cases succession & pub corp

8/13/2019 Cases Succession & Pub Corp

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G.R. No. 17714In the mater of the estate of Jesus de Leon. IGNACIA DIAZ, petitioner-appellant,vs.ANA DE LEON, opponent-appellee.

Montinola, Montinola & Hontiveros and Jose Lopez Vito for appellant.Francisco A. Delgado, Powell & Hill and Padilla & Treas for appellee.

ROMUALDEZ, J.:

The only question raised in this case is whether or to the will executed by Jesus de Leon, now, wasrevoked by him.

The petitioner denies such revocation, while the contestant affirms the same by alleging that thetestator revoked his will by destroying it, and by executing another will expressly revoking the former.

We find that the second will Exhibit 1 executed by the deceased is not cloth with all the necessaryrequisites to constitute a sufficient revocation.

But according to the statute governing the subject in this jurisdiction, the destruction of a will animorevocandi constitutes, in itself, a sufficient revocation. (Sec. 623, Code of Civil Procedure.)

From the evidence submitted in this case, it appears that the testator, shortly after the execution of thfirst will in question, asked that the same be returned to him. The instrument was returned to thetestator who ordered his servant to tear the document. This was done in his presence and before anurse who testified to this effect. After some time, the testator, being asked by Dr. Cornelio Mapa abouthe will, said that it had been destroyed.

The intention of revoking the will is manifest from the established fact that the testator was anxious towithdraw or change the provisions he had made in his first will. This fact is disclosed by the testatorsown statements to the witnesses Canto and the Mother Superior of the Hospital where he was confined

The original will herein presented for probate having been destroyed with animo revocandi, cannot nowbe probated as the will and last testament of Jesus de Leon.

Judgement is affirmed with costs against the petitioner. So ordered.

az v. De Leon

G.R. No. 17714 May 31, 1922

Facts:

1. Jesus de Leon executed 2 wills, the second will was not deemed in conformance to the requirements

under the law. After executing his first will, he asked it to be immediately returned to him. As it was

eturned, he instructed his servant to tear it. This was done in the testator's presence and his nurse.After sometime, he was asked by his physician about the incident wherein he replied that the will has

already been destroyed.

ssue: Whether or not there was a valid revocation of the will

RULING: Yes. His intention to revoke is manifest from the facts that he was anxious to withdraw or

change the provisions he made in the first will. This fact was shown from his own statements to the


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witnesses and the mother superior of the hospital where he was subsequently confined. The original wil

which was presented for probate is deemed destroyed hence, it cannot be probated as the last will and

estament of testator.

G.R. No. L-47305 July 31, 1942

In the matter of the estate of Rufina Arevalo. ARISTON BUSTAMANTE, administrator-appellant,vs.PETRONA AREVALO, ET AL.,oppositors-appellees.

Nicasio Yatco for appellant.Ventura and Belmonte for appellees.

BOCOBO, J.:

The main issue in this case is whether or not Exhibit C, presented by appellant for allowance as the lawill and testament of the deceased Rufina Arevalo, is a forgery. The Court of First Instance of Manilaheld that it was a forged document, and allowed an earlier will, Exhibit 6, whose authenticity wasunquestioned. The value of the estate is over P50,000.

The questioned document was prepared and signed in duplicate. It consists of two pages and is datedOctober 2, 1937. It appears to be signed by Rufina Arevalo and by three witnesses, Manuel M. Cruz,Remigo Colina and Angel Sanchez. The formal requisites of a will have been complied with.

An initial fact that arrests the attention is the formulation by the appellees of the allegation of forgeryeven before seeing the questioned document. Said charge of forgery was signed on April 22, 1938,although Exhibit C, which had been in a sealed envelop, was not opened by order of the court till thenext day, April 23, 1938. It is true that the opposition by the appellees was not actually filed in court tiApril 23, but it was signed by appellees' attorneys on April 22, was subscribed and sworn to by AmandClemente on April 22, and a copy thereof was sent by registered mail to Attorney Nicasio Yatco on Apri22. Moreover, in the morning of April 23, appellees attorneys Messrs. Jose Belmonte and VicenteDelgado, announced their opposition to the will Exhibit C in open court, before said documents was

opened by order of the court on that day.

One of the principal reasons of the court a quofor believing Exhibit C to be a forgery is that in thegenuine signatures the terminal stroke of the capital "R" in "Rufina" is not joined with the letter "u,"while in Exhibit C such ending is united with the letter "u" in the two marginal signatures, although inthe central signature appearing on page 2, the two letters are separated. The probate court believes thathis difference between the marginal and the central signatures is due to the fact that the forger firstused the check of "La Previsora" (Exhibit I) as the model in falsifying the marginal signatures, buthaving been shown another signature with the characteristic already mentionedseparation of the twlettershe tried to imitate said peculiarity in making central signature.

We believe the probate court over looked the well-established principle that in passing upon questioned

documents, the test is the general character of the writing rather than any minute and precisecomparison of individual letters or lines. In People vs. Bustos(45 Phil., 30) , this Court held:

It is a first principle in writing that exact coincidence between two signatures is absolute proofthat one or the other is a forgery. There must be some different before authenticity reposes upona general characteristics resemblance, coupled with specific differences, such as naturally resultfrom the infinite variety of conditions controlling the muscles of the writer at each separate effor


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in forming his signature.(Emphasis supplied.)

In the present case, a careful scrutiny of all the questioned and the standard signatures has convincedus that they have been written by the same person because they show the same general type, qualityand characteristics, with natural variations. We are, therefore, inclined to give credence to the experttestimony to that effect presented by the appellant.

Moreover, a forger who has to make two or more signatures usually sees to it that all the signatures ar

uniform for fear that any difference might arouse suspicion. In this case, however, in some questionedsignatures the letters "R" and "u" are separated, but in others, they are united. Osborne in "QuestionedDocuments" (pp. 368, 369) says:

Another indication of genuinenessin a holographic document or a considerable amount of writinor in two or more disputed signatures, are certain natural variations in the details of the writing. Iis difficult for the inexperienced or unthinking examiner to understand that a certain extent ofvariation in a group of several signatures and variation in repeated words and letters in acontinuous holographic document can be evidence of genuineness. The forger does notunderstand this necessity for natural variation and, as nearly as he can, makes words and letters

just alike.

x x x x x x x x x

It necessarily follows, therefore, that if the several lines of a disputed document, or severalsignatures under investigation, show these natural variations of writing of the same word or letterall of course within the scope of variation of the genuine writing, this variation itself, surprisingand paradoxical as it may appear, is as strong evidence of genuineness as the opposite condition evidence of forgery. (Emphasis supplied.)

Furthermore, it is to be noted that the document in question was prepared and signed in duplicate, sothat there are six signatures of Rufina Arevalo, instead of only three. It is reasonable to believe that aforger would reduce the number of signatures to be forged so as to lessen the danger of detection. Inthis case, Attorney Nicasio Yatco, who supervised the execution of Exhibit C, must have known that it

was not necessary to make a signed duplicate of the will.

As for the probate court's opinion that the forger must have used Exhibit I (a check issued by "LaPrevisora" to Rufina Arevalo) as a model in falsifying the marginal signatures, it is highly improbablethat said check was in the hands of Rufina Arevalo or of her attorney, Nicasio Yatco, on or aboutOctober 2, 1937, when the document in question was signed. The check had been issued on June 30,1936, or over a year before, and it must have been returned by the bank concerned to "La Previsora" inthe ordinary course of business, because it was produced by the Manager of "La Previsora." It shouldlikewise be observed that the signature on the first page of the duplicate will (Exhibit C-3) does not havthe supposed peculiarity of the standard signatures, that is the separation between "R" and "u." If, asthe lower court states, the forger upon being shown a model other than Exhibit I, imitated said

characteristic separation in making the central or body signature on the original will Exhibit C, it isindeed strange that he should not do the same immediately thereafter on the first page of the duplicatewill but that he should, instead, repeat the mistake he had made on the marginal signatures on theoriginal will.

Finally, to conclude that a forgery has been committed, the evidence should be forcefully persuasive.Before we are disposed to find that an attorney-at-law has so debased himself as to aid and abet theforgery of a will, which would not only send him to jail for many years but would ruin his future, wemust require proof sufficiently strong to prevail against every fair and thoughtful hesitancy and doubt.


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And the instrumental witnesses have testified that Rufina Arevalo signed the will in their presence. It ishard to believe they would commit perjury as it has not been shown they had any interest in this case.

Therefore, we find that the will of Rufina Arevalo, dated October 2, 1937 and marked Exhibit C, isgenuine and should be allowed.

