Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-29759 May 18, 1989
NATIVIDAD DEL ROSARIO VDA. DE ALBERTO, in her individual capacity and as
judicial guardian of the minors ANTONIO ALBERTO, JR. and LOURDES
ALBERTO, petitioners,
vs.
THE HON. COURT OF APPEALS and ANTONIO J. ALBERTO, JR., assisted by his mother
as his natural guardian, ANDREA JONGCO, respondents.
Taada, Carreon & Taada for petitioners.

BIDIN, J.:
This is a petition for review on certiorari of the August 31, 1968 Decision of the
Court of Appeals in CA-G.R. No. 34750-R'* entitled "Antonio J. Alberto, Jr., thru his
mother as his natural guardian, Andrea Jongco, plaintiff-appellant, vs. Natividad del
Rosario Vda. de Alberto, in her individual capacity and as judicial guardian of the
minors, Lourdes Alberto and Antonio Alberto, Jr., defendants-appellees", reversing
the August 10, 1964. Decision of the then Court of First Instance of Manila.
The case originated from a complaint for acknowledgment and partition filed on
September 8, 1960 with the then Court of First Instance of Manila by the herein
private respondent, a minor, 18 years of age, assisted by his mother, Andrea
Jongco, as his natural guardian, against the herein petitioners (Record on Appeal,
pp. 2-8). In the said Complaint, private respondent alleged, in substance, that in
1941 his alleged father, Antonio C. Alberto, and his mother, Andrea Jongco, lived
together as husband and wife and as a result of which, he was born on September
10, 1942; that during the time that his alleged father and mother lived together as
husband and wife and up to the time of his birth, both were single and had no legal
impediment to marry each other; that after his birth, his father and mother
continued living together as husband and wife, his father supporting them and
introducing him to the public as his natural child; that even the family of his father
recognized him as such; that on or about the year 1944, his father and mother
separated, and subsequently, his father married herein petitioner Natividad del
Rosario; that as a result of the marriage, two (2) children were born herein
petitioners Lourdes Alberto and Antonio Alberto, Jr.; that although his father was
separated from his mother, he continued to support him and recognized him as his
own child; that on July 3, 1949, his father died, and without notice to him, petitioner
Natividad del Rosario Vda. de Alberto, on July 17, 1949, instituted before the then
Court of First Instance of Manila an intestate proceedings for the estate of his
deceased father, docketed therein as Special Proceedings No. 9092; that in the said
intestate proceedings, petitioners deliberately omitted him as one of the heirs and

for this reason they succeeded in having the properties of his deceased father
adjudicated and partitioned among themselves; that the said intestate proceedings
were terminated on November 9, 1953; that his father left properties valued at
P74,963.81, and accordingly, as a natural child of his father, he is entitles to at least
P18,000.00; and that he had absolutely no previous knowledge of the intestate
proceedings and came to know about it only recently and thereupon made a
demand from the petitioners who refused to give him his share. Accordingly, he
prays that the petitioners be ordered to acknowledge him as the natural child of
Antonio C. Alberto; that his one-fourth share be turned over to him; and that
petitioners be sentenced to pay him the sum of P5,000.00 as attorney's fee and the
cost of suit (Record on Appeals, pp. 2-9).
On September 21, 1960, petitioners filed a Motion to Dismiss on the grounds that
(1) the cause of action is barred by prior judgment; and (2) that the cause of action
is also barred by the statute of limitation (Ibid, pp. 9-19). To this motion, private
respondents filed an opposition on October 22, 1960 (Ibid, pp. 20-58).
On November 11, 1960, the trial court issued an Order denying the Motion to
Dismiss (Ibid, pp. 97-98).
On November 18, 1964, petitioners filed their Answer to the Complaint (Ibid, pp. 98102).
On November 23, 1964, private respondent filed his Answer to Defendants'
counterclaim (Ibid, pp. 102-104). On August 10, 1964, the trial court rendered a
decision in favor of the petitioners (Ibid, pp. 104- 123). The dispositive portion of the
Decision reads:
Considering all the foregoing, the Court orders the dismissal of the complaint
without pronouncement as to the costs. The counterclaim is also dismissed.
SO ORDERED.
Private respondent, not satisfied with the decision, appealed to respondent Court,
and in a Decision promulgated on August 31, 1968 (Ibid, pp. 61-75), respondent
Court reversed the decision of the trial court. The dispositive portion of the said
Decision, reads:
Wherefore, the decision appealed from is hereby reversed and set aside and
another rendered declaring plaintiff Antonio J. Alberto, Jr., an acknowledged Natural
Child of the deceased Antonio C. Alberto; declaring said plaintiff the owner pro
indiviso of one-fifth (1/5) of the hereditary estate of Antonio C. Alberto; and ordering
the defendants to deliver to plaintiff Antonio J. Alberto, Jr., his one-fifth (1/5) share in
said estate, subject to the usufructuary rights of defendants Natividad del Rosario
Vda. de Alberto pursuant to Articles 834 of the Old Civil Code, and to pay the costs
of suit.
SO ORDERED.

On September 24, 1968, petitioners filed a Motion for Reconsideration, but the same
was denied in a Resolution dated October 14, 1968 (Rollo, p. 77). Hence, the instant
petition.
This Court, in a resolution dated November 27,1968, resolved to give due course to
the petition (Rollo, p. 91).
Petitioners assigned the following errors:
I
THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE COURT OF
FIRST INSTANCE OF MANILA (TRIAL COURT) HAD NO JURISDICTION TO TAKE
COGNIZANCE OF THE INSTANT CASE.
II
ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE
COGNIZANCE OF THE INSTANT CASE, THE HONORABLE COURT OF APPEALS ERRED
IN HOLDING THAT RESPONDENT ALBERTO JR.'S CAUSE OF ACTION WAS NOT BARRED
BY PRIOR JUDGMENT.
III
ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE
COGNIZANCE OF THE INSTANT CASE, THE HONORABLE COURT OF APPEALS ERRED
IN HOLDING THAT RESPONDENT ALBERTO JR.'S CAUSE OF ACTION HAD NOT YET
PRESCRIBED.
IV
ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE
COGNIZANCE OF THE INSTANT CASE, THE HONORABLE COURT OF APPEALS ERRED
IN NOT HOLDING THAT RESPONDENT ALBERTO, JR., IN NOT BRINGING THE INSTANT
ACTION FOR AN UNREASONABLE LENGTH OF TIME, WAS GUILTY OF LACHES.
V
ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE
COGNIZANCE OF THE INSTANT CASE, THE HONORABLE COURT OF APPEALS
GROSSLY ERRED IN REVERSING THE FINDINGS OF THE TRIAL COURT BY BASING ITS
JUDGMENT ON A MISAPPREHENSION OF FACTS, GIVING CREDENCE TO THE
TESTIMONIES OF ANDREA JONGCO AND OTHER WITNESSES OF RESPONDENT
ALBERTO, JR., DESPITE THE SERIOUS CONTRADICTIONS, INCONSISTENCIES AND
IMPROBABILITIES IN THEIR TESTIMONIES AS FOUND BY THE TRIAL COURT AND
CATEGORICALLY STATED IN ITS DECISION.
VI
ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE
COGNIZANCE OF THE INSTANT CASE, THE HONORABLE COURT OF APPEALS

COMMITTED A GROSS ERROR OF LAW AND A GRAVE ABUSE OF DISCRETION WHEN

IT ARBITRARILY AND CAPRICIOUSLY DISREGARDED PETITIONERS' EVIDENCE.
VII
ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE
COGNIZANCE OF THE INSTANT CASE, THE HONORABLE COURT OF APPEALS ERRED
IN HOLDING THAT RESPONDENT ALBERTO, JR., WAS AN ACKNOWLEDGED NATURAL
CHILD OF THE DECEASED ALBERTO AND IN DECLARING HIM OWNER PROINDIVISO OF ONE-FIFTH OF THE HEREDITARY ESTATE OF THE DECEASED.
I.
It is the contention of petitioners that inasmuch as the instant case was filed on
September 8, 1960, almost five (5) years after the enactment of R.A. No. 1401
creating the Juvenile and Domestic Relations Court, the questions of paternity and
acknowledgment fall beyond the jurisdictional pale of the Court of First Instance of
Manila and instead comes within the exclusive original jurisdiction of the Juvenile
and Domestic Relations Court. While petitioners admitted that this objection to lack
of jurisdiction by the Court of First Instance of Manila over the subject matter of the
present action had not been raised either in the said court or in the Court of Appeals
and is brought to this Court for resolution for the first time on appeal, they contend
that a party may object to the jurisdiction of the court over the subject matter of the
action at any stage of the proceedings, even for the first time on appeal since lack
of jurisdiction of the court over the subject matter cannot be waived. Such
contention is untenable.
This Court has already ruled that the question of jurisdiction not raised in the trial
court cannot be raised on appeal (Dalman vs. City Court of Dipolog City, Branch II,
134 SCRA 243 [1985]). Besides, a party who had voluntarily participated in the trial,
like the herein petitioners, cannot later on raise the issue of the court's lack of
jurisdiction (Philippine National Bank vs. Intermediate Appellate Court, 143 SCRA
299 [1986]; Royales vs. Intermediate Appellate Court, 143 SCRA 470 [1984]; Tijam
vs. Sibonghanoy, 23 SCRA 29 [1968]). Moreover, there are no more Juvenile and
Domestic Relations Courts today. Under Batas Pambansa Blg. 129, the functions of
the Juvenile and Domestic Relations Court have been transferred to the Regional
Trial Courts (Divinagracia vs. Bellosillo, 143 SCRA 356 [1986]).
II.
Petitioners alleged that the intestate proceedings for the settlement of estate of the
deceased Antonio C. Alberto (Special Proceedings No. 9092) had already been
terminated on November 9, 1953 by the order of distribution directing the delivery
of the residue of the estate to the persons entitled thereto and that in said
proceedings the court also declared who are the heirs of the deceased.
Consequently, the instant case which seeks to secure the recognition of Antonio J.
Alberto, Jr. as an acknowledged natural child of the deceased in order to establish
his rights to the inheritance is already barred by prior judgment (Petitioners' Brief, p.

47) despite private respondent's insistence that he had no knowledge or notice of

the intestate proceedings of his alleged natural father (Record on Appeal, p. 21).
Petitioners' submission is impressed with merit.
This Court has invariably ruled that insolvency proceedings and settlement of a
decedent's estate are both proceedings in rem which are binding against the whole
world. All persons having interest in the subject matter involved, whether they were
notified or not, are equally bound (Philippine Savings Bank vs. Lantin, 124 SCRA 483
[1983]). The court acquires jurisdiction over all persons interested, through the
publication of the notice prescribed ... and any order that may be entered therein is
binding against all of them (Ramon vs. Ortuzar, 89 Phil. 741 [1951] citing in re
Estate of Johnson, 39 Phil. 156). It was ruled further that a final order of distribution
of the estate of a deceased person vests the title to the land of the estate in the
distributees; and that the only instance where a party interested in a probate
proceeding may have a final liquidation set aside is when he is left out by reason of
circumstances beyond his control or through mistake or inadvertence not imputable
to negligence. Even then, the better practice to secure relief is reopening of the
same case by proper motion within the reglementary period, instead of an
independent action, the effect of which, if successful, would be, as in the instant
case, for another court or judge to throw out a decision or order already final and
executed and reshuffle properties long ago distributed and disposed of (Ramon vs.
Ortuzar, supra; Santos vs. Roman Catholic Bishop of Nueva Caceres 45 Phil. 895).
III.
As to the issue of prescription, the Civil Code of the Philippines clearly provides:
Art. 1100. The action for rescission on account of lesion shall prescribe after four
years from the time the partition was made.
Intestate proceedings were terminated as alleged in the complaint itself on
November 9, 1953 so that said four years prescriptive period expired on November
9,1957. Hence, the present action filed on September 8, 1960 and which has for one
of its objects the rescission of the agreement of partition among the petitioners, as
approved by the intestate court, is already barred by prescription.
That an action for rescission is also the proper action in case of an alleged
preterition of a compulsory heir by reason of alleged bad faith or fraud of the other
persons interested, which is what the complaint in this case alleges in substance, is
indicated in Article 1104 of the Civil Code as follows:
Art. 1104. A partition made with preterition of any of the compulsory heirs shall not
be rescinded, unless it be proved that there was bad faith or fraud on the part of the
other persons interested; ...
It has also been ruled by this Court that the four years period provided in Article
1100 of the Civil Code (formerly Art. 1076 of the old Civil Code) should commence
to run from the approval of the agreement of partition by the Court (Samson vs.
Araneta, 60 Phil. 27, 36). Thus, in the case at bar, it is evident that the action to

rescind the Agreement of Partition which was approved by the Court on November
9, 1953, had already prescribed when respondent filed the complaint in the case at
bar on September 8, 1960.
While as a general rule the action for partition among co-owners does not prescribe
so long as the co-ownership is expressly or impliedly recognized (Art. 494, Civil
Code), petitioners herein had never recognized respondent as a co-owner or co-heir
either expressly or impliedly. Consequently, the rule on non-prescription of action
for partition of property owned in common (Art. 494) does not apply to the case at
bar.
Moreover, private respondent cannot claim exemption from the effects of
prescription on the plea of minority under the New Civil Code which provides:
Art. 1108. Prescription, both acquisitive and extinctive, runs against: (1) Minors and
other incapacitated persons who have parents, guardians or other legal
representatives:
xxxxxxxxx
Respondent Alberto, Jr. who has a living parent, his mother, Andrea Jongco, who in
fact filed the complaint in the case at bar for him, falls squarely under the abovecited provision.
Granting arguendo that respondent is a natural child of the deceased Antonio
Alberto, Sr., the action for recognition of natural child may be brought only during
the lifetime of the presumed parent. And if the presumed father or mother died
during the minority of the child, the latter may file the action within four (4) years
from the attainment of majority (Art. 285 [1]). However, if the minor has a guardian
as in this case, prescription runs against him even during minority (Wenzel etc., et
al. vs. Surigao Consolidated Mining, Inc., 108 Phil. 530 [1960]). In such case, the
action for recognition must be instituted within four (4) years after the death of the
natural father (Magallanes, et al. vs. Court of Appeals, et al., 95 Phil. 795 [1954]).
Antonio C. Alberto, Sr., the alleged father, died on July 3, 1949. The complaint for
acknowledgment and partition was filed eleven (11) years later, on September 8,
1960. Hence, prescription had set in.
Neither can it be claimed that the present action is in substance one for recovery of
property in order to avoid the consequences of prescription, for as correctly stated
by the petitioners, to be entitled to the recovery of the property from the estate,
Alberto, Jr. must first rescind the partition and distribution approved by the intestate
proceedings, otherwise, the recovery of any property from the petitioners is not
possible. Be that as it may, such partition can no longer be rescinded having been
already barred by the Statute of Limitations.
Furthermore, even granting that Article 1104 of the Civil Code does not apply and
there is an injury to the rights of plaintiff, tills action would still not prosper under
Articles 1146 and 1149 of the same Code which provide that the action must be
brought within four and five years, respectively, from the time the right of action
accrues.

IV
Petitioners' claim of laches is likewise tenable. The trial court in its findings clearly
and unmistakably declared that respondent Alberto, Jr. is guilty of laches as follows:
About 1944, Andrea Jongco said she learned of Antonio Alberto's marriage to
Natividad del Rosario. Yet, she took no steps to protect the interests of her child,
Antonio, although she was already confronted with the incontrovertible proof of
Antonio's infidelity and the hallowness of his promises.
It might be that Andrea Jongco was then relying on Antonio Alberto's not denying
that Alberto, Jr. was his child, if such was the case. If this was so, however, how can
we explain her inaction even after the death of Antonio Alberto in 1949, or until
September 8, 1960, when she filed this action, Andrea kept silent, took no action to
have her child recognized as the son of the alleged father. Her laches, as well as the
inherent improbabilities in her testimony rendered it unworthy of belief.
... It is evident that the plaintiff's case is adversely affected by his long delay in
bringing this action. 'Undue delay in the separate enforcement of a right is strongly
persuasive of lack of merit in this claim, since it is human nature for a person to
assert his rights most strongly when they are threatened or invaded. (Buenaventura
vs. David, 37 Phil. 435-440). (Record on Appeal, pp. 108-109).
This Court has consistently declared that laches is the failure or neglect, for an
unreasonable and unexplained length of time, to do that which by exercising due
diligence, could or should have been done earlier. The negligence or omission to
assert a right within a reasonable time, warrants a presumption that the party
entitled to assert it either has abandoned it or declined to assert it (Corro vs. Lising,
137 SCRA 541 [1985]; Tendo vs. Zamacoma, 138 SCRA 78 [1985]; De Castro vs. Tan,
129 SCRA 85 [1984]; Medija vs. Patcho, 132 SCRA 540 [1984]; Burgos, Sr. vs. Chief
of Staff, Armed Forces of the Phil., 133 SCRA 800 [1984]; Gumonpin vs. CA, 120
SCRA 687 [1983]).
As pointed out by the trial court, there appears to be no explanation for the
surprising delay in the filing of the complaint in the case at bar except perhaps, the
fact that during the lifetime of the deceased Antonio Alberto, private respondents
were receiving support until the latter died in 1949; but thereafter, they allowed
more than ten years to elapse or until September 8, 1960 before they filed the
present action to assert their rights despite Andrea Jongco's allegation that they
stopped receiving support after Alberto, Sr.'s death.
On the other hand, there is merit in petitioners' allegations that such delay is
prejudicial to them. Private respondents could have filed the action in 1944 when
Andrea Jongco learned of the marriage of the deceased with petitioner Natividad del
Rosario instead of waiting for 16 years when the supposed father's lips had been
sealed by death and possible witnesses like Antonio Alberto, Sr.'s mother had
become too old to give coherent testimony.
On this point, the Supreme Court ruled:

The assertion of doubtful claims, after long delay, cannot be favored by the courts.
Time inevitably tends to obliterate occurrences from the memory of witnesses, and
even where the recollection appears to be entirely clear, the true clue to the
solution of a case may be hopelessly lost. These considerations constitute one of
the pillars of the doctrine long familiar in equity jurisprudence to the effect that
laches or unreasonable delay on the part of a plaintiff in seeking to enforce a right is
not only persuasive of a want of merit but may, according to the circumstances, be
destructive of the right itself. Vigilantibus non dormientibus equites
subvenit (Buenaventura vs. David, 37 Phil. 435, reiterated in Edralin vs. Edralin, 1
SCRA 227 [1961]).
The other explanation might have been the minority of Antonio Alberto, Jr. at the
time of his supposed father's death. But such explanation as discussed earlier is
unavailing even in case of prescription under Article 1108 of the Civil Code where
minority does not stop the running of the prescriptive period for minors who have
parents, guardians or legal representatives.
Thus, it is well established that "The law serves those who are vigilant and diligent
and not those who sleep when the law requires them to act (Cui and Joven vs.
Henson, 51 Phil. 606, 610; Bacolod-Murcia Milling Co. vs. Villaluz, Sept. 29, 1951, 90
Phil. 154)." The law does not encourage laches, indifference, negligence or
ignorance. On the contrary, for a party to deserve the considerations of the courts,
he... must show that he is not guilty of any of the aforesaid failings (Samson vs.
Yateo, August 28,1958; 104 PMI. 378).
V.
Finally on the merits of this case, petitioners would have this Court review and
reverse the conclusions of fact of the Court of Appeals. As a general rule, this is a
function this Court does not undertake. The established principle is that the factual
findings of the Court of Appeals are final and may not be reviewed on appeal to this
Court; except: (1) when the conclusion is grounded entirely on speculation, surmises
and conjectures; (2) when the inference is manifestly mistaken, absurd and
impossible; (3) where there is grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the Court in making its findings went
beyond the issues of the case, and the same are contrary to the admissions of both
the apellant and the appellee; (6) when the findings of the Appellate Court are
contrary to those of the trial court; (7) when the findings are without citation of
specific evidence on which they are based (Manlapaz vs. C.A., 147 SCRA 238-239
[1987]; Guita vs. C.A., 139 SCRA 576 [1985]; Sacay vs. Sandiganbayan, 147 SCRA
593 [1986]).
It is readily evident that this case falls within one of the recognized exceptions to
the rule, specifically that the findings of the Appellate Court are contrary to those of
the trial court.
At the trial, the lower court in evaluating the evidence presented by the
complainants is of the view that the testimony alone of Andrea Jongco is sufficient
to totally discredit not only her testimony but also her entire case. Aside from being

inherently improbable and the merit of her claim being adversely affected by her
testimony and her long delay in bringing action, her testimony is contradicted by
the testimonies of Jose, Zoilo and Pilar who are brothers and sister of the deceased
Antonio Alberto and who have no pecuniary interest whatsoever in the outcome of
the controversy. They testified that during the period Andrea Jongco claimed that
Antonio Alberto, Sr. lived with her, the deceased in fact lived with his mother and
brothers at the family residence except for his brief stint with the army (Decision,
Civil Case No. 44164; Record on appeal, pp. 111-112).
More than that, the trial court found among others, that Andrea Jongco has had five
children (aside from her son Antonio) with four different men. The assumption,
therefore, is that she lived with at least four different men without being married to
any of them. Thus, the trial court aptly ruled that his propensity to promiscuous
relationship with different men, render it unjust to state with definiteness that any
particular person is the father of any one of her children." (Ibid, p. 121).
Other witnesses are Eufracia Cailan who allegedly took care of Antonio, the father,
since the latter was a child and then of Antonio, the alleged son, and Encarnacion
Peralta, an alleged former lessor of Andrea Jongco and Antonio Alberto. Their
testimonies were, however, found by the trial court to be inherently improbable,
inconsistent with human experience and deliberately invented to conform with the
testimony of Andrea Jongco (Ibid, pp. 109-117).
On the other hand, the Court of Appeals in its decision gave more credence to the
testimonies of Eufracia Cailan and Encarnacion Peralta and declared that their
testimonies have sufficiently established the fact that Antonio J. Alberto, Jr. is the
son of the late Antonio C. Alberto and Andrea Jongco which finds further proof in the
birth certificate and the baptismal certificate of Alberto, Jr. (Rollo, pp. 6-11).
In this connection, it must be stated that in the case of Reyes vs. Court of Appeals,
135 SCRA 439 (1985), this Court, citing the cases of Bercilles vs. GSIS, 128 SCRA
53; People vs. Villeza, 127 SCRA 349; Cid vs. Burnaman, 24 SCRA
434; Vudaurrazaga vs. C.A., 91 Phil. 492; and Capistrano vs. Gabino, 8 Phil. 135,
ruled that a birth certificate not signed by the alleged father therein indicated, like
in the instant case, is not competent evidence of paternity.
In casting doubt upon the credibility of petitioner Natividad's testimony, the Court of
Appeals pointed out her serious inconsistency on material points such as her claim
that she was married to the deceased in 1941 and her later admission in the answer
that they were married in 1944.
The record shows, however, that both admissions were correct, the first marriage
was a secret civil marriage celebrated in Pililla, Rizal while the second was a
religious ratification of the former. The lack of marriage certificate as evidence was
also considered by the Court of Appeals as an impairment of credibility despite a
certification to the effect that all pre-war records in the Municipality of Pililla, Rizal
were destroyed during the last war. Said Appellate Court is of the view that if they
did plan to marry secretly at that time, they could have chosen a city or
municipality near Manila and that Pililla must have been chosen as the place of the

supposed marriage so that petitioners could have an apparent good reason for the
non-presentation of the marriage certificate.
As aptly argued by the petitioners, such conclusion is purely conjectural. Besides
petitioners' reasons for the choice of that place, the celebration of the marriage was
positively confirmed by Damaso Herrera, one of the sponsors thereof.
In any event, it is a fundamental rule that conclusions and findings of fact by the
trial court are entitled to great weight on appeal and should not be disturbed unless
for strong and cogent reasons because the trial court is in a better position to
examine real evidence, as well as to observe the demeanor of the witnesses while
testifying in the case (People vs. Pimentel, 147 SCRA 29, 30 [19871; People vs.
Grefiel, 125 SCRA 108 [1983]; Chase vs. Buencamino, 136 SCRA 381 [1985]; People
vs. Fernandez, 124 SCRA 248 (1983]; Olangco vs. C.F.I. of Misamis Oriental, 121
SCRA 338 [1983]; Minuchechi vs. C.A., 129 SCRA 479 [1984]).
After a careful review of the records and the evidence presented by the contending
parties, no cogent reasons could be found to justify the reversal of the findings of
the trial court.
In view of the foregoing, there appears to be no need to discuss the last two
assignments of errors.
WHEREFORE, the assailed decision of the Court of Appeals is hereby Reversed and
the decision of the trial court is Reinstated. No costs.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Cortes, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. Nos. L-46430-31 July 30, 1979
FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE MADARETA, ESTEBAN P. RAMIREZ,
and THE REGISTER OF DEEDS FOR ALBAY PROVINCE, petitioners,
vs.
COURT OF APPEALS, AMPARO ALSUA BUENVIAJE, FERNANDO BUENVIAJE, FERNANDO
ALSUA, represented by his guardian, CLOTILDE S. ALSUA and PABLO
ALSUA, respondents.
Rafael Triumfante for petitioners.
Sabido-Sabido & Associates and Madrid Law Office for private respondents.

GUERRERO, J.:1wph1.t

This is an appeal by certiorari from the decision of the Court of Appeals in CA-G.R.
Nos. 54492-R and 54493-R which reversed the decision of the Court of First Instance
of Albay allowing the probate of the win of Don Jesus Alsua in Special Proceedings
No. 699 and dismissing the complaint in Civil Case 3068 after declaring the two
deeds of sale executed by Don Jesus Alsua legal and valid. The respondent
court 1 denied the probate of the will, declared null and void the two sales subject
of the complaint and ordered the defendants, petitioners herein, to pay damages to
the plaintiffs, now the private respondents, the sum of Five Thousand Pesos
(P5,000.00), to render an accounting of the properties in their possession and to
reimburse the latter the net gain in the proportion that appertains to them in the
properties from the date of the firing of the complaint up to complete restoration
plus Fifty Thousand Pesos (P50,000.00) as attorney's fees and costs.
The antecedent events leading to the filing of these two consolidated actions are
the following.
On November 25, 1949, Don Jesus Alsua and his wife, Do;a Florentina Rella, both of
Ligao, Albay, together with all their living children, Francisca Alsua-Betts, Pablo
Alsua, Fernando Alsua thru this judicial guardian Clotilde Samson, and Amparo Alsua
de Buenviaje, entered into a duly notarized agreement, Escritura de Particion
Extrajudicial (Exhibit 8), over the then present and existing properties of the
spouses Don Jesus and Do;a Florentina enumerated in a prepared inventory,
Exhibit 8-A, the essential features of which are stated in private respondents' Brief,
pp. 26-29, to wit: t.hqw
(1) Basis of the partition: Inventory (Annex A) of all the properties of the Alsua
spouses, which inventory consists of 97 pages, all of them signed by the spouses
and all the above named heirs in the left margin of every page (parafo primers).
(2) An acknowledgment of the spouses that all the properties described in the
inventory (Annex A) are conjugal properties with the exception of five parcels of
land Identified with the figures of 1 to 5 and 30 shares of San Miguel Brewery stock
which are paraphernal properties of the late Do;a Tinay (segundo parafo).
(3) An acknowledgment that during their marriage, they had nine children but five
of them died minors, unmarried (parafo tercero y cuatro).
(4) An acknowledgment that on the basis of Article 1056 of the Civil Code (old) to
avoid Possible misunderstanding among their children concerning the inheritance
they are entitled to in the event of death of one of them they have decided to
effectuate an extrajudicial partition of all the properties described in Annex "A"
thereto under the following terms and conditions: (Parafo quinto):
To Francisca Alsua, married to Joseph O. Betts were allotted or assigned all the real
properties with the improvements thereon specifically described from pages 1-12 of
said inventory or, 34 parcels of land with a total land area of 5,720,364 sq. meters,
with a book or appraised value of P69,740.00.
To Pablo Alsua, married to Teresa Locsin were allotted or assigned all the real
properties with the improvements thereon specifically described from pages 12-20

of said inventory or, 26 parcels of land with a total land area of 5,679,262 sq.
meters, with a book or appraised value of P55,940.00.
To Fernando Alsua, married to Clotilde Samson were allotted or assigned all the real
properties with the improvements thereon specifically described from pages 20-33
of said inventory or, 47 parcels of land with a total land area of 6,639,810 sq.
meters, with a book or appraised value of P89,300.00.
To Amparo Alsua, married to Fernando Buenviaje were allotted or assigned all the
real properties with the improvements thereon specifically described from pages 3347 of said inventory or, 47 parcels of land with a total land area of 5,630,715 sq.
meters, with a book or appraised value of P58,830.00. t.hqw
(a) Each and every one of the heirs named above acknowledge and admit that the
totality of the properties allotted and adjudicated to the heirs as described in the
preceding paragraph, constitute one half of the properties described in Annex "A",
including any amount of cash deposited.
(b) That all the heirs acknowledge and admit that all the properties assigned to
them as their hereditary portion represent one-half not only of the conjugal
properties but includes the paraphernal properties waiving now and forever any
complaint or claim they have or they may have concerning the amount, value,
extension and location of the properties that are allotted to each and everyone.
They also waive any claim they have or they may have over the remaining portion
of the properties, which spouses reserved for themselves.
(c) That in case of death of one of the spouses, each and everyone of the heirs
acknowledge that the properties which are left in the possession of the surviving
spouse, including any amount in cash, are even less than the one- half that should
correspond in absolute ownership as his legitimate participation in the conjugal
properties. In consequence they waive any claim that they have or may have over
said portion of said properties or any amount in cash during the lifetime of the
surviving spouse, including any right or claim they have or they may have over the
paraphernal properties of Do;a Tinay in the event the surviving spouse is Don
Jesus.
(d) The spouses on their part in case of death of any one of them, the surviving
spouse waives any claim he or she may have over the properties assigned or
adjudicated to the heirs under and by virtue of this deed. The properties which were
reserved for them (the spouses) should be considered as his or her legitimate
participation in the conjugal properties and the fair compensation of his or her
usufruct on the properties that the surviving spouse reserved for himself or herself
which shag be distributed in equal shares among the heirs upon his or her death
unless said properties of some of them have been disposed of during the lifetime of
the surviving spouse.
(e) Any heir who may dare question the validity and legitimacy of the provision
contained herein shall be under obligation to pay to the other heirs, in the concept
of damages and prejudice, the sum of P5,000.00 plus attorney's fees.

(f) The provisions of this deed shall bind the successors of the herein heirs.
(g) In the event of death of one of the spouses, the properties assigned or
adjudicated to each and everyone of the heirs shall be considered as his share or
participation in the estate or as his inheritance left by the deceased and each heir
shall become the absolute owner of the properties adjudicated to him under this
deed.
On January 5, 1955, Don Jesus and Do;a Florentina, also known as Do;a Tinay
separately executed their respective holographic wills (Exhs. 6-B and 7-B), the
provisions of which were in conformity and in implementation of the extrajudicial
partition of November 25, 1949. Their holographic wills similarly provided for the
institution of the other to his or her share in the conjugal properties, the other half
of the conjugal assets having been partitioned to constitute their legitime among
their four living children in the Extrajudicial Partition of 1949. The wigs also declared
that in the event of future acquisitions of other properties by either of them, onehalf thereof would belong to the other spouse, and the other half shall be divided
equally among the four children. The holographic will of Do;a Tinay written in
Spanish reads, as translated: t.hqw
TESTAMENT
I, FLORENTINA R. DE ALSUA, 67 years old, Filipina, married to Don Jesus Alsua,
resident of and with postal address in the Municipality of Ligao, Province of Albay,
Philippines, being in the full possession of my mental and physical faculties freely
and spontaneously execute this my last will and testament in my handwriting and
signed by me and expressed in the Spanish language which I speak, write and
understand, this 5th day of January, 1955 in the Municipality of Ligao, Province of
Albay, and in which I ordain and provide:
First: That in or about the year 1906 I was married to my husband Don Jesus Alsua
and begot nine (9) children with him, four (4) of whom are still living and they are
Francisco Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. The other five (5)
died during their minority, single and without children.
Second: That after my marriage to my husband Don Jesus Alsua and during our
conjugal union, and as a result of our efforts and industry, we were able to acquire
conjugal properties consisting of abaca (abales) and cacao lands and urban lands
registered in the office of the Registry of Property of the Province of Albay and in the
City of Manila.
Third: That I institute as my heirs with right to inherit the following- my spouse Don
Jesus Alsua, one-half (1/2) of my properties, real and personal, and the other half, to
my children Francisco Alsua, married to Joseph O. Betts, Pablo Alsua, Fernando
Alsua, married to Clotilde Samson, and Amparo Alsua, married to Fernando
Buenviaje, in equal parts. It is to be understood, however, that the other half that
corresponds as legitime to my above named children have already been given to
them, pursuant to a document dated November 25, 1949 and ratified on the same
day, month and year before Notary Public Segundo G. Flores (Reg. No. 525; Pag. 15;

Lib. 11; Series of 1949) enjoining each and everyone of them to respect and
faithfully comply with each and every clause contained in the said document.
Fourth: That should I acquire new properties after the execution of this testament,
the same shall be partitioned among my spouse and above named children or the
children mentioned in above par. 3 in the same proportion that is, one-half (1 1/2) to
my spouse; and the other half to my children in equal parts.
Fifth: That I name as my executor my husband Don Jesus Alsua without having to
post any bond.
IN VIRTUE WHEREOF, I hereby sign in my own handwriting this testament on this 5th
day of January, 1955 in the Municipality of Ligao, Province of Albay, Philippines. t.
hqw
(SGD.) FLORENTINA R. DE ALSUA
(Joint Record on appeal pp. 420-423, CA-G.R. No. 54492-R)
As previously stated, Don Jesus Alsua executed a separate but similar holographic
will on the same day, Jan. 5, 1955 in exactly the same terms and conditions as the
above will of his wife.
On May 21, 1956, the spouses Don Jesus and Do;a Tinay filed before the Court of
First Instance of Albay their respective petitions for the probate of their respective
holographic wins which were docketed as Special Proceedings No. 484 (Jesus Alsua,
Petitioner) and Special Proceedings No. 485 (Do;a Florentina Ralla de Alsua,
Petitioner).
On August 14, 1956, the spouses Don Jesus and Do;a Tinay executed their mutual
and reciprocal codicils amending and supplementing their respective holographic
wins. Again, the codicils similarly acknowledged and provided that one-half of all the
properties of the spouses, conjugal and paraphernal, had been disposed of,
conveyed to and partitioned among their legitimate heirs in the "Escritura de
Particion" of November 25, 1949, but that they reserved for themselves (the
spouses Don Jesus and Do;a Tinay) the other half or those not disposed of to the
said legitimate heirs under the above agreement of partition, and that they
mutually and reciprocally bequeathed unto each other their participation therein as
well as in all properties which might be acquired subsequently. Each spouse also
declared that should she or he be the surviving spouse, whatever belongs to him or
her or would pertain to him or her, would be divided equally among the four
children. It was also declared in both codicils that upon the death of either of the
spouses, the surviving spouse was designated mutually and reciprocally as the
executor or administrator of all the properties reserved for themselves.
The codicil executed by Do;a Tinay, written in Spanish reads, as translated: t.
hqw
CODICIL

This codicil supplements and amends the preceding testament. That my spouse and
I have agreed to divide the properties which we have acquired into 2 parts. The 1/2
that would correspond to me covers all the properties that I have partitioned among
my children in the Document of Partition dated November 25, 1949 before Notary
Public Segundo G. Flores, Jr. (Doc. No. 525; Pag. No. 15; Lib. No. 11; Series of 1949)
(and) even as the properties which by reason of this testament I leave to my
husband as his share and the other half that corresponds to my husband constitutes
an the properties that up to now have not been disposed of, particularly the urban
lands situated in Legaspi, Albay, Ligao of the Province of Albay and in the City of
Manila, with the exception of that portion that I bequeath to my husband as his
inheritance and his legitimate.
That I institute as my heirs with the right to inherit my husband Don Jesus Alsua and
my children Francisco Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. I leave
to my aforecited children all the properties described in the above mentioned
Document of Partition dated November 25, 1949 which correspond to each one of
them and in the profits (fruits) expressed in the same, and in the event that the
properties granted to one or any of my children should exceed in quantity or value
those corresponding to another or others, I hereby declare that it is my will that the
same be divided among my children as their inheritance from the free portion of my
property.
I leave to my spouse Don Jesus Alsua as his legitime and as Ws inheritance the part
of the free portion of my property which have not been allocated in favor of my
children in the Document of Partition aforecited and that which should exceed 1/2 of
the conjugal property of gains that pertains to him as above stated, including all
those properties which we shall acquire after the execution of this document.
In case it should be God's will that I survive my spouse, I hereby declare that it is
my will that any and all kinds of property that pertain to me or would pertain to me,
which have not been disposed of pursuant to the partition, should be divided
equally among my above-mentioned heirs after my death. Ligao, Albay, Philippines,
August 14,1956. t.hqw
(SGD.) FLORENTINA RALLA DE ALSUA
(joint Record on Appeal pp. 423-425, CA-G.R. No. 54492-R)
And as stated previously, on the same day, August 14, 1956, Don Jesus executed
also a separate but similar codicil in exactly the same terms and conditions as the
above codicil of his wife. Also on the same day of August 14, 1956, the spouses Don
Jesus and Do;a Tinay both filed their respective supplemental petitions for the
probate of their respective codicils in the probate proceedings earlier filed. On
February 19, 1957, their respective holographic wins and the codicils thereto were
duly admitted to probate.
Upon the death of Do;a Tinay on October 2, 1959, Don Jesus was named executor
to serve without bond in an order issued by the probate court on October 13, 1959.

