G.R. No. L-9282 May 31, 1956 EMILIO ADVINCULA, Petitioner, vs. HONORABLE JUDGE JOSE TEODORO, SR.

, Judge of the Court of First Instance of Negros Occidental, and ENRIQUE A. LACSON, Respondents. DECISION Petitioner Emilio Advincula seeks a writ of certiorari, to annul certain orders of the Court of First Instance of Negros Occidental. Said Petitioner was, on November 22, 1954, appointed, special administrator of the estate of his deceased wife, Josefa Lacson Advincula, in special proceeding No. 3245 of said court. In due course, he was, on February 12, 1955, appointed regular administrator of said estate. After Advincula had qualified as such, the brothers of the deceased, who left no issue, submitted to the court, for allowance, a document purporting to be her last will and testament. Petitioneropposed the probate thereof upon the ground that it did not bear the signature of the deceased; chan roblesvirtualawlibrarythat the signature thereon, if hers, was secured through fraud and duress; chan roblesvirtualawlibraryand that, the instrument had not been executed with the requisite formalities. On May 4, 1955,Respondent Enrique Lacson, one of the brothers of the deceased, filed a motion praying that he be appointed administrator of said estate, in lieu of Petitioner herein, for the reason that saidRespondent is the executor named in the aforementioned alleged will. On or about May 16, 1955, Attys. Jose Y. Torres and Antonio Lozada, as counsel for Advincula, filed an opposition to said motion. When the latter was called for hearing on May 18, 1955, Atty. Lozada was served, in open court, copy of an amended motion, of Respondent Lacson, for change of administrator, dated May 14, 1955. It was alleged therein, in addition to the ground set forth in the first motion:chanroblesvirtuallawlibrary 5. That the present administrator is incompetent, incapable and unsuitable to the discharge of the trust, he being foreign to the estate, and without changing or removing him as such would be disastrous to the estate and to the heirs named in the will of the decedent. Atty. Lozada asked a postponement of the hearing upon the ground that Advinculas main counsel, Atty. Torres, was in Manila, but his request was denied. Then, after hearing the argument of opposing counsel, the court, presided over by Respondent, Honorable Jose Teodoro, Sr., Judge, issued, on the same date (May 18, 1955), an order the pertinent parts of which read:chanroblesvirtuallawlibrary The Court, after hearing the oral arguments of both parties, find s the motion for postponement not well-taken and hereby denies the same; chan roblesvirtualawlibraryand finding the motion dated May 4, 1955 as amended by the amended motion dated May 14, 1955, well-founded and the opposition thereto dated May 16, 1955 not well-founded, said motion is hereby granted. WHEREFORE, in the interest of justice and for the preservation of the property for the heirs, the appointment of Emilio Advincula as administrator is hereby revoked and in his stead, theOppositor, Enrique A. Lacson, is hereby appointed administrator of this intestate estate, and same may qualify by filing a bond in the sum of P5,000 and taking and subscribing the corresponding oath of Office. Once said Enrique A. Lacson has qualified, let letters of administration issue in his favor. The former administrator, Emilio Advincula, is hereby ordered to submit within ten (10) days from receipt hereof, his final account covering the entire period of his administration and should it appear that any deficiency has been incurred by him during his incumbency, his bond shall answer for said deficiency. Thereupon, Lacson gave the requisite bond, letters of administration was issued to him, and he tried to take possession of the estate of the deceased. A reconsideration of said order of May 18, 1955, having been denied by another order, dated May 30, 1955, Petitioner instituted the present action for certiorari, against Lacson and Judge Teodoro, to annul his aforesaid orders of May 18 and 30, 1955, upon the ground that the same were issued with grave abuse of discretion. Upon the filing of a bond by Advincula, we issued, as prayed for in his petition, a writ of preliminary injunction restraining Respondent Lacson and his agents from interfering, molesting and harassing the Petitioner in the administration of the estate of the deceased, during the pendency of this case. The writ of certiorari prayed for is in order. Lacsons appointment, in lieu of Advincula, as administrator of the estate of Josefa Lacson Advincula, is predicated upon the fact that the former is named executor in the alleged will of said deceased. The provision therein to this effect cannot be enforced, however, until after said document has been allowed to probate, for section 4 of Rule 79 of the Rules of Court provides:chanroblesvirtuallawlibrary When a will has been proved and allowed, the court shall issue letters testamentary thereon to the person named as executor therein, if he is competent, accepts the trusts, and gives bond as required by these rules. (Italics supplied.) Besides, the discovery of a document purporting to be the last will and testament of a deceased, after the appointment of an administrator of the estate of the latter, upon the assumption that he or she had died intestate, does not ipso facto nullify the letters of administration already issued or even authorize the revocation thereof, until the alleged will has been proved and allowe d by the court. Rule 83, section 1, of the Rules of Court, is plain and explicit on this point. If after letters of administration have been granted on the estate of a decedent as if he had died intestate, his will is proved and allowed by the court, the letters of administration shall be revoked and all powers thereunder cease, and the administrator shall forthwith surrender the letters to the court, end render his account within such time as the court directs. Proceedings for the issuance of letters testamentary or of administration under the will shall be as hereinbefore provided. (Italics supplied.) The amended motion for change of administrator endeavored to justify the removal of Advincula by alleging that he is incompetent, incapable and unsuitable to the discharge of the trust, he being foreign to the estate of the deceased. By hol ding, in its order of May 18, 1955, that said motion is well -founded with nothing, absolutely nothing else, to indicate the basis of this conclusion Respondent Judge has impliedly adopted the line of argument followed in the above quoted allegation of the amended motion to change administrator. Said argument is, however, devoid of merit. It is untenable from the viewpoint of logic and experience, because a stranger to deceased may be competent, capable and fit to administer her estate, in much the same as a member of her immediate family could be incompetent, incapable and unfit to do so. At any rate, Advincula is not a stranger, either to her or to her estate, he bring her surviving spouse and, as such, one of her forced heirs (Arts. 887, 888, 892, 893, 894, 897 to 900, and 995 to 1001, Civil Code of the Philippines), whether she died testate or intestate. What is more, he is prima facie entitled to one-half of all property subject to the authority of the administrator of said

estate, apart from his share of the other half thereof, as heir of the deceased, for all property of the marriage is presumed to belong to the conjugal partnership of which he is its administrator (Article 165, Civil Code of the Philippines) unless it be proved that it pertains exclusively to the husband or to the wife (See Articles 160 and 185, Civil Code of the Philippines). Lastly, Advincula has not been found guilty of any specific act or omission constituting one of the legal grounds, enumerated in Rule 83, section 2, of the Rules of Court, for the removal of an executor or administrator. Hence, it is clear that Respondent Judge exceeded his jurisdiction in removing Advincula and appointing Lacson as administrator of the estate of the deceased Josefa Lacson Advincula. Wherefore, the aforementioned orders of Respondent Judge, dated May 8 and 30, 1955, are reversed, and the writ of preliminary injunction issued in this case hereby made permanent, with costs against Respondent Enrique A. Lacson. It is SO ORDERED.

G.R. Nos. L-21938-39 May 29, 1970 VICENTE URIARTE, petitioner, vs. THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL (12th Judicial District) THE COURT OF FIRST INSTANCE OF MANILA, BRANCH IV, JUAN URIARTE ZAMACONA and HIGINIO URIARTE, respondents. Norberto J. Quisumbing for petitioner. Taada, Teehankee & Carreon for respondents. DIZON, J.: On October 3, 1963 petitioner Vicente Uriarte filed an original petition for certiorari docketed as G.R. L-21938 against the respondents Juan Uriarte Zamacona, Higinio Uriarte, and the Courts of First Instance of Negros Occidental and of Manila, Branch IV, who will be referred to hereinafter as the Negros Court and the Manila Court, respectively praying: ... that after due proceedings judgment be rendered annulling the orders of 19 April 1963 (Annex 'H') and 11 July 1963 (Annex 'I') of respondent Negros court dismissing the first instituted Special Proceeding No. 6344, supra, and the order of 1 July 1963 (Annex 'K') of respondent Manila court denying petitioner's omnibus motion to intervene and to dismiss the later-instituted Special Proceeding No. 51396, supra, both special proceedings pertaining to the settlement of the same estate of the same deceased, and consequently annulling all proceedings had in Special Proceeding No. 51396; supra, of the respondent Manila court as all taken without jurisdiction. For the preservation of the rights of the parties pending these proceedings, petitioner prays for the issuance of a writ of preliminary injunction enjoining respondents Manila court, Juan Uriarte Zamacona and Higinio Uriarte from proceeding with Special Proceeding No. 51396, supra, until further orders of this Court. Reasons in support of said petition are stated therein as follows: 6. Respondent Negros court erred in dismissing its Special Proceeding No. 6344, supra, and failing to declare itself 'the court first taking cognizance of the settlement of the estate of' the deceased Don Juan Uriarte y Goite as prescribed in Rule 75 section 1 of the Rules of Court. Respondent Manila court erred in failing to dismiss its Special Proceeding No. 51396, supra, notwithstanding proof of prior filing of Special Proceeding No. 6344, supra, in the Negros court. The writ of preliminary injunction prayed for was granted and issued by this Court on October 24, 1963. On April 22, 1964 petitioner filed against the same respondents a pleading entitled SUPPLEMENTAL PETITION FOR MANDAMUS docketed in this Court as G.R. No. L-21939 praying, for the reasons therein stated, that judgment be rendered annulling the orders issued by the Negros Court on December 7, 1963 and February 26, 1964, the first disapproving his record on appeal and the second denying his motion for reconsideration, and further commanding said court to approve his record on appeal and to give due course to his appeal. On July 15, 1964 We issued a resolution deferring action on this Supplemental Petition until the original action for certiorari (G.R. L-21938) is taken up on the merits. On October 21, 1963 the respondents in G.R. L-21938 filed their answer traversing petitioner's contention that the respondent courts had committed grave abuse of discretion in relation to the matters alleged in the petition for certiorari. It appears that on November 6, 1961 petitioner filed with the Negros Court a petition for the settlement of the estate of the late Don Juan Uriarte y Goite (Special Proceeding No. 6344) alleging therein, inter alia, that, as a natural son of the latter, he was his sole heir, and that, during the lifetime of said decedent, petitioner had instituted Civil Case No. 6142 in the same Court for his compulsory acknowledgment as such natural son. Upon petitioner's motion the Negros Court appointed the Philippine National Bank as special administrator on November 13, 1961 and two days later it set the date for the hearing of the petition and ordered that the requisite notices be published in accordance with law. The record discloses, however, that, for one reason or another, the Philippine, National Bank never actually qualified as special administrator. On December 19, 1961, Higinio Uriarte, one of the two private respondents herein, filed an opposition to the above-mentioned petition alleging that he was a nephew of the deceased Juan Uriarte y Goite who had "executed a Last Will and Testament in Spain, a duly authenticated copy whereof has been requested and which shall be submitted to this Honorable Court upon receipt thereof," and further questioning petitioner's capacity and interest to commence the intestate proceeding. On August 28, 1962, Juan Uriarte Zamacona, the other private respondent, commenced Special Proceeding No. 51396 in the Manila Court for the probate of a document alleged to be the last will of the deceased Juan Uriarte y Goite, and on the same date he filed in Special Proceeding No. 6344 of the Negros Court a motion to dismiss the same on the following grounds: (1) that, as the deceased Juan Uriarte y Goite had left a last will, there was no legal basis to proceed with said intestate proceedings, and (2) that petitioner Vicente Uriarte had no legal personality and interest to initiate said intestate proceedings, he not being an acknowledged natural son of the decedent. A copy of the Petition for Probate and of the alleged Will were attached to the Motion to Dismiss. Petitioner opposed the aforesaid motion to dismiss contending that, as the Negros Court was first to take cognizance of the settlement of the estate of the deceased Juan Uriarte y Goite, it had acquired exclusive jurisdiction over same pursuant to Rule 75, Section 1 of the Rules of Court. On April 19, 1963, the Negros Court sustained Juan Uriarte Zamacona's motion to dismiss and dismissed the Special Proceeding No. 6344 pending before it. His motion for reconsideration of said order having been denied on July 27, 1963, petitioner proceeded to file his notice of appeal, appeal bond and record on appeal for the purpose of appealing from said orders to this court on questions of law. The administrator with the will annexed appointed by the Manila Court in Special Proceeding No. 51396 objected to the approval of the record on appeal, and under date of December 7, 1963 the Negros Court issued the following order: Oppositor prays that the record on appeal filed by the petitioner on July 27, 1963, be dismissed for having been filed out of time and for being incomplete. In the meantime, before the said record on appeal was approved by this Court, the petitioner filed a petition for certiorari before the Supreme Court entitled Vicente Uriarte, Petitioner, vs. Court of First Instance of Negros Occidental, et al., G.R. No. L-21938, bringing this case

squarely before the Supreme Court on questions of law which is tantamount to petitioner's abandoning his appeal from this Court. WHEREFORE, in order to give way to the certiorari, the record on appeal filed by the petitioner is hereby disapproved. In view of the above-quoted order, petitioner filed the supplemental petition for mandamus mentioned heretofore. On April 15, 1963 Vicente Uriarte filed an Omnibus Motion in Special Proceeding No. 51396 pending in the Manila Court, asking for leave to intervene therein; for the dismissal of the petition and the annulment of the proceedings had in said special proceeding. This motion was denied by said court in its order of July 1 of the same year. It is admitted that, as alleged in the basic petition filed in Special Proceeding No. 6344 of the Negros Court, Vicente Uriarte filed in the same court, during the lifetime of Juan Uriarte y Goite, Civil Case No. 6142 to obtain judgment for his compulsory acknowledgment as his natural child. Clearly inferrable from this is that at the time he filed the action, as well as when he commenced the aforesaid special proceeding, he had not yet been acknowledged as natural son of Juan Uriarte y Goite. Up to this time, no final judgment to that effect appears to have been rendered. The record further discloses that the special proceeding before the Negros Court has not gone farther than the appointment of a special administrator in the person of the Philippine National Bank who, as stated heretofore, failed to qualify. On the other hand, it is not disputed that, after proper proceedings were had in Special Proceeding No. 51396, the Manila Court admitted to probate the document submitted to, it as the last will of Juan Uriarte y Goite, the petition for probate appearing not to have been contested. It appears further that, as stated heretofore, the order issued by the Manila Court on July 1, 1963 denied petitioner. Vicente Uriarte's Omnibus Motion for Intervention, Dismissal of Petition and Annulment of said proceedings. Likewise, it is not denied that to the motion to dismiss the special proceeding pending before the Negros Court filed by Higinio Uriarte were attached a copy of the alleged last will of Juan Uriarte y Goite and of the petition filed with the Manila Court for its probate. It is clear, therefore, that almost from the start of Special Proceeding No. 6344, the Negros Court and petitioner Vicente Uriarte knew of the existence of the aforesaid last will and of the proceedings for its probate. The principal legal questions raised in the petition for certiorari are (a) whether or not the Negros Court erred in dismissing Special Proceeding No. 6644, on the one hand, and on the other, (b) whether the Manila Court similarly erred in not dismissing Special Proceeding No. 51396 notwithstanding proof of the prior filing of Special Proceeding No. 6344 in the Negros Court. Under the Judiciary Act of 1948 [Section 44, paragraph (e)], Courts of First Instance have original exclusive jurisdiction over "all matters of probate," that is, over special proceedings for the settlement of the estate of deceased persons whether they died testate or intestate. While their jurisdiction over such subject matter is beyond question, the matter of venue, or the particular Court of First Instance where the special proceeding should be commenced, is regulated by former Rule 75, Section 1 of the Rules of Court, now Section 1, Rule 73 of the Revised Rules of Court, which provides that the estate of a decedent inhabitant of the Philippines at the time of his death, whether a citizen or an alien, shall be in the court of first instance in the province in which he resided at the time of his death, and if he is an inhabitant of a foreign country, the court of first instance of any province in which he had estate. Accordingly, when the estate to be settled is that of a non-resident alien like the deceased Juan Uriarte y Goite the Courts of First Instance in provinces where the deceased left any property have concurrent jurisdiction to take cognizance of the proper special proceeding for the settlement of his estate. In the case before Us, these Courts of First Instance are the Negros and the Manila Courts province and city where the deceased Juan Uriarte y Goite left considerable properties. From this premise petitioner argues that, as the Negros Court had first taken cognizance of the special proceeding for the settlement of the estate of said decedent (Special Proceeding No. 6344), the Manila Court no longer had jurisdiction to take cognizance of Special Proceeding No. 51396 intended to settle the estate of the same decedent in accordance with his alleged will, and that consequently, the first court erred in dismissing Special Proceeding No. 6344, while the second court similarly erred in not dismissing Special Proceeding No. 51396. It can not be denied that a special proceeding intended to effect the distribution of the estate of a deceased person, whether in accordance with the law on intestate succession or in accordance with his will, is a "probate matter" or a proceeding for the settlement of his estate. It is equally true, however, that in accordance with settled jurisprudence in this jurisdiction, testate proceedings, for the settlement of the estate of a deceased person take precedence over intestate proceedings for the same purpose. Thus it has been held repeatedly that, if in the course of intestate proceedings pending before a court of first instance it is found it hat the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that stage an administrator had already been appointed, the latter being required to render final account and turn over the estate in his possession to the executor subsequently appointed. This, however, is understood to be without prejudice that should the alleged last will be rejected or is disapproved, the proceeding shall continue as an intestacy. As already adverted to, this is a clear indication that proceedings for the probate of a will enjoy priority over intestate proceedings. Upon the facts before Us the question arises as to whether Juan Uriarte Zamacona should have filed the petition for the probate of the last will of Juan Uriarte y Goite with the Negros Court particularly in Special Proceeding No. 6344 or was entitled to commence the corresponding separate proceedings, as he did, in the Manila Court. The following considerations and the facts of record would seem to support the view that he should have submitted said will for probate to the Negros Court, either in a separate special proceeding or in an appropriate motion for said purpose filed in the already pending Special Proceeding No. 6344. In the first place, it is not in accord with public policy and the orderly and inexpensive administration of justice to unnecessarily multiply litigation, especially if several courts would be involved. This, in effect, was the result of the submission of the will aforesaid to the Manila Court. In the second place, when respondent Higinio Uriarte filed an opposition to Vicente Uriarte's petition for the issuance of letters of administration, he had already informed the Negros Court that the deceased Juan Uriarte y Goite had left a will in Spain, of which a copy had been requested for submission to said court; and when the other respondent, Juan Uriarte Zamacona, filed his motion to dismiss Special Proceeding No. 6344, he had submitted to the Negros Court a copy of the alleged will of the decedent, from which fact it may be inferred that, like Higinio Uriarte, he knew before filing the petition for probate with the Manila Court that there was already a special proceeding pending in the Negros Court for the settlement of the estate of the same deceased person. As far as Higinio Uriarte is concerned, it seems