It is unnecessary to discuss the incidental issues of fact so ably presented by counsel and examined indetail by the probate court, inasmuch as the foregoing disposes of the basic question raised. Therelative position of the contending devisees in the affection of the deceased; whether Rufina Arevalo

could go alone to the law office of Attorney Yatco on October 2, 1937 to sign the will Exhibit C; thealleged resentment of the testatrix toward Amando Clemente when she signed the second will, andsimilar questions are not of sufficient significance to alter the conclusion herein arrived at. In fact, theymerely tend to becloud the main issue.

The next question to be inquired into is whether or not the later will (Exhibit C) dated October 2, 1937whose probate is herein approved, has entirely revoked the earlier will, Exhibit 6, dated January 9,1936. Though both partes admit that the first will has been revoked by the second, yet we deem itnecessary to discuss the question because a member of this Court thinks the earlier will can stand inpart. It appears that the undivided interest of Rufina Arevalo in two parcels of land and theimprovements thereon which belonged to the conjugal partnership between Bernabe Bustamante, whohad died before the making of the two wills, and Rufina Arevalo, was expressly devised to Amando

Clemente in the earlier will but was not specifically mentioned in the later will. In the first will, Exhibit6, Rufina Arevalo, who had no forcible heirs, gave to Ariston Bustamante, her nephew, three lots andthe buildings thereon; devised a parcel of land and the houses standing thereon to her cousin, PetronaArevalo Viuda de Zacarias, and to her niece, Carmen Papa de Delgado; and finally disposed, in favor ofAmando Clemente, another cousin, of a piece of land and the houses thereon, and of her undividedinterest in the two parcels of land and the improvements thereon, which belonged to the conjugalpartnership, also making said Amando Clemente the residuary legatee. But in the second will, ExhibitC, she designates Ariston Bustamante her only heir in these terms:

SegundoNombro como mi unico heredero, Ariston Bustamante, de todas mis propiedadesdejadas ya mueble o inmueble que se describen mas abajo:

(a) Original Certificate of Title of Manila No. 5059

(b) Original Certificate of Title of Manila No. 4681

(c) Transfer Certificate of Title of Manila No. 19961

(d) Original Certificate of Title of Manila No. 5066

(e) Original Certificate of Title of Manila No. 4682.

Her undivided interest in the two pieces of land of the conjugal partnership, with Torrens titles No. 488

and No. 15628, devised to Amando Clemente in the earlier will, is not specifically mentioned in the latewill, Exhibit C. Moreover, the second will has no revocation clause.

At first sight, it would seem that the earlier will can stand with respect to Rufina Arevalo's share in saidtwo parcels of land belonging to the conjugal partnership. But a closer examination of the later willcounter-acts such initial reaction.

In the first place, the testatrix in the second will names Ariston Bustamante her only heirto all herproperty, both personal and real, her words in Spanish being: "Nombro como mi unico heredero, Aristo


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Bustamante, de todas mis propiedadesdejadas ya mueble o inmueble." (Italics supplied.) It is true thatin enumerating her parcels of land, she did not specify her interest in the two lots of the conjugalpartnership. But this omission must have been due either to an oversight or to the belief that it waspremature to name said two parcels as the conjugal partnership was still being liquidated. In eithercase, the testatrix must have thought that her comprehensive words "mi unico heredero de todas mispropiedades dejadas ya mueble o inmueble" would be sufficient to cover all her property, whetherspecially listed or not.

Secondly, in the opening paragraph of the second will, the following words appear: "hago constar atodos este mi ultimotestamento y voluntad expresado en Castellano lenguaje que conozco y poseo, yqueriendo disponer de mis bienes por virtud de este mi testamento." (Emphasis supplied.) Though sheknew that she had made a first will, she nevertheless said that the second will was her last one. Thiswould seem to signify that her last will, cancelling her previously expressed wish, was to make AristonBustamante her only heir. Furthermore, when she said she wanted to dispose of her property by meanof the second will ("queriendo disponer de mis bienes por virtud de este mi testamento"), it would appeato be her intention that no property of hers should be left undisposed of in the second will. This fact iscorroborated in the second clause wherein she names Ariston Bustamante as her only heir to all herproperty whether personal or real.

We believe, therefore, that the first will has been entirely revoked. Though it might appear right thatAmando Clemente should receive something from the estate because he, together with Ariston

Bustamante, has been raised by the testatrix, and both are her relatives, nevertheless it would beventuresome for us to advance our own idea of a just distribution of the property in the face of adifferent mode of disposition so clearly expressed by the testatrix in the later will. As she had no forciblheirs, she was absolutely free to give her estate to whomsoever she choose, subject of course to thepayment of her debts. It would be a dangerous precedent to strain the interpretation of a will in order teffect what the court believes to be an equitable division of the estate of a deceased person. The onlyfunction of the courts in these cases is to carry out the intention of the deceased as manifested in thewill. Once that intention has been determined through a careful reading of the will or wills, andprovided the law on legitimes has not been violated, it is beyond the pale of judicial cognizance toinquire into the fairness or unfairness of any devise or bequest. It might be said that it is hard tounderstand how, in a temporary anger at Amando Clemente, the testatrix would entirely cut him offfrom the inheritance. We should not, however, sit in judgment upon her motives and sentiments, first

because, as already stated, nothing in the law restrained her from disposing of her property in anymanner she desired, and secondly, because there are no adequate means of ascertaining the inwardprocesses of her conscience. She was the sole judge of her own attitude toward those who expected herbounty.

In view of the foregoing, the decision appealed from, declaring the second will Exhibit C a forgery andallowing the first will Exhibit 6, should be and is hereby reversed, and another judgment shall beentered allowing the later will Exhibit C, which has entirely revoked the earlier will Exhibit 6. No speciapronouncement on costs is made. Let the record of this case be returned to the court of origin forfurther proceedings. So ordered.

Yulo, C.J. and Moran, J.,concur.

Separate Opinions

OZAETA, J., concurring:


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I concur in the finding that the will Exhibit C is genuine. I think, however, that the discussion in themajority opinion of whether or not said Exhibit C entirely revoked the previous will Exhibit 6 isunnecessary, inasmuch as both parties in their brief have admitted the affirmative. There being nocontroversy between the parties on that score, there seems to be no occasion for the Court to render anopinion thereon.

PARAS, J., concurring and dissenting:

The testatrix in this case executed two wills, one on January 9, 1936, and the other on October 2, 193In the first will, the testatrix specifically referred to seven parcels of land of considerable value and tocertain personal properties. Three of these parcels of land and all the personal properties are given toAmando Clemente, another three to Ariston Bustamante, and the seventh parcel to Petrona Arevalo anCarmen Papa. In the second will, the testatrix particularly referred to only five parcels of land andcertain personal properties, all of which are give to Ariston Bustamante, as her universal heir. Thesecond will does not make mention of two of the three parcels given to Amando Clemente under the firswill.

The question that arises is whether the second will has the effect of revoking the first. In my opinion,where, as in the present case, the two wills can be reconciled, the first should be considered revoked

only in so far as it is inconsistent with the second. As the second will was executed only twenty-onemonths after the first, the testatrix, who has been conclusively shown to be of sound mind at the time the execution of the later will, could not have forgotten that she owned two other parcels of land,especially if they are of considerable value. Even the lawyer who drafted the second will was aware thatthe testatrix owned the said two parcels, because they were included in the inventory made of herproperties in connection with the administration proceedings of the estate of her deceased husband.This omission could have been made only on purpose, and, coupled with the circumstance that thesection will does not expressly revoke the first which has not been burned, torn, cancelled orobliterated, inevitably leads to the inference that the testatrix in face intended to make the first willeffective as to the two parcels of land above referred to.

Section 623 of the Code of Civil Procedure provides:

No will shall be revoked, except by implication of law, otherwise than by some will, codicil, orother writing executed as provided in case of wills; or by burning, tearing, cancelling, orobliterating the same with the intention of revoking it, by the testator himself, or by some otherperson in his presence, and by his express direction.

x x x x x x x x x

If partially conflicting, that of the latter date will operate to revoke the former so far as theprovisions of the two are conflicting or incompatible, and in such case both wills are entitled toprobate. (68 Corpus Juris 805.)

Where there is no revocation in a later will of all former wills, two separate and distinct wills maybe probated, especially when the probating of one only of the instruments would leave anintestacy as to part of the estate. This rule applies even though the later instrument states that is the last will and testament of the testator, as the use of such words in a later instrument doesnot of itself revoke a prior will. (Id. p. 885.)

I therefore vote for the probate of both wills.


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G.R. No. L-2538 September 21, 1951

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO,petitioner-appellee,vs.LUZ, GLICERIA and CORNELIO MOLO,oppositors-appellants.

Claro M. Recto and Serafin C. Dizon for appellants.Delgado & Flores for appellee.