Letters testamentary having been issued in favor of Don Jesus, he took his oath of
office and performed his duties as such until July 1, 1960.
Thereafter in the early part of November, 1959, Don Jesus cancelled his holographic
will in the presence of his bookkeeper and secretary, Esteban P. Ramirez, whom he
instructed to make a list of all his remaining properties with their corresponding
descriptions. His lawyer, Atty. Gregorio imperial Sr. was then instructed to draft a
new will which was duly signed by Don Jesus and his attesting witnesses on
November 14, 1959 at Ms home in Ligao, Albay. This notarial will and testament
(Exh. A) of Don Jesus executed on November 14, 1959 had three essential features:
(a) it expressly cancelled, revoked and annulled all the provisions of Don Jesus'
holographic will of January 5, 1955 and his codicil of August 14, 1956; (b) it provided
for the collation of all his properties donated to his four living children by virtue of
the "Escritura de Particion Extra. judicial" of 1949, and that such properties be taken
into account in the partition of his estate among the children; and (c) it instituted
his children as legatees/devisees of certain specific properties, and as to the rest of
the properties and whatever may be subsequently acquired in the future, before his
death, were to be given to Francisca and Pablo, naming Francesca as executrix to
serve without a bond.
After all debts, funeral charges and other expenses of the estate of Do;a Tinay had
been paid, all her heirs including Don Jesus, submitted to the probate court for
approval a deed of partition executed on December 19, 1959 (Exh. 7-Q) and which
essentially confirmed the provisions of the partition of 1949, the holographic will
and codicil of Do;a Tinay. On July 6, 1960, the court approved the partition of 1959
and on January 6, 1961 declared the termination of the proceedings on the estate of
Do;a Tinay.
On May 6,1964, Don Jesus Alsua died.
On May 20, 1964, petitioner herein Francisca Alsua Betts, as the executrix named in
the will of November 14, 1959, filed a petition for the probate of said new will of
Don Jesus Alsua before the Court of First Instance of Albay and was docketed as
Special Proceedings No. 699. Oppositions thereto were filed by Pablo, Amparo and
Fernando, thru his judicial guardian Clotilde Samson, on the following grounds: (a)
that Don Jesus was not of sound and disposing mind at the time of the execution of
the alleged will; (b) that the will was executed under duress or influence of fear or
threats; or it was procured by undue and improper pressure and influence on the
part of the main beneficiaries and of person or persons in collusion with them, or
the signature of the testator was secured by or thru fraud; (c) that the will was not
executed according to the formal requirements of the law; and (d) that the alleged
will subject of probate contravened the Extrajudicial Partition of 1949 agreed upon
by him, his deceased spouse, Do;a Tinay, and all his children, Francisco, Pablo,
Amparo and Fernando thru his judicial guardian Clotilde Samson, and also
contravened Don Jesus' own probated holographic will and codicil of 1955 and 1956,
respectively, essentially confirming and implementing the said partition of 1949
which had already been partially executed by all the signatories thereto in the
partition of the estate of Do;a Tinay in December, 1959.

On the basis of Francisca's designation as executrix in the new will dated November
14, 1959, the Probate Court appointed her Administratrix of the estate of her late
father, Don Jesus Alsua. She then filed with the Probate Court an inventory of the
properties of the estate which, according to the oppositors therein (the private
respondents now) did not include some properties appearing in the agreement of
November 25. 1949 or in the inventory attached thereto as Annex "A" and in the
"Escritura de Particion" of December 19, 1959 as belonging to or should pertain to
Don Jesus. According to the oppositors, these properties consist of thirty- three (33)
premium agricultural lots with a total land area of 1,187,970 square meters, or
approximately 119 hectares and with a total assessed value of P48,410.00 or a
probable total market value of P238,000.00 at only P2,000.00 per hectare, and four
(4) commercial urban lots Ideally located in the business section of Legazpi City
including the lot and the building presently occupied by the well-known "Mayon
Hotel" with an assessed value of approximately P117,260.00 or a probable market
value at the time of P469,040.00. It appearing from the new will that these
properties were bequeathed to Pablo Alsua and Francisco Alsua-Betts, specifically, 3
parcels of the 33 agricultural lands to Pablo and the rest to Francisco, the oppositors
also raised in issue the non-inclusion of said properties in the inventory of the estate
of their late father. In answer, Francisco claimed ownership over the same, alleging
that she bought the properties from their father and presenting the two Deeds of
Sale now being assailed, one dated August 26, 1961 purporting to show the sale of
the 33 parcels of agricultural land to Francisco by their father for the price of
P70,000.00 and the other dated November 26, 1962 evidencing the sale of the four
urban lots for the sum of P80,000.00. Claiming fraud in the sales, the oppositors
filed Civil Case No. 3068, seeking the annulment of the aforesaid two deeds of sale,
with damages, which upon agreement of the parties was then jointly heard and
tried with Special Proceedings No. 699 for probate of the Last Will and Testament of
Don Jesus executed on November 14, 1959.
After a joint hearing of the merits of these two cases, the Court of First Instance of
Albay promulgated a decision on January 15, 1973, the dispositive portion of which
states: t.hqw
WHEREFORE, in view of all the foregoing, judgment is hereby rendered, to wit:
1. In Special Proceedings 699, the Court hereby APPROVES and ALLOWS the Will
executed by Don Jesus Alsua at Ligao, Albay, on November 14, 1959, which had
been marked as Exhibit A, consisting of nine (9) pages, and orders that the same be
made the basis for division and distribution of the estate of said testator;
2. In Civil Case 3068, the Court hereby dismisses the complaint and holds that the
sale on August 26, 1961 (Exh. U) and the sale on November 26, 1962 (Exh. W), are
lawful and valid sales and accordingly conveyed title to the VENDEE thereof. The
Plaintiffs in Civil Case 3068. are ordered jointly and severally to pay to the
defendant, Francisco Alsua Betts Fifty Thousand Pesos (P50,000.00) as damages
and Fifty Thousand (P50,000.00) Pesos for attorney's fees or a total of One Hundred
Thousand Pesos (P100,000.00) and to pay the costs.

On appeal by herein respondents to the Court of Appeals, the court reversed the
appealed decision in a judgment rendered on April 4, 1977, the dispositive portion
of which states, as translated, thus t.hqw
IN VIEW OF THE FOREGOING, this Tribunal finds itself constrained to set aside as it
hereby sets aside the decision appealed from in the following manner: (1) in Special
Proceedings 699, the probate of the will, Exh. A, is hereby denied; (2) in Civil Case
No. 3068, Exhs. U and W and the titles issued on the basis thereof are hereby
declared null and void, ordering the appellees Francisco Alsua and Joseph Betts to
pay to the plaintiffs in the concept of fixed damages, the sum of P5,000.00 and to
render an accounting of properties in their possession and to reimburse the
plaintiffs the net gain, in the proportion that appertains to them in the properties
subject of litigation in Civil Case No. 3068 from the date of the filing of this
complaint, up to the complete restoration of the properties pertaining to (plaintiffs)
pursuant to Article 2208 of the New Civil Code, paragraph 11, ordering them in
addition to pay to the plaintiffs and oppositors the sum of P50,000.00 as attorney's
fees, and the costs.
Hence, the petition at bar assailing the respondent court's decision on four assigned
errors, to wit: t.hqw
I. The respondent Court of Appeals erred in not affirming the findings of the probate
court (Special Proceedings No. 699) that private respondents, oppositors to the
probate of the will, are in estoppel to question the competence of testator Don Jesus
Alsua.
II. The respondent Court of Appeals grossly erred in holding that testator Don Jesus
Alsua cannot revoke his previous will.
III. The respondent court's finding is grounded entirely on speculation, surmises or
conjectures resulting in a gross misapprehension of facts.
IV. The respondent court grossly erred in annulling the sales of August 26, 1961
(Exh. U), and of November 26, 1962 (Exh. W).
On the first issue of estoppel raised in the assignment of errors, We hold that the
same is of no moment. The controversy as to the competency or incompetency of
Don Jesus Alsua to execute his will cannot be determined by acts of the herein
private respondents as oppositors to the will in formally agreeing in writing jointly
with the petitioner Francisca Alsua de Betts that their father, Don Jesus Alsua, be
appointed by the court executor of the will of their mother in Special Proceedings
No. 485, Testate Estate of Do;a Florentina Ralla de Alsua and in subsequently
petitioning the court not to require Don Jesus Alsua to file any accounting as
executor in the proceedings, which petitioners claim and was upheld by the trial
court as constituting estoppel on the part of the private respondents from
questioning the competence of Don Jesus Alsua.
The principle of estoppel is not applicable in probate proceedings, a ruling laid down
in the case of Testate Estate of the Late Procopia Apostol Benedicta Obispo, et al vs.
Remedios Obispo, 50 O.G. 614, penned by Justice J.B.L. Reyes, an eminent and

recognized authority on Civil Law when he was still in the Court of Appeals, and We
quote:t.hqw
Finally, probate proceedings involve public interest, and the application therein of
the rile of estoppel, when it win block the ascertainment of the truth as to the
circumstances surrounding the execution of a testament, would seem inimical to
public policy. Over and above the interest of private parties is that of the state to
see that testamentary dispositions be carried out if, and only if, executed
conformably to law.
The Supreme Court of New York aptly said in Re Canfield's Will, 300 N.Y.S., 502: t.
hqw
'The primary purpose of the proceeding is not to establish the existence of the right
of any living person, but to determine whether or not the decedent has performed
the acts specified by the pertinent statutes, which are the essential prerequisites to
personal direction of the mode of devolution of his property on death. There is no
legal but merely a moral duty resting upon a proponent to attempt to validate the
wishes of the departed, and he may and frequently does receive no personal benefit
from the performance of the act.
One of the most fundamental conceptions of probate law, is that it is the duty of the
court to effectuate, in so far as may be compatible with the public interest, the
devolutionary wishes of a deceased person (Matter of Watson's Wilt 262 N.Y., 284,
294, 186, N.E., 787; Matter of Marriman's Estate, 124 Misc. 320, 325, 208, N.Y.S.,
672; Foley, S., affirmed 217 app. Div., 733, 216 N.Y.S., 126, Henderson, S., Matter of
Draske's Estate, 160 Misc. 587, 593, 290, N.Y.S., 581). To that end, the court is, in
effect, an additional party to every litigation affecting the disposal of the assets of
the deceased. Matter of Van Valkenburgh's Estate, 164 Misc. 295, 298, N.Y.S., 219.'
The next issue that commands Our attention is whether the respondent court erred
in not allowing the probate of the last will and testament of Don Jesus Alsua.
Petitioners claim that the disallowance was based on speculations, surmises or
conjectures, disregarding the facts as found by the trial court. The Civil Court is very
clear and explicit in providing the cases where a will may be disallowed under
Article 839 which provides as follows: t.hqw
Art. 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a wilt at
the time of its execution;
(3) If it was executed through force or under duress, or the influence of fear, or
threats;
(4) If it was procured by undue and improper pressure and influence, on the part of
the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud,

(6) If the testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto.
The issue under consideration appears to Us to have been answered by the
respondent court itself when it accepted the findings of the trial court on the due
execution of the questioned will and testament of Don Jesus, declaring: t.hqw
... and going back to the previous question, whether the questioned will and
testament of November 14, 1959, Exh. A, was executed in accordance with Arts.
805-809 of the New Civil Code, this Tribunal from the very beginning accepts the
findings of the inferior court concerning the question, t.hqw
On October 2, 1959, Do;a Florentina died at Ligao, Albay. About 2 weeks after said
death of his wife, Don Jesus Alsua decided to make a new will, thereby revoking and
cancelling his previous holographic will which he made on January 5, 1955 and also
its codicil dated August 14, 1956. In the presence of his bookkeeper and secretary,
Esteban P. Ramirez, he crossed out in ink each and every page of said page he
wrote on each page the word "cancelado", and affixed his signature thereon (Exh V5, V-6, consecutively up to and including Exh. V-14). He then instructed Ramirez to
make a list of all s properties with their corresponding descriptions.
Meanwhile, Don Jesus Alsua sent for his lawyer, Don Gregorio Imperial, Sr. and the
latter came accompanied by his son, Atty. Jorge S, Imperial, who, incidentally, is now
a judge of the Court of First Instance of Naga City, Camarines Sur. Don Jesus
informed his lawyers that he wanted to make a new will, and accordingly gave more
detailed instructions as to how he wanted to divide his properties among his four
children. He handed to them a list and on the left he indicated the name of the child
to whom the listed properties shall pertain. Atty. Jorge Imperial took notes of the
instructions of Don Jesus Alsua. To Don Jesus, Spanish is his major language, as in
fact his conversations with Don Gregorio are always in Spanish. A few days before
November 14, 1959, Atty. Jorge S. Imperial showed to Don Jesus the semi-final draft
of the will and after reading it Don Jesus said that it was as directed by him, and
after making a few minor corrections, he instructed Atty. Jorge S. Imperial to put the
win in final form. He further told Atty, Jorge Imperial that the signing of the will
should be at his home in Ligao, in the morning of November 14, 1959, and that the
witnesses should be Mr. Ramon Balana, the then Register of Deeds of Albay; Mr. Jose
Madarieta who is a friend of the family; and Mr. Jose Gaya who is a sort of employee
of Don Jesus.
Thus in the morning of November 14, 1959, Don Gregorio and Atty. Jorge S.
Imperial, riding in a sedan, stopped at the Legaspi residence of Mr. Ramon Balana,
and informed the latter that Don Jesus was requesting him to be one of the attesting
witnesses to his will. Mr. Balana, having a very high regard for Don Jesus, considered
it an honor to be so asked, and gladly went with the Imperials. They arrived at the
residence of Don Jesus at Ligao; Albay, almost ten o'clock of that morning, and they
were ushered in by Mr. Jose Gaya, and the latter requested them to be seated at the
usual receiving room on the ground floor while he announced their arrival to Don
Jesus who was on the second floor. Soon Don Jesus came down, carrying with him
the will to be signed placed inside a cartolina folder. He greeted Don Gregorio, Mr.

Balan, and Atty. Imperial and immediately joined them in conversation. Mr. Gaya
called for Mr. Jose Madarieta, whose residence is just across the road from the house
of Don Jesus. Mr. Madarieta was already informed by Don Jesus himself about the
fact of signing the will that morning, and so, on being advised by Mr. Gaya that the
Imperials had already arrived, Madarieta proceeded to the residence of Don Jesus,
without much delay. With the coming of Madarieta and the coming back of Gaya,
there were now six people gathered in the living room, namely: Don Jesus Alsua,
Don Gregorio Imperial Atty. Jorge S. Imperial Mr. Ramon Balana, Mr. Jose Madarieta,
and Mr. Jose Gaya. All the witnesses who testified for the petitioner declared that
Don Jesus was in bright and lively conversation which ran from problems of farming
and the merits of French-made wines. At 1 1:00 o'clock, Don Gregorio made a
remark that it is about time to do what they were there for, and this was followed by
a more or less statement from Jesus, who said: t.hqw
'Preisamente es por lo que he Hamado a ustedes que esten presentes para ser
testigos de rni ultimo voluntad y testamento que ha sido preparado por el abogado
Sr. Gregorio Imperial segun mis instrucciones cuyo documento tengo aqui conmigo
y encuentro que, despues de lo he leido, esta satisfactoriamente hecho segun mis
instrucciones, Como saben ustedes tengo cuatro (4) hijos todos egos.' (pp. 43-44,
t.s.n., hearing of December 7, 1967, Sarte.
On request of Don Jesus, all of them moved to the big round table on another part of
the same sala for convenience in signing because there were chairs all around this
table. The will which consisted of nine pages, with a duplicate, and triplicate was
laid on the round table and the signing began, with Atty. Jorge S. Imperial assisting
each person signing by indicating the proper place where the signature shall be
written. Don Jesus, as testator, signed first. After signing the original and the two
other sets, the three sets were then passed to Mr. Ramon Balana who signed as
attesting witness. After Mr. Balana, Mr. Jose Madarieta signed next as another
attesting witness, and when Mr. Madarieta finished signing all the three sets, the
same were passed to Mr. Jose Gaya who also signed as the third attesting witness.
On each of the three sets, Don Jesus signed ten times, one on the margin of each
of the nine pages, and at the end of the instrument proper. Each of the three
attesting witnesses (Balana, Madarieta and Gaya) signed eleven times on each set,
one on the margin of each of the nine pages, one at the end of the instrument
proper and one below the attestation clause. The original will was marked as Exh. A
(or set A); the duplicate as Exh. K (or set K) and the triplicate of Don Jesus, Mr.
Balana, Mr. Madarieta, and Mr. Gaya were Identified by Mr. Balana, Mr. Madarieta
and Atty. (now Judge) imperial. It was also clearly established that when Don Jesus
signed the will Mr. Balana, Mr. Madarieta, and Mr. Gaya were present and witnessed
said signing, and that when each of these three witnesses was signing, Don Jesus
and the two other attesting witnesses were present and Witnessing said Signing.
The signing by the testator and the attesting witnesses having been completed,
Atty. Jorge S. Imperial as Notary Public with commission for the entire province of
Albay, notarized the wilt and sealed it with his notarial seat which seal he brought
along that morning. After all the three sets were notarized, they were all given back
to Don Jesus who placed them inside the same folder. At that moment, it was

already about 12:30 P.M. and Don Jesus invited all of them to lunch, which invitation
was gladly accepted by all of then-L (pp. 474-480, Joint Record on Appeal in CA-G.R.
No. 54492-R)
which findings are supported by the evidence, - it is quite difficult to conclude that
the same had not complied with the requirements of Arts. 804- 806 of the New Civil
Code. ... (CA Decision, pp. 13-16, as translated).
This cited portion of the appealed decision accepts as a fact that the findings of the
lower court declaring the contested will as having been executed with all the formal
requirements of a valid will, are supported by the evidence. This finding is
conclusive upon this Tribunal and We cannot alter, review or revise the same.
Hence, there is no further need for Us to dwell on the matter as both the lower court
and the respondent appellate court have declared that these are the facts and such
facts are fully borne and supported by the records. We find no error in the
conclusion arrived at that the contested will was duly executed in accordance with
law. We rule that the questioned last will and testament of Don Jesus Alsua fully
complied with the formal requirements of the law.
Respondent court, however, denied probate of the will after ,'noting certain details
which were a little bit difficult to reconcile with the ordinary course of things and of
life." First was the fact that the spouses Don Jesus and Do;a Tinay together with
their four children Francisco, Pablo, Amparo and Fernando had executed the
Extrajudicial Partition of November 25, 1949 (Exh. A) which divided the conjugal
properties of the spouses between the spouses themselves and the children under
the terms and conditions and dispositions herein before stated and to implement its
provisions, Don Jesus and Do;a Tinay subsequently executed separately their
respective holographic wigs both dated January 5, 1955 and codicils dated August
14, 1956 with the same terms and conditions as reproduced herein earlier. Both
holographic wills and codicils having been probated thereafter and upon the death
of Do;a Tinay, Don Jesus was appointed executor of the will and in due time the
partition of the properties or estate of Do;a Tinay was approved by the probate
court on July 6, 1960.
The respondent court ruled that the Extrajudicial Partition of November 25, 1949
was an enforceable contract which was binding on Don Jesus Alsua as the surviving
spouse, barring him from violating said partition agreement, barring him from
revoking his holographic will of January 5, 1955 and his codicil of August 14, 1956,
and further barring him from executing his new will and testament of November 14,
1959, now the subject of the probate proceedings elevated to this Court.
We do not agree with this ruling of the Court of Appeals. We hold that the
Extrajudicial Partition of November 25, 1949 is null and void under Article 1056 in
relation to Article 1271 of the old Civil Code which are applicable hereto. These
Articles provide as follows: t.hqw
Art. 1056. If the testator should make a partition of his property by an act inter
vivos, or by will, such partition shall stand in so far as it does not prejudice the
legitime of the forced heirs. ...

Art. 1271. All things, even future ones, which are not excluded from the commerce
of man, may be the subject-matter of contracts.
Nevertheless, no contract may be entered into with respect to future inheritances,
except those the object of which is to make a division inter vivos of an estate, in
accordance with Article 1056.
All services not contrary to law or to good morals may also be the subject- matter of
contract.
Article 1056 specifically uses the word "testator" from which the clear intent of the
law may be deduced that the privilege of partitioning one's estate by acts inter
vivos is restricted only to one who has made a prior will or testament. In other
words, Article 1056 being an exception cannot be given a wider scope as to include
in the exception any person whether he has made a will or not.
Respondent court citing the same Article concluded that under both the old and new
Civil Code, a person who executes a will is permitted at the same time or a little
thereafter or even before as long as he mentions this fact in the will, to partition his
properties pursuant to the provisions of Article 1056 of the old Civil Code. The court
further added that jurisprudence is to the effect that the partition presupposes the
execution of the will that it ratifies or effectuates, citing the case of Legasto vs.
Verzosa, 54 Phil. 776. Finally, respondent court held the opinion that the
extrajudicial partition of November 14, 1949 was ratified in the holographic will
executed by Don Jesus on Jan. 5, 1955 and in the codicil of August 14, 1956.
Again, We do not agree with this ruling of the respondent court. In Legasto vs.
Verzosa, supra, the Supreme Court categorically declared the necessity of a prior
will before the testator can partition his properties among his heirs, and We quote
the pertinent portions of the decision: t.hqw
The first question to decide in the instant appeal is whether the partition made by
Sabina Almadin of her property among her nieces, the defendants and appellants
herein, was valid and enforceable.
Article 1056 of the Civil Code provides:
Art. 1056. If the testator should make a partition of his property by an act inter
vivos, or by will, such partition shall stand in so far as it does not prejudice the
legitime of the forced heirs.
The Supreme Court of Spain, in a decision rendered on June 13, 1903, laid down the
following doctrine:
Considering that the language of article 1056 cannot be interpreted to mean that a
person may, by acts inter vivos, partition his property referred to in the section
wherein said article is found, without the authority of a testament containing an
expression of his last will, or the authority of law, for, otherwise, a partition thus
made would be tantamount to making a will in a manner not provided for,
authorized, nor included in the chapter referring to testaments, and especially, to
the forms thereof, which is entirely different from the legal consequences of a free

disposition made by parents during their lifetime, whereby they give to their
children the whole or a part of their property;
Considering that, inasmuch as the second paragraph of article 1271 makes
reference to the aforesaid article, in providing that no contracts may be entered into
with respect to future inheritances except those the object of which is to make a
division inter vivos of the estate in accordance with article 1056, it is evident that
said difference likewise leads to the conclusion that a partition thus made should be
on the basis of a testamentary or legal succession and should be made in
conformity with the fundamental rules thereof and the order of the heirs entitled to
the estate, because neither of the two provisions could be given a wider meaning or
scope than that they simply provide for the division of the estate during the lifetime
of the owner, which, otherwise, would have to be done upon the death of the
testator in order to carry into effect the partition of the estate among the persons
interested.
Manresa comments on the same article as follows:
A distinction must be made between the disposition of property and its division; and
the provision of article 1056 authorizing the testator to dispose of his property by
acts inter vivos or by last will, must be understood in accordance with this
distinction. The Idea is to divide the estate among the heirs designated by the
testator. This designation constitutes the disposition of the properties to take effect
after his death, and said act must necessarily appear in the testament because it is
the expression of the testator's last will and must be surrounded by appropriate
formalities. Then comes the second part, to wit, the division in conformity with that
disposition, and the testator may make this division in the same will or in another
will, or by an act inter vivos. With these words, the law, in article 1056 as well as in
article 1057, which we shall hereafter examine, makes allusion to the forms or
manner of making the partition and not to the effects thereof, which means that, for
purposes of partition the formal solemnities which must accompany every
testament or last will are not necessary. Neither is it necessary to observe the
special for. realities required in case of donations, because it is not a matter of
disposing gratuitously of properties, but of dividing those which already have been
legally disposed of.
It is thus seen that both the Spanish Supreme Court and the learned and
authoritative commentator, Manresa, are of opinion that a testator may, by an act
inter vivos, partition his property, but he must first make a will with all the
formalities provided for by law. And it could not be otherwise, for without a will there
can be no testator; when the law, therefore, speaks of the partition inter vivos made
by a testator of his property, it necessarily refers to that property which he has
devised to his heirs. A person who disposes of his property gratis inter vivos is not
called a testator, but a donor. In employing the word "testator," the law evidently
desired to distinguish between one who freely donates his property in life and one
who disposes of it by will to take effect after his death.
We are not in conformity with the holding of the respondent court that the
extrajudicial partition of November 25, 1949 which under the old Civil Code was

expressly prohibited as against public policy had been validly ratified by the
holographic will of Don Jesus executed on January 5, 1955 and his codicil of August
14, 1956. Such a holding of the appellate court that a person who executes a will is
permitted to partition his properties pursuant to the provisions of Article 1056 of the
old Civil Code even before executing his will as long as he mentions this fact in the
will, is not warranted under the ruling of Legasto vs. Verzosa, supra and the
commentary of Manresa as quoted above. We rule, therefore, that the respondent
court erred in denying probate to the will of Don Jesus dated November 14, 1959; it
erred in holding that Don Jesus being a party to the extrajudicial partition of 1949
was contractually bound by the provisions thereof and hence could not revoke his
participation therein by the simple expedience of making a new will with contrary
provisions or dispositions. It is an error because the so-called extrajudicial partition
of 1949 is void and inoperative as a partition; neither is it a valid or enforceable
contract because it involved future inheritance; it may only be given effect as a
donation inter vivos of specific properties to the heirs made by the parents.
Considering that the document, the extrajudicial partition of November 25, 1949,
contained specific designation of properties allotted to each child, We rule that
there was substantial compliance with the rules on donations inter vivos under the
old Civil Code (Article 633). On the other hand, there could have been no valid
donation to the children of the other half reserved as the free portion of Don Jesus
and Do;a Tinay which, as stated in the deed, was to be divided equally among the
children for the simple reason that the property or properties were not specifically
described in the public instrument, an essential requirement under Article 633
which provides as follows: t.hqw
Art. 633. In order that a donation or real property be valid it must be made by public
instrument in which the property donated must be specifically described and in the
amount of the encumbrances to be assumed by the donee expressed.
The acceptance must be made in the deed of gift or in a separate public writing; but
it shall produce no effect if not made during the lifetime of the donor.
If the acceptance is made by separate public instrument, authentic notice thereof
shall be given the donor, and this proceeding shall be noted in both instruments.
This other half, therefore, remained as the disposable free portion of the spouses
which may be disposed of in such manner that either of the spouses would like in
regards to his or her share in such portion, unencumbered by the provision
enjoining the last surviving spouse to give equally to the children what belongs orwould pertain to him or her. The end result, therefore, is that Don Jesus and Do;a
Tinay, in the Deed of 1949, made to their children valid donations of only one-half of
their combined properties which must be charged against their legitime and cannot
anymore be revoked unless inofficious; the other half remained entirely at the free
disposal of the spouses with regards to their respective shares.
Upon the death of Do;a Tinay on October 2, 1959, her share in the free portion was
distributed in accordance with her holographic will dated January 25, 1955 and her
codicil dated August 14, 1956. It must be stressed here that the distribution of her

properties was subject to her holographic win and codicil, independently of the
holographic will and codicil of Don Jesus executed by him on the same date. This is
fundamental because otherwise, to consider both wills and codicils jointly would be
to circumvent the prohibition of the Civil Code on joint wills (Art. 818) and secondly
because upon the death of Do;a Tinay, only her estate was being settled, and not
that of Don Jesus.
We have carefully examined the provisions of the holographic will and codicil of
Do;a Tinay and We find no indication whatsoever that Do;a Tinay expressly or
impliedly instituted both the husband and her children as heirs to her free portion of
her share in the conjugal assets. In her holographic will, mention of her children as
heirs was made in the fourth clause but it only provided that, to wit: t.hqw
Cuatro. Que si yo adquieriese nuevase propiedades despues de otorgado este mi
testamento seran las mismas repartados entre mi esposo o hijos arriba mencionada
en el parrafo tercero su la misma proporcion o sea: la mitad (1/2) para is esposa; y
la otra mitad (1/2) para mis hijos en partes iguales.
For purposes of clarity and convenience, this fourth clause provided that "Should I
acquire new properties after the execution of this testament, the same shall be
partitioned among my spouse and above named children or the children mentioned
in above par. 3 in the same proportion, that is, one- half (1/2) to my spouse; and the
other half to my children in equal parts." From the above-quoted provision, the
children would only inherit together with Don Jesus whatever new properties Do;a
Tinay would acquire after the execution of her will.
Likewise, the codicil of Do;a Tinay instituted her husband as sole heir to her share
in the free portion of the conjugal assets, and We quote that part of the codicil: t.
hqw
Dejo a mi esposo Jesus Alsua como su legitima y como herencia que se sacara de ni
cuenta de libre disposicion todos aquellos bienes de los que no he dispuesto aun en
favor de mis hijos en la escritura de reparticion precitada y que excedieran de la
mitad de gananciales que le corresponds tal como arriba declare, incluyendo todos
aquenos bienes que se adquiriesen por nosotros despues de otorgado por mi este
testamento.
Para el caso de que Dios dispusiera que yo sobreviviera a mi esposo declaro que es
mi voluntad que todas las propiedades de todo genero que me pertenecen y me
pudieran pertenecer, no dispuestas aun en la reparticion, se dividan por igual entre
mis herederos mencionados despues de mi muerte.
Again for purposes of clarity and convenience, the above portion states: t.
hqw
I leave to my spouse Don Jesus Alsua as his legitime and as his inheritance the part
of the free portion of my property which have not been allocated in favor of my
children in the Document of Partition aforecited and that which should exceed 1/2 of
the conjugal property of gains that pertains to him as above stated, including all
those properties which we shall acquire after the execution of this document.

In case it should be God's will that I survive my spouse, I hereby declare that it is
my will that any and all kinds of property that pertains to me or would pertain to
me, which have not been disposed of pursuant to the partition, should be divided
equally among my above-mentioned heirs after my death.
The children, therefore, would only receive equal shares in the remaining estate of
Do;a Tinay in the event that she should be the surviving spouse. To stress the
point, Do;a Tinay did not oblige her husband to give equally to the children, upon
his death, all such properties she was bequeathing him.
Considering now the efficacy of Don Jesus' last will and testament executed on
November 14, 1959 in view of Our holding that Do;a Tinay's wig and codicil did not
stipulate that Don Jesus will bestow the properties equally to the children, it follows
that all the properties of Do;a Tinay bequeathed to Don Jesus under her
holographic win and codicil became part of Don Jesus' estate unburdened by any
condition obligation or proviso.
Respondents insist that Don Jesus was bound by the extrajudicial partition of
November 25, 1949 and had in fact conformed to said Partition by making a
holographic will and codicil with exactly the same provisions as those of Do;a
Tinay, which respondent court sustained. We rule, however, that Don Jesus was not
forever bound thereby for his previous holographic will and codicil as such, would
remain revokable at his discretion. Art. 828 of the new Civil Code is clear: "A win
may be revoked by the testator at any time before his death. Any waiver or
restriction of this right is void." There can be no restriction that may be made on his
absolute freedom to revoke his holographic will and codicil previously made. This
would still hold true even if such previous will had as in the case at baralready been
probated (Palacios v. Palacios, 106 Phil. 739). For in the first place, probate only
authenticates the will and does not pass upon the efficacy of the dispositions
therein. And secondly, the rights to the succession are transmitted only from the
moment of the death of the decedent (Article 777, New Civil Code). In fine, Don
Jesus retained the liberty of disposing of his property before his death to
whomsoever he chose, provided the legitime of the forced heirs are not prejudiced,
which is not herein claimed for it is undisputed that only the free portion of the
whole Alsua estate is being contested.
After clearly establishing that only Don Jesus was named as sole heir instituted to
the remaining estate of Do;a Tinay in her holographic will and codicil resulting in
all such properties becoming the properties of Don Jesus alone, and after clearly
pointing out that Don Jesus can, in law, revoke his previous holographic will and
codicil, by making another win expressly cancelling and revoking the former, the
next issue for the Court's resolution is the validity of the provisions of the contested
will. Though the law and jurisprudence are clear that only questions about the
extrinsic validity of the will may be entertained by the probate court, the Court had,
on more than one occasion, passed upon the intrinsic validity of a will even before it
had been authenticated. Thus We declared inNuguid v. Nuguid, 17 SCRA 499: t.
hqw

The parties shunted aside the question of whether or not the will should be allowed
to probate. For them, the meat of the case is the intrinsic validity of the wilt
Normally this comes only after the court has declared that the will has been duly
authenticated. ...
... If the case were to be remanded for probate of the wilt nothing will be gained. On
the contrary, this litigation win be protracted and for ought that appears in the
record, in the event of probate or if the court rejects the will probability exists that
the case win come up once again before us on the issue of the intrinsic validity or
nullity of the wilt Result: waste of time, effort, expense, plus added anxiety. These
are the practical considerations that induce us to a behalf that we might as well
meet head-on the time of the validity of the provisions of the will in question. ...
The last Will and Testament of Don Jesus executed on November 14, 1959 contained
an express revocation of his holographic wig of January 5, 1955 and the codicil of
August 14, 1956; a statement requiring that all of his properties donated to his
children in the Deed of 1949 be collated and taken into account in the partition of
his estate; the institution of all his children as devisees and legatees to certain
specific properties; a statement bequeathing the rest of his properties and all that
may be acquired in the future, before his death, to Pablo and Francesca; and a
statement naming Francesca as executrix without bond.
Considering these testamentary provisions, a close scrutiny of the properties
distributed to the children under the Deed of 1949 and those distributed under the
contested will of Don Jesus does not show that the former had in fact been included
in the latter. This being so, it must be presumed that the intention of Don Jesus in
his last win was not to revoke the donations already made in the Deed of 1949 but
only to redistribute his remaining estate, or that portion of the conjugal assets
totally left to his free disposal and that which he received as his inheritance from
Do;a Tinay. The legitimes of the forced heirs were left unimpaired, as in fact, not
one of said forced heirs claimed or intimated otherwise. The properties that were
disposed of in the contested will belonged wholly to Don Jesus Alsua's free portion
and may be diamond of by him to whomsoever he may choose.
If he now favored Francesca more, as claimed by private respondents, or Pablo as in
fact he was, We cannot and may not sit in judgment upon the motives and
sentiments of Don Jesus in doing so. We have clearly laid down this rule
in Bustamante v. Arevalo, 73 Phil. 635, to wit: t.hqw
... nevertheless it would be venturesome for the court to advance its own Idea of a
just distribution of the property in the face of a different mode of disposition so
clearly expressed by the testatrix in the latter will. ...
It would be a dangerous precedent to strain the interpretation of a will in order to
effect what the court believes to be an equitable division of the estate of a
deceased person. The only functions of the courts in these cases is to carry out the
intention of the deceased as manifested in the wig. Once that intention has been
determined through a careful reading of the will or wills, and provided the law on
legitimes has not been violated, it is beyond the place of judicial cognizance to

inquire into the fairness or unfairness of any devise or bequeast. The court should
not sit in judgment upon the motives and sentiments of the testatrix, first, because
as already stated, nothing in the law restrained her from disposing of her property
in any manner she desired, and secondly, because there are no adequate means of
ascertaining the inward process of her conscience. She was the sole judge of her
own attitude toward those who expected her bounty. ...
Respondent court, in trying to rationalize the will of Don Jesus which allegedly
benefited and favored the petitioner to the prejudice of the other heirs who would
have been entitled to an equal share under the extrajudicial partition of 1949, faced
two alternatives-one, to consider Don Jesus as a man of culture and honor and
would not
snow
himself to violate the previous agreement, and the other as one whose mental
faculties or his possession of the same had been diminished considering that when
the will was executed, he was already 84 years of age and in view of his weakness
and advanced age, the actual administration of his properties had been left to his
assistant Madarieta who, for his part received instructions from Francisco and her
husband, Joseph Betts. According to the court, the better explanation is the latter,
which is not legally tenable. Under Article 799 of the New Civil Code which provides
as follows: t.hqw
Art. 799. To be of sound mind, it is not necessary that the testator be in full
possession of all his reasoning faculties, or that his mind be wholly unbroken,
unimpaired, or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know
the nature of the estate to be disposed of, the proper objects of his bounty, and the
character of the testamentary act,
The test of testamentary capacity is at the time of the making of the win. Mere
weakness of mind or partial imbecility from disease of body or from age-does not
render a person incapable of making a will. t.hqw
Between the highest degree of soundness of mind and memory which
unquestionably carries with it full testamentary capacity, and that degrees of
mental aberration generally known as insanity or Idiocy, there are numberless
degrees of mental capacity or incapacity and while on one hand it has been held
that mere weakness of mind, or partial imbecility from disease of body, or from age,
will not render a person incapable of making a will; a weak or feebleminded person
may make a valid will, provided he has understanding and memory sufficient to
enable him to know what he is about to do and how or to whom he is disposing of
his property. To constitute a sound and disposing mind, it is not necessary that the
mind be unbroken or unimpaired or unshattered by disease or otherwise. It has
been held that testamentary incapacity does not necessarily require that a person
shall actually be insane or of unsound mind. (Bugnao vs. Ubag, 14 Phil. 163).

