G.R. No.

72706 October 27, 1987

CONSTANTINO C. ACAIN, petitioner,

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

PARAS, J.:

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

The dispositive portion of the questioned decision reads as follows:

WHEREFORE, the petition is hereby granted and respondent Regional Trial

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

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

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

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

Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are
claiming to be heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the oppositors
(respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and
the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following
grounds for the petitioner has no legal capacity to institute these proceedings; (2) he is
merely a universal heir and (3) the widow and the adopted daughter have been pretirited.
(Rollo, p. 158). Said motion was denied by the trial judge.

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

Respondent Intermediate Appellate Court granted private respondents' petition and ordered
the trial court to dismiss the petition for the probate of the will of Nemesio Acain in Special
Proceedings No. 591 ACEB

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

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

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

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

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

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

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

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

(F) As an instituted heir, petitioner has the legal interest and standing to file
the petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain
and
 (G) Article 854 of the New Civil Code is a bill of attainder. It is therefore
unconstitutional and ineffectual.

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

Article 854 of the Civil Code provides:

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

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

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

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

The universal institution of petitioner together with his brothers and sisters to the entire
inheritance of the testator results in totally abrogating the will because the nullification of
such institution of universal heirs-without any other testamentary disposition in the will-
amounts to a declaration that nothing at all was written. Carefully worded and in clear
terms, Article 854 of the Civil Code offers no leeway for inferential interpretation (Nuguid v.
Nuguid), supra. No legacies nor devises having been provided in the will the whole property
of the deceased has been left by universal title to petitioner and his brothers and sisters.
The effect of annulling the "Institution of heirs will be, necessarily, the opening of a total
intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises
must, as already stated above, be respected.
We now deal with another matter. In order that a person may be allowed to intervene in a
probate proceeding he must have an interest iii the estate, or in the will, or in the property
to be affected by it either as executor or as a claimant of the estate and an interested party
is one who would be benefited by the estate such as an heir or one who has a claim against
the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the
appointed executor, neither a devisee or a legatee there being no mention in the
testamentary disposition of any gift of an individual item of personal or real property he is
called upon to receive (Article 782, Civil Code). At the outset, he appears to have an
interest in the will as an heir, defined under Article 782 of the Civil Code as a person called
to the succession either by the provision of a will or by operation of law. However, intestacy
having resulted from the preterition of respondent adopted child and the universal
institution of heirs, petitioner is in effect not an heir of the testator. He has no legal standing
to petition for the probate of the will left by the deceased and Special Proceedings No. 591
A-CEB must be dismissed.

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

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

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

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

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

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

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

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

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

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

SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla,
Bidin, Sarmiento and Cortes, JJ., concur.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in this case was by mistake or
inadvertence.

To my mind, an important distinction has to be made as to whether the omission of a forced

heir in the will of a testator is by mistake or inadvertence, or voluntary or intentional. If by
mistake or inadvertence, there is true preterirton and total intestacy results. The reason for
this is the "inability to determine how the testator would have distributed his estate if none
of the heirs had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C.
Puno, Vol. III, p. 54).

The requisites of preterition are:

1. The heir omitted is a forced heir (in the direct line);

2. The ommission is by mistake or thru an oversight.

3. The omission is complete so that the forced heir received nothing in the
will. (111 Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225)
(Parenthetical addendum supplied).

On the other hand, if the omission is intentional, the effect would be a defective
disinheritance covered by Article 918 of the Civil Code in which case the institution of heir is
not wholly void but only insofar as it prejudices the legitime of the person disinherited.
Stated otherwise. the nullity is partial unlike in true preterition where the nullity is total.

Pretention is presumed to be only an involuntary omission; that is, that if the

testator had known of the existence of the compulsory heir at the time of the
execution of the will, he would have instituted such heir. On the other hand, if
the testator attempts to disinherit a compulsory heir, the presumption of the
law is that he wants such heir to receive as little as possible from his estate.
(III Tolentino, Civil Code, 1973 Edition, pp. 174-175).

In the case at bar, there seems to have been mistake or in advertence in the omission of
the adopted daughter, hence, my concurrence in the result that total intestacy ensued.
Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in this case was by mistake or
inadvertence.

To my mind, an important distinction has to be made as to whether the omission of a forced

heir in the will of a testator is by mistake or inadvertence, or voluntary or intentional. If by
mistake or inadvertence, there is true preterirton and total intestacy results. The reason for
this is the "inability to determine how the testator would have distributed his estate if none
of the heirs had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C.
Puno, Vol. III, p. 54).

The requisites of preterition are:

1. The heir omitted is a forced heir (in the direct line);

2. The ommission is by mistake or thru an oversight.

3. The omission is complete so that the forced heir received nothing in the
will. (111 Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225)
(Parenthetical addendum supplied).

On the other hand, if the omission is intentional, the effect would be a defective
disinheritance covered by Article 918 of the Civil Code in which case the institution of heir is
not wholly void but only insofar as it prejudices the legitime of the person disinherited.
Stated otherwise. the nullity is partial unlike in true preterition where the nullity is total.

Pretention is presumed to be only an involuntary omission; that is, that if the

testator had known of the existence of the compulsory heir at the time of the
execution of the will, he would have instituted such heir. On the other hand, if
the testator attempts to disinherit a compulsory heir, the presumption of the
law is that he wants such heir to receive as little as possible from his estate.
(III Tolentino, Civil Code, 1973 Edition, pp. 174-175).

In the case at bar, there seems to have been mistake or in advertence in the omission of
the adopted daughter, hence, my concurrence in the result that total intestacy ensued.
G.R. No. L-24365 June 30, 1966

IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E. CHRISTENSEN,

deceased.
ADOLFO C. AZNAR, executor and appellee,
vs.
MARIA LUCY CHRISTENSEN DUNCAN, oppositor and appellant.
MARIA HELEN CHRISTENSEN, oppositor and appellee.

J. Salonga and L. M. Abellera for oppositor and appellee.

Carlos Dominguez, Jr. for executor-appellee.
M. R. Sotelo for appellant.

MAKALINTAL, J.:

Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a
will executed on March 5, 1951. The will was admitted to probate by the Court of First
Instance of Davao in its decision of February 28, 1954. In that same decision the court
declared that Maria Helen Christensen Garcia (hereinafter referred to as Helen Garcia) was a
natural child of the deceased. The declaration was appealed to this Court, and was affirmed
in its decision of February 14, 1958 (G.R. No. L-11484).

In another incident relative to the partition of the deceased's estate, the trial court approved
the project submitted by the executor in accordance with the provisions of the will, which
said court found to be valid under the law of California. Helen Garcia appealed from the
order of approval, and this Court, on January 31, 1963, reversed the same on the ground
that the validity of the provisions of the will should be governed by Philippine law, and
returned the case to the lower court with instructions that the partition be made as provided
by said law (G.R. No. L-16749).

On October 29, 1964, the Court of First Instance of Davao issued an order approving the
project of partition submitted by the executor, dated June 30, 1964, wherein the properties
of the estate were divided equally between Maria Lucy Christensen Duncan (named in the
will as Maria Lucy Christensen Daney, and hereinafter referred to as merely Lucy Duncan),
whom the testator had expressly recognized in his will as his daughter (natural) and Helen
Garcia, who had been judicially declared as such after his death. The said order was based
on the proposition that since Helen Garcia had been preterited in the will the institution of
Lucy Duncan as heir was annulled, and hence the properties passed to both of them as if
the deceased had died intestate, saving only the legacies left in favor of certain other
persons, which legacies have been duly approved by the lower court and distributed to the
legatees.

The case is once more before us on appeal, this time by Lucy Duncan, on the sole question
of whether the estate, after deducting the legacies, should pertain to her and to Helen
Garcia in equal shares, or whether the inheritance of Lucy Duncan as instituted heir should
be merely reduced to the extent necessary to cover the legitime of Helen Garcia, equivalent
to 1/4 of the entire estate.

The will of Edward E. Christensen contains, among others, the following clauses which are
pertinent to the issue in this case:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN
(Now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years
ago, who is now residing at No. 665 Rodger Young Village, Los Angeles, California,
U.S.A.

4. I further declare that I now have no living ascendants, and no descendants except
my above-named daughter, MARIA LUCY CHRISTENSEN DANEY.

xxx xxx xxx

7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now married to
Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that
she was baptized Christensen, is not in any way related to me, nor has she been at
any time adopted by me, and who, from all information I have now resides in Egpit,
Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS
(P3,600.00), Philippine Currency, the same to be deposited in trust for the said Maria
Helen Christensen with the Davao Branch of the Philippine National Bank, and paid to
her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month until
the principal thereof as well as any interest which may have accrued thereon, is
exhausted.

xxx xxx xxx

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said
MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney) now residing, as aforesaid,
at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the income from
the rest, remainder, and residue of my property and estate, real, personal and/or
mixed, of whatsoever kind or character, and wheresoever situated, of which I may
be possessed at my death and which may have come to me from any source
whatsoever, during her lifetime; Provided, however, that should the said MARIA
LUCY CHRISTENSEN DANEY at anytime prior to her decease having living issue, then
and in that event, the life interest herein given shall terminate, and if so terminated,
then I give, devise, and bequeath to my daughter, the said MARIA LUCY
CHRISTENSEN DANEY the rest, remainder and residue of my property with the same
force and effect as if I had originally so given, devised and bequeathed it to her; and
provided, further, that should the said MARIA LUCY CHRISTENSEN DANEY die
without living issue, then, and in that event, I give, devise and bequeath all the rest,
remainder and residue of my property one-half (1/2) to my well-beloved sister, Mrs.
CARRIE LOUISE C. BORTON, now residing at No. 2124, Twentieth Street,
Bakersfield, California, U.S.A., and one-half (1/2) to the children of my deceased
brother, JOSEPH C. CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of Los Angeles,
California, U.S.A., and Joseph Raymond Christensen, of Manhattan Beach, California,
U.S.A., share and share alike, the share of any of the three above named who may
predecease me, to go in equal parts to the descendants of the deceased; and,
provided further, that should my sister Mrs. Carol Louise C. Borton die before my
own decease, then, and in that event, the share of my estate devised to her herein I
give, devise and bequeath to her children, Elizabeth Borton de Treviño, of Mexico
City Mexico; Barbara Borton Philips, of Bakersfield, California, U.S.A., and Richard
Borton, of Bakersfield, California, U.S.A., or to the heirs of any of them who may die
before my own decease, share and share alike.
The trial court ruled, and appellee now maintains, that there has been preterition of Helen
Garcia, a compulsory heir in the direct line, resulting in the annulment of the institution of
heir pursuant to Article 854 of the Civil Code, which provides:

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

On the other hand, appellant contends that this is not a case of preterition, but is governed
by Article 906 of the Civil Code, which says: "Any compulsory heir to whom the testator has
left by any title less than the legitime belonging to him may demand that the same be fully
satisfied." Appellant also suggests that considering the provisions of the will whereby the
testator expressly denied his relationship with Helen Garcia, but left to her a legacy
nevertheless although less than the amount of her legitime, she was in effect defectively
disinherited within the meaning of Article 918, which reads:

ART. 918. Disinheritance without a specification of the cause, or for a cause the truth
of which, if contradicted, is not proved, or which is not one of those set forth in this
Code, shall annul the institution of heirs insofar as it may prejudice the person
disinherited; but the devices and legacies and other testamentary dispositions shall
be valid to such extent as will not impair the legitimate.

Thus, according to appellant, under both Article 906 and 918, Helen Garcia is entitled only
to her legitime, and not to a share of the estate equal that of Lucy Duncan as if the
succession were intestate.

Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article 906 of
Article 815. Commenting on Article 815, Manresa explains:

Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta de

memoria en el testador; en el de dejar algo al heredero forzoso no. Este no se
encuentra plivado totalmente de su legitima: ha recibido por cualquir titulo una
porcion de los bienes hereditarios, porcion que no alcanza a completar la legitima,
pero que influeye poderosamente en el animo del legislador para decidirle a adoptar
una solucion bien diferente de la señalada para el caso de pretericion.

El testador no ha olvidado por completo al heredero forzoso; le ha dejado bienes;

pero haciendo un calculo equivocado, ha repartido en favor de extraños o en favor
de otros legitimarios por via de legado donacion o mejora mayor cantidad de la que
la ley de consentia disponer. El heredero forzoso no puede perder su legitima, pero
tampoco puede pedir mas que la misma. De aqui su derecho a reclamar solamente lo
que le falta; al complemento de la porcion que forzosamente la corresponde.

... Dejar el testador por cualquier titulo, equivale a disponer en testamento por titulo
de herencia legado o mejora, y en favor de legitimarios, de alguna cantidad o
porcion de bienes menos que la legitima o igual a la misma. Tal sentido, que es el
mas proprio en al articulo 815, no pugna tampoco con la doctrina de la ley. Cuando
en el testamento se deja algo al heredero forzoso, la pretericion es incompleta: es
mas formularia que real. Cuando en el testamento nada se deja el legitimario, hay
verdadera pretericion. (6 Manresa, 7th Ed., 1951, p. 437.)
On the difference between preterition of a compulsory heir and the right to ask for
completion of his legitime, Sanchez Roman says:

La desheredacion, como expresa, es siempre voluntaria; la pretericion puede serlo

pero se presume involuntaria la omision en que consiste en cuanto olvida o no
atiende el testador en su testamento a la satisfaccion del derecho a la legitima del
heredero forzoso preterido, prescindiendo absoluta y totalmente de el y no
mencionandole en ninguna de sus disposiciones testamentarias, o no instituyendole
en parte alguna de la herencia, ni por titulo de heredero ni por el de legatar o
aunque le mencionara o nombrara sin dejarle mas o menos bienes. Si le dejara
algunos, por pocos que sean e insuficientes para cubrir su legitima, ya no seria caso
de pretericion, sino de complemento de aquella. El primer supuesto o de pretericion
se regula por el articulo 814, y produce accion de nulidad de la institucion de
heredero; y el segundo, o de complemento de legitima por el 815 y solo original la
accion ad suplementum, para completar la legitima. (Sanchez Roman, Tomo VI, Vol.
2, p. 1131.)

Manresa defines preterition as the omission of the heir in the will, either by not naming him
at all or, while mentioning him as father, son, etc., by not instituting him as heir without
disinheriting him expressly, nor assigning to him some part of the properties. Manresa
continues:

Se necesita pues (a) Que la omision se refiera a un heredero forzoso; (b) Que la
omision sea completa; que el heredero forzoso nada reciba en el
testamento.1äwphï1.ñët

xxx xxx xxx

B. Que la omision sea completa — Esta condicion se deduce del mismo Articulo 814 y
resulta con evidencia al relacionar este articulo con el 815. El heredero forzoso a
quien el testador deja algo por cualquier titulo en su testamento, no se halla
propiamente omitido pues se le nombra y se le reconoce participacion en los bienes
hereditarios. Podria discutirse en el Articulo 814 si era o no necesario que se
reconociese el derecho del heredero como tal heredero, pero el articulo 815
desvanece esta duda. Aquel se ocupa de privacion completa o total, tacita este, de la
privacion parcial. Los efectos deben ser y son, como veremos completamente
distintos (6 Manresa, p. 428.)

La privacion de la legitima puede ser total o parcial.

Privar totalmente de la legitima es negarla en absoluto al legitimario, despojarle de

ella por completo. A este caso se refiere el articulo 814. Privar parcialmente de la
legitima, es menguarla o reducirla dejar al legitimario una porcion, menor que la que
le corresponde. A este caso se refiere el articulo 815. El 813 sienta, pues, una regla
general, y las consecuencias del que brantamiento de esta regla se determina en los
articulos 814 y 815. (6 Manresa p. 418.)

Again Sanchez Roman:

QUE LA OMISSION SEA TOTAL. — Aunque el articulo 814 no consigna de modo

expreso esta circunstancia de que la pretericion o falta de mencion e institucion o
 disposicion testamentaria a su favor, sea total, completa y absoluta, asi se deduce
de no hacer distincion o salvedad alguna empleandola en terminos generales; pero
sirve a confirmarlo de un modo indudable el siguiente articulo 815, al decir que el
heredero forzoso a quien el testador haya dejado por cualquier titulo, menos de la
legitima que la corresponda, podria pedir el complemento de la misma, lo cual ya no
son el caso ni los efectos de la pretericion, que anula la institucion, sino simplemente
los del suplemento necesario para cubrir su legitima. (Sanchez Roman — Tomo VI,
Vol. 2.0 p. 1133.)

The question may be posed: In order that the right of a forced heir may be limited only to
the completion of his legitime (instead of the annulment of the institution of heirs) is it
necessary that what has been left to him in the will "by any title," as by legacy, be granted
to him in his capacity as heir, that is, a titulo de heredero? In other words, should he be
recognized or referred to in the will as heir? This question is pertinent because in the will of
the deceased Edward E. Christensen Helen Garcia is not mentioned as an heir — indeed her
status as such is denied — but is given a legacy of P3,600.00.

While the classical view, pursuant to the Roman law, gave an affirmative answer to the
question, according to both Manresa (6 Manresa 7th 3rd. 436) and Sanchez Roman (Tomo
VI, Vol. 2.0 — p. 937), that view was changed by Article 645 of the "Proyecto de Codigo de
1851," later on copied in Article 906 of our own Code. Sanchez Roman, in the citation given
above, comments as follows:

RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. — Se inspira el Codigo en esta

materia en la doctrina clasica del Derecho romano y patrio (2); pero con alguna
racional modificacion. Concedian aquellos precedentes legales al heredero forzoso, a
quien no se le dejaba por titulo de tal el completo de su legitima, la accion para
invalidar la institucion hecha en el testamento y reclamar y obtener aquella mediante
el ejercicio de la querella de inoficioso, y aun cuando resultara favorecido como
donotario, por otro titulo que no fuera el de heredero, sino al honor de que se le
privaba no dandole este caracter, y solo cuando era instituido heredero en parte o
cantidad inferior a lo que le correspondiera por legitima, era cuando bastaba el
ejercicio de la accion ad suplementum para completarla, sin necesidad de anular las
otras instituciones de heredero o demas disposiciones contenidas en el testamento.

El Articulo 851 se aparta de este criterio estricto y se ajusta a la unica necesidad que
le inspira cual es la de que se complete la legitima del heredero forzoso, a quien por
cualquier titulo se haya dejado menos de lo que le corresponda, y se le otorga tan
solo el derecho de pedir el complemento de la misma sin necesidad de que se anulen
las disposiciones testamentarias, que se reduciran en lo que sean inoficiosas
conforme al articulo 817, cuya interpretacion y sentido tienen ya en su apoyo la
sancion de la jurisprudencia (3); siendo condicion precisa que lo que se hubiere
dejado de menos de la legitima al heredero forzoso, lo haya sido en el testamento, o
sea por disposicion del testador, segun lo revela el texto del articulo, "el heredero
forzoso a quien el testador haya dejado, etc., esto es por titulo de legado o
donacion mortis causa en el testamento y, no fuera de al. (Sanchez Roman, Tomo
VI, Vol. 2.0 — p. 937.)

Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16,
1895, May 25, 1917, and April 23, 1932, respectively. In each one of those cases the
testator left to one who was a forced heir a legacy worth less than the legitime, but without
referring to the legatee as an heir or even as a relative, and willed the rest of the estate to
other persons. It was held that Article 815 applied, and the heir could not ask that the
institution of heirs be annulled entirely, but only that the legitime be completed. (6
Manresa, pp. 438, 441.)

The foregoing solution is indeed more in consonance with the expressed wishes of the
testator in the present case as may be gathered very clearly from the provisions of his will.
He refused to acknowledge Helen Garcia as his natural daughter, and limited her share to a
legacy of P3,600.00. The fact that she was subsequently declared judicially to possess such
status is no reason to assume that had the judicial declaration come during his lifetime his
subjective attitude towards her would have undergone any change and that he would have
willed his estate equally to her and to Lucy Duncan, who alone was expressly recognized by
him.

The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is cited by appellees in
support of their theory of preterition. That decision is not here applicable, because it
referred to a will where "the testator left all his property by universal title to the children by
his second marriage, and (that) without expressly disinheriting the children by his first
marriage, he left nothing to them or, at least, some of them." In the case at bar the testator
did not entirely omit oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00.

The estate of the deceased Christensen upon his death consisted of 399 shares of stocks in
the Christensen Plantation Company and a certain amount in cash. One-fourth (1/4) of said
estate descended to Helen Garcia as her legitime. Since she became the owner of her share
as of the moment of the death of the decedent (Arts. 774, 777, Civil Code), she is entitled
to a corresponding portion of all the fruits or increments thereof subsequently accruing.
These include the stock dividends on the corporate holdings. The contention of Lucy Duncan
that all such dividends pertain to her according to the terms of the will cannot be sustained,
for it would in effect impair the right of ownership of Helen Garcia with respect to her
legitime.

One point deserves to be here mentioned, although no reference to it has been made in the
brief for oppositor-appellant. It is the institution of substitute heirs to the estate bequeathed
to Lucy Duncan in the event she should die without living issue. This substitution results in
effect from the fact that under paragraph 12 of the will she is entitled only to the income
from said estate, unless prior to her decease she should have living issue, in which event
she would inherit in full ownership; otherwise the property will go to the other relatives of
the testator named in the will. Without deciding this, point, since it is not one of the issues
raised before us, we might call attention to the limitations imposed by law upon this kind of
substitution, particularly that which says that it can never burden the legitime (Art. 864 Civil
Code), which means that the legitime must descend to the heir concerned in fee simple.

Wherefore, the order of the trial court dated October 29, 1964, approving the project of
partition as submitted by the executor-appellee, is hereby set aside; and the case is
remanded with instructions to partition the hereditary estate anew as indicated in this
decision, that is, by giving to oppositor-appellee Maria Helen Christensen Garcia no more
than the portion corresponding to her as legitime, equivalent to one-fourth (1/4) of the
hereditary estate, after deducting all debts and charges, which shall not include those
imposed in the will of the decedent, in accordance with Article 908 of the Civil Code. Costs
against appellees in this instance.

Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, J.P. Bengzon, Zaldivar and Sanchez,
JJ., concur.
 RESOLUTION

July 30, 1967

MAKALINTAL, J.:

Oppositor-appellant has filed an ex-parte petition dated July 11, 1966, making reference to
an alleged oversight and asking for the corresponding correction, in the last paragraph
before the dispositive part of our decision, which reads as follows:

One point deserves to be here mentioned, although no reference to it has been made in the
brief for oppositor-appellant. It is the institution of substituted heirs to the estate
bequeathed to Lucy Duncan in the event she should die without living issue. This
substitution results in effect from the fact that under paragraph 12 of the will she is entitled
only to the income from said estate, unless prior to her decease she should have living
issue, in which event she would inherit in full ownership; otherwise the property will go to
the other relatives of the testator named in the will. Without deciding this point, since it is
not one of the issues raised before us, we might call attention to the limitations imposed by
law upon this kind of substitution, particularly that which says that it can never burden the
legitime (Art. 864, Civil Code), which means that the legitime must descend to the heir
concerned in fee simple. (Decision, June 30, 1966, pages 14-15; emphasis ours).

Oppositor-appellant points out that the matter of substitution of heirs was taken up and
discussed in her brief particularly in pages 28 and 32 thereof. This is indeed quite true, but
the reference to and discussion of the rights of the substitute heirs (called American heirs in
the brief) appears to be merely for the purpose of refuting the theory advanced by appellees
and not for the purpose of having the rights of said heirs defined in so far as, under the
terms of the will, they may affect the legitime of oppositor-appellant. This point of course
was not and could hardly have been squarely raised as an issue inasmuch as the substitute
heirs are not parties in this case. We have nevertheless called attention "to the limitations
imposed by law upon this kind of substitution," because in the brief for oppositor-appellant,
at page 45, she makes the conclusion "that the Last Will and Testament of Edward E.
Christensen are valid under Philippine Law and must be given full force and effect;" and to
give them full force and effect would precisely affect the legitime of oppositor-appellant.

Wherefore, the last paragraph before the dispositive part of our decision quoted above is
amended by eliminating the following phrase in the first sentence: "although no reference to
it has been made in the brief for oppositor-appellant."
G.R. No. L-13876 February 28, 1962

CONSOLACION FLORENTINO DE CRISOLOGO, ET AL., plaintiffs-appellees,

vs.
DR. MANUEL SINGSON, defendant-appellant.

Felix V. Vergara for defendant-appellant.

B. Martinez for plaintiffs-appellees.

DIZON, J.:

Action for partition commenced by the spouses Consolacion Florentino and Francisco
Crisologo against Manuel Singson in connection with a residential lot located a Plaridel St.,
Vigan, Ilocos Sur, with an area of approximately 193 square meters, and the improvements
existing thereon, covered by Tax No. 10765-C. Their complaint alleged that Singson owned
one-half pro-indiviso of said property and that Consolacion Florentino owned the other half
by virtue of the provisions of the duly probated last will of Dña. Leona Singson, the original
owner, and the project of partition submitted to, and approved by the Court of First
Instance of Ilocos Sur in special Proceeding No. 453; that plaintiffs had made demands for
the partition of said property, but defendant refused to accede thereto, thus compelling
them to bring action.

Defendant's defense was that Consolacion Florentino was a mere usufructuary of, and not
owner of one-half pro-indiviso of the property in question, and that, therefore, she was not
entitled to demand partition thereof.

After trial upon the issue thus posed, the lower court rendered judgment as follows:

1. Declaring that the plaintiff is a co-owner pro-indiviso with the defendant of the
house and lot described in the complaint to the extent of each of an undivided 1/2
portion thereof; .

2. Ordering the aforesaid co-owners to execute an agreement of partition of the said

property within 30 days from receipt of this judgment unless it be shown that the
division thereof may render it unserviceable, in which case the provisions of Art. 498
of the New Civil Code may be applied; .1äwphï1.ñët

3. That in the event the said parties shall fail to do so, this Court will appoint the
corresponding commissioners to make the partition in accordance with law; and .

4. Without special pronouncement as to costs." .

From the above judgment, defendant Singson appealed.

It is admitted that Dña. Leona Singson, who died single on January 13, 1948, was the
owner of the property in question at the time of her death. On July 31, 1951 she executed
her last will which was admitted to probate in Special Proceeding No. 453 of the lower court
whose decision was affirmed by the Court of Appeals in G.R. No. 3605-R. At the time of the
execution of the will, her nearest living relatives were her brothers Evaristo, Manuel and
Dionisio Singson, her nieces Rosario, Emilia and Trinidad, and her grandniece Consolation,
all surnamed Florentino.
Clause IX of her last will reads as follows: .

NOVENO. — Ordeno que se de a mi nieta por parte de mi hermana mia y que al

mismo tiempo vive en mi casa, y, por tanto, bajo mi proteccion, y es la
CONSOLACION FLORENTINO: —

(A). La mitad de mi casa de materials fuertes con techo de hierro galvanizado,

incluyendo la mitad de su solar, ubicado en la Poblacion de Vigan, Ilocos Sur, Calle
Plaridel, actualmente arrendada por los hermanos Fortunato, Teofilo y Pedro del
appellido Kairuz. Pero si falleciere antes o despues que yo mi citada nieta, esta
propiedad se dara por partes iguales entre mis tres hermanos Evaristo, Manuel y
Dionisio, o a sus herederos forzosos en el caso de que alguno de ellas murieie antes
... (Exhibit F.)

The issue to be decided is whether the testamentary disposition above-quoted provided for
what is called sustitucion vulgar or for a sustitucion fideicomisaria. This issue is, we believe,
controlled by the pertinent provisions of the Civil Code in force in the Philippines prior to the
effectivity of the New Civil Code, in view of the fact that the testatrix died on January 13,
1948. They are the following: .

Art. 774. The testator may designate one or more persons to substitute the heir or
heirs instituted in case such heir or heirs should die before him, or should not wish or
should be unable to accept the inheritance.

A simple substitution, without a statement of the cases to which it is to apply, shall

include the three mentioned in the next preceeding paragraph, unless the testator
has otherwise provided:

Art. 781. Fidei-commissary substitutions by virtue of which the heir is charged to

preserve and transmit to a third person the whole or part of the inheritance shall be
valid and effective, provided they do not go beyond the second degree, or that they
are made in favor of persons living at the time of the death of the testator." .

Art. 785. The following shall be inoperative: .

1. Fiduciary substitutions not made expressly, either by giving them this name or by
imposing upon the fiduciary the absolute obligation of delivering the property to a
second heir." ....

In accordance with the first legal provision quoted above, the testator may not only
designate the heirs who will succeed him upon his death, but also provide for substitutes in
the event that said heirs do not accept or are in no position to accept the inheritance or
legacies, or die ahead of him.

The testator may also bequeath his properties to a particular person with the obligation, on
the part of the latter, to deliver the same to another person, totally or partially, upon the
occurrence of a particular event (6 Manresa, p. 1112).

It is clear that the particular testamentary clause under consideration provides for a
substitution of the heir named therein in this manner: that upon the death of Consolacion
Florentino — whether this occurs before or after that of the testatrix — the property
bequeathed to her shall be delivered ("se dara") or shall belong in equal parts to the
testatrix's three brothers, Evaristo, Manuel and Dionisio, or their forced heirs, should
anyone of them die ahead of Consolacion Florentino. If this clause created what is known
as sustitucion vulgar, the necessary result would be that Consolacion Florentino, upon the
death of the testatrix, became the owner of one undivided half of the property, but if it
provided for a sustitution fideicomisaria, she would have acquired nothing more than
usufructuary rights over the same half. In the former case, she would undoubtedly be
entitled to partition, but not in the latter. As Manresa says, if the fiduciary did not acquire
full ownership of the property bequeathed by will, but mere usufructuary rights thereon
until the time came for him to deliver said property to the fideicomisario, it is obvious that
the nude ownership over the property, upon the death of the testatrix, passed to and was
acquired by another person, and the person cannot be other than the fideicomisario (6
Manresa p. 145).

It seems to be of the essence of a fideicommissary substitution that an obligation be clearly

imposed upon the first heir to preserve and transmit to another the whole or part of the
estate bequeathed to him, upon his death or upon the happening of a particular event. For
this reason, Art. 785 of the old Civil Code provides that a fideicommissary substitution shall
have no effect unless it is made expressly ("de una manera expresa") either by giving it
such name, or by imposing upon the first heir the absolute obligation ("obligacion
terminante") to deliver the inheritance to a substitute or second heir. In this connection
Manresa says: .

Para que la sustitucion sea fideicomisaria, es preciso segun el art. 781, que se
ordeno o encargue al primer heredero, cuando sea tal, que conserve y transmita a
una tercera persona o entidad el todo a parte de la herencia. O lo que es lo mismo,
la sustitucion fideicomisaria, como declaran las resoluciones de 25 de Junio de 1895,
10 de Febrero de 1899 y 19 de Julio de 1909, exige tres requisitos: .

1.o Un primer heredero llamado al goce de los bienes preferentemente.

2.o Obligacion claramente impuesta al mismo de conservar y transmitir a un tercero

el todo o parte del caudal.

3.o Un segundo heredero.

A estos requisitos anade la sentencia de 18 de Noviembre de 1918, otro mas, el del

que el fideicomisario tenga derecho a los bienes de la herencia desde el momento de
la muerte del testador, puesto que ha de suceder a este y no al fiduciario.

Por tanto, cuando el causante se limita a instituir dos herederos, y por fallecimiento
de ambos o de cualquiera de ellos, asigna la parte del fallecido o fallecidos, a los
herederos legitimos o a otras personas, solo existe una sustitucion vulgar, porque
falta el requisito de haberse impuesto a los primeros herederos la obligacion de
conservar y transmitir los bienes, y el articulo 789, en su parrafo primero, evige que
la sustitucion sea expresa, ya dandole el testador el nombre de sustitucion
fideicomisaria, ya imponiendo al sustituido la obligacion terminante de conservar y
transmitir los bienes a un segundo heredero.

A careful perusal of the testamentary clause under consideration shows that the substitution
of heirs provided for therein is not expressly made of the fideicommissary kind, nor does it
contain a clear statement to the effect that appellee, during her lifetime, shall only enjoy
usufructuary rights over the property bequeathed to her, naked ownership thereof being
vested in the brothers of the testatrix. As already stated, it merely provides that upon
appellee's death — whether this happens before or after that of the testatrix — her share
shall belong to the brothers of the testatrix.

In the light of the foregoing, we believe, and so hold, that the last will of the deceased Dña.
Leona Singson, established a mere sustitucion vulgar, the substitution Consolacion
Florentino by the brothers of the testatrix to be effective or to take place upon the death of
the former, whether it happens before or after that of the testatrix.
G.R. No. L-27952 February 15, 1982

TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS,

Administratrix, petitioner-appellee,
vs.
MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO
RAMIREZ, legatees, oppositors- appellants.

ABAD SANTOS, J.:

The main issue in this appeal is the manner of partitioning the testate estate of Jose
Eugenio Ramirez among the principal beneficiaries, namely: his widow Marcelle Demoron de
Ramirez; his two grandnephews Roberto and Jorge Ramirez; and his companion Wanda de
Wrobleski.

The task is not trouble-free because the widow Marcelle is a French who lives in Paris, while
the companion Wanda is an Austrian who lives in Spain. Moreover, the testator provided for
substitutions.

Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only his
widow as compulsory heir. His will was admitted to probate by the Court of First Instance of
Manila, Branch X, on July 27, 1965. Maria Luisa Palacios was appointed administratrix of the
estate. In due time she submitted an inventory of the estate as follows:

INVENTARIO

Una sexta parte (1/6) proindiviso de un te

rreno, con sus mejoras y edificaciones, situadoen

la Escolta, Manila............................................................. P500,000.00

Una sexta parte (1/6) proindiviso de dos

parcelas de terreno situadas en Antipolo, Rizal................... 658.34

Cuatrocientos noventa y uno (491) acciones

de la 'Central Azucarera de la Carlota a P17.00

por accion ................................................................................8,347.00

Diez mil ochocientos seize (10,806) acciones

de la 'Central Luzon Milling Co.', disuelta y en

liquidacion a P0.15 por accion ..............................................1,620.90

 Cuenta de Ahorros en el Philippine Trust

Co..............................................................................................
2,350.73

TOTAL..............................................................
P512,976.97

MENOS:

Deuda al Banco de las Islas Filipinas, garan-

tizada con prenda de las acciones de La Carlota ......... P 5,000,00

VALOR LIQUIDO........................................... P507,976.97

The testamentary dispositions are as follows:

A.—En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas menores de

edad, residentes en Manila, I.F., calle 'Alright, No. 1818, Malate, hijos de su
sobrino D. Jose Ma. Ramirez, con sustitucion vulgar a favor de sus respectivos
descendientes, y, en su defecto, con sustitucion vulgar reciprocal entre
ambos.

El precedente legado en nuda propiedad de la participacion indivisa de la finca

Santa Cruz Building, lo ordena el testador a favor de los legatarios
nombrados, en atencion a que dicha propiedad fue creacion del querido padre
del otorgante y por ser aquellos continuadores del apellido Ramirez,

B.—Y en usufructo a saber: —

a. En cuanto a una tercera parte, a favor de la esposa del testador, Da.

Marcelle Ramirez, domiciliada en IE PECO, calle del General Gallieni No. 33,
Seine Francia, con sustitucion vulgar u fideicomisaria a favor de Da. Wanda
de Wrobleski, de Palma de Mallorca, Son Rapina Avenida de los Reyes 13,

b.—Y en cuanto a las dos terceras partes restantes, a favor de la nombrada

Da. Wanda de Nrobleski con sustitucion vulgar v fideicomisaria a saber:—

En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo

Jankowski, de Son Rapina Palma de Mallorca; y encuanto a la mitad restante,
a favor de su sobrino, D. Horace V. Ramirez, San Luis Building, Florida St.
Ermita, Manila, I.F.

A pesar de las sustituciones fideiconiisarias precedentemente ordinadas, las

usufiructuarias nombradas conjuntamente con los nudo propietarios, podran
en cualquier memento vender a tercero los bienes objeto delegado, sin
intervencion alguna de los titulares fideicomisaarios.

On June 23, 1966, the administratrix submitted a project of partition as follows: the
property of the deceased is to be divided into two parts. One part shall go to the widow 'en
pleno dominio" in satisfaction of her legitime; the other part or "free portion" shall go to
Jorge and Roberto Ramirez "en nuda propriedad." Furthermore, one third (1/3) of the free
portion is charged with the widow's usufruct and the remaining two-thirds (2/3) with a
usufruct in favor of Wanda.

Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions
for vulgar substitution in favor of Wanda de Wrobleski with respect to the widow's usufruct
and in favor of Juan Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's
usufruct are invalid because the first heirs Marcelle and Wanda) survived the testator; (b)
that the provisions for fideicommissary substitutions are also invalid because the first heirs
are not related to the second heirs or substitutes within the first degree, as provided in
Article 863 of the Civil Code; (c) that the grant of a usufruct over real property in the
Philippines in favor of Wanda Wrobleski, who is an alien, violates Section 5, Article III of the
Philippine Constitution; and that (d) the proposed partition of the testator's interest in the
Santa Cruz (Escolta) Building between the widow Marcelle and the appellants, violates the
testator's express win to give this property to them Nonetheless, the lower court approved
the project of partition in its order dated May 3, 1967. It is this order which Jorge and
Roberto have appealed to this Court.

1. The widow's legitime.

The appellant's do not question the legality of giving Marcelle one-half of the estate in full
ownership. They admit that the testator's dispositions impaired his widow's legitime.
Indeed, under Art. 900 of the Civil Code "If the only survivor is the widow or widower, she
or he shall be entitled to one-half of the hereditary estate." And since Marcelle alone
survived the deceased, she is entitled to one-half of his estate over which he could impose
no burden, encumbrance, condition or substitution of any kind whatsoever. (Art. 904, par.
2, Civil Code.)

It is the one-third usufruct over the free portion which the appellants question and
justifiably so. It appears that the court a quo approved the usufruct in favor of Marcelle
because the testament provides for a usufruct in her favor of one-third of the estate. The
court a quo erred for Marcelle who is entitled to one-half of the estate "en pleno dominio" as
her legitime and which is more than what she is given under the will is not entitled to have
any additional share in the estate. To give Marcelle more than her legitime will run counter
to the testator's intention for as stated above his dispositions even impaired her legitime
and tended to favor Wanda.

2. The substitutions.

It may be useful to recall that "Substitution is the appoint- judgment of another heir so that
he may enter into the inheritance in default of the heir originally instituted." (Art. 857, Civil
Code. And that there are several kinds of substitutions, namely: simple or common, brief or
compendious, reciprocal, and fideicommissary (Art. 858, Civil Code.) According to Tolentino,
"Although the Code enumerates four classes, there are really only two principal classes of
substitutions: the simple and the fideicommissary. The others are merely variations of these
two." (111 Civil Code, p. 185 [1973].)

The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:
 ART. 859. The testator may designate one or more persons to substitute the
heir or heirs instituted in case such heir or heirs should die before him, or
should not wish, or should be incapacitated to accept the inheritance.

A simple substitution, without a statement of the cases to which it refers,

shall comprise the three mentioned in the preceding paragraph, unless the
testator has otherwise provided.

The fideicommissary substitution is described in the Civil Code as follows:

ART. 863. A fideicommissary substitution by virtue of which the fiduciary or

first heir instituted is entrusted with the obligation to preserve and to transmit
to a second heir the whole or part of inheritance, shall be valid and shall take
effect, provided such substitution does not go beyond one degree from the
heir originally instituted, and provided further that the fiduciary or first heir
and the second heir are living at time of the death of the testator.

It will be noted that the testator provided for a vulgar substitution in respect of the legacies
of Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar a favor de sus
respectivos descendientes, y, en su defecto, con substitution vulgar reciprocal entre ambos.

The appellants do not question the legality of the substitution so provided. The appellants
question the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de Wrobleski" in
connection with the one-third usufruct over the estate given to the widow Marcelle However,
this question has become moot because as We have ruled above, the widow is not entitled
to any usufruct.

The appellants also question the sustitucion vulgar y fideicomisaria in connection with
Wanda's usufruct over two thirds of the estate in favor of Juan Pablo Jankowski and Horace
v. Ramirez.

They allege that the substitution in its vulgar aspect as void because Wanda survived the
testator or stated differently because she did not predecease the testator. But dying before
the testator is not the only case for vulgar substitution for it also includes refusal or
incapacity to accept the inheritance as provided in Art. 859 of the Civil Code, supra. Hence,
the vulgar substitution is valid.

As regards the substitution in its fideicommissary aspect, the appellants are correct in their
claim that it is void for the following reasons:

(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to
Wanda, the heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary
substitution "provided such substitution does not go beyond one degree from the heir
originally instituted."

What is meant by "one degree" from the first heir is explained by Tolentino as follows:

Scaevola Maura, and Traviesas construe "degree" as designation, substitution,

or transmission. The Supreme Court of Spain has decidedly adopted this
construction. From this point of view, there can be only one tranmission or
substitution, and the substitute need not be related to the first heir. Manresa,
 Morell and Sanchez Roman, however, construe the word "degree" as
generation, and the present Code has obviously followed this interpretation.
by providing that the substitution shall not go beyond one degree "from the
heir originally instituted." The Code thus clearly indicates that the second heir
must be related to and be one generation from the first heir.

From this, it follows that the fideicommissary can only be either a child or a
parent of the first heir. These are the only relatives who are one generation or
degree from the fiduciary (Op. cit., pp. 193-194.)

(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes
as required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits "that the
testator contradicts the establishment of a fideicommissary substitution when he permits
the properties subject of the usufruct to be sold upon mutual agreement of the
usufructuaries and the naked owners." (Brief, p. 26.)

3. The usufruct of Wanda.

The appellants claim that the usufruct over real properties of the estate in favor of Wanda is
void because it violates the constitutional prohibition against the acquisition of lands by
aliens.

The 1935 Constitution which is controlling provides as follows:

SEC. 5. Save in cases of hereditary succession, no private agricultural land

shall be transferred or assigned except to individuals, corporations, or
associations qualified to acquire or hold lands of the public domain in the
Philippines. (Art. XIII.)

The court a quo upheld the validity of the usufruct given to Wanda on the ground that the
Constitution covers not only succession by operation of law but also testamentary
succession. We are of the opinion that the Constitutional provision which enables aliens to
acquire private lands does not extend to testamentary succession for otherwise the
prohibition will be for naught and meaningless. Any alien would be able to circumvent the
prohibition by paying money to a Philippine landowner in exchange for a devise of a piece of
land.

This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct,
albeit a real right, does not vest title to the land in the usufructuary and it is the vesting of
title to land in favor of aliens which is proscribed by the Constitution.

IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered
distributed as follows:

One-half (1/2) thereof to his widow as her legitime;

One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked
ownership and the usufruct to Wanda de Wrobleski with a simple substitution in favor of
Juan Pablo Jankowski and Horace V. Ramirez.
The distribution herein ordered supersedes that of the court a quo. No special
pronouncement as to costs.

SO ORDERED.
G.R. No. L-56249 May 29, 1987

IN THE MATTER OF THE TESTATE ESTATE OF THE DECEASED REV. FATHER

TEODORO ARANAS, RAMONA B. VDA. DE ARANAS, ADELIA B. ARANAS-FERNANDEZ,
HEIRS OF THE LATE RODULFO B. ARANAS, ETC., ET AL., petitioners,
vs.
VICENTE B. ARANAS AND HON. LUIS B. MANTA, respondents.

PARAS, J.:

This is a petition for certiorari which seeks to declare the orders of respondent Judge dated
July 16, 1980 and September 23, 1980 as an exercise of a gross abuse of discretion
amounting to lack of jurisdiction, by ruling that the properties under Group C of the testate
estate of the late Fr.Teodoro Aranas are subject to remunerative legacies.

The antecedent facts of the case are as follows:

Fr. Teodoro Aranas, a priest of the Roman Catholic Church, died on January 19, 1953. He
had executed on June 6, 1946 his Last Will and Testament which was admitted to probate
on August 31, 1956. In said Last Will and Testament, Fr. Teodoro Aranas stipulated the
following:

A. The return to Aniceto Aranas or his heirs of all properties acquired by Fr. Aranas from his
brother Aniceto Aranas and ten (10) parcels of land described in the Will inherited by the
testator from his parents.

B. The return to Carmelo Aranas or his heirs of all properties acquired by Fr. Aranas from
his brother Carmelo Aranas and ten (10) parcels of land described in the Will inherited by
the testator from his parents.

C. The special administration of the remainder of the estate of the testator by Vicente
Aranas, a faithful and serviceable nephew and designating him also as recipient of 1/2 of
the produce of said properties after deducting the expenses for the administration and the
other 1/2 of the produce to be given to the Catholic Church for the eternal repose of the
testator's soul. Said pertinent provision 1 reads as follows:

Fourth. It is my will that the lands I had bought from other persons should be
converged and placed under a "special administrator." The special
administrator of these lands, for his office, should receive one half of all the
produce from which shall be deducted the expenses for the administration,
and the other half of the produce should be received by the Roman Catholic
Church and should be spent for my soul, Vicente B. Aranas (Tingting),
because he is a faithful and serviceable nephew, should be the first special
administrator of said properties, without bond, until his death or until he
should not want to hold the said office anymore. Anyone of the sons of my
brother Carmelo Aranas can hold the said office of special administrator, and
none other than they. Their father, my brother Carmelo Aranas shall be the
one to decide who among them shall hold the said office, but upon the death
 of my said brother Carmelo Aranas, his said sons will have power to select the
one among them ourselves. The special administration is perpetual.

The lower court in its Order 2 dated November 17, 1977 ruled, upon petitioners' (in Sp.
Proc. No. 303) "Motion for the Declaration of Heirs and Partition; and for Removal of the
Administrator (Vicente Aranas) and/or for his Permission to Resign, and appointment of His
Successor" that the "perpetual inalienability and administration of the portion of the estate
of the late Rev. Fr. Teodoro Aranas, administered by Vicente Aranas, is nun and void after
twenty years from January 19, 1954 ... " and declared in the same order the heirs of the
late Fr. Teodoro Aranas. It also declared that "the removal of Vicente Aranas will, therefore,
not serve the ends of justice and for the best interest of all the heirs, particularly with
respect to the portion of the estate taken by the heirs of Aniceto Aranas, represented by the
petitioners herein and the rest of the heirs of Carmelo, represented by the intervenors,
coheirs of Administrator Vicente Aranas." 3

However, the abovesaid Order was subsequently set aside upon the "Urgent Motion for
Reconsideration and to Declare Testate and Intestate Heirs of the late Fr. Teodoro Aranas,"
filed by the administrator Vicente Aranas on the allegation that said order was violative of
due process and without legal and factual basis because only the issue for the removal of
the administrator was heard and not the matter of the declaration of heirs. Thus, the lower
court declared in its Order, 4 dated July 16, 1980 that the Order dated November 17, 1977
is "set aside and in the interest of justice, reopened in order that other heirs, successors-in-
interest of Felino Aranas, 5 could likewise assert their claims, as in the case of the heirs of
Aniceto Aranas and Carmelo Aranas." 6

Their Motion for Reconsideration having been denied by the lower court in its order dated
September 23, 1980, petitioners now come before Us by certiorari raising the issue that the
lower court erred in setting aside its order dated November 17, 1977 and in not applying
the provisions on Usufruct of the New Civil Code with respect to the properties referred to
as Group "C" in the Last Will and Testament.

The court ruled in its questioned order that this particular group of properties (Group "C") is
subject to the following:

1. Remunerative legacy by way of usufruct of the net proceeds of 1/2 of the

estate after deducting expenses for administration in favor of Vicente Aranas,
during his lifetime and shall continue an administrator of the estate, and,
who, upon his death or refusal to continue such usufruct, may be succeeded
by any of the brothers of the administrator as selected by their father,
Carmelo Aranas, if still alive or one selected by his sons if, he, Carmelo, is
dead; Pursuant to the Will. (Article 562, 563, 564 and 603 of the New Civil
Code).

2. Legacy in favor of the Roman Catholic Church, particularly the Archbishop

diocese of Cagayan de Oro City Represented by the Reverend Archbishop
Patrick H. Cronin over one-half of the proceeds of the properties under Group
"C." (Article 603, New Civil Code) and to last for a period of Fifty years from
the effective date of the legacy, Article 605, New Civil Code). (Annex "L-14,"
p. 87, Rollo)

Assailing the aforementioned ruling, petitioners rely heavily on the doctrine laid down in Art.
870 of the New Civil Code to wit:
 Art. 870. The dispositions of the testator declaring all or part of the estate
inalienable for more than twenty years are void.