BAUTISTA ANGELO, J.:

This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last willand testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The oppositors-appellants brought the case on appeal to this Court for the reason that the value of the propertiesinvolved exceeds P50,000.

Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal,without leaving any forced heir either in the descending or ascending line. He was survived, however, bhis wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew, the oppositorsappellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the legitimate children of Candido

Molo y Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left two wills, one executed onAugust 17, 1918, (Exhibit A) and another executed on June 20, 1939. (Exhibit I). The later will executein 1918.

On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a petition,which was docketed as special proceeding No. 8022 seeking the probate of the will executed by thedeceased on June 20, 1939. There being no opposition, the will was probated. However, upon petitionfiled by the herein oppositors, the order of the court admitting the will to probate was set aside and thecase was reopened. After hearing, at which both parties presented their evidence, the court rendereddecision denying the probate of said will on the ground that the petitioner failed to prove that the samewas executed in accordance with law.

In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944, fileanother petition for the probate of the will executed by the deceased on August 17, 1918, which wasdocketed as special proceeding No. 56, in the same court. Again, the same oppositors filed an oppositioto the petition based on three grounds: (1) that petitioner is now estopped from seeking the probate ofthe will of 1918; (2) that said will has not been executed in the manner required by law and (3) that thewill has been subsequently revoked. But before the second petition could be heard, the battle forliberation came and the records of the case were destroyed. Consequently, a petition for reconstitutionwas filed, but the same was found to be impossible because neither petitioner nor oppositors couldproduce the copies required for its reconstitution. As a result, petitioner filed a new petition onSeptember 14, 1946, similar to the one destroyed, to which the oppositors filed an opposition based onthe same grounds as those contained in their former opposition. Then, the case was set for trial, and oMay 28, 1948, the court issued an order admitting the will to probate already stated in the early part othis decision. From this order the oppositors appealed assigning six errors, to wit.

I. The probate court erred in not holding that the present petitioner voluntarily and deliberatelyfrustrated the probate of the will dated June 20, 1939, in special proceeding No. 8022, in order tenable her to obtain the probate of another alleged will of Molo dated 191.

II. The court a quo erred in not holding that the petitioner is now estopped from seeking theprobate of Molo's alleged will of 1918.


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III. The lower court erred in not holding that petitioner herein has come to court with "uncleanhands" and as such is not entitled to relief.

IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was notexecuted in the manner required by law.

V. The probate court erred in not holding that the alleged will of 1918 was deliberately revoked bMolo himself.

VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by thdecedent's will of 1939.

In their first assignment of error, counsel for oppositors contend that the probate court erred in notholding that the petitioner voluntarily and deliberately frustrated the probate of the will dated June 201939, in order to enable her to obtain the probate of the will executed by the deceased on August 17,1918, pointing out certain facts and circumstances with their opinion indicate that petitioner connivedwith the witness Canuto Perez in an effort to defeat and frustrate the probate of the 1939 will because her knowledge that said will intrinsically defective in that "the one and only testamentory dispositionthereof was a "disposicion captatoria". These circumstances, counsel for the appellants contend,constitute a series of steps deliberately taken by petitioner with a view to insuring the realization of heplan of securing the probate of the 1918 will which she believed would better safeguard her right to

inherit from the decease.

These imputations of fraud and bad faith allegedly committed in connection with special proceedingsNo. 8022, now closed and terminated, are vigorously met by counsel for petitioner who contends that traise them in these proceedings which are entirely new and distinct and completely independent fromthe other is improper and unfair as they find no support whatsoever in any evidence submitted by theparties in this case. They are merely based on the presumptions and conjectures not supported by anyproof. For this reason, counsel, contends, the lower court was justified in disregarding them and inpassing them sub silentio in its decision.

A careful examination of the evidence available in this case seems to justify this contention. There isindeed no evidence which may justify the insinuation that petitioner had deliberately intended to

frustrate the probate of the 1939 will of the deceased to enable her to seek the probate of another willother than a mere conjecture drawn from the apparently unexpected testimony of Canuto Perez that hewent out of the room to answer an urgent call of nature when Artemio Reyes was signing the will andthe failure of petitioner later to impeach the character of said witness in spite of the opportunity givenher by the court to do so. Apart from this insufficiency of evidence, the record discloses that this failurehas been explained by petitioner when she informed the court that she was unable to impeach thecharacter of her witness Canuto Perez because of her inability to find witnesses who may impeach himand this explanation stands uncontradicted. Whether this explanation is satisfactory or not, it is notnow, for us to determine. It is an incident that comes within the province of the former case. The failurof petitioner to present the testimony of Artemio Reyes at the hearing has also been explained, and itappears that petitioner has filed because his whereabouts could not be found. Whether this is true ornot is also for this Court to determine. It is likewise within the province and function of the court in theformer case. And the unfairness of this imputation becomes more glaring when we stock of thedevelopments that had taken place in these proceedings which show in bold relief the true nature of thconduct, behavior and character of the petitioner so bitterly assailed and held in disrepute by theoppositors.

It should be recalled that the first petition for the probate of the will executed on June 20, 1939, wasfiled on February 7, 1941, by the petitioner. There being no opposition, the will was probated.Subsequently, however, upon petition of the herein oppositors, the order of the court admitting said wi


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to probate was set aside, over the vigorous opposition of the herein petitioner, and the case wasreopened. The reopening was ordered because of the strong opposition of the oppositors who contendedthat he will had not been executed as required by law. After the evidence of both parties had beenpresented, the oppositors filed an extensive memorandum wherein they reiterated their view that thewill should be denied probate. And on the strenght of this opposition, the court disallowed the will.

If petitioner then knew that the 1939 will was inherently defective and would make the testamentarydisposition in her favor invalid and ineffective, because it is a "disposicion captatoria", which knowledgshe may easily acquire through consultation with a lawyer, there was no need her to go through theorder of filing the petition for the probate of the will. She could accomplish her desire by merelysuppressing the will or tearing or destroying it, and then take steps leading to the probate of the willexecuted in 1918. But for her conscience was clear and bade her to take the only proper step possibleunder the circumstances, which is to institute the necessary proceedings for the probate of the 1939will. This she did and the will was admitted to probate. But then the unexpected happened. Over hervigorous opposition, the herein appellants filed a petition for reopening, and over her vigorous objectionthe same was granted and the case was reopened. Her motion for reconsideration was denied. Is it herfault that the case was reopened? Is it her fault that the order admitting the will to probate was setaside? That was a contingency which petitioner never expected. Had appellants not filed their oppositioto the probate of the will and had they limited their objection to the intrinsic validity of said will, theirplan to defeat the will and secure the intestacy of the deceased would have perhaps been accomplishedBut they failed in their strategy. If said will was denied probate it is due to their own effort. It is now

unfair to impute bad faith petitioner simply because she exerted every effort to protect her own interesand prevent the intestacy of the deceased to happen.

Having reached the foregoing conclusions, it is obvious that the court did not commit the second andthird errors imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered guilty estoppel which would prevent her from seeking the probate of the 1918 will simply because of her efforto obtain the allowance of the 1939 will has failed considering that in both the 1918 and 1939 wills shewas in by her husband as his universal heir. Nor can she be charged with bad faith far having done sobecause of her desire to prevent the intestacy of her husband. She cannot be blamed being zealous inprotecting her interest.

The next contention of appellants refers to the revocatory clause contained in 1939 will of the deceased

which was denied probate. They contend that, notwithstanding the disallowance of said will, therevocatory clause is valid and still has the effect of nullifying the prior of 1918.

Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson vNaval, (41 Phil., 838). He contends that the facts involved in that case are on all fours with the facts ofthis case. Hence, the doctrine is that case is here controlling.

There is merit in this contention. We have carefully read the facts involved in the Samson case we areindeed impressed by their striking similarity with the facts of this case. We do not need to recite herewhat those facts are; it is enough to point out that they contain many points and circumstances incommon. No reason, therefore, is seen by the doctrine laid down in that case (which we quotehereunder) should not apply and control the present case.

A subsequent will, containing a clause revoking a previous will, having been disallowed, for thereason that it was not executed in conformity with the provisions of section 618 of the Code ofCivil Procedure as to the making of wills, cannot produce the effect of annulling the previous wilinasmuch as said revocatory clause is void. (41 Phil., 838.)

Apropos of this question, counsel for oppositors make the remark that, while they do not disagree withthe soundness of the ruling laid down in the Samson case, there is reason to abandon said ruling


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because it is archaic or antiquated and runs counter to the modern trend prevailing in Americanjurisprudence. They maintain that said ruling is no longer controlling but merely represents the point view of the minority and should, therefore, be abandoned, more so if we consider the fact that section623 of our Code of Civil Procedure, which governs the revocation of wills, is of American origin and assuch should follow the prevailing trend of the majority view in the United States. A long line ofauthorities is cited in support of this contention. And these authorities hold the view, that "an expressrevocation is immediately effective upon the execution of the subsequent will, and does not require thait first undergo the formality of a probate proceeding". (p. 63, appellants' brief .