The Civil Code itself provides under Article 798 that in order to make a will, it is
essential that the testator be of sound mind at the time of its execution, and under
Article 800, the law presumes that every person is of sound mind in the absence of
proof to the contrary. In the case at bar, the acceptance by the respondent court of
the findings of fact of the trial court on the due execution of the last win and
testament of Don Jesus has foreclosed any and all claim to the contrary that the will
was not executed in accordance with the requirements of the law. But more than
that, gleaned from the quoted portions of the appealed decision, the described
behavior of Don Jesus is not that of a mentally incapacitated person nor one
suffering from "senile dementia" as claimed by private respondents. From these
accepted facts, We find that: (a) it was Don Jesus himself who gave detailed
instructions to his lawyer as to how he wanted to divide his properties among his
children by means of a list of his properties should pertain; (b) the semi-final draft of
the contested will prepared by his lawyer w-as even corrected by Don Jesus; (c) on
the day of the signing of the will at his house in Ligao, "Don Jesus was in bright and
lively spirits ..., leading in the conversation which ran from problems of farming and
the merits of French-made wines"; (d) the signing of the will by Don Jesus and his
attesting witnesses was made after a statement from Don Jesus of the purpose of
their meeting or gathering, to wit: t.hqw
Precisamente es por lo que he Ilamado a ustedes que eaten presentes para ser
testigos de mi ultima voluntad y testamento que ha sido preparado por el abogado
Sr. Gregorio Imperial segun mis instrucciones cuyo documents tengo aqui con migo
y encuentro que, despues de lo he leido, esta satisfactoriamente hecho segun mis
ingtrucciones, Como saben ustedes tengo cuatro (4) hijos todos ellos.
Clearly then, Don Jesus knew exactly what his actions were and the fun implications
thereof.
In rejecting probate of the wilt respondent court further pointed out other details
which, in the words of the decision "are a little bit difficult to reconcile with the
ordinary course of things and of fife" such as the fact that Don Jesus had sought the
probate of his will of January 5, 1955 and his codicil of August 14, 1956 during his
lifetime but insofar as the will of November 14, 1959 is concerned, he had no
intention of seeking the probate thereof during his lifetime, the alleged redundant
and unnecessary proceedings undertaken by Don Jesus in the properties under
question to petitioner Franciso Alsua-Betts when the same properties had already
been bequeathed to her in the will of November 14, 1959 and that "nothing,
absolutely nothing, could be made the basis for finding that Don Jesus Alsua had
regarded his other children with less favor, and that he was more sympathetic to
Francisca so as to or forget the former depriving them of benefits already given to
them and rewarding the latter with disproportionate advantages or benefits, to such
an extreme as to violate his previous disposition consecrated in the previous
extrajudicial partition, Exh. 8."
We agree with the petitioner that these details which respondent court found
difficult to reconcile with the ordinary course of things and of life are mere
conjectures, surmises or speculations which, however, do not warrant or justify

disallowance of the probate of the win of Don Jesus. The fact that Don Jesus did not
cause his will to be probated during his lifetime while his previous holographic win
and codicil were duly probated when he was still alive is a mere speculation which
depends entirely on the discretion of Don Jesus as the testator. The law does not
require that a will be probated during the lifetime of the testator and for not doing
so there cannot arise any favorable or unfavorable consequence therefrom. The
parties cannot correctly guess or surmise the motives of the testator and neither
can the courts. Such surmise, speculation or conjecture is no valid and legal ground
to reject allowance or disallowance of the wig. The same thing can be said as to
whatever reason Don Jesus had for selling the properties to his daughter Francisca
when he had already assigned the same properties to her in his will. While We can
speculate that Don Jesus desired to have possession of the properties transferred to
Francisca after the sale instead of waiting for his death may be a reasonable
explanation or speculation for the act of the testator and yet there is no certainty
that such was actually the reason. This is as good a conjecture as the respondents
may offer or as difficult to accept which respondent court believes. A conjecture is
always a conjecture; it can never be admitted as evidence.
Now, the annulment case. The only issue raised anent the civil case for annulment
of the two Deeds of Sale executed by and between Don Jesus and petitioner
Francisco is their validity or nullity. Private respondents mainly contend that the
sales were fictitious or simulated, there having been no actual consideration paid.
They further insist that the issue raised is a question of fact and, therefore, not
reviewable in a certiorari proceeding before the Supreme Court. On the other hand,
petitioners herein maintain that it was error for the respondent court to set aside on
appeal the factual findings of the trial court that the two sales were valid.
It is true that the jurisprudence of this Court in cases brought to Us from the Court
of Appeals is limited to reviewing and revising the errors of law imputed to it, its
findings of fact being conclusive; and this same principle applies even if the Court of
Appeals was in disagreement with the lower court as to the weight of evidence with
a consequent reversal of its findings of fact. But what should not be ignored by
lawyers and litigants alike is the more basic principle that the "findings of fact"
described as "final" or "conclusive" are those borne out by the record or those which
are based upon substantial evidence. The general rule laid down by the Supreme
Court does not declare the absolute correctness of all the findings of fact made by
the Court of Appeals. These are exceptions to the general rule, where We have
reviewed and revised the findings of fact of the Court of Appeals. Among the
exceptions to the rule that findings of fact by the Court of Appeals cannot be
reviewed on appeals by certiorari are:
1. When the conclusion is a finding grounded entirely on speculation, surmises or
conjectures (Joaquin vs. Navarro, 93 Phil. 257);
2. When the inference made is manifestly mistaken, absurd or impossible (Luna vs.
Linatok, 74 Phil. 15);
3. Where there is a grave abuse of discretion (Buyco vs. People, 51 O.G. 2927);

4. When the judgment is based on a misapprehension of facts (Cruz vs. Sosing, L4875, Nov. 27, 1953);
5. When the findings of fact are conflicting (Casica vs. Villaseca, L-9590, April 30,
1957); and
6. When the Court of Appeals, in making its findings, went beyond the issues of the
case and the same is contrary to the admissions of both appellant and appellee
(Evangelists vs. Alto Surety & Ins. Co., L-11139, April 23, 1958; Ramos vs. Pepsi
Cola, L-22533, Feb. 9, 1967, 19 SCRA 289).
In the case at bar, We find and so declare that the respondent court's conclusion as
to the nullity of the contested sales was not supported by the evidence on record
and adduced during the trial.
Evident from the records are the following documentary evidence: (1) Exhibit U, a
deed of sale over agricultural lands executed on August 26, 1961 by Don Jesus in
favor of Francisca for the consideration of Seventy Thousand Pesos (P70,000.00),
which document bears the signature of Don Jesus, not assailed as a forgery, and the
signature of Pablo Alsua as an instrumental witness, again not assailed as a forgery
nor alleged as done thru fraud, force or threat. (2) Exhibit "W", a deed of sale over
urban lots executed on November 16, 1962 for the consideration of Eighty
Thousand Pesos (P80,000.00), which document also bears the signature of Don
Jesus, also admittedly not a forgery. (3) Exhibit "F", a document dated August 26,
1961 and signed by Don Jesus and Pablo Alsua as witness, acknowledging receipt of
a Bank of Philippine Island Check No. 0252 in the amount of Seventy Thousand
Pesos (P70,000.00) for the sale of 33 parcels of agricultural land to Francisco under
the same date; again, Pablo did not deny the genuineness of his signature. (4)
Exhibit "X", a Bank of the Philippine Islands Check No. D-6979 dated November 26,
1962, in the amount of P32,644.71, drawn and signed by Francesca, payable to Don
Jesus. (5) Exhibit "X-1", a second Bank of Philippine Islands Check (No. D-6980) also
dated November 26, 1962 in the amount of ?47,355.29, drawn by Francisco and
payable to Don Jesus. (6) Exhibit "X-3 " and "X-5 ", endorsements on the back of the
last two checks by Don Jesus, again, his signatures thereon were not assailed. (7)
Exhibit "A" (in the annulment case), a Bureau of Internal Revenue Receipt (No.
2347260) dated November 29, 1962 with a notation acknowledging the receipt of
BPI Check No. D-6980 in the amount of P47,355.29 from Don Jesus Alsua in
payment of Balance of Transfer of Tax Ass. No. EA-35415-19 plus interest. We are
convinced and satisfied from this array of documentary evidence that in fact, Don
Jesus sold the subject properties to his daughter, Francisca for the total
consideration of P150,000.00.
The claim of the private respondents that the sales were fictitious and void for being
without cause or consideration is as weak and flimsy as the ground upon which the
respondent court upheld said claim on the basis that there was no need for funds in
Don Jesus' old age aside from the speculation that there was nothing in the
evidence that showed what motivated Don Jesus to change his mind as to favor
Francesca and discriminate against the other children. The two contracts of same
executed by Don Jesus in favor of Francesca are evidenced by Exhibits "U" and "W",

the genuineness of which were not at all assailed at any time during this long
drawn-out litigation of 15 years standing. That the consideration stated in the
contracts were paid is also sufficiently proved as the receipts thereof by Don Jesus
were even signed by one of the private respondents, Pablo Alsua, as a witness. The
latter cannot now deny the payment of the consideration And even of he now allege
that in fact no transfer of money was involved, We find his allegation belied by
Exhibits "X-3 " and "X-5 ", which show that the checks of Francisco made payable to
Don Jesus. were in fact given to Don Jesus as he endorsed them on the back thereof,
and most specifically Exhibit "A" in the annulment case, which proved that Don
Jesus actually used Exhibit "XI " to complete payment on the estate and inheritance
tax on the estate of his wife to the Bureau of Internal Revenue.
Private respondents further insist that the sales were fraudulent because of the
inadequacy of the given price. Inadequacy of consideration does not vitiate a
contract unless it is proven which in the case at bar was not, that there was fraud,
mistake or undue influence. (Article 1355, New Civil Code). We do not find the
stipulated price as so inadequate to shock the court's conscience, considering that
the price paid was much higher than the assessed value of the subject properties
and considering that the sales were effected by a father to her daughter in which
case filial love must be taken into account.
WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from is hereby set
aside. The decision of the Court of First Instance Of Albay in Special Proceedings No.
699 and Civil Case No. 3068 is hereby reinstated, with costs against respondents.
SO ORDERED.
Teehankee (Chairman), Makasiar and Fernandez, JJ., concur.1wph1.t
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-15814

February 28, 1962

IN THE MATTER OF THE ESTATE OF CANDELARIA BENGUAN, deceased.

SUSANA ABAY DE ARROYO, petitioner-appellant,
vs.
FRANCISCO ABAY, CONRADO ABAY, JR., JOSE ABAY and NORMA ABAY, opponentsappellees.
PADILLA, J.:
On 5 January 1956 Susana Abay de Arroyo filed in the Court of First Instance of
Negros Occidental a petition for the probate of the will of her deceased first-degree
cousin Candelaria Benguan (special proceedings No. 3883). On 28 May, the Court
ordered that the petition be published once a week for three consecutive weeks
in Civismo, a newspaper of general circulation in Negros Occidental, setting the date
of hearing thereof for the 23rd day of June 1956. On the date and time set for the

hearing of the petition attorney Rolando Medalla, representing some of the heirs
hereinafter referred to as opponents, moved for the postponement of the hearing to
give him time and opportunity to file a written objection to the petition. Whereupon,
the hearing was postponed to 30 June 1956. On 28 June, the opponents filed a
motion to dismiss on the ground that a petition for the probate of the same last will
and testament had been dismissed by the same Court in a previous special
proceedings No. 3628 and constitutes a bar to the present proceedings (No. 3883).
On 7 July, the petitioner answered the motion to dismiss. By an order entered on 14
July, the Court dismissed the petition. After considering the motion for
reconsideration filed by the petitioner on 31 July 1956 and the answer thereto filed
by the opponents on 3 August 1956, the Court denied the motion for
reconsideration. The petitioner appealed to the Court of Appeals which certified the
appeal to this Court for only questions of law are raised. .1wph1.t
The previous proceedings invoked by the opponents to bar the present is special
proceedings No. 3623 filed in the Court of First Instance of Negros Occidental on 27
September 1955 by one Felix Abay, a brother of Susana Abay de Arroyo, the herein
petitioner and appellant. The last will and testament involved therein is the same
involved herein. However, upon failure of Felix Abay and his counsel Pio B. Japitana
to appear at the hearing on 5 November 1955, despite due notice, the Court there
dismissed the petition, without stating that it was a dismissal with prejudice. Two
motions for reconsideration were filed, the first on 15 November 1955 and the
second on 28 November 1955, but both were denied, the last for lack of merit. .
The issue now hinges on whether or not the petition for the probate of a will filed in
this special proceedings is barred by a previous special proceedings No. 3628, the
petition of which was dismissed for failure of the petitioner and his counsel to
appear on the date set for the hearing thereof. .
The appellant contends that the dismissal of the petition in the previous case (spec.
proc. No. 3628) does not bar the present (spec. proc. No. 3883), both for the
probate of the same last will and testament of the late Candelaria Benguan,
because the dismissal for failure of the petitioner and his counsel to appear at the
hearing set by the Court was not an adjudication on the merits of the case and is
not res judicata, because the parties in the previous and present proceedings are
not the same. .
The appellant's contention that the dismissal of the petition for probate in the
previous special proceedings due to failure of the then petitioner and his counsel to
appear on the date and time set for the hearing thereof is not an adjudication on
the merits must be upheld. In arriving at this conclusion the Court has not
overlooked the provisions of sections 3 and 4, Rule 30, and section 2, Rule 73, of the
Rules of Court. The probate of a will may be the concern of one person or several
persons as usually is the case. The fault of one such person may be imputed to him
alone who must suffer the consequences of his act. Such fault cannot be imputed to
other persons. Hence, the failure of Felix Abay and his counsel to appear on the
date and time set for the hearing of the petition for the probate of a will claimed to
have been executed by the late Candelaria Benguan during her lifetime which

brought about the dismissal of the petition filed in that special proceedings (No.
3628) cannot prejudice the right of Susana Abay de Arroyo, the petitioner, in a
subsequent petition filed for the probate of the same will and last testament. So the
provisions of the Rules cited and invoked by the opponents-appellees cannot be
made to apply to proceedings for the probate of wills, because as already stated
other parties interested in the probate of a will for transmission of property rights to
them should not be prejudiced by the act or fault of another and because it is the
policy of the State to have such last wills and testaments submitted to Court for
their probate or legalization, as shown or indicated or evidenced by or in the
punishment provided for persons who are in possession of last wills and testaments
of deceased persons and fail or neglect to deliver or present them to Court for
probate or to deliver them to the executor named in the will within twenty days
after they know of the death of the testators or within the same period of time after
they know that they were named executors of the will (sections 2 to 5, Rule 76). The
underlying reason for the rule that a dismissal of an action or complaint in a civil
case may be a bar to a subsequent action unless the dismissal is without prejudice
is lack of interest or inaction of the one who brought the action in court by his
complaint and for such lack of interest or inaction he should be made to suffer. .
The order of dismissal appealed from is set aside and the petition for probate of a
will filed in special proceedings No. 3883 remanded to the Court of First Instance of
Negros Occidental for further proceedings as provided for in the Rules of Court,
without special pronouncement as to costs.
Bengzon, C.J., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera,
Paredes, Dizon and De Leon, JJ., concur. .
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-41014 November 28, 1988
PACIFIC BANKING CORPORATION, petitioner,
vs.
COURT OF APPEALS and ORIENTAL ASSURANCE CORPORATION, respondents.
Flores, Ocampo, Dizon and Domingo Law Office for petitioner.
Cabochan and Reyes Law Office for respondents.

PARAS, J.:
This is a petition for review on certiorari of the decision of respondent Court of
Appeals * in CA-G.R. No. 41735-R, entitled "Pacific Banking Corporation vs. Oriental
Assurance Corporation", which set aside the decision of the Court of First Instance

(CFI) of Manila, ** which had in turn granted the complaint for a sum of money in
Civil Case No. 56889.
As gathered from the records, the undisputed facts of this case are as follows:
On October 21,1963, Fire Policy No. F-3770 (Exhibit "A"), an open policy, was issued
to the Paramount Shirt Manufacturing Co. (hereinafter referred to as the insured, for
brevity), by which private respondent Oriental Assurance Corporation bound itself to
indemnify the insured for any loss or damage, not exceeding P61,000.00, caused by
fire to its property consisting of stocks, materials and supplies usual to a shirt
factory, including furniture, fixtures, machinery and equipment while contained in
the ground, second and third floors of the building situated at number 256
Jaboneros St., San Nicolas, Manila, for a period of one year commencing from that
date to October 21, 1964.
The insured was at the time of the issuance of the policy and is up to this time, a
debtor of petitioner in the amount of not less than Eight Hundred Thousand Pesos
(P800,000.00) and the goods described in the policy were held in trust by the
insured for the petitioner under thrust receipts (Record on Appeal, p. 4).
Said policy was duly endorsed to petitioner as mortgagee/ trustor of the properties
insured, with the knowledge and consent of private respondent to the effect that
"loss if any under this policy is payable to the Pacific Banking Corporation".
On January 4, 1964, while the aforesaid policy was in full force and effect, a fire
broke out on the subject premises destroying the goods contained in its ground and
second floors (Record on Appeal, p.5)
On January 24, 1964, counsel for the petitioner sent a letter of demand to private
respondent for indemnity due to the loss of property by fire under the endorsement
of said policy (Brief for Plaintiff-Appellee, pp. 16-17).
On January 28, 1964, private respondent informed counsel for the petitioner that it
was not yet ready to accede to the latter's demand as the former is awaiting the
final report of the insurance adjuster, H.H. Bayne Adjustment Company (Brief for
Plaintiff-Appellee, pp. 17-18).
On March 25, 1964, the said insurance adjuster notified counsel for the petitioner
that the insured under the policy had not filed any claim with it, nor submitted proof
of loss which is a clear violation of Policy Condition No.11, and for which reason,
determination of the liability of private respondent could not be had (Supra, pp. 1920).
On April 24, 1964, petitioner's counsel replied to aforesaid letter asking the
insurance adjuster to verify from the records of the Bureau of Customs the entries of
merchandise taken into the customs bonded warehouse razed by fire as a reliable
proof of loss (Supra, pp. 21-22). For failure of the insurance company to pay the loss
as demanded, petitioner (plaintiff therein) on April 28, 1 964, filed in the court a
quo an action for a sum of money against the private respondent, Oriental

Assurance Corporation, in the principal sum of P61,000.00 issued in favor of

Paramount Shirt Manufacturing Co. (Record on Appeal, pp. 1-36).
On May 25, 1964, private respondent raised the following defenses in its answer to
wit: (a) lack of formal claim by insured over the loss and (b) premature filing of the
suit as neither plaintiff nor insured had submitted any proof of loss on the basis of
which defendant would determine its liability and the amount thereof, either to the
private respondent or its ad . adjuster H.H. Bayne Adjustment Co., both in violation
of Policy Condition No.11 (Record on Appeal, pp. 37-38).
At the trial, petitioner presented in evidence Exhibit "H", which is a communication
dated December 22, 1965 of the insurance adjuster, H.H. Bayne Adjustment Co. to
Asian Surety Insurance Co., Inc., revealing undeclared co-insurances with the
following: P30,000.00 with Wellington Insurance; P25,000. 00 with Empire Surety
and P250,000.00 with Asian Surety; undertaken by insured Paramount on the same
property covered by its policy with private respondent whereas the only coinsurances declared in the subject policy are those of P30,000.00 with Malayan
P50,000.00 with South Sea and P25.000.00 with Victory (Brief for the Defendant pp.
13-14).
It will be noted that the defense of fraud and/or violation of Condition No. 3 in the
Policy, in the form of non-declaration of co-insurances which was not pleaded in the
answer was also not pleaded in the Motion to Dismiss.
At any rate, on June 30, 1967, the trial court denied private respondent's motion on
the ground that the defense of lack of proof of loss or defects therein was raised for
the first time after the commencement of the suit and that it must be deemed to
have waived the requirement of proof of loss (Sections 83 and 84, Insurance Act;
Record on Appeal, p. 61).
On September 9, 1967, the case was considered submitted for decision from which
order private respondent filed a motion for reconsideration to set the case or further
reception of private respondent's additional evidence, "in order to prove that
'insured has committed a violation of condition No. 3 of the policy in relation to the
other Insurance Clause.' " (Record on Appeal, pp. 61-69).
On September 30,1967, the case was set for the continuation of the hearing for the
reception merely of the testimony of Alejandro Tan Gatue, Manager of the
Adjustment Co., over the vehement opposition of the petitioner (Record on Appeal,
p. 129).
On April 18, 1 968, the trial court rendered a decision adjudging private respondent
liable to the petitioner under the said contract of insurance, the dispositive portion
of which reads:
WHEREFORE, judgment is hereby rendered ordering the defendant to pay the
plaintiff P61,000.00, with interest at the rate of 8% per annum from January 4, 1964,
to April 28, 1964, and 12% from April 29, 1964, until the amount is fully paid,
P6,100.00, as attorney's fees, and the costs.

SO ORDERED. (Record on Appeal, pp. 140-141)

On appeal, the Court of Appeals reversed the decision of the trial court (Decision
promulgated on April 23, 1975, Rollo, pp. 21-33).
Petitioner filed a motion for reconsideration of the said decision of the respondent
Court of Appeals, but this was denied on July 3,1975 for lack of merit (Rollo, pp. 5467), resulting in this petition with the following assigned errors;
I
RESPONDENT COURT OF APPEALS COMMITTED A GRAVE ERROR OF LAW IN
CONCLUDING FRAUD FROM THE BARE FACT THAT THE INSURED PARAMOUNT
PROCURED ADDITIONAL INSURANCES OTHER THAN THOSE STATED IN THE POLICY IN
SPITE OF THE EXISTENCE OF CONTRARY PRESUMPTIONS AND ADMITTED FACT AND
CIRCUMSTANCES WHICH NEGATE THE CORRECTNESS OF SAID CONCLUSION.
(a) The respondent Court did not consider the legal presumption against the
existence of fraud, which should be established with such quantum of proof as is
required for any crime.
(b) The record of the case is bereft of proof of such fraud.
(c) The private respondent insurer did not even plead or in anywise raise fraud as a
defense in its answer or motion to dismiss and, therefore, it should have been
considered waived.
(d) The total amount of insurance procured by the insured from the different
companies amounted to hardly onehalf () of the value of the goods insured.
II
RESPONDENT COURT ERRED IN NOT HOLDING THAT CONSIDERING THE VOTING ON
THE PARTICULAR QUESTION OF FRAUD, THE FINDING OF THE TRIAL COURT
THEREON SHOULD BE CONSIDERED AFFIRMED.
III
THE CONCURRING OPINION OF MR. JUSTICE CHANCO IS LEGALLY ERRONEOUS IN
HOLDING THAT THE ACTION WAS PREMATURELY BROUGHT BECAUSE THE REQUIRED
CLAIM UNDER THE INSURANCE LAW HAS NOT BEEN FILED, NOTWITHSTANDING THE
LETTER, (EXHIBIT "C") OF PETITIONER-APPELLANT'S LAWYER WHICH IS A
SUBSTANTIAL COMPLIANCE OF THE LEGAL REQUIREMENTS AND NOT HOLDING THAT
PRIVATE RESPONDENT INSURER HAD ALREADY WAIVED THE SUPPOSED DEFECTS IN
THE CLAIM FILED BY PETITIONER-APPELLANT FOR ITS FAILURE TO CALL THE
ATTENTION OF THE LAYER TO SUCH ALLEGED DEFECTS AND FOR ENDORSING THE
CLAIM TO ITS ADJUSTER FOR PROCESSING.
IV
RESPONDENT COURT OF APPEALS COMMITTED A GRAVE ERROR OF LAW IN NOT
INTERPRETING THE PROVISIONS OF THE POLICY LIBERALLY IN FAVOR OF THE HEREIN

PETITIONER-APPELLANT, WHO IS NOT THE INSURED BUT ONLY THE

ASSIGNEE/MORTGAGEE OF THE PROPERTY INSURED.
V
RESPONDENT COURT OF APPEALS COMMITTED A GRAVE ERROR OF LAW IN
DISMISSING THE CASE AND IN NOT AFFIRMING THE APPEALED DECISION OF THE
TRIAL COURT. (Brief for Petitioners, pp. 1-3)
The crux of the controversy centers on two points: (a) unrevealed co-insurances
which violated policy conditions No. 3 and (b) failure of the insured to file the
required proof of loss prior to court action. Policy Condition No. 3 explicitly provides:
3. The Insured shall give notice to the Company of any insurance already effected,
or which may subsequently be effected, covering any of the property hereby
insured, and unless such notice be given and the particulars of such insurance or
insurances be stated in or endorsed on this Policy by or on behalf of the Company
before the occurrence of any loss or damage, all benefit under this policy shall be
forfeited. (Record on Appeal, p. 12)
It is not disputed that the insured failed to reveal before the loss three other
insurances. As found by the Court of Appeals, by reason of said unrevealed
insurances, the insured had been guilty of a false declaration; a clear
misrepresentation and a vital one because where the insured had been asked to
reveal but did not, that was deception. Otherwise stated, had the insurer known
that there were many co-insurances, it could have hesitated or plainly desisted from
entering into such contract. Hence, the insured was guilty of clear fraud (Rollo, p.
25).
Petitioner's contention that the allegation of fraud is but a mere inference or
suspicion is untenable. In fact, concrete evidence of fraud or false declaration by the
insured was furnished by the petitioner itself when the facts alleged in the policy
under clauses "Co-Insurances Declared" and "Other Insurance Clause" are
materially different from the actual number of co-insurances taken over the subject
property. Consequently, "the whole foundation of the contract fails, the risk does not
attach and the policy never becomes a contract between the parties.
Representations of facts are the foundation of the contract and if the foundation
does not exist, the superstructure does not arise. Falsehood in such representations
is not shown to vary or add to the contract, or to terminate a contract which has
once been made, but to show that no contract has ever existed (Tolentino,
Commercial Laws of the Philippines, p. 991, Vol. II, 8th Ed.) A void or inexistent
contract is one which has no force and effect from the very beginning, as if it had
never been entered into, and which cannot be validated either by time or by
ratification Tongoy v. C.A., 123 SCRA 99 [1983]; Avila v. C.A. 145 SCRA [1986]).
As the insurance policy against fire expressly required that notice should be given
by the insured of other insurance upon the same property, the total absence of such
notice nullifies the policy (Sta. Ana v. Commercial Union Assurance Co., 55 Phil. 333

[1930]; Union Manufacturing Co., Inc. vs. Philippine Guaranty Co., Inc., 47 SCRA 276
[1972]; Pioneer Ins. & Surety Corp., v. Yap, 61 SCRA 432 [1974]).
The argument that notice of co-insurances may be made orally is preposterous and
negates policy condition No. 20 which requires every notice and other
communications to the insurer to be written or printed.
Petitioner points out that Condition No. 3 in the policy in relation to the "other
insurance clause" supposedly to have been violated, cannot certainly defeat the
right of the petitioner to recover the insurance as mortgagee/assignee. Particularly
referring to the mortgage clause of the policy, petitioner argues that considering the
purpose for which the endorsement or assignment was made, that is, to protect the
mortgagee/assignee against any untoward act or omission of the insured, it would
be absurd to hold that petitioner is barred from recovering the insurance on account
of the alleged violation committed by the insured (Rollo, Brief for the petitioner, pp,
33-35).
It is obvious that petitioner has missed all together the import of subject mortgage
clause which specifically provides:
Mortgage Clause
Loss, if any, under this policy, shall be payable to the PACIFIC BANKING
CORPORATION Manila mortgagee/trustor as its interest may appear, it being hereby
understood and agreed that this insurance as to the interest of the
mortgagee/trustor only herein, shall not be invalidated by any act or neglect
except fraud or misrepresentation, or arsonof the mortgagor or owner/trustee of
the property insured; provided, that in case the mortgagor or owner/ trustee
neglects or refuses to pay any premium, the mortgagee/ trustor shall, on demand
pay the same. (Rollo, p. 26)
The paragraph clearly states the exceptions to the general rule that insurance as to
the interest of the mortgagee, cannot be invalidated; namely: fraud, or
misrepresentation or arson. As correctly found by the Court of Appeals, concealment
of the aforecited
co-insurances can easily be fraud, or in the very least, misrepresentation (Rollo, p.
27).
Undoubtedly, it is but fair and just that where the insured who is primarily entitled
to receive the proceeds of the policy has by its fraud and/or misrepresentation,
forfeited said right, with more reason petitioner which is merely claiming as
indorsee of said insured, cannot be entitled to such proceeds.
Petitioner further stressed that fraud which was not pleaded as a defense in private
respondent's answer or motion to dismiss, should be deemed to have been waived.
It will be noted that the fact of fraud was tried by express or at least implied
consent of the parties. Petitioner did not only object to the introduction of evidence
but on the contrary, presented the very evidence that proved its existence.

Be that as it may, it is established that the Supreme Court has ample authority to
give beyond the pleadings where in the interest of justice and the promotion of
public policy, there is a need to make its own finding to support its conclusion.
Otherwise stated, the Court can consider a fact which surfaced only after trial
proper (Maharlika Publishing Corp. v. Tagle, 142 SCRA 561 [1986]).
Generally, the cause of action on the policy accrues when the loss occurs, But when
the policy provides that no action shall be brought unless the claim is first presented
extrajudicially in the manner provided in the policy, the cause of action will accrue
from the time the insurer finally rejects the claim for payment (Eagle Star Insurance
v. Chia Yu, 55 Phil 701 [1955]).
In the case at bar, policy condition No. 11 specifically provides that the insured shall
on the happening of any loss or damage give notice to the company and shall within
fifteen (15) days after such loss or damage deliver to the private respondent (a) a
claim in writing giving particular account as to the articles or goods destroyed and
the amount of the loss or damage and (b) particulars of all other insurances, if any.
Likewise, insured was required "at his own expense to produce, procure and give to
the company all such further particulars, plans, specifications, books, vouchers,
invoices, duplicates or copies thereof, documents, proofs and information with
respect to the claim". (Record on Appeal, pp. 18-20).
The evidence adduced shows that twenty-four (24) days after the fire, petitioner
merely wrote letters to private respondent to serve as a notice of loss, thereafter,
the former did not furnish the latter whatever pertinent documents were necessary
to prove and estimate its loss. Instead, petitioner shifted upon private respondent
the burden of fishing out the necessary information to ascertain the particular
account of the articles destroyed by fire as well as the amount of loss. It is
noteworthy that private respondent and its adjuster notified petitioner that insured
had not yet filed a written claim nor submitted the supporting documents in
compliance with the requirements set forth in the policy. Despite the notice, the
latter remained unheedful. Since the required claim by insured, together with the
preliminary submittal of relevant documents had not been complied with, it follows
that private respondent could not be deemed to have finally rejected petitioner's
claim and therefore the latter's cause of action had not yet arisen. Compliance with
condition No. 11 is a requirement sine qua non to the right to maintain an action as
prior thereto no violation of petitioner's right can be attributable to private
respondent. This is so, as before such final rejection, there was no real necessity for
bringing suit. Petitioner should have endeavored to file the formal claim and procure
all the documents, papers, inventory needed by private respondent or its adjuster to
ascertain the amount of loss and after compliance await the final rejection of its
claim. Indeed, the law does not encourage unnecessary litigation (Eagle Star
Insurance Co., Ltd., et al. v. Chia Yu, p. 701, supra).<re||an1w>
Verily, petitioner prematurely filed Civil Case No. 56889 and dismissal thereof was
warranted under the circumstances. While it is a cardinal principle of insurance law
that a policy or contract of insurance is to be construed liberally in favor of the
insured and strictly as against the insurer company (Eagle Star Insurance Co., Ltd.,

et al. v. Chia Yu, p. 702, supra; Taurus Taxi Co., Inc. v. The Capital Ins. & Surety Co.,
Inc., 24 SCRA 458 [1968]; National Power Corp. v. CA, 145 SCRA 533 [1986]), yet,
contracts of insurance, like other contracts, are to be construed according to the
sense and meaning of the terms which the parties themselves have used. If such
terms are clear and unambiguous, they must be taken and understood in their plain,
ordinary and popular sense (Young v. Midland Textile Ins. Co., 30 Phil. 617 [1919];
Union Manufacturing Co., Inc. v. Phil. Guaranty Co., Inc., p. 277 supra; Pichel v.
Alonzo, III SCRA 341 [1982]; Gonzales v. CA, 124 SCRA 630 [1983]; GSIS v. CA, 145
SCRA 311 [1986]; Herrera v. Petrophil Corp., 146 SCRA 385 [1986]).
Contracts of insurance are contracts of indemnity upon the terms and conditions
specified in the policy. The parties have a right to impose such reasonable
conditions at the time of the making of the contract as they may deem wise and
necessary. The agreement has the force of law between the parties. The terms of
the policy constitute the measure of the insurer's liability, and in order to recover,
the insured must show himself within those terms. The compliance of the insured
with the terms of the policy is a condition precedent to the light of recovery (Stokes
v. Malayan Insurance Co., Inc., 127 SCRA 766 [1984]).
It appearing that insured has violated or failed to perform the conditions under No. 3
and 11 of the contract, and such violation or want of performance has not been
waived by the insurer, the insured cannot recover, much less the herein petitioner.
Courts are not permitted to make contracts for the parties; the function and duty of
the courts is simply to enforce and carry out the contracts actually made (Young v.
Midland Textile Ins. Co., 30 Phil. 617 [1915]; Union Manufacturing Co. Inc. v. Phil.
Guaranty Co. Inc., p. 276 supra).
Finally, the established rule in this jurisdiction that findings of fact of the Court of
Appeals when supported by substantial evidence, are not reviewable on appeal by
certiorari, deserves reiteration. Said findings of the appellate court are final and
cannot be disturbed by the Supreme Court except in certain cases Lereos v. CA, 117
SCRA 395 [1985]; Dalida v. CA, 117 SCRA 480 [1982] Director of Lands v. CA, 117
SCRA 346 [1982]; Montesa v. CA, 117 SCRA 770 [1982]; Sacay v. Sandiganbayan,
142 SCRA 609 [1986]; Guita v. CA, 139 SCRA 576 [1985]; Manlapaz v. CA, 147 SCRA
238-239 [1987]).
PREMISES CONSIDERED, the petition is DISMISSED for lack of merit, and the
decision appealed from is AFFIRMED. No costs.
SO ORDERED.
Melencio-Herrera, (Chairman), Padilla, Sarmiento and Regalado, JJ., concur.
THIRD DIVISION
[G.R. No. 124320. March 2, 1999]
HEIRS OF GUIDO YAPTINCHAY AND ISABEL YAPTINCHAY, NAMELY: LETICIA ENCISOGADINGAN, EMILIO ENCISO, AURORA ENCISO, AND NORBERTO ENCISO,
REPRESENTED BY LETICIA ENCISO-GADINGAN, ATTORNEY-IN-FACT, petitioners, vs.