A cursory reading of the English translation of the Last Will and Testament shows that it was
the sincere intention and desire of the testator to reward his nephew Vicente Aranas for his
faithful and unselfish services by allowing him to enjoy one-half of the fruits of the testator's
third group of properties until Vicente's death and/or refusal to act as administrator in which
case, the administration shall pass to anyone chosen by Carmelo Aranas among his sons
and upon Carmelo's death, his sons will have the power to select one among themselves.
Vicente Aranas therefore as a usufructuary has the right to enjoy the property of his uncle
with all the benefits which result from the normal enjoyment (or exploitation) of another's
property, with the obligation to return, at the designated time, either the same thing, or in
special cases its equivalent. This right of Vicente to enjoy the fruits of the properties is
temporary and therefore not perpetual as there is a limitation namely his death or his
refusal. Likewise his designation as administrator of these properties is limited by his refusal
and/or death and therefore it does not run counter to Art. 870 of the Civil Code relied upon
by the petitioners. Be it noted that Vicente Aranas is not prohibited to dispose of the fruits
and other benefits arising from the usufruct. Neither are the naked owners (the other heirs)
of the properties, the usufruct of which has been given to Vicente Aranas prohibited from
disposing of said naked ownership without prejudice of course to Vicente's continuing
usufruct. To void the designation of Vicente Aranas as usufructuary and/or administrator is
to defeat the desire and the dying wish of the testator to reward him for his faithful and
unselfish services rendered during the time when said testator was seriously ill or bed-
ridden. The proviso must be respected and be given effect until the death or until the
refusal to act as such of the instituted usufructuary/administrator, after which period, the
property can be properly disposed of, subject to the limitations provided in Art. 863 of the
Civil Code concerning a fideicommissary substitution, said Article says:

A fideicommissary substitution by virtue of which the fiduciary or first heir

instituted is entrusted with the obligation to preserve and to transmit to a
second heir the whole or part of the inheritance, shall be valid and shall take
effect, provided such substitution does not go beyond one degree from the
heir originally instituted, and provided further, that the fiduciary or first heir
and the second heir are living at the time of the death of the testator.

It is contended by petitioners that the ruling made by respondent court dated November 17,
1977 was already final and not subject to correction as what was set aside and to be
reheard was only regarding the determination of additional heirs. Such contention is not
worthy of credence. Respondents in their Memorandum allege and it is not disputed by
petitioners that the order of November 17, 1977 has not yet become final because it was
received only on January 12, 1978 by the counsel for respondent Vicente Aranas and the
Motion for Reconsideration and to declare testamentary and intestate heirs dated January
17, 1978 was filed by the said respondent within the reglementary period. Besides the
validity or invalidity of the usufructuary dispositions would affect the determination of heirs.

As to petitioners' allegation that the order of July 16, 1980 is without basis, the record
shows that during the hearing of the urgent motion for reconsideration and to declare
testamentary and intestate heirs, it was proven conclusively by the said respondent Vicente
B. Aranas that he was instituted as a remunerative legatee per mandate of the Last Will and
Testament by way of usufructuary. Likewise the right of the Roman Catholic Church as the
other usufructuary legatee for the duration of the statutory lifetime of a corporation, that is,
50 years from the date of the effectivity of said legacy, was also established. 7
WHEREFORE, the instant petition is hereby dismissed.

SO ORDERED.
G.R. Nos. L-27860 and L-27896 March 29, 1974

PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the Testate

Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the Court of First Instance
of Iloilo), petitioner,
vs.
THE HONORABLE VENICIO ESCOLIN, Presiding Judge of the Court of First Instance
of Iloilo, Branch II, and AVELINA A. MAGNO, respondents.

G.R. Nos. L-27936 & L-27937 March 29, 1974

TESTATE ESTATE OF THE LATE LINNIE JANE HODGES (Sp. Proc. No. 1307).
TESTATE ESTATE OF THE LATE CHARLES NEWTON HODGES (Sp. Proc. No. 1672).
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, administrator-appellant,
vs.
LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR GUZMAN,
BELCESAR CAUSING, FLORENIA BARRIDO, PURIFICACION CORONADO, GRACIANO
LUCERO, ARITEO THOMAS JAMIR, MELQUIADES BATISANAN, PEPITO IYULORES,
ESPERIDION PARTISALA, WINIFREDO ESPADA, ROSARIO ALINGASA, ADELFA
PREMAYLON, SANTIAGO PACAONSIS, and AVELINA A. MAGNO, the last as
Administratrix in Sp. Proc. No. 1307, appellees, WESTERN INSTITUTE OF
TECHNOLOGY, INC., movant-appellee.

San Juan, Africa, Gonzales and San Agustin for Philippine Commercial and Industrial Bank.

Manglapus Law Office, Antonio Law Office and Rizal R. Quimpo for private respondents and
appellees Avelina A. Magno, etc., et al.

BARREDO, J.:p

Certiorari and prohibition with preliminary injunction; certiorari to "declare all acts of the
respondent court in the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307 of the
Court of First Instance of Iloilo) subsequent to the order of December 14, 1957 as null and
void for having been issued without jurisdiction"; prohibition to enjoin the respondent court
from allowing, tolerating, sanctioning, or abetting private respondent Avelina A. Magno to
perform or do any acts of administration, such as those enumerated in the petition, and
from exercising any authority or power as Regular Administratrix of above-named Testate
Estate, by entertaining manifestations, motion and pleadings filed by her and acting on
them, and also to enjoin said court from allowing said private respondent to interfere,
meddle or take part in any manner in the administration of the Testate Estate of Charles
Newton Hodges (Sp. Proc. No. 1672 of the same court and branch); with prayer for
preliminary injunction, which was issued by this Court on August 8, 1967 upon a bond of
P5,000; the petition being particularly directed against the orders of the respondent court of
October 12, 1966 denying petitioner's motion of April 22, 1966 and its order of July 18,
1967 denying the motion for reconsideration of said order.

Related to and involving basically the same main issue as the foregoing petition, thirty-three
(33) appeals from different orders of the same respondent court approving or otherwise
sanctioning the acts of administration of the respondent Magno on behalf of the testate
Estate of Mrs. Hodges.

THE FACTS

On May 23, 1957, Linnie Jane Hodges died in Iloilo City leaving a will executed on
November 22, 1952 pertinently providing as follows:

FIRST: I direct that all my just debts and funeral expenses be first paid out of
my estate.

SECOND: I give, devise and bequeath all of the rest, residue and remainder
of my estate, both personal and real, wherever situated, or located, to my
beloved husband, Charles Newton Hodges, to have and to hold unto him, my
said husband, during his natural lifetime.

THIRD: I desire, direct and provide that my husband, Charles Newton

Hodges, shall have the right to manage, control, use and enjoy said estate
during his lifetime, and he is hereby given the right to make any changes in
the physical properties of said estate, by sale or any part thereof which he
may think best, and the purchase of any other or additional property as he
may think best; to execute conveyances with or without general or special
warranty, conveying in fee simple or for any other term or time, any property
which he may deem proper to dispose of; to lease any of the real property for
oil, gas and/or other minerals, and all such deeds or leases shall pass the
absolute fee simple title to the interest so conveyed in such property as he
may elect to sell. All rents, emoluments and income from said estate shall
belong to him, and he is further authorized to use any part of the principal of
said estate as he may need or desire. It is provided herein, however, that he
shall not sell or otherwise dispose of any of the improved property now owned
by us located at, in or near the City of Lubbock, Texas, but he shall have the
full right to lease, manage and enjoy the same during his lifetime, above
provided. He shall have the right to subdivide any farm land and sell lots
therein. and may sell unimproved town lots.

FOURTH: At the death of my said husband, Charles Newton Hodges, I give,

devise and bequeath all of the rest, residue and remainder of my estate, both
real and personal, wherever situated or located, to be equally divided among
my brothers and sisters, share and share alike, namely:

Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Saddie Rascoe, Era
Roman and Nimroy Higdon.

FIFTH: In case of the death of any of my brothers and/or sisters named in

item Fourth, above, prior to the death of my husband, Charles Newton
Hodges, then it is my will and bequest that the heirs of such deceased brother
or sister shall take jointly the share which would have gone to such brother or
sister had she or he survived.
 SIXTH: I nominate and appoint my said husband, Charles Newton Hodges, to
be executor of this, my last will and testament, and direct that no bond or
other security be required of him as such executor.

SEVENTH: It is my will and bequest that no action be had in the probate

court, in the administration of my estate, other than that necessary to prove
and record this will and to return an inventory and appraisement of my estate
and list of claims. (Pp. 2-4, Petition.)

This will was subsequently probated in aforementioned Special Proceedings No. 1307 of
respondent court on June 28, 1957, with the widower Charles Newton Hodges being
appointed as Executor, pursuant to the provisions thereof.

Previously, on May 27, 1957, the said widower (hereafter to be referred to as Hodges) had
been appointed Special Administrator, in which capacity he filed a motion on the same date
as follows:

URGENT EX-PARTE MOTION TO ALLOW OR AUTHORIZE PETITIONER TO

CONTINUE THE BUSINESS IN WHICH HE WAS ENGAGED AND TO PERFORM
ACTS WHICH HE HAD BEEN DOING WHILE DECEASED WAS LIVING

Come petitioner in the above-entitled special proceedings, thru his undersigned attorneys,
to the Hon. Court, most respectfully states:

1. — That Linnie Jane Hodges died leaving her last will and testament, a copy
of which is attached to the petition for probate of the same.

2. — That in said last will and testament herein petitioner Charles Newton
Hodges is directed to have the right to manage, control use and enjoy the
estate of deceased Linnie Jane Hodges, in the same way, a provision was
placed in paragraph two, the following: "I give, devise and bequeath all of the
rest, residue and remainder of my estate, to my beloved husband, Charles
Newton Hodges, to have and (to) hold unto him, my said husband, during his
natural lifetime."

3. — That during the lifetime of Linnie Jane Hodges, herein petitioner was
engaged in the business of buying and selling personal and real properties,
and do such acts which petitioner may think best.

4. — That deceased Linnie Jane Hodges died leaving no descendants or

ascendants, except brothers and sisters and herein petitioner as executor
surviving spouse, to inherit the properties of the decedent.

5. — That the present motion is submitted in order not to paralyze the

business of petitioner and the deceased, especially in the purchase and sale of
properties. That proper accounting will be had also in all these transactions.

WHEREFORE, it is most respectfully prayed that, petitioner C. N. Hodges

(Charles Newton Hodges) be allowed or authorized to continue the business in
which he was engaged and to perform acts which he had been doing while
deceased Linnie Jane Hodges was living.
 City of Iloilo, May 27, 1957. (Annex "D", Petition.)

which the respondent court immediately granted in the following order:

It appearing in the urgent ex-parte motion filed by petitioner C. N. Hodges,

that the business in which said petitioner and the deceased were engaged will
be paralyzed, unless and until the Executor is named and appointed by the
Court, the said petitioner is allowed or authorized to continue the business in
which he was engaged and to perform acts which he had been doing while the
deceased was living.

SO ORDERED.

City of Iloilo May 27, 1957. (Annex "E", Petition.)

Under date of December 11, 1957, Hodges filed as such Executor another motion thus:

MOTION TO APPROVE ALL SALES, CONVEYANCES, LEASES, MORTGAGES

THAT THE EXECUTOR HAD MADE FURTHER AND SUBSEQUENT
TRANSACTIONS WHICH THE EXECUTOR MAY DO IN ACCORDANCE WITH THE
LAST WISH OF THE DECEASED LINNIE JANE HODGES.

Comes the Executor in the above-entitled proceedings, thru his undersigned

attorney, to the Hon. Court, most respectfully states:

1. — That according to the last will and testament of the deceased Linnie Jane
Hodges, the executor as the surviving spouse and legatee named in the will of
the deceased; has the right to dispose of all the properties left by the
deceased, portion of which is quoted as follows:

Second: I give, devise and bequeath all of the rest, residue and remainder of
my estate, both personal and real, wherever situated, or located, to my
beloved husband, Charles Newton Hodges, to have and to hold unto him, my
said husband, during his natural lifetime.

Third: I desire, direct and provide that my husband, Charles Newton Hodges,
shall have the right to manage, control, use and enjoy said estate during his
lifetime, and he is hereby given the right to make any changes in the physical
properties of said estate, by sale or any part thereof which he may think best,
and the purchase of any other or additional property as he may think best;
to execute conveyances with or without general or special warranty,
conveying in fee simple or for any other term or time, any property which he
may deem proper to dispose of; to lease any of the real property for oil, gas
and/or other minerals, and all such deeds or leases shall pass the absolute
fee simple title to the interest so conveyed in such property as he may elect
to sell. All rents, emoluments and income from said estate shall belong to
him, and he is further authorized to use any part of the principal of said
estate as he may need or desire. ...

2. — That herein Executor, is not only part owner of the properties left as
conjugal, but also, the successor to all the properties left by the deceased
 Linnie Jane Hodges. That during the lifetime of herein Executor, as Legatee
has the right to sell, convey, lease or dispose of the properties in the
Philippines. That inasmuch as C.N. Hodges was and is engaged in the buy and
sell of real and personal properties, even before the death of Linnie Jane
Hodges, a motion to authorize said C.N. Hodges was filed in Court, to allow
him to continue in the business of buy and sell, which motion was favorably
granted by the Honorable Court.

3. — That since the death of Linnie Jane Hodges, Mr. C.N. Hodges had been
buying and selling real and personal properties, in accordance with the wishes
of the late Linnie Jane Hodges.

4. — That the Register of Deeds for Iloilo, had required of late the herein
Executor to have all the sales, leases, conveyances or mortgages made by
him, approved by the Hon. Court.

5. — That it is respectfully requested, all the sales, conveyances leases and

mortgages executed by the Executor, be approved by the Hon. Court. and
subsequent sales conveyances, leases and mortgages in compliances with the
wishes of the late Linnie Jane Hodges, and within the scope of the terms of
the last will and testament, also be approved;

6. — That the Executor is under obligation to submit his yearly accounts, and
the properties conveyed can also be accounted for, especially the amounts
received.

WHEREFORE, it is most respectfully prayed that, all the sales, conveyances,

leases, and mortgages executed by the Executor, be approved by the Hon.
Court, and also the subsequent sales, conveyances, leases, and mortgages in
consonance with the wishes of the deceased contained in her last will and
testament, be with authorization and approval of the Hon. Court.

City of Iloilo, December 11, 1967.

(Annex "G", Petition.)

which again was promptly granted by the respondent court on December 14, 1957 as
follows:

ORDER

As prayed for by Attorney Gellada, counsel for the Executor for the reasons
stated in his motion dated December 11, 1957, which the Court considers well
taken all the sales, conveyances, leases and mortgages of all properties left
by the deceased Linnie Jane Hodges executed by the Executor Charles N.
Hodges are hereby APPROVED. The said Executor is further authorized to
execute subsequent sales, conveyances, leases and mortgages of the
properties left by the said deceased Linnie Jane Hodges in consonance with
the wishes conveyed in the last will and testament of the latter.

So ordered.
 Iloilo City. December 14, 1957.

(Annex "H", Petition.)

On April 14, 1959, in submitting his first statement of account as Executor for approval,
Hodges alleged:

Pursuant to the provisions of the Rules of Court, herein executor of the

deceased, renders the following account of his administration covering the
period from January 1, 1958 to December 31, 1958, which account may be
found in detail in the individual income tax return filed for the estate of
deceased Linnie Jane Hodges, to wit:

That a certified public accountant has examined the statement of net worth of
the estate of Linnie Jane Hodges, the assets and liabilities, as well as the
income and expenses, copy of which is hereto attached and made integral
part of this statement of account as Annex "A".

IN VIEW OF THE FOREGOING, it is most respectfully prayed that, the

statement of net worth of the estate of Linnie Jane Hodges, the assets and
liabilities, income and expenses as shown in the individual income tax return
for the estate of the deceased and marked as Annex "A", be approved by the
Honorable Court, as substantial compliance with the requirements of the
Rules of Court.

That no person interested in the Philippines of the time and place of

examining the herein accounts be given notice, as herein executor is the only
devisee or legatee of the deceased, in accordance with the last will and
testament already probated by the Honorable court.

City of Iloilo April 14, 1959.

(Annex "I", Petition.)

The respondent court approved this statement of account on April 21, 1959 in its order
worded thus:

Upon petition of Atty. Gellada, in representation of the Executor, the

statement of net worth of the estate of Linnie Jane Hodges, assets and
liabilities, income and expenses as shown in the individual income tax return
for the estate of the deceased and marked as Annex "A" is approved.

SO ORDERED.

City of Iloilo April 21, 1959.

(Annex "J", Petition.)

His accounts for the periods January 1, 1959 to December 31, 1959 and January 1, 1960 to
December 31, 1960 were submitted likewise accompanied by allegations identical mutatis
mutandis to those of April 14, 1959, quoted above; and the respective orders approving the
same, dated July 30, 1960 and May 2, 1961, were substantially identical to the above-
quoted order of April 21, 1959. In connection with the statements of account just
mentioned, the following assertions related thereto made by respondent-appellee Magno in
her brief do not appear from all indications discernible in the record to be disputable:

Under date of April 14, 1959, C.N. Hodges filed his first "Account by the
Executor" of the estate of Linnie Jane Hodges. In the "Statement of Networth
of Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of December 31,
1958 annexed thereto, C.N. Hodges reported that the combined conjugal
estate earned a net income of P328,402.62, divided evenly between him and
the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual
income tax return" for calendar year 1958 on the estate of Linnie Jane
Hodges reporting, under oath, the said estate as having earned income of
P164,201.31, exactly one-half of the net income of his combined personal
assets and that of the estate of Linnie Jane Hodges. (p. 91, Appellee's Brief.)

xxx xxx xxx

Under date of July 21, 1960, C.N. Hodges filed his second "Annual Statement
of Account by the Executor" of the estate of Linnie Jane Hodges. In the
"Statement of Networth of Mr. C.N. Hodges and the Estate of Linnie Jane
Hodges" as of December 31, 1959 annexed thereto, C.N. Hodges reported
that the combined conjugal estate earned a net income of P270,623.32,
divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to
this, he filed an "individual income tax return" for calendar year 1959 on the
estate of Linnie Jane Hodges reporting, under oath, the said estate as having
earned income of P135,311.66, exactly one-half of the net income of his
combined personal assets and that of the estate of Linnie Jane Hodges. (pp.
91-92. Appellee's Brief.)

xxx xxx xxx

Under date of April 20, 1961, C.N. Hodges filed his third "Annual Statement of
Account by the Executor for the Year 1960" of the estate of Linnie Jane
Hodges. In the "Statement of Net Worth of Mr. C.N. Hodges and the Estate of
Linnie Jane Hodges" as of December 31, 1960 annexed thereto, C.N. Hodges
reported that the combined conjugal estate earned a net income of
P314,857.94, divided evenly between him and the estate of Linnie Jane
Hodges. Pursuant to this, he filed an "individual income tax return" for
calendar year 1960 on the estate of Linnie Jane Hodges reporting, under
oath, the said estate as having earned income of P157,428.97, exactly one-
half of the net income of his combined personal assets and that of the estate
of Linnie Jane Hodges. (Pp. 92-93, Appellee's Brief.)

Likewise the following:

In the petition for probate that he (Hodges) filed, he listed the seven brothers
and sisters of Linnie Jane as her "heirs" (see p. 2, Green ROA). The order of
the court admitting the will to probate unfortunately omitted one of the heirs,
Roy Higdon (see p. 14, Green ROA). Immediately, C.N. Hodges filed a verified
motion to have Roy Higdon's name included as an heir, stating that he
wanted to straighten the records "in order the heirs of deceased Roy Higdon
 may not think or believe they were omitted, and that they were really and are
interested in the estate of deceased Linnie Jane Hodges. .

As an executor, he was bound to file tax returns for the estate he was
administering under American law. He did file such as estate tax return on
August 8, 1958. In Schedule "M" of such return, he answered "Yes" to the
question as to whether he was contemplating "renouncing the will". On the
question as to what property interests passed to him as the surviving spouse,
he answered:

"None, except for purposes of administering the Estate, paying

debts, taxes and other legal charges. It is the intention of the
surviving husband of deceased to distribute the remaining
property and interests of the deceased in their Community
estate to the devisees and legatees named in the will when the
debts, liabilities, taxes and expenses of administration are
finally determined and paid."

Again, on August 9, 1962, barely four months before his death, he executed
an "affidavit" wherein he ratified and confirmed all that he stated in Schedule
"M" of his estate tax returns as to his having renounced what was given him
by his wife's will.1

As appointed executor, C.N. Hodges filed an "Inventory" dated May 12, 1958.
He listed all the assets of his conjugal partnership with Linnie Jane Hodges on
a separate balance sheet and then stated expressly that her estate which has
come into his possession as executor was "one-half of all the items" listed in
said balance sheet. (Pp. 89-90, Appellee's Brief.)

Parenthetically, it may be stated, at this juncture, that We are taking pains to quote wholly
or at least, extensively from some of the pleadings and orders whenever We feel that it is
necessary to do so for a more comprehensive and clearer view of the important and decisive
issues raised by the parties and a more accurate appraisal of their respective positions in
regard thereto.

The records of these cases do not show that anything else was done in the above-
mentioned Special Proceedings No. 1307 until December 26, 1962, when on account of the
death of Hodges the day before, the same lawyer, Atty. Leon P. Gellada, who had been
previously acting as counsel for Hodges in his capacity as Executor of his wife's estate, and
as such had filed the aforequoted motions and manifestations, filed the following:

URGENT EX-PARTE MOTION FOR THE APPOINTMENT OF A

SPECIAL ADMINISTRATRIX

COMES the undersigned attorney for the Executor in the above-entitled

proceedings, to the Honorable Court, most respectfully states:

1. That in accordance with the Last Will and Testament of Linnie Jane Hodges
(deceased), her husband, Charles Newton Hodges was to act as Executor, and
in fact, in an order issued by this Hon. Court dated June 28, 1957, the said
Charles Newton Hodges was appointed Executor and had performed the
duties as such.

2. That last December 22, 1962, the said Charles Newton Hodges was
stricken ill, and brought to the Iloilo Mission Hospital for treatment, but
unfortunately, he died on December 25, 1962, as shown by a copy of the
death certificate hereto attached and marked as Annex "A".

3. That in accordance with the provisions of the last will and testament of
Linnie Jane Hodges, whatever real and personal properties that may remain
at the death of her husband Charles Newton Hodges, the said properties shall
be equally divided among their heirs. That there are real and personal
properties left by Charles Newton Hodges, which need to be administered and
taken care of.

4. That the estate of deceased Linnie Jane Hodges, as well as that of Charles
Newton Hodges, have not as yet been determined or ascertained, and there is
necessity for the appointment of a general administrator to liquidate and
distribute the residue of the estate to the heirs and legatees of both spouses.
That in accordance with the provisions of Section 2 of Rule 75 of the Rules of
Court, the conjugal partnership of Linnie Jane Hodges and Charles Newton
Hodges shall be liquidated in the testate proceedings of the wife.

5. That the undersigned counsel, has perfect personal knowledge of the

existence of the last will and testament of Charles Newton Hodges, with
similar provisions as that contained in the last will and testament of Linnie
Jane Hodges. However, said last will and testament of Charles Newton
Hodges is kept inside the vault or iron safe in his office, and will be presented
in due time before this honorable Court.

6. That in the meantime, it is imperative and indispensable that, an

Administratrix be appointed for the estate of Linnie Jane Hodges and a Special
Administratrix for the estate of Charles Newton Hodges, to perform the duties
required by law, to administer, collect, and take charge of the goods, chattels,
rights, credits, and estate of both spouses, Charles Newton Hodges and Linnie
Jane Hodges, as provided for in Section 1 and 2, Rule 81 of the Rules of
Court.

7. That there is delay in granting letters testamentary or of administration,

because the last will and testament of deceased, Charles Newton Hodges, is
still kept in his safe or vault, and in the meantime, unless an administratrix
(and,) at the same time, a Special Administratrix is appointed, the estate of
both spouses are in danger of being lost, damaged or go to waste.

8. That the most trusted employee of both spouses Linnie Jane Hodges and
C.N. Hodges, who had been employed for around thirty (30) years, in the
person of Miss Avelina Magno, (should) be appointed Administratrix of the
estate of Linnie Jane Hodges and at the same time Special Administratrix of
the estate of Charles Newton Hodges. That the said Miss Avelina Magno is of
legal age, a resident of the Philippines, the most fit, competent, trustworthy
and well-qualified person to serve the duties of Administratrix and Special
Administratrix and is willing to act as such.
 9. That Miss Avelina Magno is also willing to file bond in such sum which the
Hon. Court believes reasonable.

WHEREFORE, in view of all the foregoing, it is most respectfully prayed that,

Miss AVELINA A. MAGNO be immediately appointed Administratrix of the
estate of Linnie Jane Hodges and as Special Administratrix of the estate of
Charles Newton Hodges, with powers and duties provided for by law. That the
Honorable Court fix the reasonable bond of P1,000.00 to be filed by Avelina
A. Magno.

(Annex "O", Petition.)

which respondent court readily acted on in its order of even date thus: .

For the reasons alleged in the Urgent Ex-parte Motion filed by counsel for the
Executor dated December 25, 1962, which the Court finds meritorious, Miss
AVELINA A. MAGNO, is hereby appointed Administratrix of the estate of Linnie
Jane Hodges and as Special Administratrix of the estate of Charles Newton
Hodges, in the latter case, because the last will of said Charles Newton
Hodges is still kept in his vault or iron safe and that the real and personal
properties of both spouses may be lost, damaged or go to waste, unless a
Special Administratrix is appointed.

Miss Avelina A. Magno is required to file bond in the sum of FIVE THOUSAND
PESOS (P5,000.00), and after having done so, let letters of Administration be
issued to her." (Annex "P", Petition.)

On December 29, 1962, however, upon urgent ex-parte petition of

respondent Magno herself, thru Atty. Gellada, Harold, R. Davies, "a
representative of the heirs of deceased Charles Newton Hodges (who had)
arrived from the United States of America to help in the administration of the
estate of said deceased" was appointed as Co-Special Administrator of the
estate of Hodges, (pp. 29-33, Yellow - Record on Appeal) only to be replaced
as such co-special administrator on January 22, 1963 by Joe Hodges, who,
according to the motion of the same attorney, is "the nephew of the deceased
(who had) arrived from the United States with instructions from the other
heirs of the deceased to administer the properties or estate of Charles Newton
Hodges in the Philippines, (Pp. 47-50, id.)

Meanwhile, under date of January 9, 1963, the same Atty. Gellada filed in Special
Proceedings 1672 a petition for the probate of the will of Hodges, 2 with a prayer for the
issuance of letters of administration to the same Joe Hodges, albeit the motion was followed
on February 22, 1963 by a separate one asking that Atty. Fernando Mirasol be appointed as
his co-administrator. On the same date this latter motion was filed, the court issued the
corresponding order of probate and letters of administration to Joe Hodges and Atty.
Mirasol, as prayed for.

At this juncture, again, it may also be explained that just as, in her will, Mrs. Hodges
bequeathed her whole estate to her husband "to have and to hold unto him, my said
husband, during his natural lifetime", she, at the same time or in like manner, provided that
"at the death of my said husband — I give devise and bequeath all of the rest, residue and
remainder of my estate, both real and personal, wherever situated or located, to be equally
divided among my brothers and sisters, share and share alike —". Accordingly, it became
incumbent upon Hodges, as executor of his wife's will, to duly liquidate the conjugal
partnership, half of which constituted her estate, in order that upon the eventuality of his
death, "the rest, residue and remainder" thereof could be determined and correspondingly
distributed or divided among her brothers and sisters. And it was precisely because no such
liquidation was done, furthermore, there is the issue of whether the distribution of her
estate should be governed by the laws of the Philippines or those of Texas, of which State
she was a national, and, what is more, as already stated, Hodges made official and sworn
statements or manifestations indicating that as far as he was concerned no "property
interests passed to him as surviving spouse — "except for purposes of administering the
estate, paying debts, taxes and other legal charges" and it was the intention of the
surviving husband of the deceased to distribute the remaining property and interests of the
deceased in their Community Estate to the devisees and legatees named in the will when
the debts, liabilities, taxes and expenses of administration are finally determined and paid",
that the incidents and controversies now before Us for resolution arose. As may be
observed, the situation that ensued upon the death of Hodges became rather unusual and
so, quite understandably, the lower court's actuations presently under review are apparently
wanting in consistency and seemingly lack proper orientation.

Thus, We cannot discern clearly from the record before Us the precise perspective from
which the trial court proceeded in issuing its questioned orders. And, regretably, none of the
lengthy briefs submitted by the parties is of valuable assistance in clearing up the matter.

To begin with, We gather from the two records on appeal filed by petitioner, as appellant in
the appealed cases, one with green cover and the other with a yellow cover, that at the
outset, a sort of modus operandi had been agreed upon by the parties under which the
respective administrators of the two estates were supposed to act conjointly, but since no
copy of the said agreement can be found in the record before Us, We have no way of
knowing when exactly such agreement was entered into and under what specific terms. And
while reference is made to said modus operandi in the order of September 11, 1964, on
pages 205-206 of the Green Record on Appeal, reading thus:

The present incident is to hear the side of administratrix, Miss Avelina A.

Magno, in answer to the charges contained in the motion filed by Atty. Cesar
Tirol on September 3, 1964. In answer to the said charges, Miss Avelina A.
Magno, through her counsel, Atty. Rizal Quimpo, filed a written manifestation.

After reading the manifestation here of Atty. Quimpo, for and in behalf of the
administratrix, Miss Avelina A. Magno, the Court finds that everything that
happened before September 3, 1964, which was resolved on September 8,
1964, to the satisfaction of parties, was simply due to a misunderstanding
between the representative of the Philippine Commercial and Industrial Bank
and Miss Magno and in order to restore the harmonious relations between the
parties, the Court ordered the parties to remain in status quo as to their
modus operandi before September 1, 1964, until after the Court can have a
meeting with all the parties and their counsels on October 3, as formerly
agreed upon between counsels, Attys. Ozaeta, Gibbs and Ozaeta, Attys. Tirol
and Tirol and Atty. Rizal Quimpo.

In the meantime, the prayers of Atty. Quimpo as stated in his manifestation

shall not be resolved by this Court until October 3, 1964.
 SO ORDERED.

there is nothing in the record indicating whatever happened to it afterwards, except that
again, reference thereto was made in the appealed order of October 27, 1965, on pages
292-295 of the Green Record on Appeal, as follows:

On record is an urgent motion to allow PCIB to open all doors and locks in the
Hodges Office at 206-208 Guanco Street, Iloilo City, to take immediate and
exclusive possession thereof and to place its own locks and keys for security
purposes of the PCIB dated October 27, 1965 thru Atty. Cesar Tirol. It is
alleged in said urgent motion that Administratrix Magno of the testate estate
of Linnie Jane Hodges refused to open the Hodges Office at 206-208 Guanco
Street, Iloilo City where PCIB holds office and therefore PCIB is suffering
great moral damage and prejudice as a result of said act. It is prayed that an
order be issued authorizing it (PCIB) to open all doors and locks in the said
office, to take immediate and exclusive possession thereof and place thereon
its own locks and keys for security purposes; instructing the clerk of court or
any available deputy to witness and supervise the opening of all doors and
locks and taking possession of the PCIB.

A written opposition has been filed by Administratrix Magno of even date

(Oct. 27) thru counsel Rizal Quimpo stating therein that she was compelled to
close the office for the reason that the PCIB failed to comply with the order of
this Court signed by Judge Anacleto I. Bellosillo dated September 11, 1964 to
the effect that both estates should remain in status quo to their modus
operandi as of September 1, 1964.

To arrive at a happy solution of the dispute and in order not to interrupt the
operation of the office of both estates, the Court aside from the reasons
stated in the urgent motion and opposition heard the verbal arguments of
Atty. Cesar Tirol for the PCIB and Atty. Rizal Quimpo for Administratix Magno.

After due consideration, the Court hereby orders Magno to open all doors and
locks in the Hodges Office at 206-208 Guanco Street, Iloilo City in the
presence of the PCIB or its duly authorized representative and deputy clerk of
court Albis of this branch not later than 7:30 tomorrow morning October 28,
1965 in order that the office of said estates could operate for business.

Pursuant to the order of this Court thru Judge Bellosillo dated September 11,
1964, it is hereby ordered:

(a) That all cash collections should be deposited in the joint account of the
estates of Linnie Jane Hodges and estates of C.N. Hodges;

(b) That whatever cash collections that had been deposited in the account of
either of the estates should be withdrawn and since then deposited in the
joint account of the estate of Linnie Jane Hodges and the estate of C.N.
Hodges;

(c) That the PCIB should countersign the check in the amount of P250 in favor
of Administratrix Avelina A. Magno as her compensation as administratrix of
 the Linnie Jane Hodges estate chargeable to the testate estate of Linnie Jane
Hodges only;

(d) That Administratrix Magno is hereby directed to allow the PCIB to inspect
whatever records, documents and papers she may have in her possession in
the same manner that Administrator PCIB is also directed to allow
Administratrix Magno to inspect whatever records, documents and papers it
may have in its possession;

(e) That the accountant of the estate of Linnie Jane Hodges shall have access
to all records of the transactions of both estates for the protection of the
estate of Linnie Jane Hodges; and in like manner the accountant or any
authorized representative of the estate of C.N. Hodges shall have access to
the records of transactions of the Linnie Jane Hodges estate for the protection
of the estate of C.N. Hodges.

Once the estates' office shall have been opened by Administratrix Magno in
the presence of the PCIB or its duly authorized representative and deputy
clerk Albis or his duly authorized representative, both estates or any of the
estates should not close it without previous consent and authority from this
court.

SO ORDERED.

As may be noted, in this order, the respondent court required that all collections from the
properties in the name of Hodges should be deposited in a joint account of the two estates,
which indicates that seemingly the so-called modus operandi was no longer operative, but
again there is nothing to show when this situation started.

Likewise, in paragraph 3 of the petitioner's motion of September 14, 1964, on pages 188-
201 of the Green Record on Appeal, (also found on pp. 83-91 of the Yellow Record on
Appeal) it is alleged that:

3. On January 24, 1964 virtually all of the heirs of C.N. Hodges, Joe Hodges
and Fernando P. Mirasol acting as the two co-administrators of the estate of
C.N. Hodges, Avelina A. Magno acting as the administratrix of the estate of
Linnie Jane Hodges and Messrs. William Brown and Ardell Young acting for all
of the Higdon family who claim to be the sole beneficiaries of the estate of
Linnie Jane Hodges and various legal counsel representing the
aforementioned parties entered into an amicable agreement, which was
approved by this Honorable Court, wherein the parties thereto agreed that
certain sums of money were to be paid in settlement of different claims
against the two estates and that the assets (to the extent they existed) of
both estates would be administered jointly by the PCIB as administrator of
the estate of C.N. Hodges and Avelina A. Magno as administratrix of the
estate of Linnie Jane Hodges, subject, however, to the aforesaid October 5,
1963 Motion, namely, the PCIB's claim to exclusive possession and ownership
of one hundred percent (100%) (or, in the alternative, seventy-five percent
(75%) of all assets owned by C.N. Hodges or Linnie Jane Hodges situated in
the Philippines. On February 1, 1964 (pp. 934-935, CFI Rec., S.P. No. 1672)
this Honorable Court amended its order of January 24, 1964 but in no way
changed its recognition of the afore-described basic demand by the PCIB as
 administrator of the estate of C.N. Hodges to one hundred percent (100%) of
the assets claimed by both estates.

but no copy of the mentioned agreement of joint administration of the two estates exists in
the record, and so, We are not informed as to what exactly are the terms of the same which
could be relevant in the resolution of the issues herein.

On the other hand, the appealed order of November 3, 1965, on pages 313-320 of the
Green Record on Appeal, authorized payment by respondent Magno of, inter alia, her own
fees as administratrix, the attorney's fees of her lawyers, etc., as follows:

Administratrix Magno thru Attys. Raul S. Manglapus and Rizal. R. Quimpo filed
a Manifestation and Urgent Motion dated June 10, 1964 asking for the
approval of the Agreement dated June 6, 1964 which Agreement is for the
purpose of retaining their services to protect and defend the interest of the
said Administratrix in these proceedings and the same has been signed by
and bears the express conformity of the attorney-in-fact of the late Linnie
Jane Hodges, Mr. James L. Sullivan. It is further prayed that the
Administratrix of the Testate Estate of Linnie Jane Hodges be directed to pay
the retailers fee of said lawyers, said fees made chargeable as expenses for
the administration of the estate of Linnie Jane Hodges (pp. 1641-1642, Vol.
V, Sp. 1307).

An opposition has been filed by the Administrator PCIB thru Atty. Herminio
Ozaeta dated July 11, 1964, on the ground that payment of the retainers fee
of Attys. Manglapus and Quimpo as prayed for in said Manifestation and
Urgent Motion is prejudicial to the 100% claim of the estate of C. N. Hodges;
employment of Attys. Manglapus and Quimpo is premature and/or
unnecessary; Attys. Quimpo and Manglapus are representing conflicting
interests and the estate of Linnie Jane Hodges should be closed and
terminated (pp. 1679-1684, Vol, V, Sp. 1307).

Atty. Leon P. Gellada filed a memorandum dated July 28, 1964 asking that
the Manifestation and Urgent Motion filed by Attys. Manglapus and Quimpo be
denied because no evidence has been presented in support thereof. Atty.
Manglapus filed a reply to the opposition of counsel for the Administrator of
the C. N. Hodges estate wherein it is claimed that expenses of administration
include reasonable counsel or attorney's fees for services to the executor or
administrator. As a matter of fact the fee agreement dated February 27, 1964
between the PCIB and the law firm of Ozaeta, Gibbs & Ozaeta as its counsel
(Pp. 1280-1284, Vol. V, Sp. 1307) which stipulates the fees for said law firm
has been approved by the Court in its order dated March 31, 1964. If
payment of the fees of the lawyers for the administratrix of the estate of
Linnie Jane Hodges will cause prejudice to the estate of C. N. Hodges, in like
manner the very agreement which provides for the payment of attorney's
fees to the counsel for the PCIB will also be prejudicial to the estate of Linnie
Jane Hodges (pp. 1801-1814, Vol. V, Sp. 1307).

Atty. Herminio Ozaeta filed a rejoinder dated August 10, 1964 to the reply to
the opposition to the Manifestation and Urgent Motion alleging principally that
the estates of Linnie Jane Hodges and C. N. Hodges are not similarly situated
for the reason that C. N. Hodges is an heir of Linnie Jane Hodges whereas the
latter is not an heir of the former for the reason that Linnie Jane Hodges
predeceased C. N. Hodges (pp. 1839-1848, Vol. V, Sp. 1307); that Attys.
Manglapus and Quimpo formally entered their appearance in behalf of
Administratrix of the estate of Linnie Jane Hodges on June 10, 1964 (pp.
1639-1640, Vol. V, Sp. 1307).

Atty. Manglapus filed a manifestation dated December 18, 1964 stating

therein that Judge Bellosillo issued an order requiring the parties to submit
memorandum in support of their respective contentions. It is prayed in this
manifestation that the Manifestation and Urgent Motion dated June 10, 1964
be resolved (pp. 6435-6439, Vol. VII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a counter- manifestation dated
January 5, 1965 asking that after the consideration by the court of all
allegations and arguments and pleadings of the PCIB in connection therewith
(1) said manifestation and urgent motion of Attys. Manglapus and Quimpo be
denied (pp. 6442-6453, Vol. VII, Sp. 1307). Judge Querubin issued an order
dated January 4, 1965 approving the motion dated June 10, 1964 of the
attorneys for the administratrix of the estate of Linnie Jane Hodges and
agreement annexed to said motion. The said order further states: "The
Administratrix of the estate of Linnie Jane Hodges is authorized to issue or
sign whatever check or checks may be necessary for the above purpose and
the administrator of the estate of C. N. Hodges is ordered to countersign the
same. (pp. 6518-6523, Vol VII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a manifestation and motion dated
January 13, 1965 asking that the order of January 4, 1965 which was issued
by Judge Querubin be declared null and void and to enjoin the clerk of court
and the administratrix and administrator in these special proceedings from all
proceedings and action to enforce or comply with the provision of the
aforesaid order of January 4, 1965. In support of said manifestation and
motion it is alleged that the order of January 4, 1965 is null and void because
the said order was never delivered to the deputy clerk Albis of Branch V (the
sala of Judge Querubin) and the alleged order was found in the drawer of the
late Judge Querubin in his office when said drawer was opened on January
13, 1965 after the death of Judge Querubin by Perfecto Querubin, Jr., the son
of the judge and in the presence of Executive Judge Rovira and deputy clerk
Albis (Sec. 1, Rule 36, New Civil Code) (Pp. 6600-6606, Vol. VIII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a motion for reconsideration
dated February 23, 1965 asking that the order dated January 4, 1964 be
reversed on the ground that:

1. Attorneys retained must render services to the estate not to the personal
heir;

2. If services are rendered to both, fees should be pro-rated between them;

3. Attorneys retained should not represent conflicting interests; to the

prejudice of the other heirs not represented by said attorneys;

4. Fees must be commensurate to the actual services rendered to the estate;

 5. There must be assets in the estate to pay for said fees (Pp. 6625-6636,
Vol. VIII, Sp. 1307).

Atty. Quimpo for Administratrix Magno of the estate of Linnie Jane Hodges
filed a motion to submit dated July 15, 1965 asking that the manifestation
and urgent motion dated June 10, 1964 filed by Attys. Manglapus and Quimpo
and other incidents directly appertaining thereto be considered submitted for
consideration and approval (pp. 6759-6765, Vol. VIII, Sp. 1307).

Considering the arguments and reasons in support to the pleadings of both

the Administratrix and the PCIB, and of Atty. Gellada, hereinbefore
mentioned, the Court believes that the order of January 4, 1965 is null and
void for the reason that the said order has not been filed with deputy clerk
Albis of this court (Branch V) during the lifetime of Judge Querubin who
signed the said order. However, the said manifestation and urgent motion
dated June 10, 1964 is being treated and considered in this instant order. It is
worthy to note that in the motion dated January 24, 1964 (Pp. 1149- 1163,
Vol. V, Sp. 1307) which has been filed by Atty. Gellada and his associates and
Atty. Gibbs and other lawyers in addition to the stipulated fees for actual
services rendered. However, the fee agreement dated February 27, 1964,
between the Administrator of the estate of C. N. Hodges and Atty. Gibbs
which provides for retainer fee of P4,000 monthly in addition to specific fees
for actual appearances, reimbursement for expenditures and contingent fees
has also been approved by the Court and said lawyers have already been
paid. (pp. 1273-1279, Vol. V, Sp. Proc. 1307 pp. 1372-1373, Vol. V, Sp. Proc.
1307).

WHEREFORE, the order dated January 4, 1965 is hereby declared null and
void.

The manifestation and motion dated June 10, 1964 which was filed by the
attorneys for the administratrix of the testate estate of Linnie Jane Hodges is
granted and the agreement annexed thereto is hereby approved.

The administratrix of the estate of Linnie Jane Hodges is hereby directed to be

needed to implement the approval of the agreement annexed to the motion
and the administrator of the estate of C. N. Hodges is directed to countersign
the said check or checks as the case may be.

SO ORDERED.

thereby implying somehow that the court assumed the existence of independent but
simultaneous administrations.

Be that as it may, again, it appears that on August 6, 1965, the court, acting on a motion of
petitioner for the approval of deeds of sale executed by it as administrator of the estate of
Hodges, issued the following order, also on appeal herein:

Acting upon the motion for approval of deeds of sale for registered land of the
PCIB, Administrator of the Testate Estate of C. N. Hodges in Sp. Proc. 1672
(Vol. VII, pp. 2244-2245), dated July 16, 1965, filed by Atty. Cesar T. Tirol in
 representation of the law firms of Ozaeta, Gibbs and Ozaeta and Tirol and
Tirol and the opposition thereto of Atty. Rizal R. Quimpo (Vol. VIII, pp. 6811-
6813) dated July 22, 1965 and considering the allegations and reasons
therein stated, the court believes that the deeds of sale should be signed
jointly by the PCIB, Administrator of the Testate Estate of C. N. Hodges and
Avelina A. Magno, Administratrix of the Testate Estate of Linnie Jane Hodges
and to this effect the PCIB should take the necessary steps so that
Administratrix Avelina A. Magno could sign the deeds of sale.

SO ORDERED. (p. 248, Green Record on Appeal.)

Notably this order required that even the deeds executed by petitioner, as administrator of
the Estate of Hodges, involving properties registered in his name, should be co-signed by
respondent Magno.3 And this was not an isolated instance.

In her brief as appellee, respondent Magno states:

After the lower court had authorized appellee Avelina A. Magno to execute
final deeds of sale pursuant to contracts to sell executed by C. N. Hodges on
February 20, 1963 (pp. 45-46, Green ROA), motions for the approval of final
deeds of sale (signed by appellee Avelina A. Magno and the administrator of
the estate of C. N. Hodges, first Joe Hodges, then Atty. Fernando Mirasol and
later the appellant) were approved by the lower court upon petition of
appellee Magno's counsel, Atty. Leon P. Gellada, on the basis of section 8 of
Rule 89 of the Revised Rules of Court. Subsequently, the appellant, after it
had taken over the bulk of the assets of the two estates, started presenting
these motions itself. The first such attempt was a "Motion for Approval of
Deeds of Sale for Registered Land and Cancellations of Mortgages" dated July
21, 1964 filed by Atty. Cesar T. Tirol, counsel for the appellant, thereto
annexing two (2) final deeds of sale and two (2) cancellations of mortgages
signed by appellee Avelina A. Magno and D. R. Paulino, Assistant Vice-
President and Manager of the appellant (CFI Record, Sp. Proc. No. 1307, Vol.
V, pp. 1694-1701). This motion was approved by the lower court on July 27,
1964. It was followed by another motion dated August 4, 1964 for the
approval of one final deed of sale again signed by appellee Avelina A. Magno
and D. R. Paulino (CFI Record, Sp. Proc. No. 1307. Vol. V, pp. 1825-1828),
which was again approved by the lower court on August 7, 1964. The gates
having been opened, a flood ensued: the appellant subsequently filed similar
motions for the approval of a multitude of deeds of sales and cancellations of
mortgages signed by both the appellee Avelina A. Magno and the appellant.

A random check of the records of Special Proceeding No. 1307 alone will show
Atty. Cesar T. Tirol as having presented for court approval deeds of sale of
real properties signed by both appellee Avelina A. Magno and D. R. Paulino in
the following numbers: (a) motion dated September 21, 1964 — 6 deeds of
sale; (b) motion dated November 4, 1964 — 1 deed of sale; (c) motion dated
December 1, 1964 — 4 deeds of sale; (d) motion dated February 3, 1965 — 8
deeds of sale; (f) motion dated May 7, 1965 — 9 deeds of sale. In view of the
very extensive landholdings of the Hodges spouses and the many motions
filed concerning deeds of sale of real properties executed by C. N. Hodges the
lower court has had to constitute special separate expedientes in Special
Proceedings Nos. 1307 and 1672 to include mere motions for the approval of
deeds of sale of the conjugal properties of the Hodges spouses.

As an example, from among the very many, under date of February 3, 1965,
Atty. Cesar T. Tirol, as counsel for the appellant, filed "Motion for Approval of
Deeds of Sale for Registered Land and Cancellations of Mortgages" (CFI
Record, Sp. Proc. No. 1307, Vol. VIII, pp. 6570-6596) the allegations of which
read:

"1. In his lifetime, the late C. N. Hodges executed "Contracts to Sell" real
property, and the prospective buyers under said contracts have already paid
the price and complied with the terms and conditions thereof;

"2. In the course of administration of both estates, mortgage debtors have

already paid their debts secured by chattel mortgages in favor of the late C.
N. Hodges, and are now entitled to release therefrom;

"3. There are attached hereto documents executed jointly by the

Administratrix in Sp. Proc. No. 1307 and the Administrator in Sp. Proc. No.
1672, consisting of deeds of sale in favor —

Fernando Cano, Bacolod City, Occ. Negros

Fe Magbanua, Iloilo City
Policarpio M. Pareno, La Paz, Iloilo City
Rosario T. Libre, Jaro, Iloilo City
Federico B. Torres, Iloilo City
Reynaldo T. Lataquin, La Paz, Iloilo City
Anatolio T. Viray, Iloilo City
Benjamin Rolando, Jaro, Iloilo City

and cancellations of mortgages in favor of —

Pablo Manzano, Oton, Iloilo

Ricardo M. Diana, Dao, San Jose, Antique
Simplicio Tingson, Iloilo City
Amado Magbanua, Pototan, Iloilo
Roselia M. Baes, Bolo, Roxas City
William Bayani, Rizal Estanzuela, Iloilo City
Elpidio Villarete, Molo, Iloilo City
Norma T. Ruiz, Jaro, Iloilo City

"4. That the approval of the aforesaid documents will not

reduce the assets of the estates so as to prevent any creditor
from receiving his full debt or diminish his dividend."

And the prayer of this motion is indeed very revealing:

"WHEREFORE, it is respectfully prayed that, under Rule 89, Section 8 of the

Rules of Court, this honorable court approve the aforesaid deeds of sale and
cancellations of mortgages." (Pp. 113-117, Appellee's Brief.)
None of these assertions is denied in Petitioner's reply brief.