While they are many cases which uphold the view entertained by counsel for oppositors, and that viewappears to be in controlling the states where the decisions had been promulgated, however, we arereluctant to fall in line with the assertion that is now the prevailing view in the United States. In thesearch we have made of American authorities on the subject, we found ourselves in a pool of conflictingopinions perhaps because of the peculiar provisions contained in the statutes adopted by each State inthe subject of revocation of wills. But the impression we gathered from a review and the study of thepertinent authorities is that the doctrine laid down in the Samson case is still a good law. On page 328of the American Jurisprudence Vol. 57, which is a revision Published in 1948, we found the followingpassages which in our opinion truly reflect the present trend of American jurisprudence on this matteraffecting the revocation of wills:

SEC. 471. Observance of Formalities in Execution of Instrument.Ordinarily, statutes which

permit the revocation of a will by another writing provide that to be effective as a revocation, thewriting must be executed with the same formalities which are required to be observed in theexecution of a will. Accordingly, where, under the statutes, attestation is necessary to the makinof a valid will, an unattested non testamentary writing is not effective to revoke a prior will. It habeen held that a writing fails as a revoking instrument where it is not executed with theformalities requisite for the execution of a will, even though it is inscribed on the will itself,although it may effect a revocation by cancellation or obliteration of the words of the will. Atestator cannot reserve to himself the power to modify a will by a written instrumentsubsequently prepared but not executed in the manner required for a will.

SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil.A will which is invalidbecause of the incapacity of the testator, or of undue influence can have no effect whatever as a

revoking will. Moreover, a will is not revoked by the unexecuted draft of a later one. Nor is a willrevoked by a defectively executed will or codicil, even though the latter contains a clauseexpressly revoking the former will, in a jurisdiction where it is provided by a controlling statutethat no writing other than a testamentary instrument is sufficient to revoke a will, for the simplereason that there is no revoking will. Similarly where the statute provides that a will may berevoked by a subsequent will or other writing executed with the same formalities as are requiredin the execution of wills, a defectively executed will does not revoke a prior will, since it cannot bsaid that there is a writing which complies with the statute. Moreover, a will or codicil which, onaccount of the manner in which it is executed, is sufficient to pass only personally does not affecdispositions of real estate made by a former will, even though it may expressly purport to do so.The intent of the testator to revoke is immaterial, if he has not complied with the statute. (57 AmJur., 328, 329.)

We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400,Volume 123, there appear many authorities on the "application of rules where second will is invalid",among which a typical one is the following:

It is universally agreed that where the second will is invalid on account of not being executed inaccordance with the provisions of the statute, or where the testator who has not sufficient mentcapacity to make a will or the will is procured through undue influence, or the such, in other


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words, where the second will is really no will, it does not revoke the first will or affect it in anymanner. Mort vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.

These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case ispredicated. They reflect the opinion that this ruling is sound and good and for this reason, we see nojustification for abondoning it as now suggested by counsel for the oppositors.

It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be somewill, codicil, or other writing executed as proved in case of wills" but it cannot be said that the 1939 wil

should be regarded, not as a will within the meaning of said word, but as "other writing executed asprovided in the case of wills", simply because it was denied probate. And even if it be regarded as anyother writing within the meaning of said clause, there is authority for holding that unless said writing iadmitted to probate, it cannot have the effect of revocation. (See 57 Am. Jur. pp. 329-330).

But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918cannot still be given effect because of the presumption that it was deliberately revoked by the testatorhimself. The oppositors contend that the testator, after executing the 1939 will, and with full knowledgof the recovatory clause contained said will, himself deliberately destroyed the original of the 1918 willand for that reason the will submitted by petitioner for probate in these proceedings is only a duplicateof said original.

There is no evidence which may directly indicate that the testator deliberately destroyed the original ofthe 1918 will because of his knowledge of the revocatory clause contained in the will he executed in1939. The only evidence we have is that when the first will was executed in 1918, Juan Salcedo, whoprepared it, gave the original and copies to the testator himself and apparently they remained in hispossession until he executed his second will in 1939. And when the 1939 will was denied probate onNovember 29, 1943, and petitioner was asked by her attorney to look for another will, she found theduplicate copy (Exhibit A) among the papers or files of the testator. She did not find the original.

If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of threvocatory clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his wife, theherein petitioner, the most logical step for the testator to take is to recall said duplicate copy in orderthat it may likewise be destroyed. But this was not done as shown by the fact that said duplicate copy

remained in the possession of petitioner. It is possible that because of the long lapse of twenty-one (21)years since the first will was executed, the original of the will had been misplaced or lost, and forgettinthat there was a copy, the testator deemed it wise to execute another will containing exactly the sametestamentary dispositions. Whatever may be the conclusion we may draw from this chain ofcircumstances, the stubborn fact is that there is no direct evidence of voluntary or deliberatedestruction of the first will by the testator. This matter cannot be inference or conjectur.

Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after thexecution of the second will, which revoked the first, could there be any doubt, under this theory, thatsaid earlier will was destroyed by the testator in the honest belief that it was no longer necessarybecause he had expressly revoked it in his will of 1939? In other words, can we not say that thedestruction of the earlier will was but the necessary consequence of the testator's belief that therevocatory clause contained in the subsequent will was valid and the latter would be given effect? Ifsuch is the case, then it is our opinion that the earlier will can still be admitted to probate under theprinciple of "dependent relative revocation".

This doctrine is known as that of dependent relative revocation, and is usually applied where thtestator cancels or destroys a will or executes an instrument intended to revoke a will with apresent intention to make a new testamentary disposition as a substitute for the old, and the nedisposition is not made or, if made, fails of effect for same reason. The doctrine is n limited to th


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existence of some other document, however, and has been applied where a will was destroyed asa consequence of a mistake of law. . . . (68 C.J.P. 799).

The rule is established that where the act of destruction is connected with the making of anothewill so as fairly to raise the inference that the testator meant the revocation of the old to dependupon the efficacy of a new disposition intended to be substituted, the revocation will beconditional and dependent upon the efficacy of the new disposition; and if, for any reason, thenew will intended to be made as a substitute is inoperative, the revocation fails and the originalwill remains in full force. (Gardner, pp. 232, 233.)

This is the doctrine of dependent relative revocation. The failure of a new testamentarydisposition upon whose validity the revocation depends, is equivalent to the non-fulfillment of asuspensive conditions, and hence prevents the revocation of the original will. But a mere intent make at some time a will in the place of that destroyed will not render the destructionconditional. It must appear that the revocation is dependent upon the valid execution of a newwill. (1 Alexander, p. 751; Gardner, p. 253.)

We hold therefore, that even in the supposition that the destruction of the original will by the testatorcould be presumed from the failure of the petitioner to produce it in court, such destruction cannothave the effect of defeating the prior will of 1918 because of the fact that it is founded on the mistakenbelief that the will of 1939 has been validly executed and would be given due effect. The theory on whic

this principle is predicated is that the testator did not intend to die intestate. And this intention isclearly manifest when he executed two wills on two different occasion and instituted his wife as hisuniversal heir. There can therefore be no mistake as to his intention of dying testate.

The remaining question to be determined refers to the sufficiency of the evidence to prove the dueexecution of the will.

The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, RufinoEnriquez, and Angel Cuenca. The first two witnesses died before the commencement of the presentproceedings. So the only instrumental witness available was Angel Cuenca and under our law andprecedents, his testimony is sufficient to prove the due execution of the will. However, petitionerpresented not only the testimony of Cuenca but placed on the witness stand Juan Salcedo, the notary

public who prepared and notarized the will upon the express desire and instruction of the testator, Thetestimony of these witnesses shows that the will had been executed in the manner required by law. Wehave read their testimony and we were impressed by their readiness and sincerity. We are convincedthat they told the truth.

Wherefore, the order appealed from is hereby affirmed, with costs against the appellants.1wphl.nt


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G.R. No. L-12172 August 29, 1958

THE PEOPLE OF THE PHILIPPINES,plaintiff-appellee,vs.JUAN F. FAJARDO, ET AL.,defendants-appellants.

Assistant Solicitor General Esmeraldo Umali and Higinio V. Catalan for appellee.

Prila, Pardalis and Pejo for appellants.

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

Appeal from the decision of the Court of First Instance of Camarines Sur convicting defendants-appellants Juan F. Fajardo and Pedro Babilonia of a violation of Ordinance No. 7, Series of 1950, of theMunicipality of Baao, Camarines Sur, for having constructed without a permit from the municipalmayor a building that destroys the view of the public plaza.