HON. ROY S. DEL ROSARIO, PRESIDING JUDGE, RTC, BRANCH 21, IMUS, CAVITE; THE
REGISTER OF DEEDS FOR TRECE MARTIRES CITY, GEORGE T. CHUA, SPS. ALFONSO
NG AND ANNABELLE CHUA, SPS. ROSENDO L. DY AND DIANA DY, SPS. ALEXANDER
NG AND CRISTINA NG, SPS. SAMUEL MADRID AND BELEN MADRID, SPS. JOSE
MADRID AND BERNARDA MADRID, SPS. DAVID MADRID AND VIOLETA MADRID,
JONATHAN NG, SPS. VICTORIANO CHAN, JR. AND CARMELITA CHAN, SPS. MARIE TES
C. LEE AND GREGORIE W.C. LEE, JACINTO C. NG, JR., SPS. ADELAIDO S. DE GUZMAN
AND ROSITA C. DE GUZMAN, SPS. RICARDO G. ONG AND JULIE LIM-IT, SPS. MISAEL
ADELAIDA P. SOLIMAN AND FERDINAND SOLIMAN, SPS. MYLENE T. LIM AND ARTHUR
LIM, EVELYN K. CHUA, GOLDEN BAY REALTY AND DEVELOPMENT
CORPORATION, respondents.
DECISION
PURISIMA, J.:
At bar is a Petition for Certiorari under Rule 65 of the Revised Rules of Court
assailing the Orders dated October 25, 1995 and February 23, 1996, respectively, of
Branch 21 of the Regional Trial Court in Imus, Cavite (RTC).
The facts that matter are, as follows:
Petitioners claim that they are the legal heirs of the late Guido and Isabel
Yaptinchay, the owners-claimants of Lot No. 1131 with an area of 520,638 and Lot
No. 1132 with an area of 96,235 square meters, more or less situated in Bancal,
Carmona, Cavite.
On March 17, 1994, petitioners executed an Extra-Judicial Settlement of the estate
of the deceased Guido and Isabel Yaptinchay.
On August 26, 1994, petitioners discovered that a portion, if not all, of the aforesaid
properties were titled in the name of respondent Golden Bay Realty and
Development Corporation (Golden Bay) under Transfer Certificate of Title Nos.
(TCT) 225254 and 225255. With the discovery of what happened to subject
parcels of land, petitioners filed a complaint for ANNULMENT and/or DECLARATION
OF NULLITY OF TCT NO. 493363, 493364, 493665, 493366, 493367; and its
Derivatives; As Alternative Reconveyance of Realty WITH A PRAYER FOR A WRIT OF
PRELIMINARY INJUNCTION and/or RESTRAINING ORDER WITH DAMAGES, docketed as
RTC BCV-94-127 before Branch 21 of the Regional Trial Court in Imus, Cavite.
Upon learning that Golden Bay sold portions of the parcels of land in question,
petitioners filed with the RTC an Amended Complaint to implead new and
additional defendants and to mention the TCTs to be annulled. But the respondent
court dismissed the Amended Complaint.
Petitioners moved for reconsideration of the Order dismissing the Amended
Complaint. The motion was granted by the RTC in an Order[1] dated July 7, 1995,
which further allowed the herein petitioners to file a Second Amended Complaint,
[2] which they promptly did.

On August 12, 1995, the private respondents presented a Motion to Dismiss[3] on

the grounds that the complaint failed to state a cause of action, that plaintiffs did
not have a right of action, that they have not established their status as heirs, that
the land being claimed is different from that of the defendants, and that plaintiffs
claim was barred by laches. The said Motion to Dismiss was granted by the
respondent court in its Order[4] dated October 25, 1995, holding that petitioners
have not shown any proof or even a semblance of it - except the allegations that
they are the legal heirs of the above-named Yaptinchays - that they have been
declared the legal heirs of the deceased couple.
Petitioners interposed a Motion for Reconsideration[5] but to no avail. The same
was denied by the RTC in its Order[6] of February 23, 1996.
Undaunted, petitioners have come before this Court to seek relief from respondent
courts Orders under attack.
Petitioners contend that the respondent court acted with grave abuse of discretion
in ruling that the issue of heirship should first be determined before trial of the case
could proceed. It is petitioners submission that the respondent court should have
proceeded with the trial and simultaneously resolved the issue of heirship in the
same case.
The petition is not impressed with merit.
To begin with, petitioners Petition for Certiorari before this Court is an improper
recourse. Their proper remedy should have been an appeal. An order of dismissal,
be it right or wrong, is a final order, which is subject to appeal and not a proper
subject of certiorari[7]. Where appeal is available as a remedy, certiorari will not
lie[8].
Neither did the respondent court commit grave abuse of discretion in issuing the
questioned Order dismissing the Second Amended Complaint of petitioners, as it
aptly ratiocinated and ruled:
But the plaintiffs who claimed to be the legal heirs of the said Guido and Isabel
Yaptinchay have not shown any proof or even a semblance of it - except the
allegations that they are the legal heirs of the aforementioned Yaptinchays - that
they have been declared the legal heirs of the deceased couple. Now, the
determination of who are the legal heirs of the deceased couple must be made in
the proper special proceedings in court, and not in an ordinary suit for
reconveyance of property. This must take precedence over the action for
reconveyance (Elena C. Monzon, et. al., v. Angelita Taligato, CA-G-R No. 33355,
August 12, 1992).
In Litam, etc., et. al. v. Rivera[9], this court opined that the declaration of heirship
must be made in an administration proceeding, and not in an independent civil
action. This doctrine was reiterated in Solivio v. Court of Appeals[10] where the
court held:

"In Litam, et al. v. Rivera, 100 Phil. 364, where despite the pendency of the special
proceedings for the settlement of the intestate estate of the deceased Rafael Litam,
the plaintiffs-appellants filed a civil action in which they claimed that they were the
children by a previous marriage of the deceased to a Chinese woman, hence,
entitled to inherit his one-half share of the conjugal properties acquired during his
marriage to Marcosa Rivera, the trial court in the civil case declared that the
plaintiffs-appellants were not children of the deceased, that the properties in
question were paraphernal properties of his wife, Marcosa Rivera, and that the latter
was his only heir. On appeal to this Court, we ruled that such declarations (that
Marcosa Rivera was the only heir of the decedent) is improper, in Civil Case No.
2071, it being within the exclusive competence of the court in Special Proceedings
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. (p. 378).
The trial court cannot make a declaration of heirship in the civil action for the
reason that such a declaration can only be made in a special proceeding. Under
Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as one
by which a party sues another for the enforcement or protection of a right, or the
prevention or redress of a wrong while a special proceeding is a remedy by which
a party seeks to establish a status, a right, or a particular fact. It is then decisively
clear that the declaration of heirship can be made only in a special proceeding
inasmuch as the petitioners here are seeking the establishment of a status or right.
We therefore hold that the respondent court did the right thing in dismissing the
Second Amended Complaint, which stated no cause of action. In Travel Wide
Associated Sales (Phils.), Inc. v. Court of Appeals[11], it was ruled that:
xxx If the suit is not brought in the name of or against the real party in interest, a
motion to dismiss may be filed on the ground that the complaint states no cause of
action.
WHEREFORE, for lack of merit, the Petition under consideration is hereby
DISMISSED. No pronouncement as to costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-81147 June 20, 1989
VICTORIA BRINGAS PEREIRA, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and RITA PEREIRA NAGAC, respondents.
Benjamin J. Quitoriano for petitioner.
Linzag-Arcilla & Associates Law Offices for private respondent.

GANCAYCO, J.:
Is a judicial administration proceeding necessary when the decedent dies intestate
without leaving any debts? May the probate court appoint the surviving sister of the
deceased as the administratrix of the estate of the deceased instead of the
surviving spouse? These are the main questions which need to be resolved in this
case.
Andres de Guzman Pereira, an employee of the Philippine Air Lines, passed away on
January 3, 1983 at Bacoor, Cavite without a will. He was survived by his legitimate
spouse of ten months, the herein petitioner Victoria Bringas Pereira, and his sister
Rita Pereira Nagac, the herein private respondent.
On March 1, 1983, private respondent instituted before Branch 19 of the Regional
Trial Court of Bacoor, Cavite, Special Proceeding No. RTC-BSP-83-4 for the issuance
of letters of administration in her favor pertaining to the estate of the deceased
Andres de Guzman Pereira. 1 In her verified petition, private respondent alleged the
following: that she and Victoria Bringas Pereira are the only surviving heirs of the
deceased; that the deceased left no will; that there are no creditors of the
deceased; that the deceased left several properties, namely: death benefits from
the Philippine Air Lines (PAL), the PAL Employees Association (PALEA), the PAL
Employees Savings and Loan Association, Inc. (PESALA) and the Social Security
System (SSS), as well as savings deposits with the Philippine National Bank (PNB)
and the Philippine Commercial and Industrial Bank (PCIB), and a 300 square meter
lot located at Barangay Pamplona, Las Pinas, Rizal and finally, that the spouse of the
deceased (herein petitioner) had been working in London as an auxiliary nurse and
as such one-half of her salary forms part of the estate of the deceased.
On March 23,1983, petitioner filed her opposition and motion to dismiss the petition
of private respondent 2alleging that there exists no estate of the deceased for
purposes of administration and praying in the alternative, that if an estate does
exist, the letters of administration relating to the said estate be issued in her favor
as the surviving spouse.
In its resolution dated March 28, 1985, the Regional Trial Court, appointed private
respondent Rita Pereira Nagac administratrix of the intestate estate of Andres de
Guzman Pereira upon a bond posted by her in the amount of Pl,000.00. The trial
court ordered her to take custody of all the real and personal properties of the
deceased and to file an inventory thereof within three months after receipt of the
order. 3
Not satisfied with the resolution of the lower court, petitioner brought the case to
the Court of Appeals. The appellate court affirmed the appointment of private
respondent as administratrix in its decision dated December 15, 1987. 4
Hence, this petition for review on certiorari where petitioner raises the following
issues: (1) Whether or not there exists an estate of the deceased Andres de Guzman
Pereira for purposes of administration; (2) Whether or not a judicial administration

proceeding is necessary where there are no debts left by the decedent; and, (3)
Who has the better right to be appointed as administratrix of the estate of the
deceased, the surviving spouse Victoria Bringas Pereira or the surviving sister Rita
Pereira Nagac?
Anent the first issue, petitioner contends that there exists no estate of the deceased
for purposes of administration for the following reasons: firstly, the death benefits
from PAL, PALEA, PESALA and the SSS belong exclusively to her, being the sole
beneficiary and in support of this claim she submitted letter-replies from these
institutions showing that she is the exclusive beneficiary of said death benefits;
secondly, the savings deposits in the name of her deceased husband with the PNB
and the PCIB had been used to defray the funeral expenses as supported by several
receipts; and, finally, the only real property of the deceased has been extrajudicially
settled between the petitioner and the private respondent as the only surviving
heirs of the deceased.
Private respondent, on the other hand, argues that it is not for petitioner to decide
what properties form part of the estate of the deceased and to appropriate them for
herself. She points out that this function is vested in the court in charge of the
intestate proceedings.
Petitioner asks this Court to declare that the properties specified do not belong to
the estate of the deceased on the basis of her bare allegations as aforestated and a
handful of documents. Inasmuch as this Court is not a trier of facts, We cannot order
an unqualified and final exclusion or non-exclusion of the property involved from the
estate of the deceased. 5
The resolution of this issue is better left to the probate court before which the
administration proceedings are pending. The trial court is in the best position to
receive evidence on the discordant contentions of the parties as to the assets of the
decedent's estate, the valuations thereof and the rights of the transferees of some
of the assets, if any. 6 The function of resolving whether or not a certain property
should be included in the inventory or list of properties to be administered by the
administrator is one clearly within the competence of the probate court. However,
the court's determination is only provisional in character, not conclusive, and is
subject to the final decision in a separate action which may be instituted by the
parties. 7
Assuming, however, that there exist assets of the deceased Andres de Guzman
Pereira for purposes of administration, We nonetheless find the administration
proceedings instituted by private respondent to be unnecessary as contended by
petitioner for the reasons herein below discussed.
The general rule is that when a person dies leaving property, the same should be
judicially administered and the competent court should appoint a qualified
administrator, in the order established in Section 6, Rule 78, in case the deceased
left no will, or in case he had left one, should he fail to name an executor
therein. 8 An exception to this rule is established in Section 1 of Rule 74. 9 Under
this exception, when all the heirs are of lawful age and there are no debts due from

the estate, they may agree in writing to partition the property without instituting the
judicial administration or applying for the appointment of an administrator.
Section 1, Rule 74 of the Revised Rules of Court, however, does not preclude the
heirs from instituting administration proceedings, even if the estate has no debts or
obligations, if they do not desire to resort for good reasons to an ordinary action for
partition. While Section 1 allows the heirs to divide the estate among themselves as
they may see fit, or to resort to an ordinary action for partition, the said provision
does not compel them to do so if they have good reasons to take a different course
of action. 10 It should be noted that recourse to an administration proceeding even
if the estate has no debts is sanctioned only if the heirs have good reasons for not
resorting to an action for partition. Where partition is possible, either in or out of
court, the estate should not be burdened with an administration proceeding without
good and compelling reasons. 11
Thus, it has been repeatedly held that when a person dies without leaving pending
obligations to be paid, his heirs, whether of age or not, are not bound to submit the
property to a judicial administration, which is always long and costly, or to apply for
the appointment of an administrator by the Court. It has been uniformly held that in
such case the judicial administration and the appointment of an administrator are
superfluous and unnecessary proceedings . 12
Now, what constitutes "good reason" to warrant a judicial administration of the
estate of a deceased when the heirs are all of legal age and there are no creditors
will depend on the circumstances of each case.
In one case, 13 We said:
Again the petitioner argues that only when the heirs do not have any dispute as to
the bulk of the hereditary estate but only in the manner of partition does section 1,
Rule 74 of the Rules of Court apply and that in this case the parties are at
loggerheads as to the corpus of the hereditary estate because respondents
succeeded in sequestering some assets of the intestate. The argument is
unconvincing, because, as the respondent judge has indicated, questions as to what
property belonged to the deceased (and therefore to the heirs) may properly be
ventilated in the partition proceedings, especially where such property is in the
hands of one heir.
In another case, We held that if the reason for seeking an appointment as
administrator is merely to avoid a multiplicity of suits since the heir seeking such
appointment wants to ask for the annulment of certain transfers of property, that
same objective could be achieved in an action for partition and the trial court is not
justified in issuing letters of administration. 14 In still another case, We did not find
so powerful a reason the argument that the appointment of the husband, a
usufructuary forced heir of his deceased wife, as judicial administrator is necessary
in order for him to have legal capacity to appear in the intestate proceedings of his
wife's deceased mother, since he may just adduce proof of his being a forced heir in
the intestate proceedings of the latter. 15

We see no reason not to apply this doctrine to the case at bar. There are only two
surviving heirs, a wife of ten months and a sister, both of age. The parties admit
that there are no debts of the deceased to be paid. What is at once apparent is that
these two heirs are not in good terms. The only conceivable reason why private
respondent seeks appointment as administratrix is for her to obtain possession of
the alleged properties of the deceased for her own purposes, since these properties
are presently in the hands of petitioner who supposedly disposed of them
fraudulently. We are of the opinion that this is not a compelling reason which will
necessitate a judicial administration of the estate of the deceased. To subject the
estate of Andres de Guzman Pereira, which does not appear to be substantial
especially since the only real property left has been extrajudicially settled, to an
administration proceeding for no useful purpose would only unnecessarily expose it
to the risk of being wasted or squandered. In most instances of a similar
nature, 16 the claims of both parties as to the properties left by the deceased may
be properly ventilated in simple partition proceedings where the creditors, should
there be any, are protected in any event.
We, therefore, hold that the court below before which the administration
proceedings are pending was not justified in issuing letters of administration, there
being no good reason for burdening the estate of the deceased Andres de Guzman
Pereira with the costs and expenses of an administration proceeding.
With the foregoing ruling, it is unnecessary for us to delve into the issue of who, as
between the surviving spouse Victoria Bringas Pereira and the sister Rita Pereira
Nagac, should be preferred to be appointed as administratrix.
WHEREFORE, the letters of administration issued by the Regional Trial Court of
Bacoor to Rita Pereira Nagac are hereby revoked and the administration proceeding
dismissed without prejudice to the right of private respondent to commence a new
action for partition of the property left by Andres de Guzman Pereira. No costs.
SO ORDERED.
Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-8409

December 28, 1956

In the Matter of the Intestate of the deceased Andres Eusebio. EUGENIO

EUSEBIO, petitioner-appellee,
vs.
AMANDA EUSEBIO, JUAN EUSEBIO, DELFIN EUSEBIO, VICENTE EUSEBIO, and CARLOS
EUSEBIO,oppositors-appellants.

Francisco M. Ramos and Valeriano Silva for appellee.

Filemon Cajator for appellants.

CONCEPCION, J.:
This case instituted on November 16, 1953, when Eugenio Eusebio filed with the
Court of First Instance of Rizal, a petition for his appointment as administrator of the
estate of his father, Andres Eusebio, who died on November 28, 1952, residing,
according to said petition, in the City of Quezon. On December 4, 1953, Amanda,
Virginia, Juan, Delfin, Vicente and Carlos, all surnamed Eusebio, objected to said
petition, stating that they are illegitimate children of the deceased and that the
latter was domiciled in San Fernando, Pampanga, and praying, therefore, that the
case be dismissed upon the ground that venue had been improperly filed. By an
order, dated March 10, 1954, said court overruled this objection and granted said
petition. Hence, the case is before us on appeal taken, from said order, by Amanda
Eusebio, and her aforementioned sister and brothers.
The appeal hinges on the situs of the residence of Andres Eusebio on November 28,
1952, for Rule 75, section 1, of the Rules of Court, provides:
Where estate of deceased persons settled. If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizens or an alien, his will shall be
proved, or letters of administration granted, and his estate, in the Court of First
Instance in the province in which he resides 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. The court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts. The
jurisdiction assumed by a court, so far as it depends on the place of residence of the
decedent, or of the location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the original case, or when the
want of jurisdiction appears on the record.
It is not disputed that up to, at least, October 29, 1952, Andres Eusebio was, and
had always been, domiciled in San Fernando, Pampanga, where he had his home, as
well as some other properties. Inasmuch as his heart was in bad condition and his
son, Dr. Jesus Eusebio, who treated him, resided at No. 41 P. Florentino St., Quezon
City, on October 29, 1952, Andres Eusebio bought a house and lot at 889-A Espaa
Extention, in said City (Exhibit 2). While transferring his belongings to this house,
soon thereafter, the decedent suffered a stroke (probably heart failure), for which
reason Dr. Eusebio took him to his (Dr. Eusebio's) aforementioned residence, where
the decedent remained until he was brought to the UST Hospital, in the City of
Manila, sometimes before November 26, 1952. On this date, he contracted marriage
in articulo mortis with his common law wife, Concepcion Villanueva, in said hospital.
Two (2) days later, he died therein of "acute left ventricular failure secondary to
hypertensive heart disease", at the age of seventy-four (74) years (Exhibit A).
Consequently, he never stayed or even slept in said house at Espaa Extention.

It being apparent from the foregoing that the domicile of origin of the decedent was
San Fernando, Pampanga, where he resided for over seventy (70) years, the
presumption is that he retained such domicile, and, hence, residence, in the
absence of satisfactory proof to the contrary, for it is well-settled that "a domicile
once acquired is retained until a new domicile is gained" (Minor, Conflict of Laws,
p.70; Restatement of the Law on Conflict of Laws, p. 47; In re Estate of Johnson, 192
Iowa, 78). Under the circumstances surrounding the case at bar, if Andres Eusebio
established another domicile, it must have been one of choice, for which the
following conditions are essential, namely: (1) capacity to choose and freedom of
choice; (2) physical presence at the place chosen; and (3) intention to stay therein
permanently (Minor, Conflict of Laws, pp. 109-110; Googrich, Conflict of Laws, p.
169; Velilla vs. Posadas, 62 Phil., 624; Zuellig vs. Republic of the Philippines, 46 Off.
Gaz. Suppl. No. 11, p. 220). Admittedly, the decedent was juridically capable of
choosing a domicile and had been in Quezon City several days prior to his demise.
Thus, the issue narrows down to whether he intended to stay in that place
permanently.
There is no direct evidence of such intent. Neither does the decedent appears to
have manifested his wish to live indefinitely in said city. His son, petitioner-appellee,
who took the witness stand, did not testify thereon, despite the allegation, in his
answer to the aforemention, opposition of the appellants herein, that "the deceased
(had) decided to reside . . . for the rest of his life, in Quezon City". Moreover, said
appellee did not introduce the testimony of his legitimate full brother and son of the
decedent, Dr. Jesus Eusebio, upon whose advice, presumably, the house and lot at
No. 889-A Espaa Extention was purchased, and who, therefore, might have cast
some light on his (decedent's) purpose in buying said property. This
notwithstanding, the lower court held that the decedent's intent to stay
permanently in Quezon City is "manifest" from the acquisition of said property and
the transfer of his belonging thereto. This conclusion is untenable.lawphil.net
The aforementioned house and lot were bought by the decedent because he had
been adviced to do so "due to his illness", in the very words of herein appellee. It is
not improbable in fact, its is very likely that said advice was given and followed
in order that the patient could be near his doctor and have a more effective
treatment. It is well settled that "domicile is not commonly changed by presence in
a place merely for one's own health", even if coupled with "knowledge that one will
never again be able, on account of illness, to return home." (The Conflict of Laws, by
Beale, Vol. I, pp. 172-173; see, also, Shenton vs. Abbott, Md., 15., A. 2d. 906;
U.S. vs. Knight, D. C. Mont., 291 Fed. 129).
Again, the decedent did not part with, or alienate, his house in San Fernando,
Pampanga. Moreover, some of his children, who used to live with him in San
Fernando, Pampanga, remained in that municipality. Then, again, in the deed Exhibit
2, by virtue of which said property at No. 889-A Espaa Extention, Quezon City, was
conveyed to him, on October 29, 1952, or less than a month before his death, the
decedent gave San Fernando, Pampanga, as his residence. Similarly, the "A" and "B"
residence certificates used by the decedent in aknowledging said Exhibit 2, before a
notary public, was issued in San Fernando, Pampanga. Lastly, the marriage contract

Exhibit 1, signed by the deceased when he was married, in articulo mortis, to

Concepcion Villanueva, at the UST Hospital, on November 26, 1952, or two (2) days
prior to his demise, stated that his residence is San Fernando, Pampanga. It is
worthy of notice that Alfonso Eusebio, one of the legitimate full brothers of the
herein appellee, was a witness to said wedding, thus indicating that the children of
the deceased by his first marriage, including said appellee, were represented on
that occasion and would have objected to said statement about his residence, if it
were false. Consequently, apart from appellee's failure to prove satisfactory that the
decedent had decided to establish his home in Quezon City, the acts of the latter,
shortly and immediately before his death, prove the contrary. At any rate, the
presumption in favor of the retention of the old domicile 1 which is particularly
strong when the domicile is one of the origin 2as San Fernando, Pampanga,
evidently was, as regards said decedent has not been offset by the evidence of
record.
The lower court, however, rejected said Exhibits 1 and 2, upon being offered in
evidence, and refused to entertain the same in the order appealed from. The reason
therefor are deducible from its resolution in rejecting said documents during the
hearing of the incident at bar. The court then held:
Exihibits "1" and "2" are rejecting but the same may be attached to the records for
whatever action oppositors may want to take later on because until now the
personality of the oppositors has not been established whether or not they have a
right to intervene in this case, and the Court cannot pass upon this question as the
oppositors refuse to submit to the jurisdiction of this Court and they maintain that
these proceedings should be dismissed. (P. 10, t. s. n.)
In short, the lower court believed that said documents should not be admitted in
evidence before appellants had established their "personality" to intervene in the
case, referring seemingly to their filiation. When appellants, however, sought,
during said hearing, to establish their relation with the deceased, as his alleged
illegitimate children, His Honor, the trial Judge sustained appellee's objection
thereto stating:
Your stand until now is to question the jurisdiction of this Court, and it seems that
you are now trying to prove the status of your client; you are leading so that. The
main point here is your contention that the deceased was never a resident of
Quezon City and that is why I allowed you to cross-examine. If you are trying to
establish the status of the oppositors, I will sustain the objection, unless you want to
submit to the jurisdiction of the Court. This is not yet the time to declare who are
persons who should inherit. (p. 1, t. s. n.)
Thus, the lower court refused to consider appellant's evidence on the domicile of
the decedent, because of their alleged lack of "personality", but, when tried to
establish such "personality", they were barred from doing so on account of the
question of venue raised by him. We find ourselves unable to sanction either the
foregoing procedure adopted by the lower court or the inference it drew from the
circumstances surrounding the case.

To begin with, His Honor, the trial Judge had taken inconsistent positions. While, on
the one hand, he declared that appellants could not be permitted to introduce
evidence on the residence of the decedent, for they contestedthe jurisdiction of
court, on the other hand, he held, in the order appealed from, that, by crossexamining the appellee, said appellants had submitted themselves to the authority
of the court.
What is more, this conclusion is refuted by the record. At the beginning of the
hearing, in the lower court, appellants' counsel announced that he would take part
therein "only to question the jurisdiction, for the purpose of dismissing this
proceeding," (p. 2, t.s.n.). During the cross-examination of petitioner herein, said
counsel tried to elicit the relation between the decedent and the appellants. As, the
appellee objected thereto, the court said, addressing appellants' counsel: "Your
stand until now is to question the jurisdiction of the court. . . . It you are trying to
establish the status of the oppositors, I will sustain the objection, unless you want to
submit to the jurisdiction of the court" (p. 7, t.s.n.). Thereupon, appellants' counsel
refused to do so, stating: "I will insist on my stand." Then, too, at the conclusion of
the hearing, the court rejected Exhibits 1 and 2, for the reason that appellants
"refuse to submit to the jurisdiction of this court and they maintain that these
proceedings should bedismissed." Thus, appellants specially made of record that
they were not submitting themselves to the jurisdiction of the court, except for the
purpose only of assailing the same, and the court felt that appellants were not
giving up their stand, which was, and is, a fact.
At any rate, appellants were entitled to establish facts tending to prove, not only
their right to object to appellee's petition, but, also, that venue had been laid
improperly. Such facts were: (a) their alleged relationship with the decedent, 3
which, if true, entitle them to proceed him under the Civil Code of the Philippines;
and (b) his alleged residence is Pampanga. In other words, the lower court should
have admitted Exhibits 1 and 2 in evidence and given thereto the proper effect, in
connection with the issue under consideration.
Appellee, however, asks: "What will happen if this case be dismissed in the Court of
First Instance of Quezon City on the ground of lack of jurisdiction or improper
venue?" In this connection, it appears that on November 14, 1953, the Clerk of the
Court of First Instance of Pampanga received a petition of appellants herein, dated
November 4, 1953, for the settlement of the "Intestate Estate of the late Don
Andres Eusebio". Attached to said petition was petition for the docketing thereof
free charge, pursuant to Rule 3, section 22, of the Rules of Court. The latter petition
was granted by an order dated November 16, 1953, which was received by the
cashier of said court on November 17, 1953, on which date the case was docketed
as Special Proceedings No. 957. On December 14, 1953, Jesus, Eugenio, Amando
and Alfonso, all surnamed Eusebio (the children of the decedent by first marriage,
including petitioner herein), moved for the dismissal of said proceedings, owing to
the pendency of the present case, before the Court of First Instance of Rizal, since
November 16, 1953. This motion was granted in an order dated December 21,
1953, relying upon the above Rule 75, section 1, of the Rules of Court, pursuant to

which "the court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts."
Although said order is now final, it cannot affect the outcome of the case at bar.
Said order did not pass upon the question of domicile or residence of the decedent.
Moreover, in granting the court first taking cognizance of the case exclusive
jurisdiction over the same, said provision of the Rules of Court evidently refers to
cases triable before two or more courts with concurrent jurisdiction. It could not
possibly have intended to deprive a competent court of the authority vested therein
by law, merely because a similar case had been previously filed before a court to
which jurisdiction is denied by law, for the same would then be defeated by the will
of one of the parties. More specially, said provision refers mainly to non-resident
decedents who have properties in several provinces in the Philippines, for the
settlement of their respective estates may undertaken before the court of first
instance of either one of said provinces, not only because said courts then have
concurrent jurisdiction and, hence, the one first taking cognizance of the case
shall exclude the other courts but, also, because the statement to this effect in
said section 1 of Rule 75 of the Rules of the Court immediately follows the last part
of the next preceding sentence, which deals with non-resident decedents, whose
estate may settled the court of first instance of any province in which they have
properties.lawphil.net
In view, however, of the last sentence of said section, providing that:
. . . The jurisdiction assumed by a court, so far as it depends on the place of
residence of the decedent, or of the location of his estate, shall not be contested in
a suit or proceedings, except in an appeal from that court, in the original case, or
when the want of jurisdiction appears on the record.
if proceedings for the settlement of the estate of a deceased resident are instituted
in two or more courts, and the question of venue is raised before the same, the
court in which the first case was filed shall have exclusive jurisdiction to decide said
issue, and we so held in the case of Taciana Vda. De Borja vs. Tan, L-7792 (July 27,
1955). Should it be decided, in the proceedings before the said court, that venue
had been improperly laid, the case pending therein should be dismissed and the
corresponding proceedings may, thereafter, be initiated in the proper court.
In conclusion, we find that the decedent was, at the time of his death, domiciled in
San Fernando, Pampanga; that the Court of First Instance of Rizal had no authority,
therefore, to appoint an administrator of the estate of the deceased, the venue
having been laid improperly; and that it should, accordingly, have sustained
appellants' opposition and dismissed appellee's petition.
Wherefore, the order appealed from is hereby reversed and appellee's petition is
dismissed, with costs against the appellee. It is so ordered.
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Endencia and
Felix, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-6476

November 18, 1955

FRANCISCO DE BORJA as Executor of the Estate of the deceased JOSEFA

TANGCO, petitioner,
vs.
BIENVENIDO A. TAN, as Judge of the Court of First Instance of Rizal, and JOSE DE
BORJA, respondents.
Alejo Mabanag and Luis Pangilinan, Jr. for petitioner.
David Guevara for respondents.
MONTEMAYOR, J.:
This is a petition for mandamus to compel respondent Judge Bienvenido A. Tan to
approve and admit the record on appeal filed before him and to give due course to
the appeal. The facts involved as gathered from the record may be briefly stated as
follows. On October 25, 1940, petitioner Francisco de Borja filed a petition in the
lower court for the probate of the Last Will and Testament of his deceased wife
Josefa Tangco. The will was probated on April 2, 1941, and named Francisco de Borja
as executor thereof. One of the heirs who is now one of the respondents herein Jose
de Borja appealed the case to the Court of Appeals but later his motion for dismissal
of the appeal as granted. All the records of the case were destroyed or lost during
the last Pacific war but were on January 1, 1946, reconstituted. On March 26 of that
year Francisco de Borja qualified as executor and administrator.
Due to the physical inability of Francisco de Borja to fully administer the estate he
being quite weak and unable to see, on August 25, 1951, on petition of Matilde de
Borja, one of the heirs, the lower court appointed Crisanto de Borja, another heir, as
co-administrator. Crisanto qualified as co-administrator on August 29, 1951.
On April 9, 1952, the trial court according to petitioner, without petition of or notice
to anyone appointed respondent Jose de Borja as co-administrator, this, after
holding in abeyance consideration of Francisco de Borja's amended account dated
March 25, 1952. Francisco, Matilde and Crisanto moved for reconsideration of the
appointment of Jose de Borja but by order of August 14, 1952, respondent Judge
indirectly denied the motion for reconsideration, and acting upon an alleged exparte petition of the heirs Jose, Crisanto, Cayetano and Matilde, all surnamed De
Borja, revoked the appointment of Crisanto as co-administrator and directed
administrator Jose de Borja to comment on the amended account filed by Francisco
de Borja.
On July 22, 1952, Francisco, Matilde and Crisanto filed a notice of appeal from the
order appointing Jose de Borja as co-administrator and the order denying the motion
for reconsideration and later they filed the corresponding record on appeal. By order

of December 27, 1952, respondent Judge Tan disapproved the record on appeal and
refused to give due course to the appeal on the ground that the appointment of Jose
de Borja as co-administrator was interlocutory in nature and so was not appealable.
Hence, this petition for mandamus, as already stated, to compel respondent Judge
to approve the record on appeal and to give due course to the appeal.
An order appointing a regular administrator is appealable (See Sy Hong Eng vs. Sy
Liac Suy, 8 Phil., 594). On the other hand, according to Rule 105, section 1 (e) an
order appointing a special administrator is not appealable. Respondents contend
that a co-administrator is not a regular or general administrator, and his duties and
functions rather partake those of a special administrator; consequently, his
appointment is not subject to appeal. We cannot share this view. The powers and
functions of a special administrator are quite limited. Under Rule 81, section 1, a
special administrator is appointed only when there is a delay in granting letters
testamentary or of administration occasioned by an appeal from allowance or
disallowance of a will or from any other cause, and such special administrator is
authorized to collect and take charge of the estate until the questions causing the
delay are decided and an executor or administrator thereon appointed. Under Rule
87 section 8, a special administrator is also appointed when the regular executor or
administrator has a claim against the estate he represents and said special
administrator shall have the same power and subject to the same liability as a
regular executor or administrator. In other words, a special administrator is
appointed only for a limited time and for a specific purpose. Naturally, because of
the temporary and special character of his appointment, it was deemed by the law
not advisable for any party to appeal from said temporary appointment. On the
other hand, a co-administrator performs all the functions and duties and exercises
all the powers of a regular administrator, only that he is not alone in the
administration. Further taking into consideration the circumstances obtaining in this
case, that petitioner Francisco de Borja though originally designated administrator,
is and has for several years been one only in name due to his physical and mental
disability, as a result of which respondent Jose de Borja is now practically the sole
administrator there is no question that for all practical and legal purposes the
appointment of Jose de Borja as co-administrator is equivalent to and has the same
effect as a sole regular or general administrator.
In view of the foregoing, holding that the appointment of a co-administrator,
especially in the present case, is appealable, the petition for mandamus is granted
and respondent Judge is hereby directed to approve the record on appeal and to
give due course to the appeal. No costs.
Paras, C.J., Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion,
and Reyes, J.B.L., JJ.,concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-44602

November 28, 1938

MARIA CALMA, as administratrix of the testamentary proceedings of Fausta

Macasaquit, plaintiff-appellant,
vs.
ESPERANZA TAEDO, assisted by her husband Felipe Mamaual, and BARTOLOME
QUIZON, Deputy Sheriff of Tarlac, defendants-appellees.

AVANCENA, C.J.:
The spouses Eulalio Calma and Fausta Macasaquit were the owners of the property
described in the complaint, being their conjugal property. They were also indebted
to Esperanza Taedo, chargeable against the conjugal property, in the sums of
P948.34 and P247, with interest thereon at 10 per cent per annum. On October 10,
1933, Fausta Macasaquit died leaving a will wherein she appointed her daughter,
Maria Calma, as administratrix of her properties. Upon the commencement of the
corresponding probate proceedings in the Court of First Instance of Tarlac, the said
daughter, Maria Calma, was appointed judicial administratrix of the properties of
the deceased.
While these probate proceedings of the deceased Fausta Macasaquit were pending,
Esperanza Tanedo, on January 27, 1934, filed a complaint against Eulalio Calma for
the recovery of the sums of P948.34 and P247. The Court of First Instance of Tarlac
rendered judgment for the payment of this sum. In the execution of this judgment,
despite the third party claim filed by Fausta Macasaquit, the property described in
the complaint was sold by the sheriff.
Maria Calma, as administratrix of the estate of Fausta Macasaquit, now brings this
action and asks that the sale made by the sheriff of the property described in the
complaint be annulled and that the estate of Fausta Macasaquit be declared the
sole and absolute owner thereof. lawphi1.net
The court absolved the defendants from this complaint.
The probate proceedings of the deceased Fausta Macasaquit were instituted in
accordance with Act No. 3176 reading:
SEC. 685. When the marriage is dissolved by the death of the husband or wife, the
community property shall be inventoried, administered, and liquidated, and the
debts thereof shall be paid, in the testamentary or intestate proceedings of the
deceased spouse, in accordance with the provisions of this Code relative to the
administration and liquidation and partition proceeding, unless the parties, being all
of age and legally capacitated, avail themselves of the right granted to them by this
Code of proceeding to an extrajudicial partition and liquidation of said property.
In case it is necessary to sell any portion of said community property in order to pay
the outstanding debts and obligations of the same, such sale shall be made in the
manner and with the formalities established by this Code for the sale of the
property of deceased persons. Any sale, transfer, alienation or disposition of said

property effected without said formalities shall be null and void, except as regards
the portion that belonged to the vendor at the time the liquidation and partition was
made.
Prior to this Act, the liquidation of conjugal property was made under section 685 of
the Code of Civil Procedure. Interpreting the scope of Act No. 3176, this court, in the
case of Caragay vs. Urquiza (53 Phil., 72), said that the amendment introduced by
this Act consists in authorizing the institution of testate or intestate proceedings for
the settlement of the estate of a deceased spouse or of an ordinary action for the
liquidation and partition of the property of a conjugal partnership. It should be
understood that these remedies are alternative, and not cumulative, in he sense
that they cannot be availed of at he same time, inasmuch as an anomalous and
chaotic situation would result if conjugal property were administered, liquidated and
distributed at the same time in a testamentary proceeding and in an ordinary action
for liquidation and partition of property. Consequently, the testamentary
proceedings of Fausta Macasaquit having been instituted, the liquidation and
partition of the conjugal property by reason of her marriage to Eulalio Calma should
be made in these proceedings, to the exclusion of any other proceeding for the
same purpose.
Interpreting this same Act No. 3176 in another decision, this court, in the case
of Cruz vs. De Jesus (52 Phil., 870) said that when the marriage is dissolved by the
death of the wife, the legal power of management of the husband ceases, passing
to the administrator appointed by the court in the testate or intestate proceedings
instituted to that end if there be any debts to be paid. This doctrine has been
confirmed in the other case of Ona vs. De Gala(58 Phil., 881).
From the foregoing it follows that when Esperanza Tanedo brought suit against
Eulalio Calma for the payment of the sums of P948.34 and P247, which wee debts
chargeable against the conjugal property, the power of Eulalio Calma. legal
administrator of the conjugal property while Fausta Macasaquit was living, had
ceased and passed to the administratrix Maria Calma appointed in the testamentary
proceedings of Fausta Macasaquit. Hence, this being an indebtedness chargeable
against conjugal property, no complaint for its payment can be brought against
Eulalio Calma, who had already ceased as administrator of the conjugal property;
the claim for this amount had to be filed in the testamentary proceedings of Fausta
Macasaquit.
Having to be filed according to Act No. 3176 under the provisions of the Code of
Civil Procedure relative to the administration and liquidation of properties of
deceased persons, it should be filed before the committee on claims in said
testamentary proceedings and, at all events, thereafter, by appeal to the
corresponding Court of First Instance, in an ordinary action against the judicial
administratrix.
On the other hand, he property described in the complaint is included among the
inventoried properties subject to the testamentary proceedings of Fausta
Macasaquit because, belonging as it does to the conjugal property, it should, under
Act No. 3176, be included among the properties of the testamentary proceedings.