Further indicating lack of concrete perspective or orientation on the part of the respondent
court and its hesitancy to clear up matters promptly, in its other appealed order of
November 23, 1965, on pages 334-335 of the Green Record on Appeal, said respondent
court allowed the movant Ricardo Salas, President of appellee Western Institute of
Technology (successor of Panay Educational Institutions, Inc.), one of the parties with
whom Hodges had contracts that are in question in the appeals herein, to pay petitioner, as
Administrator of the estate of Hodges and/or respondent Magno, as Administrator of the
estate of Mrs. Hodges, thus:

Considering that in both cases there is as yet no judicial declaration of heirs

nor distribution of properties to whomsoever are entitled thereto, the Court
believes that payment to both the administrator of the testate estate of C. N.
Hodges and the administratrix of the testate estate of Linnie Jane Hodges or
to either one of the two estates is proper and legal.

WHEREFORE, movant Ricardo T. Salas can pay to both estates or either of

them.

SO ORDERED.

(Pp. 334-335, Green Record on Appeal.)

On the other hand, as stated earlier, there were instances when respondent Magno was
given authority to act alone. For instance, in the other appealed order of December 19,
1964, on page 221 of the Green Record on Appeal, the respondent court approved
payments made by her of overtime pay to some employees of the court who had helped in
gathering and preparing copies of parts of the records in both estates as follows:

Considering that the expenses subject of the motion to approve payment of

overtime pay dated December 10, 1964, are reasonable and are believed by
this Court to be a proper charge of administration chargeable to the testate
estate of the late Linnie Jane Hodges, the said expenses are hereby
APPROVED and to be charged against the testate estate of the late Linnie
Jane Hodges. The administrator of the testate estate of the late Charles
Newton Hodges is hereby ordered to countersign the check or checks
necessary to pay the said overtime pay as shown by the bills marked Annex
"A", "B" and "C" of the motion.

SO ORDERED.

(Pp. 221-222, Green Record on Appeal.)

Likewise, the respondent court approved deeds of sale executed by respondent Magno
alone, as Administratrix of the estate of Mrs. Hodges, covering properties in the name of
Hodges, pursuant to "contracts to sell" executed by Hodges, irrespective of whether they
were executed by him before or after the death of his wife. The orders of this nature which
are also on appeal herein are the following:
1. Order of March 30, 1966, on p. 137 of the Green Record on Appeal, approving the deed
of sale executed by respondent Magno in favor of appellee Lorenzo Carles on February 24,
1966, pursuant to a "contract to sell" signed by Hodges on June 17, 1958, after the death of
his wife, which contract petitioner claims was cancelled by it for failure of Carles to pay the
installments due on January 7, 1965.

2. Order of April 5, 1966, on pp. 139-140, id., approving the deed of sale executed by
respondent Magno in favor of appellee Salvador Guzman on February 28, 1966 pursuant to
a "contract to sell" signed by Hodges on September 13, 1960, after the death of his wife,
which contract petitioner claims it cancelled on March 3, 1965 in view of failure of said
appellee to pay the installments on time.

3. Order of April 20, 1966, on pp. 167-168, id., approving the deed of sale executed by
respondent Magno in favor of appellee Purificacion Coronado on March 28, 1966 pursuant to
a "contract to sell" signed by Hodges on August 14, 1961, after the death of his wife.

4. Order of April 20, 1966, on pp. 168-169, id., approving the deed of sale executed by
respondent Magno in favor of appellee Florenia Barrido on March 28, 1966, pursuant to a
"contract to sell" signed by Hodges on February 21, 1958, after the death of his wife.

5. Order of June 7, 1966, on pp. 184-185, id., approving the deed of sale executed by
respondent Magno in favor of appellee Belcezar Causing on May 2, 1966, pursuant to a
"contract to sell" signed by Hodges on February 10, 1959, after the death of his wife.

6. Order of June 21, 1966, on pp. 211-212, id., approving the deed of sale executed by
respondent Magno in favor of appellee Artheo Thomas Jamir on June 3, 1966, pursuant to a
"contract to sell" signed by Hodges on May 26, 1961, after the death of his wife.

7. Order of June 21, 1966, on pp. 212-213, id., approving the deed of sale executed by
respondent Magno in favor of appellees Graciano Lucero and Melquiades Batisanan on June
6 and June 3, 1966, respectively, pursuant to "contracts to sell" signed by Hodges on June
9, 1959 and November 27, 1961, respectively, after the death of his wife.

8. Order of December 2, 1966, on pp. 303-304, id., approving the deed of sale executed by
respondent Magno in favor of appellees Espiridion Partisala, Winifredo Espada and Rosario
Alingasa on September 6, 1966, August 17, 1966 and August 3, 1966, respectively,
pursuant to "contracts to sell" signed by Hodges on April 20, 1960, April 18, 1960 and
August 25, 1958, respectively, that is, after the death of his wife.

9. Order of April 5, 1966, on pp. 137-138, id., approving the deed of sale executed by
respondent Magno in favor of appellee Alfredo Catedral on March 2, 1966, pursuant to a
"contract to sell" signed by Hodges on May 29, 1954, before the death of his wife, which
contract petitioner claims it had cancelled on February 16, 1966 for failure of appellee
Catedral to pay the installments due on time.

10. Order of April 5, 1966, on pp. 138-139, id., approving the deed of sale executed by
respondent Magno in favor of appellee Jose Pablico on March 7, 1966, pursuant to a
"contract to sell" signed by Hodges on March 7, 1950, after the death of his wife, which
contract petitioner claims it had cancelled on June 29, 1960, for failure of appellee Pablico
to pay the installments due on time.
11. Order of December 2, 1966, on pp. 303-304, id., insofar as it approved the deed of sale
executed by respondent Magno in favor of appellee Pepito Iyulores on September 6, 1966,
pursuant to a "contract to sell" signed by Hodges on February 5, 1951, before the death of
his wife.

12. Order of January 3, 1967, on pp. 335-336, id., approving three deeds of sale executed
by respondent Magno, one in favor of appellees Santiago Pacaonsis and two in favor of
appellee Adelfa Premaylon on December 5, 1966 and November 3, 1966, respectively,
pursuant to separate "promises to sell" signed respectively by Hodges on May 26, 1955 and
January 30, 1954, before the death of his wife, and October 31, 1959, after her death.

In like manner, there were also instances when respondent court approved deeds of sale
executed by petitioner alone and without the concurrence of respondent Magno, and such
approvals have not been the subject of any appeal. No less than petitioner points this out
on pages 149-150 of its brief as appellant thus:

The points of fact and law pertaining to the two abovecited assignments of
error have already been discussed previously. In the first abovecited error,
the order alluded to was general, and as already explained before, it was, as
admitted by the lower court itself, superseded by the particular orders
approving specific final deeds of sale executed by the appellee, Avelina A.
Magno, which are subject of this appeal, as well as the particular orders
approving specific final deeds of sale executed by the appellant, Philippine
Commercial and Industrial Bank, which were never appealed by the appellee,
Avelina A. Magno, nor by any party for that matter, and which are now
therefore final.

Now, simultaneously with the foregoing incidents, others of more fundamental and all
embracing significance developed. On October 5, 1963, over the signature of Atty. Allison J.
Gibbs in representation of the law firm of Ozaeta, Gibbs & Ozaeta, as counsel for the co-
administrators Joe Hodges and Fernando P. Mirasol, the following self-explanatory motion
was filed:

URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO

ADMINISTRATION OF THE ESTATE OF C. N. HODGES OF ALL OF
THE ASSETS OF THE CONJUGAL PARTNERSHIP OF THE
DECEASED LINNIE JANE HODGES AND C N. HODGES EXISTING
AS OF MAY 23, 1957 PLUS ALL THE RENTS, EMOLUMENTS AND
INCOME THEREFROM.

COMES NOW the co-administrator of the estate of C. N. Hodges, Joe Hodges,

through his undersigned attorneys in the above-entitled proceedings, and to
this Honorable Court respectfully alleges:

(1) On May 23, 1957 Linnie Jane Hodges died in Iloilo City.

(2) On June 28, 1957 this Honorable Court admitted to probate the Last Will
and Testament of the deceased Linnie Jane Hodges executed November 22,
1952 and appointed C. N. Hodges as Executor of the estate of Linnie Jane
Hodges (pp. 24-25, Rec. Sp. Proc. 1307).
 (3) On July 1, 1957 this Honorable Court issued Letters Testamentary to C. N.
Hodges in the Estate of Linnie Jane Hodges (p. 30, Rec. Sp. Proc. 1307).

(4) On December 14, 1957 this Honorable Court, on the basis of the following
allegations in a Motion dated December 11, 1957 filed by Leon P. Gellada as
attorney for the executor C. N. Hodges:

"That herein Executor, (is) not only part owner of the properties
left as conjugal, but also, the successor to all the properties left
by the deceased Linnie Jane Hodges."

(p. 44, Rec. Sp. Proc. 1307; emphasis supplied.)

issued the following order:

"As prayed for by Attorney Gellada, counsel for the

Executory, for the reasons stated in his motion dated December
11, 1957 which the court considers well taken, all the sales,
conveyances, leases and mortgages of all properties left by the
deceased Linnie Jane Hodges are hereby APPROVED. The said
executor is further authorized to execute subsequent sales,
conveyances, leases and mortgages of the properties left by the
said deceased Linnie Jane Hodges in consonance with the
wishes contained in the last will and testament of the latter."

(p. 46, Rec. Sp. Proc. 1307; emphasis supplied.)

(5) On April 21, 1959 this Honorable Court approved the inventory and
accounting submitted by C. N. Hodges through his counsel Leon P. Gellada on
April 14, 1959 wherein he alleged among other things

"That no person interested in the Philippines of the time and

place of examining the herein account, be given notice,
as herein executor is the only devisee or legatee of the
deceased, in accordance with the last will and testament
already probated by the Honorable Court."

(pp. 77-78, Rec. Sp. Proc. 1307; emphasis supplied.).

(6) On July 30, 1960 this Honorable Court approved the "Annual Statement of
Account" submitted by C. N. Hodges through his counsel Leon P. Gellada on
July 21, 1960 wherein he alleged among other things:

"That no person interested in the Philippines of the time and

place of examining the herein account, be given notice
as herein executor is the only devisee or legatee of the
deceased Linnie Jane Hodges, in accordance with the last will
and testament of the deceased, already probated by this
Honorable Court."

(pp. 81-82. Rec. Sp. Proc. 1307; emphasis supplied.)

(7) On May 2, 1961 this Honorable court approved the "Annual Statement of
Account By The Executor for the Year 1960" submitted through Leon P.
Gellada on April 20, 1961 wherein he alleged:

That no person interested in the Philippines be given notice, of

the time and place of examining the herein account, as herein
Executor is the only devisee or legatee of the deceased Linnie
Jane Hodges, in accordance with the last will and testament of
the deceased, already probated by this Honorable Court.

(pp. 90-91. Rec. Sp. Proc. 1307; emphasis supplied.)

(8) On December 25, 1962, C.N. Hodges died.

(9) On December 25, 1962, on the Urgent Ex-parte Motion of Leon P. Gellada
filed only in Special Proceeding No. 1307, this Honorable Court appointed
Avelina A. Magno

"Administratrix of the estate of Linnie Jane Hodges and as Special

Administratrix of the estate of Charles Newton Hodges, in the latter case,
because the last will of said Charles Newton Hodges is still kept in his vault or
iron safe and that the real and personal properties of both spouses may be
lost, damaged or go to waste, unless a Special Administratrix is appointed."

(p. 100. Rec. Sp. Proc. 1307)

(10) On December 26, 1962 Letters of Administration were issued to Avelina

Magno pursuant to this Honorable Court's aforesaid Order of December 25,
1962

"With full authority to take possession of all the property of said

deceased in any province or provinces in which it may be
situated and to perform all other acts necessary for the
preservation of said property, said Administratrix and/or
Special Administratrix having filed a bond satisfactory to the
Court."

(p. 102, Rec. Sp. Proc. 1307)

(11) On January 22, 1963 this Honorable Court on petition of Leon P. Gellada
of January 21, 1963 issued Letters of Administration to:

(a) Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges;

(b) Avelina A. Magno as Special Administratrix of the Estate of Charles

Newton Hodges; and

(c) Joe Hodges as Co-Special Administrator of the Estate of Charles Newton

Hodges.

(p. 43, Rec. Sp. Proc. 1307)

 (12) On February 20, 1963 this Honorable Court on the basis of a motion filed
by Leon P. Gellada as legal counsel on February 16, 1963 for Avelina A.
Magno acting as Administratrix of the Estate of Charles Newton Hodges (pp.
114-116, Sp. Proc. 1307) issued the following order:

"... se autoriza a aquella (Avelina A. Magno) a firmar escrituras

de venta definitiva de propiedades cubiertas por contratos para
vender, firmados, en vida, por el finado Charles Newton
Hodges, cada vez que el precio estipulado en cada contrato
este totalmente pagado. Se autoriza igualmente a la misma a
firmar escrituras de cancelacion de hipoteca tanto de bienes
reales como personales cada vez que la consideracion de cada
hipoteca este totalmente pagada.

"Cada una de dichas escrituras que se otorguen debe ser

sometida para la aprobacion de este Juzgado."

(p. 117, Sp. Proc. 1307).

[Par 1 (c), Reply to Motion For Removal of Joe Hodges]

(13) On September l6, 1963 Leon P. Gellada, acting as attorney for Avelina A.
Magno as Administratrix of the estate of Linnie Jane Hodges, alleges:

3. — That since January, 1963, both estates of Linnie Jane

Hodges and Charles Newton Hodges have been receiving in full,
payments for those "contracts to sell" entered into by C. N.
Hodges during his lifetime, and the purchasers have been
demanding the execution of definite deeds of sale in their favor.

4. — That hereto attached are thirteen (13) copies deeds of

sale executed by the Administratrix and by the co-administrator
(Fernando P. Mirasol) of the estate of Linnie Jane Hodges and
Charles Newton Hodges respectively, in compliance with the
terms and conditions of the respective "contracts to sell"
executed by the parties thereto."

(14) The properties involved in the aforesaid motion of September 16, 1963
are all registered in the name of the deceased C. N. Hodges.

(15) Avelina A. Magno, it is alleged on information and belief, has been

advertising in the newspaper in Iloilo thusly:

For Sale

Testate Estate of Linnie Jane Hodges and Charles Newton Hodges.

All Real Estate or Personal Property will be sold on First Come First Served
Basis.
 Avelin
a A.
Magno
Admini
stratri
x

(16) Avelina A. Magno, it is alleged on information and belief, has paid and
still is paying sums of money to sundry persons.

(17) Joe Hodges through the undersigned attorneys manifested during the
hearings before this Honorable Court on September 5 and 6, 1963 that the
estate of C. N. Hodges was claiming all of the assets belonging to the
deceased spouses Linnie Jane Hodges and C. N. Hodges situated in Philippines
because of the aforesaid election by C. N. Hodges wherein he claimed and
took possession as sole owner of all of said assets during the administration
of the estate of Linnie Jane Hodges on the ground that he was the sole
devisee and legatee under her Last Will and Testament.

(18) Avelina A. Magno has submitted no inventory and accounting of her

administration as Administratrix of the estate of Linnie Jane Hodges and
Special Administratrix of the estate of C. N. Hodges. However, from
manifestations made by Avelina A. Magno and her legal counsel, Leon P.
Gellada, there is no question she will claim that at least fifty per cent (50%)
of the conjugal assets of the deceased spouses and the rents, emoluments
and income therefrom belong to the Higdon family who are named in
paragraphs Fourth and Fifth of the Will of Linnie Jane Hodges (p. 5, Rec. Sp.
Proc. 1307).

WHEREFORE, premises considered, movant respectfully prays that this

Honorable Court, after due hearing, order:

(1) Avelina A. Magno to submit an inventory and accounting of all of the

funds, properties and assets of any character belonging to the deceased
Linnie Jane Hodges and C. N. Hodges which have come into her possession,
with full details of what she has done with them;

(2) Avelina A. Magno to turn over and deliver to the Administrator of the
estate of C. N. Hodges all of the funds, properties and assets of any character
remaining in her possession;

(3) Pending this Honorable Court's adjudication of the aforesaid issues,

Avelina A. Magno to stop, unless she first secures the conformity of Joe
Hodges (or his duly authorized representative, such as the undersigned
attorneys) as the Co-administrator and attorney-in-fact of a majority of the
beneficiaries of the estate of C. N. Hodges:

(a) Advertising the sale and the sale of the properties of the estates:

(b) Employing personnel and paying them any compensation.

 (4) Such other relief as this Honorable Court may deem just and equitable in
the premises. (Annex "T", Petition.)

Almost a year thereafter, or on September 14, 1964, after the co-administrators Joe Hodges
and Fernando P. Mirasol were replaced by herein petitioner Philippine Commercial and
Industrial Bank as sole administrator, pursuant to an agreement of all the heirs of Hodges
approved by the court, and because the above motion of October 5, 1963 had not yet been
heard due to the absence from the country of Atty. Gibbs, petitioner filed the following:

MANIFESTATION AND MOTION, INCLUDING MOTION TO SET

FOR HEARING AND RESOLVE "URGENT MOTION FOR AN
ACCOUNTING AND DELIVERY TO ADMINISTRATORS OF THE
ESTATE OF C. N. HODGES OF ALL THE ASSETS OF THE
CONJUGAL PARTNERSHIP OF THE DECEASED LINNIE JANE
HODGES AND C. N. HODGES EXISTING AS OF MAY 23, 1957
PLUS ALL OF THE RENTS, EMOLUMENTS AND INCOME
THEREFROM OF OCTOBER 5, 1963.

COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred

to as PCIB), the administrator of the estate of C. N. Hodges, deceased, in
Special Proceedings No. 1672, through its undersigned counsel, and to this
Honorable Court respectfully alleges that:

1. On October 5, 1963, Joe Hodges acting as the co-administrator of the

estate of C. N. Hodges filed, through the undersigned attorneys, an "Urgent
Motion For An Accounting and Delivery To Administrator of the Estate of C. N.
Hodges of all Of The Assets Of The Conjugal Partnership of The Deceased
Linnie Jane Hodges and C. N. Hodges Existing as Of May, 23, 1957 Plus All Of
The Rents, Emoluments and Income Therefrom" (pp. 536-542, CFI Rec. S. P.
No. 1672).

2. On January 24, 1964 this Honorable Court, on the basis of an amicable

agreement entered into on January 23, 1964 by the two co-administrators of
the estate of C. N. Hodges and virtually all of the heirs of C. N. Hodges (p.
912, CFI Rec., S. P. No. 1672), resolved the dispute over who should act as
administrator of the estate of C. N. Hodges by appointing the PCIB as
administrator of the estate of C. N. Hodges (pp. 905-906, CFI Rec. S. P. No.
1672) and issuing letters of administration to the PCIB.

3. On January 24, 1964 virtually all of the heirs of C. N. Hodges, Joe Hodges
and Fernando P. Mirasol acting as the two co-administrators of the estate of
C. N. Hodges, Avelina A. Magno acting as the administratrix of the estate of
Linnie Jane Hodges, and Messrs. William Brown and Ardel Young Acting for all
of the Higdon family who claim to be the sole beneficiaries of the estate of
Linnie Jane Hodges and various legal counsel representing the aforenamed
parties entered into an amicable agreement, which was approved by this
Honorable Court, wherein the parties thereto agreed that certain sums of
money were to be paid in settlement of different claims against the two
estates and that the assets (to the extent they existed)of both estates would
be administrated jointly by the PCIB as administrator of the estate of C. N.
Hodges and Avelina A. Magno as administratrix of the estate of Linnie Jane
Hodges, subject, however, to the aforesaid October 5, 1963 Motion, namely,
the PCIB's claim to exclusive possession and ownership of one-hundred
percent (10017,) (or, in the alternative, seventy-five percent [75%] of all
assets owned by C. N. Hodges or Linnie Jane Hodges situated in the
Philippines. On February 1, 1964 (pp. 934-935, CFI Rec., S. P. No. 1672) this
Honorable Court amended its order of January 24, 1964 but in no way
changes its recognition of the aforedescribed basic demand by the PCIB as
administrator of the estate of C. N. Hodges to one hundred percent (100%) of
the assets claimed by both estates.

4. On February 15, 1964 the PCIB filed a "Motion to Resolve" the aforesaid
Motion of October 5, 1963. This Honorable Court set for hearing on June 11,
1964 the Motion of October 5, 1963.

5. On June 11, 1964, because the undersigned Allison J. Gibbs was absent in
the United States, this Honorable Court ordered the indefinite postponement
of the hearing of the Motion of October 5, 1963.

6. Since its appointment as administrator of the estate of C. N. Hodges the

PCIB has not been able to properly carry out its duties and obligations as
administrator of the estate of C. N. Hodges because of the following acts,
among others, of Avelina A. Magno and those who claim to act for her as
administratrix of the estate of Linnie Jane Hodges:

(a) Avelina A. Magno illegally acts as if she is in exclusive

control of all of the assets in the Philippines of both estates
including those claimed by the estate of C. N. Hodges as
evidenced in part by her locking the premises at 206-208
Guanco Street, Iloilo City on August 31, 1964 and refusing to
reopen same until ordered to do so by this Honorable Court on
September 7, 1964.

(b) Avelina A. Magno illegally acts as though she alone may

decide how the assets of the estate of C.N. Hodges should be
administered, who the PCIB shall employ and how much they
may be paid as evidenced in party by her refusal to sign checks
issued by the PCIB payable to the undersigned counsel
pursuant to their fee agreement approved by this Honorable
Court in its order dated March 31, 1964.

(c) Avelina A. Magno illegally gives access to and turns over

possession of the records and assets of the estate of C.N.
Hodges to the attorney-in-fact of the Higdon Family, Mr. James
L. Sullivan, as evidenced in part by the cashing of his personal
checks.

(d) Avelina A. Magno illegally refuses to execute checks

prepared by the PCIB drawn to pay expenses of the estate of C.
N. Hodges as evidenced in part by the check drawn to
reimburse the PCIB's advance of P48,445.50 to pay the 1964
income taxes reported due and payable by the estate of C.N.
Hodges.
7. Under and pursuant to the orders of this Honorable Court, particularly
those of January 24 and February 1, 1964, and the mandate contained in its
Letters of Administration issued on January 24, 1964 to the PCIB, it has

"full authority to take possession of all the

property of the deceased C. N. Hodges

"and to perform all other acts necessary for the preservation of

said property." (p. 914, CFI Rec., S.P. No. 1672.)

8. As administrator of the estate of C. N. Hodges, the PCIB claims the right to

the immediate exclusive possession and control of all of the properties,
accounts receivables, court cases, bank accounts and other assets, including
the documentary records evidencing same, which existed in the Philippines on
the date of C. N. Hodges' death, December 25, 1962, and were in his
possession and registered in his name alone. The PCIB knows of no assets in
the Philippines registered in the name of Linnie Jane Hodges, the estate of
Linnie Jane Hodges, or, C. N. Hodges, Executor of the Estate of Linnie Jane
Hodges on December 25, 1962. All of the assets of which the PCIB has
knowledge are either registered in the name of C. N. Hodges, alone or were
derived therefrom since his death on December 25, 1962.

9. The PCIB as the current administrator of the estate of C. N. Hodges,

deceased, succeeded to all of the rights of the previously duly appointed
administrators of the estate of C. N. Hodges, to wit:

(a) On December 25, 1962, date of C. N. Hodges' death, this

Honorable Court appointed Miss Avelina A. Magno
simultaneously as:

(i) Administratrix of the estate of Linnie Jane Hodges (p. 102,

CFI Rec., S.P. No. 1307) to replace the deceased C. N. Hodges
who on May 28, 1957 was appointed Special Administrator (p.
13. CFI Rec. S.P. No. 1307) and on July 1, 1957 Executor of the
estate of Linnie Jane Hodges (p. 30, CFI Rec., S. P. No. 1307).

(ii) Special Administratrix of the estate of C. N. Hodges (p. 102,

CFI Rec., S.P. No. 1307).

(b) On December 29, 1962 this Honorable Court appointed

Harold K. Davies as co-special administrator of the estate of
C.N. Hodges along with Avelina A. Magno (pp. 108-111, CFI
Rec., S. P. No. 1307).

(c) On January 22, 1963, with the conformity of Avelina A.

Magno, Harold K. Davies resigned in favor of Joe Hodges (pp.
35-36, CFI Rec., S.P. No. 1672) who thereupon was appointed
on January 22, 1963 by this Honorable Court as special co-
administrator of the estate of C.N. Hodges (pp. 38-40 & 43, CFI
Rec. S.P. No. 1672) along with Miss Magno who at that time
 was still acting as special co-administratrix of the estate of C.
N. Hodges.

(d) On February 22, 1963, without objection on the part of

Avelina A. Magno, this Honorable Court appointed Joe Hodges
and Fernando P. Mirasol as co-administrators of the estate of
C.N. Hodges (pp. 76-78, 81 & 85, CFI Rec., S.P. No. 1672).

10. Miss Avelina A. Magno, pursuant to the orders of this Honorable Court of
December 25, 1962, took possession of all Philippine Assets now claimed by
the two estates. Legally, Miss Magno could take possession of the assets
registered in the name of C. N. Hodges alone only in her capacity as Special
Administratrix of the Estate of C.N. Hodges. With the appointment by this
Honorable Court on February 22, 1963 of Joe Hodges and Fernando P. Mirasol
as the co-administrators of the estate of C.N. Hodges, they legally were
entitled to take over from Miss Magno the full and exclusive possession of all
of the assets of the estate of C.N. Hodges. With the appointment on January
24, 1964 of the PCIB as the sole administrator of the estate of C.N. Hodges in
substitution of Joe Hodges and Fernando P. Mirasol, the PCIB legally became
the only party entitled to the sole and exclusive possession of all of the assets
of the estate of C. N. Hodges.

11. The PCIB's predecessors submitted their accounting and this Honorable
Court approved same, to wit:

(a) The accounting of Harold K. Davies dated January 18, 1963

(pp. 16-33, CFI Rec. S.P. No. 1672); which shows or its face
the:

(i) Conformity of Avelina A. Magno acting as "Administratrix of

the Estate of Linnie Jane Hodges and Special Administratrix of
the Estate of C. N. Hodges";

(ii) Conformity of Leslie Echols, a Texas lawyer acting for the

heirs of C.N. Hodges; and

(iii) Conformity of William Brown, a Texas lawyer acting for the

Higdon family who claim to be the only heirs of Linnie Jane
Hodges (pp. 18, 25-33, CFI Rec., S. P. No. 1672).

Note: This accounting was approved by this Honorable Court on January 22,
1963 (p. 34, CFI Rec., S. P. No. 1672).

(b) The accounting of Joe Hodges and Fernando P. Mirasol as of

January 23, 1964, filed February 24, 1964 (pp. 990-1000, CFI
Rec. S.P. No. 1672 and pp. 1806-1848, CFI Rec. S.P. No.
1307).

Note: This accounting was approved by this Honorable Court on March 3,

1964.
 (c) The PCIB and its undersigned lawyers are aware of no
report or accounting submitted by Avelina A. Magno of her acts
as administratrix of the estate of Linnie Jane Hodges or special
administratrix of the estate of C.N. Hodges, unless it is the
accounting of Harold K. Davies as special co-administrator of
the estate of C.N. Hodges dated January 18, 1963 to which
Miss Magno manifested her conformity (supra).

12. In the aforesaid agreement of January 24, 1964, Miss Avelina A. Magno agreed to
receive P10,000.00

"for her services as administratrix of the estate of Linnie Jane

Hodges"

and in addition she agreed to be employed, starting February 1, 1964, at

"a monthly salary of P500.00 for her services as an employee

of both estates."

24 ems.

13. Under the aforesaid agreement of January 24, 1964 and the orders of this
Honorable Court of same date, the PCIB as administrator of the estate of C.
N. Hodges is entitled to the exclusive possession of all records, properties and
assets in the name of C. N. Hodges as of the date of his death on December
25, 1962 which were in the possession of the deceased C. N. Hodges on that
date and which then passed to the possession of Miss Magno in her capacity
as Special Co-Administratrix of the estate of C. N. Hodges or the possession
of Joe Hodges or Fernando P. Mirasol as co-administrators of the estate of C.
N. Hodges.

14. Because of Miss Magno's refusal to comply with the reasonable request of
PCIB concerning the assets of the estate of C. N. Hodges, the PCIB dismissed
Miss Magno as an employee of the estate of C. N. Hodges effective August 31,
1964. On September 1, 1964 Miss Magno locked the premises at 206-208
Guanco Street and denied the PCIB access thereto. Upon the Urgent Motion of
the PCIB dated September 3, 1964, this Honorable Court on September 7,
1964 ordered Miss Magno to reopen the aforesaid premises at 206-208
Guanco Street and permit the PCIB access thereto no later than September 8,
1964.

15. The PCIB pursuant to the aforesaid orders of this Honorable Court is again
in physical possession of all of the assets of the estate of C. N. Hodges.
However, the PCIB is not in exclusive control of the aforesaid records,
properties and assets because Miss Magno continues to assert the claims
hereinabove outlined in paragraph 6, continues to use her own locks to the
doors of the aforesaid premises at 206-208 Guanco Street, Iloilo City and
continues to deny the PCIB its right to know the combinations to the doors of
the vault and safes situated within the premises at 206-208 Guanco Street
despite the fact that said combinations were known to only C. N. Hodges
during his lifetime.
16. The Philippine estate and inheritance taxes assessed the estate of Linnie
Jane Hodges were assessed and paid on the basis that C. N. Hodges is the
sole beneficiary of the assets of the estate of Linnie Jane Hodges situated in
the Philippines. Avelina A. Magno and her legal counsel at no time have
questioned the validity of the aforesaid assessment and the payment of the
corresponding Philippine death taxes.

17. Nothing further remains to be done in the estate of Linnie Jane Hodges
except to resolve the aforesaid Motion of October 5, 1963 and grant the PCIB
the exclusive possession and control of all of the records, properties and
assets of the estate of C. N. Hodges.

18. Such assets as may have existed of the estate of Linnie Jane Hodges were
ordered by this Honorable Court in special Proceedings No. 1307 to be turned
over and delivered to C. N. Hodges alone. He in fact took possession of them
before his death and asserted and exercised the right of exclusive ownership
over the said assets as the sole beneficiary of the estate of Linnie Jane
Hodges.

WHEREFORE, premises considered, the PCIB respectfully petitions that this

Honorable court:

(1) Set the Motion of October 5, 1963 for hearing at the earliest possible date
with notice to all interested parties;

(2) Order Avelina A. Magno to submit an inventory and accounting as

Administratrix of the Estate of Linnie Jane Hodges and Co-Administratrix of
the Estate of C. N. Hodges of all of the funds, properties and assets of any
character belonging to the deceased Linnie Jane Hodges and C. N. Hodges
which have come into her possession, with full details of what she has done
with them;

(3) Order Avelina A. Magno to turn over and deliver to the PCIB as
administrator of the estate of C. N. Hodges all of the funds, properties and
assets of any character remaining in her possession;

(4) Pending this Honorable Court's adjudication of the aforesaid issues, order
Avelina A. Magno and her representatives to stop interferring with the
administration of the estate of C. N. Hodges by the PCIB and its duly
authorized representatives;

(5) Enjoin Avelina A. Magno from working in the premises at 206-208 Guanco
Street, Iloilo City as an employee of the estate of C. N. Hodges and approve
her dismissal as such by the PCIB effective August 31, 1964;

(6) Enjoin James L. Sullivan, Attorneys Manglapus and Quimpo and others
allegedly representing Miss Magno from entering the premises at 206-208
Guanco Street, Iloilo City or any other properties of C. N. Hodges without the
express permission of the PCIB;
 (7) Order such other relief as this Honorable Court finds just and equitable in
the premises. (Annex "U" Petition.)

On January 8, 1965, petitioner also filed a motion for "Official Declaration of Heirs of Linnie
Jane Hodges Estate" alleging:

COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB), as
administrator of the estate of the late C. N. Hodges, through the undersigned counsel, and
to this Honorable Court respectfully alleges that:

1. During their marriage, spouses Charles Newton Hodges and Linnie Jane
Hodges, American citizens originally from the State of Texas, U.S.A., acquired
and accumulated considerable assets and properties in the Philippines and in
the States of Texas and Oklahoma, United States of America. All said
properties constituted their conjugal estate.

2. Although Texas was the domicile of origin of the Hodges spouses, this
Honorable Court, in its orders dated March 31 and December 12, 1964 (CFI
Record, Sp. Proc. No. 1307, pp. ----; Sp. Proc. No. 1672, p. ----), conclusively
found and categorically ruled that said spouses had lived and worked for more
than 50 years in Iloilo City and had, therefore, acquired a domicile of choice
in said city, which they retained until the time of their respective deaths.

3. On November 22, 1952, Linnie Jane Hodges executed in the City of Iloilo
her Last Will and Testament, a copy of which is hereto attached as Annex "A".
The bequests in said will pertinent to the present issue are the second, third,
and fourth provisions, which we quote in full hereunder.

SECOND: I give, devise and bequeath all of the rest, residue

and remainder of my estate, both personal and real, wherever
situated, or located, to my husband, Charles Newton Hodges,
to have and to hold unto him, my said husband during his
natural lifetime.

THIRD: I desire, direct and provide that my husband, Charles

Newton Hodges, shall have the right to manage, control, use
and enjoy said estate during his lifetime, and he is hereby
given the right to make any changes in the physical properties
of said estate by sale of any part thereof which he think best,
and the purchase of any other or additional property as he may
think best; to execute conveyances with or without general or
special warranty, conveying in fee simple or for any other term
or time, any property which he may deem proper to dispose of;
to lease any of the real property for oil, gas and/or other
minerals, and all such deeds or leases shall pass the absolute
fee simple title to the interest so conveyed in such property as
he may elect to sell. All rents, emoluments and income from
said estate shall belong to him, and he is further authorized to
use any part of the principal of said estate as he may need or
desire. It is provided herein, however, that he shall not sell or
otherwise dispose of any of the improved property now owned
by us located at, in or near the City of Lubbock, Texas, but he
 shall have the full right to lease, manage and enjoy the same
during his lifetime, as above provided. He shall have the right
to sub-divide any farmland and sell lots therein, and may sell
unimproved town lots.

FOURTH: At the death of my said husband, Charles Newton

Hodges, I give, devise and bequeath all of the rest, residue and
remainder of my estate both real and personal, wherever
situated or located, to be equally divided among my brothers
and sisters, share and share alike, namely:

"Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon,

Sadie Rascoe, Era Boman and Nimray Higdon."

4. On November 14, 1953, C. N. Hodges executed in the City of Iloilo his Last
Will and Testament, a copy of which is hereto attached as Annex "B ". In said
Will, C. N. Hodges designated his wife, Linnie Jane Hodges, as his beneficiary
using the identical language she used in the second and third provisos of her
Will, supra.

5. On May 23, 1957 Linnie Jane Hodges died in Iloilo City, predeceasing her
husband by more than five (5) years. At the time of her death, she had no
forced or compulsory heir, except her husband, C. N. Hodges. She was
survived also by various brothers and sisters mentioned in her Will (supra),
which, for convenience, we shall refer to as the HIGDONS.

6. On June 28, 1957, this Honorable Court admitted to probate the Last Will
and Testament of the deceased Linnie Jane Hodges (Annex "A"), and
appointed C. N. Hodges as executor of her estate without bond. (CFI Record,
Sp. Proc. No. 1307, pp. 24-25). On July 1, 1957, this Honorable Court issued
letters testamentary to C. N. Hodges in the estate of Linnie Jane Hodges. (CFI
Record, Sp. Proc. No. 1307, p. 30.)

7. The Will of Linnie Jane Hodges, with respect to the order of succession, the
amount of successional rights, and the intrinsic of its testamentary provisions,
should be governed by Philippine laws because:

(a) The testatrix, Linnie Jane Hodges, intended Philippine laws

to govern her Will;

(b) Article 16 of the Civil Code provides that "the national law
of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of
the country wherein said property may be found", shall prevail.
However, the Conflict of Law of Texas, which is the "national
law" of the testatrix, Linnie Jane Hodges, provide that the
domiciliary law (Philippine law — see paragraph 2, supra)
should govern the testamentary dispositions and successional
rights over movables (personal properties), and the law of the
situs of the property (also Philippine law as to properties
located in the Philippines) with regards immovable (real
properties). Thus applying the "Renvoi Doctrine", as approved
 and applied by our Supreme Court in the case of "In The Matter
Of The Testate Estate of Eduard E. Christensen", G.R. No.
L-16749, promulgated January 31, 1963, Philippine law should
apply to the Will of Linnie Jane Hodges and to the successional
rights to her estate insofar as
her movable and immovable assets in the Philippines are
concerned. We shall not, at this stage, discuss what law should
govern the assets of Linnie Jane Hodges located in Oklahoma
and Texas, because the only assets in issue in this motion are
those within the jurisdiction of this motion Court in the two
above-captioned Special Proceedings.

8. Under Philippine and Texas law, the conjugal or community estate of

spouses shall, upon dissolution, be divided equally between them. Thus, upon
the death of Linnie Jane Hodges on May 23, 1957, one-half (1/2) of the
entirety of the assets of the Hodges spouses constituting their conjugal estate
pertained automatically to Charles Newton Hodges, not by way of inheritance,
but in his own right as partner in the conjugal partnership. The other one-half
(1/2) portion of the conjugal estate constituted the estate of Linnie Jane
Hodges. This is the only portion of the conjugal estate capable of inheritance
by her heirs.

9. This one-half (1/2) portion of the conjugal assets pertaining to Linnie Jane
Hodges cannot, under a clear and specific provision of her Will, be enhanced
or increased by income, earnings, rents, or emoluments accruing after her
death on May 23, 1957. Linnie Jane Hodges' Will provides that "all rents,
emoluments and income from said estate shall belong to him (C. N. Hodges)
and he is further authorized to use any part of the principal of said estate as
he may need or desire." (Paragraph 3, Annex "A".) Thus, by specific provision
of Linnie Jane Hodges' Will, "all rents, emoluments and income" must be
credited to the one-half (1/2) portion of the conjugal estate pertaining to C.
N. Hodges. Clearly, therefore, the estate of Linnie Jane Hodges, capable of
inheritance by her heirs, consisted exclusively of no more than one-half (1/2)
of the conjugal estate, computed as of the time of her death on May 23,
1957.

10. Articles 900, 995 and 1001 of the New Civil Code provide that the
surviving spouse of a deceased leaving no ascendants or descendants is
entitled, as a matter of right and by way of irrevocable legitime, to at least
one-half (1/2) of the estate of the deceased, and no testamentary disposition
by the deceased can legally and validly affect this right of the surviving
spouse. In fact, her husband is entitled to said one-half (1/2) portion of her
estate by way of legitime. (Article 886, Civil Code.) Clearly, therefore,
immediately upon the death of Linnie Jane Hodges, C. N. Hodges was the
owner of at least three-fourths (3/4) or seventy-five (75%) percent of all of
the conjugal assets of the spouses, (1/2 or 50% by way of conjugal
partnership share and 1/4 or 25% by way of inheritance and legitime) plus all
"rents, emoluments and income" accruing to said conjugal estate from the
moment of Linnie Jane Hodges' death (see paragraph 9, supra).

11. The late Linnie Jane Hodges designated her husband C.N. Hodges as her
sole and exclusive heir with full authority to do what he pleased, as exclusive
heir and owner of all the assets constituting her estate, except only with
regards certain properties "owned by us, located at, in or near the City of
Lubbock, Texas". Thus, even without relying on our laws of succession and
legitime, which we have cited above, C. N. Hodges, by specific testamentary
designation of his wife, was entitled to the entirely to his wife's estate in the
Philippines.

12. Article 777 of the New Civil Code provides that "the rights of the
successor are transmitted from the death of the decedent". Thus, title to the
estate of Linnie Jane Hodges was transmitted to C. N. Hodges immediately
upon her death on May 23, 1957. For the convenience of this Honorable
Court, we attached hereto as Annex "C" a graph of how the conjugal estate of
the spouses Hodges should be divided in accordance with Philippine law and
the Will of Linnie Jane Hodges.

13. In his capacity as sole heir and successor to the estate of Linnie Jane
Hodges as above-stated, C. N. Hodges, shortly after the death of Linnie Jane
Hodges, appropriated to himself the entirety of her estate. He operated all the
assets, engaged in business and performed all acts in connection with the
entirety of the conjugal estate, in his own name alone, just as he had been
operating, engaging and doing while the late Linnie Jane Hodges was still
alive. Upon his death on December 25, 1962, therefore, all said conjugal
assets were in his sole possession and control, and registered in his name
alone, not as executor, but as exclusive owner of all said assets.

14. All these acts of C. N. Hodges were authorized and sanctioned expressly
and impliedly by various orders of this Honorable Court, as follows:

(a) In an Order dated May 27, 1957, this Honorable Court ruled that C. N.
Hodges "is allowed or authorized to continue the business in which he was
engaged, and to perform acts which he had been doing while the deceased
was living." (CFI Record, Sp. Proc. No. 1307, p. 11.)

(b) On December 14, 1957, this Honorable Court, on the basis of the
following fact, alleged in the verified Motion dated December 11, 1957 filed by
Leon P. Gellada as attorney for the executor C. N. Hodges:

That herein Executor, (is) not only part owner of the properties left as
conjugal, but also, the successor to all the properties left by the deceased
Linnie Jane Hodges.' (CFI Record, Sp. Proc. No. 1307, p. 44; emphasis
supplied.)

issued the following order:

"As prayed for by Attorney Gellada, counsel for the Executor, for the reasons
stated in his motion dated December 11, 1957, which the Court considers well
taken, all the sales, conveyances, leases and mortgages of all the properties
left by the deceased Linnie Jane Hodges executed by the Executor, Charles
Newton Hodges are hereby APPROVED. The said Executor is further
authorized to execute subsequent sales, conveyances, leases and mortgages
of the properties left by the said deceased Linnie Jane Hodges in consonance
with the wishes contained in the last will and testament of the latter." (CFI
Record. Sp. Proc. No. 1307, p. 46; emphasis supplied.)

24 ems

(c) On April 21, 1959, this Honorable Court approved the verified inventory
and accounting submitted by C. N. Hodges through his counsel Leon P.
Gellada on April 14, 1959 wherein he alleged among other things,

"That no person interested in the Philippines of the time and

place of examining the herein account, be given notice, as
herein executor is the only devisee or legatee of the deceased,
in accordance with the last will and testament already probated
by the Honorable Court." (CFI Record, Sp. Proc. No. 1307, pp.
77-78; emphasis supplied.)

(d) On July 20, 1960, this Honorable Court approved the verified "Annual
Statement of Account" submitted by C. N. Hodges through his counsel Leon P.
Gellada on July 21, 1960 wherein he alleged, among other things.

"That no person interested in the Philippines of the time and

place of examining the herein account, be given notice as
herein executor is the only devisee or legatee of the deceased
Linnie Jane Hodges, in accordance with the last will and
testament ofthe deceased, already probated by this Honorable
Court." (CFI Record, Sp. Proc. No. 1307, pp. 81-82; emphasis
supplied.)

(e) On May 2, 1961, this Honorable Court approved the verified "Annual
Statement of Account By The Executor For the Year 1960" submitted through
Leon P. Gellada on April 20, 1961 wherein he alleged:

"That no person interested in the Philippines be given notice, ofthe time and
place of examining the herein account, as herein executor is the only devisee
or legatee of the deceased Linnie Jane Hodges, in accordance with the last
will and testament ofthe deceased, already probated by this Honorable
Court." (CFI Record, Sp. Proc. No. 1307, pp. 90-91; emphasis supplied.)

15. Since C. N. Hodges was the sole and exclusive heir of Linnie Jane Hodges,
not only by law, but in accordance with the dispositions of her will, there was,
in fact, no need to liquidate the conjugal estate of the spouses. The entirely of
said conjugal estate pertained to him exclusively, therefore this Honorable
Court sanctioned and authorized, as above-stated, C. N. Hodges to manage,
operate and control all the conjugal assets as owner.

16. By expressly authorizing C. N. Hodges to act as he did in connection with

the estate of his wife, this Honorable Court has (1) declared C. N. Hodges as
the sole heir of the estate of Linnie Jane Hodges, and (2) delivered and
distributed her estate to C. N. Hodges as sole heir in accordance with the
terms and conditions of her Will. Thus, although the "estate of Linnie Jane
Hodges" still exists as a legal and juridical personality, it had no assets or
properties located in the Philippines registered in its name whatsoever at the
time of the death of C. N. Hodges on December 25, 1962.

17. The Will of Linnie Jane Hodges (Annex "A"), fourth paragraph, provides as
follows:

"At the death of my said husband, Charles Newton Hodges, I

give, devise and bequeath all of the rest, residue and
remainder of my estate both real and personal, wherever
situated or located, to be equally divided among my brothers
and sisters, share and share alike, namely:

"Esta Higdon, Emma Howell, Leonard Higdon,

Roy Higdon, Sadie Rascoe, Era Boman and
Nimray Higdon."

Because of the facts hereinabove set out there is no "rest, residue and
remainder", at least to the extent of the Philippine assets, which remains to
vest in the HIGDONS, assuming this proviso in Linnie Jane Hodges' Will is
valid and binding against the estate of C. N. Hodges.

18. Any claims by the HIGDONS under the above-quoted provision of Linnie
Jane Hodges' Will is without merit because said provision is void and invalid at
least as to the Philippine assets. It should not, in anyway, affect the rights of
the estate of C. N. Hodges or his heirs to the properties, which C. N. Hodges
acquired by way of inheritance from his wife Linnie Jane Hodges upon her
death.

(a) In spite of the above-mentioned provision in the Will of

Linnie Jane Hodges, C. N. Hodges acquired, not merely a
usufructuary right, but absolute title and ownership to her
estate. In a recent case involving a very similar testamentary
provision, the Supreme Court held that the heir first designated
acquired full ownership of the property bequeathed by the will,
not mere usufructuary rights. (Consolacion Florentino de
Crisologo, et al., vs. Manuel Singson, G. R. No. L-13876,
February 28, 1962.)

(b) Article 864, 872 and 886 of the New Civil Code clearly
provide that no charge, condition or substitution whatsoever
upon the legitime can be imposed by a testator. Thus, under
the provisions of Articles 900, 995 and 1001 of the New Civil
Code, the legitime of a surviving spouse is 1/2 of the estate of
the deceased spouse. Consequently, the above-mentioned
provision in the Will of Linnie Jane Hodges is clearly invalid
insofar as the legitime of C. N. Hodges was concerned, which
consisted of 1/2 of the 1/2 portion of the conjugal estate, or
1/4 of the entire conjugal estate of the deceased.

(c) There are generally only two kinds of substitution provided

for and authorized by our Civil Code (Articles 857-870),
namely, (1) simple or common substitution, sometimes
 referred to as vulgar substitution (Article 859), and (2)
fideicommissary substitution (Article 863). All other
substitutions are merely variations of these. The substitution
provided for by paragraph four of the Will of Linnie Jane Hodges
is not fideicommissary substitution, because there is clearly no
obligation on the part of C. N. Hodges as the first heir
designated, to preserve the properties for the substitute heirs.
(Consolacion Florentino de Crisologo et al. vs. Manuel Singson,
G. R. No.
L-13876.) At most, it is a vulgar or simple substitution.
However, in order that a vulgar or simple substitution can be
valid, three alternative conditions must be present, namely,
that the first designated heir (1) should die before the testator;
or (2) should not wish to accept the inheritance; or (3) should
be incapacitated to do so. None of these conditions apply to C.
N. Hodges, and, therefore, the substitution provided for by the
above-quoted provision of the Will is not authorized by the
Code, and, therefore, it is void. Manresa, commenting on these
kisses of substitution, meaningfully stated that: "... cuando el
testador instituyeun primer heredero, y por fallecimiento de
este nombra otro u otros, ha de entenderse que estas segundas
designaciones solo han de llegar a tener efectividad en el caso
de que el primer instituido muera antes que el testador, fuera o
no esta su verdadera intencion. ...". (6 Manresa, 7 a ed., pag.
175.) In other words, when another heir is designated to inherit
upon the death of a first heir, the second designation can have
effect only in case the first instituted heir dies before the
testator, whether or not that was the true intention of said
testator. Since C. N. Hodges did not die before Linnie Jane
Hodges, the provision for substitution contained in Linnie Jane
Hodges' Willis void.

(d) In view of the invalidity of the provision for substitution in

the Will, C. N. Hodges' inheritance to the entirety of the Linnie
Jane Hodges estate is irrevocable and final.

19. Be that as it may, at the time of C. N. Hodges' death, the entirety of the
conjugal estate appeared and was registered in him exclusively as owner.
Thus, the presumption is that all said assets constituted his estate. Therefore
—

(a) If the HIGDONS wish to enforce their dubious rights as substituted heirs
to 1/4 of the conjugal estate (the other 1/4 is covered by the legitime of C. N.
Hodges which can not be affected by any testamentary disposition), their
remedy, if any, is to file their claim against the estate of C. N. Hodges, which
should be entitled at the present time to full custody and control of all the
conjugal estate of the spouses.