It appears that on August 15, 1950, during the incumbency of defendant-appellant Juan F. Fajardo asmayor of the municipality of Baao, Camarines Sur, the municipal council passed the ordinance inquestion providing as follows:

SECTION 1. Any person or persons who will construct or repair a building should, beforeconstructing or repairing, obtain a written permit from the Municipal Mayor.

SEC. 2. A fee of not less than P2.00 should be charged for each building permit and P1.00 foreach repair permit issued.

SEC. 3. PENALTYAny violation of the provisions of the above, this ordinance, shall make theviolation liable to pay a fine of not less than P25 nor more than P50 or imprisonment of not lessthan 12 days nor more than 24 days or both, at the discretion of the court. If said buildingdestroys the view of the Public Plaza or occupies any public property, it shall be removed at the

expense of the owner of the building or house.

SEC. 4. EFFECTIVITYThis ordinance shall take effect on its approval. (Orig. Recs., P. 3)

Four years later, after the term of appellant Fajardo as mayor had expired, he and his son in-law,appellant Babilonia, filed a written request with the incumbent municipal mayor for a permit toconstruct a building adjacent to their gasoline station on a parcel of land registered in Fajardo's name,located along the national highway and separated from the public plaza by a creek (Exh. D). OnJanuary 16, 1954, the request was denied, for the reason among others that the proposed buildingwould destroy the view or beauty of the public plaza (Exh. E). On January 18, 1954, defendantsreiterated their request for a building permit (Exh. 3), but again the request was turned down by themayor. Whereupon, appellants proceeded with the construction of the building without a permit,

because they needed a place of residence very badly, their former house having been destroyed by atyphoon and hitherto they had been living on leased property.

On February 26, 1954, appellants were charged before and convicted by the justice of the peace court oBaao, Camarines Sur, for violation of the ordinance in question. Defendants appealed to the Court ofFirst Instance, which affirmed the conviction, and sentenced appellants to pay a fine of P35 each andthe costs, as well as to demolish the building in question because it destroys the view of the public plazof Baao, in that "it hinders the view of travelers from the National Highway to the said public plaza."


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From this decision, the accused appealed to the Court of Appeals, but the latter forwarded the recordsto us because the appeal attacks the constitutionality of the ordinance in question.

We find that the appealed conviction can not stand.

A first objection to the validity of the ordinance in question is that under it the mayor has absolutediscretion to issue or deny a permit. The ordinance fails to state any policy, or to set up any standard tguide or limit the mayor's action. No purpose to be attained by requiring the permit is expressed; noconditions for its grant or refusal are enumerated. It is not merely a case of deficient standards;

standards are entirely lacking. The ordinance thus confers upon the mayor arbitrary and unrestrictedpower to grant or deny the issuance of building permits, and it is a settled rule that such an undefinedand unlimited delegation of power to allow or prevent an activity,per se lawful, is invalid (People vs.Vera, 65 Phil., 56; Primicias vs. Fugoso, 80 Phil., 71; Schloss Poster Adv. Co. vs. Rock Hill, 2 SE (2d)392)

The ordinance in question in no way controls or guides the discretion vested thereby in therespondents. It prescribes no uniform rule upon which the special permission of the city is to begranted. Thus the city is clothed with the uncontrolled power to capriciously grant the privilege some and deny it others; to refuse the application of one landowner or lessee and to grant that oanother, when for all material purposes, the two applying for precisely the same privileges undethe same circumstances. The danger of such an ordinance is that it makes possible arbitrary

discriminations and abuses in its execution, depending upon no conditions or qualificationswhatever, other than the unregulated arbitrary will of the city authorities as the touchstone bywhich its validity is to be tested. Fundamental rights under our government do not depend fortheir existence upon such a slender and uncertain thread. Ordinances which thus invest a citycouncil with a discretion which is purely arbitrary, and which may be exercised in the interest oa favored few, are unreasonable and invalid. The ordinance should have established a rule bywhich its impartial enforcement could be secured. All of the authorities cited above sustain thisconclusion.

As was said in City of Richmond vs. Dudley, 129 Ind. 112,28 N. E. 312, 314 13 L. R. A. 587, 28Am. St. Rep. 180: "It seems from the foregoing authorities to be well established that municipalordinances placing restrictions upon lawful conduct or the lawful use of property must, in order

to be valid, specify the rules and conditions to be observed in such conduct or business; andmust admit of the exercise of the privilege of all citizens alike who will comply with such rulesand conditions; and must not admit of the exercise, or of an opportunity for the exercise, of anyarbitrary discrimination by the municipal authorities between citizens who will so comply.(Schloss Poster Adv. Co., Inc. vs. City of Rock Hill, et al., 2 SE (2d), pp. 394-395).

It is contended, on the other hand, that the mayor can refuse a permit solely in case that the proposedbuilding "destroys the view of the public plaza or occupies any public property" (as stated in its section3); and in fact, the refusal of the Mayor of Baao to issue a building permit to the appellant waspredicated on the ground that the proposed building would "destroy the view of the public plaza" bypreventing its being seen from the public highway. Even thus interpreted, the ordinance isunreasonable and oppressive, in that it operates to permanently deprive appellants of the right to usetheir own property; hence, it oversteps the bounds of police power, and amounts to a taking ofappellants property without just compensation. We do not overlook that the modern tendency is toregard the beautification of neighborhoods as conducive to the comfort and happiness of residents. Buwhile property may be regulated in the interest of the general welfare, and in its pursuit, the State mayprohibit structures offensive to the sight (Churchill and Tait vs. Rafferty, 32 Phil. 580), the State maynot, under the guise of police power, permanently divest owners of the beneficial use of their propertyand practically confiscate them solely to preserve or assure the aesthetic appearance of the communityAs the case now stands, every structure that may be erected on appellants' land, regardless of its own


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beauty, stands condemned under the ordinance in question, because it would interfere with the view othe public plaza from the highway. The appellants would, in effect, be constrained to let their landremain idle and unused for the obvious purpose for which it is best suited, being urban in character. Tlegally achieve that result, the municipality must give appellants just compensation and an opportunitto be heard.

An ordinance whichpermanentlyso restricts the use of property that it can not be used for anyreasonable purpose goes, it is plain, beyond regulation and must be recognized as a taking of thproperty. The only substantial difference, in such case, between restriction and actual taking, isthat the restriction leaves the owner subject to the burden of payment of taxation, while outrighconfiscation would relieve him of that burden. (Arverne Bay Constr. Co. vs. Thatcher (N.Y.) 117ALR. 1110, 1116).

A regulation which substantially deprives an owner of all beneficial use of his property isconfiscation and is a deprivation within the meaning of the 14th Amendment. (Sundlum vs.Zoning Bd., 145 Atl. 451; also Eaton vs. Sweeny, 177 NE 412; Taylor vs. Jacksonville, 133 So.114).

Zoning which admittedly limits property to a use which can not reasonably be made of it cannotbe said to set aside such property to a use but constitutes the taking of such property withoutjust compensation. Use of property is an element of ownership therein. Regardless of the opinion

of zealots that property may properly, by zoning, be utterly destroyed without compensation,such principle finds no support in the genius of our government nor in the principles of justice awe known them. Such a doctrine shocks the sense of justice. If it be of public benefit that propertremain open and unused, then certainly the public, and not the private individuals, should bear thcost of reasonable compensation for such property under the rules of law governing thecondemnation of private property for public use. (Tews vs. Woolhiser (1933) 352 I11. 212, 185 N.E827) (Emphasis supplied.)

The validity of the ordinance in question was justified by the court below under section 2243, par. (c), the Revised Administrative Code, as amended. This section provides:

SEC. 2243. Certain legislative powers of discretionary character.The municipal council shall

have authority to exercise the following discretionary powers:

x x x x x x x x x

(c) To establish fire limits in populous centers, prescribe the kinds of buildings that may beconstructed or repaired within them, and issue permits for the creation or repair thereof,charging a fee which shall be determined by the municipal council and which shall not be lessthan two pesos for each building permit and one peso for each repair permit issued. The feescollected under the provisions of this subsection shall accrue to the municipal school fund.

Under the provisions of the section above quoted, however, the power of the municipal council to

require the issuance of building permits rests upon its first establishing fire limits in populous parts ofthe town and prescribing the kinds of buildings that may be constructed or repaired within them. Asthere is absolutely no showing in this case that the municipal council had either established fire limitswithin the municipality or set standards for the kind or kinds of buildings to be constructed or repairedwithin them before it passed the ordinance in question, it is clear that said ordinance was not conceiveand promulgated under the express authority of sec. 2243 (c) aforequoted.