quite clear that in his opposition to petitioner's petition in Special Proceeding No. 6344, he had expressly promised to submit said will for probate to the Negros Court. But the fact is that instead of the aforesaid will being presented for probate to the Negros Court, Juan Uriarte Zamacona filed the petition for the purpose with the Manila Court. We can not accept petitioner's contention in this regard that the latter court had no jurisdiction to consider said petition, albeit we say that it was not the proper venue therefor. It is well settled in this jurisdiction that wrong venue is merely a waiveable procedural defect, and, in the light of the circumstances obtaining in the instant case, we are of the opinion, and so hold, that petitioner has waived the right to raise such objection or is precluded from doing so by laches. It is enough to consider in this connection that petitioner knew of the existence of a will executed by Juan Uriarte y Goite since December 19, 1961 when Higinio Uriarte filed his opposition to the initial petition filed in Special Proceeding No. 6344; that petitioner likewise was served with notice of the existence (presence) of the alleged last will in the Philippines and of the filing of the petition for its probate with the Manila Court since August 28, 1962 when Juan Uriarte Zamacona filed a motion for the dismissal of Special Proceeding No. 6344. All these notwithstanding, it was only on April 15, 1963 that he filed with the Manila Court in Special Proceeding No. 51396 an Omnibus motion asking for leave to intervene and for the dismissal and annulment of all the proceedings had therein up to that date; thus enabling the Manila Court not only to appoint an administrator with the will annexed but also to admit said will to probate more than five months earlier, or more specifically, on October 31, 1962. To allow him now to assail the exercise of jurisdiction over the probate of the will by the Manila Court and the validity of all the proceedings had in Special Proceeding No. 51396 would put a premium on his negligence. Moreover, it must be remembered that this Court is not inclined to annul proceedings regularly had in a lower court even if the latter was not the proper venue therefor, if the net result would be to have the same proceedings repeated in some other court of similar jurisdiction; more so in a case like the present where the objection against said proceedings is raised too late. In his order of April 19, 1963 dismissing Special Proceeding No. 6344, Judge Fernandez of the Negros Court said that he was "not inclined to sustain the contention of the petitioner that inasmuch as the herein petitioner has instituted Civil Case No. 6142 for compulsory acknowledgment by the decedent such action justifies the institution by him of this proceedings. If the petitioner is to be consistent with the authorities cited by him in support of his contention, the proper thing for him to do would be to intervene in the testate estate proceedings entitled Special Proceedings No. 51396 in the Court of First Instance of Manila instead of maintaining an independent action, for indeed his supposed interest in the estate of the decedent is of his doubtful character pending the final decision of the action for compulsory acknowledgment." We believe in connection with the above matter that petitioner is entitled to prosecute Civil Case No. 6142 until it is finally determined, or intervene in Special Proceeding No. 51396 of the Manila Court, if it is still open, or to ask for its reopening if it has already been closed, so as to be able to submit for determination the question of his acknowledgment as natural child of the deceased testator, said court having, in its capacity as a probate court, jurisdiction to declare who are the heirs of the deceased testator and whether or not a particular party is or should be declared his acknowledged natural child (II Moran on Rules of Court, 1957 Ed., p. 476; Conde vs. Abaya, 13 Phil. 249; Severino vs. Severino, 44 Phil. 343; Lopez vs. Lopez, 68 Phil. 227, and Jimogaon vs. Belmonte, 47 O. G. 1119). Coming now to the supplemental petition for mandamus (G.R. No. L-21939), We are of the opinion, and so hold, that in view of the conclusions heretofore stated, the same has become moot and academic. If the said supplemental petition is successful, it will only result in compelling the Negros Court to give due course to the appeal that petitioner was taking from the orders of said court dated December 7, 1963 and February 26, 1964, the first being the order of said court dismissing Special Proceeding No. 6344, and the second being an order denying petitioner's motion for the reconsideration of said order of dismissal. Said orders being, as a result of what has been said heretofore beyond petitioner's power to contest, the conclusion can not be other than that the intended appeal would serve no useful purpose, or, worse still, would enable petitioner to circumvent our ruling that he can no longer question the validity of said orders. IN VIEW OF THE FOREGOING CONSIDERATIONS, judgment is hereby rendered denying the writs prayed for and, as a result, the petition for certiorari filed in G.R. No. L-21938, as well as the supplemental petition for mandamus docketed as G.R. No. L-21939, are hereby dismissed. The writ of preliminary injunction heretofore issued is set aside. With costs against petitioner. Concepcion, C.J., Makalintal, Zaldivar, Barredo and Villamor, JJ., concur. Reyes, J.B.L., J., concurs in the result. Castro, J., is on leave. Fernando and Teehankee, J., took no part.

G.R. No. L-7635 July 25, 1955 TASIANA ONGSINGCO, Guardian of Francisco de Borja, petitioner, vs. HON. BIENVENIDO A. TAN, as Judge of the Court of First Instance of Rizal and JOSE DE BORJA, administrator of the estate of the late Josefa Tangco, respondents. Jose W. Diokno, Sycip, Quisumbing and Salazar for petitioner. David Guevara for respondents. BAUTISTA ANGELO, J.: This is a petition for certiorari with prohibition to annul and restrain the enforcement of two orders of respondent judge dated January 20, 1954 and February 18, 1954 issued in Special Proceedings No. 7866 of the Court of First Instance of Rizal entitled "Testate Estate of the Deceased Josefa Tangco" which prohibit petitioner, inter alia, from continuing in possession of certain parcels of land situated in Santa Rosa, Nueva Ecija, on the ground that they were issued without or in excess of his jurisdiction. Petitioner Tasiana Ongsingco is the wife and judicial guardian of one Francisco de Borja who was declared incompetent by the Court of First Instance of Rizal in Special Proceedings No. 1764. Francisco de Borja is the surviving spouse of Josefa Tangco whose estate is being settled in Special Proceedings No. 7866 of the same court. Respondent Jose de Borja is the son of Francisco de Borja, who, on June 29, 1953, was appointed administrator of the estate of Josefa Tangco. Francisco de Borja, according to petitioner, is the owner of two parcels of land situated in Santa Rosa, Nueva Ecija, which he acquired by inheritance from his late father Marcelo de Borja and as such form part of his separate properties. On October 27, 1953, Francisco de Borja was declared incompetent by the court as aforesaid, and petitioner, his second wife, was appointed his guardian. As such guardian, petitioner took over from her husband the possession of said two parcels of land and commenced the threshing of the palay crop standing thereon for the benefit of her ward. On January 16, 1954, respondent Jose de Borja, as administrator of the estate of Josefa Tangco, filed a motion in the estate proceedings of the latter praying that petitioner be restrained from threshing the palay on the lands until the ownership thereof has been definitely determined either by the court or by agreement of the parties. Petitioner opposed the motion challenging the jurisdiction of the court and contending that if its purpose is to pass on the question of ownership, such can only be threshed out elsewhere and not by the probate court. Because it became obvious to petitioner that respondent administrator would insist in his motion whose main aim is to prevent petitioner and her laborers from threshing the crop standing on the lands and, on the other hand, the several attempts made to agree on the identity of the lands had failed, petitioner filed an action on January 21, 1954 in the Court of First Instance of Nueva Ecija to restrain respondent administrator from interferring with the harvesting and threshing of the crop on the claim that the lands were the exclusive property of her ward Francisco de Borja (Civil Case No. 1350). On the same date, the court granted the preliminary injunction prayed for upon the filing by petitioner of a bond of P5,000. On January 25, 1954, respondent Jose de Borja filed an urgent petition in the same case asking the court to dismiss the action for lack of jurisdiction and to dissolve the preliminary injunction that was issued. This petition was denied. On January 29, 1954, respondent court issued an order the dispositive part of which reads: IN VIEW OF THE FOREGOING CONSIDERATIONS, the guardian Tasiana Ongsingco is hereby ordered not to meddle in the threshing of the palay harvested in the lands declared under Tax Declaration No. 540 (Annexes A and A1). The administrator and the guardian are ordered to find from among the properties of the incapacitated Francisco de Borja in Tabuanting, Sta. Rosa, Nueva Ecija, the two parcels of land having an approximate area as those two lots adjudicated in his favor by the Commissioners on Partition, and once found, let the parties agree on the matter, so as to avoid any future controversy, and to notify this Court of their agreement. IT IS SO ORDERED. On February 10, 1954, petitioner filed a motion for reconsideration calling attention to the fact that both the guardian and the administrator had already attempted to arrive at an agreement as to the identity of the lots which are claimed to be the exclusive property of Francisco de Borja, but they failed to do so, and because of such inability and the immediate need of harvesting and threshing the crop standing thereon, petitioner filed an action in the Court of First Instance of Nueva Ecija precisely to determine once and for all the title to, and ownership of, said lands and to issue a preliminary injunction restraining respondent Jose de Borja from interferring with the work of petitioner; but, in view of respondent Borja's opposition, respondent court denied the motion for reconsideration. The present petition poses the following issues: (1) considering that the dispute between petitioner and respondent administrator involves the ownership of two parcels of land now the subject of an action in the Court of First Instance of Nueva Ecija, has respondent court jurisdiction to determine said dispute in the estate proceedings of the late Josefa Tangco?; and (2) having the Court of First Instance of Nueva Ecija issued a writ of preliminary injunction to restrain respondent administrator from interferring with the threshing of the crop standing on said lands, can respondent court, after having been apprised of said order, issue an order the effect of which is to nullify and render ineffective said writ of preliminary injunction?. There is no dispute that the two parcels of land in Santa Rosa, Nueva Ecija are claimed by petitioner as part of the separate property of Francisco de Borja so much so that she took possession thereof when she assumed her commission as guardian on October 27, 1953. That she succeeded in taking actual possession of said lands is shown by the fact that when she commenced the threshing of the crop standing thereon, respondent Jose de Borja filed a petition in the estate proceedings of Josefa Tangco to restrain her from threshing said crop. Then a dispute arose as to the ownership of said parcels of land. On one hand, petitioner claims that they belong exclusively to her ward having inherited them from his late father Marcelo de Borja, while, on the other, respondent administrator contends that they are not the land adjudicated to the incompetent by the commissioners on partition. The parties had made several attempts to arrive at an agreement as to the identity of the disputed lands, but they failed, and because there was a pressing need of immediately threshing the crop standing thereon, petitioner filed an action in the Court of First Instance of Nueva Ecija to determine once and for all the title and ownership of said lands. In the same case, the court issued a preliminary injunction restraining respondent administrator from interferring with the administration of said properties. But such

action notwithstanding, respondent court issued the orders in question which not only go into the issue of ownership but render ineffective the writ of injunction issued by the Court of First Instance of Nueva Ecija. Can respondent court do so? It is a well-settled rule in this jurisdiction, sanctioned and reiterated in a long line of decisions that, "the question of ownership of property is one which should be determined in an ordinary action and not in probate proceedings, and this whether or not the property is alleged to belong to the estate" (Franco vs. O'Brien, 13 Phil., 359). In another case, it was held that "The general rule is that questions as to title to property cannot be passed upon in testate or intestate proceedings" (Pascual vs. Pascual, 73 Phil., 561, 562; See also Cordova Vda. de Maalac vs.Ocampo, 73 Phil., 661, 662), or stating the rule more elaborately, "When questions arise as to the ownership of property alleged to be a part of the estate of a deceased person, but claimed by some other person to be his property, not by virtue of any right of inheritance from the deceased, but by title adverse to that of the deceased and his estate, such questions cannot be determined in the courts of administrative proceedings. The Court of First Instance, acting as a probate court, has no jurisdiction to adjudicate such contentions, which must be submitted to the court in the exercise of its general jurisdiction as a court of first instance . . .." (Guzman vs. Anog, 37 Phil., 61.) The dispute between petitioner and respondent administrator involving, as it does, the ownership of two parcels of land situated in Santa Rosa, Nueva Ecija, and this question having been squarely raised in an action pending in the court of first instance of said province, which was instituted by petitioner against respondent administrator precisely because of the dispute that had arisen between them over said property, it is the sense of this Tribunal that respondent court exceeded its jurisdiction in acting upon the said question in its capacity as probate court. On the face of such issue which necessarily involves the ownership of the properties, we consider of no consequence the claim that what respondent court merely did was to look into the identity of said properties. This question is necessarily imbibed in the greater issue of ownership and being interwoven one can hardly draw the line of demarcation that would separate one from the other. As regards the question whether the order of respondent court restraining petitioner from threshing the palay crop standing on the lands has been properly issued on the face of the writ of preliminary injunction issued by the Court of First Instance of Nueva Ecija, the answer is not difficult to find: the court should not have issued the order, for "It is settled by an overwhelming weight of authority that no court has power to interfere by injunction with the judgments or decree of a court of concurrent or coordinate jurisdiction having equal power to grant the relief sought by injunction. . . . The various branches of the Court of First Instance of Manila are in a sense coordinate courts and to allow them to interfere with each other's judgments or decrees by injunctions would obviously lead to confusion and might seriously hinder the administration of justice." (Cabigao vs. Del Rosario, 44 Phil., 182; Seealso Philippine National Bank vs. Javellana, 92 Phil., 525; Montesa vs. Manila Cordage Company, 92 Phil., 25.) Wherefore, petition is granted without costs. The orders of respondent court dated January 29, 1954 and February 18, 1954 are hereby set aside. Bengzon, Acting C. J., Padilla, Montemayor, Reyes, A., Jugo, Labrador, Concepcion, and Reyes, J. B. L., JJ., concur.