(b) The present proceedings, in which two estates exist under separate
administration, where the administratrix of the Linnie Jane Hodges estate
exercises an officious right to object and intervene in matters affecting
exclusively the C. N. Hodges estate, is anomalous.
 WHEREFORE, it is most respectfully prayed that after trial and reception of
evidence, this Honorable Court declare:

1. That the estate of Linnie Jane Hodges was and is composed exclusively of
one-half (1/2) share in the conjugal estate of the spouses Hodges, computed
as of the date of her death on May 23, 1957;

2. That the other half of the conjugal estate pertained exclusively to C. N.

Hodges as his share as partner in the conjugal partnership;

3. That all "rents, emoluments and income" of the conjugal estate accruing
after Linnie Jane Hodges' death pertains to C. N. Hodges;

4. That C. N. Hodges was the sole and exclusive heir of the estate of Linnie
Jane Hodges;

5. That, therefore, the entire conjugal estate of the spouses located in the
Philippines, plus all the "rents, emoluments and income" above-mentioned,
now constitutes the estate of C. N. Hodges, capable of distribution to his heirs
upon termination of Special Proceedings No. 1672;

6. That PCIB, as administrator of the estate of C. N. Hodges, is entitled to full

and exclusive custody, control and management of all said properties; and

7. That Avelina A. Magno, as administratrix of the estate of Linnie Jane

Hodges, as well as the HIGDONS, has no right to intervene or participate in
the administration of the C. N. Hodges estate.

PCIB further prays for such and other relief as may be deemed just and
equitable in the premises."

(Record, pp. 265-277)

Before all of these motions of petitioner could be resolved, however, on December 21,
1965, private respondent Magno filed her own "Motion for the Official Declaration of Heirs of
the Estate of Linnie Jane Hodges" as follows:

COMES NOW the Administratrix of the Estate of Linnie Jane Hodges and,
through undersigned counsel, unto this Honorable Court most respectfully
states and manifests:

1. That the spouses Charles Newton Hodges and Linnie Jane Hodges were
American citizens who died at the City of Iloilo after having amassed and
accumulated extensive properties in the Philippines;

2. That on November 22, 1952, Linnie Jane Hodges executed a last will and
testament (the original of this will now forms part of the records of these
proceedings as Exhibit "C" and appears as Sp. Proc. No. 1307, Folio I, pp. 17-
18);
3. That on May 23, 1957, Linnie Jane Hodges died at the City of Iloilo at the
time survived by her husband, Charles Newton Hodges, and several relatives
named in her last will and testament;

4. That on June 28, 1957, a petition therefor having been priorly filed and
duly heard, this Honorable Court issued an order admitting to probate the last
will and testament of Linnie Jane Hodges (Sp. Proc. No. 1307, Folio I, pp. 24-
25, 26-28);

5. That the required notice to creditors and to all others who may have any
claims against the decedent, Linnie Jane Hodges has already been printed,
published and posted (Sp. Proc. No. 1307, Folio I. pp. 34-40) and the
reglamentary period for filing such claims has long ago lapsed and expired
without any claims having been asserted against the estate of Linnie Jane
Hodges, approved by the Administrator/Administratrix of the said estate, nor
ratified by this Honorable Court;

6. That the last will and testament of Linnie Jane Hodges already admitted to
probate contains an institution of heirs in the following words:

"SECOND: I give, devise and bequeath all of the rest, residue

and remainder of my estate, both personal and real, wherever
situated or located, to my beloved husband, Charles Newton
Hodges to have and to hold unto him, my said husband, during
his natural lifetime.

THIRD: I desire, direct and provide that my husband, Charles

Newton Hodges, shall have the right to manage, control, use
and enjoy said estate during his lifetime, and, he is hereby
given the right to make any changes in the physical properties
of said estate, by sale of any part thereof which he may think
best, and the purchase of any other or additional property as
he may think best; to execute conveyances with or without
general or special warranty, conveying in fee simple or for any
other term or time, any property which he may deem proper to
dispose of; to lease any of the real property for oil, gas and/or
other minerals, and all such deeds or leases shall pass the
absolute fee simple title to the interest so conveyed in such
property as he elect to sell. All rents, emoluments and income
from said estate shall belong to him, and he is further
authorized to use any part of the principal of said estate as he
may need or desire. It is provided herein, however, that he
shall not sell or otherwise dispose of any of the improved
property now owned by us located at, in or near the City of
Lubbock Texas, but he shall have the full right to lease, manage
and enjoy the same during his lifetime, above provided. He
shall have the right to subdivide any farm land and sell lots
therein, and may sell unimproved town lots.

FOURTH: At the death of my said husband, Charles Newton

Hodges, I give, devise and bequeath all of the rest, residue and
remainder of my estate, both real and personal, wherever
 situated or located, to be equally divided among my brothers
and sisters, share and share alike, namely:

Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie

Rascoe, Era Boman and Nimroy Higdon.

FIFTH: In case of the death of any of my brothers and/or

sisters named in item Fourth, above, prior to the death of my
husband, Charles Newton Hodges, then it is my will and
bequest that the heirs of such deceased brother or sister shall
take jointly the share which would have gone to such brother or
sister had she or he survived."

7. That under the provisions of the last will and testament already above-
quoted, Linnie Jane Hodges gave a life-estate or a usufruct over all her estate
to her husband, Charles Newton Hodges, and a vested remainder-estate or
the naked title over the same estate to her relatives named therein;

8. That after the death of Linnie Jane Hodges and after the admission to
probate of her last will and testament, but during the lifetime of Charles
Newton Hodges, the said Charles Newton Hodges with full and complete
knowledge of the life-estate or usufruct conferred upon him by the will since
he was then acting as Administrator of the estate and later as Executor of the
will of Linnie Jane Hodges, unequivocably and clearly through oral and written
declarations and sworn public statements, renounced, disclaimed and
repudiated his life-estate and usufruct over the estate of Linnie Jane Hodges;

9. That, accordingly, the only heirs left to receive the estate of Linnie Jane
Hodges pursuant to her last will and testament, are her named brothers and
sisters, or their heirs, to wit: Esta Higdon, Emma Howell, Leonard Higdon,
Aline Higdon and David Higdon, the latter two being the wife and son
respectively of the deceased Roy Higdon, Sadie Rascoe Era Boman and
Nimroy Higdon, all of legal ages, American citizens, with residence at the
State of Texas, United States of America;

10. That at the time of the death of Linnie Jane Hodges on May 23, 1957, she
was the co-owner (together with her husband Charles Newton Hodges) of an
undivided one-half interest in their conjugal properties existing as of that
date, May 23, 1957, which properties are now being administered sometimes
jointly and sometimes separately by the Administratrix of the estate of Linnie
Jane Hodges and/or the Administrator of the estate of C. N. Hodges but all of
which are under the control and supervision of this Honorable Court;

11. That because there was no separation or segregation of the interests of

husband and wife in the combined conjugal estate, as there has been no such
separation or segregation up to the present, both interests have continually
earned exactly the same amount of "rents, emoluments and income", the
entire estate having been continually devoted to the business of the spouses
as if they were alive;

12. That the one-half interest of Linnie Jane Hodges in the combined conjugal
estate was earning "rents, emoluments and income" until her death on May
23, 1957, when it ceased to be saddled with any more charges or
expenditures which are purely personal to her in nature, and her estate kept
on earning such "rents, emoluments and income" by virtue of their having
been expressly renounced, disclaimed and repudiated by Charles Newton
Hodges to whom they were bequeathed for life under the last will and
testament of Linnie Jane Hodges;

13. That, on the other hand, the one-half interest of Charles Newton Hodges
in the combined conjugal estate existing as of May 23, 1957, while it may
have earned exactly the same amount of "rents, emoluments and income" as
that of the share pertaining to Linnie Jane Hodges, continued to be burdened
by charges, expenditures, and other dispositions which are purely personal to
him in nature, until the death of Charles Newton Hodges himself on December
25, 1962;

14. That of all the assets of the combined conjugal estate of Linnie Jane
Hodges and Charles Newton Hodges as they exist today, the estate of Linnie
Jane Hodges is clearly entitled to a portion more than fifty percent (50%) as
compared to the portion to which the estate of Charles Newton Hodges may
be entitled, which portions can be exactly determined by the following
manner:

a. An inventory must be made of the assets of the combined

conjugal estate as they existed on the death of Linnie Jane
Hodges on May 23, 1957 — one-half of these assets belong to
the estate of Linnie Jane Hodges;

b. An accounting must be made of the "rents, emoluments and

income" of all these assets — again one-half of these belong to
the estate of Linnie Jane Hodges;

c. Adjustments must be made, after making a deduction of

charges, disbursements and other dispositions made by Charles
Newton Hodges personally and for his own personal account
from May 23, 1957 up to December 25, 1962, as well as other
charges, disbursements and other dispositions made for him
and in his behalf since December 25, 1962 up to the present;

15. That there remains no other matter for disposition now insofar as the
estate of Linnie Jane Hodges is concerned but to complete the liquidation of
her estate, segregate them from the conjugal estate, and distribute them to
her heirs pursuant to her last will and testament.

WHEREFORE, premises considered, it is most respectfully moved and prayed

that this Honorable Court, after a hearing on the factual matters raised by
this motion, issue an order:

a. Declaring the following persons, to wit: Esta Higdon, Emma Howell,

Leonard Higdon, Aline Higdon, David Higdon, Sadie Rascoe, Era Boman and
Nimroy Higdon, as the sole heirs under the last will and testament of Linnie
Jane Hodges and as the only persons entitled to her estate;
 b. Determining the exact value of the estate of Linnie Jane Hodges in
accordance with the system enunciated in paragraph 14 of this motion;

c. After such determination ordering its segregation from the combined

conjugal estate and its delivery to the Administratrix of the estate of Linnie
Jane Hodges for distribution to the heirs to whom they properly belong and
appertain.

(Green Record on Appeal, pp. 382-391)

whereupon, instead of further pressing on its motion of January 8, 1965 aforequoted, as it

had been doing before, petitioner withdrew the said motion and in addition to opposing the
above motion of respondent Magno, filed a motion on April 22, 1966 alleging in part that:

1. That it has received from the counsel for the administratrix of the supposed
estate of Linnie Jane Hodges a notice to set her "Motion for Official
Declaration of Heirs of the Estate of Linnie Jane Hodges";

2. That before the aforesaid motion could be heard, there are matters
pending before this Honorable Court, such as:

a. The examination already ordered by this Honorable Court of

documents relating to the allegation of Avelina Magno that
Charles Newton Hodges "through ... written declarations and
sworn public statements, renounced, disclaimed and repudiated
life-estate and usufruct over the estate of Linnie Jane Hodges';

b. That "Urgent Motion for An Accounting and Delivery to the

Estate of C. N. Hodges of All the Assets of the Conjugal
Partnership of the Deceased Linnie Jane Hodges and C. N.
Hodges Existing as of May 23, 1957 Plus All the Rents,
Emoluments and Income Therefrom";

c. Various motions to resolve the aforesaid motion;

d. Manifestation of September 14, 1964, detailing acts of

interference of Avelina Magno under color of title as
administratrix of the Estate of Linnie Jane Hodges;

which are all prejudicial, and which involve no issues of fact, all facts involved
therein being matters of record, and therefore require only the resolution of
questions of law;

3. That whatever claims any alleged heirs or other persons may have could be
very easily threshed out in the Testate Estate of Charles Newton Hodges;

4. That the maintenance of two separate estate proceedings and two

administrators only results in confusion and is unduly burdensome upon the
Testate Estate of Charles Newton Hodges, particularly because the bond filed
by Avelina Magno is grossly insufficient to answer for the funds and property
 which she has inofficiously collected and held, as well as those which she
continues to inofficiously collect and hold;

5. That it is a matter of record that such state of affairs affects and

inconveniences not only the estate but also third-parties dealing with it;"
(Annex "V", Petition.)

and then, after further reminding the court, by quoting them, of the relevant allegations of
its earlier motion of September 14, 1964, Annex U, prayed that:

1. Immediately order Avelina Magno to account for and deliver to the

administrator of the Estate of C. N. Hodges all the assets of the conjugal
partnership of the deceased Linnie Jane Hodges and C. N. Hodges, plus all the
rents, emoluments and income therefrom;

2. Pending the consideration of this motion, immediately order Avelina Magno

to turn over all her collections to the administrator Philippine Commercial &
Industrial Bank;

3. Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307)
closed;

4. Defer the hearing and consideration of the motion for declaration of heirs
in the Testate Estate of Linnie Jane Hodges until the matters hereinabove set
forth are resolved.
(Prayer, Annex "V" of Petition.)

On October 12, 1966, as already indicated at the outset of this opinion, the respondent
court denied the foregoing motion, holding thus:

ORDER

On record is a motion (Vol. X, Sp. 1672, pp. 4379-4390) dated April 22, 1966
of administrator PCIB praying that (1) Immediately order Avelina Magno to
account for and deliver to the administrator of the estate of C. N. Hodges all
assets of the conjugal partnership of the deceased Linnie Jane Hodges and C.
N. Hodges, plus all the rents, emoluments and income therefrom; (2) Pending
the consideration of this motion, immediately order Avelina Magno to turn
over all her collections to the administrator PCIB; (3) Declare the Testate
Estate of Linnie Jane Hodges (Sp. Proc. No. 1307) closed; and (4) Defer the
hearing and consideration of the motion for declaration of heirs in the Testate
Estate of Linnie Jane Hodges until the matters hereinabove set forth are
resolved.

This motion is predicated on the fact that there are matters pending before
this court such as (a) the examination already ordered by this Honorable
Court of documents relating to the allegation of Avelina Magno that Charles
Newton Hodges thru written declaration and sworn public statements
renounced, disclaimed and repudiated his life-estate and usufruct over the
estate of Linnie Jane Hodges (b) the urgent motion for accounting and
delivery to the estate of C. N. Hodges of all the assets of the conjugal
partnership of the deceased Linnie Jane Hodges and C. N. Hodges existing as
of May 23, 1957 plus all the rents, emoluments and income therefrom; (c)
various motions to resolve the aforesaid motion; and (d) manifestation of
September 14, 1964, detailing acts of interference of Avelina Magno under
color of title as administratrix of the estate of Linnie Jane Hodges.

These matters, according to the instant motion, are all pre-judicial involving
no issues of facts and only require the resolution of question of law; that in
the motion of October 5, 1963 it is alleged that in a motion dated December
11, 1957 filed by Atty. Leon Gellada as attorney for the executor C. N.
Hodges, the said executor C. N. Hodges is not only part owner of the
properties left as conjugal but also the successor to all the properties left by
the deceased Linnie Jane Hodges.

Said motion of December 11, 1957 was approved by the Court in consonance
with the wishes contained in the last will and testament of Linnie Jane
Hodges.

That on April 21, 1959 this Court approved the inventory and accounting
submitted by C. N. Hodges thru counsel Atty. Leon Gellada in a motion filed
on April 14, 1959 stating therein that executor C. N. Hodges is the only
devisee or legatee of Linnie Jane Hodges in accordance with the last will and
testament already probated by the Court.

That on July 13, 1960 the Court approved the annual statement of accounts
submitted by the executor C. N. Hodges thru his counsel Atty. Gellada on July
21, 1960 wherein it is stated that the executor, C. N. Hodges is the only
devisee or legatee of the deceased Linnie Jane Hodges; that on May 2, 1961
the Court approved the annual statement of accounts submitted by executor,
C. N. Hodges for the year 1960 which was submitted by Atty. Gellada on April
20, 1961 wherein it is stated that executor Hodges is the only devisee or
legatee of the deceased Linnie Jane Hodges;

That during the hearing on September 5 and 6, 1963 the estate of C. N.

Hodges claimed all the assets belonging to the deceased spouses Linnie Jane
Hodges and C. N. Hodges situated in the Philippines; that administratrix
Magno has executed illegal acts to the prejudice of the testate estate of C. N.
Hodges.

An opposition (Sp. 1672, Vol. X, pp. 4415-4421) dated April 27, 1966 of
administratrix Magno has been filed asking that the motion be denied for lack
of merit and that the motion for the official declaration of heirs of the estate
of Linnie Jane Hodges be set for presentation and reception of evidence.

It is alleged in the aforesaid opposition that the examination of documents

which are in the possession of administratrix Magno can be made prior to the
hearing of the motion for the official declaration of heirs of the estate of
Linnie Jane Hodges, during said hearing.

That the matters raised in the PCIB's motion of October 5, 1963 (as well as
the other motion) dated September 14, 1964 have been consolidated for the
purpose of presentation and reception of evidence with the hearing on the
 determination of the heirs of the estate of Linnie Jane Hodges. It is further
alleged in the opposition that the motion for the official declaration of heirs of
the estate of Linnie Jane Hodges is the one that constitutes a prejudicial
question to the motions dated October 5 and September 14, 1964 because if
said motion is found meritorious and granted by the Court, the PCIB's
motions of October 5, 1963 and September 14, 1964 will become moot and
academic since they are premised on the assumption and claim that the only
heir of Linnie Jane Hodges was C. N. Hodges.

That the PCIB and counsel are estopped from further questioning the
determination of heirs in the estate of Linnie Jane Hodges at this stage since
it was PCIB as early as January 8, 1965 which filed a motion for official
declaration of heirs of Linnie Jane Hodges that the claim of any heirs of Linnie
Jane Hodges can be determined only in the administration proceedings over
the estate of Linnie Jane Hodges and not that of C. N. Hodges, since the heirs
of Linnie Jane Hodges are claiming her estate and not the estate of C. N.
Hodges.

A reply (Sp. 1672, Vol. X, pp. 4436-4444) dated May 11, 1966 of the PCIB
has been filed alleging that the motion dated April 22, 1966 of the PCIB is not
to seek deferment of the hearing and consideration of the motion for official
declaration of heirs of Linnie Jane Hodges but to declare the testate estate of
Linnie Jane Hodges closed and for administratrix Magno to account for and
deliver to the PCIB all assets of the conjugal partnership of the deceased
spouses which has come to her possession plus all rents and income.

A rejoinder (Sp. 1672, Vol. X, pp. 4458-4462) of administratrix Magno dated

May 19, 1966 has been filed alleging that the motion dated December 11,
1957 only sought the approval of all conveyances made by C. N. Hodges and
requested the Court authority for all subsequent conveyances that will be
executed by C. N. Hodges; that the order dated December 14, 1957 only
approved the conveyances made by C. N. Hodges; that C. N. Hodges
represented by counsel never made any claim in the estate of Linnie Jane
Hodges and never filed a motion to declare himself as the heir of the said
Linnie Jane Hodges despite the lapse of more than five (5) years after the
death of Linnie Jane Hodges; that it is further alleged in the rejoinder that
there can be no order of adjudication of the estate unless there has been a
prior express declaration of heirs and so far no declaration of heirs in the
estate of Linnie Jane Hodges (Sp. 1307) has been made.

Considering the allegations and arguments in the motion and of the PCIB as
well as those in the opposition and rejoinder of administratrix Magno, the
Court finds the opposition and rejoinder to be well taken for the reason that
so far there has been no official declaration of heirs in the testate estate of
Linnie Jane Hodges and therefore no disposition of her estate.

WHEREFORE, the motion of the PCIB dated April 22, 1966 is hereby DENIED.
(Annex "W", Petition)

In its motion dated November 24, 1966 for the reconsideration of this order, petitioner
alleged inter alia that:
 It cannot be over-stressed that the motion of December 11, 1957 was based
on the fact that:

a. Under the last will and testament of the deceased, Linnie

Jane Hodges, the late Charles Newton Hodges was the sole heir
instituted insofar as her properties in the Philippines are
concerned;

b. Said last will and testament vested upon the said late
Charles Newton Hodges rights over said properties which, in
sum, spell ownership, absolute and in fee simple;

c. Said late Charles Newton Hodges was, therefore, "not only

part owner of the properties left as conjugal, but also, the
successor to all the properties left by the deceased Linnie Jane
Hodges.

Likewise, it cannot be over-stressed that the aforesaid motion was granted by

this Honorable Court "for the reasons stated" therein.

Again, the motion of December 11, 1957 prayed that not only "all the sales,
conveyances, leases, and mortgages executed by" the late Charles Newton
Hodges, but also all "the subsequent sales, conveyances, leases, and
mortgages ..." be approved and authorized. This Honorable Court, in its order
of December 14, 1957, "for the reasons stated" in the aforesaid motion,
granted the same, and not only approved all the sales, conveyances, leases
and mortgages of all properties left by the deceased Linnie Jane Hodges
executed by the late Charles Newton Hodges, but also authorized "all
subsequent sales, conveyances, leases and mortgages of the properties left
by the said deceased Linnie Jane Hodges. (Annex "X", Petition)

and reiterated its fundamental pose that the Testate Estate of Linnie Jane Hodges had
already been factually, although not legally, closed with the virtual declaration of Hodges
and adjudication to him, as sole universal heir of all the properties of the estate of his wife,
in the order of December 14, 1957, Annex G. Still unpersuaded, on July 18, 1967,
respondent court denied said motion for reconsideration and held that "the court believes
that there is no justification why the order of October 12, 1966 should be considered or
modified", and, on July 19, 1967, the motion of respondent Magno "for official declaration of
heirs of the estate of Linnie Jane Hodges", already referred to above, was set for hearing.

In consequence of all these developments, the present petition was filed on August 1, 1967
(albeit petitioner had to pay another docketing fee on August 9, 1967, since the orders in
question were issued in two separate testate estate proceedings, Nos. 1307 and 1672, in
the court below).

Together with such petition, there are now pending before Us for resolution herein, appeals
from the following:

1. The order of December 19, 1964 authorizing payment by respondent

Magno of overtime pay, (pp. 221, Green Record on Appeal) together with the
subsequent orders of January 9, 1965, (pp. 231-232,id.) October 27, 1965,
 (pp. 227, id.) and February 15, 1966 (pp. 455-456, id.) repeatedly denying
motions for reconsideration thereof.

2. The order of August 6, 1965 (pp. 248, id.) requiring that deeds executed
by petitioner to be co-signed by respondent Magno, as well as the order of
October 27, 1965 (pp. 276-277) denying reconsideration.

3. The order of October 27, 1965 (pp. 292-295, id.) enjoining the deposit of
all collections in a joint account and the same order of February 15, 1966
mentioned in No. 1 above which included the denial of the reconsideration of
this order of October 27, 1965.

4. The order of November 3, 1965 (pp. 313-320, id.) directing the payment of
attorney's fees, fees of the respondent administratrix, etc. and the order of
February 16, 1966 denying reconsideration thereof.

5. The order of November 23, 1965 (pp. 334-335, id.) allowing appellee
Western Institute of Technology to make payments to either one or both of
the administrators of the two estates as well as the order of March 7, 1966
(p. 462, id.) denying reconsideration.

6. The various orders hereinabove earlier enumerated approving deeds of sale

executed by respondent Magno in favor of appellees Carles, Catedral, Pablito,
Guzman, Coronado, Barrido, Causing, Javier, Lucero and Batisanan, (see pp.
35 to 37 of this opinion), together with the two separate orders both dated
December 2, 1966 (pp. 306-308, and pp. 308-309, Yellow Record on Appeal)
denying reconsideration of said approval.

7. The order of January 3, 1967, on pp. 335-336, Yellow Record on Appeal,

approving similar deeds of sale executed by respondent Magno, as those in
No. 6, in favor of appellees Pacaonsis and Premaylon, as to which no motion
for reconsideration was filed.

8. Lastly, the order of December 2, 1966, on pp. 305-306, Yellow Record on

Appeal, directing petitioner to surrender to appellees Lucero, Batisanan,
Javier, Pablito, Barrido, Catedral, Causing, Guzman, and Coronado, the
certificates of title covering the lands involved in the approved sales, as to
which no motion for reconsideration was filed either.

Strictly speaking, and considering that the above orders deal with different matters, just as
they affect distinctly different individuals or persons, as outlined by petitioner in its brief as
appellant on pp. 12-20 thereof, there are, therefore, thirty-three (33) appeals before Us, for
which reason, petitioner has to pay also thirty-one (31) more docket fees.

It is as well perhaps to state here as elsewhere in this opinion that in connection with these
appeals, petitioner has assigned a total of seventy-eight (LXXVIII) alleged errors, the
respective discussions and arguments under all of them covering also the fundamental
issues raised in respect to the petition for certiorari and prohibition, thus making it feasible
and more practical for the Court to dispose of all these cases together.4

The assignments of error read thus:

I to IV

THE ORDER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN

FAVOR OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA,
WINIFREDO C. ESPADA AND ROSARIO ALINGASA, EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY
THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL
COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

V to VIII

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF

THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO
C. ESPADA AND ROSARIO ALINGASA, COVERING PARCELS OF LAND FOR
WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH THE
ORIGINAL CONTRACTS TO SELL.

IX to XII

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP

OVER REAL PROPERTY OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION
PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, WHILE
ACTING AS A PROBATE COURT.

XIII to XV

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN

FAVOR OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO
PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104), EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY
THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL
COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

XVI to XVIII

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF

THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS,
AND ADELFA PREMAYLON (LOT NO. 104) COVERING PARCELS OF LAND FOR
WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH THE
ORIGINAL CONTRACTS TO SELL.

XIX to XXI

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP

OVER REAL PROPERTY OF THE APPELLEES ADELFA PREMAYLON (LOT NO.
102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104)
WHILE ACTING AS A PROBATE COURT.

XXII to XXV
 THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN
FAVOR OF THE APPELLEES LORENZO CARLES, JOSE PABLICO, ALFREDO
CATEDRAL AND SALVADOR S. GUZMAN, EXECUTED BY THE APPELLEE,
AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE
DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL
COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

XXVI to XXIX

THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE

EXECUTED IN FAVOR OF THE APPELLEES, LORENZO CARLES, JOSE PABLICO,
ALFREDO CATEDRAL AND SALVADOR S. GUZMAN PURSUANT TO CONTRACTS
TO SPELL WHICH WERE CANCELLED AND RESCINDED.

XXX to XXXIV

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP

OVER REAL PROPERTY OF THE LORENZO CARLES, JOSE PABLICO, ALFREDO
CATEDRAL AND SALVADOR S. GUZMAN, WHILE ACTING AS A PROBATE
COURT.

XXXV to XXXVI

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN

FAVOR OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION
CORONADO, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING
PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES,
AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM
DURING HIS LIFETIME.

XXXVII to XXXVIII

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF

THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO,
ALTHOUGH THEY WERE IN ARREARS IN THE PAYMENTS AGREED UPON IN
THE ORIGINAL CONTRACT TO SELL WHICH THEY EXECUTED WITH THE
DECEASED, CHARLES NEWTON HODGES, IN THE AMOUNT OF P10,680.00 and
P4,428.90, RESPECTIVELY.

XXXIX to XL

THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES

NEWTON HODGES, OF THE CONTRACTUAL RIGHT, EXERCISED THROUGH HIS
ADMINISTRATOR, THE INSTANT APPELLANT, TO CANCEL THE CONTRACTS TO
SELL OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION
CORONADO.

XLI to XLIII

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN

FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND
 MELQUIADES BATISANAN, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO,
COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON
HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED
BY HIM DURING HIS LIFETIME.

XLIV to XLVI

THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE IN

FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND
MELQUIADES BATISANAN, PURSUANT TO CONTRACTS TO SELL EXECUTED BY
THEM WITH THE DECEASED, CHARLES NEWTON HODGES, THE TERMS AND
CONDITIONS OF WHICH THEY HAVE NEVER COMPLIED WITH.

XLVII to XLIX

THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES

NEWTON HODGES, OF HIS RIGHT, EXERCISED THROUGH HIS
ADMINISTRATION, THE INSTANT APPELLANT, TO CANCEL THE CONTRACTS
TO SELL OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR
AND MELQUIADES BATISANAN, AND IN DETERMINING THE RIGHTS OF THE
SAID APPELLEES OVER REAL PROPERTY WHILE ACTING AS A PROBATE
COURT.

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN

FAVOR OF THE APPELLEE, BELCESAR CAUSING, EXECUTED BY THE APPELLEE,
AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE
DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL
COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

LI

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF

THE APPELLEE, BELCESAR CAUSING, ALTHOUGH HE WAS IN ARREARS IN
THE PAYMENTS AGREED UPON IN THE ORIGINAL CONTRACT TO SELL WHICH
HE EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, IN THE
AMOUNT OF P2,337.50.

LII

THE LOWER COURT ERRED IN APPROVING THE DEED OF SALE IN FAVOR OF

THE APPELLEE, BELCESAR CAUSING, ALTHOUGH THE SAME WAS NOT
EXECUTED IN ACCORDANCE WITH THE RULES OF COURT.

LIII to LXI

THE LOWER COURT ERRED IN ORDERING THE APPELLANT, PHILIPPINE

COMMERCIAL AND INDUSTRIAL BANK TO SURRENDER THE OWNER'S
DUPLICATE CERTIFICATES OF TITLE OVER THE RESPECTIVE LOTS COVERED
BY THE DEEDS OF SALE EXECUTED BY THE APPELLEE, AVELINA A. MAGNO,
 IN FAVOR OF THE OTHER APPELLEES, JOSE PABLICO, ALFREDO CATEDRAL,
SALVADOR S. GUZMAN, FLRENIA BARRIDO, PURIFICACION CORONADO,
BELCESAR CAUSING, ARITEO THOMAS JAMIR, MAXIMA BATISANAN AND
GRACIANO L. LUCERO.

LXII

THE LOWER COURT ERRED IN RESOLVING THE MOTION OF THE APPELLEE,

WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3, 1965,
WITHOUT ANY COPY THEREOF HAVING BEEN SERVED UPON THE APPELLANT,
PHILIPPINE COMMERCIAL & INDUSTRIAL BANK.

LXIII

THE LOWER COURT ERRED IN HEARING AND CONSIDERING THE MOTION OF

THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER
3rd, 1965, ON NOVEMBER 23, 1965, WHEN THE NOTICE FOR THE HEARING
THEREOF WAS FOR NOVEMBER 20, 1965.

LXIV

THE LOWER COURT ERRED IN GRANTING THE APPELLEE, WESTERN

INSTITUTE OF TECHNOLOGY A RELIEF OTHER THAN THAT PRAYED FOR IN
ITS MOTION, DATED NOVEMBER 3, 1965, IN THE ABSENCE OF A PRAYER FOR
GENERAL RELIEF CONTAINED THEREIN.

LXV

THE LOWER COURT ERRED IN ALLOWING THE APPELLEE, WESTERN

INSTITUTE OF TECHNOLOGY, TO CONTINUE PAYMENTS UPON A CONTRACT
TO SELL THE TERMS AND CONDITIONS OF WHICH IT HAS FAILED TO
FULFILL.

LXVI

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF THE APPELLEE,

WESTERN INSTITUTE OF TECHNOLOGY OVER THE REAL PROPERTY SUBJECT
MATTER OF THE CONTRACT TO SELL IT EXECUTED WITH THE DECEASED,
CHARLES NEWTON HODGES, WHILE ACTING AS A PROBATE COURT.

LXVII

LOWER COURT ERRED IN ALLOWING THE CONTINUATION OF PAYMENTS BY

THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, UPON A CONTRACT
TO SELL EXECUTED BY IT AND THE DECEASED, CHARLES NEWTON HODGES,
TO A PERSON OTHER THAN HIS LAWFULLY APPOINTED ADMINISTRATOR.

LXVIII
 THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES
FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES,
WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.

LXIX

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES

OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE
DECEASED, LINNIE JANE HODGES.

LXX

THE LOWER COURT ERRED IN IMPLEMENTING THE ALLEGED AGREEMENT

BETWEEN THE HEIRS OF THE SUPPOSED ESTATE OF THE DECEASED, LINNIE
JANE HODGES, AND THEIR LAWYERS.

LXXI

THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF

ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY
OF RETAINER'S FEES.

LXXII

THE LOWER COURT ERRED IN ORDERING THAT ALL FINAL DEEDS OF SALE
EXECUTED PURSUANT TO CONTRACTS TO SELL ENTERED INTO BY THE
DECEASED, CHARLES NEWTON HODGES, DURING HIS LIFETIME, BE SIGNED
JOINTLY BY THE APPELLEE, AVELINA A. MAGNO, AND THE APPELLANT,
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, AND NOT BY THE LATTER
ONLY AS THE LAWFULLY APPOINTED ADMINISTRATOR OF HIS ESTATE.

LXXIII

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES

FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES,
WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.

LXXIV

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES

OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE
DECEASED, LINNIE JANE HODGES.

LXXV

THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF

ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY
OF LEGAL EXPENSES.

LXXVI
 THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF COMPENSATION
TO THE PURPORTED ADMINISTRATRIX OF THE SUPPOSED ESTATE OF THE
DECEASED, LINNIE JANE HODGES, THE INSTANT APPELLEE, AVELINA A.
MAGNO, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.

LXXVII

THE LOWER COURT ERRED IN ORDERING THAT THE FUNDS OF THE TESTATE
ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, BE PLACED IN A
JOINT ACCOUNT OF THE APPELLANT, PHILIPPINE COMMERCIAL AND
INDUSTRIAL BANK, AND THE APPELLEE, AVELINA A. MAGNO, WHO IS A
COMPLETE STRANGER TO THE AFORESAID ESTATE.

LXXVIII

THE LOWER COURT ERRED IN ORDERING THAT THE APPELLEE, AVELINA A.

MAGNO, BE GIVEN EQUAL ACCESS TO THE RECORDS OF THE TESTATE
ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, WHEN SHE IS A
COMPLETE STRANGER TO THE AFORESAID ESTATE. (Pp. 73-83, Appellant's
Brief.)

To complete this rather elaborate, and unavoidably extended narration of the factual setting
of these cases, it may also be mentioned that an attempt was made by the heirs of Mrs.
Hodges to have respondent Magno removed as administratrix, with the proposed
appointment of Benito J. Lopez in her place, and that respondent court did actually order
such proposed replacement, but the Court declared the said order of respondent court
violative of its injunction of August 8, 1967, hence without force and effect (see Resolution
of September 8, 1972 and February 1, 1973). Subsequently, Atty. Efrain B. Trenas, one of
the lawyers of said heirs, appeared no longer for the proposed administrator Lopez but for
the heirs themselves, and in a motion dated October 26, 1972 informed the Court that a
motion had been filed with respondent court for the removal of petitioner PCIB as
administrator of the estate of C. N. Hodges in Special Proceedings 1672, which removal
motion alleged that 22.968149% of the share of C. N. Hodges had already been acquired by
the heirs of Mrs. Hodges from certain heirs of her husband. Further, in this connection, in
the answer of PCIB to the motion of respondent Magno to have it declared in contempt for
disregarding the Court's resolution of September 8, 1972 modifying the injunction of August
8, 1967, said petitioner annexed thereto a joint manifestation and motion, appearing to
have been filed with respondent court, informing said court that in addition to the fact that
22% of the share of C. N. Hodges had already been bought by the heirs of Mrs. Hodges, as
already stated, certain other heirs of Hodges representing 17.343750% of his estate were
joining cause with the heirs of Mrs. Hodges as against PCIB, thereby making somewhat
precarious, if not possibly untenable, petitioners' continuation as administrator of the
Hodges estate.

RESOLUTION OF ISSUES IN THE CERTIORARI AND

PROHIBITION CASES

As to the Alleged Tardiness

of the Present Appeals
The priority question raised by respondent Magno relates to the alleged tardiness of all the
aforementioned thirty-three appeals of PCIB. Considering, however, that these appeals
revolve around practically the same main issues and that it is admitted that some of them
have been timely taken, and, moreover, their final results hereinbelow to be stated and
explained make it of no consequence whether or not the orders concerned have become
final by the lapsing of the respective periods to appeal them, We do not deem it necessary
to pass upon the timeliness of any of said appeals.

II

The Propriety Here of Certiorari and

Prohibition instead of Appeal

The other preliminary point of the same respondent is alleged impropriety of the special civil
action of certiorari and prohibition in view of the existence of the remedy of appeal which it
claims is proven by the very appeals now before Us. Such contention fails to take into
account that there is a common thread among the basic issues involved in all these thirty-
three appeals which, unless resolved in one single proceeding, will inevitably cause the
proliferation of more or less similar or closely related incidents and consequent eventual
appeals. If for this consideration alone, and without taking account anymore of the
unnecessary additional effort, expense and time which would be involved in as many
individual appeals as the number of such incidents, it is logical and proper to hold, as We do
hold, that the remedy of appeal is not adequate in the present cases. In determining
whether or not a special civil action of certiorari or prohibition may be resorted to in lieu of
appeal, in instances wherein lack or excess of jurisdiction or grave abuse of discretion is
alleged, it is not enough that the remedy of appeal exists or is possible. It is indispensable
that taking all the relevant circumstances of the given case, appeal would better serve the
interests of justice. Obviously, the longer delay, augmented expense and trouble and
unnecessary repetition of the same work attendant to the present multiple appeals, which,
after all, deal with practically the same basic issues that can be more expeditiously resolved
or determined in a single special civil action, make the remedies of certiorari and
prohibition, pursued by petitioner, preferable, for purposes of resolving the common basic
issues raised in all of them, despite the conceded availability of appeal. Besides, the settling
of such common fundamental issues would naturally minimize the areas of conflict between
the parties and render more simple the determination of the secondary issues in each of
them. Accordingly, respondent Magno's objection to the present remedy of certiorariand
prohibition must be overruled.

We come now to the errors assigned by petitioner-appellant, Philippine Commercial &

Industrial Bank, (PCIB, for short) in the petition as well as in its main brief as appellant.

III

On Whether or Not There is Still Any Part of the Testate

Estate Mrs. Hodges that may be Adjudicated to her brothers
and sisters as her estate, of which respondent Magno is the
unquestioned Administratrix in special Proceedings 1307.

In the petition, it is the position of PCIB that the respondent court exceeded its jurisdiction
or gravely abused its discretion in further recognizing after December 14, 1957 the
existence of the Testate Estate of Linnie Jane Hodges and in sanctioning purported acts of
administration therein of respondent Magno. Main ground for such posture is that by the
aforequoted order of respondent court of said date, Hodges was already allowed to assert
and exercise all his rights as universal heir of his wife pursuant to the provisions of her will,
quoted earlier, hence, nothing else remains to be done in Special Proceedings 1307 except
to formally close it. In other words, the contention of PCIB is that in view of said order,
nothing more than a formal declaration of Hodges as sole and exclusive heir of his wife and
the consequent formal unqualified adjudication to him of all her estate remain to be done to
completely close Special Proceedings 1307, hence respondent Magno should be considered
as having ceased to be Administratrix of the Testate Estate of Mrs. Hodges since then.

After carefully going over the record, We feel constrained to hold that such pose is patently
untenable from whatever angle it is examined.

To start with, We cannot find anywhere in respondent Order of December 14, 1957 the
sense being read into it by PCIB. The tenor of said order bears no suggestion at all to such
effect. The declaration of heirs and distribution by the probate court of the estate of a
decedent is its most important function, and this Court is not disposed to encourage judges
of probate proceedings to be less than definite, plain and specific in making orders in such
regard, if for no other reason than that all parties concerned, like the heirs, the creditors,
and most of all the government, the devisees and legatees, should know with certainty what
are and when their respective rights and obligations ensuing from the inheritance or in
relation thereto would begin or cease, as the case may be, thereby avoiding precisely the
legal complications and consequent litigations similar to those that have developed
unnecessarily in the present cases. While it is true that in instances wherein all the parties
interested in the estate of a deceased person have already actually distributed among
themselves their respective shares therein to the satisfaction of everyone concerned and no
rights of creditors or third parties are adversely affected, it would naturally be almost
ministerial for the court to issue the final order of declaration and distribution, still it is
inconceivable that the special proceeding instituted for the purpose may be considered
terminated, the respective rights of all the parties concerned be deemed definitely settled,
and the executor or administrator thereof be regarded as automatically discharged and
relieved already of all functions and responsibilities without the corresponding definite
orders of the probate court to such effect.

Indeed, the law on the matter is specific, categorical and unequivocal. Section 1 of Rule 90
provides:

SECTION 1. When order for distribution of residue made. — When the debts,
funeral charges, and expenses of administration, the allowance to the widow
and inheritance tax, if any, chargeable to the estate in accordance with law
have been paid, the court, on the application of the executor or administrator,
or of a person interested in the estate, and after hearing upon notice, shall
assign the residue of the estate to the persons entitled to the same, naming
them and the proportions, or parts, to which each is entitled, and such
persons may demand and recover their respective shares from the executor
or administrator, or any other person having the same in his possession. If
there is a controversy before the court as to who are the lawful heirs of the
deceased person or as to the distributive shares to which each person is
entitled under the law, the controversy shall be heard and decided as in
ordinary cases.

No distribution shall be allowed until the payment of the obligations above

mentioned has been made or provided for, unless the distributees, or any of
 them give a bond, in a sum to be fixed by the court, conditioned for the
payment of said obligations within such time as the court directs.

These provisions cannot mean anything less than that in order that a proceeding for the
settlement of the estate of a deceased may be deemed ready for final closure, (1) there
should have been issued already an order of distribution or assignment of the estate of the
decedent among or to those entitled thereto by will or by law, but (2) such order shall not
be issued until after it is shown that the "debts, funeral expenses, expenses of
administration, allowances, taxes, etc. chargeable to the estate" have been paid, which is
but logical and proper. (3) Besides, such an order is usually issued upon proper and specific
application for the purpose of the interested party or parties, and not of the court.

... it is only after, and not before, the payment of all debts, funeral charges,
expenses of administration, allowance to the widow, and inheritance tax shall
have been effected that the court should make a declaration of heirs or of
such persons as are entitled by law to the residue. (Moran, Comments on the
Rules of Court, 2nd ed., Vol. II, p. 397, citing Capistrano vs. Nadurata, 49
Phil., 726; Lopez vs. Lopez, 37 Off. Gaz., 3091.) (JIMOGA-ON v. BELMONTE,
84 Phil. 545, 548) (p. 86, Appellee's Brief)

xxx xxx xxx

Under Section 753 of the Code of Civil Procedure, (corresponding to Section

1, Rule 90) what brings an intestate (or testate) proceeding to a close is the
order of distribution directing delivery of the residue to the persons entitled
thereto after paying the indebtedness, if any, left by the deceased.
(Santiesteban vs. Santiesteban, 68 Phil. 367, 370.)

In the cases at bar, We cannot discern from the voluminous and varied facts, pleadings and
orders before Us that the above indispensable prerequisites for the declaration of heirs and
the adjudication of the estate of Mrs. Hodges had already been complied with when the
order of December 14, 1957 was issued. As already stated, We are not persuaded that the
proceedings leading to the issuance of said order, constituting barely of the motion of May
27, 1957, Annex D of the petition, the order of even date, Annex E, and the motion of
December 11, 1957, Annex H, all aforequoted, are what the law contemplates. We cannot
see in the order of December 14, 1957, so much relied upon by the petitioner, anything
more than an explicit approval of "all the sales, conveyances, leases and mortgages of all
the properties left by the deceased Linnie Jane Hodges executed by the Executor Charles N.
Hodges" (after the death of his wife and prior to the date of the motion), plus a general
advance authorization to enable said "Executor — to execute subsequent sales,
conveyances, leases and mortgages of the properties left the said deceased Linnie Jane
Hodges in consonance with wishes conveyed in the last will and testament of the latter",
which, certainly, cannot amount to the order of adjudication of the estate of the decedent to
Hodges contemplated in the law. In fact, the motion of December 11, 1957 on which the
court predicated the order in question did not pray for any such adjudication at all. What is
more, although said motion did allege that "herein Executor (Hodges) is not only part owner
of the properties left as conjugal, but also, the successor to all the properties left by the
deceased Linnie Jane Hodges", it significantly added that "herein Executor, as Legatee (sic),
has the right to sell, convey, lease or dispose of the properties in the Philippines — during
his lifetime", thereby indicating that what said motion contemplated was nothing more than
either the enjoyment by Hodges of his rights under the particular portion of the dispositions
of his wife's will which were to be operative only during his lifetime or the use of his own
share of the conjugal estate, pending the termination of the proceedings. In other words,
the authority referred to in said motions and orders is in the nature of that contemplated
either in Section 2 of Rule 109 which permits, in appropriate cases, advance or partial
implementation of the terms of a duly probated will before final adjudication or distribution
when the rights of third parties would not be adversely affected thereby or in the
established practice of allowing the surviving spouse to dispose of his own share of he
conjugal estate, pending its final liquidation, when it appears that no creditors of the
conjugal partnership would be prejudiced thereby, (see the Revised Rules of Court by
Francisco, Vol. V-B, 1970 ed. p. 887) albeit, from the tenor of said motions, We are more
inclined to believe that Hodges meant to refer to the former. In any event, We are fully
persuaded that the quoted allegations of said motions read together cannot be construed as
a repudiation of the rights unequivocally established in the will in favor of Mrs. Hodges'
brothers and sisters to whatever have not been disposed of by him up to his death.

Indeed, nowhere in the record does it appear that the trial court subsequently acted upon
the premise suggested by petitioner. On the contrary, on November 23, 1965, when the
court resolved the motion of appellee Western Institute of Technology by its order We have
quoted earlier, it categorically held that as of said date, November 23, 1965, "in both cases
(Special Proceedings 1307 and 1672) there is as yet no judicial declaration of heirs nor
distribution of properties to whomsoever are entitled thereto." In this connection, it may be
stated further against petitioner, by way of some kind of estoppel, that in its own motion of
January 8, 1965, already quoted in full on pages 54-67 of this decision, it prayed inter
alia that the court declare that "C. N. Hodges was the sole and exclusive heir of the estate
of Linnie Jane Hodges", which it would not have done if it were really convinced that the
order of December 14, 1957 was already the order of adjudication and distribution of her
estate. That said motion was later withdrawn when Magno filed her own motion for
determination and adjudication of what should correspond to the brothers and sisters of
Mrs. Hodges does not alter the indubitable implication of the prayer of the withdrawn
motion.

It must be borne in mind that while it is true that Mrs. Hodges bequeathed her whole estate
to her husband and gave him what amounts to full powers of dominion over the same
during his lifetime, she imposed at the same time the condition that whatever should
remain thereof upon his death should go to her brothers and sisters. In effect, therefore,
what was absolutely given to Hodges was only so much of his wife's estate as he might
possibly dispose of during his lifetime; hence, even assuming that by the allegations in his
motion, he did intend to adjudicate the whole estate to himself, as suggested by petitioner,
such unilateral act could not have affected or diminished in any degree or manner the right
of his brothers and sisters-in-law over what would remain thereof upon his death, for
surely, no one can rightly contend that the testamentary provision in question allowed him
to so adjudicate any part of the estate to himself as to prejudice them. In other words,
irrespective of whatever might have been Hodges' intention in his motions, as Executor, of
May 27, 1957 and December 11, 1957, the trial court's orders granting said motions, even
in the terms in which they have been worded, could not have had the effect of an absolute
and unconditional adjudication unto Hodges of the whole estate of his wife. None of them
could have deprived his brothers and sisters-in-law of their rights under said will. And it
may be added here that the fact that no one appeared to oppose the motions in question
may only be attributed, firstly, to the failure of Hodges to send notices to any of them, as
admitted in the motion itself, and, secondly, to the fact that even if they had been notified,
they could not have taken said motions to be for the final distribution and adjudication of
the estate, but merely for him to be able, pending such final distribution and adjudication,
to either exercise during his lifetime rights of dominion over his wife's estate in accordance
with the bequest in his favor, which, as already observed, may be allowed under the broad
terms of Section 2 of Rule 109, or make use of his own share of the conjugal estate. In any
event, We do not believe that the trial court could have acted in the sense pretended by
petitioner, not only because of the clear language of the will but also because none of the
interested parties had been duly notified of the motion and hearing thereof. Stated
differently, if the orders of May 27, 1957 and December 4, 1957 were really intended to be
read in the sense contended by petitioner, We would have no hesitancy in declaring them
null and void.

Petitioner cites the case of Austria vs. Ventenilla, G. R. No. L-10018, September 19, 1956,
(unreported but a partial digest thereof appears in 99 Phil. 1069) in support of its insistence
that with the orders of May 27 and December 14, 1957, the closure of Mrs. Hodges' estate
has become a mere formality, inasmuch as said orders amounted to the order of
adjudication and distribution ordained by Section 1 of Rule 90. But the parallel attempted to
be drawn between that case and the present one does not hold. There the trial court had in
fact issued a clear, distinct and express order of adjudication and distribution more than
twenty years before the other heirs of the deceased filed their motion asking that the
administratrix be removed, etc. As quoted in that decision, the order of the lower court in
that respect read as follows:

En orden a la mocion de la administradora, el juzgado la encuentra

procedente bajo la condicion de que no se hara entrega ni adjudicacion de los
bienes a los herederos antes de que estos presten la fianza correspondiente y
de acuerdo con lo prescrito en el Art. 754 del Codigo de Procedimientos:
pues, en autos no aparece que hayan sido nombrados comisionados de
avaluo y reclamaciones. Dicha fianza podra ser por un valor igual al de los
bienes que correspondan a cada heredero segun el testamento. Creo que no
es obice para la terminacion del expediente el hecho de que la administradora
no ha presentado hasta ahora el inventario de los bienes; pues, segun la ley,
estan exentos de esta formalidad os administradores que son legatarios del
residuo o remanente de los bienes y hayan prestado fianza para responder de
las gestiones de su cargo, y aparece en el testamento que la administradora
Alejandra Austria reune dicha condicion.