We rule that the regulation in question, Municipal Ordinance No. 7, Series of 1950, of the Municipalityof Baao, Camarines Sur, was beyond the authority of said municipality to enact, and is therefore null


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and void. Hence, the conviction of herein appellants is reversed, and said accused are acquitted, withcosts de oficio. So ordered.

People v Fajardo G.R. No. L-12172 August 29, 1958

J. B. L . Reyes

Facts:

Fajardo was mayor in Baao, Camrines Sur when the municipal council passed the ordinance thprohibits the construction of a building that blocks the view of the town plaza. Moreover, it redirects thgrant of permission to the mayor.After his incumbency, Fajardo applied for a permit to build a building beside the gasoline station nethe town plaza. His request was repeatedly denied. He continued with the construction under thrationale that he needed a house to stay in because the old one was destroyed by a typhoon.He was convicted and ordered to pay a fine and demolish the building due to its obstructing view.He appealed to the CA, which in turn forwarded the petition due to the question of the ordinanceconstitutionality.

Issue: Is the ordinance constitutional?

Held: No, petition granted.

Ratio:The ordinance doesnt state any standard that limits the grant of power to the mayor. It is an arbitraand unlimited conferment.Ordinances which thus invest a city council with a discretion which is purely arbitrary, and which mbe exercised in the interest of a favored few, are unreasonable and invalid. The ordinance should havestablished a rule by which its impartial enforcement could be secured. All of the authorities cited abovsustain this conclusion.The ordinance is unreasonable and oppressive, in that it operates to permanently deprive appellants the right to use their own property; hence, it oversteps the bounds of police power, and amounts to taking of appellants property without just compensation.

While property may be regulated to the interest of the general welfare, and the state may eliminastructures offensive to the sight, the state may not permanently divest owners of the beneficial use their property and practically confiscate them solely to preserve or assure the aesthetic appearance the community.Fajardo would be constrained to let the land be fallow and not be used for urban purposes. To do thlegally, there must be just compensation and they must be given an opportunity to be heard.An ordinance which permanently so restricts the use of property that it can not be used for anreasonable purpose goes, it is plain, beyond regulation and must be recognized as a taking of thproperty.The validity was also refuted by the Admin Code which states:SEC. 2243. Certain legislative powers of discretionary character. The municipal council shall haauthority to exercise the following discretionary powers:

x x x x x x x x x(c) To establish fire limits in populous centers, prescribe the kinds of buildings that may be constructeor repaired within them, and issue permits for the creation or repair thereof, charging a fee which shabe determined by the municipal council and which shall not be less than two pesos for each buildinpermit and one peso for each repair permit issued. The fees collected under the provisions of thsubsection shall accrue to the municipal school fund.Since, there was absolutely no showing in this case that the municipal council had either establishefire limits within the municipality or set standards for the kind or kinds of buildings to be constructe


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or repaired within them before it passed the ordinance in question, it is clear that said ordinance wanot conceived and promulgated under the express authority of sec. 2243 (c)

G.R. No. 95279 July 25, 1991

ESTATE OF GREGORIA FRANCISCO, herein represented by SILVESTRE F. TAN, Administrator,petitioner,vs.HON. COURT OF APPEALS, HON. SALVADOR A. MEMORACION, in his capacity as Presiding Judg

of the Regional Trial Court of Isabela, Basilan Province, Branch 2, MUNICIPALITY OF ISABELA,Basilan Province, herein represented by BENJAMIN VALENCIA, in his capacity as MunicipalMayor, Isabela, Basilan Province, ROGELIO L. IGOT, FELICISIMO PIOQUINTO, DANIEL PADINAS,ANTONIO CABANGON, FELIX ROXAS, BENJAMIN FERRER, GREGORIO TABADA, EFREN DELOSREYES, FLORENCIO HUGO, JESUS FRANCISCO, ALFREDO TUBILAG, PABLO ANDRES,respondents.

Bienvenido G. Martin for petitioner.

Laurencio Saavedra for private respondents.

MELENCIO-HERRERA,J.:p

Litigated herein is a quonset building situated in Port Area, Strong Boulevard, Isabela, Basilan, whichwas ordered demolished by respondent Municipal Mayor, Benjamin Valencia. Respondent municipalemployees implemented the demolition, for which reason they are also impleaded.

The quonset was constructed by the American Liberation Forces in 1944. It was purchased in 1946 byGregoria Francisco, who died in 1976. It stands on a lot owned by the Philippine Ports Authority andfaces the municipal wharf. By virtue of Proclamation No. 83 issued by President Elpidio Quirino, saidland was declared for the exclusive use of port facilities.

On 10 January 1989, the Philippine Ports Authority (Port of Zamboanga) issued to Tan Gin San,surviving spouse of Gregoria Francisco, a permit to occupy the lot where the building stands for aperiod of one (1) year, to expire on 31 December 1989. The permittee was using the quonset for thestorage of copra.

On 8 May 1989, Respondent Mayor, through respondent Municipal Action Officer, notified Tan Gin Sanby mail to remove or relocate its quonset building, citingZoning Ordinance No. 147 of the municipalitynoting its antiquated and dilapidated structure; and. stressing the "clean-up campaign on illegalsquatters and unsanitary surroundings along Strong Boulevard." This was followed by another letter o19 May 1989 of the same tenor.

Since the notifications remained unheeded by petitioner, Respondent Mayor ordered the demolition on24 May 1989.

Aggrieved, petitioner sought a Writ of Prohibition with Injunction and Damages before the Regional TriaCourt of Basilan, Branch 2 (docketed as S.P. No. 4).


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On 7 August 1989, the Trial Court 1denied the Writ of Prohibition and upheld the power of respondentMayor to order the demolition without judicial authority, adverting to Zoning Ordinance No. 147 of theMunicipality of Isabela, Basilan. Petitioner duly interposed an appeal.

On 6 September 1989, petitioner's quonset building was completely demolished (Rollo, p. 49). In itsplace sprang shanties and nipa huts, photographs of which have been attached to petitioner'sMemorandum.

On 25 January 1990, the Court of Appeals (in CA-G.R. SP No. 18822) 2initially reversed the Trial Cour

and issued a Writ of Prohibition. It ruled that Respondent Mayor was not vested with power to ordersummarily, and without any judicial proceeding, the demolition of the quonset building, which was noa nuisanceper seand that petitioner is in legal possession of the land on which the building stands byvirtue of the permit issued by the Philippine Ports Authority (Zamboanga Province). The restoration topetitioner of the building materials removed upon demolition, and the payment to it of attorney's fees oP10,000.00, were also ordered.

However, upon reconsideration sought by reswever, upon reconsideration sought by respondentofficials, Respondent Court 3reversed itself on 13 June 1990 stating that "although Municipal MayorValencia initially issued an order demolition without judicial process, the deficiency was remedied wheappellant (petitioners herein) filed a petition for prohibition and injunction and was heard on oralargument after appellees (respondent officials) filed their answer." Respondent Court then quashed the

Writ of Prohibition and set aside the order of restitution and payment of attorney's fees.

Petitioner's plea for reconsideration having been denied, it is now before us seeking a reversal.

The focal issue for determination is whether or not Respondent Mayor could summarily, without judiciprocess, order the demolition of petitioner's quonset building.

Respondent justify the demolition in the exercise of police power and for reasons of health, safety andgeneral welfare. It also relies on Ordinance No. 147 (CA Records, pp. 85-104) of the Municipality ofIsabela. For its part petitioner consistently denies to the Mayor, such power, invoking provisions of theLocal Government Code.

Ordinance No. 147, enacted on 27 December 1977, and relied upon by respondents, is entitled "AnOrdinance Establishing Comprehensive Zoning Regulations for the Municipality of Isabela . . ." It is nodisputed that the quonset building, which is being used for the storage of copra, is located outside thezone for warehouses. It is referred to in Ordinance as a non-conforming structure, which should berelocated. And in the event that an immediate relocation of the building can not be accomplished,Section 16 of the Ordinance provides:

A certificate of non-conformance for all non-conforming uses shall be applied for by theowner or agent of the property involved within twelve (12) months from the approval of thiOrdinance, otherwise the non-conforming use may be condemned or removed at theowner's expense.

Even granting that petitioner failed to apply for a Certificate of Non-conformance, the foregoing provisioshould not be interpreted as authorizing the summary removal of a non-conforming building by themunicipal government. For if it does, it must be struck down for being in contravention of therequirements of due process, as originally held by the respondent Court.