We conclude that, Eulalio Calma having ceased as legal administrator of the

conjugal property had with his wife Fausta Macasaquit, no complaint can be brought
against him for the recovery of an indebtedness chargeable against said conjugal
property, and that the action should be instituted in the testamentary proceedings
of the deceased Fausta Macasaquit in the manner provided by law, by filing it first
with the committee on claims.
Wherefore, we hold that the sale of the property described in the complaint, made
by the sheriff in execution of the judgment rendered against Eulalio Calma for the
collection of the indebtedness chargeable against the conjugal property, is void and
said property should be deemed subject to the testamentary proceedings of the
deceased Fausta Macasaquit for all the purposes of that case.
The appealed judgment is reversed, without special pronouncement as to the costs.
So ordered.
Villa-Real, Abad Santos, Imperial, Diaz, Laurel and Concepcion, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-27082 January 31, 1978
Intestate Estate of the Spouses Juan C. Pangilinan and Teresa Magtuba. FILOMENO
COCA, Administrator, PRIMA PANGILINAN, and HEIRS OF CONCEPCION PANGILINANYAMUTA, namely, MARIA P. YAMUTA DE ATAY, EUSEBIO P. YAMUTA, and APOLINAR P.
YAMUTA, petitioners-appellants,
vs.
GUADALUPE PIZARRAS VDA. DE PANGILINAN, HEIRS OF FRANCISCO PANGILINAN,
namely, FRANCIS, ALGERIAN, BENJAMIN, PERLA and FRANCISCO, JR., all surnamed
PANGILINAN, and CRISPIN BORROMEO, oppositors-appellees.
G.R. No. L-29545 January 31, 1978
FILOMENO COCA, administrator-appellant,
vs.
CRISPIN BORROMEO and GUADALUPE PIZARRAS VDA. DE PANGILINAN and her
Children, claimants-appellees.
Casiano U. Laput and Lorenzo D. de Guzman for appellants.
Paulino A. Conol and Felicidario M. Batoy for appellees.

AQUINO, J.:
These two cases involve the question of whether the ownership of a parcel of land,
whether belonging to the deceased spouses or to their heirs, should be decided in

the intestate proceeding or in a separate action. Also in issue in these two cases is
the liability of the decedents' estate for the litigation expenses allegedly incurred in
a case regarding that same land.
Being related cases, their adjudication in a single decision was allowed in this
Court's resolution of August 13, 1969.
The spouses Juan Pan and Teresa Magtuba died intestate in 1943 and 1948,
respectively. They possession a homestead, consisting of two parcels of land,
located at Barrio Bunawan or Mauswagon, Calamba, Misamis Occidental.
One parcel is Identified as Lot No. 1927. It has an area of 3.9791 hectares. It was
covered by Original Certificate of Title (OCT) No. 10 of the registry of deeds of
Oriental Misamis in the name of Juan Pangilinan issued in 1927. It is now covered by
Transfer Certificate of Title No. 86 (T-10) of the registry of deeds of Misamis
Occidental (p. 7, Appellees' brief in L-27082).
The other parcel is Identified as Lot No. 1112. It has an area of 18.0291 hectares. It
is covered by OCT No. P-8419 issued on November 21, 1961 in the name of the
Heirs of Juan Pan , represented by Concepcion Pan de Yamuta (p. 73, Record on
Appeal in
L-27082).
According to Guadalupe Pizarras and her children, a third parcel, Lot No. 1920, with
an area of eight hectares which was surveyed in the name of Concepcion Pan and
which adjoins Lots Nos. 1927 and 1112, also forms part of the estate of the
deceased Pangilinan spouses (pp. 61-64, Record on Appeal).
The Pangilinan spouses were survived by the following heirs: (1) Prima Pangilinan,
(2) Maria, Eusebio and Apolinar all surnamed Yamuta, the children of Concepcion
Pangilinan Yamuta who died in 1961, and (3) Francis, A Benjamin Perla and
Francisco, Jr., all surnamed Pan the children of Francisco Pan who died in 1948 and
who was also survived by his widow, Guadalupe Pizarras. (It is not clear whether
Roseller, Demosthenes and Eliza, all surnamed Japay, were the children of the
deceased Helen Pangilinan, presumably a daughter of Francisco Pangilinan and
Teresa Magtuba. See pages 81-82, Record on Appeal).
Special Proceeding No. 508 of the Court of First Instance of Misamis Occidental was
instituted on September 5, 1963 for the settlement of the estate of the deceased
spouses, Juan C. Pangilinan and Teresa Magtuba.
On September 25, 1965 the administrator presented a project of partition wherein
the combined areas of Lots Nos. 1112 and 1927, or 22.0082 hectares, were
partitioned as follows:
(a) To Crispin Borromeo as payment of his attorney's fees in Civil Case No. 560 or
CA-G.R. No. 6721-R, February 27, 1952, Crispin Labaria vs. Juan C. Pangilinan, in
accordance with the lower court's decision dated July 19, 1965 in Civil Case No.
2440. Borromeo vs. Coca (p. 11, Appellees' brief in L-27082), three hectares which
should be taken from Lot No. 1112 and designated as Lot No. 1112-A;

(b) To the heirs of Francisco Pangilinan (Mrs. Pizarras and children), 5.3361
hectares taken from Lot No. 1112 and designated as Lot No. 1112-B;
(c) To Prima Pangilinan, 6.3361 hectares, taken from Lot No. 1112 and designated as
Lot No. 1112-C, and presumably a daughter of Francisco Pan 81-82, Record on
Appeal).
(d) To the heirs of Concepcion Pangilinan, 7.3360 hectares, consisting of Lot No.
1927 and the remainder of Lot No. 1112, which remainder is designated as Lot No.
1112-D.
It was also provided in the project of partition that the sum of P5,088.50, as the
alleged debt of the estate to Concepcion Pan should be divided equally among the
three sets of heirs, or P1,696.16 for each set of heirs, and that Prima Pangilinan and
the heirs of Francisco Pangilinan should pay that amount to the heirs of Concepcion
Pangilinan.
The heirs of Francisco Pangilinan (Guadalupe Pizarras, et al.) opposed that project of
partition. They contended that the proposed partition contravened the lower court's
order of December 6, 1963 which recognized the right of the heirs of Francisco Pan
to a twelve-hectare portion of Lot No. 1112; that Prima Pangilinan, who sold her
share to Francisco Pan should be excluded from the partition; that the total share of
the heirs of Francisco Pangilinan in Lot No. 1112 is 12.6720 hectares, while that of
the heirs of Concepcion Pangilinan is 6.3360 hectares, and that the claim of the
heirs of Concepcion Pangilinan for 115,088.50 had not been properly allowed.
The lower court in its order of October 2, 1965 directed the administrator to pay the
debt of the estate to the heirs of Concepcion Pangilinan. It deferred action on the
project of partition until the ownership of the twelve hectares, which were claimed
by the heirs of Francisco Pan and the six hectares, which were claimed by Crispen
Borromeo (eighteen hectares in all which were excluded from the inventory in the
court's order of December 6, 1963) is determined in an ordinary action.
On may 14,1966 the heirs of Francisco Pangilinan filed a supplemental opposition
wherein they asked that Lot No. 1920, with an area of eight hectares, which lot was
surveyed at should be included in the project of partition.
On August 31, 1966 the lower court, apparently acting on its own volition, tackled
once more the project of partition. After noting that no separate action had been
filed to determine the ownership of the twelve hectares, it issued an order
approving the project of partition but excluding the twelve hectares claimed by the
heirs of Francisco Pangilinan.
That order on its face appears to be incomplete because, after excluding the twelve
hectares, the lower court did not bother to decide how the remainder should be
partitioned and whether Prima Pangilinan had a share in that remainder.
That is the order under appeal in L-27082 by Filomeno Coca as administrator, Prima
Pangilinan and the heirs of Concepcion Pangilinan. However, the said appellants in
their brief also assail the lower court's order of December 6, 1963, excluding

eighteen hectares from the inventory, which order was sustained by the Court of
Appeals in its decision in Atay vs. Catolico, CA-G.R. Nos. 33165-R, and 3426-R, May
14,1964, 5 CAR 1200. This Court refused to review that decision in its resolution of
July 29, 1964, in
L-23088-89, Atay vs. Court of Appeals.
The other incident involves the lower court's order of May 11, 1968 which directed
that the claim of the heirs of Francisco Pangilinan for reimbursement of litigation
expenses (apart from the sum of P1,459.49, as the value of the produce of the
twelve hectares already mentioned, which was appropriated by the special
administrator), be referred to the clerk of court for reception of the evidence.
In another order, also dated May 11, 1968, the lower court reiterated its order of
October 2, 1965 that the administrator should pay the heirs of Concepcion Pan the.
amount to be reimbursed to her estate. The court further directed the administrator
to account for the income of the estate, to recover any amount due from the special
administrator, and to pay the claim of Crispin Borromeo and the amount due to the
heirs of Concepcion Pangilinan as directed in its order of August 31, 1966 and in its
approval of the accounting of the special administrator.
The administrator, Filomeno Coca, Prima Pangilinan and the heirs of Concepcion Pan
also appealed from those two orders dated May 11, 1968 (L-29545).
The appellant contend that the lower court, as a probate court, has no jurisdiction to
decide the ownership of the twelve-hectare portion of Lot No. 1112. On the other
hand, the appellees" or the heirs of Francisco Pangilinan counter that the lower
court did not decide the ownership of the twelve hectares when it ordered their
exclusion from the project of partition. So, the problem is how the title to the twelve
hectares should be decided, whether in a separate action or in the intestate.
proceeding.
It should be clarified that whether a particular matter should be resolved by the
Court of First Instance in the exercise of its general jurisdiction or of its limited
probate jurisdiction is in reality not a jurisdictional question. In essence, it is a
procedural question involving a mode of practice "which may be waived" (Cunanan
vs. Amparo, 80 Phil. 227, 232. Cf. Reyes vs. Diaz, 73 Phil. 484 re jurisdiction over the
issue).
As a general rule, the question as to title to property should not be passed upon in
the estate or intestate proceeding. That question should be ventilated in a separate
action. (Lachenal vs. Salas, L-42257, June 14, 1976, 71 SCRA 262, 266). That
general rule has qualifications or exceptions justified by expediency and
convenience.
Thus, the probate court may provisionally pass upon in an intestate or testate
proceeding the question of inclusion in, or exclusion from, the inventory of a piece
of property without prejudice to its final determination in a separate action Lachenal
vs. Salas, supra).

Although generally, a probate court may not decide a question of title or ownership,
yet if the interested parties are all heirs or the question is one of collation or
advancement, or the parties consent to the assumption of jurisdiction by the
probate court and the rights of 'third parties are not impaired, then the probate
court is competent to decide the question of ownership (Pascual vs. Pascual 73 Phil.
561; Alvarez vs. Espiritu, L-18833, August 14, 1965, 14 SCRA 892; Cunanan vs.
Amparo, supra; 3 Morans Comments on the Rules of Court, 1970 Ed., p. 4731).
We hold that the instant case may be treated as an exception to the general rule
that questions of title should be ventilated in a separate action.
Here, the probate court had already received evidence on the ownership of the
twelve-hectare portion during the hearing of the motion for its exclusion from title
inventory The only interested parties are the heirs who have all appeared in the
intestate proceeding.
As pointed out by the appellees, they belong to the poor stratum of society. They
should not be forced to incur additional expenses (such as filing fees) by bringing a
separate action to determine the ownership of the twelve-hectare portion.
The just, expeditious and inexpensive solution is to require the heirs of Francisco
Pangilinan to the in the intestate, proceeding, Special Proceeding No. 568, a motion
in the form of a complaint wherein they should set forth their claim for the twelve
hectares in question, stating the ultimate facts in support of their claim, such as the
partition made by Juan C. Pangilinan, their acquisition of the share of Prima
Pangilinan and the usufructuary rights of their parents, their long possession of the
said portion, their claim for the produce of the land, the expenses incurred by them
in Civil Case No. 560, Labaria vs. Pangilinan, and their contention that Lot No. 1920
forms part of the estate of the Pangilinan spouses.
Copies of that motion should be serves upon the administrator and upon Prima
Pangilinan and the heirs of Concepcion Pangilinan (who are all represented by the
same lawyers). They should answer the motion within fifteen days from service. In
their answer the appellants should set forth the ultimate facts and the defenses
(such as the violation of section 118 of the Public Land Law) to support their theory
that Lot No. 1112 still forms part of the estate of the spouses Juan C. Pangilinan and
Teresa Magtuba and that the heirs of Francisco Pangilinan should bear one-third of
the expenses incurred by Concepcion Pan in Civil Case No. 560.
After the issues have been joined and in case no amicable settlement has been
reached, the probate court should receive evidence or, as indicated by the Court of
Appeals in Atay vs. Catolico, supra a full-dress hearing should be held.
Crispin Borromeo may set forth also his claim for the three hectares but only for the
purpose of deciding what portion of the estate should be given to him in satisfaction
of his share. His claim for the sum of P416 had already been adjudicated by the
lower court in its order of August 31, 1966 (pp. 26- 27, Record on Appeal in L29545). No appeal was interposed from that adjudication.

After trial the lower court's decision on the issues as to what constitutes the estate
of the Pangilinan spouses should include the partition thereof and should indicate
what portion of the estate should be allocated to Crispen Borromeo. If necessary,
the validity of the donation or partition of Lot No. 1112, made by Juan C. Pangilinan
during his lifetime, should be passed upon.
Considering that the respective claims of the heirs of Francisco Pangilinan . and the
heirs of Concepcion Pangilinan for reimbursement of the litigation expenses
allegedly incurred in Civil Case No. 560 will be included in the trial, the two orders of
the trial court dated May 11, 1968 regarding those matters (L-29545) should not be
enforced. They should be set aside.
WHEREFORE, (1) the lower court's amended order of August 31, 1966, excluding
twelve hectares from the partition of the estate of the deceased Pan spouses (L27082) and (2) the two orders dated May 11, 1968, regarding the claim of
Guadalupe Pizarras and her children and the debt of the estate to Concepcion
Pangilinan (L-29545) are reversed and set aside.
A new trial should be held on those matters after the filing of the proper pleadings
and in case no amicable settlement is reached. The heirs of Francisco Pangilinan
should file their motion within thirty days from notice of the entry of judgment in
this case.
The case is remanded to the lower court for further proceedings in accordance with
the guidelines already set forth. No costs.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.
Santos, J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-27082 January 31, 1978
Intestate Estate of the Spouses Juan C. Pangilinan and Teresa Magtuba. FILOMENO
COCA, Administrator, PRIMA PANGILINAN, and HEIRS OF CONCEPCION PANGILINANYAMUTA, namely, MARIA P. YAMUTA DE ATAY, EUSEBIO P. YAMUTA, and APOLINAR P.
YAMUTA, petitioners-appellants,
vs.
GUADALUPE PIZARRAS VDA. DE PANGILINAN, HEIRS OF FRANCISCO PANGILINAN,
namely, FRANCIS, ALGERIAN, BENJAMIN, PERLA and FRANCISCO, JR., all surnamed
PANGILINAN, and CRISPIN BORROMEO, oppositors-appellees.
G.R. No. L-29545 January 31, 1978

FILOMENO COCA, administrator-appellant,

vs.
CRISPIN BORROMEO and GUADALUPE PIZARRAS VDA. DE PANGILINAN and her
Children, claimants-appellees.
Casiano U. Laput and Lorenzo D. de Guzman for appellants.
Paulino A. Conol and Felicidario M. Batoy for appellees.

AQUINO, J.:
These two cases involve the question of whether the ownership of a parcel of land,
whether belonging to the deceased spouses or to their heirs, should be decided in
the intestate proceeding or in a separate action. Also in issue in these two cases is
the liability of the decedents' estate for the litigation expenses allegedly incurred in
a case regarding that same land.
Being related cases, their adjudication in a single decision was allowed in this
Court's resolution of August 13, 1969.
The spouses Juan Pan and Teresa Magtuba died intestate in 1943 and 1948,
respectively. They possession a homestead, consisting of two parcels of land,
located at Barrio Bunawan or Mauswagon, Calamba, Misamis Occidental.
One parcel is Identified as Lot No. 1927. It has an area of 3.9791 hectares. It was
covered by Original Certificate of Title (OCT) No. 10 of the registry of deeds of
Oriental Misamis in the name of Juan Pangilinan issued in 1927. It is now covered by
Transfer Certificate of Title No. 86 (T-10) of the registry of deeds of Misamis
Occidental (p. 7, Appellees' brief in L-27082).
The other parcel is Identified as Lot No. 1112. It has an area of 18.0291 hectares. It
is covered by OCT No. P-8419 issued on November 21, 1961 in the name of the
Heirs of Juan Pan , represented by Concepcion Pan de Yamuta (p. 73, Record on
Appeal in
L-27082).
According to Guadalupe Pizarras and her children, a third parcel, Lot No. 1920, with
an area of eight hectares which was surveyed in the name of Concepcion Pan and
which adjoins Lots Nos. 1927 and 1112, also forms part of the estate of the
deceased Pangilinan spouses (pp. 61-64, Record on Appeal).
The Pangilinan spouses were survived by the following heirs: (1) Prima Pangilinan,
(2) Maria, Eusebio and Apolinar all surnamed Yamuta, the children of Concepcion
Pangilinan Yamuta who died in 1961, and (3) Francis, A Benjamin Perla and
Francisco, Jr., all surnamed Pan the children of Francisco Pan who died in 1948 and
who was also survived by his widow, Guadalupe Pizarras. (It is not clear whether
Roseller, Demosthenes and Eliza, all surnamed Japay, were the children of the
deceased Helen Pangilinan, presumably a daughter of Francisco Pangilinan and
Teresa Magtuba. See pages 81-82, Record on Appeal).

Special Proceeding No. 508 of the Court of First Instance of Misamis Occidental was
instituted on September 5, 1963 for the settlement of the estate of the deceased
spouses, Juan C. Pangilinan and Teresa Magtuba.
On September 25, 1965 the administrator presented a project of partition wherein
the combined areas of Lots Nos. 1112 and 1927, or 22.0082 hectares, were
partitioned as follows:
(a) To Crispin Borromeo as payment of his attorney's fees in Civil Case No. 560 or
CA-G.R. No. 6721-R, February 27, 1952, Crispin Labaria vs. Juan C. Pangilinan, in
accordance with the lower court's decision dated July 19, 1965 in Civil Case No.
2440. Borromeo vs. Coca (p. 11, Appellees' brief in L-27082), three hectares which
should be taken from Lot No. 1112 and designated as Lot No. 1112-A;
(b) To the heirs of Francisco Pangilinan (Mrs. Pizarras and children), 5.3361
hectares taken from Lot No. 1112 and designated as Lot No. 1112-B;
(c) To Prima Pangilinan, 6.3361 hectares, taken from Lot No. 1112 and designated as
Lot No. 1112-C, and presumably a daughter of Francisco Pan 81-82, Record on
Appeal).
(d) To the heirs of Concepcion Pangilinan, 7.3360 hectares, consisting of Lot No.
1927 and the remainder of Lot No. 1112, which remainder is designated as Lot No.
1112-D.
It was also provided in the project of partition that the sum of P5,088.50, as the
alleged debt of the estate to Concepcion Pan should be divided equally among the
three sets of heirs, or P1,696.16 for each set of heirs, and that Prima Pangilinan and
the heirs of Francisco Pangilinan should pay that amount to the heirs of Concepcion
Pangilinan.
The heirs of Francisco Pangilinan (Guadalupe Pizarras, et al.) opposed that project of
partition. They contended that the proposed partition contravened the lower court's
order of December 6, 1963 which recognized the right of the heirs of Francisco Pan
to a twelve-hectare portion of Lot No. 1112; that Prima Pangilinan, who sold her
share to Francisco Pan should be excluded from the partition; that the total share of
the heirs of Francisco Pangilinan in Lot No. 1112 is 12.6720 hectares, while that of
the heirs of Concepcion Pangilinan is 6.3360 hectares, and that the claim of the
heirs of Concepcion Pangilinan for 115,088.50 had not been properly allowed.
The lower court in its order of October 2, 1965 directed the administrator to pay the
debt of the estate to the heirs of Concepcion Pangilinan. It deferred action on the
project of partition until the ownership of the twelve hectares, which were claimed
by the heirs of Francisco Pan and the six hectares, which were claimed by Crispen
Borromeo (eighteen hectares in all which were excluded from the inventory in the
court's order of December 6, 1963) is determined in an ordinary action.
On may 14,1966 the heirs of Francisco Pangilinan filed a supplemental opposition
wherein they asked that Lot No. 1920, with an area of eight hectares, which lot was
surveyed at should be included in the project of partition.

On August 31, 1966 the lower court, apparently acting on its own volition, tackled
once more the project of partition. After noting that no separate action had been
filed to determine the ownership of the twelve hectares, it issued an order
approving the project of partition but excluding the twelve hectares claimed by the
heirs of Francisco Pangilinan.
That order on its face appears to be incomplete because, after excluding the twelve
hectares, the lower court did not bother to decide how the remainder should be
partitioned and whether Prima Pangilinan had a share in that remainder.
That is the order under appeal in L-27082 by Filomeno Coca as administrator, Prima
Pangilinan and the heirs of Concepcion Pangilinan. However, the said appellants in
their brief also assail the lower court's order of December 6, 1963, excluding
eighteen hectares from the inventory, which order was sustained by the Court of
Appeals in its decision in Atay vs. Catolico, CA-G.R. Nos. 33165-R, and 3426-R, May
14,1964, 5 CAR 1200. This Court refused to review that decision in its resolution of
July 29, 1964, in
L-23088-89, Atay vs. Court of Appeals.
The other incident involves the lower court's order of May 11, 1968 which directed
that the claim of the heirs of Francisco Pangilinan for reimbursement of litigation
expenses (apart from the sum of P1,459.49, as the value of the produce of the
twelve hectares already mentioned, which was appropriated by the special
administrator), be referred to the clerk of court for reception of the evidence.
In another order, also dated May 11, 1968, the lower court reiterated its order of
October 2, 1965 that the administrator should pay the heirs of Concepcion Pan the.
amount to be reimbursed to her estate. The court further directed the administrator
to account for the income of the estate, to recover any amount due from the special
administrator, and to pay the claim of Crispin Borromeo and the amount due to the
heirs of Concepcion Pangilinan as directed in its order of August 31, 1966 and in its
approval of the accounting of the special administrator.
The administrator, Filomeno Coca, Prima Pangilinan and the heirs of Concepcion Pan
also appealed from those two orders dated May 11, 1968 (L-29545).
The appellant contend that the lower court, as a probate court, has no jurisdiction to
decide the ownership of the twelve-hectare portion of Lot No. 1112. On the other
hand, the appellees" or the heirs of Francisco Pangilinan counter that the lower
court did not decide the ownership of the twelve hectares when it ordered their
exclusion from the project of partition. So, the problem is how the title to the twelve
hectares should be decided, whether in a separate action or in the intestate.
proceeding.
It should be clarified that whether a particular matter should be resolved by the
Court of First Instance in the exercise of its general jurisdiction or of its limited
probate jurisdiction is in reality not a jurisdictional question. In essence, it is a
procedural question involving a mode of practice "which may be waived" (Cunanan

vs. Amparo, 80 Phil. 227, 232. Cf. Reyes vs. Diaz, 73 Phil. 484 re jurisdiction over the
issue).
As a general rule, the question as to title to property should not be passed upon in
the estate or intestate proceeding. That question should be ventilated in a separate
action. (Lachenal vs. Salas, L-42257, June 14, 1976, 71 SCRA 262, 266). That
general rule has qualifications or exceptions justified by expediency and
convenience.
Thus, the probate court may provisionally pass upon in an intestate or testate
proceeding the question of inclusion in, or exclusion from, the inventory of a piece
of property without prejudice to its final determination in a separate action Lachenal
vs. Salas, supra).
Although generally, a probate court may not decide a question of title or ownership,
yet if the interested parties are all heirs or the question is one of collation or
advancement, or the parties consent to the assumption of jurisdiction by the
probate court and the rights of 'third parties are not impaired, then the probate
court is competent to decide the question of ownership (Pascual vs. Pascual 73 Phil.
561; Alvarez vs. Espiritu, L-18833, August 14, 1965, 14 SCRA 892; Cunanan vs.
Amparo, supra; 3 Morans Comments on the Rules of Court, 1970 Ed., p. 4731).
We hold that the instant case may be treated as an exception to the general rule
that questions of title should be ventilated in a separate action.
Here, the probate court had already received evidence on the ownership of the
twelve-hectare portion during the hearing of the motion for its exclusion from title
inventory The only interested parties are the heirs who have all appeared in the
intestate proceeding.
As pointed out by the appellees, they belong to the poor stratum of society. They
should not be forced to incur additional expenses (such as filing fees) by bringing a
separate action to determine the ownership of the twelve-hectare portion.
The just, expeditious and inexpensive solution is to require the heirs of Francisco
Pangilinan to the in the intestate, proceeding, Special Proceeding No. 568, a motion
in the form of a complaint wherein they should set forth their claim for the twelve
hectares in question, stating the ultimate facts in support of their claim, such as the
partition made by Juan C. Pangilinan, their acquisition of the share of Prima
Pangilinan and the usufructuary rights of their parents, their long possession of the
said portion, their claim for the produce of the land, the expenses incurred by them
in Civil Case No. 560, Labaria vs. Pangilinan, and their contention that Lot No. 1920
forms part of the estate of the Pangilinan spouses.
Copies of that motion should be serves upon the administrator and upon Prima
Pangilinan and the heirs of Concepcion Pangilinan (who are all represented by the
same lawyers). They should answer the motion within fifteen days from service. In
their answer the appellants should set forth the ultimate facts and the defenses
(such as the violation of section 118 of the Public Land Law) to support their theory
that Lot No. 1112 still forms part of the estate of the spouses Juan C. Pangilinan and

Teresa Magtuba and that the heirs of Francisco Pangilinan should bear one-third of
the expenses incurred by Concepcion Pan in Civil Case No. 560.
After the issues have been joined and in case no amicable settlement has been
reached, the probate court should receive evidence or, as indicated by the Court of
Appeals in Atay vs. Catolico, supra a full-dress hearing should be held.
Crispin Borromeo may set forth also his claim for the three hectares but only for the
purpose of deciding what portion of the estate should be given to him in satisfaction
of his share. His claim for the sum of P416 had already been adjudicated by the
lower court in its order of August 31, 1966 (pp. 26- 27, Record on Appeal in L29545). No appeal was interposed from that adjudication.
After trial the lower court's decision on the issues as to what constitutes the estate
of the Pangilinan spouses should include the partition thereof and should indicate
what portion of the estate should be allocated to Crispen Borromeo. If necessary,
the validity of the donation or partition of Lot No. 1112, made by Juan C. Pangilinan
during his lifetime, should be passed upon.
Considering that the respective claims of the heirs of Francisco Pangilinan . and the
heirs of Concepcion Pangilinan for reimbursement of the litigation expenses
allegedly incurred in Civil Case No. 560 will be included in the trial, the two orders of
the trial court dated May 11, 1968 regarding those matters (L-29545) should not be
enforced. They should be set aside.
WHEREFORE, (1) the lower court's amended order of August 31, 1966, excluding
twelve hectares from the partition of the estate of the deceased Pan spouses (L27082) and (2) the two orders dated May 11, 1968, regarding the claim of
Guadalupe Pizarras and her children and the debt of the estate to Concepcion
Pangilinan (L-29545) are reversed and set aside.
A new trial should be held on those matters after the filing of the proper pleadings
and in case no amicable settlement is reached. The heirs of Francisco Pangilinan
should file their motion within thirty days from notice of the entry of judgment in
this case.
The case is remanded to the lower court for further proceedings in accordance with
the guidelines already set forth. No costs.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.
Santos, J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 45904

September 30, 1938

Intestate estate of the deceased Luz Garcia. PABLO G. UTULO, applicant-appellee,

vs.
LEONA PASION VIUDA DE GARCIA, oppositor-appellant.
Feliciano B. Gardiner for appellant.
Gerardo S. Limlingan for appellee.
IMPERIAL, J.:
This is an appeal taken by the oppositor from the order of the Court of First Instance
of the Province of Tarlac appointing the applicant as judicial administrator of the
property left by the deceased Luz Garcia.
Juan Garcia Sanchez died intestate, and in the proceedings instituted in the Court of
First Instance of Tarlac for the administration of his property (special proceedings
No. 3475), Leona Pasion Vda. de Garcia, the surviving spouse and the herein
oppositor, was appointed judicial administratrix. The said deceased left legitimate
children, named Juan Garcia, jr., Patrocinio Garcia and Luz Garcia who, with the
widow, are the presumptive forced heirs. Luz Garcia married the applicant Pablo G.
Utulo and during the pendency of the administration proceedings of the said
deceased, she died in the province without any legitimate descendants, her only
forced heirs being her mother and her husband. The latter commenced in the same
court the judicial administration of the property of his deceased wife (special
proceedings No. 4188), stating in his petition that her only heirs were he himself
and his mother-in-law, the oppositor, and that the only property left by the
deceased consisted in the share due her from the intestate of her father, Juan
Garcia Sanchez, and asking that he be named administrator of the property of said
deceased. The oppositor objected to the petition, opposing the judicial
administration of the property of her daughter and the appointment of the applicant
as administrator. She alleged that inasmuch as the said deceased left no
indebtedness, there was no occasion for the said judicial administration; but she
stated that should the court grant the administration of the property, she should be
appointed the administratrix thereof inasmuch as she had a better right than the
applicant. After the required publications, trial was had and the court, on August 28,
1936, finally issued the appealed order to which the oppositor excepted and
thereafter filed the record on appeal which was certified and approved.
The oppositor-appellant assigns five errors allegedly committed by the trial court,
but these assigned errors raise only two questions for resolution, namely: whether
upon the admitted facts the judicial administration of the property left by the
deceased Luz Garcia lies, with the consequent appointment of an administrator, and
whether the appellant has a better right to the said office than the appellee.
1. As to the first question, we have section 642 of the Code of Civil Procedure
providing in part that "if no executor is named in the will, or if a person dies
intestate, administration shall be granted" etc. This provision enunciates the
general rule that when a person dies living property in the Philippine Islands, his
property should be judicially administered and the competent court should appoint
a qualified administrator, in the order established in the section, in case the

deceased left no will, or in case he had left one should he fail to name an executor
therein. This rule, however, is subject to the exceptions established by sections 596
and 597 of the same Code, as finally amended. According to the first, when all the
heirs are of lawful age and there are no debts due from the estate, they may agree
in writing to partition the property without instituting the judicial administration or
applying for the appointment of an administrator. According to the second, if the
property left does not exceed six thousand pesos, the heirs may apply to the
competent court, after the required publications, to proceed with the summary
partition and, after paying all the known obligations, to partition all the property
constituting the inheritance among themselves pursuant to law, without instituting
the judicial administration and the appointment of an administrator.
Construing the scope of section 596, this court repeatedly held that when a person
dies without leaving pending obligations to be paid, his heirs, whether of age or not,
are not bound to submit the property to a judicial administration and the
appointment of an administrator are superfluous and unnecessary proceedings
(Ilustre vs.Alaras Frondosa, 17 Phil., 321; Malahacan vs. Ignacio, 19 Phil., 434;
Bondad vs. Bondad, 34 Phil., 232; Baldemorvs. Malangyaon, 34 Phil., 367;
Fule vs. Fule, 46 Phil., 317).
In enunciating the aforesaid doctrine, this court relied on the provisions of articles
657, 659 and 661 of the Civil Code under which the heirs succeed to all the property
left by the deceased from the time of his death. In the case of Ilustre vs. Alaras
Frondosa, supra, it was said:
Under the provisions of the Civil Code (arts. 657 to 661), the rights to the
succession of a person are transmitted from the moment of his death; in other
words, the heirs succeeded immediately to all of the property of the deceased
ancestor. The property belongs to the heirs at the moment of the death of the
ancestor as completely as if the ancestor had executed and delivered to them a
deed for the same before his death. In the absence of debts existing against the
estate, the heirs may enter upon the administration of the said property
immediately. If they desire to administer it jointly, they may do so. If they desire to
partition it among themselves and can do this by mutual agreement, they also have
that privilege. The Code of Procedure in Civil Actions provides how an estate may be
divided by a petition for partition in case they can not mutually agree in the
division. When there are no debts existing against the estate, there is certainly no
occasion for the intervention of an administrator in the settlement and partition of
the estate among the heirs. When the heirs are all of lawful age and there are no
debts, there is no reason why the estate should be burdened with the costs and
expenses of an administrator. The property belonging absolutely to the heirs, in the
absence of existing debts against the estate, the administrator has no right to
intervene in any way whatever in the division of the estate among the heirs. They
are co-owners of an undivided estate and the law offers them a remedy for the
division of the same among themselves. There is nothing in the present case to
show that the heirs requested the appointment of the administrator, or that they
intervened in any way whatever in the present actions. If there are any heirs of the

estate who have not received their participation, they have their remedy by petition
for partition of the said estate.
In the cases of Malahacan vs. Ignacio, supra, Bondad vs. Bondad, supra,
and Baldemor vs. Malangyaon, supra, the same doctrine was reiterated. And in the
case of Fule vs. Fule, supra, this court amplified and ratified the same doctrine in
the following language:
Upon the second question Did the court a quo commit an error in refusing to
appoint an administrator for the estate of Saturnino Fule? it may be said (a) that
it is admitted by all of the parties to the present action, that at the time of his death
no debts existed against his estate and (b) that all of the heirs of Saturnino Fule
were of age.
In this jurisdiction and by virtue of the provisions of articles 657, 659 and 661 of the
Civil Code, all of the property, real and personal, of a deceased person who dies
intestate, is transmitted immediately to his heirs. (To Guioc-Co vs. Del Rosario, 8
Phil., 546; Ilustre vs. Alaras Frondosa, 17 Phil., 321; Marin vs.Nacianceno, 19 Phil.,
238; Malahacan vs. Ignacio, 19 Phil., 434; Nable Jose vs. Uson, 27 Phil., 73;
Bondadvs. Bondad, 34 Phil., 232; Baldemor vs. Malangyaon, 34 Phil., 367.)
If then the property of the deceased, who dies intestate, passes immediately to his
heirs, as owners, and there are no debts, what reason can there be for the
appointment of a judicial administrator to administer the estate for them and to
deprive the real owners of their possession to which they are immediately entitled?
In the case of Bondad vs. Bondad (34 Phil., 232), Chief Justice Cayetano Arellano,
discussing this question, said: Under the provisions of the Civil Code (articles 657 to
661), the rights to the succession of a person are transmitted from the moment of
his death; in other words, the heirs succeed immediately to all of the property of the
deceased ancestor. The property belongs to the heirs at the moment of the death of
the ancestor as completely as if the ancestor had executed and delivered to them a
deed for the same before his death. In the absence of debts existing against the
estate, the heirs may enter upon the administration of the said property
immediately. If they desire to administer it jointly, they may do so. If they desire to
partition it among themselves and can do this by mutual agreement, they also have
that privilege. The Code of Procedure in Civil Actions provides how an estate may be
divided by a petition for partition in case they cannot mutually agree in the division.
(Sections 182-184, 196, and 596 of Act No. 190.)
When the heirs are all of lawful age and there are no debts there is no reason why
the estate should be burdened with the cost and expenses of an administrator. The
administrator has no right to intervene in any way whatsoever in the division of the
estate among the heirs when they are adults and when there are no debts against
the estate. (Ilustre vs. Alaras Frondosa, supra; Bondad vs. Bondad, supra;
Baldemor vs.Malangyaon, supra.)
When there are no debts and the heirs are all adults, their relation to the property
left by their ancestor is the same as that of any other coowners or owners in
common, and they may recover their individual rights, the same as any other

coowners of undivided property. (Succession of Story, 3 La. Ann., 502;

Mcintyre vs.Chappell, 4 Tex., 187; Wood et ux. vs. Ford, 29 Miss., 57.)
xxx

xxx

xxx

The right of the heirs in cases like the one we are discussing, also exist in the
divisions of personal as well as the real property. If they cannot agree as to the
division, then a suit for partition of such personal property among the heirs of the
deceased owner is maintenable where the estate is not in debts, the heirs are all of
age, and there is no administration upon the estate and no necessity thereof.
(Jordan vs. Jordan, 4 Tex. Civ. App. Rep., 559.)
It is difficult to conceive of any class or item of property susceptible of being held in
common which may not be divided by the coowners. It may be of personal property
as well as of real estate; of several parcels as well as of a single parcel, and of noncontiguous as well as of adjacent tracts; or of part only of the lands of the coowners
as well as of the whole. (Pickering vs. Moore, 67 N. H., 533; 31 L. R. A., 698;
Pipes vs.Buckner, 51 Miss., 848; Tewksbury vs. Provizzo, 12 Cal., 20.)
We conceive of no powerful reason which counsels the abandonment of a doctrine
so uniformly applied. We are convinced that if the courts had followed it in all cases
to which it has application, their files would not have been replete with unnecessary
administration proceedings as they are now. There is no weight in the argument
adduced by the appellee to the effect that his appointment as judicial administrator
is necessary so that he may have legal capacity to appear in the intestate of the
deceased Juan Garcia Sanchez. As he would appear in the said intestate by the right
of the representation, it would suffice for him to allege in proof of his interest that
he is a usufructuary forced heir of his deceased wife who, in turn, would be a forced
heir and an interested and necessary party if she were living . In order to intervene
in said intestate and to take part in the distribution of the property it is not
necessary that the administration of the property of his deceased wife be instituted
an administration which will take up time and occasion inconvenience and
unnecessary expenses.
2. In view of the foregoing, there is no need to determine which of the parties has
preferential right to the office of administrator.
The appealed order should be reversed, with the costs of this instance to the
applicant-appellee. So ordered.
Avancea, C.J., Villa-Real, Abad Santos, Diaz, Laurel and Concepcion, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 92436 July 26, 1991

MARIA VDA. DE REYES, EFREN REYES, ELVIRA REYES-TIMBOL, ERLINDA REYESVALERIO, ERNESTO REYES, ELIZABETH REYES, ALEX, RAFAEL II, EMELINA and
EVELYN, all surnamed REYES, represented by their mother, MARIA VDA. DE
REYES, petitioners,
vs.
THE COURT OF APPEALS AND SPOUSES DALMACIO GARDIOLA and ROSARIO
MARTILLANO respondents.
De Lara, De Lunas & Rosales for petitioners.
Santos, Pilapil & Associates for private respondents.