POR TODO LO EXPUESTO, el juzgado declara, 1.o: no haber lugar a la mocion

de Ramon Ventenilla y otros; 2.o, declara asimismo que los unicos herederos
del finado Antonio Ventenilla son su esposa Alejandra Austria, Maria
Ventenilla, hermana del testador, y Ramon Ventenilla, Maria Ventenilla,
Ramon Soriano, Eulalio Soriano, Jose Soriano, Gabriela Ventenilla, Lorenzo
Ventenilla, Felicitas Ventenilla, Eugenio Ventenilla y Alejandra Ventenilla, en
representacion de los difuntos Juan, Tomas, Catalino y Froilan, hermanos del
testador, declarando, ademas que la heredera Alejandra Austria tiene derecho
al remanente de todos los bienes dejados por el finado, despues de deducir
de ellos la porcion que corresponde a cada uno de sus coherederos, conforme
esta mandado en las clausulas 8.a, 9.a, 10.a, 11.a, 12.a y 13.a del
testamento; 3.o, se aprueba el pago hecho por la administradora de los
gastos de la ultima enfermedad y funerales del testador, de la donacion hecha
por el testador a favor de la Escuela a Publica del Municipio de Mangatarem, y
de las misas en sufragio del alma del finado; 4.o, que una vez prestada la
fianza mencionada al principio de este auto, se haga la entrega y adjudicacion
de los bienes, conforme se dispone en el testamento y se acaba de declarar
en este auto; 5.o, y, finalmente, que verificada la adjudicacion, se dara por
 terminada la administracion, revelandole toda responsabilidad a la
administradora, y cancelando su fianza.

ASI SE ORDENA.

Undoubtedly, after the issuance of an order of such tenor, the closure of any proceedings
for the settlement of the estate of a deceased person cannot be but perfunctory.

In the case at bar, as already pointed out above, the two orders relied upon by petitioner do
not appear ex-facie to be of the same tenor and nature as the order just quoted, and, what
is more, the circumstances attendant to its issuance do not suggest that such was the
intention of the court, for nothing could have been more violative of the will of Mrs. Hodges.

Indeed, to infer from Hodges' said motions and from his statements of accounts for the
years 1958, 1959 and 1960, A Annexes I, K and M, respectively, wherein he repeatedly
claimed that "herein executor (being) the only devisee or legatee of the deceased, in
accordance with the last will and testament already probated," there is "no (other) person
interested in the Philippines of the time and place of examining herein account to be given
notice", an intent to adjudicate unto himself the whole of his wife's estate in an absolute
manner and without regard to the contingent interests of her brothers and sisters, is to
impute bad faith to him, an imputation which is not legally permissible, much less warranted
by the facts of record herein. Hodges knew or ought to have known that, legally speaking,
the terms of his wife's will did not give him such a right. Factually, there are enough
circumstances extant in the records of these cases indicating that he had no such intention
to ignore the rights of his co-heirs. In his very motions in question, Hodges alleged, thru
counsel, that the "deceased Linnie Jane Hodges died leaving no descendants and
ascendants, except brothers and sisters and herein petitioner, as surviving spouse, to
inherit the properties of the decedent", and even promised that "proper accounting will be
had — in all these transactions" which he had submitted for approval and authorization by
the court, thereby implying that he was aware of his responsibilities vis-a-vis his co-heirs.
As alleged by respondent Magno in her brief as appellee:

Under date of April 14, 1959, C. N. Hodges filed his first "Account by the
Executor" of the estate of Linnie Jane Hodges. In the "Statement of Networth
of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges" as of December 31,
1958 annexed thereto, C. N. Hodges reported that the combined conjugal
estate earned a net income of P328,402.62, divided evenly between him and
the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual
income tax return" for calendar year 1958 on the estate of Linnie Jane
Hodges reporting, under oath, the said estate as having earned income of
P164,201.31, exactly one-half of the net income of his combined personal
assets and that of the estate of Linnie Jane Hodges. (p. 91, Appellee's Brief.)

Under date of July 21, 1960, C. N. Hodges filed his second "Annual Statement
of Account by the Executor" of the estate of Linnie Jane Hodges. In the
"Statement of Networth of Mr. C. N. Hodges and the Estate of Linnie Jane
Hodges" as of December 31, 1959 annexed thereto, C. N. Hodges reported
that the combined conjugal estate earned a net income of P270,623.32,
divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to
this, he filed an "individual income tax return" for calendar year 1959 on the
estate of Linnie Jane Hodges reporting, under oath, the said estate as having
earned income of P135,311.66, exactly one-half of the net income of his
 combined personal assets and that of the estate of Linnie Jane Hodges. (pp.
91-92, id.)

Under date of April 20, 1961, C. N. Hodges filed his third "Annual Statement
of Account by the Executor for the year 1960" of the estate of Linnie Jane
Hodges. In the "Statement of Net Worth of Mr. C. N. Hodges and the Estate of
Linnie Jane Hodges" as of December 31, 1960 annexed thereto, C. N. Hodges
reported that the combined conjugal estate earned a net income of
P314,857.94, divided of Linnie Jane Hodges. Pursuant to this, he filed an
"individual evenly between him and the estate income tax return" for calendar
year 1960 on the estate of Linnie Jane Hodges reporting, under oath, the said
estate as having earned income of P157,428.97, exactly one-half of the net
income of his combined personal assets and that of the estate of Linnie Jane
Hodges. (pp. 92-93, id.)

In the petition for probate that he (Hodges) filed, he listed the seven brothers
and sisters of Linnie Jane as her "heirs" (see p. 2, Green ROA). The order of
the court admitting the will to probate unfortunately omitted one of the heirs,
Roy Higdon (see p. 14, Green ROA). Immediately, C. N. Hodges filed a
verified motion to have Roy Higdon's name included as an heir, stating that
he wanted to straighten the records "in order (that) the heirs of deceased Roy
Higdon may not think or believe they were omitted, and that they were really
and are interested in the estate of deceased Linnie Jane Hodges".

Thus, he recognized, if in his own way, the separate identity of his wife's estate from his
own share of the conjugal partnership up to the time of his death, more than five years
after that of his wife. He never considered the whole estate as a single one belonging
exclusively to himself. The only conclusion one can gather from this is that he could have
been preparing the basis for the eventual transmission of his wife's estate, or, at least, so
much thereof as he would not have been able to dispose of during his lifetime, to her
brothers and sisters in accordance with her expressed desire, as intimated in his tax return
in the United States to be more extensively referred to anon. And assuming that he did pay
the corresponding estate and inheritance taxes in the Philippines on the basis of his being
sole heir, such payment is not necessarily inconsistent with his recognition of the rights of
his co-heirs. Without purporting to rule definitely on the matter in these proceedings, We
might say here that We are inclined to the view that under the peculiar provisions of his
wife's will, and for purposes of the applicable inheritance tax laws, Hodges had to be
considered as her sole heir, pending the actual transmission of the remaining portion of her
estate to her other heirs, upon the eventuality of his death, and whatever adjustment might
be warranted should there be any such remainder then is a matter that could well be taken
care of by the internal revenue authorities in due time.

It is to be noted that the lawyer, Atty. Leon P. Gellada, who signed the motions of May 27,
1957 and December 11, 1957 and the aforementioned statements of account was the very
same one who also subsequently signed and filed the motion of December 26, 1962 for the
appointment of respondent Magno as "Administratrix of the Estate of Mrs. Linnie Jane
Hodges" wherein it was alleged that "in accordance with the provisions of the last will and
testament of Linnie Jane Hodges, whatever real properties that may remain at the death of
her husband, Charles Newton Hodges, the said properties shall be equally divided among
their heirs." And it appearing that said attorney was Hodges' lawyer as Executor of the
estate of his wife, it stands to reason that his understanding of the situation, implicit in his
allegations just quoted, could somehow be reflective of Hodges' own understanding thereof.
As a matter of fact, the allegations in the motion of the same Atty. Gellada dated July 1,
1957, a "Request for Inclusion of the Name of Roy Higdon in the Order of the Court dated
July 19, 1957, etc.", reference to which is made in the above quotation from respondent
Magno's brief, are over the oath of Hodges himself, who verified the motion. Said
allegations read:

1. — That the Hon. Court issued orders dated June 29, 1957, ordering the
probate of the will.

2. — That in said order of the Hon. Court, the relatives of the deceased Linnie
Jane Hodges were enumerated. However, in the petition as well as in the
testimony of Executor during the hearing, the name Roy Higdon was
mentioned, but deceased. It was unintentionally omitted the heirs of said Roy
Higdon who are his wife Aline Higdon and son David Higdon, all of age, and
residents of Quinlan, Texas, U.S.A.

3. — That to straighten the records, and in order the heirs of deceased Roy
Higdon may not think or believe they were omitted, and that they were really
and are interested in the estate of deceased Linnie Jane Hodges, it is
requested of the Hon. Court to insert the names of Aline Higdon and David
Higdon, wife and son of deceased Roy Higdon in the said order of the Hon.
Court dated June 29, 1957. (pars. 1 to 3, Annex 2 of Magno's Answer —
Record, p. 260)

As can be seen, these italicized allegations indicate, more or less, the real attitude of
Hodges in regard to the testamentary dispositions of his wife.

In connection with this point of Hodges' intent, We note that there are documents, copies of
which are annexed to respondent Magno's answer, which purportedly contain Hodges' own
solemn declarations recognizing the right of his co-heirs, such as the alleged tax return he
filed with the United States Taxation authorities, identified as Schedule M, (Annex 4 of her
answer) and his supposed affidavit of renunciation, Annex 5. In said Schedule M, Hodges
appears to have answered the pertinent question thus:

2a. Had the surviving spouse the right to declare an election between (1) the
provisions made in his or her favor by the will and (11) dower, curtesy or a
statutory interest? (X) Yes ( ) No

2d. Does the surviving spouse contemplate renouncing the will and electing to
take dower, curtesy, or a statutory interest? (X) Yes ( ) No

3. According to the information and belief of the person or persons filing the
return, is any action described under question 1 designed or contemplated? (
) Yes (X) No (Annex 4, Answer — Record, p. 263)

and to have further stated under the item, "Description of property interests passing to
surviving spouse" the following:

None, except for purposes of administering the Estate, paying debts, taxes
and other legal charges. It is the intention of the surviving husband of
deceased to distribute the remaining property and interests of the deceased
 in their Community Estate to the devisees and legatees named in the will
when the debts, liabilities, taxes and expenses of administration are finally
determined and paid. (Annex 4, Answer — Record, p. 263)

In addition, in the supposed affidavit of Hodges, Annex 5, it is stated:

I, C. N. Hodges, being duly sworn, on oath affirm that at the time the United
States Estate Tax Return was filed in the Estate of Linnie Jane Hodges on
August 8, 1958, I renounced and disclaimed any and all right to receive the
rents, emoluments and income from said estate, as shown by the statement
contained in Schedule M at page 29 of said return, a copy of which schedule is
attached to this affidavit and made a part hereof.

The purpose of this affidavit is to ratify and confirm, and I do hereby ratify
and confirm, the declaration made in Schedule M of said return and hereby
formally disclaim and renounce any right on my part to receive any of the
said rents, emoluments and income from the estate of my deceased wife,
Linnie Jane Hodges. This affidavit is made to absolve me or my estate from
any liability for the payment of income taxes on income which has accrued to
the estate of Linnie Jane Hodges since the death of the said Linnie Jane
Hodges on May 23, 1957. (Annex 5, Answer — Record, p. 264)

Although it appears that said documents were not duly presented as evidence in the court
below, and We cannot, therefore, rely on them for the purpose of the present proceedings,
still, We cannot close our eyes to their existence in the record nor fail to note that their
tenor jibes with Our conclusion discussed above from the circumstances related to the
orders of May 27 and December 14, 1957. 5 Somehow, these documents, considering they
are supposed to be copies of their originals found in the official files of the governments of
the United States and of the Philippines, serve to lessen any possible apprehension that Our
conclusion from the other evidence of Hodges' manifest intent vis-a-vis the rights of his co-
heirs is without basis in fact.

Verily, with such eloquent manifestations of his good intentions towards the other heirs of
his wife, We find it very hard to believe that Hodges did ask the court and that the latter
agreed that he be declared her sole heir and that her whole estate be adjudicated to him
without so much as just annotating the contingent interest of her brothers and sisters in
what would remain thereof upon his demise. On the contrary, it seems to us more factual
and fairer to assume that Hodges was well aware of his position as executor of the will of
his wife and, as such, had in mind the following admonition made by the Court in Pamittan
vs. Lasam, et al., 60 Phil., 908, at pp. 913-914:

Upon the death of Bernarda in September, 1908, said lands continued to be

conjugal property in the hands of the defendant Lasam. It is provided in
article 1418 of the Civil Code that upon the dissolution of the conjugal
partnership, an inventory shall immediately be made and this court in
construing this provision in connection with section 685 of the Code of Civil
Procedure (prior to its amendment by Act No. 3176 of November 24, 1924)
has repeatedly held that in the event of the death of the wife, the law
imposes upon the husband the duty of liquidating the affairs of the
partnership without delay (desde luego) (Alfonso vs. Natividad, 6 Phil., 240;
Prado vs. Lagera, 7 Phil., 395; De la Rama vs. De la Rama, 7 Phil., 745;
Enriquez vs. Victoria, 10 Phil., 10; Amancio vs. Pardo, 13 Phil., 297; Rojas vs.
 Singson Tongson, 17 Phil., 476; Sochayseng vs. Trujillo, 31 Phil., 153; Molera
vs. Molera, 40 Phil., 566; Nable Jose vs. Nable Jose, 41 Phil., 713.)

In the last mentioned case this court quoted with approval the case
of Leatherwood vs. Arnold (66 Texas, 414, 416, 417), in which that court
discussed the powers of the surviving spouse in the administration of the
community property. Attention was called to the fact that the surviving
husband, in the management of the conjugal property after the death of the
wife, was a trustee of unique character who is liable for any fraud committed
by him with relation to the property while he is charged with its
administration. In the liquidation of the conjugal partnership, he had wide
powers (as the law stood prior to Act No. 3176) and the high degree of trust
reposed in him stands out more clearly in view of the fact that he was the
owner of a half interest in his own right of the conjugal estate which he was
charged to administer. He could therefore no more acquire a title by
prescription against those for whom he was administering the conjugal estate
than could a guardian against his ward or a judicial administrator against the
heirs of estate. Section 38 of Chapter III of the Code of Civil Procedure, with
relation to prescription, provides that "this chapter shall not apply ... in the
case of a continuing and subsisting trust." The surviving husband in the
administration and liquidation of the conjugal estate occupies the position of a
trustee of the highest order and is not permitted by the law to hold that
estate or any portion thereof adversely to those for whose benefit the law
imposes upon him the duty of administration and liquidation. No liquidation
was ever made by Lasam — hence, the conjugal property which came into his
possession on the death of his wife in September, 1908, still remains conjugal
property, a continuing and subsisting trust. He should have made a
liquidation immediately (desde luego). He cannot now be permitted to take
advantage of his own wrong. One of the conditions of title by prescription
(section 41, Code of Civil Procedure) is possession "under a claim of title
exclusive of any other right". For a trustee to make such a claim would be a
manifest fraud.

And knowing thus his responsibilities in the premises, We are not convinced that Hodges
arrogated everything unto himself leaving nothing at all to be inherited by his wife's
brothers and sisters.

PCIB insists, however, that to read the orders of May 27 and December 14, 1957, not as
adjudicatory, but merely as approving past and authorizing future dispositions made by
Hodges in a wholesale and general manner, would necessarily render the said orders void
for being violative of the provisions of Rule 89 governing the manner in which such
dispositions may be made and how the authority therefor and approval thereof by the
probate court may be secured. If We sustained such a view, the result would only be that
the said orders should be declared ineffective either way they are understood, considering
We have already seen it is legally impossible to consider them as adjudicatory. As a matter
of fact, however, what surges immediately to the surface, relative to PCIB's observations
based on Rule 89, is that from such point of view, the supposed irregularity would involve
no more than some non-jurisdictional technicalities of procedure, which have for their
evident fundamental purpose the protection of parties interested in the estate, such as the
heirs, its creditors, particularly the government on account of the taxes due it; and since it
is apparent here that none of such parties are objecting to said orders or would be
prejudiced by the unobservance by the trial court of the procedure pointed out by PCIB, We
find no legal inconvenience in nor impediment to Our giving sanction to the blanket approval
and authority contained in said orders. This solution is definitely preferable in law and in
equity, for to view said orders in the sense suggested by PCIB would result in the
deprivation of substantive rights to the brothers and sisters of Mrs. Hodges, whereas
reading them the other way will not cause any prejudice to anyone, and, withal, will give
peace of mind and stability of rights to the innocent parties who relied on them in good
faith, in the light of the peculiar pertinent provisions of the will of said decedent.

Now, the inventory submitted by Hodges on May 12, 1958 referred to the estate of his wife
as consisting of "One-half of all the items designated in the balance sheet, copy of which is
hereto attached and marked as "Annex A"." Although, regrettably, no copy of said Annex A
appears in the records before Us, We take judicial notice, on the basis of the undisputed
facts in these cases, that the same consists of considerable real and other personal kinds of
properties. And since, according to her will, her husband was to be the sole owner thereof
during his lifetime, with full power and authority to dispose of any of them, provided that
should there be any remainder upon his death, such remainder would go to her brothers
and sisters, and furthermore, there is no pretension, much less any proof that Hodges had
in fact disposed of all of them, and, on the contrary, the indications are rather to the effect
that he had kept them more or less intact, it cannot truthfully be said that, upon the death
of Hodges, there was no more estate of Mrs. Hodges to speak of. It is Our conclusion,
therefore, that properties do exist which constitute such estate, hence Special Proceedings
1307 should not yet be closed.

Neither is there basis for holding that respondent Magno has ceased to be the Administratrix
in said proceeding. There is no showing that she has ever been legally removed as such, the
attempt to replace her with Mr. Benito Lopez without authority from the Court having been
expressly held ineffective by Our resolution of September 8, 1972. Parenthetically, on this
last point, PCIB itself is very emphatic in stressing that it is not questioning said
respondent's status as such administratrix. Indeed, it is not clear that PCIB has any
standing to raise any objection thereto, considering it is a complete stranger insofar as the
estate of Mrs. Hodges is concerned.

It is the contention of PCIB, however, that as things actually stood at the time of Hodges'
death, their conjugal partnership had not yet been liquidated and, inasmuch as the
properties composing the same were thus commingled pro indiviso and, consequently, the
properties pertaining to the estate of each of the spouses are not yet identifiable, it is PCIB
alone, as administrator of the estate of Hodges, who should administer everything, and all
that respondent Magno can do for the time being is to wait until the properties constituting
the remaining estate of Mrs. Hodges have been duly segregated and delivered to her for her
own administration. Seemingly, PCIB would liken the Testate Estate of Linnie Jane Hodges
to a party having a claim of ownership to some properties included in the inventory of an
administrator of the estate of a decedent, (here that of Hodges) and who normally has no
right to take part in the proceedings pending the establishment of his right or title; for
which as a rule it is required that an ordinary action should be filed, since the probate court
is without jurisdiction to pass with finality on questions of title between the estate of the
deceased, on the one hand, and a third party or even an heir claiming adversely against the
estate, on the other.

We do not find such contention sufficiently persuasive. As We see it, the situation obtaining
herein cannot be compared with the claim of a third party the basis of which is alien to the
pending probate proceedings. In the present cases what gave rise to the claim of PCIB of
exclusive ownership by the estate of Hodges over all the properties of the Hodges spouses,
including the share of Mrs. Hodges in the community properties, were the orders of the trial
court issued in the course of the very settlement proceedings themselves, more specifically,
the orders of May 27 and December 14, 1957 so often mentioned above. In other words,
the root of the issue of title between the parties is something that the court itself has done
in the exercise of its probate jurisdiction. And since in the ultimate analysis, the question of
whether or not all the properties herein involved pertain exclusively to the estate of Hodges
depends on the legal meaning and effect of said orders, the claim that respondent court has
no jurisdiction to take cognizance of and decide the said issue is incorrect. If it was within
the competence of the court to issue the root orders, why should it not be within its
authority to declare their true significance and intent, to the end that the parties may know
whether or not the estate of Mrs. Hodges had already been adjudicated by the court, upon
the initiative of Hodges, in his favor, to the exclusion of the other heirs of his wife instituted
in her will?

At this point, it bears emphasis again that the main cause of all the present problems
confronting the courts and the parties in these cases was the failure of Hodges to secure, as
executor of his wife's estate, from May, 1957 up to the time of his death in December,
1962, a period of more than five years, the final adjudication of her estate and the closure
of the proceedings. The record is bare of any showing that he ever exerted any effort
towards the early settlement of said estate. While, on the one hand, there are enough
indications, as already discuss that he had intentions of leaving intact her share of the
conjugal properties so that it may pass wholly to his co-heirs upon his death, pursuant to
her will, on the other hand, by not terminating the proceedings, his interests in his own half
of the conjugal properties remained commingled pro-indiviso with those of his co-heirs in
the other half. Obviously, such a situation could not be conducive to ready ascertainment of
the portion of the inheritance that should appertain to his co-heirs upon his death. Having
these considerations in mind, it would be giving a premium for such procrastination and
rather unfair to his co-heirs, if the administrator of his estate were to be given exclusive
administration of all the properties in question, which would necessarily include the function
of promptly liquidating the conjugal partnership, thereby identifying and segregating
without unnecessary loss of time which properties should be considered as constituting the
estate of Mrs. Hodges, the remainder of which her brothers and sisters are supposed to
inherit equally among themselves.

To be sure, an administrator is not supposed to represent the interests of any particular

party and his acts are deemed to be objectively for the protection of the rights of everybody
concerned with the estate of the decedent, and from this point of view, it maybe said that
even if PCIB were to act alone, there should be no fear of undue disadvantage to anyone.
On the other hand, however, it is evidently implicit in section 6 of Rule 78 fixing the priority
among those to whom letters of administration should be granted that the criterion in the
selection of the administrator is not his impartiality alone but, more importantly, the extent
of his interest in the estate, so much so that the one assumed to have greater interest is
preferred to another who has less. Taking both of these considerations into account,
inasmuch as, according to Hodges' own inventory submitted by him as Executor of the
estate of his wife, practically all their properties were conjugal which means that the
spouses have equal shares therein, it is but logical that both estates should be administered
jointly by representatives of both, pending their segregation from each other. Particularly is
such an arrangement warranted because the actuations so far of PCIB evince a determined,
albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance.
Besides, to allow PCIB, the administrator of his estate, to perform now what Hodges was
duty bound to do as executor is to violate the spirit, if not the letter, of Section 2 of Rule 78
which expressly provides that "The executor of an executor shall not, as such, administer
the estate of the first testator." It goes without saying that this provision refers also to the
administrator of an executor like PCIB here.

We are not unmindful of the fact that under Section 2 of Rule 73, "When the marriage is
dissolved by the death of the husband or wife, the community property shall be inventoried,
administered, and liquidated, and the debts thereof paid, in the testate or intestate
proceedings of the deceased spouse. If both spouses have died, the conjugal partnership
shall be liquidated in the testate or intestate proceedings of either." Indeed, it is true that
the last sentence of this provision allows or permits the conjugal partnership of spouses who
are both deceased to be settled or liquidated in the testate or intestate proceedings of
either, but precisely because said sentence allows or permits that the liquidation be made in
either proceeding, it is a matter of sound judicial discretion in which one it should be made.
After all, the former rule referring to the administrator of the husband's estate in respect to
such liquidation was done away with by Act 3176, the pertinent provisions of which are now
embodied in the rule just cited.

Thus, it can be seen that at the time of the death of Hodges, there was already the pending
judicial settlement proceeding of the estate of Mrs. Hodges, and, more importantly, that the
former was the executor of the latter's will who had, as such, failed for more than five years
to see to it that the same was terminated earliest, which was not difficult to do, since from
ought that appears in the record, there were no serious obstacles on the way, the estate not
being indebted and there being no immediate heirs other than Hodges himself. Such
dilatory or indifferent attitude could only spell possible prejudice of his co-heirs, whose
rights to inheritance depend entirely on the existence of any remainder of Mrs. Hodges'
share in the community properties, and who are now faced with the pose of PCIB that there
is no such remainder. Had Hodges secured as early as possible the settlement of his wife's
estate, this problem would not arisen. All things considered, We are fully convinced that the
interests of justice will be better served by not permitting or allowing PCIB or any
administrator of the estate of Hodges exclusive administration of all the properties in
question. We are of the considered opinion and so hold that what would be just and proper
is for both administrators of the two estates to act conjointly until after said estates have
been segregated from each other.

At this juncture, it may be stated that we are not overlooking the fact that it is PCIB's
contention that, viewed as a substitution, the testamentary disposition in favor of Mrs.
Hodges' brothers and sisters may not be given effect. To a certain extent, this contention is
correct. Indeed, legally speaking, Mrs. Hodges' will provides neither for a simple or vulgar
substitution under Article 859 of the Civil Code nor for a fideicommissary substitution under
Article 863 thereof. There is no vulgar substitution therein because there is no provision for
either (1) predecease of the testator by the designated heir or (2) refusal or (3) incapacity
of the latter to accept the inheritance, as required by Article 859; and neither is there a
fideicommissary substitution therein because no obligation is imposed thereby upon Hodges
to preserve the estate or any part thereof for anyone else. But from these premises, it is not
correct to jump to the conclusion, as PCIB does, that the testamentary dispositions in
question are therefore inoperative and invalid.

The error in PCIB's position lies simply in the fact that it views the said disposition
exclusively in the light of substitutions covered by the Civil Code section on that subject,
(Section 3, Chapter 2, Title IV, Book III) when it is obvious that substitution occurs only
when another heir is appointed in a will "so that he may enter into inheritance in default of
the heir originally instituted," (Article 857, id.) and, in the present case, no such possible
default is contemplated. The brothers and sisters of Mrs. Hodges are not substitutes for
Hodges because, under her will, they are not to inherit what Hodges cannot, would not or
may not inherit, but what he would not dispose of from his inheritance; rather, therefore,
they are also heirs instituted simultaneously with Hodges, subject, however, to certain
conditions, partially resolutory insofar as Hodges was concerned and correspondingly
suspensive with reference to his brothers and sisters-in-law. It is partially resolutory, since
it bequeaths unto Hodges the whole of her estate to be owned and enjoyed by him as
universal and sole heir with absolute dominion over them6 only during his lifetime, which
means that while he could completely and absolutely dispose of any portion thereof inter
vivos to anyone other than himself, he was not free to do so mortis causa, and all his rights
to what might remain upon his death would cease entirely upon the occurrence of that
contingency, inasmuch as the right of his brothers and sisters-in-law to the inheritance,
although vested already upon the death of Mrs. Hodges, would automatically become
operative upon the occurrence of the death of Hodges in the event of actual existence of
any remainder of her estate then.

Contrary to the view of respondent Magno, however, it was not the usufruct alone of her
estate, as contemplated in Article 869 of the Civil Code, that she bequeathed to Hodges
during his lifetime, but the full ownership thereof, although the same was to last also during
his lifetime only, even as there was no restriction whatsoever against his disposing or
conveying the whole or any portion thereof to anybody other than himself. The Court sees
no legal impediment to this kind of institution, in this jurisdiction or under Philippine law,
except that it cannot apply to the legitime of Hodges as the surviving spouse, consisting of
one-half of the estate, considering that Mrs. Hodges had no surviving ascendants nor
descendants. (Arts. 872, 900, and 904, New Civil Code.)

But relative precisely to the question of how much of Mrs. Hodges' share of the conjugal
partnership properties may be considered as her estate, the parties are in disagreement as
to how Article 16 of the Civil Code7 should be applied. On the one hand, petitioner claims
that inasmuch as Mrs. Hodges was a resident of the Philippines at the time of her death,
under said Article 16, construed in relation to the pertinent laws of Texas and the principle
of renvoi, what should be applied here should be the rules of succession under the Civil
Code of the Philippines, and, therefore, her estate could consist of no more than one-fourth
of the said conjugal properties, the other fourth being, as already explained, the legitime of
her husband (Art. 900, Civil Code) which she could not have disposed of nor burdened with
any condition (Art. 872, Civil Code). On the other hand, respondent Magno denies that Mrs.
Hodges died a resident of the Philippines, since allegedly she never changed nor intended to
change her original residence of birth in Texas, United States of America, and contends that,
anyway, regardless of the question of her residence, she being indisputably a citizen of
Texas, under said Article 16 of the Civil Code, the distribution of her estate is subject to the
laws of said State which, according to her, do not provide for any legitime, hence, the
brothers and sisters of Mrs. Hodges are entitled to the remainder of the whole of her share
of the conjugal partnership properties consisting of one-half thereof. Respondent Magno
further maintains that, in any event, Hodges had renounced his rights under the will in favor
of his co-heirs, as allegedly proven by the documents touching on the point already
mentioned earlier, the genuineness and legal significance of which petitioner seemingly
questions. Besides, the parties are disagreed as to what the pertinent laws of Texas provide.
In the interest of settling the estates herein involved soonest, it would be best, indeed, if
these conflicting claims of the parties were determined in these proceedings. The Court
regrets, however, that it cannot do so, for the simple reason that neither the evidence
submitted by the parties in the court below nor their discussion, in their respective briefs
and memoranda before Us, of their respective contentions on the pertinent legal issues, of
grave importance as they are, appear to Us to be adequate enough to enable Us to render
an intelligent comprehensive and just resolution. For one thing, there is no clear and reliable
proof of what in fact the possibly applicable laws of Texas are. 7* Then also, the
genuineness of documents relied upon by respondent Magno is disputed. And there are a
number of still other conceivable related issues which the parties may wish to raise but
which it is not proper to mention here. In Justice, therefore, to all the parties concerned,
these and all other relevant matters should first be threshed out fully in the trial court in the
proceedings hereafter to be held therein for the purpose of ascertaining and adjudicating
and/or distributing the estate of Mrs. Hodges to her heirs in accordance with her duly
probated will.

To be more explicit, all that We can and do decide in connection with the petition
for certiorari and prohibition are: (1) that regardless of which corresponding laws are
applied, whether of the Philippines or of Texas, and taking for granted either of the
respective contentions of the parties as to provisions of the latter, 8 and regardless also of
whether or not it can be proven by competent evidence that Hodges renounced his
inheritance in any degree, it is easily and definitely discernible from the inventory submitted
by Hodges himself, as Executor of his wife's estate, that there are properties which should
constitute the estate of Mrs. Hodges and ought to be disposed of or distributed among her
heirs pursuant to her will in said Special Proceedings 1307; (2) that, more specifically,
inasmuch as the question of what are the pertinent laws of Texas applicable to the situation
herein is basically one of fact, and, considering that the sole difference in the positions of
the parties as to the effect of said laws has reference to the supposed legitime of Hodges —
it being the stand of PCIB that Hodges had such a legitime whereas Magno claims the
negative - it is now beyond controversy for all future purposes of these proceedings that
whatever be the provisions actually of the laws of Texas applicable hereto, the estate of
Mrs. Hodges is at least, one-fourth of the conjugal estate of the spouses; the existence and
effects of foreign laws being questions of fact, and it being the position now of PCIB that the
estate of Mrs. Hodges, pursuant to the laws of Texas, should only be one-fourth of the
conjugal estate, such contention constitutes an admission of fact, and consequently, it
would be in estoppel in any further proceedings in these cases to claim that said estate
could be less, irrespective of what might be proven later to be actually the provisions of the
applicable laws of Texas; (3) that Special Proceedings 1307 for the settlement of the testate
estate of Mrs. Hodges cannot be closed at this stage and should proceed to its logical
conclusion, there having been no proper and legal adjudication or distribution yet of the
estate therein involved; and (4) that respondent Magno remains and continues to be the
Administratrix therein. Hence, nothing in the foregoing opinion is intended to resolve the
issues which, as already stated, are not properly before the Court now, namely, (1) whether
or not Hodges had in fact and in law waived or renounced his inheritance from Mrs. Hodges,
in whole or in part, and (2) assuming there had been no such waiver, whether or not, by
the application of Article 16 of the Civil Code, and in the light of what might be the
applicable laws of Texas on the matter, the estate of Mrs. Hodges is more than the one-
fourth declared above. As a matter of fact, even our finding above about the existence of
properties constituting the estate of Mrs. Hodges rests largely on a general appraisal of the
size and extent of the conjugal partnership gathered from reference made thereto by both
parties in their briefs as well as in their pleadings included in the records on appeal, and it
should accordingly yield, as to which exactly those properties are, to the more concrete and
specific evidence which the parties are supposed to present in support of their respective
positions in regard to the foregoing main legal and factual issues. In the interest of justice,
the parties should be allowed to present such further evidence in relation to all these issues
in a joint hearing of the two probate proceedings herein involved. After all, the court a
quo has not yet passed squarely on these issues, and it is best for all concerned that it
should do so in the first instance.
Relative to Our holding above that the estate of Mrs. Hodges cannot be less than the
remainder of one-fourth of the conjugal partnership properties, it may be mentioned here
that during the deliberations, the point was raised as to whether or not said holding might
be inconsistent with Our other ruling here also that, since there is no reliable evidence as to
what are the applicable laws of Texas, U.S.A. "with respect to the order of succession and to
the amount of successional rights" that may be willed by a testator which, under Article 16
of the Civil Code, are controlling in the instant cases, in view of the undisputed Texan
nationality of the deceased Mrs. Hodges, these cases should be returned to the court a quo,
so that the parties may prove what said law provides, it is premature for Us to make any
specific ruling now on either the validity of the testamentary dispositions herein involved or
the amount of inheritance to which the brothers and sisters of Mrs. Hodges are entitled.
After nature reflection, We are of the considered view that, at this stage and in the state of
the records before Us, the feared inconsistency is more apparent than real. Withal, it no
longer lies in the lips of petitioner PCIB to make any claim that under the laws of Texas, the
estate of Mrs. Hodges could in any event be less than that We have fixed above.

It should be borne in mind that as above-indicated, the question of what are the laws of
Texas governing the matters herein issue is, in the first instance, one of fact, not of law.
Elementary is the rule that foreign laws may not be taken judicial notice of and have to be
proven like any other fact in dispute between the parties in any proceeding, with the rare
exception in instances when the said laws are already within the actual knowledge of the
court, such as when they are well and generally known or they have been actually ruled
upon in other cases before it and none of the parties concerned do not claim otherwise. (5
Moran, Comments on the Rules of Court, p. 41, 1970 ed.) In Fluemer vs. Hix, 54 Phil. 610,
it was held:

It is the theory of the petitioner that the alleged will was executed in Elkins West Virginia,
on November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of
West Virginia govern. To this end, there was submitted a copy of section 3868 of Acts 1882,
c. 84 as found in West Virginia Code, Annotated, by Hogg Charles E., vol. 2, 1914, p. 1960,
and as certified to by the Director of the National Library. But this was far from a
compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our
courts. The courts of the Philippine Islands are not authorized to take judicial notice of the
laws of the various States of the American Union. Such laws must be proved as facts. (In re
Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of the law were not met.
There was no showing that the book from which an extract was taken was printed or
published under the authority of the State of West Virginia, as provided in section 300 of
the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of
the officer having charge of the original, under the seal of the State of West Virginia, as
provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show
that the extract from the laws of West Virginia was in force at the time the alleged will was
executed."

No evidence of the nature thus suggested by the Court may be found in the records of the
cases at bar. Quite to the contrary, the parties herein have presented opposing versions in
their respective pleadings and memoranda regarding the matter. And even if We took into
account that in Aznar vs. Garcia, the Court did make reference to certain provisions
regarding succession in the laws of Texas, the disparity in the material dates of that case
and the present ones would not permit Us to indulge in the hazardous conjecture that said
provisions have not been amended or changed in the meantime.

On the other hand, in In re Estate of Johnson, 39 Phil. 156, We held:

 Upon the other point — as to whether the will was executed in conformity
with the statutes of the State of Illinois — we note that it does not
affirmatively appear from the transcription of the testimony adduced in the
trial court that any witness was examined with reference to the law of Illinois
on the subject of the execution of will. The trial judge no doubt was satisfied
that the will was properly executed by examining section 1874 of the Revised
Statutes of Illinois, as exhibited in volume 3 of Starr & Curtis's Annotated
Illinois Statutes, 2nd ed., p. 426; and he may have assumed that he could
take judicial notice of the laws of Illinois under section 275 of the Code of Civil
Procedure. If so, he was in our opinion mistaken. That section authorizes the
courts here to take judicial notice, among other things, of the acts of the
legislative department of the United States. These words clearly have
reference to Acts of the Congress of the United States; and we would hesitate
to hold that our courts can, under this provision, take judicial notice of the
multifarious laws of the various American States. Nor do we think that any
such authority can be derived from the broader language, used in the same
section, where it is said that our courts may take judicial notice of matters of
public knowledge "similar" to those therein enumerated. The proper rule we
think is to require proof of the statutes of the States of the American Union
whenever their provisions are determinative of the issues in any action
litigated in the Philippine courts.

Nevertheless, even supposing that the trial court may have erred in taking
judicial notice of the law of Illinois on the point in question, such error is not
now available to the petitioner, first, because the petition does not state any
fact from which it would appear that the law of Illinois is different from what
the court found, and, secondly, because the assignment of error and
argument for the appellant in this court raises no question based on such
supposed error. Though the trial court may have acted upon pure conjecture
as to the law prevailing in the State of Illinois, its judgment could not be set
aside, even upon application made within six months under section 113 of the
Code of Civil Procedure, unless it should be made to appear affirmatively that
the conjecture was wrong. The petitioner, it is true, states in general terms
that the will in question is invalid and inadequate to pass real and personal
property in the State of Illinois, but this is merely a conclusion of law. The
affidavits by which the petition is accompanied contain no reference to the
subject, and we are cited to no authority in the appellant's brief which might
tend to raise a doubt as to the correctness of the conclusion of the trial court.
It is very clear, therefore, that this point cannot be urged as of serious
moment.

It is implicit in the above ruling that when, with respect to certain aspects of the foreign
laws concerned, the parties in a given case do not have any controversy or are more or less
in agreement, the Court may take it for granted for the purposes of the particular case
before it that the said laws are as such virtual agreement indicates, without the need of
requiring the presentation of what otherwise would be the competent evidence on the point.
Thus, in the instant cases wherein it results from the respective contentions of both parties
that even if the pertinent laws of Texas were known and to be applied, the amount of the
inheritance pertaining to the heirs of Mrs. Hodges is as We have fixed above, the absence of
evidence to the effect that, actually and in fact, under said laws, it could be otherwise is of
no longer of any consequence, unless the purpose is to show that it could be more. In other
words, since PCIB, the petitioner-appellant, concedes that upon application of Article 16 of
the Civil Code and the pertinent laws of Texas, the amount of the estate in controversy is
just as We have determined it to be, and respondent-appellee is only claiming, on her part,
that it could be more, PCIB may not now or later pretend differently.

To be more concrete, on pages 20-21 of its petition herein, dated July 31, 1967, PCIB states
categorically:

Inasmuch as Article 16 of the Civil Code provides that "intestate and

testamentary successions both with respect to the order of succession and to
the amount of successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the
property and regardless of the country wherein said property may be found",
while the law of Texas (the Hodges spouses being nationals of U.S.A., State
of Texas), in its conflicts of law rules, provides that the domiciliary law (in this
case Philippine law) governs the testamentary dispositions and successional
rights over movables or personal properties, while the law of the situs (in this
case also Philippine law with respect to all Hodges properties located in the
Philippines), governs with respect to immovable properties, and applying
therefore the 'renvoi doctrine' as enunciated and applied by this Honorable
Court in the case of In re Estate of Christensen (G.R. No. L-16749, Jan. 31,
1963), there can be no question that Philippine law governs the testamentary
dispositions contained in the Last Will and Testament of the deceased Linnie
Jane Hodges, as well as the successional rights to her estate, both with
respect to movables, as well as to immovables situated in the Philippines.

In its main brief dated February 26, 1968, PCIB asserts:

The law governing successional rights.

As recited above, there is no question that the deceased, Linnie Jane Hodges,
was an American citizen. There is also no question that she was a national of
the State of Texas, U.S.A. Again, there is likewise no question that she had
her domicile of choice in the City of Iloilo, Philippines, as this has already
been pronounced by the above-cited orders of the lower court,
pronouncements which are by now res adjudicata (par. [a], See. 49, Rule 39,
Rules of Court; In re Estate of Johnson, 39 Phil. 156).

Article 16 of the Civil Code provides:

"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 be
the nature of the property and regardless of the country wherein said
property may be found."

Thus the aforecited provision of the Civil Code points towards the national law
of the deceased, Linnie Jane Hodges, which is the law of Texas, as governing
 succession "both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary provisions ...".
But the law of Texas, in its conflicts of law rules, provides that the domiciliary
law governs the testamentary dispositions and successional rights over
movables or personal property, while the law of the situs governs with
respect to immovable property. Such that with respect to both movable
property, as well as immovable property situated in the Philippines, the law of
Texas points to the law of the Philippines.

Applying, therefore, the so-called "renvoi doctrine", as enunciated and applied

by this Honorable Court in the case of "In re Christensen" (G.R. No. L-16749,
Jan. 31, 1963), there can be no question that Philippine law governs the
testamentary provisions in the Last Will and Testament of the deceased Linnie
Jane Hodges, as well as the successional rights to her estate, both with
respect to movables, as well as immovables situated in the Philippines.

The subject of successional rights.

Under Philippine law, as it is under the law of Texas, the conjugal or

community property of the spouses, Charles Newton Hodges and Linnie Jane
Hodges, upon the death of the latter, is to be divided into two, one-half
pertaining to each of the spouses, as his or her own property. Thus, upon the
death of Linnie Jane Hodges, one-half of the conjugal partnership property
immediately pertained to Charles Newton Hodges as his own share, and not
by virtue of any successional rights. There can be no question about this.

Again, Philippine law, or more specifically, Article 900 of the Civil Code
provides:

If the only survivor is the widow or widower, she or he shall be

entitled to one-half of the hereditary estate of the deceased
spouse, and the testator may freely dispose of the other half.

If the marriage between the surviving spouse and the testator

was solemnized in articulo mortis, and the testator died within
three months from the time of the marriage, the legitime of the
surviving spouse as the sole heir shall be one-third of the
hereditary estate, except when they have been living as
husband and wife for more than five years. In the latter case,
the legitime of the surviving spouse shall be that specified in
the preceding paragraph.

This legitime of the surviving spouse cannot be burdened by a fideicommisary

substitution (Art. 864, Civil code), nor by any charge, condition, or
substitution (Art, 872, Civil code). It is clear, therefore, that in addition to
one-half of the conjugal partnership property as his own conjugal share,
Charles Newton Hodges was also immediately entitled to one-half of the half
conjugal share of the deceased, Linnie Jane Hodges, or one-fourth of the
entire conjugal property, as his legitime.

One-fourth of the conjugal property therefore remains at issue.

In the summary of its arguments in its memorandum dated April 30, 1968, the following
appears:

Briefly, the position advanced by the petitioner is:

a. That the Hodges spouses were domiciled legally in the Philippines (pp. 19-
20, petition). This is now a matter of res adjudicata (p. 20, petition).

b. That under Philippine law, Texas law, and the renvoi doctrine, Philippine
law governs the successional rights over the properties left by the deceased,
Linnie Jane Hodges (pp. 20-21, petition).

c. That under Philippine as well as Texas law, one-half of the Hodges

properties pertains to the deceased, Charles Newton Hodges (p. 21, petition).
This is not questioned by the respondents.

d. That under Philippine law, the deceased, Charles Newton Hodges,

automatically inherited one-half of the remaining one-half of the Hodges
properties as his legitime (p. 21, petition).

e. That the remaining 25% of the Hodges properties was inherited by the
deceased, Charles Newton Hodges, under the will of his deceased spouse (pp.
22-23, petition). Upon the death of Charles Newton Hodges, the substitution
'provision of the will of the deceased, Linnie Jane Hodges, did not operate
because the same is void (pp. 23-25, petition).

f. That the deceased, Charles Newton Hodges, asserted his sole ownership of
the Hodges properties and the probate court sanctioned such assertion (pp.
25-29, petition). He in fact assumed such ownership and such was the status
of the properties as of the time of his death (pp. 29-34, petition).

Of similar tenor are the allegations of PCIB in some of its pleadings quoted in the earlier
part of this option.

On her part, it is respondent-appellee Magno's posture that under the laws of Texas, there
is no system of legitime, hence the estate of Mrs. Hodges should be one-half of all the
conjugal properties.

It is thus unquestionable that as far as PCIB is concerned, the application to these cases of
Article 16 of the Civil Code in relation to the corresponding laws of Texas would result in
that the Philippine laws on succession should control. On that basis, as We have already
explained above, the estate of Mrs. Hodges is the remainder of one-fourth of the conjugal
partnership properties, considering that We have found that there is no legal impediment to
the kind of disposition ordered by Mrs. Hodges in her will in favor of her brothers and sisters
and, further, that the contention of PCIB that the same constitutes an inoperative
testamentary substitution is untenable. As will be recalled, PCIB's position that there is no
such estate of Mrs. Hodges is predicated exclusively on two propositions, namely: (1) that
the provision in question in Mrs. Hodges' testament violates the rules on substitution of
heirs under the Civil Code and (2) that, in any event, by the orders of the trial court of May
27, and December 14, 1957, the trial court had already finally and irrevocably adjudicated
to her husband the whole free portion of her estate to the exclusion of her brothers and
sisters, both of which poses, We have overruled. Nowhere in its pleadings, briefs and
memoranda does PCIB maintain that the application of the laws of Texas would result in the
other heirs of Mrs. Hodges not inheriting anything under her will. And since PCIB's
representations in regard to the laws of Texas virtually constitute admissions of fact which
the other parties and the Court are being made to rely and act upon, PCIB is "not permitted
to contradict them or subsequently take a position contradictory to or inconsistent with
them." (5 Moran, id, p. 65, citing Cunanan vs. Amparo, 80 Phil. 227; Sta. Ana vs. Maliwat,
L-23023, Aug. 31, 1968, 24 SCRA 1018).

Accordingly, the only question that remains to be settled in the further proceedings hereby
ordered to be held in the court below is how much more than as fixed above is the estate of
Mrs. Hodges, and this would depend on (1) whether or not the applicable laws of Texas do
provide in effect for more, such as, when there is no legitime provided therein, and (2)
whether or not Hodges has validly waived his whole inheritance from Mrs. Hodges.

In the course of the deliberations, it was brought out by some members of the Court that to
avoid or, at least, minimize further protracted legal controversies between the respective
heirs of the Hodges spouses, it is imperative to elucidate on the possible consequences of
dispositions made by Hodges after the death of his wife from the mass of the unpartitioned
estates without any express indication in the pertinent documents as to whether his
intention is to dispose of part of his inheritance from his wife or part of his own share of the
conjugal estate as well as of those made by PCIB after the death of Hodges. After a long
discussion, the consensus arrived at was as follows: (1) any such dispositions
made gratuitously in favor of third parties, whether these be individuals, corporations or
foundations, shall be considered as intended to be of properties constituting part of Hodges'
inheritance from his wife, it appearing from the tenor of his motions of May 27 and
December 11, 1957 that in asking for general authority to make sales or other disposals of
properties under the jurisdiction of the court, which include his own share of the conjugal
estate, he was not invoking particularly his right over his own share, but rather his right to
dispose of any part of his inheritance pursuant to the will of his wife; (2) as regards sales,
exchanges or other remunerative transfers, the proceeds of such sales or the properties
taken in by virtue of such exchanges, shall be considered as merely the products of
"physical changes" of the properties of her estate which the will expressly authorizes
Hodges to make, provided that whatever of said products should remain with the estate at
the time of the death of Hodges should go to her brothers and sisters; (3) the dispositions
made by PCIB after the death of Hodges must naturally be deemed as covering only the
properties belonging to his estate considering that being only the administrator of the estate
of Hodges, PCIB could not have disposed of properties belonging to the estate of his wife.
Neither could such dispositions be considered as involving conjugal properties, for the
simple reason that the conjugal partnership automatically ceased when Mrs. Hodges died,
and by the peculiar provision of her will, under discussion, the remainder of her share
descended also automatically upon the death of Hodges to her brothers and sisters, thus
outside of the scope of PCIB's administration. Accordingly, these construction of the will of
Mrs. Hodges should be adhered to by the trial court in its final order of adjudication and
distribution and/or partition of the two estates in question.