G.R. No. L-62431-33 August 31, 1984 PIO BARRETTO REALTY DEVELOPMENT, INC., petitioner, vs. THE HON. COURT OF APPEALS (SIXTH DIVISION) and HONOR MOSLARES, respondents. Azucena E. Lozada for petitioner. Estrella Funelas Iral & Associates and Tomas Trinidad for respondents. GUTIERREZ, JR., J.: This petition for certiorari to review the decision of the Court of Appeals promulgated on June 30, 1982 in CA-G.R. Nos. 12599R, 12600-R, and 12601-R entitled "Honor P. Moslares, petitioner v. Honorable Reynaldo P. Honrado, et al., respondents, was filed as part of the effort to expedite the final settlement of the estate of the deceased NICOLAI DREPIN. The dispositive portion of the decision of the respondent Court of Appeals reads as follows: WHEREFORE, all the foregoing considered, judgment is hereby rendered: (a) making permanent the temporary restraining order issued: (b) declaring null and void the impugned orders of April 15, 1980, July 2, 1980, September 30, 1980, and October 20, 1980, for having been issued in grave abuse of discretion and in excess of jurisdiction, with the September and October orders having the additional defect of due process violation; (c) declaring null and void the Deed of Undertaking and Deed of Sale in favor of respondent Pio Barretto Realty Development, Inc., for being mere consequences of null orders; (d) ordering the Register of Deeds of Rizal to cancel the transfer certificates of title issued to Pio Barreto Realty Development, (TCT Nos. N-50539, N-50540, N-50541) and to transfer the same to the Estate of Nicolai Drepin with the annotation that this transfer to the estate is subject to the final decision in Civil Case No. 41287 of the CFI of Pasig, Metro Manila; and (e) denying the prayer for the exclusion of the three titled lots involved from Special Proceedings Nos. 7257, 7261, and 7269 of the CFI of Makati Branch Civil Case No. 41287 abovementioned. The proceedings for the settlement of the estate of Drepin were initiated shortly after his death on July 29, 1972 with the filing of a petition for probate of his holographic will on August 23, 1972. In this holographic will the late Drepin listed twenty-two (22) persons as his alleged creditors, and within the six (6) months after publication within which to file claims against the estate, twelve (12) persons filed their respective claims. The total amount of obligations that may be chargeable against the Drepin Estate is P1,299,652.66. The only asset of the testate estate of Drepin consists of three (3) parcels of titled land with an area of approximately eighty (80) hectares, and another parcel with an area of eighty-one (81) hectares still pending registration. The estate is saddled with claims of creditors named in the Drepin will and creditors who have filed their claims within the reglementary period. The only way to pay their claims is to sell the Drepin lots, so that from the proceeds of the sale, the debts of the estate could be paid, and any remaining balance distributed to the Drepin heirs. Since the filing of the petition for probate of the Drepin will, on August 23, 1972, nine (9) offers had been made for the purchase of the Drepin lands, among them, that of GM Management Phils., dated August 15, 1978, through its President Honor P. Moslares. Basis for Moslares' letter proposal is a deed of sale with mortgage executed by the decedent in his favor on October 9, 1970. It appears that on said date, the deceased sold 80.3980 hectares of land absolutely and perpetually to Honor P. Moslares for the sum of P2,600,000.00 with a downpayment of P300,000.00. To secure the payment of the remaining P2,300,000.00, the latter mortgaged the land to the former. The parties further agreed not to register the sale yet until P1,300,000.00 shall have been paid to Drepin and P1,000.000.00 paid to Drepin's creditors. Subsequently, on June 25, 1971, Drepin and Moslares entered into a "Joint Venture Agreement". Said agreement listed Drepin as the registered "owner" of the lots and denominated Moslares as "developer" tasked with converting the lands into a residential subdivision. The agreement specified: (h) That the Developer agrees to reserve the right of the registered Owner of the land to ask for immediate CASH payment against an "Absolute Deed of Sale " on the said above mentioned properties, subject of this "Joint Venture Agreement" on the amount of not less than TWO MILLION THREE HUNDRED THOUSAND (P2,300,000.00) PESOS, after the big loan is granted to the Developer in or about thirty (30) days to forty-five (45) days from the signing of this Joint Venture Agreement and the "Special Power of Attorney", (i) However, if the Owner of the property Mr. Nicolai Drepin not choose to be paid on this said above mentioned property in CASH of TWO MILLION THREE HUNDRED THOUSAND (P2,300,000.00) PESOS, this "joint venture agreement is still in full force and effect, OTHERWISE if full payment of TWO MILLION THREE HUNDRED THOUSAND (P2,300,000.00) PESOS receipt is acknowledged by the said Mr. Nicolai Drepin, the "Joint Venture Agreement" is automatically cancelled and declared no force and effect. Before the agreement could be implemented, Nicolai Drepin died. Upon learning of the existence of Special Proceedings No. 7257, 7261 and 7269 herein respondent Moslares, on August 15, 1978, informed the Judicial Administrator Atty. Tomas Trinidad that he is already the owner of the properties made subject matter of the Special Proceedings and proposed that he be permitted to pay the balance on the sale with mortgage in accordance with the terms of his written proposal. The probate court, on August 17, 1978 issued an order approving respondent Moslares' proposal and authorizing administrator Trinidad to enter into the appropriate agreement. This was reiterated by the court in its order dated January 9, 1979, with the condition that GM Management Phils. had only up to February 28, 1979 to comply with its letter-offer dated August 15, 1978 and "failure on their part to comply with the same within the period specified, the contract with the decedent shall be deemed resolved and ineffective." Counsel for heir claimant Cornelia Tejano was Revise given up to said date to make and submit a more beneficial offer. Neither GM Management nor counsel for Tejano was able to perform as required.

Requests for revision of payment and extension of period within which to pay the balance of P1,600,000.00 were made by Moslares. Further, he filed a Manifestation and Urgent Motion proposing transfer of the certificate of titles over the land subject of the proceedings so as to enable him to generate funds to liquidate the payable balance. The same were left unacted upon by the probate court. Meanwhile, on September 25,1979, A Deed of Undertaking was entered into by respondent Moslares and the Administrator to implement the Contract of Sale with Mortgage. Such deed provided for the mode of payment which Moslares was to follow as well as the clearing and transfer of the certificates of title in the name of Moslares. The latter proviso was to enable Moslares to secure the loan needed to pay for the balance of the purchase price. Postdated checks were issued by Moslares to cover the amount embraced in said undertaking. Approval of the agreement with Moslares was strongly urged by the Administrator. No action was taken by the court thereon. At the hearing of October 19, 1979, Moslares tendered P1,600,000.00 to the Judicial Administrator. This was opposed by counsel for heir Tejano, Atty. Ramon Encarnacion, on the ground that respondent Moslares had only until February 28, 1979 within which to pay the same. Attorney Encarnacion thereupon brought to the attention of the court an offer to buy the properties for P3,000,000.00 by herein petitioner Pio Barretto Realty Development, Inc. Because of the differing contentions and the new offer, the probate court ordered the parties to submit memoranda and set a conference on November 28, 1979 to discuss the new offer. On November 12, 1979, respondent Moslares submitted his memorandum containing three points to wit: l. Actually, Honor P. Moslares is already owner of the Property, subject matter of this proceedings, and as such, could no longer be the subject matter of this testate proceedings. The payment made by Honor P. Moslares to the Judicial Administrator through this Honorable Court on 19 October, 1979, is in compliance with the Contract entered into between him and the late Nicolai Drepin, in 1970; 2. The Order of this Honorable Court dated 9 January, 1979, particularly with reference to the period, mentioned in No. 1, page 2 of the Order of this Honorable Court giving Honor P. Moslares up to 28 February, 1979, within which to comply with his letter-offer to the Court dated 15 August, 1978, is not yet final, said period having been extended; 3. The Order of this Honorable Court dated 9 January, 1979, particularly No. 2, Page 2 thereof, barred Counsel for Cornelia B. Tejano from making any further offer, his right to do so having expired on 28 February, 1979. Thereupon, the probate court judge directed Moslares through the administrator Atty. Trinidad, to furnish copies of (1) Deed of Absolute Sale; (2) Special Power of Attorney; and (3) Joint Venture Agreement. The same were promptly submitted. On February 28, 1979, March 6, 1980 and April 15, 1980, letters to Judicial Administrator Trinidad were sent by respondent Moslares seeking further extension of time within which to pay the balance of his obligation to the estate, and for favorable recommendations to the probate court in his reports saying: "Help me now, this is ours. We can make money of all this sacrifice we had on the pass (sic)." On April 15, 1980, the probate court reiterated its order dated August 17, 1978 authorizing the Administrator to finalize the sale with GM Management Phils. and giving respondent Moslares ten (10) days from date to deposit the necessary amount to cover the value of the checks as each fallsdue. Failure to do so would result in the automatic rescission of the authority to sell to GM Management Phils. and the Administrator would be permitted to accept other offers in the best interest of the Estate. This order was the probate court's prompt action on a "Report with Motion for Cancellation of Order Approving Sale to GM Management, Phils. Honor P. Moslares, if it fails to make good the April 15, 1980 check "As Token Payment in Good Faith", filed by administrator Trinidad on the same day, April 15, 1980. GM Management sought reconsideration and amendment of the Order of April 15, 1980 to conform to the provisions of the Deed of Undertaking. On May 23, 1980, administrator Trinidad filed a "Report with Motion to Authorize Administrator to Screen Offers to Purchase Estate and Others. On May 31, 1980, respondent Moslares filed another manifestation praying that his pending motions be acted upon and that the motion of administrator Trinidad be denied for lack of merit. On June 30, 1980, administrator Trinidad made the following "Observation and Report on the Motion of Buyer GM Management Phils. for reconsideration" 2. Two checks, one for P50,000.00 and one for P250,000.00 were deposited on April 28, 1980 after the Order of the Probate Court. BOTH BOUNCED. DAIF (Drawn against insufficient funds). 3. Another check for P300,000.00 is now held by the Administrator, postdated for today, June 30, 1980 and Administrator just received, June 29, 1980 a telegram asking to withhold deposit until after 30 days from amendatory order of the Probate Court. xxx xxx xxx 6. The motion of Administrator is reiterated. On July 2, 1980, the probate court issued the following order: Finding the Motion of the Administrator well-taken and in the best interests of the Estate, the administrator is authorized to enter into agreement with any other interested parties on a first paid first served basis without prejudice to G.M. Management Philippines to continue with its offer and make good the same in as an ordinary buyer on the same first paid first served basis. Respondent Moslares filed a motion for reconsideration of said July 2, 1980 order on the ground that: 1. The Honorable Probate Court has no jurisdiction over the three (3) parcels of land, consisting of 80.3980 hectares subject matter of the Deed of Sale which the late Nicolai Drepin, conveyed to Movant Honor P. Moslares. The only right which pertains to the ESTATE, is the right to demand from Honor P. Moslares, the balance of the Deed of Sale, which has been fixed by this Honorable Court at ONE MILLION SIX HUNDRED THOUSAND (P1,600,000.00) PESOS, Philippine Currency;

2. As of November, 1979, the law that governs between the ESTATE and MOVANT, Honor P. Moslares, is the DEED OF UNDERTAKING executed by the Administrator in favor of Movant Honor P. Moslares, pursuant to the authority given by the Honorable Probate Court to the Administrator contained in the Order dated August 15, 1978, reiterated in the Order dated January 9, 1979, and in the Order dated 15 April 1980; and 3. The Honorable Probate Court has no jurisdiction to decree rescission of the Contract into (sic) between the decedent and Movant Honor P. Moslares on the 9th day of October, 1970. This motion for reconsideration was opposed by administrator Trinidad as well as the Tejano heirs through counsel, arguing that the probate court has jurisdiction to issue the questioned orders because petitioner submitted himself to the court's jurisdiction and his checks bounced also that the Deed of Undertaking was validly cancelled as a result of the valid rescission of Trinidad's authority to sell to petitioner. On September 30, 1980, the probate court issued an order denying respondent Moslares' motion for reconsideration for lack of merit. And on October 10, 1980 administrator Trinidad executed the Deed of Sale in favor of Pio Barretto Realty, Inc. transferring the titles to the properties in question in the name of the latter. The same was duly registered. On October 20, 1980, the probate court approved the report of administrator Trinidad dated October 16, 1980, with xerox copies of the Deed of Sale in favor of Pio Barretto Realty, Inc. of the estate of Nicolai Drepin pursuant to respondent court's order authorizing the sale, and of the approved Deed of Undertaking with the vendee. An urgent Motion and Manifestation was filed by respondent Moslares on April 8, 1981 praying that his motion for reconsideration of the orders be already resolved, followed by an Omnibus Motion on April 27, 1981 to resolve all pending motions and praying that the Deed of Sale and Deed of Undertaking in favor of Pio Barretto be cancelled. The same remained unacted upon. On May 18, 1981, respondent filed Civil Case No. 41287 before the Court of First Instance of Rizal in Pasig, Metro Manila to determine title and ownership over the Drepin lands. On June 23, 1981, a petition for certiorari was filed by respondent Moslares before the Court of Appeals which issued a temporary restraining order. Judgment was rendered by respondent court in favor of respondent Moslares, the dispositive portion of which has been quoted. Barretto filed a motion for reconsideration which was denied on November 12, 1982. Hence, this petition. In its decision, the Court of Appeals laid down the two principal issues involved in the case, as follows: (1) whether or not the respondent judge (Judge R. Honrado) acted without or in excess of jurisdiction or with grave abuse of discretion in refusing to exclude the parcels of land involved from the testate proceedings of the Drepin estate; and (2) whether or not the respondent judge acted without or in excess of jurisdiction or with grave abuse of discretion in issuing the impugned orders dated April 15, 1980, July 2, 1980, September 30, 1980, and October 20, 1980. We are in full accord with the respondent court's resolution of the first issue, and we quote: For continually presuming that the three titled lots were part of the Drepin estate and for refusing to provisionally pass upon the question of exclusion, did the respondent court act without or in excess of jurisdiction or with grave abuse of discretion? We hold that even with such presumption and refusal, the respondent court still acted within its jurisdiction and not with grave abuse of discretion. After all, the jurisprudence and rule are both to the effect that the probate court "may" provisionally pass upon the question of exclusion, not "should". The obvious reason is the probate court's limited jurisdiction and the principle that questions of title or ownership, which result to inclusion in or exclusion from the inventory of the property, can only be settled in a separate action. Hence, even if respondent court presumed an the way that the properties sold by Drepin to petitioner were part of Drepin's estate, that would not prevent nor defeat petitioner's remedy in a separate suit. And We hold that Civil Case No. 41287 is just such a suit instituted to settle the question of ownership over the lots covered originally by TCTs Nos. 259060, 259061 and 259062, despite the claim for damages, because of the composite effect of the prayer in the complaint thereof ... xxx xxx xxx In effect, We are saying that the question of whether the properties sold by Drepin to Petitioner should be excluded from the probate proceedings below, can not be determined with finality by Us in this case, because in this petition We are merely reviewing the acts of the respondent CFI as a probate court. Any ruling by the probate court to include those properties "is only provisional in character and is without prejudice to a judgment in a separate action on the issue of title or ownership" (Sebial v. Sebial, L-23419, June 27, 1975, 64 SCRA 385). Consequently, in reviewing the exercise of such limited probate jurisdiction, We cannot order an unqualified and final exclusion of the properties involved, as prayed for; to do so would expand the probate court's jurisdiction beyond the perimeters set by law and jurisprudence. It is fitting and proper that this issue be ventilated and finally resolved in the already instituted Civil Case No. 41287, even as We hold that respondent court's act of not excluding the lots involved did not constitute grave abuse of discretion. In view of this limitation, We need not resolve the issue of whether there was novation of the Deed of Sale with Mortgage, or not. This same elemental principle, we found occasion to reiterate in the cases of Junquera v. Borromeo (19 SCRA 656); Borromeo v. Canonoy (19 SCRA 667); Recto v. dela Rosa (75 SCRA 226); Lachenal v. Salas (71 SCRA 202); Bolisay v. Alcid (85 SCRA 213); Vda. de Rodriguez v. Court of Appeals (91 SCRA 540). However, from here, the road forks as we disagree with the respondent court's findings on the second issue. In his petition for certiorari before the Court of Appeals, respondent Moslares assails the issuance of the four impugned orders by the probate court on the ground that the court had no jurisdiction to rescind the Deed of Sale with the Mortgage entered into by the deceased during his lifetime, due to the limited jurisdiction of the probate court merely to settle and liquidate the estates of a decedent and not to pass upon questions of title to property.