DAVIDE, JR., J.:p

Assailed before Us in this appeal by certiorari under Rule 45 of the Rules of Court is
the decision of the respondent Court of Appeals in C.A.-G.R. CV No. 11934,
promulgated on 20 October 1989, 1 reversing the decision of 1 October 1986 of
Branch 21 (Imus, Cavite) of the Regional Trial Court of the Fourth Judicial Region in
Civil Case No. RTC-BCV-83-17 entitled Maria vda. de Reyes, et al. vs. Spouses
Dalmacio Gardiola and Rosario Martillano, and Spouses Ricardo M. Gardiola and
Emelita Gardiola, 2 and the resolution of 1 March 1990 denying the petitioner's
motion for reconsideration.
As culled from both decisions and the pleadings of the parties, the following facts
have been preponderantly established:
During his lifetime, one Gavino Reyes owned a parcel of land of approximately 70
hectares, more or less, located at Sangayad, Ulong-Tubig, Carmona, Cavite. He
sought to bring said land under the operation of the Torrens System of registration
of property. Unfortunately, he died in 1921 without the title having been issued to
him. The application was prosecuted by his son, Marcelo Reyes, who was the
administrator of his property.
In 1936 the above property was surveyed and subdivided by Gavino's heirs (Exh.
"6"). In the subdivision plan, each resultant lot was earmarked, indicated for and
assigned to a specific heir. It appears therein that two lots, one of which is Lot No. I
A-14 (Exh. "6-A"), were allotted to Rafael Reyes, Sr., one of Gavino's children. Per
testimony of Juan Poblete, the children thereafter secured tax declarations for their
respective shares.
In 1941, or about twenty (20) years after the death of Gavino, the original certificate
of title for the whole property OCT No. 255 was issued. It was, however, kept
by Juan Poblete, son-in-law of Marcelo Reyes, who was by then already deceased.
The heirs of Gavino were not aware of this fact.
On 3 December 1943, Rafael Reyes, Sr. sold a parcel of land with an area of 23,431
square meters, more or less, to private respondent Dalmacio Gardiola (Exh. "5").
According to the vendee, this parcel corresponds to Lot No. 1-A-14 of the subdivision
plan aforestated. The deed of sale, however, did not specifically mention Lot No. 1-

A-14. The vendee immediately took possession of the property and started paying
the land taxes therein.
In 1945 or thereabouts, Juan Poblete "revalidated" the original Certificate of Title. As
reconstituted, the new title isOCT (0-4358) RO-255 (Exhs. "4" to "4-A").
On 21 October 1967, when the heirs of Gavino Reyes executed a Deed of
Extrajudicial Settlement of Estate (Exh. "D") based on the aforestated subdivision
plan (Exh. "6"), the lot that was intended for Rafael Reyes, Sr., who was already
deceased, was instead adjudicated to his only son and heir, Rafael Reyes, Jr. (the
predecessor-in-interest of the petitioners herein). Private respondent Rosario
Martillano signed the deed in representation of her mother, Marta Reyes, one of the
children of Gavino Reyes.
As a result of the Extrajudicial Settlement, OCT RO-255 was cancelled and in lieu
thereof, several transfer certificates of title covering the subdivided lots were issued
in the names of the respective adjudicatees. One of them is TCT No. 27257 in the
name of Rafael Reyes, Jr. covering Lot No. 1-A-14. The Transfer Certificates of Title
were, however, kept by one Candido Hebron. On 10 January 1969, some of the heirs
of Gavino Reyes filed a case of Annulment of Partition and Recovery of Possession
before the Court of First Instance of Cavite City, which was docketed therein as Civil
Case No. 1267. One of the defendants in said case is herein private respondent
Rosario Martillano. The case was dismissed on 18 September 1969, but Candido
Hebron was ordered by the trial court to deliver to the heirs concerned all the
transfer certificates of title in his possession. 3
After obtaining the Transfer Certificate of Title for Lot No. 1-A-14 from Hebron,
pursuant to the aforesaid order in Civil Case No. 1267, petitioners herein, as
successors-in-interest of Rafael Reyes, Jr., filed on 14 March 1983 with the Regional
Trial Court the above-mentioned Civil Case No. RTC-BCV-83-17 against private
respondents (defendants therein) for recovery of possession or, in the alternative,
for indemnification, accounting and damages. They allege therein that after "having
definitely discovered that they are the lawful owners of the property," (Lot No. 1-A14), they, "including Rafael Reyes, Jr., during his lifetime, made repeated demands
to (sic) defendants to surrender the possession of and vacate the parcel of land
belonging to the former, but defendants refused to vacate and surrender the
possession of the said land to herein plaintiffs;" the last of the demands was
allegedly made on 8 October 1982. They further allege that they have been
deprived by said defendants of the rightful possession and enjoyment of the
property since September 1969 which coincides with the date of the order in Civil
Case No. 1267. 4
In their answer, private respondents deny the material averments in the complaint
and assert that they are the owners of the lot in question, having bought the same
from Rafael Reyes, Sr., that the issuance of TCT No. 27257 is null and void, for such
sale was known to Rafael Reyes, Jr.; that they have been in possession of the
property and have been paying the land taxes thereon; and that petitioners are
barred by prescription and/or laches. 5

Petitioners amended their complaint on 21 March 1985 to implead as additional

defendants the spouses Ricardo M. Gardiola and Emerita Gardiola, on the basis of
the following claims:
xxx xxx xxx
9. Meanwhile, during the presentation of the defendants spouses Dalmacio Gardiola
and Rosario Martillano's evidence the former testified that they mortgaged the
subject land to the Rural Bank of Carmona Inc. For their failure to redeem the
mortgage the same was foreclosed by the bank.
10. However, within the period of one(1) year from such foreclosure the questioned
land was redeemed by the original defendants' son in the person of Ricardo M.
Gardiola, who was knowledgeable/aware of the pendency of the above captioned
case. The corresponding redemption was effected through a deed of conveyance, . .
..6
The prayer of the amended complaint now contains the alternative relief for
indemnification for the reasonable value of the property "in the event restitution of
the property is no longer possible." 7
In its decision of 1 October 1986, 8 the trial court concluded that petitioners' "title
over the subject property is valid and regular and thus they are entitled to its
possession and enjoyment," and accordingly decided thus:
WHEREFORE, the defendants or anyone acting for and in their behalf are hereby
ordered to relinguish possession or vacate the property in question which is covered
by Transfer Certificate of Title No. T-27257 in favor of the plaintiffs.
All other claims and/or counterclaims of the parties relative to this case are
dismissed for lack of proper substantiation.
The conclusion of the trial court is based on its finding that (a) there is no evidence
that the heirs of Gavino Reyes entered into any written agreement of partition in
1936 based on the subdivision plan; (b) there is no identity between Lot No. 1-14-A
and the land sold to private respondents by Rafael Reyes, Sr., or otherwise stated,
the description of the latter as indicated in the deed of sale (Exh. "5") does not tally
with the description of the former; and (c) moreover:
Granting, arguendo, that the sale made by Rafael Reyes, Sr. to the defendants
covered the land in question Lot No. 1-A-14 and that Transfer Certificate of Title
No. T-27257 was obtained by means of fraud, the claim of the defendants over the
said property is already barred. Action for reconveyance prescribes in four (4) years
from the discovery thereof. If there was fraud, the defendant could have discovered
the same in 1967 when the partition was made in as much as defendant Rosario
Martillano was a party to that partition. Let us grant further that the issuance of
Transfer Certificate of Title No. T-27257 to Rafael Reyes, Jr. created a constructive or
implied trust in favor of the defendants, again, the claim of the defendants is also
barred. From 1967 to the filing of their answer (let us consider this as an action for
reconveyance) to this case sometime in July, 1983, a period of about sixteen (16)

years had already elapsed. Prescriptibility of an action for reconveyance based on

implied or constructive trust is ten (10) years.
The trial court further held that the continued possession by private respondents,
which it found to have started in 1943, did not ripen into ownership because at that
time, the property was already registered, hence it cannot be acquired by
prescription or adverse possession. 9
Private respondents appealed the said decision to the Court of Appeals which
docketed the appeal as C.A.-G.R. CV No. 11934. In its decision of 20 October 1989,
the respondent Court of Appeals formulated the issues before it as follows:
I
Whether or not the lower court erred in declaring that the property of the late
Gavino Reyes consisting of 70 hectares was partitioned only in 1967 by his
grandchildren after discovery of the existence of OCT No. 255 and that no actual
partition was made in 1936 by the decedent's children.
II
Whether or not the lower court erred in concluding that the parcel of land sold by
the appellees' predecessor-in-interest, the late Rafael Reyes, Sr. to appellant
Dalmacio Gardiola was not the same parcel of land under litigation. 10
and resolved such issues, thus:
On the first issue, We believe that the lower court committed a reversible error
when it declared that the landed estate of the late Gavino Reyes was partitioned
only in 1967 by the latter's grandchildren; and that no actual partition was made in
1936 by the decedents' (sic) children. The evidence on record bears out the
existence of a subdivision plan (Exh. 6) which was not controverted nor denied by
the appellees. In like manner, the lower court itself recognized the fact that the
property of the late Gavino Reyes consisting of 70 hectares was surveyed and
subdivided in 1936 as evidenced by the said subdivision plan (Exh. 6). With the
existence of a subdivision plan, and from the uncontroverted testimony of
appellants' witness, We can only infer that at least an oral partition, which under the
law is valid and binding, was entered into by the heirs of Gavino Reyes regarding his
properties in 1936. As held in a long line of decisions, extrajudicial partition can be
done orally, and the same would be valid if freely entered into (Belen v. Belen, 49
O.G. 997, March 1953). The reason for this is because a partition is not exactly a
conveyance for the reason that it does not involve transfer of property from one to
the other but rather a confirmation by them of their ownership of the property. It
must also be remembered that when Gavino Reyes died on March 7, 1921, his
property was admittedly not yet covered by a torrens title, as it was only in 1941
when said properties were brought into the application of the torrens system. With
this factual milieu, it can also be concluded that his heirs have indeed settled,
subdivided and partitioned Gavino Reyes' landed estate without formal
requirements of Rule 74 of the Rules of Court when a parcel of land is covered by a
torrens title. As told earlier, the Subdivision Plan (Exh. 6) undisputedly showed on its

face that the 70 hectares of land belonging to the late Gavino Reyes was subdivided
and partitioned by his children in 1936. On this score, the partition of the said
property even without the formal requirements under the rule is valid as held in the
case of Hernandez vs. Andal, 78 Phil. 176, which states:
xxx xxx xxx
Moreover, in the Deed of Sale dated December 3, 1943 (Exh. 5) executed by Rafael
Reyes, Sr. in favor of appellant Dalmacio Gardiola, the land sold therein was
described as "na aking minana sa aking ama." This alone would confirm the
contention of the appellants that there was already an actual partition (at least an
oral partition) of the property of Gavino Reyes in 1936. As aforestated, the presence
of the Subdivision Plan (Exh. 6) is an (sic) evidence of such partition which appellees
failed to controvert not to mention the fact that the lower court itself recognized the
existence of said plan, in the same manner that it concluded that the property was
already surveyed and actually subdivided in 1936 (page 3, pars. 3 and 4, Decision).
From the foregoing considerations it is evident that the Deed of Extrajudicial
Settlement of Estate (Exh. D) executed by the grandchildren of the late Gavino
Reyes in 1967 is of no moment considering that the property subject of the partition
in the deed was already partitioned in 1936 by the children of Gavino Reyes. It is for
this reason that the lots supposedly inherited by the grandchildren named in the
deed of 1967 were the same lots inherited and given to their respective fathers or
mothers in 1936 while the land was not yet covered by the torrens system. Hence,
in the case of Rafael Reyes, Sr., the land inherited by him was two (2) parcels of
land known as Lots Nos. 1-A-3 and 1-A-14 described in the Subdivision plan of 1936
(Exh. 6), which were the same parcels of land allegedly inherited by Rafael Reyes, Jr.
from Gavino Reyes in representation of his father, pursuant to the Deed of
Extrajudicial Settlement of Estate for which TCT No. 27257 was issued.
Coming to the second issue, the lower court likewise erred when it concluded that
the parcel of land sold by appellee's predecessor-in-interest to appellant Dalmacio
Gardiola was not the same parcel of land under litigation. It must be pointed out
that the identity of the parcel of land which the appellees sought to recover from
the appellants was never an issue in the lower court, because the litigants had
already conceded that the parcel identified as Lot No. 1-A-14 in TCT No. 27257 was
the same parcel of land identified as Cadastral Lot No. 1228 and 1235 described in
Tax Declaration No. 4766. Despite this admission, however, the lower court declared
that "as described in the deed of sale (Exh. 5), the land's description does not tally
with the description of Lot No. 1-A-14, the land in litigation." As correctly pointed out
by the appellants however, the discrepancy in the description was due to the fact
that the description of the land sold in the Deed of Sale was expressed in layman's
language whereas the description of Lot No. 1-A-14 in TCT No. 27257 was done in
technical terms. This was so because, when Rafael Reyes, Sr. sold the property in
dispute to appellant Dalmacio Gardiola on December 3, 1943, the only evidence of
title to the land then available in so far as Rafael Reyes, Sr. was concerned was Tax
Declaration No. 4766, because at that time, neither he nor appellant Dalmacio
Gardiola was aware of the existence of OCT No. 255 as in fact TCT No. 27257 was

issued only in 1967. Consequently, the land subject of the Deed of Sale was
described by the vendor in the manner as described in Tax Declaration No. 4766.
However, the description of the land appearing in the Deed of Sale (Exh. 5) was
exactly the same land identified as Lot No. 1-A-14 in the Subdivision Plan (Exh. 6) of
1936. Accordingly, the assumption of the lower court that "if the land sold by Rafael
Reyes, Sr. was the one now in litigation, he could have easily indicated Lot No. 1-A14" is bereft of merit under the foregoing circumstances. Interestingly enough, the
appellees never denied the identity of the subject lot during the hearing at the
lower court. What they were denying only was the sale made by Rafael Reyes, Sr. to
appellant Dalmacio Gardiola which does not hold true because of the document
denominated as Deed of Sale (Exh. 5). 11
It concluded that the trial court erred when it ordered the private respondents or
anyone acting in their behalf to relinquish the possession or vacate the property in
question. It thus decreed:
WHEREFORE, the appealed Judgment is ordered REVERSED and SET ASIDE and a
new one is rendered declaring appellants to be the lawful owners of the lot
identified as Lot No. 1-A-14 in TCT No. 27257. No
costs. 12
Their motion to reconsider the above decision having been denied by the Court of
Appeals in its resolution of 1 March 1990, 13 petitioners filed the instant petition on
6 April 1990 after having obtained an extension of time within which to file it.
The petition does not implead original new defendants Ricardo Gardiola and Emelita
Gardiola.
As ground for their plea for the review of the decision of the Court of Appeals,
petitioners allege that said court has decided questions of substance in a way not in
accord with law or applicable jurisprudence when it held that "the deed of
extrajudicial settlement of estate (Exh. "D") executed by the grandchildren of the
late Gavino Reyes in 1967 is of no moment considering that the property subject of
the partition was already partitioned in 1936 by the children of Gavino Reyes." In
support thereof, they claim that (a) TCT No. 27257 covers two parcels of land; the
lot described in paragraph 1 thereof is owned by petitioners and that ownership was
confirmed by this Court in G.R. No. 79882, hence, the Court of Appeals should have
affirmed the decision of the trial court; (b) private respondent Rosario Martillano
was a party to the extrajudicial settlement of estate which was duly registered in
the Registry of Deeds in 1967; said registration is the operative act that gives
validity to the transfer or creates a lien upon the land and also constituted
constructive notice to the whole world. The court cannot disregard the binding
effect thereof Finally, the pronouncement of the Court of Appeals that private
respondents are the lawful owners of the lot in question "militates against the
indefeasible and incontrovertible character of the torrens title," 14 and allows
reconveyance which is not tenable since the action therefor had already prescribed,
as stated in the decision of the trial court.

In the resolution of 7 May 1990, We required respondents to comment on the

petition. But even before it could do so, petitioner, without obtaining prior leave of
the Court, filed on 29 May 1990 a so-called Supplemental Arguments in Support of
The Petition For Review On certiorari 15 wherein they assert, among others, that: (a)
the findings of facts of respondent Court are contrary to those of the trial court and
appear to be contradicted by the evidence on record thus calling for the review by
this Court; 16 (b) it also committed misapprehension of the facts in this case and its
findings are based on speculation, conjecture and surmises; (c) private respondents'
attack on petitioners' title is a collateral attack which is not allowed; even if it is
allowed, the same had already prescribed and is now barred.
It was only on 15 June 1990 that private respondents filed their Comment. 17 We
required petitioners to reply thereto, which they complied with on 8 August
1990. 18 A rejoinder was filed by private respondents on 29 August 1990.
We gave due course to the petition on 19 September 1990 and required the parties
to submit simultaneously their respective memoranda which they complied with.
Attached as Annex "A" to private respondent's Memorandum, which was filed on 10
December 1990, is the Resolution of this Court (Third Division) of 20 August 1990 in
G.R. No. 92811 entitled Spouses Artemio Durumpili and Angustia Reyes vs. The
Court of Appeals and Spouses Dalmacio Gardiola and Rosario Martillano, which also
involves the property of Gavino Reyes, the partition thereof among his children in
1936, and the extrajudicial settlement in 1967.
In said resolution, this Court held:
. . . The partition made in 1936, although oral, was valid. The requirement in Article
1358 of the Civil Code that acts which have for their object the creation,
transmission, modification or extinguishment of real rights over immovable property
must appear in a public instrument is only for convenience and not for validity or
enforceability as between the parties themselves. [Thunga Hui vs. Que Bentec, 2
Phil. 561 (1903)] The subsequent execution by the heirs of the Extrajudicial Partition
in 1967 did not alter the oral partition as in fact the share pertaining to Angustia
Reyes corresponded to that previously assigned to her father. Considering that
Angel Reyes sold this property to Basilio de Ocampo who, in turn, sold the same to
respondents, we agree with the Court of Appeals that the latter lawfully acquired
the property and are entitled to ownership and possession thereof.
In answer to the charge of private respondents that petitioners deliberately failed to
cite this resolution, the latter, in their reply-memorandum dated 15 March 1991 and
filed three days thereafter, allege:
Our failure to mention the aforementioned resolution before this Honorable Court is
not deliberate nor with malice aforethought. The reason is that to date, we have not
yet received any resolution to our Motion For Leave of Court To Refer Case To The
Honorable Supreme Court En Banc. Moreover, we honestly feel that the resolution
that will be issued therein will not be applicable to the case before this Honorable
Court's Second Division. It should be mentioned that in the Durumpili case before

the Third Division, the Court of Appeals relied on the alleged confirmation of the
sale executed by Angustia Reyes, while in the Reyes case before this Second
Division, there was no sale that was executed by the petitioners Reyes' predecessorin-interest, Rafael Reyes, Jr.
The foregoing claim is not supported by the rollo of G.R. No. 92811, which reveals
the following: (a) On 18 September 1990, petitioners therein, represented by De
Lara, De Lunas and Rosales, who are the lawyers of petitioners in the instant case,
filed a motion for the reconsideration of the resolution of 20 August 1990. 19 b) This
motion was denied in the resolution of 1 October 1990. 20 c) On 17 November
1990, petitioners therein, through the same lawyers, filed a Motion For Leave Of
Court To Refer Case To The Honorable Supreme Court En Banc And/Or Motion For
Reconsideration 21 wherein they specifically admit that said case and the instant
petition have "identity and/or similarity of the parties, the facts, the issues raised,"
even going to the extent of "graphically" illustrating where such similarities
lie. 22 d) This motion was denied in the resolution of 28 November 1990. Copy
thereof was furnished the attorneys for petitioners. 23 e) Entry of judgment had
already been made therein and a copy thereof was sent to petitioner's counsel per
Letter of Transmittal of the Deputy Court and Chief of the Judicial Records Office
dated 20 December 1990.
What comes out prominently from the disquisitions of the parties is this simple
issue: whether or not respondent Court of Appeals committed any reversible error in
setting aside the decision of the trial court.
We find none. The reversal of the trial court's decision is inevitable and unavoidable
because the legal and factual conclusions made by the trial court are unfounded
and clearly erroneous. The Court of Appeals was not bound to agree to such
conclusions. The trial court erred in holding that: (a) there was no partition among
the children of Gavino Reyes in 1936 since there is no written evidence in support
thereof; yet, it admits that there was a survey and subdivision of the property and
the adjudication of specific subdivision lots to each of the children of Gavino; (b) the
land sold by Rafael Reyes, Sr. to private respondents is not identical to Lot No. 1-A14, the lot specified for and adjudicated to Rafael Reyes, Jr. in the partition
agreement; and (c) if the land sold by Rafael Reyes, Sr. to private respondent
Dalmacio Gardiola is indeed Lot No. 1-A-14 and that TCT No. T-27257 was obtained
through fraud, the remedy open to the vendee was an action for reconveyance,
which should have been brought within four (4) years from the discovery thereof in
1967 when the Extrajudicial Settlement was executed since private respondent
Rosario Martillano, wife of Dalmacio, was a party thereto.
The Court of Appeals correctly held that the partition made by the children of
Gavino Reyes in 1936, although oral, was valid and binding. There is no law that
requires partition among heirs to be in writing to be valid. 24 InHernandez vs. Andal,
supra, this Court, interpreting Section 1 of Rule 74 of the Rules of Court, held that
the requirement that a partition be put in a public document and registered has for
its purpose the protection of creditors and at the same time the protection of the
heirs themselves against tardy claims. The object of registration is to serve as

constructive notice to others. It follows then that the intrinsic validity of partition not
executed with the prescribed formalities does not come into play when there are no
creditors or the rights of creditors are not affected. Where no such rights are
involved, it is competent for the heirs of an estate to enter into an agreement for
distribution in a manner and upon a plan different from those provided by law. There
is nothing in said section from which it can be inferred that a writing or other
formality is an essential requisite to the validity of the partition. Accordingly, an oral
partition is valid.
Barcelona, et al. vs. Barcelona, et al., supra, provides the reason why oral partition
is valid and why it is not covered by the Statute of Frauds: partition among heirs or
renunciation of an inheritance by some of them is not exactly a conveyance of real
property for the reason that it does not involve transfer of property from one to the
other, but rather a confirmation or ratification of title or right of property by the heir
renouncing in favor of another heir accepting and receiving the inheritance.
Additionally, the validity of such oral partition in 1936 has been expressly sustained
by this Court in the Resolution of 20 August 1990 in G.R. No. 92811. 25
But even if We are to assume arguendo that the oral partition executed in 1936 was
not valid for some reason or another, We would still arrive at the same conclusion
for upon the death of Gavino Reyes in 1921, his heirs automatically became coowners of his 70-hectare parcel of land. The rights to the succession are transmitted
from the moment of death of the decedent. 26 The estate of the decedent would
then be held in co-ownership by the heirs. The co-heir or co-owner may validly
dispose of his share or interest in the property subject to the condition that the
portion disposed of is eventually allotted to him in the division upon termination of
the co-ownership. Article 493 of the Civil Code provides:
Each co-owner shall have the full ownership of his part and the fruits and benefits
pertaining thereto, and he may even substitute another person in its enjoyment,
except when personal rights are involved. But the effect of the alienation or the
mortgage, with respect to the co-owners, shall be limited to the portion which may
be allotted to him in the division upon the termination of the co-ownership.
In Ramirez vs. Bautista, 27 this Court held that every co-heir has the absolute
ownership of his share in the community property and may alienate, assign, or
mortgage the same, except as to purely personal rights, but the effect of any such
transfer is limited to the portion which may be awarded to him upon the partition of
the property.
In the case at bar, the lot sold by Rafael Reyes, Sr. to private respondent Dalmacio
Gardiola is his share in the estate of his deceased father, Gavino Reyes. It is the
same property which was eventually adjudicated to his son and heir, Rafael Reyes,
Jr., represented in turn by his heirs-petitioners herein-in the extrajudicial settlement
of 1967.
In respect to the issue as to whether the property sold by Rafael Reyes, Sr. is
identical to Lot No. 1-14-A, the trial court based its conclusion that it is not, on his

observation that the description of the former does not tally with that of the latter,
moreover, if Rafael did intend to sell Lot No. 1-14-A, he should have specifically
stated it in the deed since at that time, the property had already been partitioned
and said lot was adjudicated to him. In addition to the contrary findings and
conclusion of the respondent Court on this issue to which We fully agree, it is to be
stressed that Rafael had this property declared for taxation purposes and the tax
declaration issued was made the basis for the description of the property in the
deed of sale. Upon the execution of the deed of sale, vendee herein private
respondent Dalmacio Gardiola immediately took possession of the property. This
is the very same property which is the subject matter of this case and which
petitioners seek to recover from the private respondents. The main evidence
adduced for their claim of ownership and possession over it is TCT No. T-27257, the
certificate of title covering Lot No. 1-14-A. They therefore admit and concede that
the property claimed by private respondent, which was acquired by sale from Rafael
Reyes, Sr., is none other than Lot No. 1-14-A.
The participation of private respondent Rosario Gardiola in the Extrajudicial
Settlement did not place private respondents in estoppel to question the issuance of
TCT No. T-27257. As correctly maintained by private respondents, she signed it in
representation of her deceased mother, Marta Reyes, a daughter and an heir of
Gavino Reyes. She did not sign for and in behalf of her husband, Dalmacio Gardiola,
vendee of the share of Rafael Reyes, Sr.
The same did not operate to divest the vendee of the share of Rafael Reyes, Sr. in
the estate of Gavino. Petitioners, as mere successors-in-interest of Rafael Reyes, Jr.,
son of Rafael Reyes, Sr., can only acquire that which Rafael, Jr. could transmit to
them upon his death. The latter never became the owner of Lot No. 1-A-14 because
it was sold by his father in 1943. The issuance of TCT No. T-27257 in the name of
Rafael Reyes, Jr., in so far as Lot No. 1-14-A is concerned, was clearly erroneous
because he never became its owner. An extrajudicial settlement does not create a
light in favor of an heir. As this Court stated in the Barcelona case, 28 it is but a
confirmation or ratification of title or right to property. Thus, since he never had any
title or right to Lot No. 1-14-A, the mere execution of the settlement did not improve
his condition, and the subsequent registration of the deed did not create any right
or vest any title over the property in favor of the petitioners as heirs of Rafael
Reyes, Jr. The latter cannot give them what he never had before. Nemo dare potest
quod non habet.
There is one more point that should be stressed here. Petitioners' immediate
predecessor-in-interest, Rafael Reyes, Jr., never took any action against private
respondents from the time his father sold the lot to the latter. Neither did petitioners
bring any action to recover from private respondents the ownership and possession
of the lot from the time Rafael Reyes, Jr. died. As categorically admitted by
petitioners in their complaint and amended complaint, it was only in or about
September 1969 when, after the delivery of TCT No. 27257 by Candido Hebron to
them, that they definitely discovered that they were the owners of the property in
question. And yet, despite full knowledge that private respondents were in actual
physical possession of the property, it was only about thirteen and one-half (13 1/2)

years later that they decided to file an action for recovery of possession. As stated
earlier, the original complaint was filed in the trial court on 14 March 1983. There
was then absolutely no basis for the trial court to place the burden on private
respondents to bring an action for reconveyance within four (4) years from their
discovery of the issuance of the transfer certificate of title in the name of Rafael
Reyes, Jr.
The instant petition then is without merit.
WHEREFORE, judgment is hereby rendered DENYING the petition with costs against
petitioners.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-37903 March 30, 1977
GERTRUDES L. DEL ROSARIO, petitioner,
vs.
DOROTEA O. CONANAN and MARILOU DEL ROSARIO, respondents.
Dante P. Mercado for petitioner
Laig, Ruiz & Associates for respondents.

MAKASIAR, J.:
Review of the order of the Court of First Instance of Rizal dated June 21, 1973,
dismissing petitioner's petition for settlement and partition of estate.
On November 13, 1972, petitioner filed with the court below the above-said petition,
subject of which is the estate left by her late son, Felix L. del Rosario, who died in a
plane crash on September 12, 1969 at Antipolo, Rizal (Partial Joint Stipulation of
Facts, p. 2, petition, p. 6, rec.).
On March 17, 1973, respondents filed their opposition.
On April 26, 1973, the court a quo, pursuant to a verbal agreement forged between
the parties, issued an order requiring them to come up with a joint stipulation of
facts (p. 9, rec.).
On May 19, 1973, the parties submitted the following stipulation of facts:
OPPOSITOR admits that petitioner is the legitimate mother of the late FELIX L. DEL
ROSARIO.