Moreover, the enforcement and administration of the provisions of the Ordinance resides with theZoning Administrator (Article VII, Secs. 1 and 2, Ordinance No. 147). It is said official who may callupon the City Fiscal to institute the necessary legal proceedings to enforce the provisions of the


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Ordinance (id., Sec. 2, Ibid.). And any person aggrieved by the decision of the Zoning Administratorregarding the enforcement of the Ordinance may appeal to the Board of Zoning Appeals ( id., Sec. 7,Ibid.).

That a summary remedy can not be resorted to is further evident from the penal provisions of saidOrdinance, reading:

Any person who violates any of the provisions of this ordinance shall, upon conviction, bepunished by a fine of not less than fifty pesos (P50.00) but not more than two hundred

pesos (P200.00) or by imprisonment of not less than one (1) month but not exceeding six(6) months, or both, at the discretion of the Court. . . (ibid., Sec. 11). [Emphasis ours].

Violation of a municipal ordinance neither empowers the Municipal Mayor to avail of extra-judicialremedies. On the contrary, the Local Government Code imposes upon him the duty "to cause to beinstituted judicial proceedings in connection with the violation of ordinances" (Local Government CodeSec. 141 [2] [t]).

Respondents can not seek cover under the general welfare clause authorizing the abatement ofnuisances without judicial proceedings. That tenet applies to a nuisanceper seor one which affects thimmediate safety of persons and property and may be summarily abated under the undefined law ofnecessity (Monteverde v. Generoso, 52 Phil. 123 [1982]). The storage of copra in the quonset building is

a legitimate business. By its nature, it can not be said to be injurious to rights of property, of health orof comfort of the community. If it be a nuisanceper accidensit may be so proven in a hearing conductefor that purpose. It is notper sea nuisance warranting its summary abatement without judicialintervention.

The provincial governor, district engineer or district health officer is not authorized todestroy private property consisting of dams and fishponds summarily and without anyjudicial proceedings whatever under the pretense that such private property constitutes anuisance. A dam or a fishery constructed in navigable rivers is not a nuisance per se. Adam or fishpond may be a nuisanceper accidenswhere it endangers or impairs the healtor depreciates property by causing water to become stagnant. (Monteverde v. Generoso,supra).

While the Sangguniang Bayan may provide for the abatement of a nuisance (Local Government Code,Sec. 149 [ee]), it can not declare a particular thing as a nuisanceper seand order its condemnation.The nuisance can only be so adjudged by judicial determination.

[Municipal councils] do not have the power to find as a fact that a particular thing is anuisance when such thing is not a nuisanceper senor can they authorize the extrajudicial condemnation and destruction of that as a nuisance which, in its nature, situatioor use is not such. These things must be determined in the ordinary courts of law. In thepresent case, . . . the ice factory of the plaintiff is not a nuisanceper se. It is a legitimateindustry . . . . If it be in fact a nuisance due to the manner of its operation, that question

cannot be determined by a mere resolution of the board. The petitioner is entitled to a fairand impartial heating before a judicial tribunal. (Iloilo Cold Storage v. Municipal Council,24 Phil. 47 [1913]).

Petitioner was in lawful possession of the lot and quonset building by virtue of a permit from thePhilippine Ports Authority (Port of Zamboanga) when demolition was effected. It was not squatting onpublic land. Its property was not of trifling value. It was entitled to an impartial hearing before atribunal authorized to decide whether the quonset building did constitute a nuisance in law. There wasno compelling necessity for precipitate action. It follows then that respondent public officials of the


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Municipality of Isabela, Basilan, transcended their authority in abating summarily petitioner's quonsetbuilding. They had deprived petitioner of its property without due process of law. The fact that petitionfiled a suit for prohibition and was subsequently heard thereon will not cure the defect, as opined by thCourt of Appeals, the demolition having been afait accompliprior to hearing and the authority todemolish without a judicial order being a prejudicial issue.

For the precipitate demolition, therefore, petitioner should be entitled to just compensation, the amounof which is for the Trial Court to determine. We are not inclined to grant petitioner damages, however,as it simply ignored the demand to remove or relocate its quonset building.

WHEREFORE, the judgment under review of respondent Court of Appeals, dated 13 June 1990, is SETASIDE; its original Decision, promulgated on 25 January 1990, is REINSTATED; and this case isordered REMANDED to the Regional Trial Court of Basilan, Branch 2, for the determination of the justcompensation due petitioner for the demolition of its quonset building.

G.R. No. 94759 January 21, 1991

TECHNOLOGY DEVELOPERS, INC., petitioner,vs.COURT OF APPEALS, HON. NARCISO T. ATIENZA as Presiding Judge, Bulacan, RTC, and HON.VICENTE CRUZ, Acting Mayor and the MUNICIPALITY OF STA. MARIA, BULACAN, respondents.

Diosdado P. Peralta for petitioner.

GANCAYCO, J.:p

The authority of the local executive to protect the community from pollution is the center of thiscontroversy.

The antecedent facts are related in the appealed decision of the Court of Appeals as follows:

Petitioner, a domestic private corporation engaged in the manufacture and export ofcharcoal briquette, received a letter dated February 16, 1989 from private respondentacting mayor Pablo N. Cruz, ordering the full cessation of the operation of the petitioner'splant located at Guyong, Sta. Maria, Bulacan, until further order. The letter likewiserequested Plant Manager Mr. Armando Manese to bring with him to the office of the mayoon February 20, 1989 the following: a) Building permit; b) Mayor's permit; c) Region III-Pollution of Environment and Natural Resources Anti-Pollution Permit; and of otherdocument.

At the requested conference on February 20, 1989, petitioner, through its representative,undertook to comply with respondent's request for the production of the required

documents. In compliance with said undertaking, petitioner commenced to secure "RegioIII-Department of Environmental and Natural Resources Anti-Pollution Permit," althoughamong the permits previously secured prior to the operation of petitioner's plant was a"Temporary Permit to Operate Air Pollution Installation" issued by the then NationalPollution Control Commission (now Environmental Management Bureau) and is now at astage where the Environmental Management Bureau is trying to determine the correctkind of anti-pollution devise to be installed as part of petitioner's request for the renewal oits permit.


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Petitioner's attention having been called to its lack of mayor's permit, it sent itsrepresentatives to the office of the mayor to secure the same but were not entertained.

On April 6, 1989, without previous and reasonable notice upon petitioner, respondentacting mayor ordered the Municipality's station commander to padlock the premises ofpetitioner's plant, thus effectively causing the stoppage of its operation.

Left with no recourse, petitioner instituted an action for certiorari, prohibition, mandamuswith preliminary injunction against private respondent with the court a quo which is

presided by the respondent judge. In its prayer for the issuance of a writ of preliminarymandatory injunction, it alleged therein that the closure order was issued in grave abuseof discretion.

During the hearing of the application for the issuance of a writ of preliminary injunctionon April 14, 1989, herein parties adduced their respective evidences. The respondentjudge, April 19, 1989, found that petitioner is entitled to the issuance of the writ ofpreliminary mandatory injunction, hence, it ordered as follows:

In view of the foregoing, upon petitioner's posting of a bond in the amount oP50,000.00 to answer for such damages that respondents may sustainshould petitioner eventually be found not entitled to the injunctive relief

hereby issued, let a PRELIMINARY MANDATORY INJUNCTION issue orderinthe respondent Hon. Pablo N. Cruz, and other person acting in his behalf anstead to immediately revoke his closure order dated April 6, 1989, and allowpetitioner to resume its normal business operations until after the instantcase shall have been adjudicated on the merits without prejudice to theinherent power of the court to alter, modify or even revoke this order at anygiven time.

SO ORDERED.

The writ of preliminary mandatory injunction was issued on April 28, 1989, uponpetitioner's posting a bond in the amount of P50,000.00.

Private respondent filed his motion for reconsideration dated May 3, 1989. Said motion foreconsideration was heard on May 30, 1989. Petitioner's counsel failed to appear and thehearing proceeded with the Provincial Prosecutor presenting his evidence. The followingdocuments were submitted:

a) Exhibit "A", Investigation report on the Technology Developers Inc., prepared by oneMarivic Guina, and her conclusion and recommendation read:

Due to the manufacturing process and nature of raw materials used, thefumes coming from the factory may contain particulate matters which are

hazardous to the health of the people. As such, the company should ceaseoperating until such a time that the proper air pollution device is installedand operational.

b) Exhibits "B", "B-1", "B-2", three (3) sheets of coupon bond containing signatures ofresidents of Barangay Guyong, Sta. Maria, Bulacan;


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c) Exhibit "B-3", a letter addressed to Hon. Roberto Pagdanganan Governor of the Provincof Bulacan, dated November 22, 1988, complaining about the smoke coming out of thechimney of the company while in operation.

Reassessing all the evidence adduced, the lower court, on June 14, 1989, issued an order(a) setting aside the order dated April 28, 1989, which granted a Writ of PreliminaryMandatory Injunction, and (b) dissolving the writ consequently issued.