On the other hand, the petitioner argues that in voiding and nullifying the four orders of the probate court, the Court of Appeals, in effect, would have the former court recognize the alleged ownership of Mr. Moslares over the three titled Drepin lots involved in this case contrary to its pronouncement in settling the first issue. It is to be noted that the last agreement entered into by the deceased prior to his death, that is, the Joint Venture Agreement listing Drepin as owner of the properties in question, and the surrender to administrator Trinidad of the certificates of title, had led the probate court to enter or include said properties in its inventory of the deceased's estate. Thus, provisionally, ownership thereof was recognized as vested in the estate. Subsequently, in the course of the probate proceedings, the sale of the properties was found to be necessary to settle the deceased's obligations. It was then that herein private respondent Moslares submitted himself to the jurisdiction of the court in an "Offer to Buy" said properties, based on his previous agreement with the deceased during the latter's lifetime. It is noteworthy that contrary to Moslares' assertion of ownership, he had offered to buy the Drepin lands from the probate court. Surely, this is not conduct ordinarily expected of one who is the owner of the property. Further, the fact that subsequent to the Deed of Sale, the deceased as buyer and as absolute owner entered into an agreement with the respondent merely as developer of the lands in question evidences a change of cause or object as well as a change of relation between the parties. Moslares' own acts negate his claims in this petition that he had acquired ownership of the properties. Thus, the transparency of respondent's argument becomes readily apparent. Having submitted his letter-proposal to the court, the same was approved, allowing Moslares to pay the balance of the purchase price agreed upon by respondent and the decedent in the amount of One Million Six Hundred Thousand Pesos (P1,600,000.00) specifying the time and manner of payment thereof. Thus, he was given preference and priority over other persons or groups offering to buy the estate. Having failed to comply with the conditions of payment of the contract, the same was rescinded by the probate court. Now, respondent questions this rescission which he maintains to be beyond the jurisdiction of the court. Estoppel works to preclude respondent from questioning the jurisdiction of the court. By offering to buy the properties in question, respondent has clearly recognized the jurisdiction of the probate court to which he had effectively submitted himself. It is well settled that a party is estopped from disputing the jurisdiction of the court after invoking it himself (Tible v. Aquino, 65 SCRA 207). After voluntarily submitting a cause and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court (People v. Munar, 53 SCRA 278; Capilitan v. dela Cruz, 55 SCRA 706; Summit Guaranty and Insurance Co., Inc., v. Court of Appeals, 110 SCRA 241; Tajonera v. Lamoroza, 110 SCRA 438). A party will not be allowed to make a mockery of justice by taking inconsistent positions. Doctrine of estoppel bars a party from trifling with the courts (Depositario v. Hervias, 121 SCRA 756). The merits of the case likewise lead to similar conclusions. It cannot but be conceded that the limited jurisdiction of a probate court prohibits it from determining rights to property left by a decedent which depends on the contract (Goodin v. Casselman 200 N.W. 94, 51 N.D. 543). However, actions of the probate court, in the case at bar, do not refer to the adjudication of rights under the contract entered into by the deceased during his lifetime. It is to be noted that the dealings of the respondent with the court arose out of the latter's bid to sell property under its authority to sell, mortgage or otherwise encumber property of the estate to pay or settle against the estate (Rule 89, Revised Rules of Court). Thus, respondent bound himself under an agreement with the court separate and distinct from that which he had with the decedent. In rescinding such contract, the court merely seeks to enforce its right to put an end to an agreement which had ceased to be a working proposition. Surely, this is well within the power of the probate court. Though of limited and special jurisdiction, it cannot be denied, however, that when the law confers jurisdiction upon a court, the latter is deemed to have all the necessary powers to exercise such jurisdicton to make it effective (Zuniga v. Court of Appeals, 95 SCRA 740). We cannot allow an absurd situation to arise where the Drepin estate will never be settled and liquidated because even if Moslares cannot pay the agreed purchase price of the Drepin lands, still the probate court can no longer sell the lands to other prospective buyers. Under the theory of respondent, it is insisted that the probate court has no authority to cancel his unfulfilled offer to buy, notwithstanding the fact that he failed miserably to comply with the terms of his own offer to buy. It is to be remembered that Moslares had already been granted undue leniency by the probate court to meet his obligations to pay. But, the saga of Moslares' bouncing checks remains. Three reports of Administrator Trinidad had been submitted as annexes to the petition for certiorari. The report, dated June 30, 1980 showed that two of Moslares' checks were dishonored, having been drawn against insufficient funds. The August 18, 1980 report stated that: "All the checks submitted to the probate court for payment bounced." And in the report dated April 15, 1981, it was further averred by the administrator that "... believing that the bouncing checks were not intended to defraud the Estate," "he refrained from prosecuting Honor P. Moslares criminally under the law on dishonored checks." It is also to be emphasized that it was not respondent's contract of sale with decedent that had been invalidated but rather the administrator's authority to sell to respondent. Although the court recognized the Deed of Sale with Mortgage, still the same was not being enforced as such but was used only as basis for the terms and conditions of respondent's agreement with the court. To enforce the same is truly beyond the scope of the probate court's jurisdiction. The court's actions constitute a refusal to pass upon the validity of the contract to sell. Further, the probate court has ample discretion in determining whether conditions of a particular sale would be beneficial to the estate and this is generally respected by the appellate courts (Court of First Instance v. Court of Appeals, 106 SCRA 114, Fernandez, et al., v. Montejo, 109 Phil. 701). To attack the nullity of the order of the probate court to sell property of the deceased, it must be shown that the contract of sale is null and void (Rafols v. Barba, 119 SCRA 147). The infirmity of the subject deed of sale is premised on the alleged nullity of the order of the court authorizing the sale. The validity of said order may not be attacked in a collateral proceeding, the supposed ground for declaring it void for lack of jurisdiction not being apparent on the face thereof (Rafols v. Barba, supra). Nevertheless, respondent could have prevented the sale of the Drepin lands. Section 3, Rule 89 of the Revised Rules of Court, to wit: Section 3. Persons interested may prevent such sale, etc., by giving bond. No such authority to sell mortgage, or otherwise encumber real or personal estate shall be granted if any person interested in the estate gives a bond,

in a sum to be fixed by the court, conditioned to pay the debts, expenses of administration, and legacies within such tune as the court directs; and such bond shall be for the security of the creditors, as well as of the executor or administrator, and may be prosecuted for the benefit of either. provides respondent with the legal means by which he could have forestalled the sale of the Drepin lands to the petitioner. (Court of First Instance v. Court of Appeals, supra) If third persons oppose an application for leave to sell the property of the decedent, claiming title to the property, the title claim, cannot be adjudicated by the probate court, but it can hold approval of the sale in abeyance until the question of ownership shall have been decided in a proper action (Baquial v. Amihan, 92 Phil. 501). But this, he failed to do. Ergo, we find no reason to disturb the questioned orders of the probate court. Moreover, the respondent is not without remedy if truly his claim of ownership is proper and meritorious. Since the probate court has no jurisdiction over the question of title and ownership of the properties, the respondents may bring a separate action if they wish to question the petitioner's titles and ownership (Vda. de Rodriguez v. Court of Appeals, 91 SCRA 540). Though an order of the probate court approving the sale of the decedent's property is final, the respondent may file a complaint in the proper court for the rescission of the sale. (Pizarro v. Court of Appeals, 99 SCRA 72). Likewise, the initial question of respondent regarding the propriety of including the properties in question in the inventory of the probate court as he claims ownership thereof may therein be finally and conclusively settled (Vda. de Rodriguez v. Court of Appeals, supra; Lachenal v. Salas, 71 SCRA 202). The respondent has ample protection of his rights for the province of the probate court remains merely the settlement of the estate and may not be extended beyond (Pizarro v. Court of Appeals, supra). WHEREFORE, in view of the foregoing, the petition for certiorari is hereby GRANTED. The decision of the Court of Appeals (now Intermediate Appellate Court), dated June 30, 1982 is REVERSED and SET ASIDE. The permanent restraining order issued against the trial court is hereby DISMISSED. The impugned orders of the probate court dated April 15, 1980, July 2, 1980, September 30, 1980 and October 20, 1980 are accordingly REINSTATED. SO ORDERED. Teehankee, Actg. C.J., Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

G.R. No. L-4656 February 23, 1953 FRANCISCO MALLARI, ET AL., Plaintiffs-Appellants, v. AUGUSTO MALLARI, Defendant-Appellee. SYLLABUS 1. DESCENT AND DISTRIBUTION; ACTIONS; FILING OF ORDINARY ACTION ON PROPERTIES UNDER ADMINISTRATION. A probate court or one in charge of proceedings whether testate or intestate can not adjudicate or determine title to properties claimed to be a part of the estate and which are equally claimed to belong to outside parties. All that the said court could do as regards said properties is to determine whether they could or should not be included in the inventory or list of properties to be administered by the administrator. If there is a dispute about the title, then the parties, the administrator and the oppossing parties have to resort to an ordinary action for a final determination of the conflicting claims because the probate court can not do so (Baquial v. Amihan, supra, p. 501. If an ordinary action is filed between the same parties in the probate proceedings and involving the same properties, and the question in dispute is whether those properties form part of the estate of the testator, the ordinary action should not be dismissed on the ground that it is a duplication of the probate proceedings. DECISION For an easier apprehension of the present case and to form a sort of background, the following facts may be stated. Maria Mallari died on April 17, 1949 without issue but leaving nephews and at least one niece. During her lifetime Maria Mallari owned among other things three parcels of land and one-half of another parcel, in Macabebe, Pampanga, all registered under the Torrens System. On July 12, 1938, she was supposed to have donated the first parcel covered by transfer certificate of title No. 10048 to her nephew Domiciano C. Mallari, and the second, third and one-half of the fourth parcel covered by transfer certificates of title Nos. 10046, 10047 and 10063 to the same Domiciano C. Mallari, her nephew Francisco Mallari and her niece Catalina Mallari. The donees accepted the donations in the same deed or deeds and new certificates of title Nos. 11409, 11406, 11407 and 11408 were issued to them. Thereafter, the donees took possession of the parcels donated to them. In 1943 the donees Domiciano, Francisco and Catalina executed an extra-judicial partition of their joint properties, among them parcels 2, 3 and 4, as a result of which parcels 2 and 3 went to Domiciano and parcel 4 went to Francisco. Catalina received other pieces of property. In 1946 this extrajudicial partition was registered and the corresponding transfer certificates of title were issued to them. Maria left what purported to be a will and in that instrument the four parcels of land said to have been donated by her to her nephews and niece were still listed as part of her estate. On May 7, 1949, defendant Augusto Mallari, another nephew of Maria filed a petition for the probate of the will of his aunt in special proceedings No. 450 in the Court of First Instance of Pampanga (Branch III) and Augusto was appointed special administrator of the estate. On June 11, 1949, the heirs of Domiciano who had already died, and Francisco and Catalina filed opposition to the probate of the will based on statutory grounds and claiming that the four parcels of land could no longer be disposed of in the will because they had previously been donated to them. Contending that the donations of the four parcels in question were invalid and ineffective, and that consequently, said parcels still formed part of the estate, Augusto as special administrator, petitioned the probate court to order the tenants of said four parcels under penalty of contempt of court to deliver to him that portion of the harvest corresponding to the owner. This petition was opposed by the heirs of Domiciano and by Francisco on the ground that they were in possession as owners of the property and that therefore, the portion of the harvest corresponding to the owner belonged to them. On October 26, 1949, Francisco Mallari and the four heirs of Domiciano named Magdalena, Marcelo, Florentina and Gorgonia, filed the present action, civil case No. 261 in the Court of First Instance of Pampanga (Branch I) claiming that the four parcels in question (1/2 of the 4th) belonged to them by virtue of the donation made by Maria Mallari, and alleging that Augusto claims or asserts to have an interest in the said lands, and that, "without any authority or right whatsoever, threatens to take, by means of force, violence and intimidation, the existing palay harvest on said lands, without the consent of the plaintiffs; and said defendant is now preparing to take said palay, and, unless restrained by this Honorable Court, will do so." Plaintiffs prayed that Augusto be compelled to disclose the facts upon which he bases his claim and that all his pretensions be passed upon and determined by the court, and that said defendant be declared not to have any title or interest whatsoever on said properties, and that the title of the plaintiffs thereto be declared valid and binding as against the whole world, and that for the time being, defendant be enjoined from taking and removing any of the palay from the said parcels. In the meantime or on October 27, 1949, the probate court (Branch III) acting upon the petition of Augusto and the opposition thereto, regarding the delivery of the owners portion of the harvest from the parcels in question, issued an order to the effect that the Special Administrator was authorized to be present whenever the division of the harvest between the tenants and the oppositors was held in order to record the correct amount of the harvest. Then on January 18, 1950, Marcelo Mallari, one of the plaintiffs herein and one of the oppositors in the probate of the will filed in special proceedings No. 450 a complaint accusing special administrator Augusto Mallari of contempt of court for having used force in entering the four parcels in question in that between December 28th, 1949 and January 4th, 1950, he, with six other persons all armed with firearms and bolos entered the four parcels in question and took from the streams used as fishpond inside said lands five banca loads of fish. Acting upon his complaint, the probate court issued an order dated July 5, 1950, dismissing the complaint "without prejudice on the part of any of the parties to take any subsequent action which they may deem proper in the premises." Going back to civil case No. 261 in Branch I, instead of answering the complaint, Augusto filed a motion to dismiss on the ground that the complaint did not state facts sufficient to constitute a cause of action and that the court had no jurisdiction over the subject-matter. His theory was that the main object of the complaint was injunction and this being an ancillary remedy, could not stand alone. His principal contention, however, was that the court had no jurisdiction because the probate court had already acquired exclusive jurisdiction under special proceedings No. 450. Acting upon this motion to dismiss the trial court (Branch I) granted it and dismissed the complaint by order of September 19, 1950 on the ground that the parties and the subject-matter involved in the probate proceedings and in the ordinary action were the same, and that the present action was in effect a duplication of the probate proceedings, and that a final judgment in the probate proceedings will amount to an adjudication of the present action. Plaintiffs are now appealing from said order.

It is clear that the trial court erred in dismissing the complaint. The present action is not a duplication of the probate proceedings altho the parties and subject-matter may be identical. It is a well-settled rule that a probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or determine title to properties claimed to be a part of the estate and which are equally claimed to belong to outside parties. All that the said court could do as regards said properties is to determine whether they should or should not be included in the inventory or list of properties to be administered by the administrator. If there is no dispute, well and good; but if there is, then the parties, the administrator and the opposing parties have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so. (Fernando Baquial v. Felix Amihan, Supra, p. 501 and authorities cited therein.) It is therefore evident that the conflicting claims in the present action cannot be adjudicated in the probate proceedings. True, the parties and the properties involved are the same but only in an ordinary action may be determined whether the four parcels in question were really validly donated to the plaintiffs, and whether they do not now form part of the estate of Maria Mallari subject to disposition under the will whose probate is still pending. That was the reason why when the special administrator asked that the tenants on the four parcels of land be ordered to deliver to him the owners share, the probate court did not grant the petition but merely authorized the special administrator to be present at the division of the harvest in order to record the amount of the same. Again, when one of the plaintiffs asked that the special administrator be punished for contempt of court for forcibly entering the lands and removing fish therefrom, the court dismissed the complaint without prejudice to the parties concerned to take any subsequent action which they may deem proper in the premises. In view of the foregoing, the order appealed from dismissing the complaint is set aside and this case is ordered remanded to the trial court for further proceedings, with costs.