PETITIONER admits that oppositor DOROTEA OTERA DEL ROSARIO is the. legitimate
surviving wife of the deceased FELIX L. DEL ROSARIO.
PETITIONER admits that MARILOU DEL ROSARIO, is the legally adopted child of the
late FELIX L. DEL ROSARIO and DOROTEA DEL ROSARIO CONANAN
THAT THE PARTIES admit that the late FELIX L. DEL ROSARIO died last September
12, 1969 at Antipolo, Rizal in a plane crash and within the jurisdiction of the
Honorable Court.
That the only surviving nearest relatives of deceased FELIX L. DEL ROSARIO are the
petitioner and oppositors DOROTEO O. CONANAN and MARILOU DEL ROSARIO.
Parties admit to pay their respective counsel in the amount to be determined by the
court.
WHEREFORE, it is respectfully prayed of this Honorable Court that on the basis of
the facts stipulated, the Court declare the heirs of the deceased (pp. 9-10, rec.).
On June 21, 1973, the lower court issued the challenged order, pertinent portions of
which read:
A perusal of the petition shows that the instant case was filed under the provisions
of Section 2, Rule 74 of the Revised Rules of Court, which reads as follows:
Whenever the gross value of the estate; of a deceased person, whether he died
testate or intestate, does not exceed ten thousand pesos, and that fact is made to
appear to the Court of First Instance having jurisdiction of the estate by the petition
of an interested person and upon hearing, which shall be held not less than one (1)
month nor more than three (3) months from the date of the last publication of a
notice which shall be published once a week for three (3) consecutive weeks in a
newspaper of general circulation in the province, and after such other notice to
interested persons as the court may direct, the court may proceed summarily,
without the appointment of an executor or administrator, and without delay, to
grant, if proper, allowance of the will, if any there is, to determine who are the
persons legally entitled to participate in the estate, and to apportion and divide it
among them after the payment of such debts of the estate as the court shall then
find to be due; and such persons, in their own right, if they are of lawful age and
legal capacity, or by their guardians or trustees legally appointed and qualified, if
otherwise, shall thereupon be entitled to receive and enter into the possession of
the portions of the estate so awarded to them respectively. The court shall make
such order as may be just respecting the costs of the proceedings, and all orders
and judgment made or rendered in the course thereof shall be recorded in the office
of the clerk, and the order of partition or award, if it involves real estate, shall be
recorded in the proper registrar's office.
While it may be true that a petition for summary settlement is allowed under the
aforequoted provision of the rules, the same rule specifically limits the action to
estates the gross value of which does not exceed P10,000.00, The instant petition,
however, clearly alleges that the value of the real properties alone left by the

deceased Felix del Rosario amounts to P33,000.00 which is obviously over and
above-the value of the estate allowed under the rules. The action taken by the
petitioner (cannot be) construed as one filed under an intestate proceeding as the
requirements provided by law for the same has not been complied with. Based on
the foregoing observation alone, the petition must perforce be dismissed.
But granting arguendo that this Court may consider the petition as an exercise (of)
the powers of a probate Court in determining and declaring the heirs of the
deceased as prayed for in the, aforequoted partial joint stipulation of facts, the law
on intestate succession is clear that an adopted child concurring with the surviving
spouse of the adopter excludes the legitimate ascendants from succession, ...
The contention of the petitioner that Article 343 is applicable in the instant case
finds no basis for 'the said article is applicable in cases where there are no other
concurring intestate heirs of the adopted child. ...
Based on the foregoing, therefore, the petitioner not being included as intestate heir
of the deceased cannot be considered as a co-owner of or have any right over the
properties sought to be partitioned and under the provisions of Section 1, Rule e 69
in re action to Section 2, Rule 3 of the Revised Rules of Court, such action must be
commenced or instituted by the party in interest.
WHEREFORE, in view of the foregoing findings, the Court hereby DISMISSES THE
PETITION WITHOUT PRONOUNCEMENT AS TO COSTS (pp, 10-12, rec.).
On July 10, 1973, petitioner filed a notice of appeal, record on appeal and appeal
bond (see respondents comments, p. 18, rec.).
I
WE rule that on purely jurisdictional consideration, the instant petition should be
dismissed.
Indeed, in a litany of precedents dating as far back as the 1938 case of Utulo vs.
Pasiono Vda. de Garcia (66 Phil. 802) and reaffirmed in Asuncion and Castro vs, De
la Cruz (No. L-7855, November 23, 1955, 97 Phil. 910) andGutierrez vs. Cruz (G.R.
No. L-21027, July 20, 1968, 24 SCRA 69), WE uniformly held that for the court to
acquire jurisdiction in a petition for summary settlement of estate under the rules,
the requirement that the amount of the estate involved should not exceed
P10,000,00 (P6,000.00 under the old rules) is jurisdictional.
In the instant case, both parties jointly affirmed that the value of the realty left by
the deceased Felix del Rosario is in the aggregate amount of P33,000.00 which, as
the court a quo correctly found, is obviously "over and above the value allowed
under the rules."
II
However, by virtue of the transcendental implications of the holding of the court a
quo in the sense that once wholly sustained, said holding would preclude petitioner
from re-filing the proper action a consequence which, on the ground of equity and

fair play, We cannot allow to befall on petitioner We deemed it essential, for the
guidance of the parties especially herein, petitioner, to point out the demerits of the
appealed verdict.
1. Which of the following articles of the New Civil Code will apply, Article 343 on the
one hand, or Articles 341, 978 and 979 on the other; and
2. Whether the material data rule enuciated by Rule 41, Section 6 the New Rules of
Court should be followed, ex cathedra, in the present case:
A
The lower court found the following the new provisions of the New Civil Code
gername to the instant case:
Art. 341. The adoption shall:
(1) Give to the adopted person the same rights and duties as if he were a legitimate
child of the adopted;
(2) Dissolve the authority vested in the parents by nature;
(3) Make the adopted person a legal heir of the adopted;
(4) Entitle the adopted person to use the adopter's surname."
Art. 978. Succession pertains, in the first place, to the decending direct line.
Art. 979. Legitimate children and their decendants suceed the parents and the other
ascendants, without distinction as to sex or age, and even if they should come from
different marriages.
WE opine that the governing provision is the hereinafter quoted article 343 of the
New Civil Code, in relation to Articles 893 and 1000 of said law, which directs that:
Art. 343. If the adopter is survived by legitimate parents or ascendants and by an
adopted person. the latter shall not have more successional rights than an
acknowledged natural child.
Article 343 of the New Civil Code is qualification to Article 341 which gives an
adopted child the same rights and duties as though he were a legitimate child. The
reason for this is that:
(I)t is unjuest to exclude the adopter's parents from the inheritance in facor of an
adopted person (Report of the Code Commission, p. 92).
It is most unfair to accord more successional rights to the adopted, who is only
related artificially by fiction of law to the deceased, than those who are naturally
related to him by blood in the direct ascending line.
The applicability of Article 343 does not exclude the surviving parent of the
deceased adopter, not only because a contrary view would defeat the intent of the
framers of the law, but also because in intestate succession, where legitimate
parents or ascendants concur with the surviving spouse of the deceased, the latter

does not necessarily exclude the former from the inheritance. This is affirmed by
Article 893 of the New Civil Code which states:
If the testator leaves no legitimate descendants, but leaves legitimate ascendants,
the surviving spouse shall have a right to onefourth (only) of the hereditary estate.
This fourth shall be taken from the free portion.
Article 343 does not require that the concurring heirs should be the aodpted child
and the legitimate parents or ascendants only. The language of the law is clear, and
a contrary view cannot be presumed.
It is, thus, OUR view that Article 343 should be made to apply, consonant with the
cardinal rule in statutory construction that all the provisions of the New Civil Code
must be reconciled and given effect.
Under Article 343, an adopted child surviving with legitimate parents of the
deceased adopter, has the same successional rights as an acknowledged natural
child, which is comprehended in the term "illegitimate children". Consequently , the
respective shares of the surviving spouse, ascendant and adopted child should be
determined by Article 1000 of the New Civil Code, which reads:
Art. 1000. If legitimate ascendants, the surviving spouse and illegitimate children
are left, the ascendants shall be entitled to onehalf of the inheritance, and the other
half shall be divided between the surviving spouse and the illegitimate children so
that such widow or widower shall have one-fourth of the estate, the illegitimate
children the other fourth.
B
Anent the other issue, respondents, in their comment of June 29, 1973, emphasize
that the petitioner's record on appeal violates the material data rule in that
It does not state when the notice of appeal and appeal bond were filed with the
lower court in disregard of the requirment of Section 6, Rule 41 of the Rules of Court
that the record on appeal must contain such data as will show that the appeal was
perfected on time.
Recent jurisprudence has construed liberally the material data rule, whenever
circumstances and substantial justice warrant.
The cases of Berkenkotter vs. Court of Appeal, No. L-336629, September 28, 1973
(53 SCRA 228) and Villanueva vs. Court of Appeal (No. L-29719, Novemner 28,
1975, 68 SCRA 216, 220) are particularly in point.
In Villanueva, WE held:
The deviation from the rigid rule aopted in the case of Government of the
Philippines vs. Antonio, etal., G.R. No. L-23736, October 19, 1965, is due to our
realization that after all what is of vital importance in the requirement fo Section 6,
Rule 41 of the Rules of court is that the Record on Appeal shall show that the appeal
was really perfected within the reglementary period. If it could ascertained from the

record of the case that the appeal was perfected within the reglementary period,
although such fact did not evidently appear on the face of the record on appeal, the
defect or deficiency is not fatal.
If the appellate court is convinced that the appeal was perfected on time, it should
not throw out but assume jurisdiction over it. After all, that procedural requirement
is only intended to enable the appellate court to determine if the appeal is still
within its jurisdiction and nothing more (Villanueva vs. Court of Appeals, 68 SCRA
220, emphasis supplied).
From the docket and process slip of this case, it is shown that the date of notice of
the Court of First Instance decision is July 3, 1973 and that the expiry date to file
petition for certiorari with the Supreme Court is December 14, 1973. Petitioner filed
her notice of appeal, appeal bond and record on appeal on July 10, 1973 or still
very much within the reglementary period to perfect an appeal. And although this is
not mentioned in the record on appeal. And although this is not mentioned in the
record on appeal, it is, nevertheless, a fact of record, the veracity of which this
COURT does not doubt.
Perforce, there being substantial compliance with the requirement of the Rules of
Court, WE resolve this issue in favor of petitioner.
The liberal interpretation of the material data rule aimed at serving the ends of
substantial justice has found amplification in the recent cases of Pimental, et al. vs.
Court of Appeals, et al., L-39423 and L-39684, June 27, 1975, 64 SCRA 475; Republic
of the Philippines vs. Court of Appeals, Tomas Carag, et al., L-40495, October 21,
1975, 67 SCRA 322, 328-332; and Manuel R. Luna vs. Court of Appeals, Capati, et
al., L-37123, October 30 1975, 67 SCRA 503, 506.
WHEREFORE, THE INSTANT PETITION IS HEREBY DISMISSED, WITHOUT PREJUDICE
TO PETITIONER'S FILING THE APPROPRIATE ACTION IS A COMPETENT COURT. NO
COSTS.
SO ORDERED.
Teehankee (Chairman), Muoz-Palma, Concepcion Jr. and Martin, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-39247 June 27, 1975

In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX BALANAY,
JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao, Branch
VI; AVELINA B. ANTONIO and DELIA B. LANABAN, respondents.

Roberto M. Sarenas for petitioner.

Jose B. Guyo for private respondents.

AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance
of Davao dated February 28, 1974, declaring illegal and void the will of his mother,
Leodegaria Julian, converting the testate proceeding into an intestate proceeding
and ordering the issuance of the corresponding notice to creditors (Special Case No.
1808). The antecedents of the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in
Davao City at the age of sixty-seven. She was survived by her husband, Felix
Balanay, Sr., and by their six legitimate children named Felix Balanay, Jr., Avelina B.
Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia B.
Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the
probate of his mother's notarial will dated September 5, 1970 which is written in
English. In that will Leodegaria Julian declared (a) that she was the owner of the
"southern half of nine conjugal lots (par. II); (b) that she was the absolute owner of
two parcels of land which she inherited from her father (par. III), and (c) that it was
her desire that her properties should not be divided among her heirs during her
husband's lifetime and that their legitimes should be satisfied out of the fruits of her
properties (Par. IV).
Then, in paragraph V of the will she stated that after her husband's death (he was
eighty-two years old in 1973) her paraphernal lands and all the conjugal lands
(which she described as "my properties") should be divided and distributed in the
manner set forth in that part of her will. She devised and partitioned the conjugal
lands as if they were all owned by her. She disposed of in the will her husband's one
half share of the conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the
grounds of lack of testamentary capacity, undue influence, preterition of the
husband and alleged improper partition of the conjugal estate. The oppositors
claimed that Felix Balanay, Jr. should collate certain properties which he had
received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix
Balanay, Sr. dated April 18, 1973 wherein he withdrew his opposition to the probate
of the will and affirmed that he was interested in its probate. On the same date Felix
Balanay, Sr. signed an instrument captioned "Conformation (sic) of Division and
Renunciation of Hereditary Rights" wherein he manifested that out of respect for his
wife's will he "waived and renounced' his hereditary rights in her estate in favor of
their six children. In that same instrument he confirmed the agreement, which he

and his wife had perfected before her death, that their conjugal properties would be
partitioned in the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and
"conformation" of Felix Balanay, Sr. were void. The lower court in its order of June
18, 1973 "denied" the opposition and reset for hearing the probate of the will. It
gave effect to the affidavit and conformity of Felix Balanay, Sr. In an order dated
August 28, 1973 it appointed its branch clerk of court as special administrator of the
decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower court's order of June 18,
1973 on the grounds (a) that the testatrix illegally claimed that she was the owner
of the southern half of the conjugal lots and (b) that she could not partition the
conjugal estate by allocating portions of the nine lots to her children. Felix Balanay,
Jr., through his counsel, Hermenegildo Cabreros, opposed that motion. The lower
court denied it in its order of October 15, 1973.
In the meanwhile, another lawyer appeared in the case. David O. Montaa, Sr.,
claiming to be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record was
Atty. Cabreros), filed a motion dated September 25, 1973 for "leave of court to
withdraw probate of alleged will of Leodegaria Julian and requesting authority to
proceed by intestate estate proceeding." In that motion Montaa claimed to be the
lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo,
Carolina B. Manguiob and Emilia B. Pabaonon.
Montaa in his motion assailed the provision of the will which partitioned the
conjugal assets or allegedly effected a compromise of future legitimes. He prayed
that the probate of the will be withdrawn and that the proceeding be converted into
an intestate proceeding. In another motion of the same date he asked that the
corresponding notice to creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their
comments dated October 15, 1973 manifested their conformity with the motion for
the issuance of a notice to creditors. They prayed that the will be declared void for
being contrary to law and that an intestacy be declared.
The lower court, acting on the motions of Atty. Montaa, assumed that the issuance
of a notice to creditors was in order since the parties had agreed on that point. It
adopted the view of Attys. Montaa and Guyo that the will was void. So, in its order
of February 28, 1974 it dismissed the petition for the probate, converted the testate
proceeding into an intestate proceeding, ordered the issuance of a notice to
creditors and set the intestate proceeding for hearing on April 1 and 2, 1974. The
lower court did not abrogate its prior orders of June 18 and October 15, 1973. The
notice to creditors was issued on April 1, 1974 and published on May 2, 9 and 16 in
the Davao Star in spite of petitioner's motion of April 17, 1974 that its publication
be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion
dated April 15, 1974, asked for the reconsideration of the lower court's order of

February 28, 1974 on the ground that Atty. Montaa had no authority to withdraw
the petition for the allowance of the will. Attached to the motion was a copy of a
letter dated March 27, 1974 addressed to Atty. Montaa and signed by Felix
Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon,
wherein they terminated Montaa's services and informed him that his withdrawal
of the petition for the probate of the will was without their consent and was contrary
to their repeated reminder to him that their mother's will was "very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration.
The lower court denied the motion in its order of June 29, 1974. It clarified that it
declared the will void on the basis of its own independent assessment of its
provisions and not because of Atty. Montaa's arguments.
The basic issue is whether the probate court erred in passing upon the intrinsic
validity of the will, before ruling on its allowance or formal validity, and in declaring
it void.
We are of the opinion that in view of certain unusual provisions of the will, which are
of dubious legality, and because of the motion to withdraw the petition for probate
(which the lower court assumed to have been filed with the petitioner's
authorization), the trial court acted correctly in passing upon the will's intrinsic
validity even before its formal validity had been established. The probate of a will
might become an idle ceremony if on its face it appears to be intrinsically void.
Where practical considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should meet the issue (Nuguid
vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa, L23135, December 26, 1967, 21 SCRA 1369; Cacho vs. Udan, L-19996, April 30,
1965, 13 SCRA 693).1wph1.t
But the probate court erred in declaring, in its order of February 28, 1974 that the
will was void and in converting the testate proceeding into an intestate proceeding
notwithstanding the fact that in its order of June 18, 1973 , it gave effect to the
surviving husband's conformity to the will and to his renunciation of his hereditary
rights which presumably included his one-half share of the conjugal estate.
The rule is that "the invalidity of one of several dispositions contained in a will does
not result in the invalidity of the other dispositions, unless it is to be presumed that
the testator would not have made such other dispositions if the first invalid
disposition had not been made" (Art. 792, Civil Code). "Where some of the
provisions of a will are valid and others invalid, the valid parts will be upheld if they
can be separated from the invalid without defeating the intention of the testator or
interfering with the general testamentary scheme, or doing injustice to the
beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern half of the conjugal
lands is contrary to law because, although she was a coowner thereof, her share
was inchoate and proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs. Rafferty
and Concepcion, 38 Phil. 414). But That illegal declaration does not nullify the entire
will. It may be disregarded.

The provision of the will that the properties of the testatrix should not be divided
among her heirs during her husband's lifetime but should be kept intact and that
the legitimes should be paid in cash is contrary to article 1080 of the Civil Code
which reads:
ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by
will, such partition shall be respected, insofar as it does not prejudice the legitime of
the compulsory heirs.
A parent who, in the interest of his or her family, to keep any agricultural, industrial,
or manufacturing enterprise intact, may avail himself of the right granted him in this
article, by ordering that the legitime of the other children to whom the property is
not assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal estate among her six
children (her husband had renounced his hereditary rights and his one-half conjugal
share). She did not assign the whole estate to one or more children as envisaged in
article 1080. Hence, she had no right to require that the legitimes be paid in cash.
On the other hand, her estate may remain undivided only for a period of twenty
years. So, the provision that the estate should not be divided during her husband's
lifetime would at most be effective only for twenty years from the date of her death
unless there are compelling reasons for terminating the coownership (Art. 1083,
Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share
of the conjugal partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said
renunciation partakes of a donation of his hereditary rights and his one-half share in
the conjugal estate (Art. 1060[1] Civil Code), it should be subject to the limitations
prescribed in articles 750 and 752 of the Civil Code. A portion of the estate should
be adjudicated to the widower for his support and maintenance. Or at least his
legitime should be respected.
Subject to the foregoing observations and the rules on collation, the will is
intrinsically valid and the partition therein may be given effect if it does not
prejudice the creditors and impair the legitimes. The distribution and partition would
become effective upon the death of Felix Balanay, Sr. In the meantime, the net
income should be equitably divided among the children and the surviving spouse.
It should be stressed that by reason of the surviving husband's conformity to his
wife's will and his renunciation of his hereditary rights, his one-half conjugal share
became a part of his deceased wife's estate. His conformity had the effect of
validating the partition made in paragraph V of the will without prejudice, of course,
to the rights of the creditors and the legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired after the making of a
will shall only pass thereby, as if the testator had it at the time of making the will,
should it expressly appear by the will that such was his intention". Under article 930
of the Civil Code "the legacy or devise of a thing belonging to another person is
void, if the testator erroneously believed that the thing pertained to him. But if the

thing bequeathed, though not belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the disposition shall take effect."
In the instant case there is no doubt that the testatrix and her husband intended to
partition the conjugal estate in the manner set forth in paragraph V of her will. It is
true that she could dispose of by will only her half of the conjugal estate (Art. 170,
Civil Code) but since the husband, after the dissolution of the conjugal partnership,
had assented to her testamentary partition of the conjugal estate, such partition
has become valid, assuming that the will may be probated.
The instant case is different from the Nuguid case, supra, where the testatrix
instituted as heir her sister and preterited her parents. Her will was intrinsically void
because it preterited her compulsory heirs in the direct line. Article 854 of the Civil
Code provides that "the preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the execution of the
will or born after the death of the testator, shall annul the institution of heir; but the
devises and legacies, shall be valid insofar as they are not inofficious." Since the
preterition of the parents annulled the institution of the sister of the testatrix and
there were no legacies and devises, total intestacy resulted (.Art. 960[2], Civil
Code).1wph1.t
In the instant case, the preterited heir was the surviving spouse. His preterition did
not produce intestacy. Moreover, he signified his conformity to his wife's will and
renounced his hereditary rights. .
It results that the lower court erred in not proceeding with the probate of the will as
contemplated in its uncancelled order of June 18, 1973. Save in an extreme case
where the will on its face is intrinsically void, it is the probate court's duty to pass
first upon the formal validity of the will. Generally, the probate of the will is
mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249;
Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament
is in itself prima facie proof that the supposed testator has willed that his estate
should be distributed in the manner therein provided, and it is incumbent upon the
state that, if legally tenable, such desire be given effect independent of the attitude
of the parties affected thereby" (Resolution, Vda. de Precilla vs. Narciso, L-27200,
August 18, 1972, 46 SCRA 538, 565).
To give effect to the intention and wishes of the testatrix is the first and principal
law in the matter of testaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33
SCRA 554, 561). Testacy is preferable to intestacy. An interpretation that will render
a testamentary disposition operative takes precedence over a construction that will
nullify a provision of the will (Arts. 788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in favor of testacy especially where the will
evinces an intention on the part of the testator to dispose of practically his whole
estate. So compelling is the principle that intestacy should be avoided and that the
wishes of the testator should prevail that sometimes the language of the will can be

varied for the purpose of giving it effect (Austria vs. Reyes, L-23079, February 27,
1970, 31 SCRA 754, 762).
As far as is legally possible, the expressed desire of the testator must be followed
and the dispositions of the properties in his will should be upheld (Estorque vs.
Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of the testator as expressed in his will
because any disposition therein is better than that which the law can make (Castro
vs. Bustos, L-25913, February 28, 1969, 27 SCRA 327, 341).
Two other errors of the lower court may be noticed. It erred in issuing a notice to
creditors although no executor or regular administrator has been appointed. The
record reveals that it appointed a special administrator. A notice to creditors is not
in order if only a special administrator has been appointed. Section 1, Rule 86 of the
Rules of Court, in providing that "immediately after granting letters of testamentary
or of administration, the court shall issue a notice requiring all persons having
money claims against the decedent to file them in the office of the clerk of said
court" clearly contemplates the appointment of an executor or regular administrator
and not that of a special administrator.
It is the executor or regular administrator who is supposed to oppose the claims
against the estate and to pay such claims when duly allowed (See. 10, Rule 86 and
sec. 1, Rule 88, Rules of Court).
We also take this occasion to point out that the probate court's appointment of its
branch clerk of court as special administrator (p. 30, Rollo) is not a salutary practice
because it might engender the suspicion that the probate Judge and his clerk of
court are in cahoots in milking the decedent's estate. Should the branch clerk of
court commit any abuse or devastavit in the course of his administration, the
probate Judge might find it difficult to hold him to a strict accountability. A court
employee should devote his official time to his official duties and should not have as
a sideline the administration of a decedent's estate.
WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set
aside and its order of June 18, 1973, setting for hearing the petition for probate, is
affirmed. The lower court is directed to conduct further proceedings in Special Case
No. 1808 in consonance with this opinion. Costs, against the private respondents.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.
SECOND DIVISION
[G.R. No. 121719. September 16, 1999]
SPOUSES VICENTE and MA. ROSALIA MANINANG, SPOUSES CECILIO and MA.
SOCORRO RUBIO, MA. THELMA P. MALLARI, ORLANDO F. PANDAY, JR., MA. VIVIAN P.
GINGA, and H.J. RAMON F. PANDAY, petitioners, vs. COURT OF APPEALS, HON.
GREGORIO E. MANIO, JR., and OSCAR J. MONTON, SR., respondents.

DECISION
QUISUMBING, J.:
Before us is an appeal from the decision of the Court of Appeals[1] in C.A. G.R. SP
No. 36948, which affirmed the decision of the Regional Trial Court[2] upholding the
ruling of the Municipal Trial Court[3] declaring private respondent Oscar J. Monton,
Sr. as the lawful possessor of the land covered by TCT No. 17957 and situated at
Bgy. Bagong Bayan Grande, Naga City.
The facts of the case are as follows:
Private respondent Oscar J. Monton, Sr. filed a complaint for unlawful detainer
against petitioners on August 31, 1992.[4] He alleged that he is the absolute and
registered owner of a parcel of land situated at Bgy. Bagong Bayan Grande, Naga
City and covered by TCT No. 17957. He claimed to have bought the land from
Rosario Felipe Panday, mother of petitioners Rosalia, Socorro, Ma. Thelma, Orlando,
Ma. Vivian, and Ramon.
According to private respondent, he went to the disputed property sometime in
August 1992 to construct a perimeter fence around it. However, he was prevented
from doing so by petitioners. Private respondent demanded that petitioners vacate
the property, to no avail. Hence, his complaint for unlawful detainer before the
Municipal Trial Court.
In their answer, petitioners assailed the validity of the deed of sale executed by
Rosario in favor of private respondent, alleging that at the time of the sale, Rosario
was suffering from schizophrenia and was incapacitated to enter into a
contract. They claimed ownership of the property through succession.
Petitioners, moreover, questioned the jurisdiction of the MTC over the case, since
another case,[5] for annulment of sale with damages involving the same parties,
was filed by petitioners before the Regional Trial Court.
The MTC ruled in favor of private respondent, declaring him to be the lawful
possessor of the disputed lands and ordering petitioners to vacate the premises and
to pay back rentals.
The dispositive portion of the MTC decision read:
WHEREFORE, by preponderance of evidence, plaintiff OSCAR J. MONTON, SR. is
hereby declared the lawful possessor of the premises in question and defendants
are hereby ordered to vacate the same immediately and to deliver possession
thereof to the plaintiff, to pay the reasonable rental thereof in the amount of
P350.00 per month from August 13, 1992 until the premises are fully vacated and to
pay the costs. The compulsory counterclaim not having been substantiated by
evidence, the same is dismissed.[6]
Petitioners appealed to the RTC, which, however, affirmed in toto the decision of the
MTC. On appeal to the Court of Appeals, the latter court likewise affirmed the
decision of the RTC and the MTC.

Hence, the instant petition for review on certiorari.

Petitioners raise the following issues for our consideration:
I
MAY THERE BE UNLAWFUL DETAINER WHEN RESPONDENT HAS NEVER BEEN IN
POSSESSION OF THE LAND IN QUESTION AND RESPONDENT HAS NEVER BEEN
RECOGNIZED BY PETITIONERS AS TRUE AND LAWFUL OWNER OF THE LAND.
II
MAY THE CITY COURT TAKE JURISDICTION OVER AN UNLAWFUL DETAINER CASE AND
RENDER JUDGMENT THEREON WHEN THE OWNERSHIP ISSUE AND THE RIGHT OF
POSSESSION OVER THE LAND SUBJECT OF THE DETAINER IS BEING LITIGATED IN A
CASE EARLIER FILED BEFORE THE REGIONAL TRIAL COURT.[7]
Anent the first issue, the following rule which lays down the requirements for filing a
complaint for unlawful detainer is pertinent:
SECTION 1. Who may institute proceedings, and when. --- Subject to the provisions
of the next succeeding section, a person deprived of the possession of any land or
building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor,
vendee, or other person against whom the possession of any land or building is
unlawfully withheld after the expiration or termination of the right to hold
possession, by virtue of any contract, express or implied, or the legal
representatives or assigns of any such lessor, vendor, vendee, or other person,
may, at any time within one (1) year after such unlawful deprivation or withholding
of possession, bring an action in the proper Municipal Trial Court against the person
or persons unlawfully withholding or depriving of possession, or any person or
persons claiming under them, for the restitution of such possession, together with
damages and costs.[8]
As correctly pointed out by respondent Court of Appeals, nowhere does it appear in
the abovecited rule that, in an action for unlawful detainer, the person filing the
complaint -- in this case, private respondent as vendee --be in prior physical
possession of the property.
As we held in one case:
Prior physical possession in the plaintiff is not an indispensable requirement in an
unlawful detainer case brought by a vendee or other person against whom the
possession of any land is unlawfully withheld after the expiration or termination of a
right to hold possession xxx. [9]
Neither is it required that he be first recognized as the true and lawful owner of the
property by the person against whom he asserts his right to possession. An action
for unlawful detainer may be filed by one who is not an owner of the property in
dispute.

Petitioners assert that Rule 70, Section 1, of the Rules of Court is not applicable
since it refers only to a sale where the right of the vendor is not questioned. We
fail to see that portion of the rule where this distinction may be gleaned.
As regards the second issue, we have repeatedly held that the only issue for
resolution in an action for unlawful detainer is possession of the disputed property.
[10] Thus, contrary to petitioners belief, it was but proper for the courts below not
to put into consideration the validity of private respondents title. It simply is not an
issue in this case.
The question of ownership is immaterial in an action for unlawful detainer. It is,
thus, of no moment if, at the same time that an action for unlawful detainer is being
litigated, there is another action respecting the same property and the same parties
involving the issue of ownership. The rights asserted and the reliefs prayed for are
different in the two cases.
An action for annulment of sale like the one filed by petitioners against private
respondent is not prejudicial to an action for unlawful detainer.[11]
The question is, may the pendency of such an action for consignation or specific
performance, or annulment of a sale, as in this case, be successfully pleaded in
abatement of an action for unlawful detainer? This Court has invariably given a
negative answer.[12]
ACCORDINGLY, the instant petition is DISMISSED and the decision of the Court of
Appeals in C.A. G.R. SP No. 36948 is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.
Bellosillo, (Chairman), and Mendoza, JJ., concur.
Buena, J., no part.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-42226

July 26, 1935

In re estate of the deceased Ines Basa de Mercado.

JOAQUINA BASA, ET AL., petitioners-appellants,
vs.
ATILANO G. MERCADO, respondent-appellee.
Briones and Martinez for appellants.
Jose Gutierrez David for appellee.
GODDARD, J.:

By virtue of an order dated June 27, 1931, the Honorable Hermogenes Reyes, Judge
of the Court of First Instance of Pampanga, allowed and probated the last will and
testament of Ines Basa, deceased. On January 30, 1932, the same judge approved
the account of the administrator of the estate, declared him the only heir of the
deceased under the will and closed the administration proceedings. On April 11,
1934, the herein petitioners-appellants filed a motion in which they prayed that said
proceedings be reopened and alleged that the court lacked jurisdiction to act in the
matter because there was a failure to comply with requirements as to the
publication of the notice of hearing prescribed in the following section of the Code of
Civil Procedure:
SEC. 630. Court to appoint hearing on will. When a will is delivered to a court
having jurisdiction of the same, the court shall appoint a time and place when all
concerned may appear to contest the allowance of the will, and shall cause public
notice thereof to be given by publication in such newspaper or newspapers as the
court directs of general circulation in the province, three weeks successively,
previous to the time appointed, and no will shall be allowed until such notice has
been given. At the hearing all testimony shall be taken under oath, reduced to
writing and signed by the witnesses.
In this motion the appellants claim that the provisions of section 630 of the Code of
Civil Procedure have not been complied with in view of the fact that although the
trial judge, on May 29, 1931, ordered the publication of the required notice for
"three weeks successively" previous to the time appointed for the hearing on the
will, the first publication was on June 6, 1931, the third on June 20, 1931, and the
hearing took place on the 27th of that month, only twenty-one days after the date
of the first publication instead of three full weeks before the day set for the hearing.
Section 630 of our Code of Civil Procedure is taken from the Code of Civil Procedure
of the State of Vermont. The Supreme Court of that State, commenting on the
phrase "three weeks successively", held:
The date of examining and allowing P.A. Barlett's final account of administration,
and for decreeing the residue of the estate to the lawful claimants of the same, was
set by the probate court for December 19, 1919, at the probate office in Brighton,
and an order was made to this effect on November 28, 1919. The order provided
also that notice should be given by publication for three weeks successively in
the Essex County Herald. In accordance with this order, the notice was published in
the issues for December 4, 11 and 18, respectively. This was "public notice" to all
persons interested of the time and place of examining and allowing said account
and making decree of distribution, and was sufficient under the provisions of G.L.
3276. (Lenehen vs. Spaulding, 57 Vt., 115.) "The proceeding was according to law in
all respects, and being in the nature of a proceeding in rem, it binds everybody by
its legal effect." (Burbeck vs. Little, 50 Vt., 713.) At the time and place set for the
hearing none of the petitioners or other legatees under the will of Nickerson Warner
appeared. Thereupon the judge of probate then and there continued the hearing
until April 6, 1920, at which time the final account of P.A .Barlett as administrator de
bonis non with will annexed was filed and, no one appearing to object, the same

was allowed, and the decree of distribution was entered. (In reWarner's Estate
[Supreme Court of Vermont] 1925; 127 Atl. Rep., 362, 364; 98 Vt., 254, 261.)
It will be noted that in the above cited case the last of the three publications was on
December 18, 1919, and the hearing on the administrators's final account was set
for December 19 of that year, only fifteen days after the date of the first publication.
In view of the foregoing, it is held that the language used in section 630 of the Code
of Civil Procedure does not mean that the notice, referred to therein, should be
published for three full weeks before the date set for the hearing on the will. In
other words the first publication of the notice need not be made twenty-one days
before the day appointed for the hearing.
The appellants also contend that the trial court erred in ruling that the weekly
newspaper, Ing Katipunan, in which the notice of hearing was published, was a
newspaper of general circulation in the Province of Pampanga.
The record shows that Ing Katipunan is a newspaper of general circulation in view of
the fact that it is published for the dissemination of local news and general
information; that it has a bona fide subscription list of paying subscribers; that it is
published at regular intervals and that the trial court ordered the publication to be
made inIng Katipunan precisely because it was a "newspaper of general circulation
in the Province of Pampanga."
Furthermore no attempt has been made to prove that it was a newspaper devoted
to the interests or published for the entertainment of a particular class, profession,
trade, calling, race or religious denomination. The fact that there is another paper
published in Pampanga that has a few more subscribers (72 to be exact) and that
certain Manila dailies also have a larger circulation in that province is unimportant.
The law does not require that publication of the notice, referred to in the Code of
Civil Procedure, should be made in the newspaper with the largest numbers is
necessary to constitute a newspaper of general circulation.
The assignments of error of the appellants are overruled and the appealed order of
the trial court is affirmed with costs in this instance against the appellants.
Malcolm, Villa-Real, Imperial, and Butte, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21993

June 21, 1966

ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL., petitioners,

vs.
HON. JUAN DE BORJA, as Judge of the Court of First Instance of Bulacan, Branch III,
ANATOLIA PANGILINAN and ADELAIDA JACALAN, respondents.

Lorenzo Somulong for petitioners.

Torres and Torres for respondents.
REYES, J.B.L., J.:
Petitioners Angela, Maria, Abelardo and Antonio, surnamed Rodriguez, petition this
Court for a writ of certiorariand prohibition to the Court of First Instance of Bulacan,
for its refusal to grant their motion to dismiss its Special Proceeding No. 1331, which
said Court is alleged to have taken cognizance of without jurisdiction.
The facts and issues are succinctly narrated in the order of the respondent court,
dated June 13, 1963 (Petition, Annex 0), in this wise:
It is alleged in the motion to dismiss filed by Angela, Maria, Abelardo and Antonio
Rodriguez, through counsel, that this Court "has no jurisdiction to try the aboveentitled case in view of the pendency of another action for the settlement of the
estate of the deceased Rev. Fr. Celestino Rodriguez in the Court of First Instance of
Rizal, namely, Sp. Proceedings No. 3907 entitled 'In the matter of the Intestate
Estate of the deceased Rev. Fr. Celestino Rodriguez which was filed ahead of the
instant case".
The records show that Fr. Celestino Rodriguez died on February 12, 1963 in the City
of Manila; that on March 4, 1963, Apolonia Pangilinan and Adelaida Jacalan delivered
to the Clerk of Court of Bulacan a purported last will and testament of Fr. Rodriguez;
that on March 8, 1963, Maria Rodriguez and Angela Rodriguez, through counsel filed
a petition for leave of court to allow them to examine the alleged will; that on March
11, 1963 before the Court could act on the petition, the same was withdrawn; that
on March 12, 1963, aforementioned petitioners filed before the Court of First
Instance of Rizal a petition for the settlement of the intestate estate of Fr. Rodriguez
alleging, among other things, that Fr. Rodriguez was a resident of Paraaque, Rizal,
and died without leaving a will and praying that Maria Rodriguez be appointed as
Special Administratrix of the estate; and that on March 12, 1963 Apolonia Pangilinan
and Adelaida Jacalan filed a petition in this Court for the probation of the will
delivered by them on March 4, 1963. It was stipulated by the parties that Fr.
Rodriguez was born in Paraaque, Rizal; that he was Parish priest of the Catholic
Church of Hagonoy, Bulacan, from the year 1930 up to the time of his death in
1963; that he was buried in Paraaque, and that he left real properties in Rizal,
Cavite, Quezon City and Bulacan.
The movants contend that since the intestate proceedings in the Court of First
Instance of Rizal was filed at 8:00 A.M. on March 12, 1963 while the petition for
probate was filed in the Court of First Instance of Bulacan at 11:00 A.M. on the same
date, the latter Court has no jurisdiction to entertain the petition for probate, citing
as authority in support thereof the case of Ongsingco Vda. de Borja vs. Tan and De
Borja, G.R. No. 7792, July 27, 1955.
The petitioners Pangilinan and Jacalan, on the other hand, take the stand that the
Court of First Instance of Bulacan acquired jurisdiction over the case upon delivery

by them of the will to the Clerk of Court on March 4, 1963, and that the case in this
Court therefore has precedence over the case filed in Rizal on March 12, 1963.
The Court of First Instance, as previously stated denied the motion to dismiss on the
ground that a difference of a few hours did not entitle one proceeding to preference
over the other; that, as early as March 7, movants were aware of the existence of
the purported will of Father Rodriguez, deposited in the Court of Bulacan, since they
filed a petition to examine the same, and that movants clearly filed the intestate
proceedings in Rizal "for no other purpose than to prevent this Court (of Bulacan)
from exercising jurisdiction over the probate proceedings". Reconsideration having
been denied, movants, now petitioners, came to this Court, relying principally on
Rule 73, section 1 of the Rules of Court, and invoking our ruling in Ongsingco vs. Tan
and De Borja, L-7792, July 27, 1955.
SECTION 1. Where estate of deceased persons settled. If the decedent is an
inhabitant of the Philippines at the time of his death, whether a citizen or an alien,
his will shall be proved, or letters of administration granted, and his estate settled,
in the Court of First Instance in the province in which he resides at the time of his
death, and if he is an inhabitant of a foreign country, the Court of First Instance of
any province which he had estate. The court first taking cognizance of the
settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of
all other courts. The jurisdiction assumed by a court, as far as it depends on the
place of residence of the decedent, or of the location of his estate, shall not be
contested in a suit or proceeding, except in an appeal from that court, in the original
case, or when the want of jurisdiction appears on the record.
We find this recourse to be untenable. The jurisdiction of the Court of First Instance
of Bulacan became vested upon the delivery thereto of the will of the late Father
Rodriguez on March 4, 1963, even if no petition for its allowance was filed until
later, because upon the will being deposited the court could, motu proprio, have
taken steps to fix the time and place for proving the will, and issued the
corresponding notices conformably to what is prescribed by section 3, Rule 76, of
the Revised Rules of Court (Section 3, Rule 77, of the old Rules):
SEC. 3. Court to appoint time for proving will. Notice thereof to be published.
When a will is delivered to, or a petition for the allowance of a will is filed in, the
Court having jurisdiction, such Court shall fix a time and place for proving the will
when all concerned may appear to contest the allowance thereof, and shall cause
notice of such time and place to be published three (3) weeks successively,
previous to the time appointed, in a newspaper of general circulation in the
province.
But no newspaper publication shall be made where the petition for probate has
been filed by the testator himself.
The use of the disjunctive in the words "when a will is delivered to OR a petition for
the allowance of a will is filed" plainly indicates that the court may act upon the
mere deposit therein of a decedent's testament, even if no petition for its allowance
is as yet filed. Where the petition for probate is made after the deposit of the will,

the petition is deemed to relate back to the time when the will was delivered. Since
the testament of Fr. Rodriguez was submitted and delivered to the Court of Bulacan
on March 4, while petitioners initiated intestate proceedings in the Court of First
Instance of Rizal only on March 12, eight days later, the precedence and exclusive
jurisdiction of the Bulacan court is incontestable.1wph1.t
But, petitioners object, section 3 of revised Rule 76 (old Rule 77) speaks of a will
being delivered to "the Court having jurisdiction," and in the case at bar the Bulacan
court did not have it because the decedent was domiciled in Rizal province. We can
not disregard Fr. Rodriguez's 33 years of residence as parish priest in Hagonoy,
Bulacan (1930-1963); but even if we do so, and consider that he retained
throughout some animus revertendi to the place of his birth in Paraaque, Rizal,
that detail would not imply that the Bulacan court lacked jurisdiction. As ruled in
previous decisions, the power to settle decedents' estates is conferred by law upon
all courts of first instance, and the domicile of the testator only affects the venue
but not the jurisdiction of the Court (In re Kaw Singco, 74 Phil. 239; Reyes vs. Diaz,
73 Phil. 484; Bernabe vs. Vergara, 73 Phil. 676). Neither party denies that the late
Fr. Rodriguez is deceased, or that he left personal property in Hagonoy, province of
Bulacan (t.s.n. p. 46, hearing of June 11, 1963, Annex "H", Petition, Rec., p. 48). That
is sufficient in the case before us.
In the Kaw Singco case (ante) this Court ruled that:
"... If we consider such question of residence as one affecting the jurisdiction of the
trial court over the subject-matter, the effect shall be that the whole proceedings
including all decisions on the different incidents which have arisen in court will have
to be annulled and the same case will have to be commenced anew before another
court of the same rank in another province. That this is of mischievous effect in the
prompt administration of justice is too obvious to require comment. (Cf. Tanunchuan
vs. Dy Buncio & Co., G.R. No. 48206, December 31, 1942). Furthermore, section 600
of Act No. 190, providing that the estate of a deceased person shall be settled in the
province where he had last resided, could not have been intended as defining the
jurisdiction of the probate court over the subject matter, because such legal
provision is contained in a law of procedure dealing merely with procedural matters,
and, as we have said time and again, procedure is one thing and jurisdiction over
the subject matter is another. (Attorney General vs. Manila Railroad Company, 20
Phil. 523.) The law of jurisdiction Act No. 136, Section 56, No. 5 confers upon
Courts of First Instance jurisdiction over all probate cases independently of the place
of residence of the deceased.1 Since, however, there are many Courts of First
Instance in the Philippines, the Law of Procedure, Act No. 190, section 600, fixes the
venue or the place where each case shall be brought. Thus, the place of residence
of the deceased is not an element of jurisdiction over the subject matter but merely
of venue. And it is upon this ground that in the new Rules of Court the province
where the estate of a deceased person shall be settled is properly called "venue"
(Rule 75, section 1.) Motion for reconsideration is denied.
The estate proceedings having been initiated in the Bulacan Court of First Instance
ahead of any other, that court is entitled to assume jurisdiction to the exclusion of

all other courts, even if it were a case of wrong venue by express provisions of Rule
73 (old Rule 75) of the Rules of Court, since the same enjoins that:
The Court first taking cognizance of the settlement of the estate of a decedent shall
exercise jurisdiction to the exclusion of all other courts. (Sec. 1)
This disposition presupposes that two or more courts have been asked to take
cognizance of the settlement of the estate. Of them only one could be of proper
venue, yet the rule grants precedence to that Court whose jurisdiction is first
invoked, without taking venue into account.
There are two other reasons that militate against the success of petitioners. One is
that their commencing intestate proceedings in Rizal, after they learned of the
delivery of the decedent's will to the Court of Bulacan, was in bad faith, patently
done with a view to divesting the latter court of the precedence awarded it by the
Rules. Certainly the order of priority established in Rule 73 (old Rule 75) was not
designed to convert the settlement of decedent's estates into a race between
applicants, with the administration of the properties as the price for the fleetest.
The other reason is that, in our system of civil law, intestate succession is only
subsidiary or subordinate to the testate, since intestacy only takes place in the
absence of a valid operative will. Says Article 960 of the Civil Code of the
Philippines:
ART. 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one which has subsequently
lost its validity;
(2) When the will does not institute an heir to, or dispose of all the property
belonging to the testator. In such case, legal succession shall take place only with
respect to the property in which the testator has not disposed;
(3) If the suspensive condition attached to the institution of heir does not happen or
is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance,
there being no substitution, and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding, except in cases provided in
this Code.
Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil. 307, "only after final
decision as to the nullity of testate succession could an intestate succession be
instituted in the form of pre-established action". The institution of intestacy
proceedings in Rizal may not thus proceed while the probate of the purported will of
Father Rodriguez is pending.
We rule that the Bulacan Court of First Instance was entitled to priority in the
settlement of the estate in question, and that in refusing to dismiss the probate.
proceedings, said court did not commit any abuse of discretion. It is the proceedings
in the Rizal Court that should be discontinued.