A motion for reconsideration dated July 6, 1989 was filed by petitioner. Said motion drew

an opposition dated July 19, 1989 from private respondent.

Resolving the petitioner's motion for reconsideration, the respondent judge issued an ordedated August 9, 1989, denying said motion for reconsideration.1

Hence a petition for certiorariand prohibition with preliminary injunction was filed by petitioner in theCourt of Appeals seeking to annul and set aside (a) the order issued by the trial court on June 14, 198setting aside the order dated April 28, 1989, and (b) the order of August 9, 1989, denying petitioner'smotion for reconsideration of the order of June 14, 1989. In due course the petition was denied for lackof merit by the appellate court in a decision dated January 26, 1990. 2A motion for reconsiderationthereof filed by petitioner was denied on August 10, 1990.

Thus, the herein petition for review on certiorarifiled with this Court. Six errors are alleged to have beecommitted by the appellate court which may be synthesized into the singular issue of whether or notthe appellate court committed a grave abuse of discretion in rendering its question decision andresolution.

The petition is devoid of merit.

The well-known rule is that the matter of issuance of a writ of preliminary injunction is addressed to thsound judicial discretion of the trial court and its action shall not be disturbed on appeal unless it isdemonstrated that it acted without jurisdiction or in excess of jurisdiction or otherwise, in grave abuseof its discretion. By the same token the court that issued such a preliminary relief may recall or dissolvthe writ as the circumstances may warrant.

To the mind of the Court the following circumstances militate against the maintenance of the writ ofpreliminary injunction sought by petitioner:

1. No mayor's permit had been secured. While it is true that the matter of determiningwhether there is a pollution of the environment that requires control if not prohibition ofthe operation of a business is essentially addressed to the then National Pollution ControCommission of the Ministry of Human Settlements, now the Environmental ManagementBureau of the Department of Environment and Natural Resources, it must be recognizedthat the mayor of a town has as much responsibility to protect its inhabitants frompollution, and by virture of his police power, he may deny the application for a permit to

operate a business or otherwise close the same unless appropriate measures are taken tocontrol and/or avoid injury to the health of the residents of the community from theemissions in the operation of the business.

2. The Acting Mayor, in a letter of February 16, 1989, called the attention of petitioner tothe pollution emitted by the fumes of its plant whose offensive odor "not only pollute theair in the locality but also affect the health of the residents in the area," so that petitionerwas ordered to stop its operation until further orders and it was required to bring thefollowing:


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(1) Building permit;

(2) Mayor's permit; and

(3) Region III-Department of Environment and Natural Resources Anti-Pollution permit. 3

3. This action of the Acting Mayor was in response to the complaint of the residents ofBarangay Guyong, Sta. Maria, Bulacan, directed to the Provincial Governor throughchannels.4The alleged NBI finding that some of the signatures in the four-page petition

were written by one person,5

appears to be true in some instances, (particularly as amonmembers of the same family), but on the whole the many signatures appear to be writtenby different persons. The certification of the barrio captain of said barrio that he has notreceived any complaint on the matter 6must be because the complaint was sent directly tthe Governor through the Acting Mayor.

4. The closure order of the Acting Mayor was issued only after an investigation was madeby Marivic Guina who in her report of December 8, 1988 observed that the fumes emittedby the plant of petitioner goes directly to the surrounding houses and that no proper airpollution device has been installed.7

5. Petitioner failed to produce a building permit from the municipality of Sta. Maria, but

instead presented a building permit issued by an official of Makati on March 6,1987. 8

6. While petitioner was able to present a temporary permit to operate by the then NationaPollution Control Commission on December 15, 1987, the permit was good only up to Ma25, 1988.9Petitioner had not exerted any effort to extend or validate its permit much lessto install any device to control the pollution and prevent any hazard to the health of theresidents of the community.

All these factors justify the dissolution of the writ of preliminary injunction by the trial court and theappellate court correctly upheld the action of the lower court.

Petitioner takes note of the plea of petitioner focusing on its huge investment in this dollar-earningindustry. It must be stressed however, that concomitant with the need to promote investment andcontribute to the growth of the economy is the equally essential imperative of protecting the health, nathe very lives of the people, from the deleterious effect of the pollution of the environment.

WHEREFORE, the petition is DENIED, with costs against petitioner.

SO ORDERED.

.R. Nos. 120865-71 December 7, 1995

LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,

vs.COURT OF APPEALS; HON. JUDGE HERCULANO TECH, PRESIDING JUDGE, BRANCH 70,REGIONAL TRIAL COURT OF BINANGONAN RIZAL; FLEET DEVELOPMENT, INC. and CARLITOARROYO; THE MUNICIPALITY OF BINANGONAN and/or MAYOR ISIDRO B. PACIS, respondents.

LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,vs.COURT OF APPEALS; HON. JUDGE AURELIO C. TRAMPE, PRESIDING JUDGE, BRANCH 163,


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Towards environmental protection and ecology, navigational safety, and sustainable development,Republic Act No. 4850 created the "Laguna Lake Development Authority." This Government Agency issupposed to carry out and effectuate the aforesaid declared policy, so as to accelerate the developmentand balanced growth of the Laguna Lake area and the surrounding provinces, cities and towns, in theact clearly named, within the context of the national and regional plans and policies for social andeconomic development.

Presidential Decree No. 813 of former President Ferdinand E. Marcos amended certain sections ofRepublic Act No. 4850 because of the concern for the rapid expansion of Metropolitan Manila, thesuburbs and the lakeshore towns of Laguna de Bay, combined with current and prospective uses of thelake for municipal-industrial water supply, irrigation, fisheries, and the like. Concern on the part of thGovernment and the general public over:the environment impact of development on the water qualiand ecology of the lake and its related river systems; the inflow of polluted water from the Pasig River,industrial, domestic and agricultural wastes from developed areas around the lake; the increasingurbanization which induced the deterioration of the lake, since water quality studies have shown thatthe lake will deteriorate further if steps are not taken to check the same; and the floods in MetropolitanManila area and the lakeshore towns which will influence the hydraulic system of Laguna de Bay, sincany scheme of controlling the floods will necessarily involve the lake and its river systems, likewisegave impetus to the creation of the Authority.

Section 1 of Republic Act No. 4850 was amended to read as follows:

Sec. 1. Declaration of Policy. It is hereby declared to be the national policy to promote, andaccelerate the development and balanced growth of the Laguna Lake area and thesurrounding provinces, cities and towns hereinafter referred to as the region, within thecontext of the national and regional plans and policies for social and economicdevelopment and to carry out the development of the Laguna Lake region with due regardand adequate provisions for environmental management and control, preservation of thequality of human life and ecological systems, and the prevention of undue ecologicaldisturbances, deterioration and pollution.1

Special powers of the Authority, pertinent to the issues in this case, include:

Sec. 3. Section 4 of the same Act is hereby further amended by adding thereto seven newparagraphs to be known as paragraphs (j), (k), (l), (m), (n), (o), and (p) which shall read asfollows:

xxx xxx xxx

(j) The provisions of existing laws to the contrary notwithstanding, to engagein fish production and other aqua-culture projects in Laguna de Bay andother bodies of water within its jurisdiction and in pursuance thereof toconduct studies and make experiments, whenever necessary, with thecollaboration and assistance of the Bureau of Fisheries and AquaticResources, with the end in view of improving present techniques andpractices. Provided, that until modified, altered or amended by the procedurprovided in the following sub-paragraph, the present laws, rules and permitor authorizations remain in force;

(k) For the purpose of effectively regulating and monitoring activities inLaguna de Bay, the Authority shall have exclusive jurisdiction to issue new

permit for the use of the lake waters for any projects or activities in or affectinthe said lake including navigation, construction, and operation of fishpens, fis


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enclosures, fish corrals and the like, and to impose necessary safeguards forlake quality control and management and to collect necessary fees for saidactivities and projects: Provided, That the fees collected for fisheries may beshared between the Authority and other government agencies and politicalsub-divisions in such proportion as may be determined by the President ofthe Philippines upon recommendation of the Authority's Board: Provided,

further, That the Authority's Board may determine new areas of fisherydevelopment or activities which it may place under the supervision of theBureau of Fisheries and Aquatic Resources taking into account the overalldevelopment plans and programs for Laguna de Bay and related bodies ofwater: Provided, finally, That the Authority shall subject to the approval ofthe President of the Philippines promulgate such rules and regulations whicshall govern fisheries development activities in Laguna de Bay which shalltake into consideration among others the following: socio-economicamelioration of bonafide resident fishermen whether individually orcollectively in the form of cooperatives, lakeshore town development, a mastplan for fishpen construction and operation, communal fishing ground forlake