G.R. No. L-56340 June 24, 1983 SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE PASTOR, petitioners, vs. THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF FIRST INSTANCE OF CEBU and LEWELLYN BARLITO QUEMADA, respondents. Pelaez, Pelaez, & Pelaez Law Office for petitioners. Ceniza, Rama & Associates for private respondents. PLANA, J.: I. FACTS: This is a case of hereditary succession. Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5, 1966, survived by his Spanish wife Sofia Bossio (who also died on October 21, 1966), their two legitimate children Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de Midgely (SOFIA), and an illegitimate child, not natural, by the name of Lewellyn Barlito Quemada QUEMADA PASTOR, JR. is a Philippine citizen, having been naturalized in 1936. SOFIA is a Spanish subject. QUEMADA is a Filipino by his mother's citizenship. On November 13, 1970, QUEMADA filed a petition for the probate and allowance of an alleged holographic will of PASTOR, SR. with the Court of First Instance of Cebu, Branch I ( PROBATE COURT), docketed as SP No. 3128-R. The will contained only one testamentary disposition: a legacy in favor of QUEMADA consisting of 30% of PASTOR, SR.'s 42% share in the operation by Atlas Consolidated Mining and Development Corporation (ATLAS) of some mining claims in Pina-Barot, Cebu. On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after an ex parte hearing, appointed him special administrator of the entire estate of PASTOR, SR., whether or not covered or affected by the holographic will. He assumed office as such on December 4, 1970 after filing a bond of P 5,000.00. On December 7, 1970, QUEMADA as special administrator, instituted against PASTOR, JR. and his wife an action for reconveyance of alleged properties of the estate, which included the properties subject of the legacy and which were in the names of the spouses PASTOR, JR. and his wife, Maria Elena Achaval de Pastor, who claimed to be the owners thereof in their own rights, and not by inheritance. The action, docketed as Civil Case No. 274-R, was filed with the Court of First Instance of Cebu, Branch IX. On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the petition for probate and the order appointing QUEMADA as special administrator. On December 5, 1972, the PROBATE COURT issued an order allowing the will to probate. Appealed to the Court of Appeals in CA-G.R. No. 52961- R, the order was affirmed in a decision dated May 9, 1977. On petition for review, the Supreme Court in G.R. No. L-46645 dismissed the petition in a minute resolution dated November 1, 1977 and remanded the same to the PROBATE COURT after denying reconsideration on January 11, 1978. For two years after remand of the case to the PROBATE COURT, QUEMADA filed pleading after pleading asking for payment of his legacy and seizure of the properties subject of said legacy. PASTOR, JR. and SOFIA opposed these pleadings on the ground of pendency of the reconveyance suit with another branch of the Cebu Court of First Instance. All pleadings remained unacted upon by the PROBATE COURT. On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of the will for March 25, 1980, but upon objection of PASTOR, JR. and SOFIA on the e ground of pendency of the reconveyance suit, no hearing was held on March 25. Instead, the PROBATE COURT required the parties to submit their respective position papers as to how much inheritance QUEMADA was entitled to receive under the wig. Pursuant thereto, PASTOR. JR. and SOFIA submitted their Memorandum of authorities dated April 10, which in effect showed that determination of how much QUEMADA should receive was still premature. QUEMADA submitted his Position paper dated April 20, 1980. ATLAS, upon order of the Court, submitted a sworn statement of royalties paid to the Pastor Group of tsn from June 1966 (when Pastor, Sr. died) to February 1980. The statement revealed that of the mining claims being operated by ATLAS, 60% pertained to the Pastor Group distributed as follows: 1. A. Pastor, Jr. ...................................40.5% 2. E. Pelaez, Sr. ...................................15.0% 3. B. Quemada .......................................4.5% On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX of the Court of First Instance of Cebu, the PROBATE COURT issued the now assailed Order of Execution and Garnishment, resolving the question of ownership of the royalties payable by ATLAS and ruling in effect that the legacy to QUEMADA was not inofficious. [There was absolutely no statement or claim in the Order that the Probate Order of December 5, 1972 had previously resolved the issue of ownership of the mining rights of royalties thereon, nor the intrinsic validity of the holographic will.] The order of August 20, 1980 found that as per the holographic will and a written acknowledgment of PASTOR, JR. dated June 17, 1962, of the above 60% interest in the mining claims belonging to the Pastor Group, 42% belonged to PASTOR, SR. and only 33% belonged to PASTOR, JR. The remaining 25% belonged to E. Pelaez, also of the Pastor Group. The PROBATE COURT thus directed ATLAS to remit directly to QUEMADA the 42% royalties due decedent's estate, of which QUEMADA was authorized to retain 75% for himself as legatee and to deposit 25% with a reputable banking institution for payment of the estate taxes and other obligations of the estate. The 33% share of PASTOR, JR. and/or his assignees was ordered garnished to answer for the accumulated legacy of QUEMADA from the time of PASTOR, SR.'s death, which amounted to over two million pesos. The order being "immediately executory", QUEMADA succeeded in obtaining a Writ of Execution and Garnishment on September 4, 1980, and in serving the same on ATLAS on the same day. Notified of the Order on September 6, 1980, the oppositors sought reconsideration thereof on the same date primarily on the ground that the PROBATE COURT gravely abused its discretion when it resolved the question of ownership of the royalties and ordered the payment of QUEMADA's legacy after

prematurely passing upon the intrinsic validity of the will. In the meantime, the PROBATE COURT ordered suspension of payment of all royalties due PASTOR, JR. and/or his assignees until after resolution of oppositors' motion for reconsideration. Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this time joined by his wife Ma. ELENA ACHAVAL DE PASTOR, filed with the Court of Appeals a Petition for certiorari and Prohibition with a prayer for writ of preliminary injunction (CA-G.R. No. SP- 11373-R). They assailed the Order dated August 20, 1980 and the writ of execution and garnishment issued pursuant thereto. The petition was denied on November 18, 1980 on the grounds (1) that its filing was premature because the Motion for Reconsideration of the questioned Order was still pending determination by the PROBATE COURT; and (2) that although "the rule that a motion for reconsideration is prerequisite for an action for certiorari is never an absolute rule," the Order assailed is "legally valid. " On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the Court of Appeal's decision of November 18, 1980, calling the attention of the appellate court to another order of the Probate Court dated November 11, 1980 (i.e., while their petition for certiorari was pending decision in the appellate court), by which the oppositors' motion for reconsideration of the Probate Court's Order of August 20, 1980 was denied. [The November 11 Order declared that the questions of intrinsic validity of the will and of ownership over the mining claims (not the royalties alone) had been finally adjudicated by the final and executory Order of December 5, 1972, as affirmed by the Court of Appeals and the Supreme Court, thereby rendering moot and academic the suit for reconveyance then pending in the Court of First Instance of Cebu, Branch IX. It clarified that only the 33% share of PASTOR, JR. in the royalties (less than 7.5% share which he had assigned to QUEMADA before PASTOR, SR. died) was to be garnished and that as regards PASTOR, SR.'s 42% share, what was ordered was just the transfer of its possession to the custody of the PROBATE COURT through the special administrator. Further, the Order granted QUEMADA 6% interest on his unpaid legacy from August 1980 until fully paid.] Nonetheless, the Court of Appeals denied reconsideration. Hence, this Petition for Review by certiorari with prayer for a writ of pre y injunction, assailing the decision of the Court of Appeals dated November 18, 1980 as well as the orders of the Probate Court dated August 20, 1980, November 11, 1980 and December 17, 1980, Med by petitioners on March 26, 1981, followed by a Supplemental Petition with Urgent Prayer for Restraining Order. In April 1981, the Court (First Division) issued a writ of preliminary injunction, the lifting of which was denied in the Resolution of the same Division dated October 18, 1982, although the bond of petitioners was increased from P50,000.00 to P100,000.00. Between December 21, 1981 and October 12, 1982, private respondent filed seven successive motions for early resolution. Five of these motions expressly prayed for the resolution of the question as to whether or not the petition should be given due course. On October 18, 1982, the Court (First Division) adopted a resolution stating that "the petition in fact and in effect was given due course when this case was heard on the merits on September 7, (should be October 21, 1981) and concise memoranda in amplification of their oral arguments on the merits of the case were filed by the parties pursuant to the resolution of October 21, 1981 . . . " and denied in a resolution dated December 13, 1982, private respondent's "Omnibus motion to set aside resolution dated October 18, 1982 and to submit the matter of due course to the present membership of the Division; and to reassign the case to another ponente." Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982 Resolutions, the Court en banc resolved to CONFIRM the questioned resolutions insofar as hey resolved that the petition in fact and in effect had been given due course. II. ISSUES: Assailed by the petitioners in these proceedings is the validity of the Order of execution and garnishment dated August 20, 1980 as well as the Orders subsequently issued allegedly to implement the Probate Order of December 5, 1972, to wit: the Order of November 11, 1980 declaring that the Probate Order of 1972 indeed resolved the issues of ownership and intrinsic validity of the will, and reiterating the Order of Execution dated August 20, 1980; and the Order of December 17, 1980 reducing to P2,251,516.74 the amount payable to QUEMADA representing the royalties he should have received from the death of PASTOR, SR. in 1966 up to February 1980. The Probate Order itself, insofar as it merely allowed the holographic will in probate, is not questioned. But petitioners denounce the Probate Court for having acted beyond its jurisdiction or with grave abuse of discretion when it issued the assailed Orders. Their argument runs this way: Before the provisions of the holographic win can be implemented, the questions of ownership of the mining properties and the intrinsic validity of the holographic will must first be resolved with finality. Now, contrary to the position taken by the Probate Court in 1980 i.e., almost eight years after the probate of the will in 1972 the Probate Order did not resolve the two said issues. Therefore, the Probate Order could not have resolved and actually did not decide QUEMADA's entitlement to the legacy. This being so, the Orders for the payment of the legacy in alleged implementation of the Probate Order of 1972 are unwarranted for lack of basis. Closely related to the foregoing is the issue raised by QUEMADA The Probate Order of 1972 having become final and executory, how can its implementation (payment of legacy) be restrained? Of course, the question assumes that QUEMADA's entitlement to the legacy was finally adjudged in the Probate Order. On the merits, therefore, the basic issue is whether the Probate Order of December 5, 1972 resolved with finality the questions of ownership and intrinsic validity. A negative finding will necessarily render moot and academic the other issues raised by the parties, such as the jurisdiction of the Probate Court to conclusively resolve title to property, and the constitutionality and repercussions of a ruling that the mining properties in dispute, although in the name of PASTOR, JR. and his wife, really belonged to the decedent despite the latter's constitutional disqualification as an alien. On the procedural aspect, placed in issue is the propriety of certiorari as a means to assail the validity of the order of execution and the implementing writ. III. DISCUSSION: 1. Issue of Ownership (a) In a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. (Rules of Court, Rule 75, Section 1; Rule 76, Section 9.) As a rule, the question of ownership is an extraneous matter which the Probate

Court cannot resolve with finality. Thus, for the purpose of determining whether a certain property should or should not be included in the inventory of estate properties, the Probate Court may pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title. [3 Moran, Comments on the Rules of Court (1980 ed.), p. 458; Valero Vda. de Rodriguez vs. Court of Appeals, 91 SCRA 540.] (b) The rule is that execution of a judgment must conform to that decreed in the dispositive part of the decision. (PhilippineAmerican Insurance Co. vs. Honorable Flores, 97 SCRA 811.) However, in case of ambiguity or uncertainty, the body of the decision may be scanned for guidance in construing the judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular vs. Court of Appeals, 119 SCRA 329; Robles vs. Timario. 107 Phil. 809.) The Order sought to be executed by the assailed Order of execution is the Probate Order of December 5, 1972 which allegedly resolved the question of ownership of the disputed mining properties. The said Probate Order enumerated the issues before the Probate Court, thus: Unmistakably, there are three aspects in these proceedings: (1) the probate of the holographic will (2) the intestate estate aspect; and (3) the administration proceedings for the purported estate of the decedent in the Philippines. In its broad and total perspective the whole proceedings are being impugned by the oppositors on jurisdictional grounds, i.e., that the fact of the decedent's residence and existence of properties in the Philippines have not been established. Specifically placed in issue with respect to the probate proceedings are: (a) whether or not the holographic will (Exhibit "J") has lost its efficacy as the last will and testament upon the death of Alvaro Pastor, Sr. on June 5, 1966, in Cebu City, Philippines; (b) Whether or not the said will has been executed with all the formalities required by law; and (c) Did the late presentation of the holographic will affect the validity of the same? Issues In the Administration Proceedings are as follows: (1) Was the ex- parte appointment of the petitioner as special administrator valid and proper? (2) Is there any indispensable necessity for the estate of the decedent to be placed under administration? (3) Whether or not petition is qualified to be a special administrator of the estate; and (4) Whether or not the properties listed in the inventory (submitted by the special administrator but not approved by the Probate Court) are to be excluded. Then came what purports to be the dispositive portion: Upon the foregoing premises, this Court rules on and resolves some of the problems and issues presented in these proceedings, as follows: (a) The Court has acquired jurisdiction over the probate proceedings as it hereby allows and approves the socalled holographic will of testator Alvaro Pastor, Sr., executed on July 31, 1961 with respect to its extrinsic validity, the same having been duly authenticated pursuant to the requisites or solemnities prescribed by law. Let, therefore, a certificate of its allowance be prepared by the Branch Clerk of this Court to be signed by this Presiding Judge, and attested by the seal of the Court, and thereafter attached to the will, and the will and certificate filed and recorded by the clerk. Let attested copies of the will and of the certificate of allowance thereof be sent to Atlas Consolidated Mining & Development Corporation, Goodrich Bldg., Cebu City, and the Register of Deeds of Cebu or of Toledo City, as the case may be, for recording. (b) There was a delay in the granting of the letters testamentary or of administration for as a matter of fact, no regular executor and/or administrator has been appointed up to this time and - the appointment of a special administrator was, and still is, justified under the circumstances to take possession and charge of the estate of the deceased in the Philippines (particularly in Cebu) until the problems causing the delay are decided and the regular executor and/or administrator appointed. (c) There is a necessity and propriety of a special administrator and later on an executor and/or administrator in these proceedings, in spite of this Court's declaration that the oppositors are the forced heirs and the petitioner is merely vested with the character of a voluntary heir to the extent of the bounty given to him (under) the will insofar as the same will not prejudice the legitimes of the oppositor for the following reasons: 1. To submit a complete inventory of the estate of the decedent-testator Alvaro Pastor, Sr. 2. To administer and to continue to put to prolific utilization of the properties of the decedent; 3. To keep and maintain the houses and other structures and belonging to the estate, since the forced heirs are residing in Spain, and prepare them for delivery to the heirs in good order after partition and when directed by the Court, but only after the payment of estate and inheritance taxes; (d) Subject to the outcome of the suit for reconveyance of ownership and possession of real and personal properties in Civil Case No. 274-T before Branch IX of the Court of First Instance of Cebu,the intestate estate administration aspect must proceed, unless, however, it is duly proven by the oppositors that debts of the decedent have already been paid, that there had been an extrajudicial partition or summary one between the forced heirs, that the legacy to be given and delivered to the petitioner does not exceed the free portion of the estate of the testator, that the respective shares of the forced heirs have been fairly apportioned, distributed and delivered to the two forced heirs of Alvaro Pastor, Sr., after deducting the property willed to the petitioner, and the estate and inheritance taxes have already been paid to the Government thru the Bureau of Internal Revenue. The suitability and propriety of allowing petitioner to remain as special administrator or administrator of the other properties of the estate of the decedent, which properties are not directly or indirectly affected by the provisions of the holographic will (such as bank deposits, land in Mactan etc.), will be resolved in another order

as separate incident, considering that this order should have been properly issued solely as a resolution on the issue of whether or not to allow and approve the aforestated will. (Emphasis supplied.) Nowhere in the dispositive portion is there a declaration of ownership of specific properties. On the contrary, it is manifest therein that ownership was not resolved. For it confined itself to the question of extrinsic validity of the win, and the need for and propriety of appointing a special administrator. Thus it allowed and approved the holographic win "with respect to its extrinsic validity, the same having been duly authenticated pursuant to the requisites or solemnities prescribed by law." It declared that the intestate estate administration aspect must proceed " subject to the outcome of the suit for reconveyance of ownership and possession of real and personal properties in Civil Case 274-T before Branch IX of the CFI of Cebu." [Parenthetically, although the statement refers only to the "intestate" aspect, it defies understanding how ownership by the estate of some properties could be deemed finally resolved for purposes of testate administration, but not so for intestate purposes. Can the estate be the owner of a property for testate but not for intestate purposes?] Then again, the Probate Order (while indeed it does not direct the implementation of the legacy) conditionally stated that the intestate administration aspect must proceed "unless . . . it is proven . . . that the legacy to be given and delivered to the petitioner does not exceed the free portion of the estate of the testator," which clearly implies that the issue of impairment of legitime (an aspect of intrinsic validity) was in fact not resolved. Finally, the Probate Order did not rule on the propriety of allowing QUEMADA to remain as special administrator of estate properties not covered by the holographic will, "considering that this (Probate) Order should have been properly issued solely as a resolution on the issue of whether or not to allow and approve the aforestated will. " (c) That the Probate Order did not resolve the question of ownership of the properties listed in the estate inventory was appropriate, considering that the issue of ownership was the very subject of controversy in the reconveyance suit that was still pending in Branch IX of the Court of First Instance of Cebu. (d) What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en toto when they reviewed the Probable Order were only the matters properly adjudged in the said Order. (e) In an attempt to justify the issuance of the Order of execution dated August 20, 1980, the Probate Court in its Order of November 11, 1980 explained that the basis for its conclusion that the question of ownership had been formally resolved by the Probate Order of 1972 are the findings in the latter Order that (1) during the lifetime of the decedent, he was receiving royalties from ATLAS; (2) he had resided in the Philippines since pre-war days and was engaged in the mine prospecting business since 1937 particularly in the City of Toledo; and (3) PASTOR, JR. was only acting as dummy for his father because the latter was a Spaniard. Based on the premises laid, the conclusion is obviously far-fetched. (f) It was, therefore, error for the assailed implementing Orders to conclude that the Probate Order adjudged with finality the question of ownership of the mining properties and royalties, and that, premised on this conclusion, the dispositive portion of the said Probate Order directed the special administrator to pay the legacy in dispute. 2. Issue of Intrinsic Validity of the Holographic Will (a) When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two legitimate children and one illegitimate son. There is therefore a need to liquidate the conjugal partnership and set apart the share of PASTOR, SR.'s wife in the conjugal partnership preparatory to the administration and liquidation of the estate of PASTOR, SR. which will include, among others, the determination of the extent of the statutory usufructuary right of his wife until her death. * When the disputed Probate order was issued on December 5, 1972, there had been no liquidation of the community properties of PASTOR, SR. and his wife. (b) So, also, as of the same date, there had been no prior definitive determination of the assets of the estate of PASTOR, SR. There was an inventory of his properties presumably prepared by the special administrator, but it does not appear that it was ever the subject of a hearing or that it was judicially approved. The reconveyance or recovery of properties allegedly owned but not in the name of PASTOR, SR. was still being litigated in another court. (c) There was no appropriate determination, much less payment, of the debts of the decedent and his estate. Indeed, it was only in the Probate Order of December 5, 1972 where the Probate Court ordered that... a notice be issued and published pursuant to the provisions of Rule 86 of the Rules of Court, requiring all persons having money claims against the decedent to file them in the office of the Branch Clerk of this Court." (d) Nor had the estate tax been determined and paid, or at least provided for, as of December 5, 1972. (e) The net assets of the estate not having been determined, the legitime of the forced heirs in concrete figures could not be ascertained. (f) All the foregoing deficiencies considered, it was not possible to determine whether the legacy of QUEMADA - a fixed share in a specific property rather than an aliquot part of the entire net estate of the deceased - would produce an impairment of the legitime of the compulsory heirs. (g) Finally, there actually was no determination of the intrinsic validity of the will in other respects. It was obviously for this reason that as late as March 5, 1980 - more than 7 years after the Probate Order was issued the Probate Court scheduled on March 25, 1980 a hearing on the intrinsic validity of the will. 3. Propriety of certiorari Private respondent challenges the propriety of certiorari as a means to assail the validity of the disputed Order of execution. He contends that the error, if any, is one of judgment, not jurisdiction, and properly correctible only by appeal, not certiorari. Under the circumstances of the case at bar, the challenge must be rejected. Grave abuse of discretion amounting to lack of jurisdiction is much too evident in the actuations of the probate court to be overlooked or condoned. (a) Without a final, authoritative adjudication of the issue as to what properties compose the estate of PASTOR, SR. in the face of conflicting claims made by heirs and a non-heir (MA. ELENA ACHAVAL DE PASTOR) involving properties not in the name of the decedent, and in the absence of a resolution on the intrinsic validity of the will here in question, there was no basis for the Probate Court to hold in its Probate Order of 1972, which it did not, that private respondent is entitled to the payment of the questioned legacy. Therefore, the Order of Execution of August 20, 1980 and the subsequent implementing orders for the payment