THE APPEALS

A cursory examination of the seventy-eight assignments of error in appellant PCIB's brief

would readily reveal that all of them are predicated mainly on the contention that inasmuch
as Hodges had already adjudicated unto himself all the properties constituting his wife's
share of the conjugal partnership, allegedly with the sanction of the trial court per its order
of December 14, 1957, there has been, since said date, no longer any estate of Mrs. Hodges
of which appellee Magno could be administratrix, hence the various assailed orders
sanctioning her actuations as such are not in accordance with law. Such being the case,
with the foregoing resolution holding such posture to be untenable in fact and in law and
that it is in the best interest of justice that for the time being the two estates should be
administered conjointly by the respective administrators of the two estates, it should follow
that said assignments of error have lost their fundamental reasons for being. There are
certain matters, however, relating peculiarly to the respective orders in question, if
commonly among some of them, which need further clarification. For instance, some of
them authorized respondent Magno to act alone or without concurrence of PCIB. And with
respect to many of said orders, PCIB further claims that either the matters involved were
not properly within the probate jurisdiction of the trial court or that the procedure followed
was not in accordance with the rules. Hence, the necessity of dealing separately with the
merits of each of the appeals.

Indeed, inasmuch as the said two estates have until now remained commingled pro-
indiviso, due to the failure of Hodges and the lower court to liquidate the conjugal
partnership, to recognize appellee Magno as Administratrix of the Testate Estate of Mrs.
Hodges which is still unsegregated from that of Hodges is not to say, without any
qualification, that she was therefore authorized to do and perform all her acts complained of
in these appeals, sanctioned though they might have been by the trial court. As a matter of
fact, it is such commingling pro-indiviso of the two estates that should deprive appellee of
freedom to act independently from PCIB, as administrator of the estate of Hodges, just as,
for the same reason, the latter should not have authority to act independently from her.
And considering that the lower court failed to adhere consistently to this basic point of view,
by allowing the two administrators to act independently of each other, in the various
instances already noted in the narration of facts above, the Court has to look into the
attendant circumstances of each of the appealed orders to be able to determine whether
any of them has to be set aside or they may all be legally maintained notwithstanding the
failure of the court a quo to observe the pertinent procedural technicalities, to the end only
that graver injury to the substantive rights of the parties concerned and unnecessary and
undesirable proliferation of incidents in the subject proceedings may be forestalled. In other
words, We have to determine, whether or not, in the light of the unusual circumstances
extant in the record, there is need to be more pragmatic and to adopt a rather unorthodox
approach, so as to cause the least disturbance in rights already being exercised by
numerous innocent third parties, even if to do so may not appear to be strictly in
accordance with the letter of the applicable purely adjective rules.

Incidentally, it may be mentioned, at this point, that it was principally on account of the
confusion that might result later from PCIB's continuing to administer all the community
properties, notwithstanding the certainty of the existence of the separate estate of Mrs.
Hodges, and to enable both estates to function in the meantime with a relative degree of
regularity, that the Court ordered in the resolution of September 8, 1972 the modification of
the injunction issued pursuant to the resolutions of August 8, October 4 and December 6,
1967, by virtue of which respondent Magno was completely barred from any participation in
the administration of the properties herein involved. In the September 8 resolution, We
ordered that, pending this decision, Special Proceedings 1307 and 1672 should proceed
jointly and that the respective administrators therein "act conjointly — none of them to act
singly and independently of each other for any purpose." Upon mature deliberation, We felt
that to allow PCIB to continue managing or administering all the said properties to the
exclusion of the administratrix of Mrs. Hodges' estate might place the heirs of Hodges at an
unduly advantageous position which could result in considerable, if not irreparable, damage
or injury to the other parties concerned. It is indeed to be regretted that apparently, up to
this date, more than a year after said resolution, the same has not been given due regard,
as may be gleaned from the fact that recently, respondent Magno has filed in these
proceedings a motion to declare PCIB in contempt for alleged failure to abide therewith,
notwithstanding that its repeated motions for reconsideration thereof have all been denied
soon after they were filed.9

Going back to the appeals, it is perhaps best to begin first with what appears to Our mind to
be the simplest, and then proceed to the more complicated ones in that order, without
regard to the numerical sequence of the assignments of error in appellant's brief or to the
order of the discussion thereof by counsel.

Assignments of error numbers

LXXII, LXXVII and LXXVIII.

These assignments of error relate to (1) the order of the trial court of August 6, 1965
providing that "the deeds of sale (therein referred to involving properties in the name of
Hodges) should be signed jointly by the PCIB, as Administrator of Testate Estate of C.N.
Hodges, and Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane
Hodges, and to this effect, the PCIB should take the necessary steps so that Administratrix
Avelina A. Magno could sign the deeds of sale," (p. 248, Green Rec. on Appeal) (2) the
order of October 27, 1965 denying the motion for reconsideration of the foregoing order,
(pp. 276-277, id.) (3) the other order also dated October 27, 1965 enjoining inter alia, that
"(a) all cash collections should be deposited in the joint account of the estate of Linnie Jane
Hodges and estate of C. N. Hodges, (b) that whatever cash collections (that) had been
deposited in the account of either of the estates should be withdrawn and since then (sic)
deposited in the joint account of the estate of Linnie Jane Hodges and the estate of C. N.
Hodges; ... (d) (that) Administratrix Magno — allow the PCIB to inspect whatever records,
documents and papers she may have in her possession, in the same manner that
Administrator PCIB is also directed to allow Administratrix Magno to inspect whatever
records, documents and papers it may have in its possession" and "(e) that the accountant
of the estate of Linnie Jane Hodges shall have access to all records of the transactions of
both estates for the protection of the estate of Linnie Jane Hodges; and in like manner, the
accountant or any authorized representative of the estate of C. N. Hodges shall have access
to the records of transactions of the Linnie Jane Hodges estate for the protection of the
estate of C. N. Hodges", (pp. 292-295, id.) and (4) the order of February 15, 1966,
denying, among others, the motion for reconsideration of the order of October 27, 1965 last
referred to. (pp. 455-456, id.)

As may be readily seen, the thrust of all these four impugned orders is in line with the
Court's above-mentioned resolution of September 8, 1972 modifying the injunction
previously issued on August 8, 1967, and, more importantly, with what We have said the
trial court should have always done pending the liquidation of the conjugal partnership of
the Hodges spouses. In fact, as already stated, that is the arrangement We are ordering, by
this decision, to be followed. Stated differently, since the questioned orders provide for joint
action by the two administrators, and that is precisely what We are holding out to have
been done and should be done until the two estates are separated from each other, the said
orders must be affirmed. Accordingly the foregoing assignments of error must be, as they
are hereby overruled.

Assignments of error Numbers LXVIII

to LXXI and LXXIII to LXXVI.
The orders complained of under these assignments of error commonly deal with
expenditures made by appellee Magno, as Administratrix of the Estate of Mrs. Hodges, in
connection with her administration thereof, albeit additionally, assignments of error
Numbers LXIX to LXXI put into question the payment of attorneys fees provided for in the
contract for the purpose, as constituting, in effect, premature advances to the heirs of Mrs.
Hodges.

More specifically, assignment Number LXXIII refers to reimbursement of overtime pay paid
to six employees of the court and three other persons for services in copying the court
records to enable the lawyers of the administration to be fully informed of all the incidents
in the proceedings. The reimbursement was approved as proper legal expenses of
administration per the order of December 19, 1964, (pp. 221-222, id.) and repeated
motions for reconsideration thereof were denied by the orders of January 9, 1965, (pp. 231-
232, id.) October 27, 1965, (p. 277, id.) and February 15, 1966. (pp. 455-456, id.) On the
other hand, Assignments Numbers LXVIII to LXXI, LXXIV and LXXV question the trial court's
order of November 3, 1965 approving the agreement of June 6, 1964 between
Administratrix Magno and James L. Sullivan, attorney-in-fact of the heirs of Mrs. Hodges, as
Parties of the First Part, and Attorneys Raul Manglapus and Rizal R. Quimpo, as Parties of
the Second Part, regarding attorneys fees for said counsel who had agreed "to prosecute
and defend their interests (of the Parties of the First Part) in certain cases now pending
litigation in the Court of First Instance of Iloilo —, more specifically in Special Proceedings
1307 and 1672 —" (pp. 126-129, id.) and directing Administratrix Magno "to issue and sign
whatever check or checks maybe needed to implement the approval of the agreement
annexed to the motion" as well as the "administrator of the estate of C. N. Hodges — to
countersign the said check or checks as the case maybe." (pp. 313-320, id.),
reconsideration of which order of approval was denied in the order of February 16, 1966, (p.
456, id.) Assignment Number LXXVI imputes error to the lower court's order of October 27,
1965, already referred to above, insofar as it orders that "PCIB should counter sign the
check in the amount of P250 in favor of Administratrix Avelina A. Magno as her
compensation as administratrix of Linnie Jane Hodges estate chargeable to the Testate
Estate of Linnie Jane Hodges only." (p. 294, id.)

Main contention again of appellant PCIB in regard to these eight assigned errors is that
there is no such estate as the estate of Mrs. Hodges for which the questioned expenditures
were made, hence what were authorized were in effect expenditures from the estate of
Hodges. As We have already demonstrated in Our resolution above of the petition
for certiorari and prohibition, this posture is incorrect. Indeed, in whichever way the
remaining issues between the parties in these cases are ultimately resolved, 10 the final
result will surely be that there are properties constituting the estate of Mrs. Hodges of which
Magno is the current administratrix. It follows, therefore, that said appellee had the right,
as such administratrix, to hire the persons whom she paid overtime pay and to be paid for
her own services as administratrix. That she has not yet collected and is not collecting
amounts as substantial as that paid to or due appellant PCIB is to her credit.

Of course, she is also entitled to the services of counsel and to that end had the authority to
enter into contracts for attorney's fees in the manner she had done in the agreement of
June 6, 1964. And as regards to the reasonableness of the amount therein stipulated, We
see no reason to disturb the discretion exercised by the probate court in determining the
same. We have gone over the agreement, and considering the obvious size of the estate in
question and the nature of the issues between the parties as well as the professional
standing of counsel, We cannot say that the fees agreed upon require the exercise by the
Court of its inherent power to reduce it.
PCIB insists, however, that said agreement of June 6, 1964 is not for legal services to the
estate but to the heirs of Mrs. Hodges, or, at most, to both of them, and such being the
case, any payment under it, insofar as counsels' services would redound to the benefit of
the heirs, would be in the nature of advances to such heirs and a premature distribution of
the estate. Again, We hold that such posture cannot prevail.

Upon the premise We have found plausible that there is an existing estate of Mrs. Hodges, it
results that juridically and factually the interests involved in her estate are distinct and
different from those involved in her estate of Hodges and vice versa. Insofar as the matters
related exclusively to the estate of Mrs. Hodges, PCIB, as administrator of the estate of
Hodges, is a complete stranger and it is without personality to question the actuations of
the administratrix thereof regarding matters not affecting the estate of Hodges. Actually,
considering the obviously considerable size of the estate of Mrs. Hodges, We see no possible
cause for apprehension that when the two estates are segregated from each other, the
amount of attorney's fees stipulated in the agreement in question will prejudice any portion
that would correspond to Hodges' estate.

And as regards the other heirs of Mrs. Hodges who ought to be the ones who should have a
say on the attorney's fees and other expenses of administration assailed by PCIB, suffice it
to say that they appear to have been duly represented in the agreement itself by their
attorney-in-fact, James L. Sullivan and have not otherwise interposed any objection to any
of the expenses incurred by Magno questioned by PCIB in these appeals. As a matter of
fact, as ordered by the trial court, all the expenses in question, including the attorney's
fees, may be paid without awaiting the determination and segregation of the estate of Mrs.
Hodges.

Withal, the weightiest consideration in connection with the point under discussion is that at
this stage of the controversy among the parties herein, the vital issue refers to the
existence or non-existence of the estate of Mrs. Hodges. In this respect, the interest of
respondent Magno, as the appointed administratrix of the said estate, is to maintain that it
exists, which is naturally common and identical with and inseparable from the interest of the
brothers and sisters of Mrs. Hodges. Thus, it should not be wondered why both Magno and
these heirs have seemingly agreed to retain but one counsel. In fact, such an arrangement
should be more convenient and economical to both. The possibility of conflict of interest
between Magno and the heirs of Mrs. Hodges would be, at this stage, quite remote and, in
any event, rather insubstantial. Besides, should any substantial conflict of interest between
them arise in the future, the same would be a matter that the probate court can very well
take care of in the course of the independent proceedings in Case No. 1307 after the
corresponding segregation of the two subject estates. We cannot perceive any cogent
reason why, at this stage, the estate and the heirs of Mrs. Hodges cannot be represented by
a common counsel.

Now, as to whether or not the portion of the fees in question that should correspond to the
heirs constitutes premature partial distribution of the estate of Mrs. Hodges is also a matter
in which neither PCIB nor the heirs of Hodges have any interest. In any event, since, as far
as the records show, the estate has no creditors and the corresponding estate and
inheritance taxes, except those of the brothers and sisters of Mrs. Hodges, have already
been paid, 11 no prejudice can caused to anyone by the comparatively small amount of
attorney's fees in question. And in this connection, it may be added that, although strictly
speaking, the attorney's fees of the counsel of an administrator is in the first instance his
personal responsibility, reimbursable later on by the estate, in the final analysis, when, as in
the situation on hand, the attorney-in-fact of the heirs has given his conformity thereto, it
would be idle effort to inquire whether or not the sanction given to said fees by the probate
court is proper.

For the foregoing reasons, Assignments of Error LXVIII to LXXI and LXXIII to LXXVI should
be as they are hereby overruled.

Assignments of error I to IV,

XIII to XV, XXII to XXV, XXXV
to XXX VI, XLI to XLIII and L.

These assignments of error deal with the approval by the trial court of various deeds of sale
of real properties registered in the name of Hodges but executed by appellee Magno, as
Administratrix of the Estate of Mrs. Hodges, purportedly in implementation of corresponding
supposed written "Contracts to Sell" previously executed by Hodges during the interim
between May 23, 1957, when his wife died, and December 25, 1962, the day he died. As
stated on pp. 118-120 of appellant's main brief, "These are: the, contract to sell between
the deceased, Charles Newton Hodges, and the appellee, Pepito G. Iyulores executed on
February 5, 1961; the contract to sell between the deceased, Charles Newton Hodges, and
the appellant Esperidion Partisala, executed on April 20, 1960; the contract to sell between
the deceased, Charles Newton Hodges, and the appellee, Winifredo C. Espada, executed on
April 18, 1960; the contract to sell between the deceased, Charles Newton Hodges, and the
appellee, Rosario Alingasa, executed on August 25, 1958; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Lorenzo Carles, executed on June 17,
1958; the contract to sell between the deceased, Charles Newton Hodges, and the appellee,
Salvador S. Guzman, executed on September 13, 1960; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Florenia Barrido, executed on
February 21, 1958; the contract to sell between the deceased, Charles Newton Hodges, and
the appellee, Purificacion Coronado, executed on August 14, 1961; the contract to sell
between the deceased, Charles Newton Hodges, and the appellee, Graciano Lucero,
executed on November 27, 1961; the contract to sell between the deceased, Charles
Newton Hodges, and the appellee, Ariteo Thomas Jamir, executed on May 26, 1961; the
contract to sell between the deceased, Charles Newton Hodges, and the appellee,
Melquiades Batisanan, executed on June 9, 1959; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Belcezar Causing, executed on
February 10, 1959 and the contract to sell between the deceased, Charles Newton Hodges,
and the appellee, Adelfa Premaylon, executed on October 31, 1959, re Title No. 13815."

Relative to these sales, it is the position of appellant PCIB that, inasmuch as pursuant to the
will of Mrs. Hodges, her husband was to have dominion over all her estate during his
lifetime, it was as absolute owner of the properties respectively covered by said sales that
he executed the aforementioned contracts to sell, and consequently, upon his death, the
implementation of said contracts may be undertaken only by the administrator of his estate
and not by the administratrix of the estate of Mrs. Hodges. Basically, the same theory is
invoked with particular reference to five other sales, in which the respective "contracts to
sell" in favor of these appellees were executed by Hodges before the death of his wife,
namely, those in favor of appellee Santiago Pacaonsis, Alfredo Catedral, Jose Pablico,
Western Institute of Technology and Adelfa Premaylon.

Anent those deeds of sale based on promises or contracts to sell executed by Hodges after
the death of his wife, those enumerated in the quotation in the immediately preceding
paragraph, it is quite obvious that PCIB's contention cannot be sustained. As already
explained earlier, 11* all proceeds of remunerative transfers or dispositions made by Hodges
after the death of his wife should be deemed as continuing to be parts of her estate and,
therefore, subject to the terms of her will in favor of her brothers and sisters, in the sense
that should there be no showing that such proceeds, whether in cash or property have been
subsequently conveyed or assigned subsequently by Hodges to any third party by acts inter
vivos with the result that they could not thereby belong to him anymore at the time of his
death, they automatically became part of the inheritance of said brothers and sisters. The
deeds here in question involve transactions which are exactly of this nature. Consequently,
the payments made by the appellees should be considered as payments to the estate of
Mrs. Hodges which is to be distributed and partitioned among her heirs specified in the will.

The five deeds of sale predicated on contracts to sell executed Hodges during the lifetime of
his wife, present a different situation. At first blush, it would appear that as to them, PCIB's
position has some degree of plausibility. Considering, however, that the adoption of PCIB's
theory would necessarily have tremendous repercussions and would bring about
considerable disturbance of property rights that have somehow accrued already in favor of
innocent third parties, the five purchasers aforenamed, the Court is inclined to take a
pragmatic and practical view of the legal situation involving them by overlooking the
possible technicalities in the way, the non-observance of which would not, after all, detract
materially from what should substantially correspond to each and all of the parties
concerned.

To start with, these contracts can hardly be ignored. Bona fide third parties are involved; as
much as possible, they should not be made to suffer any prejudice on account of judicial
controversies not of their own making. What is more, the transactions they rely on were
submitted by them to the probate court for approval, and from already known and recorded
actuations of said court then, they had reason to believe that it had authority to act on their
motions, since appellee Magno had, from time to time prior to their transactions with her,
been allowed to act in her capacity as administratrix of one of the subject estates either
alone or conjointly with PCIB. All the sales in question were executed by Magno in 1966
already, but before that, the court had previously authorized or otherwise sanctioned
expressly many of her act as administratrix involving expenditures from the estate made by
her either conjointly with or independently from PCIB, as Administrator of the Estate of
Hodges. Thus, it may be said that said buyers-appellees merely followed precedents in
previous orders of the court. Accordingly, unless the impugned orders approving those sales
indubitably suffer from some clearly fatal infirmity the Court would rather affirm them.

It is quite apparent from the record that the properties covered by said sales are equivalent
only to a fraction of what should constitute the estate of Mrs. Hodges, even if it is assumed
that the same would finally be held to be only one-fourth of the conjugal properties of the
spouses as of the time of her death or, to be more exact, one-half of her estate as per the
inventory submitted by Hodges as executor, on May 12, 1958. In none of its numerous,
varied and voluminous pleadings, motions and manifestations has PCIB claimed any
possibility otherwise. Such being the case, to avoid any conflict with the heirs of Hodges,
the said properties covered by the questioned deeds of sale executed by appellee Magno
may be treated as among those corresponding to the estate of Mrs. Hodges, which would
have been actually under her control and administration had Hodges complied with his duty
to liquidate the conjugal partnership. Viewing the situation in that manner, the only ones
who could stand to be prejudiced by the appealed orders referred to in the assignment of
errors under discussion and who could, therefore, have the requisite interest to question
them would be only the heirs of Mrs. Hodges, definitely not PCIB.
It is of no moment in what capacity Hodges made the "contracts to sell' after the death of
his wife. Even if he had acted as executor of the will of his wife, he did not have to submit
those contracts to the court nor follow the provisions of the rules, (Sections 2, 4, 5, 6, 8 and
9 of Rule 89 quoted by appellant on pp. 125 to 127 of its brief) for the simple reason that
by the very orders, much relied upon by appellant for other purposes, of May 27, 1957 and
December 14, 1957, Hodges was "allowed or authorized" by the trial court "to continue the
business in which he was engaged and to perform acts which he had been doing while the
deceased was living", (Order of May 27) which according to the motion on which the court
acted was "of buying and selling personal and real properties", and "to execute subsequent
sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie
Jane Hodges in consonance with the wishes conveyed in the last will and testament of the
latter." (Order of December 14) In other words, if Hodges acted then as executor, it can be
said that he had authority to do so by virtue of these blanket orders, and PCIB does not
question the legality of such grant of authority; on the contrary, it is relying on the terms of
the order itself for its main contention in these cases. On the other hand, if, as PCIB
contends, he acted as heir-adjudicatee, the authority given to him by the aforementioned
orders would still suffice.

As can be seen, therefore, it is of no moment whether the "contracts to sell" upon which the
deeds in question were based were executed by Hodges before or after the death of his
wife. In a word, We hold, for the reasons already stated, that the properties covered by the
deeds being assailed pertain or should be deemed as pertaining to the estate of Mrs.
Hodges; hence, any supposed irregularity attending the actuations of the trial court may be
invoked only by her heirs, not by PCIB, and since the said heirs are not objecting, and the
defects pointed out not being strictly jurisdictional in nature, all things considered,
particularly the unnecessary disturbance of rights already created in favor of innocent third
parties, it is best that the impugned orders are not disturbed.

In view of these considerations, We do not find sufficient merit in the assignments of error
under discussion.

Assignments of error V to VIII,

XVI to XVIII, XXVI to XXIX, XXXVII
to XXXVIII, XLIV to XLVI and LI.

All these assignments of error commonly deal with alleged non-fulfillment by the respective
vendees, appellees herein, of the terms and conditions embodied in the deeds of sale
referred to in the assignments of error just discussed. It is claimed that some of them never
made full payments in accordance with the respective contracts to sell, while in the cases of
the others, like Lorenzo Carles, Jose Pablico, Alfredo Catedral and Salvador S. Guzman, the
contracts with them had already been unilaterally cancelled by PCIB pursuant to automatic
rescission clauses contained in them, in view of the failure of said buyers to pay arrearages
long overdue. But PCIB's posture is again premised on its assumption that the properties
covered by the deeds in question could not pertain to the estate of Mrs. Hodges. We have
already held above that, it being evident that a considerable portion of the conjugal
properties, much more than the properties covered by said deeds, would inevitably
constitute the estate of Mrs. Hodges, to avoid unnecessary legal complications, it can be
assumed that said properties form part of such estate. From this point of view, it is
apparent again that the questions, whether or not it was proper for appellee Magno to have
disregarded the cancellations made by PCIB, thereby reviving the rights of the respective
buyers-appellees, and, whether or not the rules governing new dispositions of properties of
the estate were strictly followed, may not be raised by PCIB but only by the heirs of Mrs.
Hodges as the persons designated to inherit the same, or perhaps the government because
of the still unpaid inheritance taxes. But, again, since there is no pretense that any
objections were raised by said parties or that they would necessarily be prejudiced, the
contentions of PCIB under the instant assignments of error hardly merit any consideration.

Assignments of error IX to XII, XIX

to XXI, XXX to XXIV, XXXIX to XL,
XLVII to XLIX, LII and LIII to LXI.

PCIB raises under these assignments of error two issues which according to it are
fundamental, namely: (1) that in approving the deeds executed by Magno pursuant to
contracts to sell already cancelled by it in the performance of its functions as administrator
of the estate of Hodges, the trial court deprived the said estate of the right to invoke such
cancellations it (PCIB) had made and (2) that in so acting, the court "arrogated unto itself,
while acting as a probate court, the power to determine the contending claims of third
parties against the estate of Hodges over real property," since it has in effect determined
whether or not all the terms and conditions of the respective contracts to sell executed by
Hodges in favor of the buyers-appellees concerned were complied with by the latter. What is
worse, in the view of PCIB, is that the court has taken the word of the appellee Magno, "a
total stranger to his estate as determinative of the issue".

Actually, contrary to the stand of PCIB, it is this last point regarding appellee Magno's
having agreed to ignore the cancellations made by PCIB and allowed the buyers-appellees
to consummate the sales in their favor that is decisive. Since We have already held that the
properties covered by the contracts in question should be deemed to be portions of the
estate of Mrs. Hodges and not that of Hodges, it is PCIB that is a complete stranger in these
incidents. Considering, therefore, that the estate of Mrs. Hodges and her heirs who are the
real parties in interest having the right to oppose the consummation of the impugned sales
are not objecting, and that they are the ones who are precisely urging that said sales be
sanctioned, the assignments of error under discussion have no basis and must accordingly
be as they are hereby overruled.

With particular reference to assignments LIII to LXI, assailing the orders of the trial court
requiring PCIB to surrender the respective owner's duplicate certificates of title over the
properties covered by the sales in question and otherwise directing the Register of Deeds of
Iloilo to cancel said certificates and to issue new transfer certificates of title in favor of the
buyers-appellees, suffice it to say that in the light of the above discussion, the trial court
was within its rights to so require and direct, PCIB having refused to give way, by
withholding said owners' duplicate certificates, of the corresponding registration of the
transfers duly and legally approved by the court.

Assignments of error LXII to LXVII

All these assignments of error commonly deal with the appeal against orders favoring
appellee Western Institute of Technology. As will be recalled, said institute is one of the
buyers of real property covered by a contract to sell executed by Hodges prior to the death
of his wife. As of October, 1965, it was in arrears in the total amount of P92,691.00 in the
payment of its installments on account of its purchase, hence it received under date of
October 4, 1965 and October 20, 1965, letters of collection, separately and respectively,
from PCIB and appellee Magno, in their respective capacities as administrators of the
distinct estates of the Hodges spouses, albeit, while in the case of PCIB it made known that
"no other arrangement can be accepted except by paying all your past due account", on the
other hand, Magno merely said she would "appreciate very much if you can make some
remittance to bring this account up-to-date and to reduce the amount of the obligation."
(See pp. 295-311, Green R. on A.) On November 3, 1965, the Institute filed a motion
which, after alleging that it was ready and willing to pay P20,000 on account of its overdue
installments but uncertain whether it should pay PCIB or Magno, it prayed that it be
"allowed to deposit the aforesaid amount with the court pending resolution of the conflicting
claims of the administrators." Acting on this motion, on November 23, 1965, the trial court
issued an order, already quoted in the narration of facts in this opinion, holding that
payment to both or either of the two administrators is "proper and legal", and so "movant —
can pay to both estates or either of them", considering that "in both cases (Special
Proceedings 1307 and 1672) there is as yet no judicial declaration of heirs nor distribution
of properties to whomsoever are entitled thereto."

The arguments under the instant assignments of error revolve around said order. From the
procedural standpoint, it is claimed that PCIB was not served with a copy of the Institute's
motion, that said motion was heard, considered and resolved on November 23, 1965,
whereas the date set for its hearing was November 20, 1965, and that what the order
grants is different from what is prayed for in the motion. As to the substantive aspect, it is
contended that the matter treated in the motion is beyond the jurisdiction of the probate
court and that the order authorized payment to a person other than the administrator of the
estate of Hodges with whom the Institute had contracted.

The procedural points urged by appellant deserve scant consideration. We must assume,
absent any clear proof to the contrary, that the lower court had acted regularly by seeing to
it that appellant was duly notified. On the other hand, there is nothing irregular in the
court's having resolved the motion three days after the date set for hearing the same.
Moreover, the record reveals that appellants' motion for reconsideration wherein it raised
the same points was denied by the trial court on March 7, 1966 (p. 462, Green R. on A.)
Withal, We are not convinced that the relief granted is not within the general intent of the
Institute's motion.

Insofar as the substantive issues are concerned, all that need be said at this point is that
they are mere reiterations of contentions We have already resolved above adversely to
appellants' position. Incidentally, We may add, perhaps, to erase all doubts as to the
propriety of not disturbing the lower court's orders sanctioning the sales questioned in all
these appeal s by PCIB, that it is only when one of the parties to a contract to convey
property executed by a deceased person raises substantial objections to its being
implemented by the executor or administrator of the decedent's estate that Section 8 of
Rule 89 may not apply and, consequently, the matter has, to be taken up in a separate
action outside of the probate court; but where, as in the cases of the sales herein involved,
the interested parties are in agreement that the conveyance be made, it is properly within
the jurisdiction of the probate court to give its sanction thereto pursuant to the provisions of
the rule just mentioned. And with respect to the supposed automatic rescission clauses
contained in the contracts to sell executed by Hodges in favor of herein appellees, the effect
of said clauses depend on the true nature of the said contracts, despite the nomenclature
appearing therein, which is not controlling, for if they amount to actual contracts of sale
instead of being mere unilateral accepted "promises to sell", (Art. 1479, Civil Code of the
Philippines, 2nd paragraph) thepactum commissorium or the automatic rescission provision
would not operate, as a matter of public policy, unless there has been a previous notarial or
judicial demand by the seller (10 Manresa 263, 2nd ed.) neither of which have been shown
to have been made in connection with the transactions herein involved.
Consequently, We find no merit in the assignments of error
Number LXII to LXVII.

SUMMARY

Considering the fact that this decision is unusually extensive and that the issues herein
taken up and resolved are rather numerous and varied, what with appellant making
seventy-eight assignments of error affecting no less than thirty separate orders of the court
a quo, if only to facilitate proper understanding of the import and extent of our rulings
herein contained, it is perhaps desirable that a brief restatement of the whole situation be
made together with our conclusions in regard to its various factual and legal aspects. .

The instant cases refer to the estate left by the late Charles Newton Hodges as well as that
of his wife, Linnie Jane Hodges, who predeceased him by about five years and a half. In
their respective wills which were executed on different occasions, each one of them
provided mutually as follows: "I give, devise and bequeath all of the rest, residue and
remainder (after funeral and administration expenses, taxes and debts) of my estate, both
real and personal, wherever situated or located, to my beloved (spouse) to have and to hold
unto (him/her) — during (his/her) natural lifetime", subject to the condition that upon the
death of whoever of them survived the other, the remainder of what he or she would inherit
from the other is "give(n), devise(d) and bequeath(ed)" to the brothers and sisters of the
latter.

Mrs. Hodges died first, on May 23, 1957. Four days later, on May 27, Hodges was appointed
special administrator of her estate, and in a separate order of the same date, he was
"allowed or authorized to continue the business in which he was engaged, (buying and
selling personal and real properties) and to perform acts which he had been doing while the
deceased was living." Subsequently, on December 14, 1957, after Mrs. Hodges' will had
been probated and Hodges had been appointed and had qualified as Executor thereof, upon
his motion in which he asserted that he was "not only part owner of the properties left as
conjugal, but also, the successor to all the properties left by the deceased Linnie Jane
Hodges", the trial court ordered that "for the reasons stated in his motion dated December
11, 1957, which the Court considers well taken, ... all the sales, conveyances, leases and
mortgages of all properties left by the deceased Linnie Jane Hodges executed by the
Executor, Charles Newton Hodges are hereby APPROVED. The said Executor is further
authorized to execute subsequent sales, conveyances, leases and mortgages of the
properties left by the said deceased Linnie Jane Hodges in consonance with the wishes
contained in the last will and testament of the latter."

Annually thereafter, Hodges submitted to the court the corresponding statements of account
of his administration, with the particularity that in all his motions, he always made it point
to urge the that "no person interested in the Philippines of the time and place of examining
the herein accounts be given notice as herein executor is the only devisee or legatee of the
deceased in accordance with the last will and testament already probated by the Honorable
Court." All said accounts approved as prayed for.

Nothing else appears to have been done either by the court a quo or Hodges until December
25, 1962. Importantly to be the provision in the will of Mrs. Hodges that her share of the
conjugal partnership was to be inherited by her husband "to have and to hold unto him, my
said husband, during his natural lifetime" and that "at the death of my said husband, I give,
devise and bequeath all the rest, residue and remainder of my estate, both real and
personal, wherever situated or located, to be equally divided among my brothers and
sisters, share and share alike", which provision naturally made it imperative that the
conjugal partnership be promptly liquidated, in order that the "rest, residue and remainder"
of his wife's share thereof, as of the time of Hodges' own death, may be readily known and
identified, no such liquidation was ever undertaken. The record gives no indication of the
reason for such omission, although relatedly, it appears therein:

1. That in his annual statement submitted to the court of the net worth of C.
N. Hodges and the Estate of Linnie Jane Hodges, Hodges repeatedly and
consistently reported the combined income of the conjugal partnership and
then merely divided the same equally between himself and the estate of the
deceased wife, and, more importantly, he also, as consistently, filed
corresponding separate income tax returns for each calendar year for each
resulting half of such combined income, thus reporting that the estate of Mrs.
Hodges had its own income distinct from his own.

2. That when the court a quo happened to inadvertently omit in its order
probating the will of Mrs. Hodges, the name of one of her brothers, Roy
Higdon then already deceased, Hodges lost no time in asking for the proper
correction "in order that the heirs of deceased Roy Higdon may not think or
believe they were omitted, and that they were really interested in the estate
of the deceased Linnie Jane Hodges".

3. That in his aforementioned motion of December 11, 1957, he expressly

stated that "deceased Linnie Jane Hodges died leaving no descendants or
ascendants except brothers and sisters and herein petitioner as the surviving
spouse, to inherit the properties of the decedent", thereby indicating that he
was not excluding his wife's brothers and sisters from the inheritance.

4. That Hodges allegedly made statements and manifestations to the United

States inheritance tax authorities indicating that he had renounced his
inheritance from his wife in favor of her other heirs, which attitude he is
supposed to have reiterated or ratified in an alleged affidavit subscribed and
sworn to here in the Philippines and in which he even purportedly stated that
his reason for so disclaiming and renouncing his rights under his wife's will
was to "absolve (him) or (his) estate from any liability for the payment of
income taxes on income which has accrued to the estate of Linnie Jane
Hodges", his wife, since her death.

On said date, December 25, 1962, Hodges died. The very next day, upon motion of herein
respondent and appellee, Avelina A. Magno, she was appointed by the trial court as
Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings No. 1307
and as Special Administratrix of the estate of Charles Newton Hodges, "in the latter case,
because the last will of said Charles Newton Hodges is still kept in his vault or iron safe and
that the real and personal properties of both spouses may be lost, damaged or go to waste,
unless Special Administratrix is appointed," (Order of December 26, 1962, p. 27, Yellow R.
on A.) although, soon enough, on December 29, 1962, a certain Harold K. Davies was
appointed as her Co-Special Administrator, and when Special Proceedings No. 1672, Testate
Estate of Charles Newton Hodges, was opened, Joe Hodges, as next of kin of the deceased,
was in due time appointed as Co-Administrator of said estate together with Atty. Fernando
P. Mirasol, to replace Magno and Davies, only to be in turn replaced eventually by petitioner
PCIB alone.
At the outset, the two probate proceedings appear to have been proceeding jointly, with
each administrator acting together with the other, under a sort of modus operandi. PCIB
used to secure at the beginning the conformity to and signature of Magno in transactions it
wanted to enter into and submitted the same to the court for approval as their joint acts. So
did Magno do likewise. Somehow, however, differences seem to have arisen, for which
reason, each of them began acting later on separately and independently of each other,
with apparent sanction of the trial court. Thus, PCIB had its own lawyers whom it contracted
and paid handsomely, conducted the business of the estate independently of Magno and
otherwise acted as if all the properties appearing in the name of Charles Newton Hodges
belonged solely and only to his estate, to the exclusion of the brothers and sisters of Mrs.
Hodges, without considering whether or not in fact any of said properties corresponded to
the portion of the conjugal partnership pertaining to the estate of Mrs. Hodges. On the other
hand, Magno made her own expenditures, hired her own lawyers, on the premise that there
is such an estate of Mrs. Hodges, and dealth with some of the properties, appearing in the
name of Hodges, on the assumption that they actually correspond to the estate of Mrs.
Hodges. All of these independent and separate actuations of the two administrators were
invariably approved by the trial court upon submission. Eventually, the differences reached
a point wherein Magno, who was more cognizant than anyone else about the ins and outs of
the businesses and properties of the deceased spouses because of her long and intimate
association with them, made it difficult for PCIB to perform normally its functions as
administrator separately from her. Thus, legal complications arose and the present judicial
controversies came about.

Predicating its position on the tenor of the orders of May 27 and December 14, 1957 as well
as the approval by the court a quo of the annual statements of account of Hodges, PCIB
holds to the view that the estate of Mrs. Hodges has already been in effect closed with the
virtual adjudication in the mentioned orders of her whole estate to Hodges, and that,
therefore, Magno had already ceased since then to have any estate to administer and the
brothers and sisters of Mrs. Hodges have no interests whatsoever in the estate left by
Hodges. Mainly upon such theory, PCIB has come to this Court with a petition
for certiorari and prohibition praying that the lower court's orders allowing respondent
Magno to continue acting as administratrix of the estate of Mrs. Hodges in Special
Proceedings 1307 in the manner she has been doing, as detailed earlier above, be set aside.
Additionally, PCIB maintains that the provision in Mrs. Hodges' will instituting her brothers
and sisters in the manner therein specified is in the nature of a testamentary substitution,
but inasmuch as the purported substitution is not, in its view, in accordance with the
pertinent provisions of the Civil Code, it is ineffective and may not be enforced. It is further
contended that, in any event, inasmuch as the Hodges spouses were both residents of the
Philippines, following the decision of this Court in Aznar vs. Garcia, or the case of
Christensen, 7 SCRA 95, the estate left by Mrs. Hodges could not be more than one-half of
her share of the conjugal partnership, notwithstanding the fact that she was citizen of
Texas, U.S.A., in accordance with Article 16 in relation to Articles 900 and 872 of the Civil
Code. Initially, We issued a preliminary injunction against Magno and allowed PCIB to act
alone.

At the same time PCIB has appealed several separate orders of the trial court approving
individual acts of appellee Magno in her capacity as administratrix of the estate of Mrs.
Hodges, such as, hiring of lawyers for specified fees and incurring expenses of
administration for different purposes and executing deeds of sale in favor of her co-
appellees covering properties which are still registered in the name of Hodges, purportedly
pursuant to corresponding "contracts to sell" executed by Hodges. The said orders are being
questioned on jurisdictional and procedural grounds directly or indirectly predicated on the
principal theory of appellant that all the properties of the two estates belong already to the
estate of Hodges exclusively.

On the other hand, respondent-appellee Magno denies that the trial court's orders of May 27
and December 14, 1957 were meant to be finally adjudicatory of the hereditary rights of
Hodges and contends that they were no more than the court's general sanction of past and
future acts of Hodges as executor of the will of his wife in due course of administration. As
to the point regarding substitution, her position is that what was given by Mrs. Hodges to
her husband under the provision in question was a lifetime usufruct of her share of the
conjugal partnership, with the naked ownership passing directly to her brothers and sisters.
Anent the application of Article 16 of the Civil Code, she claims that the applicable law to
the will of Mrs. Hodges is that of Texas under which, she alleges, there is no system of
legitime, hence, the estate of Mrs. Hodges cannot be less than her share or one-half of the
conjugal partnership properties. She further maintains that, in any event, Hodges had as a
matter of fact and of law renounced his inheritance from his wife and, therefore, her whole
estate passed directly to her brothers and sisters effective at the latest upon the death of
Hodges.

In this decision, for the reasons discussed above, and upon the issues just summarized, We
overrule PCIB's contention that the orders of May 27, 1957 and December 14, 1957 amount
to an adjudication to Hodges of the estate of his wife, and We recognize the present
existence of the estate of Mrs. Hodges, as consisting of properties, which, while registered
in that name of Hodges, do actually correspond to the remainder of the share of Mrs.
Hodges in the conjugal partnership, it appearing that pursuant to the pertinent provisions of
her will, any portion of said share still existing and undisposed of by her husband at the
time of his death should go to her brothers and sisters share and share alike. Factually, We
find that the proven circumstances relevant to the said orders do not warrant the conclusion
that the court intended to make thereby such alleged final adjudication. Legally, We hold
that the tenor of said orders furnish no basis for such a conclusion, and what is more, at the
time said orders were issued, the proceedings had not yet reached the point when a final
distribution and adjudication could be made. Moreover, the interested parties were not duly
notified that such disposition of the estate would be done. At best, therefore, said orders
merely allowed Hodges to dispose of portions of his inheritance in advance of final
adjudication, which is implicitly permitted under Section 2 of Rule 109, there being no
possible prejudice to third parties, inasmuch as Mrs. Hodges had no creditors and all
pertinent taxes have been paid.

More specifically, We hold that, on the basis of circumstances presently extant in the record,
and on the assumption that Hodges' purported renunciation should not be upheld, the
estate of Mrs. Hodges inherited by her brothers and sisters consists of one-fourth of the
community estate of the spouses at the time of her death, minus whatever Hodges had
gratuitously disposed of therefrom during the period from, May 23, 1957, when she died, to
December 25, 1962, when he died provided, that with regard to remunerative dispositions
made by him during the same period, the proceeds thereof, whether in cash or property,
should be deemed as continuing to be part of his wife's estate, unless it can be shown that
he had subsequently disposed of them gratuitously.

At this juncture, it may be reiterated that the question of what are the pertinent laws of
Texas and what would be the estate of Mrs. Hodges under them is basically one of fact, and
considering the respective positions of the parties in regard to said factual issue, it can
already be deemed as settled for the purposes of these cases that, indeed, the free portion
of said estate that could possibly descend to her brothers and sisters by virtue of her will
may not be less than one-fourth of the conjugal estate, it appearing that the difference in
the stands of the parties has reference solely to the legitime of Hodges, PCIB being of the
view that under the laws of Texas, there is such a legitime of one-fourth of said conjugal
estate and Magno contending, on the other hand, that there is none. In other words,
hereafter, whatever might ultimately appear, at the subsequent proceedings, to be actually
the laws of Texas on the matter would no longer be of any consequence, since PCIB would
anyway be in estoppel already to claim that the estate of Mrs. Hodges should be less than
as contended by it now, for admissions by a party related to the effects of foreign laws,
which have to be proven in our courts like any other controverted fact, create estoppel.

In the process, We overrule PCIB's contention that the provision in Mrs. Hodges' will in favor
of her brothers and sisters constitutes ineffective hereditary substitutions. But neither are
We sustaining, on the other hand, Magno's pose that it gave Hodges only a lifetime
usufruct. We hold that by said provision, Mrs. Hodges simultaneously instituted her brothers
and sisters as co-heirs with her husband, with the condition, however, that the latter would
have complete rights of dominion over the whole estate during his lifetime and what would
go to the former would be only the remainder thereof at the time of Hodges' death. In other
words, whereas they are not to inherit only in case of default of Hodges, on the other hand,
Hodges was not obliged to preserve anything for them. Clearly then, the essential elements
of testamentary substitution are absent; the provision in question is a simple case of
conditional simultaneous institution of heirs, whereby the institution of Hodges is subject to
a partial resolutory condition the operative contingency of which is coincidental with that of
the suspensive condition of the institution of his brothers and sisters-in-law, which manner
of institution is not prohibited by law.

We also hold, however, that the estate of Mrs. Hodges inherited by her brothers and sisters
could be more than just stated, but this would depend on (1) whether upon the proper
application of the principle of renvoi in relation to Article 16 of the Civil Code and the
pertinent laws of Texas, it will appear that Hodges had no legitime as contended by Magno,
and (2) whether or not it can be held that Hodges had legally and effectively renounced his
inheritance from his wife. Under the circumstances presently obtaining and in the state of
the record of these cases, as of now, the Court is not in a position to make a final ruling,
whether of fact or of law, on any of these two issues, and We, therefore, reserve said issues
for further proceedings and resolution in the first instance by the court a quo, as
hereinabove indicated. We reiterate, however, that pending such further proceedings, as
matters stand at this stage, Our considered opinion is that it is beyond cavil that since,
under the terms of the will of Mrs. Hodges, her husband could not have anyway legally
adjudicated or caused to be adjudicated to himself her whole share of their conjugal
partnership, albeit he could have disposed any part thereof during his lifetime, the resulting
estate of Mrs. Hodges, of which Magno is the uncontested administratrix, cannot be less
than one-fourth of the conjugal partnership properties, as of the time of her death, minus
what, as explained earlier, have been gratuitously disposed of therefrom, by Hodges in
favor of third persons since then, for even if it were assumed that, as contended by PCIB,
under Article 16 of the Civil Code and applying renvoi the laws of the Philippines are the
ones ultimately applicable, such one-fourth share would be her free disposable portion,
taking into account already the legitime of her husband under Article 900 of the Civil Code.

The foregoing considerations leave the Court with no alternative than to conclude that in
predicating its orders on the assumption, albeit unexpressed therein, that there is an estate
of Mrs. Hodges to be distributed among her brothers and sisters and that respondent Magno
is the legal administratrix thereof, the trial court acted correctly and within its jurisdiction.
Accordingly, the petition for certiorari and prohibition has to be denied. The Court feels
however, that pending the liquidation of the conjugal partnership and the determination of
the specific properties constituting her estate, the two administrators should act conjointly
as ordered in the Court's resolution of September 8, 1972 and as further clarified in the
dispositive portion of its decision.

Anent the appeals from the orders of the lower court sanctioning payment by appellee
Magno, as administratrix, of expenses of administration and attorney's fees, it is obvious
that, with Our holding that there is such an estate of Mrs. Hodges, and for the reasons
stated in the body of this opinion, the said orders should be affirmed. This We do on the
assumption We find justified by the evidence of record, and seemingly agreed to by
appellant PCIB, that the size and value of the properties that should correspond to the
estate of Mrs. Hodges far exceed the total of the attorney's fees and administration
expenses in question.

With respect to the appeals from the orders approving transactions made by appellee
Magno, as administratrix, covering properties registered in the name of Hodges, the details
of which are related earlier above, a distinction must be made between those predicated on
contracts to sell executed by Hodges before the death of his wife, on the one hand, and
those premised on contracts to sell entered into by him after her death. As regards the
latter, We hold that inasmuch as the payments made by appellees constitute proceeds of
sales of properties belonging to the estate of Mrs. Hodges, as may be implied from the tenor
of the motions of May 27 and December 14, 1957, said payments continue to pertain to said
estate, pursuant to her intent obviously reflected in the relevant provisions of her will, on
the assumption that the size and value of the properties to correspond to the estate of Mrs.
Hodges would exceed the total value of all the properties covered by the impugned deeds of
sale, for which reason, said properties may be deemed as pertaining to the estate of Mrs.
Hodges. And there being no showing that thus viewing the situation, there would be
prejudice to anyone, including the government, the Court also holds that, disregarding
procedural technicalities in favor of a pragmatic and practical approach as discussed above,
the assailed orders should be affirmed. Being a stranger to the estate of Mrs. Hodges, PCIB
has no personality to raise the procedural and jurisdictional issues raised by it. And
inasmuch as it does not appear that any of the other heirs of Mrs. Hodges or the
government has objected to any of the orders under appeal, even as to these parties, there
exists no reason for said orders to be set aside.

DISPOSITIVE PART

IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING the
petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-37 and
the other thirty-one numbers hereunder ordered to be added after payment of the
corresponding docket fees, all the orders of the trial court under appeal enumerated in
detail on pages 35 to 37 and 80 to 82 of this decision; the existence of the Testate Estate of
Linnie Jane Hodges, with respondent-appellee Avelina A. Magno, as administratrix thereof is
recognized, and it is declared that, until final judgment is ultimately rendered regarding (1)
the manner of applying Article 16 of the Civil Code of the Philippines to the situation
obtaining in these cases and (2) the factual and legal issue of whether or not Charles
Newton Hodges had effectively and legally renounced his inheritance under the will of Linnie
Jane Hodges, the said estate consists of one-fourth of the community properties of the said
spouses, as of the time of the death of the wife on May 23, 1957, minus whatever the
husband had already gratuitously disposed of in favor of third persons from said date until
his death, provided, first, that with respect to remunerative dispositions, the proceeds
thereof shall continue to be part of the wife's estate, unless subsequently disposed of
gratuitously to third parties by the husband, and second, that should the purported
renunciation be declared legally effective, no deductions whatsoever are to be made from
said estate; in consequence, the preliminary injunction of August 8, 1967, as amended on
October 4 and December 6, 1967, is lifted, and the resolution of September 8, 1972,
directing that petitioner-appellant PCIB, as Administrator of the Testate Estate of Charles
Newton Hodges, in Special Proceedings 1672, and respondent-appellee Avelina A. Magno, as
Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings 1307,
should act thenceforth always conjointly, never independently from each other, as such
administrators, is reiterated, and the same is made part of this judgment and shall continue
in force, pending the liquidation of the conjugal partnership of the deceased spouses and
the determination and segregation from each other of their respective estates, provided,
that upon the finality of this judgment, the trial court should immediately proceed to the
partition of the presently combined estates of the spouses, to the end that the one-half
share thereof of Mrs. Hodges may be properly and clearly identified; thereafter, the trial
court should forthwith segregate the remainder of the one-fourth herein adjudged to be her
estate and cause the same to be turned over or delivered to respondent for her exclusive
administration in Special Proceedings 1307, while the other one-fourth shall remain under
the joint administration of said respondent and petitioner under a joint proceedings in
Special Proceedings 1307 and 1672, whereas the half unquestionably pertaining to Hodges
shall be administered by petitioner exclusively in Special Proceedings 1672, without
prejudice to the resolution by the trial court of the pending motions for its removal as
administrator12; and this arrangement shall be maintained until the final resolution of the
two issues of renvoi and renunciation hereby reserved for further hearing and
determination, and the corresponding complete segregation and partition of the two estates
in the proportions that may result from the said resolution.

