, in consequence of age ill health, debility of body and infirmity of will power, Andrew and Joseph having knowledge thereof took advantage of his physical and mental condition and unduly influenced him to device and bequeth his property in the manner indicated, attempting thereby to deprive the contestant of all interest therein except such as was given her by statute. . . . Assuming that he was easily persuaded and that his brothers and the persons employed by them to care for him took advantage of his enfeebled condition and prejudiced his mind against the contestant did such undue influence render the will therefore executed void? . . . When a will has been properly executed, it is the duty of the courts to uphold it, if the testator possessed a sound and disposing mind and memory and was free from restraint and not acting under undue influence notwithstanding sympathy for persons legally entitled to the testator's bounty and a sense of innate justice might suggest a different testamentary disposition.

Believing, as we do, that the findings of the circuit court are supported by the weight of the testimony its decree is affirmed.

Insofar as the law on testamentary capacity to make a will is concerned and carrying alone one step further the question suggested at the end of the presentation of the facts on the same subject a resolution of the case comes down to this: Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will which would meet the legal test regarding testamentary capacity and have the proponents of the will carried successfully the burden of proof and shown him to be of sound mind on that date?

II. UNDUE INFLUENCE

A. Facts. — The will was attacked on the further ground of undue influence exercised by the persons benefited in the will in collaboration with others. The trial judge found this allegation to have been established and made it one of the bases of his decision. it is now for us to say if the facts justify this finding.

Tomas Rodriguez voluntary named Vicente F. Lopez as his administrator. The latter subsequently became his guardian. There is every indication that of all his relatives Tomas Rodriguez reposed the most confidence in Vicente F. Lopez and his daughter Luz Lopez de Bueno. Again, it was Vicente F. Lopez, who, on the suggestion of Rodriguez secured Maximino Mina to prepare the will, and it was Luz Lopez de Bueno who appears to have gathered the witnesses and physicians for the execution of the will. This faction of the Lopez family was also a favor through the orders of Doctor Domingo as to who could be admitted to see the patient.

The trial judge entertained the opinion that there existed "a preconceived plan on the part of the persons who surrounded Tomas Rodriguez" to secure his signature to the testament. The trial judge may be correct in this supposition. It is hard to believe, however, that men of the standing of Judge Mina, Doctors Calderon, Domingo, Herrera, and De Asis and Mr. Legarda would so demean themselves and so fully their characters and reputation as to participate in a scheme having for its purpose to delude and to betray an old man in

his age, rather named was acting according to the best of his ability to assist in a legitimate act in a legitimate manner. Moreover, considering the attitude of Tomas Rodriguez toward Margarita Lopez and her husband and his apparent enmity toward them, it seems fairly evident that even if the will had been made in previous years when Rodriguez was more nearly in his prime, he would have prepared somewhat a similar document.

B. LAW. — One of the grounds for disallowing a will is that it was procured by undue and improper pressure and influence on the art of the beneficiary or some other person for his benefit (Code of Civil Procedure, sec., 634[4]). Undue influence, as here mentioned in connection with the law of wills and as further mentioned in the Civil Code (art. 1265), may be defined as that which compelled the testator to do that which is against the will from fear the desire of peace or from other feeling which is unable to resist.

The theory of undue influence is totally rejected as not proved.

III. JUDGMENT

To restate the combined issued of fact and law in this case pertaining to testamentary capacity: Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will which would meet the legal test regarding testamentary capacity and have the proponents of the will carried successfully the burden of proof and shown him to be of sound mind on that date?

Two of the subscribing witnesses to the will, one a physician clearly to the regular manner in which the will was executed and to the testator's mental condition. The other subscribing witness, also, a physician on the contrary testified to a fact which, if substantiated, would require the court to disallow the will. The attending physician and three other eminent members of the medical fraternity, who were present at the execution of the will, expressed opinions entirely favorable to the capacity of the testator. As against this we have the professional speculations of three other equally eminent members of the medical profession when the will was executed. The advantage on those facts is all with those who offer the will for probate.

The will was short. It could easily be understood by a person in physical distress. It was reasonable, that is, it was reasonable if we take into account the evident prejustice of the testator against the husband of Margarita Lopez.

With special reference of the definition of testamentary capacity, we may say this: On January 3, 1924, Tomas Rodriguez, in our opinion comprehended the nature of the transaction in which he was engaged. He had two conferences with his lawyer, Judge Mina, and knew what the will was to contain. The will was read to him by Mr. Legarda. He signed the will and its two copies in the proper places at the bottom and on the left margin. At that time the testator recollected the property to be disposed of and the persons who would naturally be supposed to have claims upon him While for some months prior to the making of the will he had not manage his property he seem to have retained a distinct recollection of what it consisted and of his income. Occasionally his memory failed him with reference to the names of his relatives. Ordinarily, he knew who they were, he seemed to entertain a prediliction towards Vicente F. Lopez as would be natural since Lopez was nearest in which the instrument distributed the property naming the objects of his

bounty. His conversations with Judge Mina disclosed as insistence on giving all of his property to the two persons whom he specified.

On January 3, 1924, Tomas Rodriguez may have been of advanced years, may have been physically decrepit, may have been weak in intellect, may have suffered a loss of memory, may have had a guardian and may have a been extremely eccentric, but he still possessed the spark of reason and of life, that strength of mind to form a fixed intention and to summon his enfeebled thoughts to enforce that intention, which the law terms "testamentary capacity." That in effect is the definite opinion which we reach after an exhaustive and exhausting study of a tedious record, after weighing the evidence for the oppositors, and after giving to the case the serious consideration which it deserves.

The judgment of the trial court will be set aside and the will of Tomas Rodriguez will be admitted to probate without special pronouncement as to costs in this instance.

Avanceña, C. J., Johnson, Villamor, Johns, Romualdez, and Villa-Real, JJ., concur.