of QUEMADA's legacy, in alleged implementation of the dispositive part of the Probate Order of December 5, 1972, must fall for lack of basis. (b) The ordered payment of legacy would be violative of the rule requiring prior liquidation of the estate of the deceased, i.e., the determination of the assets of the estate and payment of all debts and expenses, before apportionment and distribution of the residue among the heirs and legatees. (Bernardo vs. Court of Appeals, 7 SCRA 367.) (c) Neither has the estate tax been paid on the estate of PASTOR, SR. Payment therefore of the legacy to QUEMADA would collide with the provision of the National Internal Revenue Code requiring payment of estate tax before delivery to any beneficiary of his distributive share of the estate (Section 107 [c]) (d) The assailed order of execution was unauthorized, having been issued purportedly under Rule 88, Section 6 of the Rules of Court which reads: Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs have been in possession. Where devisees, legatees, or heirs have entered into possession of portions of the estate before the debts and expenses have been settled and paid and have become liable to contribute for the payment of such debts and expenses, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of their several liabilities, and order how much and in what manner each person shall contribute, and may issue execution as circumstances require. The above provision clearly authorizes execution to enforce payment of debts of estate. A legacy is not a debt of the estate; indeed, legatees are among those against whom execution is authorized to be issued. ... there is merit in the petitioners' contention that the probate court generally cannot issue a writ of execution. It is not supposed to issue a writ of execution because its orders usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without the necessity of resorting to a writ of execution. The probate court, as such, does not render any judgment enforceable by execution. The circumstances that the Rules of Court expressly specifies that the probate court may issue execution (a) to satisfy (debts of the estate out of) the contributive shares of devisees, legatees and heirs in possession of the decedent's assets (Sec. 6. Rule 88), (b) to enforce payment of the expenses of partition (Sec. 3, Rule 90), and (c) to satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule 142) may mean, under the rule of inclusion unius est exclusion alterius, that those are the only instances when it can issue a writ of execution. (Vda. de Valera vs. Ofilada, 59 SCRA 96, 108.) (d) It is within a court's competence to order the execution of a final judgment; but to order the execution of a final order (which is not even meant to be executed) by reading into it terms that are not there and in utter disregard of existing rules and law, is manifest grave abuse of discretion tantamount to lack of jurisdiction. Consequently, the rule that certiorari may not be invoked to defeat the right of a prevailing party to the execution of a valid and final judgment, is inapplicable. For when an order of execution is issued with grave abuse of discretion or is at variance with the judgment sought to be enforced (PVTA vs. Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate the order of execution. (e) Aside from the propriety of resorting to certiorari to assail an order of execution which varies the terms of the judgment sought to be executed or does not find support in the dispositive part of the latter, there are circumstances in the instant case which justify the remedy applied for. Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in her own right of three mining claims which are one of the objects of conflicting claims of ownership. She is not an heir of PASTOR, SR. and was not a party to the probate proceedings. Therefore, she could not appeal from the Order of execution issued by the Probate Court. On the other hand, after the issuance of the execution order, the urgency of the relief she and her co-petitioner husband seek in the petition for certiorari states against requiring her to go through the cumbersome procedure of asking for leave to intervene in the probate proceedings to enable her, if leave is granted, to appeal from the challenged order of execution which has ordered the immediate transfer and/or garnishment of the royalties derived from mineral properties of which she is the duly registered owner and/or grantee together with her husband. She could not have intervened before the issuance of the assailed orders because she had no valid ground to intervene. The matter of ownership over the properties subject of the execution was then still being litigated in another court in a reconveyance suit filed by the special administrator of the estate of PASTOR, SR. Likewise, at the time petitioner PASTOR, JR. Med the petition for certiorari with the Court of Appeals, appeal was not available to him since his motion for reconsideration of the execution order was still pending resolution by the Probate Court. But in the face of actual garnishment of their major source of income, petitioners could no longer wait for the resolution of their motion for reconsideration. They needed prompt relief from the injurious effects of the execution order. Under the circumstances, recourse to certiorari was the feasible remedy. WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373-R is reversed. The Order of execution issued by the probate Court dated August 20, 1980, as well as all the Orders issued subsequent thereto in alleged implementation of the Probate Order dated December 5, 1972, particularly the Orders dated November 11, 1980 and December 17, 1980, are hereby set aside; and this case is remanded to the appropriate Regional Trial Court for proper proceedings, subject to the judgment to be rendered in Civil Case No. 274-R. SO ORDERED. Teehankee (Chairman), Melencio-Herrera Vasquez and Relova JJ., concur. Gutierrez, J., took no part.

[G.R. No. 139587. November 22, 2000] IN THE MATTER OF THE INTESTATE ESTATE OF DECEASED ISMAEL REYES, THE HEIRS OF OSCAR R. REYES, petitioners, vs. CESAR R. REYES, respondent. DECISION GONZAGA-REYES, J.: In this petition for review on certiorari, petitioners seek to annul the decision of the respondent Court of Appeals in CA-G.R. CV No. 46761[1] which affirmed the Order[2] dated January 26, 1994 of the Regional Trial Court, Branch 96, Quezon City, in Special Proceeding No. 89-2519, a petition for issuance of letters of administration, and the resolution dated July 28, 1999 denying their motion for reconsideration.[3] Spouses Ismael Reyes and Felisa Revita Reyes are the registered owners of parcels of land situated in Arayat Street, Cubao, Quezon City covered by Transfer Certificates of Title Nos. 4983 and 3598 (39303). The spouses have seven children, namely: Oscar, Araceli, Herminia, Aurora, Emmanuel, Cesar and Rodrigo, all surnamed Reyes. On April 18, 1973, Ismael Reyes died intestate. Prior to his death, Ismael Reyes was notified by the Bureau of Internal Revenue (BIR) of his income tax deficiency which arose out of his sale of a parcel land located in Tandang Sora, Quezon City. For failure to settle his tax liability, the amount increased to about P172,724.40 and since no payment was made by the heirs of deceased Ismael Reyes, the property covered by TCT No. 4983 was levied [4] sold and eventually forfeited by the Bureau of Internal Revenue in favor of the government.[5] Sometime in 1976, petitioners predecessor Oscar Reyes availed of the BIRs tax amnesty and he was able to redeem the property covered by TCT No. 4983[6] upon payment of the reduced tax liability in the amount of about P18,000. [7] On May 18, 1982, the Office of the City Treasurer of Quezon City sent a notice to Felisa Revita Reyes informing her that the Arayat properties will be sold at public auction on August 25, 1982 for her failure to settle the real estate tax delinquency from 1974-1981.[8] On December 15, 1986, petitioners predecessor Oscar Reyes entered into an amnesty compromise agreement with the City Treasurer and settled the accounts of Felisa R. Reyes.[9] On May 10, 1989, private respondent Cesar Reyes, brother of Oscar Reyes, filed a petition for issuance of letters of administration with the Regional Trial Court of Quezon City praying for his appointment as administrator of the estate of the deceased Ismael Reyes which estate included 50% of the Arayat properties covered by TCT Nos. 4983 and 3598. [10] Oscar Reyes filed his conditional opposition thereto on the ground that the Arayat properties do not form part of the estate of the deceased as he (Oscar) had acquired the properties by redemption and or purchase. [11] The probate court subsequently issued letters of administration in favor of Cesar Reyes where the latter was ordered to submit a true and complete inventory of properties pertaining to the estate of the deceased and the special powers of attorney executed by the other heirs who reside in the USA and that of Aurora Reyes-Dayot conforming to his appointment as administrator.[12]Cesar Reyes filed an inventory of real and personal properties of the deceased which included the Arayat properties with a total area of 1,009 sq. meters. [13] On the other hand, Oscar Reyes filed his objection to the inventory reiterating that the Arayat properties had been forfeited in favor of the government and he was the one who subsequently redeemed the same from the BIR using his own funds.[14] A hearing on the inventory was scheduled where administrator Cesar Reyes was required to present evidence to establish that the properties belong to the estate of Ismael Reyes and the oppositor to adduce evidence in support of his objection to the inclusion of certain properties in the inventory.[15] After hearing the parties respective arguments, the probate court issued its Order dated January 26, 1994, the dispositive portion of which reads: [16] WHEREFORE, pursuant to the foregoing findings, the Court hereby modifies the inventory submitted by the administrator and declares to belong to the estate of the late Ismael Reyes the following properties, to wit: 1. One half (1/2) of the agricultural land located in Montalban, Rizal containing an area of 31,054 square meters, covered by TCT 72730 with an approximate value of P405,270.00; 2. One half (1/2) of two (2) adjoining residential lots located on Arayat Street, Cubao, Quezon City, with total area of 1,009 square meters, more or less, covered by TCTs No. 4983 AND 3598 (39303), with an approximate value of P3,027,000.00; but this determination is provisional in character and shall be without prejudice to the outcome of any action to be brought hereafter in the proper Court on the issue of ownership of the properties; and, 3. The building constructed by and leased to Sonny Bernardo and all its rental income from the inception of the lease, whether such income be in the possession of oppositor, in which case he is hereby directed to account therefor, or if such income be still unpaid by Bernardo, in which case the administrator should move to collect the same. Consistent with the foregoing things, either of the administrator oppositor, or heir Felisa R. Reyes, in her personal capacity as apparent co-owner of the Arayat Street properties, may commence the necessary proper action for settling the issue of ownership of such properties in the Regional Trial Court in Quezon City and to inform the Court of the commencement thereof by any of them as soon as possible. The administrator is hereby directed to verify and check carefully on whether other properties, particularly the real properties allegedly situated in Montalban, Rizal; in Marikina, Metro Manila (near Boys Town); and in Bulacan, otherwise referred to as the Hi-Cement property truly pertained to the estate; to determine their present condition and the status of their ownership; and to render a report thereon in writing within thirty (30) days from receipt of this Order. The motion demanding for accounting to be done by oppositor Oscar Reyes is hereby denied for being unwarranted, except whatever incomes he might have received from Sonny Bernardo, which he is hereby directed to turn over to the administrator within thirty (30) days from finality of this Order. A motion for reconsideration was filed by Oscar Reyes which was denied in an Order dated May 30, 1994. [17] He then filed his appeal with the respondent Court of Appeals. While the appeal was pending, Oscar died and he was substituted by his heirs, herein petitioners.

On May 6, 1999, the respondent Court issued its assailed decision which affirmed the probate courts order. It ruled that the probate courts order categorically stated that the inclusion of the subject properties in the inventory of the estate of the deceased Ismael Reyes is provisional in character and shall be without prejudice to the outcome of any action to be brought hereafter in the proper court on the issue of ownership of the properties; that the provisional character of the inclusion of the contested p roperties in the inventory as stressed in the order is within the jurisdiction of intestate court. It further stated that although the general rule that question of title to property cannot be passed upon in the probate court admits of exceptions, i.e. if the claimant and all other parties having legal interest in the property consent, expressly or impliedly, to the submission of the question to the probate court for adjudication, such has no application in the instant case since petitioner-appellee and oppositor-appellant are not the only parties with legal interest in the subject property as they are not the only heirs of the decedent; that it was never shown that all parties interested in the subject property or all the heirs of the decedent consented to the submission of the question of ownership to the intestate court. Petitioners filed their motion for reconsideration which was denied in a resolution dated July 28, 1999. Hence this petition for review on certiorari alleging that the respondent Court erred (1) in ruling that the court a quo correctly included one half (1/2) of the Arayat properties covered by TCT Nos. 4983 and 3598 (39303) in the inventory of the estate of the deceased Ismael Reyes (2) in upholding that the court a quo has no jurisdiction to determine the issue of ownership. Petitioners argue that a probate courts jurisdiction is not limited to the determination of who the heirs are and what shares are due them as regards the estate of a deceased person since the probate court has the power and competence to determine whether a property should be excluded from the inventory of the estate or not, thus the Court a quo committed a reversible error when it included the Arayat properties in the inventory of the estate of Ismael Reyes despite the overwhelming evidence presented by petitioner-oppositor Oscar Reyes proving his claim of ownership. Petitioners contend that their claim of ownership over the Arayat properties as testified to by their predecessor Oscar Reyes was based on two (2) grounds, to wit (1) his redemption of the Arayat properties and (2) the abandonment of the properties by his co-heirs; that his act of redeeming the properties from the BIR in 1976 and therefter from the City Treasurer of Quezon City using his own funds have the effect of vesting ownership to him. Petitioners claim that private respondent is already barred from claiming the Arayat properties since he only filed this petition 16 years after the death of Ismael Reyes and after the prices of the real properties in Cubao have already escalated tremendously. We find no merit in this argument. The jurisdiction of the probate court merely relates to matters having to do with the settlement of the estate and the probate of wills of deceased persons, and the appointment and removal of administrators, executors, guardians and trustees. [18] The question of ownership is as a rule, an extraneous matter which the Probate Court cannot resolve with finality. [19] Thus, for the purpose of determining whether a certain property should or should not be included in the inventory of estate proceeding, the probate court may pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title.[20] We find that the respondent Court did not err in affirming the provisional inclusion of the subject properties to the estate of the deceased Ismael Reyes without prejudice to the outcome of any action to be brought thereafter in the proper court on the issue of ownership considering that the subject properties are still titled under the torrens system in the names of spouses Ismael and Felisa Revita Reyes which under the law is endowed with incontestability until after it has been set aside in the manner indicated in the law.[21] The declaration of the provisional character of the inclusion of the subject properties in the inventory as stressed in the order is within the jurisdiction of the Probate Court. Petitioners next claim that as an exception to the rule that the probate court is of limited jurisdiction, the court has jurisdiction to resolve the issue of ownership when the parties interested are all heirs of the deceased and they submitted the question of title to the property, without prejudice to third persons. Petitioners allege that the parties before the probate court were all the heirs of deceased Ismael Reyes and they were allowed to present evidence proving ownership over the subject properties, thus private respondent cannot argue that he did not in any way consent to the submission of the issue of ownership to the probate court as the records of this case is replete with evidence that he presented evidence in an attempt to prove ownership of the subject properties. We are not persuaded. Settled is the rule that the Regional Trial Court acting as a probate court exercises but limited jurisdiction, thus it has no power to take cognizance of and determine the issue of title to property claimed by a third person adversely to the decedent, unless the claimant and all other parties having legal interest in the property consent, expressly or impliedly, to the submission of the question to the Probate Court for adjudgment, or the interests of third persons are not thereby prejudiced.[22] The facts obtaining in this case, however, do not call for the application of the exception to the rule. It bears stress that the purpose why the probate court allowed the introduction of evidence on ownership was for the sole purpose of determining whether the subject properties should be included in the inventory which is within the probate courts compete nce. Thus, when private respondent Cesar Reyes was appointed as administrator of the properties in the courts Order dated July 26, 1989, he was ordered to submit a true inventory and appraisal of the real and personal properties of the estate which may come into his possession or knowledge which private respondent complied with. However, petitioner Oscar Reyes submitted his objection to the inventory on the ground that it included the subject properties which had been forfeited in favor of the government on April 21, 1975 and which he subsequently redeemed on August 19, 1976. The Court resolved the opposition as follows: At the hearing today of the pending incidents, it was agreed that the said incidents could not be resolved without introduction of evidence. Accordingly, the hearing on the inventory of real and personal properties is hereby set on April 24, 1990 at 10:00 A.M. at which date and time the petitioner/administrator shall be required to present evidence to establish that the properties stated in the inventory belong to the estate of Ismael Reyes. The oppositor shall thereafter adduce his evidence in support of his objection to the inclusion of certain properties of the estates in the inventory.