Generally and in all other respects, the parties and the court a quo are directed to adhere
henceforth, in all their actuations in Special Proceedings 1307 and 1672, to the views
passed and ruled upon by the Court in the foregoing opinion.

Appellant PCIB is ordered to pay, within five (5) days from notice hereof, thirty-one
additional appeal docket fees, but this decision shall nevertheless become final as to each of
the parties herein after fifteen (15) days from the respective notices to them hereof in
accordance with the rules.

Costs against petitioner-appellant PCIB.

Zaldivar, Castro, Esguerra and Fernandez, JJ., concur.

Makasiar, Antonio, Muñoz Palma and Aquino, JJ., concur in the result.

Separate Opinions
FERNANDO, J., concurring:

I concur on the basis of the procedural pronouncements in the opinion.

TEEHANKEE, J., concurring:

I concur in the result of dismissal of the petition for certiorari and prohibition in Cases L-
27860 and L-27896 and with the affirmance of the appealed orders of the probate court in
Cases L-27936-37.

I also concur with the portion of the dispositive part of the judgment penned by Mr. Justice
Barredo decreeing the lifting of the Court's writ of preliminary injunction of August 8, 1967
as amended on October 4, and December 6, 19671 and ordering in lieu thereof that the
Court's resolution of September 8, 19722 which directed that petitioner-appellant PCIB as
administrator of C. N. (Charles Newton) Hodges' estate (Sp. Proc. No. 1672 and
respondent-appellee Avelina A. Magno as administratrix of Linnie Jane Hodges' estate (Sp.
Proc. No. 1307) should act always conjointly never independently from each other, as such
administrators, is reiterated and shall continue in force and made part of the judgment.

It is manifest from the record that petitioner-appellant PCIB's primal contention in the cases
at bar belatedly filed by it with this Court on August 1, 1967 (over ten (10) years after
Linnie Jane Hodges' death on May 23, 1957 and (over five (5) years after her husband C.N.
Hodges' death on December 25, 1962 — during which time both estates have
been pending settlement and distribution to the decedents' respective rightful heirs all this
time up to now) — that the probate court per its order of December 14, 1957
(supplementing an earlier order of May 25, 1957)3 in granting C. N. Hodges' motion as
Executor of his wife Linnie's estate to continue their "business of buying and selling personal
and real properties" and approving "all sales, conveyances, leases and mortgages" made
and to be made by him as such executor under his obligation to submit his yearly
accounts in effect declared him as sole heir of his wife's estate and nothing remains to be
done except to formally close her estate (Sp. Proc. No. 1307) as her estate was thereby
merged with his own so that nothing remains of it that may be adjudicated to her brothers
and sisters as her designated heirs after him,4 — is wholly untenable and deserves scant
consideration.

Aside from having been put forth as an obvious afterthought much too late in the day, this
contention of PCIB that there no longer exists any separate estate of Linnie Jane Hodges
after the probate court's order of December 14, 1957 goes against the very acts and
judicial admissions of C.N. Hodges as her executor whereby he consistently recognized
the separate existence and identity of his wife's estate apart from his own separate estate
and from his own share of their conjugal partnership and estate and "never considered the
whole estate as a single one belonging exclusively to himself" during the entire period that
he survived her for over five (5) years up to the time of his own death on December 25,
19625 and against the identical acts and judicial admissions of PCIB as administrator of C.N.
Hodges' estate until PCIB sought in 1966 to take over both estates as pertaining to its sole
administration.

PCIB is now barred and estopped from contradicting or taking a belated position
contradictory to or inconsistent with its previous admissions 6 (as well as those of C.N.
Hodges himself in his lifetime and of whose estate PCIB is merely an administrator)
recognizing the existence and identity of Linnie Jane Hodges' separate estate and the legal
rights and interests therein of her brothers and sisters as her designated heirs in her will.
PCIB's petition for certiorari and prohibition to declare all acts of the probate court in Linnie
Jane Hodges' estate subsequent to its order of December 14, 1957 as "null and void for
having been issued without jurisdiction" must therefore be dismissed with the rejection of
its belated and untenable contention that there is no longer any estate of Mrs. Hodges of
which respondent Avelina Magno is the duly appointed and acting administratrix.

PCIB's appeal7 from the probate court's various orders recognizing respondent Magno as
administratrix of Linnie's estate (Sp. Proc No. 1307) and sanctioning her acts of
administration of said estate and approving the sales contracts executed by her with the
various individual appellees, which involve basically the same primal issue raised in the
petition as to whether there still exists a separate estate of Linnie of which respondent-
appellee Magno may continue to be the administratrix, must necessarily fail — a result of
the Court's main opinion at bar that there doesexist such an estate and that the two estates
(husband's and wife's) must be administered cojointly by their respective administrators
(PCIB and Magno).

The dispositive portion of the main opinion

The main opinion disposes that:

IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered

DISMISSING the petition in G. R. Nos. L-27860 and L-27896, and
AFFIRMING, in G. R. Nos. L-27936-37 and the other thirty-one numbers
hereunder ordered to be added after payment of the corresponding docket
fees, all the orders of the trial court under appeal enumerated in detail on
pages 35 to 37 and 80 to 82 of this decision:

The existence of the Testate Estate of Linnie Jane Hodges, with respondent-
appellee Avelina A. Magno, as administratrix thereof is recognized, and

It is declared that, until final judgment is ultimately rendered regarding (1)

the manner of applying Article 16 of the Civil Code of the Philippines to the
situation obtaining in these cases and (2) the factual and legal issues of
whether or not Charles Newton Hodges has effectively and legally renounced
his inheritance under the will of Linnie Jane Hodges, the said estate consists
of one-fourthof the community properties of the said spouses, as of the time
of the death of the wife on May 23, 1957, minus whatever the husband had
already gratuitously disposed of in favor of third persons from said date until
his death, provided, first, that with respect to remunerative dispositions, the
proceeds thereof shall continue to be part of the wife's estate, unless
subsequently disposed of gratuitously to third parties by the husband, and
second, that should the purported renunciation be declared legally
effective, no deduction whatsoever are to be made from said estate;

In consequence, the preliminary injunction of August 8, 1967, as amended on

October 4 and December 6, 1967, is lifted and the resolution of September 8,
1972, directing that petitioner-appellant PCIB, as Administrator of the Testate
Estate of Charles Newton Hodges in Special Proceedings 1672, and
respondent-appellee Avelina A. Magno, as Administratrix of the Testate Estate
of Linnie Jane Hodges in Special Proceedings 1307, should act thenceforth
always conjointly, never independently from each other, as such
administrators, is reiterated, and the same is made part of this judgment and
 shall continue in force, pending the liquidation of the conjugal partnership of
the deceased spouses and the determination and segregation from each other
of their respective estates; provided, that upon the finality of this judgment,
the trial court should immediately proceed to the partition of the presently
combined estates of the spouses, to the end that the one-half share thereof
of Mrs. Hodges may be properly and clearly identified;

Thereafter, the trial court should forthwith segregate the remainder of

the one-fourth herein adjudged to be her estate and cause the same to be
turned over or delivered to respondent for her exclusive administration in
Special Proceedings 1307, while the other one-fourth shall remain under the
joint administrative of said respondent and petitioner under a joint
proceedings in Special Proceedings 1307 and 1672, whereas
the half unquestionably pertaining to Hodges shall
be administered by petitioner exclusively in Special Proceedings 1672, without
prejudice to the resolution by the trial court of thepending motions for its
removal as administrator;

And this arrangement shall be maintained until the final resolution of the two
issues of renvoi and renunciation hereby reserved for further hearing and
determination, and the corresponding completesegregation and partition of
the two estates in the proportions that may result from the said resolution.

Generally and in all other respects, the parties and the court a quo are
directed to adhere henceforth, in all their actuations in Special Proceedings
1307 and 1672, to the views passed and ruled upon by the Court in the
foregoing opinion.8

Minimum estimate of Mrs. Hodges' estate:

One-fourth of conjugal properties.

The main opinion in declaring the existence of a separate estate of Linnie Jane Hodges
which shall pass to her brothers and sisters with right of representation (by their heirs) as
her duly designated heirs declares that her estate consists as a minimum (i.e. assuming (1)
that under Article 16 of the Philippine Civil Code C. N. Hodges as surviving husband was
entitled to one-half of her estate as legitime and (2) that he had not effectively and
legally renouncedhis inheritance under her will) of "one-fourth of the community properties
of the said spouses, as of the time of the death of the wife on May 23,
1957, minus whatever the husband had already gratuitously disposed of in favor of third
persons from said date until his death," with the proviso that proceeds
of remunerative dispositions or sales for valuable consideration made by C. N. Hodges after
his wife Linnie's death shall continue to be part of her estate unless subsequently disposed
of by him gratuitously to third parties subject to the condition, however, that if he is held to
have validly and effectively renounced his inheritance under his wife's will, no deductions of
any dispositions made by Hodges even if gratuitously are to be made from his wife Linnie's
estate which shall pass intact to her brothers and sisters as her designated heirs called in
her will to succeed to her estate upon the death of her husband C. N. Hodges.

Differences with the main opinion

I do not share the main opinion's view that Linnie Jane Hodges instituted her husband as
her heir under her will "to have dominion over all her estate during his lifetime ...
as absolute owner of the properties ..."9 and that she bequeathed "the whole of her estate
to be owned and enjoyed by him as universal and sole heir with absolute dominion over
them only during his lifetime, which means that while he could completely and absolutely
dispose of any portion thereof inter vivos to anyone other than himself, he was not free to
do so mortis causa, and all his rights to what might remain upon his death would cease
entirely upon the occurrence of that contingency, inasmuch as the right of his brothers and
sisters-in-law to the inheritance, although vested already upon the death of Mrs. Hodges,
would automatically become operative upon the occurrence of the death of Hodges in the
event of actual existence of any remainder of her estate then." 10

As will be amplified hereinafter, I do not subscribe to such a view that Linnie Jane Hodges
willed "full and absolute ownership" and "absolute dominion" over her estate to her
husband, but rather that she named her husband C. N. Hodges and her brothers and sisters
as instituted heirs with a term under Article 885 of our Civil Code, to wit, Hodges as
instituted heir with a resolutory term whereunder his right to the succession ceased
in diem upon arrival of the resolutory term of his death on December 25, 1962 and her
brothers and sisters as instituted heirs with a suspensive term whereunder their right to the
succession commenced ex die upon arrival of the suspensive term of the death of C. N.
Hodges on December 25, 1962.

Hence, while agreeing with the main opinion that the proceeds of all remunerative
dispositions made by C. N. Hodges after his wife's death remain an integral part of his wife's
estate which she willed to her brothers and sisters, I submit that C. N. Hodges
could not validly make gratuitous dispositions of any part or all of his wife's estate —
"completely and absolutely dispose of any portion thereof inter vivos to anyone other than
himself" in the language of the main opinion, supra — and thereby render ineffectual and
nugatory her institution of her brothers and sisters as her designated heirs to succeed to
her whole estate "at the death of (her) husband." If according to the main opinion, Hodges
could not make such gratuitous "complete and absolute dispositions" of his wife Linnie's
estate "mortis causa," it would seem that by the same token and rationale he was likewise
proscribed by the will from making such dispositions of Linnie's estate inter vivos.

I believe that the two questions of renvoi and renunciation should be

resolved preferentially and expeditiously by the probate court ahead of the partition and
segregation of the minimum one-fourth of the conjugal or community properties
constituting Linnie Jane Hodges' separate estate, which task considering that it is now
seventeen (17) years since Linnie Jane Hodges' death and her conjugal estate with C. N.
Hodges has remained unliquidated up to now might take a similar number of years to
unravel with the numerous items, transactions and details of the sizable estates involved.

Such partition of the minimum one-fourth would not be final, since if the two prejudicial
questions of renvoi and renunciation were resolved favorably to Linnie's estate meaning to
say that if it should be held that C. N. Hodges is not entitled to any legitime of her estate
and at any rate he had totally renounced his inheritance under the will), then Linnie's estate
would consist not only of the minimum one-fourth but one-half of the conjugal or
community properties of the Hodges spouses, which would require again the partition and
segregation of still another one-fourth of said. properties
to complete Linnie's separate estate.

My differences with the main opinion involve further the legal concepts, effects and
consequences of the testamentary dispositions of Linnie Jane Hodges in her will and the
question of the best to reach a solution of the pressing question of expediting the closing of
the estates which after all do not appear to involve any outstanding debts nor any dispute
between the heirs and should therefore be promptly settled now after all these years
without any further undue complications and delays and distributed to the heirs for their full
enjoyment and benefit. As no consensus appears to have been reached thereon by a
majority of the Court, I propose to state views as concisely as possible with the sole end in
view that they may be of some assistance to the probate court and the parties in reaching
an expeditious closing and settlement of the estates of the Hodges spouses.

Two Assumptions

As indicated above, the declaration of the minimum of Mrs. Hodges' estate as one-fourth of
the conjugal properties is based on two assumptions most favorable to C. N. Hodges' estate
and his heirs, namely (1) that the probate court must accept the renvoi or "reference
back" 11 allegedly provided by the laws of the State of Texas (of which state the Hodges
spouses were citizens) whereby the civil laws of the Philippines as the domicile of the
Hodges spouses would govern their succession notwithstanding the provisions of Article 16
of our Civil Code (which provides that the national law of the decedents, in this case, of
Texas, shall govern their succession) with the result that her estate would consist of no
more than one-fourth of the conjugal properties since the legitime of her husband (the
other one-fourth of said conjugal properties or one-half of her estate, under Article 900 of
our Civil Code) could not then be disposed of nor burdened with any condition by her and
(2) that C.N. Hodges had not effectively and legally renounced his inheritance under his
wife's will.

These two assumptions are of course flatly disputed by respondent-appellee Magno as Mrs.
Hodges' administratrix, who avers that the law of the State of Texas governs her succession
and does not provide for and legitime, hence, her brothers and sisters are entitled to
succeed to the whole of her share of the conjugal properties which is one-halfthereof and
that in any event, Hodges had totally renounced all his rights under the will.

The main opinion concedes that "(I)n the interest of settling the estates herein involved
soonest, it would be best, indeed, if these conflicting claims of the parties were determined
in these proceedings." It observes however that this cannot be done due to the inadequacy
of the evidence submitted by the parties in the probate court and of the parties'
discussion, viz, "there is no clear and reliable proof of what the possibly applicable laws of
Texas are. Then also, the genuineness of the documents relied upon by respondent Magno
[re Hodges' renunciation] is disputed." 12

Hence, the main opinion expressly reserves resolution and determination on these two
conflicting claims and issues which it deems "are not properly before the Court
now," 13 and specifically holds that "(A)ccordingly, the only question that remains to be
settled in the further proceedings hereby ordered to be held in the court below is how much
more than as fixed above is the estate of Mrs. Hodges, and this would depend on (1)
whether or not the applicable laws of Texas do provide in effect for more, such as, when
there is no legitime provided therein, and (2) whether or not Hodges has validly waived his
whole inheritance from Mrs. Hodges." 14

Suggested guidelines

Considering that the only unresolved issue has thus been narrowed down and in consonance
with the ruling spirit of our probate law calling for the prompt settlement of the estates of
deceased persons for the benefit of creditors and those entitled to the residue by way of
inheritance — considering that the estates have been long pending settlement since 1957
and 1962, respectively — it was felt that the Court should lay down specific guidelines for
the guidance of the probate court towards the end that it may expedite the closing of the
protracted estates proceedings below to the mutual satisfaction of the heirs and without
need of a dissatisfied party elevating its resolution of this only remaining issue once more to
this Court and dragging out indefinitely the proceedings.

After all, the only question that remains depends for its determination on the resolution of
the two questions of renvoiand renunciation, i.e. as to whether C. N. Hodges can claim
a legitime and whether he had renounced the inheritance. But as already indicated above,
the Court without reaching a consensus which would finally resolve the conflicting claims
here and now in this case opted that "these and other relevant matters should first be
threshed out fully in the trial court in the proceedings hereinafter to be held for the purpose
of ascertaining and/or distributing the estate of Mrs. Hodges to her heirs in accordance with
her duly probated will." 15

The writer thus feels that laying down the premises and principles governing the nature,
effects and consequences of Linnie Jane Hodges' testamentary dispositions in relation to her
conjugal partnership and co-ownership of properties with her husband C. N. Hodges and
"thinking out" the end results, depending on whether the evidence directed to be formally
received by the probate court would bear out that under renvoi C. N. Hodges was or was
not entitled to claim a legitime of one-half of his wife Linnie's estate and/or that he had or
had not effectively and validly renounced his inheritance should help clear the decks, as it
were, and assist the probate court in resolving the onlyremaining question of how much
more than the minimum one-fourth of the community properties of the Hodges
spouses herein finally determined should be awarded as the separate estate of Linnie,
particularly since the views expressed in the main opinion have not gained a consensus of
the Court. Hence, the following suggested guidelines, which needless to state, represent
the personal opinion and views of the writer:

1. To begin with, as pointed out in the main opinion, "according to Hodges' own inventory
submitted by him as executor of the estate of his wife, practically all their properties
were conjugal which means that the spouses have equal shares therein." 16

2. Upon the death of Mrs. Hodges on May 23, 1957, and the dissolution thereby of the
marriage, the law imposed upon Hodges as surviving husband the duty of inventorying,
administering and liquidating the conjugal or community property. 17 Hodges failed to
discharge this duty of liquidating the conjugal partnership and estate. On the contrary, he
sought and obtained authorization from the probate court
to continue the conjugal partnership's business of buying and selling real and personal
properties.

In his annual accounts submitted to the probate court as executor of Mrs. Hodges' estate,
Hodges thus consistentlyreported the considerable combined income (in six figures) of
the conjugal partnership or coownership and then divided the same equally between himself
and Mrs. Hodges' estate and as consistently filed separate income tax returns and paid the
income taxes for each resulting half of such combined income corresponding to his own and
to Mrs. Hodges' estate. 18 (Parenthetically, he could not in law do this, had he adjudicated
Linnie's entire estate to himself, thus supporting the view advanced even in the main
opinion that "Hodges waived not only his rights to the fruits but to the properties
themselves." 19
By operation of the law of trust 20 as well as by his own acknowledgment and acts,
therefore, all transactions made by Hodges after his wife's death were deemed for and on
behalf of their unliquidated conjugal partnership and community estate and were so
reported and treated by him.

3. With this premise established that all transactions of Hodges after his wife's death were
for and on behalf of their unliquidated conjugal partnership and community estate, share
and share alike, it should be clear that no gratuitousdispositions, if any, made by C. N.
Hodges from his wife Linnie's estate should be deducted from her separateestate as held in
the main opinion. On the contrary, any such gratuitous dispositions should be charged to his
own share of the conjugal estate since he had no authority or right to make
any gratuitous dispositions of Linnie's properties to the prejudice of her brothers and sisters
whom she called to her succession upon his death, not to mention that the very authority
obtained by him from the probate court per its orders of May 25, and December 14, 1957
was to continue the conjugal partnership's business of buying and selling real properties for
the account of their unliquidated conjugal estate and co-ownership, share and share alike
and not to make any free dispositions of Linnie's estate.

4. All transactions as well after the death on December 25, 1962 of Hodges himself appear
perforce and necessarily to have been conducted, on the same premise, for and on behalf of
their unliquidated conjugal partnership and/or co-ownership, share and share alike — since
the conjugal partnership remained unliquidated — which is another way of saying that such
transactions, purchases and sales, mostly the latter, must be deemed in effect to have been
made for the respective estates of C. N. Hodges and of his wife Linnie Jane Hodges, as both
estates continued to have an equal stake and share in the conjugal partnership which was
not only left unliquidated but continued as a co-ownership or joint business with the probate
court's approval by Hodges during the five-year period that he survived his wife.

This explains the probate court's action of requiring that deeds of sale executed by PCIB as
Hodges' estate's administrator be "signed jointly" by respondent Magno as Mrs. Hodges'
estate's administratrix, as well as its order authorizing payment by lot purchasers from the
Hodges to either estate, since "there is as yet no judicial declaration of heirs nor distribution
of properties to whomsoever are entitled thereto." 22

And this equally furnishes the rationale of the main opinion for continued conjoint
administration by the administrators of the two estates of the deceased spouses, "pending
the liquidation of the conjugal partnership," 23since "it is but logical that both estates should
be administered jointly by the representatives of both, pending their segregation from each
other. Particularly ... because the actuations so far of PCIB evince a determined, albeit
groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance." 24 5.
Antly by the representatives of both, pending their segregation from each other. Particularly
... because the actuations so far of PCIB evince a determined, albeit groundless, intent to
exclude the other heirs of Mrs. Hodges from their inheritance." 24

5. As stressed in the main opinion, the determination of the only unresolved issue of how
much more than the minimum of one-fourth of the community or conjugal properties of the
Hodges spouses pertains to Mrs. Hodges' estate depends on the twin questions
of renunciation and renvoi. It directed consequently that "a joint hearing of the two probate
proceedings herein involved" be held by the probate court for the reception of "further
evidence" in order to finally resolved these twin questions. 25
(a) On the question of renunciation, it is believed that all that the probate court has to do is
to receive formally in evidence the various documents annexed to respondent Magno's
answer at bar, 26 namely: Copy of the U.S. Estate Tax Return filed on August 8, 1958 by C.
N. Hodges for his wife Linnie's estate wherein he purportedly declared that he
was renouncing his inheritance under his wife's will in favor of her brothers and sisters as
co-heirs designated with him and that it was his "intention (as) surviving husband of the
deceased to distribute the remaining property and interests of the deceased in their
community estate to the devisee and legatees named in the will when the debts, liabilities,
taxes and expenses of administration are finally determined and paid;" 27 and

The affidavit of ratification of such renunciation (which places him in estoppel) allegedly
executed on August 9, 1962 by C. N. Hodges in Iloilo City wherein he reaffirmed that "...
on August 8, 1958, I renounced and disclaimed any and all right to receive the rents,
emoluments and income from said estate" and further declared that "(T)he purpose of this
affidavit is to ratify and confirm, and I do hereby ratify and confirm, the declaration made in
schedule M of said return and hereby formally disclaim and renounce any right on my part
to receive any of the said rents, emoluments and income from the estate of my deceased
wife, Linnie Jane Hodges. This affidavit is made to absolve me or my estate from any
liability for the payment of income taxes on income which has accrued to the estate
of Linnie Jane Hodges since the death of the said Linnie Jane Hodges on May 23, 1957." 28

(b) On the question of renvoi, all that remains for the probate court to do is to formally
receive in evidence duly authenticated copies of the laws of the State of Texas governing
the succession of Linnie Jane Hodges and her husband C. N. Hodges as citizens of said State
at the time of their respective deaths on May 23, 1957 and December 25, 1962. 29

6. The text and tenor of the declarations by C. N. Hodges of renunciation of his inheritance
from his wife in favor of her other named heirs in her will (her brothers and sisters and their
respective heirs) as ratified and reiterated expressly in his affidavit of renunciation executed
four years later for the avowed purpose of not being held liable for payment of income taxes
on income which has accrued to his wife's estate since her death indicate a valid and
effective renunciation.

Once the evidence has been formally admitted and its genuineness and legal effectivity
established by the probate court, the renunciation by C. N. Hodges must be given due effect
with the result that C. N. Hodges therefore acquired no part of his wife's one-half share of
the community properties since he removed himself as an heir by virtue of his renunciation.
By simple substitution then under Articles 857 and 859 of our Civil Code 30 and by virtue of
the will's institution of heirs, since "the heir originally instituted C. N. Hodges) does not
become an heir" 31 by force of his renunciation, Mrs. Hodges' brothers and sisters whom she
designated as her heirs upon her husband's death are called immediately to her succession.

Consequently, the said community and conjugal properties would then pertain pro indiviso
share and share alike to their respective estates, with each estate, however, shouldering its
own expenses of administration, estate and inheritance taxes, if any remain unpaid,
attorneys' fees and other like expenses and the net remainder to be adjudicated directly to
the decedents' respective brothers and sisters (and their heirs) as the heirs duly designated
in their respective wills. The question of renvoi becomes immaterial since most laws and our
laws permit such renunciation of inheritance.
7. If there were no renunciation (or the same may somehow be declared to have not been
valid and effective) by C. N. Hodges of his inheritance from his wife, however, what would
be the consequence?

(a) If the laws on succession of the State of Texas do provide for renvoi or "reference back"
to Philippine law as the domiciliary law of the Hodges' spouses governing their succession,
then petitioners' view that Mrs. Hodges' estate would consist only of the minimum of "one-
fourth of the community properties of the said spouses, as of the time of (her) death on
May 23, 1957" would have to be sustained and C. N. Hodges' estate would consist of three-
fourths of the community properties, comprising his own one-half (or two-fourths) share
and the other fourth of Mrs. Hodges' estate as the legitime granted him as surviving
spouse by Philippine law (Article 900 of the Civil Code) which could not be disposed of nor
burdened with any condition by Mrs. Hodges as testatrix.

(b) If the laws on succession of the State of Texas do not provide for such renvoi and
respondent Magno's assertion is correct that the Texas law which would then prevail,
provides for no legitime for C. N. Hodges as the surviving spouse, then respondent Magno's
assertion that Mrs. Hodges' estate would consist of one-half of the community properties
(with the other half pertaining to C. N. Hodges) would have to be sustained. The community
and conjugal properties would then pertain share and share alike to their respective estates,
with each estate shouldering its own expenses of administration in the same manner stated
in the last paragraph of paragraph 6 hereof. .

8. As to the nature of the institution of heirs made by Mrs. Hodges in her will, the main
opinion holds that "(T)he brothers and sisters of Mrs. Hodges are not substitutes for
Hodges; rather, they are also heirs instituted simultaneously with Hodges," but goes further
and holds that "it was not the usufruct alone of her estate ... that she bequeathed to
Hodges during his lifetime, but the full ownership thereof, although the same was to last
also during his lifetime only, even as there was no restriction against his disposing or
conveying the whole or any portion thereof anybody other than himself" and describes
Hodges "as universal and sole heir with absolute dominion over Mrs. Hodges' estate (except
over their Lubbock, Texas property ), 32 adding that "Hodges was not obliged to preserve
anything for them" (referring to Mrs. Hodges' brothers and sisters as instituted co-heirs). 33

Contrary to this view of the main opinion, the writer submits that the provisions of Mrs.
Hodges' will did not grant to C.N. Hodges "full ownership" nor "absolute dominion" over her
estate, such that he could as "universal and sole heir" by the mere expedient
of gratuitously disposing to third persons her whole estate during his lifetime nullify her
institution of her brothers and sisters as his co-heirs to succeed to her whole estate "at the
death of (her) husband," deprive them of any inheritance and make his own brothers and
sisters in effect sole heirs not only of his own estate but of his wife's estate as well.

Thus, while Linnie Jane Hodges did not expressly name her brothers and sisters as
substitutes for Hodges because she willed that they would enter into the succession upon
his death, still it cannot be gainsaid, as the main opinion concedes, "that they are
also heirs instituted simultaneously with Hodges, subject however to certain conditions,
partially resolutory insofar as Hodges was concerned and correspondingly suspensive with
reference to his brothers and sisters-in-law." 34

Hence, if Hodges is found to have validly renounced his inheritance, there would be a
substitution of heirs in fact and in law since Linnie's brothers and sisters as the heirs
"simultaneously instituted" with a suspensive term would be called immediately to her
succession instead of waiting for the arrival of suspensive term of Hodges' death, since as
the heir originally instituted he does not become an heir by force of his renunciation and
therefore they would "enter into the inheritance in default of the heir originally instituted"
(Hodges) under the provisions of Article 857 and 859 of our Civil Code, supra, 35 thus
accelerating their succession to her estate as a consequence of Hodges' renunciation.

Consequently, Linnie Jane Hodges willed that her husband C.N. Hodges would "during his
natural lifetime ... manage, control, use and enjoy said estate" and that only "all rents,
emoluments and income" alone shall belong to him. She further willed that while he
could sell and purchase properties of her estate, and "use any part of the principal estate,"
such principal notwithstanding "any changes in the physical properties of said estate"(i.e.
new properties acquired or exchanged) would still pertain to her estate, which at the time
of his death would pass in full dominion to her brothers and sisters as the ultimate sole and
universal heirs of her estate. 36

The testatrix Linnie Jane Hodges in her will thus principally provided that "I give, devise and
bequeath all of the rest, residue and remainder of my estate, both personal and real ... to
my beloved husband, Charles Newton Hodges, to have and to hold with him ... during his
natural lifetime;" 37 that "(he) shall have the right to manage, control, use and enjoy said
estate during his lifetime, ... to make any changes in the physical properties of said estate,
by sale ... and the purchase of any other or additional property as he may think best ... . All
rents, emoluments and income from said estate shall belong to him and he is further
authorized to use any part of the principal of said estate as he may need or desire, ... he
shall not sell or otherwise dispose of any of the improved property now owned by us,
located at ... City of Lubbock, Texas ... . He shall have the right to subdivide any farm land
and sell lots therein, and may sell unimproved town lots;" 38 that "(A)t the death of my said
husband, Charles Newton, I give, devise and bequeath all of the rest, residue and remainder
of my estate, both personal and real, ... to be equally divided among my brothers and
sisters, share and share alike, namely: Esta Higdon, Emma Howell, Leonard Higdon, Roy
Higdon, Sadie Rascoe, Era Roman and Nimroy Higdon;" 39 and that "(I)n case of the death
of any of my brothers and/or sisters ...prior to the death of my husband ... the heirs of such
deceased brother or sister shall take jointly the share which would have gone to such
brother or sister had she or he survived." 40

Such provisions are wholly consistent with the view already fully expounded above that all
transactions and sales made by Hodges after his wife Linnie's death were by operation of
the law of trust as well as by his own acknowledgment and acts deemed for and on behalf of
their unliquidated conjugal partnership and community estate, share and share alike, with
the express authorization of the probate court per its orders of May 25, and December 14,
1957 granting Hodges' motion to continue the conjugal partnership business of buying and
selling real estate even after her death. By the same token, Hodges could not conceivably
be deemed to have had any authority or right to dispose gratuitously of any portion of her
estate to whose succession she had called her brothers and sisters upon his death.

9. Such institutions of heirs with a term are expressly recognized and permitted under Book
III, Chapter 2, section 4 of our Civil Code dealing with "conditional testamentary
dispositions and testamentary dispositions with a term." 41

Thus, Article 885 of our Civil Code expressly provides that:

ART 885. The designation of the day or time when the effects of the
institution of an heir shall commence or cease shall be valid.
 In both cases, the legal heir shall be considered as called to the succession
until the arrival of the period or its expiration. But in the first case he shall
not enter into possession of the property until after having given sufficient
security, with the intervention of the instituted heir.

Accordingly, under the terms of Mrs. Hodges' will, her husband's right to the succession as
the instituted heir ceased in diem, i.e. upon the arrival of the resolutory term of
his death on December 25, 1962, while her brothers' and sisters' right to the succession
also as instituted heirs commenced ex die, i.e. upon the expiration of the suspensive term
(as far as they were concerned) of the death of C. N. Hodges on December 25, 1962 . 42

As stated in Padilla's treatise on the Civil Code, "A term is a period whose arrival is certain
although the exact date thereof may be uncertain. A term may have either a suspensive or
a resolutory effect. The designation of the day when the legacy "shall commence" is ex die,
or a term with a suspensive effect, from a certain day. The designation of the day when the
legacy "shall cease" is in diem or a term with a resolutory effect, until a certain day." He
adds that "A legacy based upon a certain age or upon the death of a person is not a
condition but a term. If the arrival of the term would commence the right of the heir, it is
suspensive. If the arrival of the term would terminate his right, it is resolutory" and that
"upon the arrival of the period, in case of a suspensive term, the instituted heir is entitled to
the succession, and in case of a resolutory term, his right terminates." 43

10. The sizable estates herein involved have now been pending settlement for a
considerably protracted period (of seventeen years counted from Linnie's death in 1957),
and all that is left to be done is to resolve the only remaining issue (involving the two
questions of renunciation and renvoi) hereinabove discussed in order to close up the estates
and finally effect distribution to the deceased spouses' respective brothers and sisters and
their heirs as the heirs duly instituted in their wills long admitted to probate. Hence, it is
advisable for said instituted heirs and their heirs in turn 44 to come to terms for the
adjudication and distribution to them pro-indiviso of the up to now unliquidated community
properties of the estates of the Hodges spouses (derived from their unliquidated conjugal
partnership) rather than to get bogged down with the formidable task of physically
segregating and partitioning the two estates with the numerous transactions, items and
details and physical changes of properties involved. The estates proceedings would thus be
closed and they could then name their respective attorneys-in-fact to work out the details of
segregating, dividing or partitioning the unliquidated community properties or liquidating
them — which can be done then on their own without further need of intervention on the
part of the probate court as well as allow them meanwhile to enjoy and make use of the
income and cash and liquid assets of the estates in such manner as may be agreed upon
between them.

Such a settlement or modus vivendi between the heirs of the unliquidated two estates for
the mutual benefit of all of them should not prove difficult, considering that it appears as
stated in the main opinion that 22.968149% of the share or undivided estate of C. N.
Hodges have already been acquired by the heirs of Linnie Jane Hodges from certain heirs of
her husband, while certain other heirs representing 17.34375% of Hodges' estate were
joining cause with Linnie's heirs in their pending and unresolved motion for the removal of
petitioner PCIB as administrator of Hodges' estate, 45 apparently impatient with the situation
which has apparently degenerated into a running battle between the administrators of the
two estates to the common prejudice of all the heirs.
11. As earlier stated, the writer has taken the pain of suggesting these guidelines which
may serve to guide the probate court as well as the parties towards expediting the winding
up and closing of the estates and the distribution of the net estates to the instituted heirs
and their successors duly entitled thereto. The probate court should exert all effort towards
this desired objective pursuant to the mandate of our probate law, bearing in mind the
Court's admonition in previous cases that "courts of first instance should exert themselves
to close up estate within twelve months from the time they are presented, and they may
refuse to allow any compensation to executors and administrators who do not actively
labor to that end, and they may even adopt harsher measures." 46

Timeliness of appeals and imposition of

thirty-one (31) additional docket fees

Two appeals were docketed with this Court, as per the two records on appeal submitted
(one with a green cover and the other with a yellow cover). As stated at the outset, these
appeals involve basically the same primal issue raised in the petition for certiorari as to
whether there still exists a separate estate of Linnie Jane Hodges which has to continue to
be administered by respondent Magno. Considering the main opinion's ruling in the
affirmative and that her estate and that of her husband (since they jointly
comprise unliquidated community properties) must be administered conjointly by their
respective administrators (PCIB and Magno), the said appeals (involving thirty-three
different orders of the probate court approving sales contracts and other acts of
administration executed and performed by respondent Magno on behalf of Linnie's estate)
have been necessarily overruled by the Court's decision at bar.

(a) The "priority question" raised by respondent Magno as to the patent failure of the two
records on appeal to show on their face and state the material data that the appeals were
timely taken within the 30-day reglamentary period as required by Rule 41, section 6 of the
Rules of Court, has been brushed aside by the main opinion with the statement that it is
"not necessary to pass upon the timeliness of any of said appeals" since they "revolve
around practically the same main issues and ... it is admitted that some of them have been
timely taken." 47 The main opinion thus proceeded with the determination of the thirty-three
appealed orders despite the grave defect of the appellant PCIB's records on appeal and their
failure to state the required material data showing the timeliness of the appeals.

Such disposition of the question of timeliness deemed as "mandatory and jurisdictional" in a

number of cases merits the writer's concurrence in that the question raised has been
subordinated to the paramount considerations of substantial justice and a "liberal
interpretation of the rules" applied so as not to derogate and detract from the primary
intent and purpose of the rules, viz "the proper and just determination of a litigation"48 —
which calls for "adherence to a liberal construction of the procedural rules in order to attain
their objective of substantial justice and of avoiding denials of substantial justice due to
procedural technicalities." 49

Thus, the main opinion in consonance with the same paramount considerations of
substantial justice has likewise overruled respondents' objection to petitioner's taking the
recourse of "the present remedy of certiorari and prohibition" — "despite the conceded
availability of appeal" — on the ground that "there is a common thread among the basic
issues involved in all these thirty-three appeals — (which) deal with practically the same
basic issues that can be more expeditiously resolved or determined in a single special civil
action . . . " 50
(b) Since the basic issues have been in effect resolved in the special civil action at bar (as
above stated) with the dismissal of the petition by virtue of the Court's judgment as to the
continued existence of a separate estate of Linnie Jane Hodges and the affirmance as a
necessary consequence of the appealed orders approving and sanctioning respondent
Magno's sales contracts and acts of administration, some doubt would arise as to the
propriety of the main opinion requiring the payment by PCIB of thirty-one
(31) additional appeal docket fees. This doubt is further enhanced by the question of
whether it would make the cost of appeal unduly expensive or prohibitive by requiring the
payment of a separate appeal docket fee for each incidental order questioned when the
resolution of all such incidental questioned orders involve basically one and the same main
issue (in this case, the existence of a separate estate of Linnie Jane Hodges) and can be
more expeditiously resolved or determined in a single special civil action" (for which
a single docket fee is required) as stated in the main opinion. 51 Considering the importance
of the basic issues and the magnitude of the estates involved, however, the writer has pro
hac vice given his concurrence to the assessment of the said thirty-one (31) additional
appeal docket fees.

MAKALINTAL, C.J., concurring:

I concur in the separate opinion of Justice Teehankee, which in turn agrees with the
dispositive portion of the main opinion of Justice Barredo insofar as it dismisses the petition
for certiorari and prohibition in Cases L-27860 and L-27896 and affirms the appealed orders
of the probate court in cases L-27936-37.

However, I wish to make one brief observation for the sake of accuracy. Regardless of
whether or not C. N. Hodges was entitled to a legitime in his deceased wife's estate — which
question, still to be decided by the said probate court, may depend upon what is the law of
Texas and upon its applicability in the present case — the said estate consists of one-half,
not one-fourth, of the conjugal properties. There is neither a minimum of one-fourth nor a
maximum beyond that. It is important to bear this in mind because the estate of Linnie
Hodges consists of her share in the conjugal properties, is still under administration and
until now has not been distributed by order of the court.

The reference in both the main and separate opinions to a one-fourth portion of the
conjugal properties as Linnie Hodges' minimum share is a misnomer and is evidently meant
only to indicate that if her husband should eventually be declared entitled to a legitime,
then the disposition made by Linnie Hodges in favor of her collateral relatives would be valid
only as to one-half of her share, or one-fourth of the conjugal properties, since the
remainder, which constitutes such legitime, would necessarily go to her husband in absolute
ownership, unburdened by any substitution, term or condition, resolutory or otherwise. And
until the estate is finally settled and adjudicated to the heirs who may be found entitled to
it, the administration must continue to cover Linnie's entire conjugal share.

Separate Opinions

FERNANDO, J., concurring:

I concur on the basis of the procedural pronouncements in the opinion.

TEEHANKEE, J., concurring:

I concur in the result of dismissal of the petition for certiorari and prohibition in Cases L-
27860 and L-27896 and with the affirmance of the appealed orders of the probate court in
Cases L-27936-37.

I also concur with the portion of the dispositive part of the judgment penned by Mr. Justice
Barredo decreeing the lifting of the Court's writ of preliminary injunction of August 8, 1967
as amended on October 4, and December 6, 19671 and ordering in lieu thereof that the
Court's resolution of September 8, 19722 which directed that petitioner-appellant PCIB as
administrator of C. N. (Charles Newton) Hodges' estate (Sp. Proc. No. 1672 and
respondent-appellee Avelina A. Magno as administratrix of Linnie Jane Hodges' estate (Sp.
Proc. No. 1307) should act always conjointly never independently from each other, as such
administrators, is reiterated and shall continue in force and made part of the judgment.

It is manifest from the record that petitioner-appellant PCIB's primal contention in the cases
at bar belatedly filed by it with this Court on August 1, 1967 (over ten (10) years after
Linnie Jane Hodges' death on May 23, 1957 and (over five (5) years after her husband C.N.
Hodges' death on December 25, 1962 — during which time both estates have
been pending settlement and distribution to the decedents' respective rightful heirs all this
time up to now) — that the probate court per its order of December 14, 1957
(supplementing an earlier order of May 25, 1957) 3 in granting C. N. Hodges' motion as
Executor of his wife Linnie's estate to continue their "business of buying and selling personal
and real properties" and approving "all sales, conveyances, leases and mortgages" made
and to be made by him as such executor under his obligation to submit his yearly
accounts in effect declared him as sole heir of his wife's estate and nothing remains to be
done except to formally close her estate (Sp. Proc. No. 1307) as her estate was thereby
merged with his own so that nothing remains of it that may be adjudicated to her brothers
and sisters as her designated heirs after him,4 — is wholly untenable and deserves scant
consideration.

Aside from having been put forth as an obvious afterthought much too late in the day, this
contention of PCIB that there no longer exists any separate estate of Linnie Jane Hodges
after the probate court's order of December 14, 1957 goes against the very acts and
judicial admissions of C.N. Hodges as her executor whereby he consistently recognized
the separate existence and identity of his wife's estate apart from his own separate estate
and from his own share of their conjugal partnership and estate and "never considered the
whole estate as a single one belonging exclusively to himself" during the entire period that
he survived her for over five (5) years up to the time of his own death on December 25,
19625 and against the identical acts and judicial admissions of PCIB as administrator of C.N.
Hodges' estate until PCIB sought in 1966 to take over both estates as pertaining to its sole
administration.

PCIB is now barred and estopped from contradicting or taking a belated position
contradictory to or inconsistent with its previous admissions 6 (as well as those of C.N.
Hodges himself in his lifetime and of whose estate PCIB is merely an administrator)
recognizing the existence and identity of Linnie Jane Hodges' separate estate and the legal
rights and interests therein of her brothers and sisters as her designated heirs in her will.
PCIB's petition for certiorari and prohibition to declare all acts of the probate court in Linnie
Jane Hodges' estate subsequent to its order of December 14, 1957 as "null and void for
having been issued without jurisdiction" must therefore be dismissed with the rejection of
its belated and untenable contention that there is no longer any estate of Mrs. Hodges of
which respondent Avelina Magno is the duly appointed and acting administratrix.

PCIB's appeal7 from the probate court's various orders recognizing respondent Magno as
administratrix of Linnie's estate (Sp. Proc No. 1307) and sanctioning her acts of
administration of said estate and approving the sales contracts executed by her with the
various individual appellees, which involve basically the same primal issue raised in the
petition as to whether there still exists a separate estate of Linnie of which respondent-
appellee Magno may continue to be the administratrix, must necessarily fail — a result of
the Court's main opinion at bar that there doesexist such an estate and that the two estates
(husband's and wife's) must be administered cojointly by their respective administrators
(PCIB and Magno).

The dispositive portion of the main opinion

The main opinion disposes that:

IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered

DISMISSING the petition in G. R. Nos. L-27860 and L-27896, and
AFFIRMING, in G. R. Nos. L-27936-37 and the other thirty-one numbers
hereunder ordered to be added after payment of the corresponding docket
fees, all the orders of the trial court under appeal enumerated in detail on
pages 35 to 37 and 80 to 82 of this decision:

The existence of the Testate Estate of Linnie Jane Hodges, with respondent-
appellee Avelina A. Magno, as administratrix thereof is recognized, and

It is declared that, until final judgment is ultimately rendered regarding (1)

the manner of applying Article 16 of the Civil Code of the Philippines to the
situation obtaining in these cases and (2) the factual and legal issues of
whether or not Charles Newton Hodges has effectively and legally renounced
his inheritance under the will of Linnie Jane Hodges, the said estate consists
of one-fourthof the community properties of the said spouses, as of the time
of the death of the wife on May 23, 1957, minus whatever the husband had
already gratuitously disposed of in favor of third persons from said date until
his death, provided, first, that with respect to remunerative dispositions, the
proceeds thereof shall continue to be part of the wife's estate, unless
subsequently disposed of gratuitously to third parties by the husband, and
second, that should the purported renunciation be declared legally
effective, no deduction whatsoever are to be made from said estate;

In consequence, the preliminary injunction of August 8, 1967, as amended on

October 4 and December 6, 1967, is lifted and the resolution of September 8,
1972, directing that petitioner-appellant PCIB, as Administrator of the Testate
Estate of Charles Newton Hodges in Special Proceedings 1672, and
respondent-appellee Avelina A. Magno, as Administratrix of the Testate Estate
of Linnie Jane Hodges in Special Proceedings 1307, should act thenceforth
always conjointly, never independently from each other, as such
administrators, is reiterated, and the same is made part of this judgment and
 shall continue in force, pending the liquidation of the conjugal partnership of
the deceased spouses and the determination and segregation from each other
of their respective estates; provided, that upon the finality of this judgment,
the trial court should immediately proceed to the partition of the presently
combined estates of the spouses, to the end that the one-half share thereof
of Mrs. Hodges may be properly and clearly identified;

Thereafter, the trial court should forthwith segregate the remainder of

the one-fourth herein adjudged to be her estate and cause the same to be
turned over or delivered to respondent for her exclusive administration in
Special Proceedings 1307, while the other one-fourth shall remain under the
joint administrative of said respondent and petitioner under a joint
proceedings in Special Proceedings 1307 and 1672, whereas
the half unquestionably pertaining to Hodges shall
be administered by petitioner exclusively in Special Proceedings 1672, without
prejudice to the resolution by the trial court of thepending motions for its
removal as administrator;

And this arrangement shall be maintained until the final resolution of the two
issues of renvoi and renunciation hereby reserved for further hearing and
determination, and the corresponding completesegregation and partition of
the two estates in the proportions that may result from the said resolution.

Generally and in all other respects, the parties and the court a quo are
directed to adhere henceforth, in all their actuations in Special Proceedings
1307 and 1672, to the views passed and ruled upon by the Court in the
foregoing opinion.8

Minimum estimate of Mrs. Hodges' estate:

One-fourth of conjugal properties.

The main opinion in declaring the existence of a separate estate of Linnie Jane Hodges
which shall pass to her brothers and sisters with right of representation (by their heirs) as
her duly designated heirs declares that her estate consists as a minimum (i.e. assuming (1)
that under Article 16 of the Philippine Civil Code C. N. Hodges as surviving husband was
entitled to one-half of her estate as legitime and (2) that he had not effectively and
legally renouncedhis inheritance under her will) of "one-fourth of the community properties
of the said spouses, as of the time of the death of the wife on May 23,
1957, minus whatever the husband had already gratuitously disposed of in favor of third
persons from said date until his death," with the proviso that proceeds
of remunerative dispositions or sales for valuable consideration made by C. N. Hodges after
his wife Linnie's death shall continue to be part of her estate unless subsequently disposed
of by him gratuitously to third parties subject to the condition, however, that if he is held to
have validly and effectively renounced his inheritance under his wife's will, no deductions of
any dispositions made by Hodges even if gratuitously are to be made from his wife Linnie's
estate which shall pass intact to her brothers and sisters as her designated heirs called in
her will to succeed to her estate upon the death of her husband C. N. Hodges.

Differences with the main opinion

I do not share the main opinion's view that Linnie Jane Hodges instituted her husband as
her heir under her will "to have dominion over all her estate during his lifetime ...
as absolute owner of the properties ..."9 and that she bequeathed "the whole of her estate
to be owned and enjoyed by him as universal and sole heir with absolute dominion over
them only during his lifetime, which means that while he could completely and absolutely
dispose of any portion thereof inter vivos to anyone other than himself, he was not free to
do so mortis causa, and all his rights to what might remain upon his death would cease
entirely upon the occurrence of that contingency, inasmuch as the right of his brothers and
sisters-in-law to the inheritance, although vested already upon the death of Mrs. Hodges,
would automatically become operative upon the occurrence of the death of Hodges in the
event of actual existence of any remainder of her estate then." 10

As will be amplified hereinafter, I do not subscribe to such a view that Linnie Jane Hodges
willed "full and absolute ownership" and "absolute dominion" over her estate to her
husband, but rather that she named her husband C. N. Hodges and her brothers and sisters
as instituted heirs with a term under Article 885 of our Civil Code, to wit, Hodges as
instituted heir with a resolutory term whereunder his right to the succession ceased
in diem upon arrival of the resolutory term of his death on December 25, 1962 and her
brothers and sisters as instituted heirs with a suspensive term whereunder their right to the
succession commenced ex die upon arrival of the suspensive term of the death of C. N.
Hodges on December 25, 1962.