Notably, the Probate Court stated, from the start of the hearing, that the hearing was for the merits of accounting and inventory, thus it had jurisdiction to hear the opposition of Oscar Reyes to the inventory as well as the respective evidence of the parties to determine for purposes of inventory alone if they should be included therein or excluded therefrom. In fact, the probate court in its Order stated that for resolution is the matter of the inventory of the estate, mainly to consider what properti es should be included in the inventory and what sho uld not be included. There was nothing on record that both parties submitted the issue of ownership for its final resolution. Thus the respondent Court did not err in ruling that the trial court has no jurisdiction to pass upon the issue of ownership conclusively. In fact, the probate court, aware of its limited jurisdiction declared that its determination of the ownership was merely provisional and suggested that either the administrator or the widow Felisa Reyes may commence the proper action in the Regional Trial Court. Moreover, the court admitted that it was not competent to pass upon the ownership of the subject properties, thus: Although the testimony of the oppositor should have greater persuasive value than that of the petitioner/administrator, mainly because it agrees closely with the recitals of facts found in the several public documents submitted as evidence in this case and is corroborated to the greatest extent by the fact that the properties were, indeed, abandoned in his possession since 1975 until the present, his alleged ownership of the Arayat Street properties cannot still be sustained in a manner which would warrant their exclusion from the administrators inventory. To begin with, there are portions in the records which show that the oppositor himself was somehow uncertain about his rights on the properties and the basis therefor. During his cross-examination (tsn, Oct. 4, 1991), he gave the following statements: xx xx xx (Atty. Habitan) Q: And if we will add the other taxes you have paid, (you) are now claiming to be the owner of the Arayat property because you have paid all these taxes? A: The amounts I have paid and all the expenses I have and if I had not paid all these amounts the property in question would have been lost, sir. Q: So, in effect, you are now claiming ownership over the property, I want a categorical answer, Mr. Witness? A: If I am going to sum up all these expenses, my share in the Hi-Cement property, my share in the Bulacan property, the amount of the property in Cubao is small and also all my sufferings because of the property in Cubao, this cannot be paid in terms of money, sir. (tsn, Oct. 4, 1991, pp. 10-12) On re-direct examination (tsn, Sept. 18, 1992), he clarified his statements as follows: xx xx xx (Atty, Javellana) Q: Mr. Reyes, on cross-examination, you were asked by the petitioners counsel whether because you had paid the BIR P17,872.44 you are now claiming to be the owner of the property in Arayat Street to which you answered no, will you explain your answer? A: When I paid almost P18,000.00, it does not mean that I claim the property already; on the contrary, I have my own reasons to claim it now on other conditions which are the following : number one, there was a levy by the BIR on the property, it was forfeited due to delinquency of real estate taxes; number two, for abandonment, when my mother, brother(s) and sisters left the property, they told me it is my problem and I should take care of it. Number three, the disposition, my mother, my brothers and sisters sold the property of my father, the Hi-Cement and the property in Visayas Street without giving my share. And another thing I have to sell my own property, my own assets so that I can redeem from the BIR the Arayat property and which I did with my personal funds, and number five, nobody helped me in my problems regarding those properties, I was alone and so I felt that the property in Arayat is mine. xx xx xx (tsn, Sept. 18, 1992, pp. 2-3) Notwithstanding his clarifying statements on redirect examination, the impression of the Court on the issue is not entirely favorable to him. Apart from the absence of a specific document of transfer, the circumstances and factors he gave may not suffice in and by themselves to convey or transfer title, for, at best, they may only be the basis of such transfer. They may be considered as proof of the intention to dispose in his favor or as evidence of a set off among the heirs, which seems to be what he has in mind. There might also be substance in his assertions about the abandonment in his favor, which, if raised in the proper action, could constitute either prescription or laches. It is hardly needed to stress, therefore, that more than these are required to predicate the exclusion of the properties from the inventory. Another obtrusive reality stands out to invite notice: the BIR levy was only made on the property covered in TCT 4983 and did not include the property covered in TCT 3598 (39303) . This somehow detracts from the logic of the oppositors assertion of ownership of the entire Arayat Street properties; even if his assertion is valid and true, it can encompass, at most, only the property subject of the BIRs levy and declaration of forfeiture (i.e., TCT 4983), not the property covered by TCT 3598 (3930 3). These pronouncements should not by any means diminish or deprive the oppositor of whatever rights or properties he believes or considers to be rightfully his. Although the circumstances and factors he has given to the Court herein may have legal consequences that could have defeated opposing-claims and rendered oppositors claim on the properties unassailable, this Courts competence to adjudicate thus in this proceedings is clearly non-existent. In Baybayan vs. Aquino (149 SCRA 186), it was held that the question of ownership of a property alleged to be part of the estate must be submitted to the Regional Trial Court in the exercise of its general jurisdiction. This ruling then, cannot be a final adjudication on the present and existing legal ownership of the properties. Whatever is declared herein ought not to preclude oppositor from prosecuting an ordinary action for the purpose of having his claims or rights established over the properties. If he still cares hereafter to prosecute such claim of ownership adversely to the estate and the apparent co-owner, his mother Felisa. As stated in Valera, et al. vs. Judge Inserto, et al. (149 SCRA 533) , this Court, acting as a probate court, exercises but limited jurisdiction; accordingly, its determination that property should be included in the inventory

or not is within its probate jurisdiction, but such determination is only provisional in character, not conclusive, and is subject to the final decision in a separate action that may be instituted by the parties. xx xx xx The aforecited findings clarify that there were several reasons for having the issue of ownership ventilated elsewhere. Apart from the fact that only one-half of the two lots known as the Arayat property (i.e., the half that could pertain to the estate) could be settled herein, there was the realization that the evidence adduced so far (including that bearing on the oppositors basis for excluding from the estate the property) was inadequate or otherwise inconclusive. A practical way of looking at the problem is that this Court, sitting herein as an intestate court, does not consider itself competent to rule on the ownership of the entire Arayat property. Finally, anent private respondents allegation that the instant petition was filed one day late, hence should be dismissed, we find the same to be devoid of merit. Petitioners received copy of the decision denying their motion for reconsideration on August 13, 1999, thus they have until August 28, 1999 within which to file petition for review. Petitioners filed their motion for extension on August 27, 1999 praying for 30 days extension from August 28, 1999 or until September 27, 1999 to file their petition whic h this Court granted. Petitioners filed their petition on September 27, 1999, which is within the period given by the Court. WHEREFORE, premises considered, the petition for review is DENIED. SO ORDERED. Melo, (Chairman), Vitug, and Panganiban, JJ., concur.

[G.R. No. L-7644. November 27, 1956.] HENRY LITAM, ETC., ET AL., Plaintiffs-Appellants, vs. REMEDIOS R. ESPIRITU, as guardian of the incompetent MARCOSA RIVERA, and ARMINIO RIVERA, Defendants-Appellees. [G.R. No. L-7645. November 27, 1956] IN THE MATTER OF THE INTESTATE OF THE DECEASED RAFAEL LITAM. GREGORIO DY TAM,PetitionerAppellant, vs. REMEDIOS R. ESPIRITU, in her capacity as judicial guardian of the incompetent MARCOSA RIVERA, counter-Petitioner, ARMINIO RIVERA, administrator-Appellee. DECISION CONCEPCION, J.: This is an appeal from a decision of the Court of First Instance of Rizal in the above entitled case, which were jointly tried. On May 21, 1952, Gregorio Dy Tam instituted Special Proceeding No. 1537 of said court, entitled In the matter of the Intesta te Estate of the Deceased Rafael Litam. The petition therein filed, dated April 24, 1952, states that Petitioner is the son of Rafael Litam, who died in Manila on January 10, 1951; that the deceased was survived by: Li Hong Hap 40 years Li Ho 37 years Gregorio Dy Tam 33 years Henry Litam alias Dy Bun Pho 29 years Beatriz Lee Tam alias Lee Giak Ian 27 years Elisa Lee Tam alias Lee Giok Bee 25 years William Litam alias Li Bun Hua 23 years Luis Litam alias Li Bun Lin 22 years that the foregoing children of the decedent by a marriage celebrated in China in 1911 with Sia Khin, now deceased; that after the death of Rafael Litam, Petitioner and his co-heirs came to know that the decedent had, during the subsistence of said marriage with Sia Khin, contracted in 1922 in the Philippines another marriage with Marcosa Rivera, Filipino citizen; that the decedent left as his property among others, his one-half (1/2) share valued at P65,000 in the purported conjugal properties between him and Marcosa Rivera, which partnership consisted of the following real property acquired during the marriage between him and Marcosa Rivera, to wit: (1) Three (3) parcels of land covered by Transfer Certificate of Title No. 1228 of the Registry of Deeds of the province of Pampanga: (2) One (1) parcel of land covered by Transfer Certificate of Title No. 26011 of the Registry of Deeds of the province of Bulacan. and that the decedent had left neither a will nor debt. Petitioner prayed, therefore, that, after appropriate proceedings, letters of administration be issued to Marcosa Rivera, the surviving spouse of the decedent. Soon thereafter, Marcosa Rivera filed a counter- petition: (1) substantially denying the alleged marriage of the decedent to Sia Khin, as well as the alleged filiation of the persons named in the petition; (2) asserting that the properties described herein are her paraphernal properties, and that the decedent had left unpaid debts, and certain properties in Bulan and Casiguran, Sorsogon, and in Virac, Catanduanes, apart from shares of stock in a private corporation known by the name of Litam Co., Inc.; and (3) praying that her nephew, Arminio Rivera, be appointed administrator of the intestate estate of the deceased. In due course, the court granted this petition and letters of administration were issued to Arminio Rivera, who assumed his duties as such, and, later, submitted an inventory of the alleged estate of Rafael Litam. Inasmuch as said inventory did not include the properties mentioned in the petition, dated April 24, 1952, of Gregorio Dy Tam, the latter filed, on November 29, 1952, a motion for the removal of Rivera as administrator of the aforementioned estate. This led to a number of incidents hinging on the question whether said properties belong in common to the decedent and Marcosa Rivera or to the latter exclusively. Meanwhile, Remedios R. Espiritu was appointed, in Special Proceeding No. 1709 of the Court of First Instance of Rizal, guardian of Marcosa Rivera, who had been declared incompetent. Thereafter, or on April 20, 1953, Gregorio Dy Tam and his alleged brothers and sisters aforementioned, filed the complaint in Civil Case No. 2071 of the same court, against Remedios R. Espiritu, as guardian of Marcosa Rivera, and Arminio Rivera. In said complaint, Plaintiffstherein reproduced substantially the allegations made in the aforementioned petition of Gregorio Dy Tam dated April 24. 1952, except that the properties acquired during the existence of marriage between Rafael Litam and Marcosa Rivera and/or with their joint efforts during the time that they lived as husband and wife were said to be more than those specified in said petition, namely: (1) 3 parcels of land situated in the Municipality of Macabebe, Province of Pampanga, covered by Transfer Certificate of Title No. 1228 of the Registry of Deeds for the Province of Pampanga, issued on July 29, 1947; (2) 2 Parcels of land, together with all buildings and improvements thereon except those expressly noted in the title as belonging to other persons, situated in the Municipality of Navotas, Province of Rizal, covered by Transfer Certificate of Title No. 35836 of the Registry of Deeds for the Province of Rizal, issued on October 4, 1938; (3) 1 parcel of land situated in the Municipality of Malabon, Province of Rizal, covered by Transfer Certificate of Title No. 23248 of the Registry of Deeds for the Province of Rizal, issued on June 12, 1933; (4) 1 parcel of land situated in Barrio of Kay-Badia, Municipality of Obando, Province of Bulacan, covered by Transfer Certificate of Title No. 21809 of the Registry of Deeds for the Province of Bulacan, issued on May 25, 1939; (5) 1 parcel of land (plan psu-93067, swo-16049) situated in Barrio of Quibadia, Municipality of Obando, Province of Bulacan, covered by Transfer Certificate of Title No. 26011 of the Registry of Deeds for the Province of Bulacan, issued on April 9, 1943; Other properties are located in Bataan province. All properties total an assessed value of approximately P150,000.00. In said complaint, Plaintiffs prayed that the judgment be rendered:

(1) declaring the aforesaid properties as belonging to the conjugal partnership or tenancy in common which existed between the deceased Rafael Litam and the incompetent Marcosa Rivera; (2) ordering the Defendants to deliver the aforesaid properties to the administration of the estate of the deceased Rafael Litam (Rule 75, section 2, Rules of Court); (3) ordering the said Defendants further to render an accounting of the fruits they collected from the aforesaid properties and to deliver the same to the administration of the estate of the deceased Rafael Litam; (4) ordering the said Defendants to pay the administration of the estate of the deceased Rafael Litam damages in double the value of the fruits mentioned in the preceding paragraph which they embezzled; and (5) ordering the Defendants to pay the costs. The Plaintiffs further pray for such other remedy as the Court may deem just and equitable in the premises. In her answer to the complaint, Marcosa Rivera reiterated, in effect, the allegations in her counter-petition, dated July 12, 1952, in Special Proceeding No. 1537, and set up some affirmative and special defenses, as well as a counter-claim for attorneys fees and damages in the aggregate sum of P110,000.00. Owning to the identity of the issue raised in said Civil Case No. 2071 and in the aforementioned incidents in Special Proceeding No. 1537, both were jointly heard. Later on, the court rendered a decision. (1) Dismissing Civil Case No. 2071, with costs against the Plaintiffs; (2) Sentencing the Plaintiff in Civil Case No. 2071, under the Defendants counterclaim, to pay jointly and severally each of the Defendants the sum of P5,000.00 as actual damages and P25,000.00 as moral damages; (3) Declaring that the properties in question, namely: the fishponds, consisting of three parcels, situated in Macabebe, Pampanga, with Transfer certificate of Title No. 1228 of the land records of Pampanga, one-half undivided portion of the fishponds, consisting of two parcels, situated in Navotas, Rizal, covered by Transfer Certificate of Title No. 35836, the parcel of land with the improvements thereon situated in Malabon, Rizal, covered by Transfer Certificate of Title No. 23248, both of the land records of Rizal, and the fishponds, consisting of two parcels, situated in Obando, Bulacan, covered by Transfer Certificates of Title Nos. 21809 and 26011, both of the land records of Bulacan, are the exclusive, separate and paraphernal properties of Marcosa Rivera; and (4) Declaring that the Plaintiffs in Civil Case No. 2071 (who are the same persons alleged to be children of Rafael Litam in the petition, dated April 24, 1952, filed by the Petitioner in Sp. Proc. No. 1537) are not the children of the deceased Rafael Litam, and that his only heir is his surviving wife, Marcosa Rivera. The two (2) Cases are now before us on appeal taken by the Petitioner in Special Proceeding No. 1537 and the Plaintiffs in Civil Case No. 2071. The issues for determination are: (1) AreAppellants the legitimate children of Rafael Litam? (2) Is Marcosa Rivera the exclusive owner of the properties in question, or do the same constitute a common property of her and the decedent? The first issue hinges on whether Rafael Litam and Sia Khin were married in 1911, and whether Rafael Litam is the father of Appellants herein. In this connection, the lower court had the following to say: cralaw the evidence weikhs very heavily in favor of the theory of the Defendants in Civil Case No. 2071 to the effect that the said deceased Rafael Litam was not married to Sia Khin and that Plaintiffs, are not the children of the said decedent. The Plaintiffs in Civil Case No. 2071 and thePetitioner in Sp. Proc. No. 1537 have utterly failed to prove their alleged status as children of Rafael Litam by a marriage with Sia Khin. It appears from the evidence presented by the Defendants in civil Case No. 2071 and the administrator and the counterPetitioner in Sp. Proc. No. 1537 that there was no such marriage between the deceased Rafael Litam and Sia Khin and that the Plaintiffs named in Civil Case No. 2071 are not children of said deceased. The various official and public documents executed by Rafael Litam himself convincingly show that he had not contracted any marriage with any person other than Marcosa Rivera, and that he had no child. In the marriage certificate, (Exhibit 55) it was clearly stated that he was single when he married Marcosa Rivera on June 10, 1922. In the sworn application for alien certificate of registration dated July 7, 1950 (Exhibit 1), Rafael Litam unequivocably declared under oath that he had no child. In the several other documents executed by him and presented in evidence, (Exhibits 19, 21, 22, 23, 46 and 46-A) Rafael Litam had consistently referred to Marcosa Rivera alone as his wife; che had never mentioned of Sia Khin as his wife, or of his alleged children. The witnesses presented by the Defendants in Civil Case No. 2071 and the administrator and counter Petitioner in Sp. Proc. No. 1537 positively testified to the effect that they know that Rafael Litam did not have any child, nor was he married with Sia Khin. An impartial and disinterested witness, Felipe Cruz, likewise testified that he has known Rafael Litam even before his marriage with Marcosa Rivera and that said Rafael Litam did not have any child. On the other hand, the Plaintiffs in Civil Case No. 2071 and the Petitioner in Sp. Proc. No. 1537 presented in support of their theory the testimony of their lone witness, Luis Litam, and certain documentary evidence. It is noteworthy that the said Plaintiffs and said Petitioner did not present in evidence the marriage certificate of Rafael Litam and Sia Khin, which in the opinion of the Court, is the competent and best evidence of the alleged marriage between them. No explanation has been given for the non-presentation of said marriage certificate, nor has there been any showing of its loss. Neither have said Plaintiffs and said Petitioner presented any competent secondary evidence of the supposed marriage. The testimony of the lone witness, Luis Litam, cannot be given any credence and value at all. His testimony is mostly hearsa y, as according to him, he was merely informed by Rafael Litam of the latters supposed marriage with Sia Khin. His testimony is uncorroborated. The court noticed that the said witness was only 22 years old when he testified, and it appears in the petition filed by the Petitioner in Sp. Proc. No. 1537 that said witness is the youngest of all the alleged eight children of Rafael Litam. The Court is at a loss to understand why one or some of the older alleged children of Rafael Litam were not presented as witnesses in view of the unreliable testimony of Luis Litam, and considering that older persons are better qualified to testify on the matters sought to be proved which allegedly happened a long time ago. The birth certificate presented by the Plaintiff in Civil Case No. 2071 and Petitioner in Sp. Proc. No. 1537 cannot be given even little consideration, because the name of the father of the children appearing therein is not Rafael Litam, but different persons. It is very significant to note that the names of the father of the persons appearing in said birth certificates are Dy Tham, Li Tam, Lee

Tham, Rafael Dy Tam, and that said persons were born in different places, some in Amoy, China, another Fukien, China, and the other in Limtao, China. It also appears in said birth certificates that the childrens mothers named therein are different, s ome being Sia Khim, others Sia Quien, the other Sia Khun, and still another Sia Kian. These documents do not establish the identity of the deceased Rafael Litam and the persons named therein as father. Besides, it does not appear in the said certificates of birth that Rafael Litam had in any manner intervened in the preparation and filing thereof. The other documentary evidence presented by the said Plaintiffs and Petitioner are entirely immaterial and highly insufficient to prove the alleged marriage between the deceased Rafael Litam and Sia Khin and the alleged statue of the Plaintiffs as children of said decedent. It is, therefore, the finding of this Court that the Plaintiffs named in Civil Case No. 2071 are not heirs of the said decedent, his only heir being his surviving wife, Marcosa Rivera. (Emphasis ours.) The findings of fact thus made in the decision appealed from are borne out by the records and the conclusion drawn from said facts is, to our mind, substantially correct. Appellants evidence on this point consists of the testimony of Appellant Li Bun Lin, who said that he is, also known as Luis Litam; that his co-Appellants are his brothers and sisters; that their parents are the decedent and Sia Khin, who were married in China in 1911; and that Sia Khin died in Manila during the Japanese occupation. He likewise, identified several pictures, marked Exhibits I to S, which were claimed to be family portraits, but the lower court rejected their admission in evidence. Although we agree with herein Appellants that this was an error, it is clear to us that said pictures and the testimony of Luis Litam, as well as the other evidence adverted to in the above-quoted portion of the decision appealed from, are far from sufficient to outweigh, or even offset, the evidence in favor of the Appellees. It should be noted that the decedent had admittedly married Marcosa Rivera in 1922. In the very petition of Appellant Gregorio Dy Tam, in Special Proceeding No. 1537, dated April 24, 1952, he alleged that Marcosa Rivera is the surv iving spouse of the decedent. In their complaint in Civil Case No. 2071, Appellants specifically admitted and averred the existence of the marriage between said Rafael Litam and Marcosa Rivera which would have been void ab initio, and, hence, inexistent legally, if Appellants pretense were true or they believed it to be so and that they had lived as husband and wife. Again, although Gregorio Dy Tam, asserted, in his aforementioned petition, that he and his co-heirs came to know about the marriage of the decedent and Marcosa Rivera after the death of Rafael Litam, the very testimony of Li Bun Lin, as witness for the Appellants, show, beyond doubt, that said Appellants knew, during the lifetime of Rafael Litam that he and Marcosa Rivera were living in Malabon, Rizal, openly and publicly, as husband and wife, and regarded her as his lawful wife. Indeed, in the course of his testimony, said Li Bun Lin alluded to her as his mother. In other words, aside from the circumstance that the wedding an d marital life of Marcosa Rivera and Rafael Litam is undisputed, it is, also, an established fact that they had the general reputation of being legally married and were so regarded by the community and by Appellants herein, during the lifetime of Rafael Litam. Upon the other hand, Appellants maintain, in effect, that Rafael Litam was guilty of the crime of bigamy; that he had, likewise, willfully and maliciously falsified public and official documents; and that, although Appellants and Sia Khin were living in Manila and Marcosa Rivera whomAppellants knew resided only a few kilometers away, in Malabon, Rizal where Rafael Litam returned daily, after attending to his business in Manila, the decedent had succeeded, for about thirty (30) years, in keeping each party in complete ignorance of the nature of his alleged relations with the other. Apart from the highly improbable nature of the last part of Appellants pretense, it is obvious that the same cannot be sustained unless the evidence in support thereof is of the strongest possible kind, not only because it entails the commission by Rafael Litam of grave criminal offenses which are derogatory to his honor, but, also, because death has sealed his lips, thus depriving him of the most effective means of defense. The proof for Appellantsherein does not satisfy such requirement. As regards the title to the properties in dispute, the evidence thereon was analyzed by the lower court in the following language: It has been established by the evidence that the proper ties in question were bought by Marcosa Rivera with her separate and exclusive money. The fishponds situated in Obando, Bulacan, covered by Transfer Certificate of Title Nos. 21809 and 26011, the one-half (1/2) undivided portion of the fishponds situated in Navotas, Rizal with Transfer Certificate of Title No. 35836, and the property situated in Hulong-Duhat, Malabon, Rizal, with Transfer Certificate of Title No. 23248 were all purchased by Marcosa Rivera with the money she earned and accumulated while she was still single; while the fishponds situated in Macabebe, Pampanga with Transfer Certificate of Title No. 1228 were purchased by her with the money she inherited from her late sister, Rafaela Rivera and with the money she received from the proceeds of the sale of the pieces of jewelry she inherited from her father Eduardo Rivera and her sister Rafaela Rivera. The properties in question, having been bought by Marcosa Rivera, although during her marriage with Rafael Litam, with her exclusive and separate money, said properties are undeniably her paraphernal properties. (Art. 1396, Spanish Civil Code, which is the same as Art. 148 of the Civil Code of the Phil.) Great importance should be given to the documentary evidence, vis: Exhibits 21, 22, 23, 19, 46 and 46-A, presented by the Defendants, in Civil Case No. 2071 and the administrator and counter- Petitioner in Sp. Proc. No. 1537, which prove beyond peradventure of any doubt that the properties in question are the paraphernal properties of Marcosa Rivera. In Exhibit 21, Rafael Litam unequivocably declared under his oath that the money paid by Marcosa Rivera for the fishponds in Obando, Bulacan was her exclusive and separate money which was earned by her while she was still single. In Exhibits 22 and 23, both dated June 16, 1947, same Rafael Litam, also under oath, acknowledge the fact that the sums of P13,000.00 and P10,000.00 loaned by Marcosa Rivera to the spouses Catalino Pascual and Juliana Pascual, and to Juliana Pascual, respectively, are the separate and exclusive money of Marcosa Rivera, in which money Rafael Litam had no interest whatsoever. In Exhibit 19, same Rafael Litam acknowledged the fact that he had obtained, before the outbreak of the second world war, from Marcosa Rivera the sum of P135,000.00 which belongs exclusively to the latter, and that after the liberation, or more specifically, on January 4, 1946, he stole from Marcosa Rivera the further sum of P62,000.00, also belonging exclusively to the latter, which amounts, totalling P197,000.00, exclusive of interests, have not, according to the evidence, been paid to her up to the present. In Exhibits 46 and 46A, it was acknowledged by Rafael Litam that he had not given any money to his wife, Marcosa Rivera, and that they have actually adopted a system of separation of property, each of them not having any interest or participation whatsoever in the property of the

other. These declarations and admission of fact made by Rafael Litam against his interest are binding upon him, his heirs and successors in interests and third persons as well. (Secs. 7 & 29, Rule 123, Rules of Court). The finding of this Court that the properties in question are paraphernal properties of Marcosa Rivera, having been bought b y her with her separate and exclusive money, is further strengthened by the fact that, as it is clearly disclosed by the evidence when Marcosa Rivera married Rafael Litam in 1922, she was already rich, she having already earned and saved money as consignataria while she was still single. It also appears that she was born of a rich family, her father, Eduardo Rivera, being the owner of fishponds, commercial and residential lands and buildings, (Exhibits 5 to 18, inclusive), with an assessed value of around P150,000.00 (Exhibits 25 and 42, inclusive), now worth approximately a million pesos, and most of which properties as may be seen from the certificates of title were acquired by him way back in the years 1916 and 1919. When Eduardo Rivera died on February 5, 1942, his cash and jewelry were inherited by his eldest daughter, Rafaela Rivera, and when the latter died single on July 2, 1943, Marcosa Rivera inherited her cash amounting to P150,000.00, Philippine currency, and and her pieces of jewelry. It is with this amount and with the proceeds of the sale of some of said pieces of jewelry that Marcosa Rivera purchased the fishponds in question, situated in Macabebe, Pampanga. On the other hand, it appears from the evidence that when Rafael Litam was on June 10, 1922, married to Marcosa Rivera, he was poor. He had to borrow from Marcosa Rivera, the sum of P135,000.00 belonging exclusively to her before the outbreak of the war, and to steal from her further sum of P62,000.00 after the liberation (Exhibit 10). The said amounts totalling P197,000.00, exclusive of the stipulated interests, according to the evidence, have not been paid to Marcosa Rivera up to the present. Rafael Litam did not contribute any amount of money or labor to the properties in question, as he and Marcosa Rivera maintained an absolute separation of property (Exhibits 46 and 46-A). Besides, during his lifetime he used to go his office in Manila everyday. Another circumstance which clearly proves that the properties in question belong exclusively to Marcosa Rivera is the established fact that before she became incompetent sometime in the early part of the year, 1953, she had been administering said properties, to the exclusion of Rafael Litam. In fact, as may be seen from the very documentary evidence (Exhibit EE, same as Nxh. 50) presented by the Plaintiffs in Civil Case No. 2071 themselves and Petitioner in Sp. Proc. No. 1537, she alone leased the properties in question, situated in Macabebe, Pampanga, and the corresponding lease contract, dated July 13, 1948 was signed by her as lessor and by Rafael Suarez, Jr. as lessees. Furthermore, the properties in question have been declared in the name of Marcosa Rivera alone, and she alone pays the real estate taxes due thereon. (Exhibits 43, 44 & 45.) Further strong proofs that the propertie s in question are the paraphernal properties of Marcosa Rivera, are the very Torrens Titles covering said properties. All the said properties are registered in the name of Marcosa Rivera, married to Rafael Litam. Th is circumstance indicates that the properties in question belong to the registered owner, Marcosa Rivera, as her paraphernal properties, for if they were conjugal, the titles covering the same should have been issued in the names of Rafael Litam and Marcosa Rivera. The words married to Rafael Litam written after the name of Marcosa Rivera, in each of the above mentioned titles are merely descriptive of the civil status of Marcosa Rivera, the registered owner of the properties covered by said titles. On the other hand, the evidence presented b y the Plaintiffs in Civil Case No. 2071 and Petitionerin Sp. Proc. No. 1537 in support of their contention that the properties in question are conjugal is, in the mind of the Court, very weak, unreliable, and mostly incompetent, and cannot overcome the clear, convincing and almost conclusive proofs presented by the opposite party. Scant or no consideration at all could be given by the Court to the immaterial, incompetent and unbelievable testimonies of the witnesses presented by the said Plaintiffs and Petitioners. The disputable presumption of law that the properties acquired during the marriage are conjugal properties, upon which legal presumption said Plaintiffs and Petitioner mainly rely has been decisively overcome by the overwhelming preponderance of evidence adduced in these cases that the properties in question are the paraphernal properties of Marcosa Rivera. (Emphasis ours.) Appellants counsel assail the decision appealed from upon the ground that the lower court had been partial to the Appellees and had not accorded to the Appellants a fair and just hearing. As above pointed out, His Honor the trial Judge could have been, and should have been, more liberal in the reception of evidence. Appellants witnesses (Li Bun Lin, Dominador Gadi, Benigno Musni and Rafael B. Suarez) should have been allowed to testify on the alleged title of Rafael Litam to certain properties and on his alleged reasons for the language used in the public and official documents relied upon by the Appellees. However, it is apparent to us that said evidence cannot affect the decision in these cases. The evidenciary value of the testimony of said witnesses would have depended mainly upon their individual appraisal of certain facts, upon their respective inferences therefrom and their biases or view points, and upon a number of other factors affecting their credibility. At best, said testimony could not possibly prevail over the repeated admissions made by the decedent against his own interest in Exhibits 19, 21, 22, 23, 46 and 46-A (adverted to in the abovequoted portion of the decision appealed from), which admissions are corroborated by the fact that the deceased father of Marcosa Rivera was well to do; that aside from her share in his estate, she had, likewise, inherited from a sister who died single and without issue; that the lands in dispute were registered, and some were, also, leased, in her name, instead of hers and that of the decedent; and that the latter lived in her house in Malabon, Rizal. Appellants contend that the transactions covered by said Exhibits 19, 21 to 23 and 46 and 46-A, as well as by the other deeds referred to in the decision appealed from, were caused to be made in the name of Marcosa Rivera, to the exclusion of her husband, in order to evade the constitutional provision disqualifying foreigners from the acquisition of private agricultural lands, except by succession. Apart from being based, solely, upon a surmise, without any evidentiary support, this pretense is refuted by the fact that said residential property in Hulong-Duhat, Malabon, Rizal, was acquired on April 12, 1933, or prior to the adoption of our Constitution (see Exhibits Z and AA). Her transactions subsequently thereto, merely followed, therefore, the pattern of her activities before the drafting of said fundamental law. This notwithstanding, we do not believe that Appellants should be sentenced to pay damages. The petition of Gregorio Dy Tam in Special Proceeding No. 1537 and the complaint in Civil Case No. 2071 contain nothing derogatory to the good name or reputation of the herein Appellees. On the contrary, it may be surmised from said pleadings that Marcosa Rivera had no knowledge of the alleged previous marriage of the decedent to Sia Khin. Moreover, the records do not show that Appellants have acted in bad faith.

Likewise, we are of the opinion that the lower court should not have declared, in the decision appealed from, that Marcosa Rivera is the only heir of the decedent, for such declaration is improper in Civil Case No. 2071, it being within the exclusive competence of the court in Special Proceeding No. 1537, in which it is not as yet, in issue, and, will not be, ordinarily, in issue until the presentation of the project of partition. Wherefore, with the elimination of the award for damages in favor of the herein Appellees, and of said declaration of heirship, the decision appealed from is hereby affirmed in all other respects, with costs against the Appellants. It is SO ORDERED. Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Reyes, J. B. L., Endencia and Felix, JJ., concur.