Hence, while agreeing with the main opinion that the proceeds of all remunerative
dispositions made by C. N. Hodges after his wife's death remain an integral part of his wife's
estate which she willed to her brothers and sisters, I submit that C. N. Hodges
could not validly make gratuitous dispositions of any part or all of his wife's estate —
"completely and absolutely dispose of any portion thereof inter vivos to anyone other than
himself" in the language of the main opinion, supra — and thereby render ineffectual and
nugatory her institution of her brothers and sisters as her designated heirs to succeed to
her whole estate "at the death of (her) husband." If according to the main opinion, Hodges
could not make such gratuitous "complete and absolute dispositions" of his wife Linnie's
estate "mortis causa," it would seem that by the same token and rationale he was likewise
proscribed by the will from making such dispositions of Linnie's estate inter vivos.

I believe that the two questions of renvoi and renunciation should be

resolved preferentially and expeditiously by the probate court ahead of the partition and
segregation of the minimum one-fourth of the conjugal or community properties
constituting Linnie Jane Hodges' separate estate, which task considering that it is now
seventeen (17) years since Linnie Jane Hodges' death and her conjugal estate with C. N.
Hodges has remained unliquidated up to now might take a similar number of years to
unravel with the numerous items, transactions and details of the sizable estates involved.

Such partition of the minimum one-fourth would not be final, since if the two prejudicial
questions of renvoi and renunciation were resolved favorably to Linnie's estate meaning to
say that if it should be held that C. N. Hodges is not entitled to any legitime of her estate
and at any rate he had totally renounced his inheritance under the will), then Linnie's estate
would consist not only of the minimum one-fourth but one-half of the conjugal or
community properties of the Hodges spouses, which would require again the partition and
segregation of still another one-fourth of said. properties
to complete Linnie's separate estate.

My differences with the main opinion involve further the legal concepts, effects and
consequences of the testamentary dispositions of Linnie Jane Hodges in her will and the
question of the best to reach a solution of the pressing question of expediting the closing of
the estates which after all do not appear to involve any outstanding debts nor any dispute
between the heirs and should therefore be promptly settled now after all these years
without any further undue complications and delays and distributed to the heirs for their full
enjoyment and benefit. As no consensus appears to have been reached thereon by a
majority of the Court, I propose to state views as concisely as possible with the sole end in
view that they may be of some assistance to the probate court and the parties in reaching
an expeditious closing and settlement of the estates of the Hodges spouses.

Two Assumptions

As indicated above, the declaration of the minimum of Mrs. Hodges' estate as one-fourth of
the conjugal properties is based on two assumptions most favorable to C. N. Hodges' estate
and his heirs, namely (1) that the probate court must accept the renvoi or "reference
back" 11 allegedly provided by the laws of the State of Texas (of which state the Hodges
spouses were citizens) whereby the civil laws of the Philippines as the domicile of the
Hodges spouses would govern their succession notwithstanding the provisions of Article 16
of our Civil Code (which provides that the national law of the decedents, in this case, of
Texas, shall govern their succession) with the result that her estate would consist of no
more than one-fourth of the conjugal properties since the legitime of her husband (the
other one-fourth of said conjugal properties or one-half of her estate, under Article 900 of
our Civil Code) could not then be disposed of nor burdened with any condition by her and
(2) that C.N. Hodges had not effectively and legally renounced his inheritance under his
wife's will.

These two assumptions are of course flatly disputed by respondent-appellee Magno as Mrs.
Hodges' administratrix, who avers that the law of the State of Texas governs her succession
and does not provide for and legitime, hence, her brothers and sisters are entitled to
succeed to the whole of her share of the conjugal properties which is one-halfthereof and
that in any event, Hodges had totally renounced all his rights under the will.

The main opinion concedes that "(I)n the interest of settling the estates herein involved
soonest, it would be best, indeed, if these conflicting claims of the parties were determined
in these proceedings." It observes however that this cannot be done due to the inadequacy
of the evidence submitted by the parties in the probate court and of the parties'
discussion, viz, "there is no clear and reliable proof of what the possibly applicable laws of
Texas are. Then also, the genuineness of the documents relied upon by respondent Magno
[re Hodges' renunciation] is disputed." 12

Hence, the main opinion expressly reserves resolution and determination on these two
conflicting claims and issues which it deems "are not properly before the Court
now," 13 and specifically holds that "(A)ccordingly, the only question that remains to be
settled in the further proceedings hereby ordered to be held in the court below is how much
more than as fixed above is the estate of Mrs. Hodges, and this would depend on (1)
whether or not the applicable laws of Texas do provide in effect for more, such as, when
there is no legitime provided therein, and (2) whether or not Hodges has validly waived his
whole inheritance from Mrs. Hodges." 14

Suggested guidelines

Considering that the only unresolved issue has thus been narrowed down and in consonance
with the ruling spirit of our probate law calling for the prompt settlement of the estates of
deceased persons for the benefit of creditors and those entitled to the residue by way of
inheritance — considering that the estates have been long pending settlement since 1957
and 1962, respectively — it was felt that the Court should lay down specific guidelines for
the guidance of the probate court towards the end that it may expedite the closing of the
protracted estates proceedings below to the mutual satisfaction of the heirs and without
need of a dissatisfied party elevating its resolution of this only remaining issue once more to
this Court and dragging out indefinitely the proceedings.

After all, the only question that remains depends for its determination on the resolution of
the two questions of renvoiand renunciation, i.e. as to whether C. N. Hodges can claim
a legitime and whether he had renounced the inheritance. But as already indicated above,
the Court without reaching a consensus which would finally resolve the conflicting claims
here and now in this case opted that "these and other relevant matters should first be
threshed out fully in the trial court in the proceedings hereinafter to be held for the purpose
of ascertaining and/or distributing the estate of Mrs. Hodges to her heirs in accordance with
her duly probated will." 15

The writer thus feels that laying down the premises and principles governing the nature,
effects and consequences of Linnie Jane Hodges' testamentary dispositions in relation to her
conjugal partnership and co-ownership of properties with her husband C. N. Hodges and
"thinking out" the end results, depending on whether the evidence directed to be formally
received by the probate court would bear out that under renvoi C. N. Hodges was or was
not entitled to claim a legitime of one-half of his wife Linnie's estate and/or that he had or
had not effectively and validly renounced his inheritance should help clear the decks, as it
were, and assist the probate court in resolving the onlyremaining question of how much
more than the minimum one-fourth of the community properties of the Hodges
spouses herein finally determined should be awarded as the separate estate of Linnie,
particularly since the views expressed in the main opinion have not gained a consensus of
the Court. Hence, the following suggested guidelines, which needless to state, represent
the personal opinion and views of the writer:

1. To begin with, as pointed out in the main opinion, "according to Hodges' own inventory
submitted by him as executor of the estate of his wife, practically all their properties
were conjugal which means that the spouses have equal shares therein." 16

2. Upon the death of Mrs. Hodges on May 23, 1957, and the dissolution thereby of the
marriage, the law imposed upon Hodges as surviving husband the duty of inventorying,
administering and liquidating the conjugal or community property. 17 Hodges failed to
discharge this duty of liquidating the conjugal partnership and estate. On the contrary, he
sought and obtained authorization from the probate court
to continue the conjugal partnership's business of buying and selling real and personal
properties.

In his annual accounts submitted to the probate court as executor of Mrs. Hodges' estate,
Hodges thus consistentlyreported the considerable combined income (in six figures) of
the conjugal partnership or coownership and then divided the same equally between himself
and Mrs. Hodges' estate and as consistently filed separate income tax returns and paid the
income taxes for each resulting half of such combined income corresponding to his own and
to Mrs. Hodges' estate. 18 (Parenthetically, he could not in law do this, had he adjudicated
Linnie's entire estate to himself, thus supporting the view advanced even in the main
opinion that "Hodges waived not only his rights to the fruits but to the properties
themselves." 19
By operation of the law of trust 20 as well as by his own acknowledgment and acts,
therefore, all transactions made by Hodges after his wife's death were deemed for and on
behalf of their unliquidated conjugal partnership and community estate and were so
reported and treated by him.

3. With this premise established that all transactions of Hodges after his wife's death were
for and on behalf of their unliquidated conjugal partnership and community estate, share
and share alike, it should be clear that no gratuitousdispositions, if any, made by C. N.
Hodges from his wife Linnie's estate should be deducted from her separateestate as held in
the main opinion. On the contrary, any such gratuitous dispositions should be charged to his
own share of the conjugal estate since he had no authority or right to make
any gratuitous dispositions of Linnie's properties to the prejudice of her brothers and sisters
whom she called to her succession upon his death, not to mention that the very authority
obtained by him from the probate court per its orders of May 25, and December 14, 1957
was to continue the conjugal partnership's business of buying and selling real properties for
the account of their unliquidated conjugal estate and co-ownership, share and share alike
and not to make any free dispositions of Linnie's estate.

4. All transactions as well after the death on December 25, 1962 of Hodges himself appear
perforce and necessarily to have been conducted, on the same premise, for and on behalf of
their unliquidated conjugal partnership and/or co-ownership, share and share alike — since
the conjugal partnership remained unliquidated — which is another way of saying that such
transactions, purchases and sales, mostly the latter, must be deemed in effect to have been
made for the respective estates of C. N. Hodges and of his wife Linnie Jane Hodges, as both
estates continued to have an equal stake and share in the conjugal partnership which was
not only left unliquidated but continued as a co-ownership or joint business with the probate
court's approval by Hodges during the five-year period that he survived his wife.

This explains the probate court's action of requiring that deeds of sale executed by PCIB as
Hodges' estate's administrator be "signed jointly" by respondent Magno as Mrs. Hodges'
estate's administratrix, as well as its order authorizing payment by lot purchasers from the
Hodges to either estate, since "there is as yet no judicial declaration of heirs nor distribution
of properties to whomsoever are entitled thereto." 22

And this equally furnishes the rationale of the main opinion for continued conjoint
administration by the administrators of the two estates of the deceased spouses, "pending
the liquidation of the conjugal partnership," 23since "it is but logical that both estates should
be administered jointly by the representatives of both, pending their segregation from each
other. Particularly ... because the actuations so far of PCIB evince a determined, albeit
groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance." 24 5.
Antly by the representatives of both, pending their segregation from each other. Particularly
... because the actuations so far of PCIB evince a determined, albeit groundless, intent to
exclude the other heirs of Mrs. Hodges from their inheritance." 24

5. As stressed in the main opinion, the determination of the only unresolved issue of how
much more than the minimum of one-fourth of the community or conjugal properties of the
Hodges spouses pertains to Mrs. Hodges' estate depends on the twin questions
of renunciation and renvoi. It directed consequently that "a joint hearing of the two probate
proceedings herein involved" be held by the probate court for the reception of "further
evidence" in order to finally resolved these twin questions. 25
(a) On the question of renunciation, it is believed that all that the probate court has to do is
to receive formally in evidence the various documents annexed to respondent Magno's
answer at bar, 26 namely: Copy of the U.S. Estate Tax Return filed on August 8, 1958 by C.
N. Hodges for his wife Linnie's estate wherein he purportedly declared that he
was renouncing his inheritance under his wife's will in favor of her brothers and sisters as
co-heirs designated with him and that it was his "intention (as) surviving husband of the
deceased to distribute the remaining property and interests of the deceased in their
community estate to the devisee and legatees named in the will when the debts, liabilities,
taxes and expenses of administration are finally determined and paid;" 27 and

The affidavit of ratification of such renunciation (which places him in estoppel) allegedly
executed on August 9, 1962 by C. N. Hodges in Iloilo City wherein he reaffirmed that "...
on August 8, 1958, I renounced and disclaimed any and all right to receive the rents,
emoluments and income from said estate" and further declared that "(T)he purpose of this
affidavit is to ratify and confirm, and I do hereby ratify and confirm, the declaration made in
schedule M of said return and hereby formally disclaim and renounce any right on my part
to receive any of the said rents, emoluments and income from the estate of my deceased
wife, Linnie Jane Hodges. This affidavit is made to absolve me or my estate from any
liability for the payment of income taxes on income which has accrued to the estate
of Linnie Jane Hodges since the death of the said Linnie Jane Hodges on May 23, 1957." 28

(b) On the question of renvoi, all that remains for the probate court to do is to formally
receive in evidence duly authenticated copies of the laws of the State of Texas governing
the succession of Linnie Jane Hodges and her husband C. N. Hodges as citizens of said State
at the time of their respective deaths on May 23, 1957 and December 25, 1962. 29

6. The text and tenor of the declarations by C. N. Hodges of renunciation of his inheritance
from his wife in favor of her other named heirs in her will (her brothers and sisters and their
respective heirs) as ratified and reiterated expressly in his affidavit of renunciation executed
four years later for the avowed purpose of not being held liable for payment of income taxes
on income which has accrued to his wife's estate since her death indicate a valid and
effective renunciation.

Once the evidence has been formally admitted and its genuineness and legal effectivity
established by the probate court, the renunciation by C. N. Hodges must be given due effect
with the result that C. N. Hodges therefore acquired no part of his wife's one-half share of
the community properties since he removed himself as an heir by virtue of his renunciation.
By simple substitution then under Articles 857 and 859 of our Civil Code 30 and by virtue of
the will's institution of heirs, since "the heir originally instituted C. N. Hodges) does not
become an heir" 31 by force of his renunciation, Mrs. Hodges' brothers and sisters whom she
designated as her heirs upon her husband's death are called immediately to her succession.

Consequently, the said community and conjugal properties would then pertain pro indiviso
share and share alike to their respective estates, with each estate, however, shouldering its
own expenses of administration, estate and inheritance taxes, if any remain unpaid,
attorneys' fees and other like expenses and the net remainder to be adjudicated directly to
the decedents' respective brothers and sisters (and their heirs) as the heirs duly designated
in their respective wills. The question of renvoi becomes immaterial since most laws and our
laws permit such renunciation of inheritance.
7. If there were no renunciation (or the same may somehow be declared to have not been
valid and effective) by C. N. Hodges of his inheritance from his wife, however, what would
be the consequence?

(a) If the laws on succession of the State of Texas do provide for renvoi or "reference back"
to Philippine law as the domiciliary law of the Hodges' spouses governing their succession,
then petitioners' view that Mrs. Hodges' estate would consist only of the minimum of "one-
fourth of the community properties of the said spouses, as of the time of (her) death on
May 23, 1957" would have to be sustained and C. N. Hodges' estate would consist of three-
fourths of the community properties, comprising his own one-half (or two-fourths) share
and the other fourth of Mrs. Hodges' estate as the legitime granted him as surviving
spouse by Philippine law (Article 900 of the Civil Code) which could not be disposed of nor
burdened with any condition by Mrs. Hodges as testatrix.

(b) If the laws on succession of the State of Texas do not provide for such renvoi and
respondent Magno's assertion is correct that the Texas law which would then prevail,
provides for no legitime for C. N. Hodges as the surviving spouse, then respondent Magno's
assertion that Mrs. Hodges' estate would consist of one-half of the community properties
(with the other half pertaining to C. N. Hodges) would have to be sustained. The community
and conjugal properties would then pertain share and share alike to their respective estates,
with each estate shouldering its own expenses of administration in the same manner stated
in the last paragraph of paragraph 6 hereof. .

8. As to the nature of the institution of heirs made by Mrs. Hodges in her will, the main
opinion holds that "(T)he brothers and sisters of Mrs. Hodges are not substitutes for
Hodges; rather, they are also heirs instituted simultaneously with Hodges," but goes further
and holds that "it was not the usufruct alone of her estate ... that she bequeathed to
Hodges during his lifetime, but the full ownership thereof, although the same was to last
also during his lifetime only, even as there was no restriction against his disposing or
conveying the whole or any portion thereof anybody other than himself" and describes
Hodges "as universal and sole heir with absolute dominion over Mrs. Hodges' estate (except
over their Lubbock, Texas property ), 32 adding that "Hodges was not obliged to preserve
anything for them" (referring to Mrs. Hodges' brothers and sisters as instituted co-heirs). 33

Contrary to this view of the main opinion, the writer submits that the provisions of Mrs.
Hodges' will did not grant to C.N. Hodges "full ownership" nor "absolute dominion" over her
estate, such that he could as "universal and sole heir" by the mere expedient
of gratuitously disposing to third persons her whole estate during his lifetime nullify her
institution of her brothers and sisters as his co-heirs to succeed to her whole estate "at the
death of (her) husband," deprive them of any inheritance and make his own brothers and
sisters in effect sole heirs not only of his own estate but of his wife's estate as well.

Thus, while Linnie Jane Hodges did not expressly name her brothers and sisters as
substitutes for Hodges because she willed that they would enter into the succession upon
his death, still it cannot be gainsaid, as the main opinion concedes, "that they are
also heirs instituted simultaneously with Hodges, subject however to certain conditions,
partially resolutory insofar as Hodges was concerned and correspondingly suspensive with
reference to his brothers and sisters-in-law." 34

Hence, if Hodges is found to have validly renounced his inheritance, there would be a
substitution of heirs in fact and in law since Linnie's brothers and sisters as the heirs
"simultaneously instituted" with a suspensive term would be called immediately to her
succession instead of waiting for the arrival of suspensive term of Hodges' death, since as
the heir originally instituted he does not become an heir by force of his renunciation and
therefore they would "enter into the inheritance in default of the heir originally instituted"
(Hodges) under the provisions of Article 857 and 859 of our Civil Code, supra, 35 thus
accelerating their succession to her estate as a consequence of Hodges' renunciation.

Consequently, Linnie Jane Hodges willed that her husband C.N. Hodges would "during his
natural lifetime ... manage, control, use and enjoy said estate" and that only "all rents,
emoluments and income" alone shall belong to him. She further willed that while he
could sell and purchase properties of her estate, and "use any part of the principal estate,"
such principal notwithstanding "any changes in the physical properties of said estate"(i.e.
new properties acquired or exchanged) would still pertain to her estate, which at the time
of his death would pass in full dominion to her brothers and sisters as the ultimate sole and
universal heirs of her estate. 36

The testatrix Linnie Jane Hodges in her will thus principally provided that "I give, devise and
bequeath all of the rest, residue and remainder of my estate, both personal and real ... to
my beloved husband, Charles Newton Hodges, to have and to hold with him ... during his
natural lifetime;" 37 that "(he) shall have the right to manage, control, use and enjoy said
estate during his lifetime, ... to make any changes in the physical properties of said estate,
by sale ... and the purchase of any other or additional property as he may think best ... . All
rents, emoluments and income from said estate shall belong to him and he is further
authorized to use any part of the principal of said estate as he may need or desire, ... he
shall not sell or otherwise dispose of any of the improved property now owned by us,
located at ... City of Lubbock, Texas ... . He shall have the right to subdivide any farm land
and sell lots therein, and may sell unimproved town lots;" 38 that "(A)t the death of my said
husband, Charles Newton, I give, devise and bequeath all of the rest, residue and remainder
of my estate, both personal and real, ... to be equally divided among my brothers and
sisters, share and share alike, namely: Esta Higdon, Emma Howell, Leonard Higdon, Roy
Higdon, Sadie Rascoe, Era Roman and Nimroy Higdon;" 39 and that "(I)n case of the death
of any of my brothers and/or sisters ...prior to the death of my husband ... the heirs of such
deceased brother or sister shall take jointly the share which would have gone to such
brother or sister had she or he survived." 40

Such provisions are wholly consistent with the view already fully expounded above that all
transactions and sales made by Hodges after his wife Linnie's death were by operation of
the law of trust as well as by his own acknowledgment and acts deemed for and on behalf of
their unliquidated conjugal partnership and community estate, share and share alike, with
the express authorization of the probate court per its orders of May 25, and December 14,
1957 granting Hodges' motion to continue the conjugal partnership business of buying and
selling real estate even after her death. By the same token, Hodges could not conceivably
be deemed to have had any authority or right to dispose gratuitously of any portion of her
estate to whose succession she had called her brothers and sisters upon his death.

9. Such institutions of heirs with a term are expressly recognized and permitted under Book
III, Chapter 2, section 4 of our Civil Code dealing with "conditional testamentary
dispositions and testamentary dispositions with a term." 41

Thus, Article 885 of our Civil Code expressly provides that:

ART 885. The designation of the day or time when the effects of the
institution of an heir shall commence or cease shall be valid.
 In both cases, the legal heir shall be considered as called to the succession
until the arrival of the period or its expiration. But in the first case he shall
not enter into possession of the property until after having given sufficient
security, with the intervention of the instituted heir.

Accordingly, under the terms of Mrs. Hodges' will, her husband's right to the succession as
the instituted heir ceased in diem, i.e. upon the arrival of the resolutory term of
his death on December 25, 1962, while her brothers' and sisters' right to the succession
also as instituted heirs commenced ex die, i.e. upon the expiration of the suspensive term
(as far as they were concerned) of the death of C. N. Hodges on December 25, 1962 . 42

As stated in Padilla's treatise on the Civil Code, "A term is a period whose arrival is certain
although the exact date thereof may be uncertain. A term may have either a suspensive or
a resolutory effect. The designation of the day when the legacy "shall commence" is ex die,
or a term with a suspensive effect, from a certain day. The designation of the day when the
legacy "shall cease" is in diem or a term with a resolutory effect, until a certain day." He
adds that "A legacy based upon a certain age or upon the death of a person is not a
condition but a term. If the arrival of the term would commence the right of the heir, it is
suspensive. If the arrival of the term would terminate his right, it is resolutory" and that
"upon the arrival of the period, in case of a suspensive term, the instituted heir is entitled to
the succession, and in case of a resolutory term, his right terminates." 43

10. The sizable estates herein involved have now been pending settlement for a
considerably protracted period (of seventeen years counted from Linnie's death in 1957),
and all that is left to be done is to resolve the only remaining issue (involving the two
questions of renunciation and renvoi) hereinabove discussed in order to close up the estates
and finally effect distribution to the deceased spouses' respective brothers and sisters and
their heirs as the heirs duly instituted in their wills long admitted to probate. Hence, it is
advisable for said instituted heirs and their heirs in turn 44 to come to terms for the
adjudication and distribution to them pro-indiviso of the up to now unliquidated community
properties of the estates of the Hodges spouses (derived from their unliquidated conjugal
partnership) rather than to get bogged down with the formidable task of physically
segregating and partitioning the two estates with the numerous transactions, items and
details and physical changes of properties involved. The estates proceedings would thus be
closed and they could then name their respective attorneys-in-fact to work out the details of
segregating, dividing or partitioning the unliquidated community properties or liquidating
them — which can be done then on their own without further need of intervention on the
part of the probate court as well as allow them meanwhile to enjoy and make use of the
income and cash and liquid assets of the estates in such manner as may be agreed upon
between them.

Such a settlement or modus vivendi between the heirs of the unliquidated two estates for
the mutual benefit of all of them should not prove difficult, considering that it appears as
stated in the main opinion that 22.968149% of the share or undivided estate of C. N.
Hodges have already been acquired by the heirs of Linnie Jane Hodges from certain heirs of
her husband, while certain other heirs representing 17.34375% of Hodges' estate were
joining cause with Linnie's heirs in their pending and unresolved motion for the removal of
petitioner PCIB as administrator of Hodges' estate, 45 apparently impatient with the situation
which has apparently degenerated into a running battle between the administrators of the
two estates to the common prejudice of all the heirs.
11. As earlier stated, the writer has taken the pain of suggesting these guidelines which
may serve to guide the probate court as well as the parties towards expediting the winding
up and closing of the estates and the distribution of the net estates to the instituted heirs
and their successors duly entitled thereto. The probate court should exert all effort towards
this desired objective pursuant to the mandate of our probate law, bearing in mind the
Court's admonition in previous cases that "courts of first instance should exert themselves
to close up estate within twelve months from the time they are presented, and they may
refuse to allow any compensation to executors and administrators who do not actively
labor to that end, and they may even adopt harsher measures." 46

Timeliness of appeals and imposition of

thirty-one (31) additional docket fees

Two appeals were docketed with this Court, as per the two records on appeal submitted
(one with a green cover and the other with a yellow cover). As stated at the outset, these
appeals involve basically the same primal issue raised in the petition for certiorari as to
whether there still exists a separate estate of Linnie Jane Hodges which has to continue to
be administered by respondent Magno. Considering the main opinion's ruling in the
affirmative and that her estate and that of her husband (since they jointly
comprise unliquidated community properties) must be administered conjointly by their
respective administrators (PCIB and Magno), the said appeals (involving thirty-three
different orders of the probate court approving sales contracts and other acts of
administration executed and performed by respondent Magno on behalf of Linnie's estate)
have been necessarily overruled by the Court's decision at bar.

(a) The "priority question" raised by respondent Magno as to the patent failure of the two
records on appeal to show on their face and state the material data that the appeals were
timely taken within the 30-day reglamentary period as required by Rule 41, section 6 of the
Rules of Court, has been brushed aside by the main opinion with the statement that it is
"not necessary to pass upon the timeliness of any of said appeals" since they "revolve
around practically the same main issues and ... it is admitted that some of them have been
timely taken." 47 The main opinion thus proceeded with the determination of the thirty-three
appealed orders despite the grave defect of the appellant PCIB's records on appeal and their
failure to state the required material data showing the timeliness of the appeals.

Such disposition of the question of timeliness deemed as "mandatory and jurisdictional" in a

number of cases merits the writer's concurrence in that the question raised has been
subordinated to the paramount considerations of substantial justice and a "liberal
interpretation of the rules" applied so as not to derogate and detract from the primary
intent and purpose of the rules, viz "the proper and just determination of a litigation"48 —
which calls for "adherence to a liberal construction of the procedural rules in order to attain
their objective of substantial justice and of avoiding denials of substantial justice due to
procedural technicalities." 49

Thus, the main opinion in consonance with the same paramount considerations of
substantial justice has likewise overruled respondents' objection to petitioner's taking the
recourse of "the present remedy of certiorari and prohibition" — "despite the conceded
availability of appeal" — on the ground that "there is a common thread among the basic
issues involved in all these thirty-three appeals — (which) deal with practically the same
basic issues that can be more expeditiously resolved or determined in a single special civil
action . . . " 50
(b) Since the basic issues have been in effect resolved in the special civil action at bar (as
above stated) with the dismissal of the petition by virtue of the Court's judgment as to the
continued existence of a separate estate of Linnie Jane Hodges and the affirmance as a
necessary consequence of the appealed orders approving and sanctioning respondent
Magno's sales contracts and acts of administration, some doubt would arise as to the
propriety of the main opinion requiring the payment by PCIB of thirty-one
(31) additional appeal docket fees. This doubt is further enhanced by the question of
whether it would make the cost of appeal unduly expensive or prohibitive by requiring the
payment of a separate appeal docket fee for each incidental order questioned when the
resolution of all such incidental questioned orders involve basically one and the same main
issue (in this case, the existence of a separate estate of Linnie Jane Hodges) and can be
more expeditiously resolved or determined in a single special civil action" (for which
a single docket fee is required) as stated in the main opinion. 51 Considering the importance
of the basic issues and the magnitude of the estates involved, however, the writer has pro
hac vice given his concurrence to the assessment of the said thirty-one (31) additional
appeal docket fees.

MAKALINTAL, C.J., concurring:

I concur in the separate opinion of Justice Teehankee, which in turn agrees with the
dispositive portion of the main opinion of Justice Barredo insofar as it dismisses the petition
for certiorari and prohibition in Cases L-27860 and L-27896 and affirms the appealed orders
of the probate court in cases L-27936-37.

However, I wish to make one brief observation for the sake of accuracy. Regardless of
whether or not C. N. Hodges was entitled to a legitime in his deceased wife's estate — which
question, still to be decided by the said probate court, may depend upon what is the law of
Texas and upon its applicability in the present case — the said estate consists of one-half,
not one-fourth, of the conjugal properties. There is neither a minimum of one-fourth nor a
maximum beyond that. It is important to bear this in mind because the estate of Linnie
Hodges consists of her share in the conjugal properties, is still under administration and
until now has not been distributed by order of the court.

The reference in both the main and separate opinions to a one-fourth portion of the
conjugal properties as Linnie Hodges' minimum share is a misnomer and is evidently meant
only to indicate that if her husband should eventually be declared entitled to a legitime,
then the disposition made by Linnie Hodges in favor of her collateral relatives would be valid
only as to one-half of her share, or one-fourth of the conjugal properties, since the
remainder, which constitutes such legitime, would necessarily go to her husband in absolute
ownership, unburdened by any substitution, term or condition, resolutory or otherwise. And
until the estate is finally settled and adjudicated to the heirs who may be found entitled to
it, the administration must continue to cover Linnie's entire conjugal share.
G.R. No. L-26306 April 27, 1988

TESTATE ESTATE OF THE LATE GREGORIO VENTURA MARIA VENTURA, executrix-

appellant, MIGUEL VENTURA and JUANA CARDONA, heirs-appellants,
vs.
GREGORIA VENTURA and HER HUSBAND, EXEQUIEL VICTORIO, MERCEDES
VENTURA and HER HUSBAND, PEDRO D. CORPUZ, oppositors-appellees.

PARAS, J.:

This is an appeal from the order of the Court of First Instance of Nueva Ecija, Guimba,
Branch V in Special Proceedings No. 812, Testate of the late Gregorio Venture, dated
October 5, 1965, removing the appellant Maria Ventura as executrix and administratrix of
the estate of the late Gregorio Ventura, and in her place appointing the appellees Mercedes
Ventura and Gregoria Ventura as joint administratrices of the estate. (Record on Appeal, pp.
120-131.)

Appellant Maria Ventura is the illegitimate daughter of the deceased Gregorio Ventura while
Miguel Ventura and Juana Cardona are his son and saving spouse who are also the brother
and mother of Maria Ventura. On the other hand, appellees Mercedes and Gregoria Ventura
are the deceased's legitimate children with his former wife, the late Paulina Simpliciano
(Record on Appeal, p. 122) but the paternity of appellees was denied by the deceased in his
will (Record on Appeal, p. 4).

On December 14,1953, Gregorio Ventura filed a petition for the probate of his will which did
not include the appellees and the petition was docketed as Special Proceedings No. 812
(Record on Appeal, pp. 1-3). In the said will, the appellant Maria Ventura, although an
illegitimate child, was named and appointed by the testator to be the executrix of his will
and the administratrix of his estate (Record on Appeal, p. 7).

In due course, said will was admitted to probate on January 14,1954 (Record on Appeal, pp.
8-10). Gregorio Ventura died on September 26,1955. On October 10, 1955, the appellant
Maria Ventura filed a motion for her appointment as executrix and for the issuance of letters
testamentary in her favor (Record on Appeal, pp. 10-11). On October 17, 1955, Maria
Ventura was appointed executrix and the corresponding letters testamentary was issued in
her favor (Record on Appeal, pp. 11-12).

On or about July 26, 1956, Maria Ventura submitted an inventory of the estate of Gregorio
Ventura (Record on Appeal, pp. 12-20).

On June 17,1960, she filed her accounts of administration for the years 1955 to 1960,
inclusive. (Record on Appeal, pp. 20-27). Said account of administration was opposed by
the spouses Mercedes Ventura and Pedro Corpuz on July 25, 1960 (Record on Appeal, pp.
27-33) and by Exequiel Victorio and Gregoria Ventura on August 5,1963 (Record on Appeal,
pp. 46-50). Both oppositions assailed the veracity of the report as not reflecting the true
income of the estate and the expenses which allegedly are not administration expenses. But
on January 25, 1961, Maria Ventura filed a motion to hold in abeyance the approval of the
accounts of administration or to have their approval without the opposition of the spouses
Mercedes Ventura and Pedro Corpuz and Gregoria Ventura and Exequiel Victorio on the
ground that the question of the paternity of Mercedes Ventura and Gregoria Ventura is still
pending final determination before the Supreme Court and that should they be adjudged the
adulterous children of testator, as claimed, they are not entitled to inherit nor to oppose the
approval of the counts of administration (Record on Appeals, pp. 33-36). Spouses Mercedes
Ventura and Pedro Corpuz filed on February 2, 1961 their opposition to the motion to hold
in abeyance the approval of the accounts of administration on the ground that Mercedes and
Gregoria Ventura had already been declared by the Court of First Instance in Civil Cases No.
1064 and 1476, which cases are supposed to be pending before the Supreme Court, as the
legitimate children of Gregorio Ventura, hence, they have reason to protect their interest
(Record on Appeal, pp. 36-39). On February 9,1961, the motion to hold in abeyance the
approval of the accounts was denied (Record on Appeal, pp. 39-40).

It appears that on July 12, 1963, the Court set the case for pre-trial on August 7, 1963 in
connection with the accounts of the executrix Maria Ventura dated June 17, 1960 and the
Motion to Annul Provision of Will dated July 14,1962 of Mercedes Ventura (Record on
Appeal, p. 45).

On October 22, 1963, four motions were filed by Mercedes Ventura and Gregoria Ventura,
namely: (1) motion to remove the executrix Maria Ventura which was supplemented on
April 27, 1965; (2) motion to require her to deposit the harvest of palay of the property
under administration in a bonded warehouse; (3) motion to render an accounting of the
proceeds and expenses of Administration; and (4) motion to require her to include in the
inventory of the estate certain excluded properties (Record on Appeal, pp. 50-53; 71). An
opposition to said motions was filed by the heirs Juana Cardona and Miguel Ventura and by
the executrix Maria Ventura herself (Record on Appeal, pp. 56-61; 61-70 and 71).

On motion of counsel for Exequiel Victorio and Gregoria Ventura the joint motions to require
an Up-to-date Accounting and to Require Executrix Ventura to Include Excluded Properties
in Her Inventory were ordered withdrawn (Order dated February 2, 1965, Record on Appeal,
p. 73). The other two motions were however set for hearing.

The grounds of aforesaid joint motions to remove the executrix Maria Ventura are: (1) that
she is grossly incompetent; (2) that she has maliciously and purposely concealed certain
properties of the estate in the inventory; (3) that she is merely an illegitimate daughter who
can have no harmonious relations with the appellees; (4) that the executrix has neglected
to render her accounts and failed to comply with the Order of the Court of December 12,
1963, requiring her to file her accounts of administration for the years 1961 to 1963
(Record on Appeal, pp. 70 and 75-76) and the Order of June 11, 1964, reiterating aforesaid
Order of December 12, 1963 (Record on Appeal, p. 76); and (5) that she is with permanent
physical defect hindering her from efficiently performing her duties as an executrix (Record
on Appeal, pp. 50-53 and 74-79).

On May 17, 1965, the executrix Maria Ventura finally submitted her accounts of
administration covering the period 1961 to 1965 (Record on Appeal, pp. 79-84) which were
again opposed by the spouses Exequiel Victorio and Gregoria Ventura on September 21,
1965 and by the spouses Mercedes Ventura and Pedro Corpuz on September 29, 1965
(Record on Appeal, pp. 106-120). On June 2, 1965, the executrix filed her supplemental
opposition to the aforesaid four motions, and prayed that the joint supplemental motion to
remove the executrix be denied or held in abeyance until after the status of Mercedes and
Gregoria Ventura as heirs of the testator is finally decided (Record on Appeal, pp. 85-1 01).
On June 3, 1965, the Court, finding that the estate taxes have not been paid, ordered the
administratrix to pay the same within thirty (30) days. On September 13, 1965, the lower
court denied the suspension of the proceedings and deferred the resolution of the joint
motion to remove executrix Maria Ventura until after the examination of the physical fitness
of said executrix to undertake her duties as such. Also, it ordered the deposit of all palay to
be harvested in the next agricultural year and subsequent years to be deposited in a bonded
warehouse to be selected by the Court and the palay so deposited shall not be withdrawn
without the express permission of the Court (Record on Appeal, pp. 103-105). On
September 21, 1965, spouses Exequiel Victorio and Gregoria Ventura filed their opposition
to the accounts of administration of Maria Ventura dated May 17, 1965, while that of
spouses Mercedes Ventura and Pedro Corpuz was filed on September 29, 1965, both
oppositions alleging among others that said accounts do not reflect the true and actual
income of the estate and that the expenses reported thereunder are fake, exhorbitant and
speculative (Record on Appeal, pp. 106-120).

On October 5, 1965, the court a quo, finding that the executrix Maria Ventura has
squandered the funds of the estate, was inefficient and incompetent, has failed to comply
with the orders of the Court in the matter of presenting up-to-date statements of accounts
and neglected to pay the real estate taxes of the estate, rendered the questioned decision,
the dispositive portion of which reads:

WHEREFORE, Maria Ventura is hereby removed as executrix and

administratrix of the estate and in her place Mercedes Ventura and Gregoria
Ventura are hereby appointed joint a tratrices of the estate upon filing by
each of them of a bond of P 7,000.00. Let letters of administration be issued
to Mercedes Ventura and Gregoria Ventura upon their qualification.

IT IS SO ORDERED.

(Record on Appeal pp. 120-131).

Hence, this appeal.

In their brief, appellants Maria Ventura and spouses Juana Cardona and Miguel Ventura
assign the following errors allegedly committed by the probate court:

ASSIGNMENT OF ERRORS

The lower court erred in ordering the removal of Maria Ventura as executrix
and administratrix of the will and estate of the deceased Gregorio Ventura
without giving her full opportunity to be heard and to present all her
evidence.

II

The lower court erred in finding that the executrix Maria Ventura had
squandered and dissipated the funds of the estate under her administration.

III
The lower court erred in finding that the executrix Maria Ventura was
inefficient and incompetent.

IV

That, considering the circumtances surrounding the case, the lower court
erred in finding that the failure of Maria Ventura to submit her periodical
account had justified her removal as executrix.

The lower court erred in considering as an established fact that the appellees
Mercedes Ventura and Gregoria Ventura are the legitimate daughters of the
deceased Gregorio Ventura.

VI

The lower court erred in finding that the devises and bequests in favor of
Maria Ventura and Miguel Ventura as specified in paragraph 8 of the last Will
and Testament of the late Gregorio Ventura have ipso facto been annulled.

VII

The lower court erred in allowing the appellees Mercedes Ventura and
Gregoria Ventura to intervene in the hearing of the accounts of administration
submitted by the executrix Maria Ventura and/or in not suspending the
hearing of the said accounts until the said appellees have finally established
their status as legitimate children of the deceased Gregorio Ventura.

VIII

The lower court erred in appointing (even without a proper petition for
appointment and much less a hearing on the appointment of) the appellees
Mercedes Ventura and Gregoria Ventura who have an adverse interest as joint
administratrices of the estate of the deceased Gregorio Ventura.

IX

The lower court erred in not appointing the surviving widow, Juana Cardona,
or Miguel Ventura, as administratrix of the estate of Gregorio Ventura in case
the removal of Maria Ventura as executrix and administratrix thereof is legally
justified.

Considering that there are in fact two (2) factions representing opposite
interests in the estate, the lower court erred in not appointing Juana Cardona,
or Miguel Ventura, as one of the two (2) administratrices.' (Joint Brief for the
Appellants, pp. 1-4)
On July 19,1967, Atty. Arturo Tolentino (representing appellees Mercedes Ventura and
Pedro Corpuz) and Atty. Jose J. Francisco (representing Gregoria and Exequiel Victoria),
having failed to submit their respective briefs within the period for the purpose, which
expired on July 2 and May 29,1967, respectively, the Supreme Court Resolved to consider
this case submitted for decision WITHOUT SAID APPELLEES' BRIEF (Rollo, p. 152).

The crucial issue in this case is whether or not the removal of Maria Ventura as executrix is
legally justified. This issue has, however, become moot and academic in view of the decision
of this Court in related cases.

At the outset, it is worthy to note that aside from the instant special proceedings, there are
two other civil cases involving the estate of the deceased Gregoria Ventura, namely, Civil
Cases Nos. 1064 and 1476. Civil Case No. 1064 was filed on December 2, 1952 by herein
appellee Gregoria Ventura in the Court of First Instance of Nueva Ecija, Branch I, against
the other appellees herein Mercedes Ventura and their father, Gregorio Ventura. Later
Mercedes Ventura joined cause with Gregoria Ventura. (Record on Appeal, p. 95). Gregoria
and Mercedes Ventura claimed that they are the legitimate children of Gregorio Ventura and
his wife Paulina Simpliciano, who died in 1943, and asked that one-half of the properties
described in the complaint be declared as the share of their mother in the conjugal
partnership, with them as the only forced heirs of their mother Paulina (Joint Brief for the
Appellants, pp. 53-68).

Subsequently, Civil Case No. 1476 was filed by Alipio, Eufracia and Juliana, all surnamed
Simpliciano, against Gregorio Ventura and the two sisters, Mercedes and Gregoria Ventura,
before the Court of First Instance of Nueva Ecija, Branch I. They alleged that as the only
children of Modesto Simpliciano, sole brother of Paulina Simpliciano, they, instead of
Mercedes and Gregoria Ventura, whom they claimed are adulterous children of Paulina with
another man, Teodoro Ventura and as such are not entitled to inherit from her, are the ones
who should inherit the share of Paulina Simpliciano in the conjugal Partnership with
Gregorio Ventura (Joint Brief For The Appealant,pp.69-79)

It appears that on November 4, 1959, after a joint hearing of Civil Cases Nos. 1064 and
1476, the lower court rendered its judgment, the dispositive portion of which reads as
follows:

WHEREFORE, judgment is hereby rendered declaring Mercedes Ventura and

Gregoria Ventura to be the ligitimate daughters of Paulina Simpliciano and
Gregorio Ventura; declaring that as such ligitimate daughters of Paulina
Simpliciano they are entitled to 1/2 of the properties described in paragraph
six of the complaint; ordering the defendant Maria Ventura, as administratrix
of the estate of Gregorio Ventura to pay to Mercedes Ventura and Gregorio
Ventura the amount of P 19,074.09 which shall be divided equally between
Mercedes and Gregoria Ventura declaring Mercedes Ventura and Pedro Corpuz
are the exclusive owners of the property describe in the certificate of Title
Nos. T-1102, 212, T-1213, T-1214, Exhibits 32, 33, 34 and 35, respectively;
ordering Mercedes Ventura and Pedro D. Corpuz to pay to the conjugal
partnership of Gregorio Ventura and Paulina Simpliciano the sum of
P100,000.00, one-half of which shall pertain to the estate of Gregorio Ventura
and the other half to the estate of Paulina Simpliciano to whom Mercedes and
Gregoria Ventura have succeeded, to be divided between Mercedes and
Gregoria in equal parts; and dismissing Civil Case No. 1476. The parties are
urged to arrive at an amicable partition of the properties herein adjudicated
 within twenty days from receipt of this decision. Upon their failure to do so,
the Court shall appoint commissioners to divide the properties in accordance
with the terms of the decision. Without pronouncements as to costs.
(Emphasis supplied). (Joint Brief for the Appellants, pp. 3738.)

Thereafter, on July 14, 1962, Mercedes Ventura filed a motion to annul the provisions of the
will of the deceased Gregorio Ventura in Special Proceedings No. 812, which motion was
opposed by Miguel Ventura and Juana Cardona and later by Maria Ventura. They claimed
that the decision dated November 4,1959 in Civil Cases Nos. 1064 and 1476 was not yet
final.

On February 26,1964, the court annulled the institution of the heirs in the probated will of
Gregorio Ventura. The motion for reconsideration of the aforesaid order filed by executrix
Maria Ventura was denied on June 11, 1964.

Accordingly, Maria Ventura appealed the February 26, 1964 and June 11, 1964 orders of the
probate court in Special Proceedings No. 812 before the Supreme Court and was docketed
as G.R. No. L-23878. On May 27,1977, this Court, through then Associate Justice Antonio P.
Barredo, ruled, as follows:

And so, acting on appellees' motion to dismiss appeal, it is Our considered

opinion that the decision in Civil Cases Nos.1064 and 1476 declaring that
appellees Mercedes and Gregoria Ventura are the ligimate children of the
deceased Gregorio Ventura and his wife, Paulina Simpliciano, and as such are
entitled to the annulment of the institution of heirs made in the probated will
of said deceased became final and executory upon the finality of the order,
approving ther partition directed in the decision in question. We need not
indulge in any discussion as to whether or not, as of the time the orders here
in question were issued by the trial court said decision had the nature of an
interlocutory order only. To be sure, in the case of Miranda, aforementioned,
the opinion of the majority of the Court may well be invoked against
appellant's pose. In any event, even if the Court were minded to modify again
Miranda and go back to Fuentebella and Zaldariaga — and it is not, as of now
— there can be no question that the approval by the trial court in Civil Cases
Nos. 1064 and 1476 of the partition report of the commissioners appointed
for the purpose, one of whom, Emmanuel Mariano, is the husband of
appellant, put a definite end to those cases, leaving nothing else to be done in
the trial court. That order of approval is an appealable one, and inasmuch as
no appeal has been taken from the same, it is beyond dispute that the
decision in controversy has already become final and executory in all
respects. Hence, the case at bar has become moot and academic. (Ventura
vs. Ventura, 77 SCRA 159, May 27,1977)

Under Article 854 of the Civil Code, "the pretention or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the execution of the will or
born after the death of the testator, shall annul the institution of heir; but the devises and
legacies shall be valid insofar as they are not inofficious," and as a result, intestacy follows,
thereby rendering the previous appointment of Maria Ventura as executrix moot and
academic. This would now necessitate the appointment of another administrator, under the
following provision:

Section 6, Rule 78 of the Rules of Court:

 When and to whom letters of administration granted.-If no executor is named
in the will, or the executor or executors are incompetent, refuse the trust, or
fail to give bond, or a person dies intestate, a petition shall be granted:

(a) To the surviving husband or wife, as the case may be or next of kin, or
both, in the discretion of the court, or to such person as such surviving
husband or wife, or both, in the discretion of the court, or to such person as
such surviving husband or wife, or next of kin, requests to have appointed, if
competent and willing to serve;"

xxx xxx xxx

In the case at bar, the surviving spouse of the deceased Gregorio Ventura is Juana Cardona
while the next of kin are: Mercedes and Gregoria Ventura and Maria and Miguel Ventura.
The "next of kin" has been defined as those persons who are entitled under the statute of
distribution to the decedent's property (Cooper vs. Cooper, 43 Ind. A. 620, 88 NE 341). It is
generally said that "the nearest of kin, whose interest in the estate is more preponderant, is
preferred in the choice of administrator. 'Among members of a class the strongest ground
for preference is the amount or preponderance of interest. As between next of kin, the
nearest of kin is to be preferred." (Cabanas, et al. vs. Enage et al., 40 Off. Gaz. 12 Suppl.
227; citing 12 Am. Jur. Sec. 77, p. 416, cited in Francisco Vicente J., The Revised Rules of
Court in the Philippines, Vol. V-B 1970 Ed., p. 23).

As decided by the lower court and sustained by the Supreme Court, Mercedes and Gregoria
Ventura are the legitimate children of Gregorio Ventura and his wife, the late Paulina
Simpliciano. Therefore, as the nearest of kin of Gregorio Ventura they are entitled to
preference over the illegitimate children of Gregorio Ventura, namely: Maria and Miguel
Ventura. Hence, under the aforestated preference provided in Section 6 of Rule 78, the
person or persons to be appointed administrator are Juana Cardona, as the surviving
spouse, or Mercedes and Gregoria Ventura as nearest of kin, or Juana Cardona and
Mercedes and Gregoria Ventura in the discretion of the Court, in order to represent both
interests.

PREMISES CONSIDERED, the appeal interposed by appellants Maria Ventura, Juana Cardona
and Miguel Ventura is hereby DISMISSED.

SO ORDERED.

Padilla and Sarmiento, JJ., concur.

Separate Opinions

MELENCIO-HERRERA, J., Disenting:

Consistent with my "concurrence in the result" in Acain vs. IAC, et als., G.r. No. 72706,
October 27, 1987, preterition results in total intestacy if it was mistakenly made or through
inadvertence. In this case there was no mistake nor oversight whatsoever. The testator
himself sought the probate of his Will during his lifetime wherein he not only excluded his
"forced heirs" but even denied paternity.

Under the circumstances, the omission being obviously intentional, the effect is a defective
disinheritance covered by Article 918 of the Civil Code under which the institution of heir is
not wholly void but only in so far as it prejudices the ligitimes of the persons disinherited.
The nullity is partial unlike in true preterition where the nullity is total.

This conclusion further finds support in the prevailing spirit in the codal provisions, which is
to make the intention of the testator prevail (e.g., Articles 783, 790, 848, 852, 861, Civil
Code).

Yap, C.J., dissent.

Separate Opinions

MELENCIO-HERRERA, J., Disenting:

Consistent with my "concurrence in the result" in Acain vs. IAC, et als., G.r. No. 72706,
October 27, 1987, preterition results in total intestacy if it was mistakenly made or through
inadvertence. In this case there was no mistake nor oversight whatsoever. The testator
himself sought the probate of his Will during his lifetime wherein he not only excluded his
"forced heirs" but even denied paternity.

Under the circumstances, the omission being obviously intentional, the effect is a defective
disinheritance covered by Article 918 of the Civil Code under which the institution of heir is
not wholly void but only in so far as it prejudices the ligitimes of the persons disinherited.
The nullity is partial unlike in true preterition where the nullity is total.

This conclusion further finds support in the prevailing spirit in the codal provisions, which is
to make the intention of the testator prevail (e.g., Articles 783, 790, 848, 852, 861, Civil
Code).

Yap, C.J., dissent.