Wherefore, the writ of certiorari applied for is denied. Costs against petitioners
Rodriguez.
Concepcion, C.J., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar and
Sanchez, JJ., concur.
Footnotes
1Now section 44, subpar. (e) of the Judiciary Act (R.A. No. 296).
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A.
FERNANDEZ and ROSA DIONGSON, respondents.

PARAS, J.:
This is a petition for review on certiorari of the decision * of respondent. Court of
Appeals in AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108)
ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and its
Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents'
(petitioners herein) motion for reconsideration.
The dispositive portion of the questioned decision reads as follows:
WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of
the Seventh Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismiss the
petition in Special Proceedings No. 591 ACEB No special pronouncement is made as
to costs.
The antecedents of the case, based on the summary of the Intermediate Appellate
Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of
Cebu City Branch XIII, a petition for the probate of the will of the late Nemesio Acain
and for the issuance to the same petitioner of letters testamentary, docketed as
Special Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain
died leaving a will in which petitioner and his brothers Antonio, Flores and Jose and
his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will
allegedly executed by Nemesio Acain on February 17, 1960 was written in Bisaya
(Rollo, p. 27) with a translation in English (Rollo, p. 31) submi'tted by petitioner
without objection raised by private respondents. The will contained provisions on

burial rites, payment of debts, and the appointment of a certain Atty. Ignacio G.
Villagonzalo as the executor of the testament. On the disposition of the testator's
property, the will provided:
THIRD: All my shares that I may receive from our properties. house, lands and
money which I earned jointly with my wife Rosa Diongson shall all be given by me to
my brother SEGUNDO ACAIN Filipino, widower, of legal age and presently residing at
357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain predeceased me, all the money properties, lands, houses there in Bantayan and here in
Cebu City which constitute my share shall be given to me to his children, namely:
Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and Jose, all
surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who
are claiming to be heirs, with Constantino as the petitioner in Special Proceedings
No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the
oppositors (respondents herein Virginia A. Fernandez, a legally adopted daughter of
tile deceased and the latter's widow Rosa Diongson Vda. de Acain filed a motion to
dismiss on the following grounds for the petitioner has no legal capacity to institute
these proceedings; (2) he is merely a universal heir and (3) the widow and the
adopted daughter have been pretirited. (Rollo, p. 158). Said motion was denied by
the trial judge.
After the denial of their subsequent motion for reconsideration in the lower court,
respondents filed with the Supreme Court a petition for certiorari and prohibition
with preliminary injunction which was subsequently referred to the Intermediate
Appellate Court by Resolution of the Court dated March 11, 1985 (Memorandum for
Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents' petition and
ordered the trial court to dismiss the petition for the probate of the will of Nemesio
Acain in Special Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed this present
petition for the review of respondent Court's decision on December 18, 1985 (Rollo,
p. 6). Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p.
153). Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157);
the Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p. 4):
(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with
preliminary injunction is not the proper remedy under the premises;
(B) The authority of the probate courts is limited only to inquiring into the extrinsic
validity of the will sought to be probated and it cannot pass upon the intrinsic
validity thereof before it is admitted to probate;

(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate.
The preterition mentioned in Article 854 of the New Civil Code refers to preterition
of "compulsory heirs in the direct line," and does not apply to private respondents
who are not compulsory heirs in the direct line; their omission shall not annul the
institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;
(E) There may be nothing in Article 854 of the New Civil Code, that suggests that
mere institution of a universal heir in the will would give the heir so instituted a
share in the inheritance but there is a definite distinct intention of the testator in the
case at bar, explicitly expressed in his will. This is what matters and should be in
violable.
(F) As an instituted heir, petitioner has the legal interest and standing to file the
petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain and
(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore
unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have been
pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or born after
the death of the testator, shall annul the institution of heir; but the devisees and
legacies shall be valid insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall
he effectual, without prejudice to the right of representation.
Preterition consists in the omission in the testator's will of the forced heirs or
anyone of them either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly disinherited
(Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA
478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil Code may
not apply as she does not ascend or descend from the testator, although she is a
compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory
heir, there is no preterition even if she is omitted from the inheritance, for she is not
in the direct line. (Art. 854, Civil code) however, the same thing cannot be said of
the other respondent Virginia A. Fernandez, whose legal adoption by the testator
has not been questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9).
Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code,
adoption gives to the adopted person the same rights and duties as if he were a
legitimate child of the adopter and makes the adopted person a legal heir of the
adopter. It cannot be denied that she has totally omitted and preterited in the will of
the testator and that both adopted child and the widow were deprived of at least

their legitime. Neither can it be denied that they were not expressly disinherited.
Hence, this is a clear case of preterition of the legally adopted child.
Pretention annuls the institution of an heir and annulment throws open to intestate
succession the entire inheritance including "la porcion libre (que) no hubiese
dispuesto en virtual de legado mejora o donacion" Maniesa as cited in Nuguid v.
Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions
which do not result in intestacy are the legacies and devises made in the will for
they should stand valid and respected, except insofar as the legitimes are
concerned.
The universal institution of petitioner together with his brothers and sisters to the
entire inheritance of the testator results in totally abrogating the will because the
nullification of such institution of universal heirs-without any other testamentary
disposition in the will-amounts to a declaration that nothing at all was written.
Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway
for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises
having been provided in the will the whole property of the deceased has been left
by universal title to petitioner and his brothers and sisters. The effect of annulling
the "Institution of heirs will be, necessarily, the opening of a total intestacy (Neri v.
Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises must, as
already stated above, be respected.
We now deal with another matter. In order that a person may be allowed to
intervene in a probate proceeding he must have an interest iii the estate, or in the
will, or in the property to be affected by it either as executor or as a claimant of the
estate and an interested party is one who would be benefited by the estate such as
an heir or one who has a claim against the estate like a creditor (Sumilang v.
Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a
devisee or a legatee there being no mention in the testamentary disposition of any
gift of an individual item of personal or real property he is called upon to receive
(Article 782, Civil Code). At the outset, he appears to have an interest in the will as
an heir, defined under Article 782 of the Civil Code as a person called to the
succession either by the provision of a will or by operation of law. However,
intestacy having resulted from the preterition of respondent adopted child and the
universal institution of heirs, petitioner is in effect not an heir of the testator. He has
no legal standing to petition for the probate of the will left by the deceased and
Special Proceedings No. 591 A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the
questioned order is an oppressive exercise of j judicial authority (People v.
Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982];
Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v.
Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of certiorari and
prohibition are not available where the petitioner has the remedy of appeal or some
other plain, speedy and adequate remedy in the course of law (DD Comendador
Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper
remedies to correct a grave abuse of discretion of the trial court in not dismissing a

case where the dismissal is founded on valid grounds (Vda. de Bacang v. Court of
Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by
respondent Court, the general rule is that the probate court's authority is limited
only to the extrinsic validity of the will, the due execution thereof, the testator's
testamentary capacity and the compliance with the requisites or solemnities
prescribed by law. The intrinsic validity of the will normally comes only after the
Court has declared that the will has been duly authenticated. Said court at this
stage of the proceedings is not called upon to rule on the intrinsic validity or
efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449 [1966];
Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982];
Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals,
139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional circumstances,
the probate court is not powerless to do what the situation constrains it to do and
pass upon certain provisions of the will (Nepomuceno v. Court of Appeals, supra). In
Nuguid v. Nuguid the oppositors to the probate moved to dismiss on the ground of
absolute preteriton The probate court acting on the motion held that the will in
question was a complete nullity and dismissed the petition without costs. On appeal
the Supreme Court upheld the decision of the probate court, induced by practical
considerations. The Court said:
We pause to reflect. If the case were to be remanded for probate of the will, nothing
will be gained. On the contrary, this litigation will be protracted. And for aught that
appears in the record, in the event of probate or if the court rejects the will,
probability exists that the case will come up once again before us on the same issue
of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense,
plus added anxiety. These are the practical considerations that induce us to a belief
that we might as well meet head-on the issue of the validity of the provisions of the
will in question. After all there exists a justiciable controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by
the surviving spouse was grounded on petitioner's lack of legal capacity to institute
the proceedings which was fully substantiated by the evidence during the hearing
held in connection with said motion. The Court upheld the probate court's order of
dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the
petition deals with the validity of the provisions of the will. Respondent Judge
allowed the probate of the will. The Court held that as on its face the will appeared
to have preterited the petitioner the respondent judge should have denied its
probate outright. Where circumstances demand that intrinsic validity of
testamentary provisions be passed upon even before the extrinsic validity of the will
is resolved, the probate court should meet the issue. (Nepomuceno v. Court of
Appeals,supra; Nuguid v. Nuguid, supra).

In the instant case private respondents filed a motion to dismiss the petition in Sp.
Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the following
grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is
merely a universal heir; and (3) the widow and the adopted daughter have been
preterited (Rollo, p. 158). It was denied by the trial court in an order dated January
21, 1985 for the reason that "the grounds for the motion to dismiss are matters
properly to be resolved after a hearing on the issues in the course of the trial on the
merits of the case (Rollo, p. 32). A subsequent motion for reconsideration was
denied by the trial court on February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the will and allowed the
case to progress when on its face the will appears to be intrinsically void as
petitioner and his brothers and sisters were instituted as universal heirs coupled
with the obvious fact that one of the private respondents had been preterited would
have been an exercise in futility. It would have meant a waste of time, effort,
expense, plus added futility. The trial court could have denied its probate outright or
could have passed upon the intrinsic validity of the testamentary provisions before
the extrinsic validity of the will was resolved (Cayetano v. Leonides, supra; Nuquid v.
Nuguid, supra. The remedies of certiorari and prohibition were properly availed of
by private respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable, the
defendants had the right to resort to the more speedy, and adequate remedies of
certiorari and prohibition to correct a grave abuse of discretion, amounting to lack
of jurisdiction, committed by the trial court in not dismissing the case, (Vda. de
Bacang v. Court of Appeals, supra) and even assuming the existence of the remedy
of appeal, the Court harkens to the rule that in the broader interests of justice, a
petition for certiorari may be entertained, particularly where appeal would not
afford speedy and adequate relief. (Maninang Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the
questioned decision of respondent Court of Appeals promulgated on August 30,
1985 and its Resolution dated October 23, 1985 are hereby AFFIRMED.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

THIRD DIVISION

JOSE ANTONIO LEVISTE,

Petitioner,
Present:

G.R. No. 189122

CORONA, J., Chairperson,

VELASCO, JR.,
- versus -

NACHURA,
PERALTA and
MENDOZA, JJ.

THE COURT OF APPEALS

and PEOPLE OF THE
PHILIPPINES,
Respondents.

Promulgated:

March 17, 2010

x---------------------------------------------------x

DECISION

CORONA, J.:

Bail, the security given by an accused who is in the custody of the law for his
release to guarantee his appearance before any court as may be required,[1] is the
answer of the criminal justice system to a vexing question: what is to be done with
the accused, whose guilt has not yet been proven, in the dubious interval, often
years long, between arrest and final adjudication?[2] Bail acts as a reconciling
mechanism to accommodate both the accuseds interest in pretrial liberty and
societys interest in assuring the accusedspresence at trial.[3]

Upon conviction by the Regional Trial Court of an offense not punishable by

death, reclusion perpetua or life imprisonment, the accused who has been
sentenced to prison must typically begin serving time immediately unless, on

application, he is admitted to bail.[4] An accused not released on bail is

incarcerated before an appellate court confirms that his conviction is legal and
proper. An erroneously convicted accused who is denied bail loses his liberty to pay
a debt to society he has never owed.[5] Even if the conviction is subsequently
affirmed, however, the accuseds interest in bail pending appeal includes freedom
pending judicial review, opportunity to efficiently prepare his case and avoidance of
potential hardships of prison.[6] On the other hand, society has a compelling
interest in protecting itself by swiftly incarcerating an individual who is found
guilty beyond reasonable doubt of a crime serious enough to warrant prison time.
[7] Other recognized societal interests in the denial of bail pending appeal include
the prevention of theaccuseds flight from court custody, the protection of the
community from potential danger and the avoidance of delay in punishment.
[8] Under what circumstances an accused may obtain bail pending appeal, then, is
a delicate balance between the interests of society and those of the accused.[9]

Our rules authorize the proper courts to exercise discretion in the grant of bail
pending appeal to those convicted by the Regional Trial Court of an offense not
punishable by death, reclusion perpetua or life imprisonment. In the exercise of that
discretion, the proper courts are to be guided by the fundamental principle that
the allowance of bail pending appeal should be exercised not with laxity but with
grave caution and only for strong reasons, considering that the accused has been in
fact convicted by the trial court.[10]

THE FACTS

Charged with the murder of Rafael de las Alas, petitioner Jose Antonio Leviste was
convicted by the Regional Trial Court of Makati City for the lesser crime of homicide
and sentenced to suffer an indeterminate penalty of six years and one day
of prision mayor as minimum to 12 years and one day of reclusion temporal as
maximum.[11]

He appealed his conviction to the Court of Appeals.[12] Pending appeal, he

filed an urgent application for admission to bail pending appeal, citing his advanced
age and health condition, and claiming the absence of any risk or possibility of flight
on his part.

The Court of Appeals denied petitioners application for bail.[13] It invoked

the bedrock principle in the matter of bail pending appeal, that the discretion to
extend bail during the course of appeal should be exercised with grave caution and
only for strong reasons. Citing well-established jurisprudence, it ruled that bail is

not a sick pass for an ailing or aged detainee or a prisoner needing medical care
outside the prison facility. It found that petitioner

failed to show that he suffers from ailment of such gravity that his continued
confinement during trial will permanently impair his health or put his life in danger.
x x x Notably, the physical condition of [petitioner] does not prevent him from
seeking medical attention while confined in prison, though he clearly preferred to be
attended by his personal physician.[14]

For purposes of determining whether petitioners application for bail could be

allowed pending appeal, the Court of Appeals also considered the fact of petitioners
conviction. It made a preliminary evaluation of petitioners case and made a prima
facie determination that there was no reason substantial enough to overturn the
evidence of petitioners guilt.
Petitioners motion for reconsideration was denied.[15]

Petitioner now questions as grave abuse of discretion the denial of his

application for bail, considering that none of the conditions justifying denial of bail
under the third paragraph of Section 5, Rule 114 of the Rules of Court was present.
Petitioners theory is that, where the penalty imposed by the trial court is more than
six years but not more than 20 years and the circumstances mentioned in the third
paragraph of Section 5 are absent, bail must be granted to an appellant pending
appeal.

THE ISSUE

The question presented to the Court is this: in an application for bail pending appeal
by an appellant sentenced by the trial court to a penalty of imprisonment for more
than six years, does the discretionary nature of the grant of bail pending appeal
mean that bail should automatically be granted absent any of the circumstances
mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court?

Section 5, Rule 114 of the Rules of Court provides:

Sec. 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua, or life imprisonment,
admission to bail is discretionary. The application for bail may be filed and acted
upon by the trial court despite the filing of a notice of appeal, provided it has not
transmitted the original record to the appellate court. However, if the decision of the
trial court convicting the accused changed the nature of the offense from nonbailable to bailable, the application for bail can only be filed with and resolved by
the appellate court.

Should the court grant the application, the accused may be allowed to continue on
provisional liberty during the pendency of the appeal under the same bail subject to
the consent of the bondsman.

If the penalty imposed by the trial court is imprisonment exceeding six (6) years,
the accused shall be denied bail, or his bail shall be cancelled upon a showing by
the prosecution, with notice to the accused, of the following or other similar
circumstances:

(a)
That he is a recidivist, quasi-recidivist, or habitual delinquent, or has
committed the crime aggravated by the circumstance of reiteration;

(b)
That he has previously escaped from legal confinement, evaded sentence, or
violated the conditions of his bail without a valid justification;

(c)
That he committed the offense while under probation, parole, or conditional
pardon;

(d)
That the circumstances of his case indicate the probability of flight if
released on bail; or

(e)
That there is undue risk that he may commit another crime during the
pendency of the appeal.

The appellate court may, motu proprio or on motion of any party, review the
resolution of the Regional Trial Court after notice to the adverse party in either case.
(emphasis supplied)

Petitioner claims that, in the absence of any of the circumstances mentioned

in the third paragraph of Section 5, Rule 114 of the Rules of Court, an application for
bail by an appellant sentenced by the Regional Trial Court to a penalty of more than
six years imprisonment should automatically be granted.

Petitioners stance is contrary to fundamental considerations of procedural and

substantive rules.

BASIC PROCEDURAL CONCERNS

FORBID GRANT OF PETITION

Petitioner filed this special civil action for certiorari under Rule 65 of the Rules
of Court to assail the denial by the Court of Appeals of his urgent application for
admission to bail pending appeal. While the said remedy may be resorted to
challenge an interlocutory order, such remedy is proper only where the interlocutory
order was rendered without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction.[16]

Other than the sweeping averment that [t]he Court of Appeals committed grave
abuse of discretion in denying petitioners application for bail pending appeal
despite the fact that none of the conditions to justify the denial thereof under Rule
114, Section 5 [is] present, much less proven by the prosecution,[17] however,
petitioner actually failed to establish that the Court of Appeals indeed acted with
grave abuse of discretion. He simply relies on his claim that the Court of Appeals
should have granted bail in view of the absence of any of the circumstances
enumerated in the third paragraph of Section 5, Rule 114 of the Rules of Court.
Furthermore, petitioner asserts that the Court of Appeals committed a grave error
and prejudged the appeal by denying his application for bail on the ground that the
evidence that he committed a capital offense was strong.
We disagree.

It cannot be said that the Court of Appeals issued the assailed resolution
without or in excess of its jurisdiction. One, pending appeal of a conviction by the
Regional Trial Court of an offense not punishable by death, reclusion perpetua, or
life imprisonment, admission to bail is expressly declared to be discretionary. Two,
the discretion to allow or disallow bail pending appeal in a case such as this where
the decision of the trial court convicting the accused changed the nature of the
offense from non-bailable to bailable is exclusively lodged by the rules with the

appellate court. Thus, the Court of Appeals had jurisdiction to hear and resolve
petitioners urgent application for admission to bail pending appeal.

Neither can it be correctly claimed that the Court of Appeals committed grave
abuse of discretion when it denied petitioners application for bail pending
appeal. Grave abuse of discretion is not simply an error in judgment but it is such a
capricious and whimsical exercise of judgment which is tantamount to lack of
jurisdiction.[18] Ordinary abuse of discretion is insufficient. The abuse of discretion
must be grave, that is, the power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility.[19] It must be so patent and gross as to
amount to evasion of positive duty or to a virtual refusal to perform the duty
enjoined by or to act at all in contemplation of the law. In other words, for a petition
for certiorari to prosper, there must be a clear showing of caprice and arbitrariness
in the exercise of discretion.[20]

Petitioner never alleged that, in denying his application for bail pending appeal, the
Court of Appeals exercised its judgment capriciously and whimsically. No
capriciousness or arbitrariness in the exercise of discretion was ever imputed to the
appellate court. Nor could any such implication or imputation be inferred. As
observed earlier, the Court of Appeals exercised grave caution in the exercise of its
discretion. The denial of petitioners application for bail pending appeal was not
unreasonable but was the result of a thorough assessment of petitioners claim of ill
health. By making a preliminary appraisal of the merits of the case for the purpose
of granting bail, the court also determined whether the appeal was frivolous or not,
or whether it raised a substantial question. The appellate court did not exercise its
discretion in a careless manner but followed doctrinal rulings of this Court.

At best, petitioner only points out the Court of Appeals erroneous application
and interpretation of Section 5, Rule 114 of the Rules of
Court. However, the extraordinary writ of certiorari will not be issued to cure errors
in proceedings or erroneous conclusions of law or fact.[21] In this connection, Lee
v. People[22] is apropos:

Certiorari may not be availed of where it is not shown that the respondent court
lacked or exceeded its jurisdiction over the case, even if its findings are not correct.
Its questioned acts would at most constitute errors of law and not abuse of
discretion correctible by certiorari.

In other words, certiorari will issue only to correct errors of jurisdiction and not to
correct errors of procedure or mistakes in the courts findings and conclusions. An
interlocutory order may be assailed by certiorari or prohibition only when it is shown

that the court acted without or in excess of jurisdiction or with grave abuse of
discretion. However, this Court generally frowns upon this remedial measure as
regards interlocutory orders. To tolerate the practice of allowing interlocutory orders
to be the subject of review by certiorari will not only delay the administration of
justice but will also unduly burden the courts.[23] (emphasis supplied)

WORDING OF THIRD PARAGRAPH OF SECTION 5,

RULE

114

CONTRADICTS

PETITIONERS

INTERPRETATION

The third paragraph of Section 5, Rule 114 applies to two scenarios where the
penalty imposed on the appellant applying for bail is imprisonment exceeding six
years. The first scenario deals with the circumstances enumerated in the said
paragraph (namely, recidivism, quasi-recidivism, habitual delinquency or
commission of the crime aggravated by the circumstance of reiteration; previous
escape from legal confinement, evasion of sentence or violation of the conditions of
his bail without a valid justification; commission of the offense while under
probation, parole or conditional pardon; circumstances indicating the probability of
flight if released on bail; undue risk of committing another crime during the
pendency of the appeal; or other similar circumstances) not present. The second
scenario contemplates the existence of at least one of the said circumstances.

The implications of this distinction are discussed with erudition and clarity in
the commentary of retired Supreme Court Justice Florenz D. Regalado, an authority
in remedial law:

Under the present revised Rule 114, the availability of bail to an accused may be
summarized in the following rules:

xxx

xxx

xxx

e.
After conviction by the Regional Trial Court wherein a penalty of
imprisonment exceeding 6 years but not more than 20 years is imposed, and not

one of the circumstances stated in Sec. 5 or any other similar circumstance is

present and proved, bail is a matter of discretion (Sec. 5);

f.
After conviction by the Regional Trial Court imposing a penalty of
imprisonment exceeding 6 years but not more than 20 years, and any of the
circumstances stated in Sec. 5 or any other similar circumstance is present and
proved, no bail shall be granted by said court (Sec. 5); x x x[24] (emphasis supplied)

Retired Court of Appeals Justice Oscar M. Herrera, another authority in remedial law,
is of the same thinking:

Bail is either a matter of right or of discretion. It is a matter of right when the

offense charged is not punishable by death, reclusion perpetua or life imprisonment.
On the other hand, upon conviction by the Regional Trial Court of an offense not
punishable death, reclusion perpetua or life imprisonment, bail becomes a matter of
discretion.

Similarly, if the court imposed a penalty of imprisonment exceeding six (6) years
then bail is a matter of discretion, except when any of the enumerated
circumstances under paragraph 3 of Section 5, Rule 114 is present then bail shall be
denied.[25] (emphasis supplied)

In the first situation, bail is a matter of sound judicial discretion. This means that, if
none of the circumstances mentioned in the third paragraph of Section 5, Rule 114
is present, the appellate court has the discretion to grant or deny bail. An
application for bail pending appeal may be denied even if the bailnegating[26] circumstances in the third paragraph of Section 5, Rule 114 are
absent. In other words, the appellate courts denial of bail pending appeal where
none of the said circumstances exists does not, by and of itself, constitute abuse of
discretion.

On the other hand, in the second situation, the appellate court exercises a
more stringent discretion, that is, to carefully ascertain whether any of the
enumerated circumstances in fact exists. If it so determines, it has no other option
except to deny or revoke bail pending appeal. Conversely, if the appellate court
grants bail pending appeal, grave abuse of discretion will thereby be committed.

Given these two distinct scenarios, therefore, any application for bail pending
appeal should be viewed from the perspective of two stages: (1) the determination
of discretion stage, where the appellate court must determine whether any of the
circumstances in the third paragraph of Section 5, Rule 114 is present; this will
establish whether or not the appellate court will exercise sound discretion or
stringent discretion in resolving the application for bail pending appeal and (2) the
exercise of discretion stage where, assuming the appellants case falls within the
first scenario allowing the exercise of sound discretion, the appellate court may
consider all relevant circumstances, other than those mentioned in the third
paragraph of Section 5, Rule 114, including the demands of equity and justice;
[27] on the basis thereof, it may either allow or disallow bail.

On the other hand, if the appellants case falls within the second scenario, the
appellate courts stringent discretion requires that the exercise thereof be primarily
focused on the determination of the proof of the presence of any of the
circumstances that are prejudicial to the allowance of bail. This is so because the
existence of any of those circumstances is by itself sufficient to deny or revoke
bail. Nonetheless, a finding that none of the said circumstances is present will not
automatically result in the grant of bail. Such finding will simply authorize the court
to use the less stringent sound discretion approach.

Petitioner disregards the fine yet substantial distinction between the two
different situations that are governed by the third paragraph of Section 5, Rule 114.
Instead, petitioner insists on a simplistic treatment that unduly dilutes the import of
the said provision and trivializes the established policy governing the grant of bail
pending appeal.

In particular, a careful reading of petitioners arguments reveals that it

interprets the third paragraph of Section 5, Rule 114 to cover all situations where
the penalty imposed by the trial court on the appellant is imprisonment exceeding
six years. For petitioner, in such a situation, the grant of bail pending appeal is
always subject to limited discretion, that is, one restricted to the determination of
whether any of the five bail-negating circumstances exists. The implication of this
position is that, if any such circumstance is present, then bail will be denied.
Otherwise, bail will be granted pending appeal.

Petitioners theory therefore reduces the appellate court into a mere fact-finding
body whose authority is limited to determining whether any of the five
circumstances mentioned in the third paragraph of Section 5, Rule 114 exists. This
unduly constricts its discretion into merely filling out the checklist of
circumstances in the third paragraph of Section 5, Rule 114 in all instances where
the penalty imposed by the Regional Trial Court on the appellant is imprisonment

exceeding six years. In short, petitioners interpretation severely curbs the

discretion of the appellate court by requiring it to determine a singular factual issue
whether any of the five bail-negating circumstances is present.

However, judicial discretion has been defined as choice.[28] Choice occurs where,
between two alternatives or among a possibly infinite number (of options), there
is more than one possible outcome, with the selection of the outcome left to the
decision maker.[29] On the other hand, the establishment of a clearly defined rule
of action is the end of discretion.[30] Thus, by severely clipping the appellate
courts discretion and relegating that tribunal to a mere fact-finding body in
applications for bail pending appeal in all instances where the penalty imposed by
the trial court on the appellant is imprisonment exceeding six years, petitioners
theory effectively renders nugatory the provision that upon conviction by the
Regional Trial Court of an offense not punishable by death, reclusion perpetua, or
life imprisonment, admission to bail is discretionary.

The judicial discretion granted to the proper court (the Court of Appeals in
this case) to rule on applications for bail pending appeal must necessarily involve
the exercise of judgment on the part of the court. The court must be allowed
reasonable latitude to express its own view of the case, its appreciation of the facts
and its understanding of the applicable law on the matter.[31] In view of the grave
caution required of it, the court should consider whether or not, under all
circumstances, the accused will be present to abide by his punishment if his
conviction is affirmed.[32] It should also give due regard to any other pertinent
matters beyond the record of the particular case, such as the record, character and
reputation of the applicant,[33] among other things. More importantly, the
discretion to determine allowance or disallowance of bail pending appeal
necessarily includes, at the very least, an initial determination that the appeal is not
frivolous but raises a substantial question of law or fact which must be determined
by the appellate court.[34] In other words, a threshold requirement for the grant of
bail is a showing that the appeal is not pro forma and merely intended for delay but
presents a fairly debatable issue.[35] This must be so; otherwise, the appellate
courts will be deluged with frivolous and time-wasting appeals made for the purpose
of taking advantage of a lenient attitude on bail pending appeal. Even more
significantly, this comports with the very strong presumption on appeal that the
lower courts exercise of discretionary power was sound,[36] speciallysince the rules
on criminal procedure require that no judgment shall be reversed or modified by the
Court of Appeals except for substantial error.[37]

Moreover, to limit the bail-negating circumstances to the five situations

mentioned in the third paragraph of Section 5, Rule 114 is wrong. By restricting the
bail-negating circumstances to those expressly mentioned, petitioner applies
the expressio unius est exclusio alterius[38] rule in statutory construction. However,

the very language of the third paragraph of Section 5, Rule 114 contradicts the idea
that the enumeration of the five situations therein was meant to be exclusive. The
provision categorically refers to the following or other similar
circumstances. Hence, under the rules, similarly relevant situations other than
those listed in the third paragraph of Section 5, Rule 114 may be considered in the
allowance, denial or revocation of bail pending appeal.

Finally, laws and rules should not be interpreted in such a way that leads to
unreasonable or senseless consequences. An absurd situation will result from
adopting petitioners interpretation that, where the penalty imposed by the trial
court is imprisonment exceeding six years, bail ought to be granted if none of the
listed bail-negating circumstances exists. Allowance of bail pending appeal in cases
where the penalty imposed is more than six years of imprisonment will be more
lenient than in cases where the penalty imposed does not exceed six years. While
denial or revocation of bail in cases where the penalty imposed is more than six
years imprisonment must be made only if any of the five bail-negating conditions is
present, bail pending appeal in cases where the penalty imposed does not exceed
six years imprisonment may be denied even without those conditions.

Is it reasonable and in conformity with the dictates of justice that bail pending
appeal be more accessible to those convicted of serious offenses, compared to
those convicted of less serious crimes?

PETITIONERS THEORY DEVIATES FROM HISTORY

AND EVOLUTION OF RULE ON BAIL PENDING APPEAL

Petitioners interpretation deviates from, even radically alters, the history and
evolution of the provisions on bail pending appeal.

The relevant original provisions on bail were provided under Sections 3 to 6, Rule
110 of the 1940 Rules of Criminal Procedure:

Sec. 3. Offenses less than capital before conviction by the Court of First Instance.
After judgment by a municipal judge and before conviction by the Court of First
Instance, the defendant shall be admitted to bail as of right.

Sec. 4. Non-capital offenses after conviction by the Court of First Instance. After
conviction by the Court of First Instance, defendant may, upon application, be bailed
at the discretion of the court.

Sec. 5. Capital offense defined. A capital offense, as the term is used in this rule,
is an offense which, under the law existing at the time of its commission, and at the
time of the application to be admitted to bail, may be punished by death.

Sec. 6. Capital offense not bailable. No person in custody for the commission of a
capital offense shall be admitted to bail if the evidence of his guilt is strong.

The aforementioned provisions were reproduced as Sections 3 to 6, Rule 114 of the

1964 Rules of Criminal Procedure and then of the 1985 Rules of Criminal Procedure.
They were modified in 1988 to read as follows:

Sec. 3. Bail, a matter of right; exception. All persons in custody, shall before final
conviction be entitled to bail as a matter of right, except those charged with a
capital offense or an offense which, under the law at the time of its commission and
at the time of the application for bail, is punishable by reclusion perpetua, when
evidence of guilt is strong.

Sec. 4. Capital offense, defined. A capital offense, as the term is used in this
Rules, is an offense which, under the law existing at the time of its commission, and
at the time of the application to be admitted to bail, may be punished by death.
(emphasis supplied)

The significance of the above changes was clarified in Administrative Circular No. 292 dated January 20, 1992 as follows:

The basic governing principle on the right of the accused to bail is laid down in
Section 3 of Rule 114 of the 1985 Rules on Criminal Procedure, as amended, which
provides:

Sec. 3. Bail, a matter of right; exception. All persons in custody, shall before
final conviction, be entitled to bail as a matter of right, except those charged with a
capital offense or an offense which, under the law at the time of its commission and
at the time of the application for bail, is punishable by reclusion perpetua, when
evidence of guilt is strong.

Pursuant to the aforecited provision, an accused who is charged with a capital

offense or an offense punishable by reclusion perpetua, shall no longer be entitled
to bail as a matter of right even if he appeals the case to this Court since his
conviction clearly imports that the evidence of his guilt of the offense charged is
strong.

Hence, for the guidelines of the bench and bar with respect to future as well as
pending cases before the trial courts, this Court en banc lays down the following
policies concerning the effectivity of the bail of the accused, to wit:

1)
When an accused is charged with an offense which under the law existing at
the time of its commission and at the time of the application for bail is punishable
by a penalty lower thanreclusion perpetua and is out on bail, and after trial is
convicted by the trial court of the offense charged or of a lesser offense than that
charged in the complaint or information, he may be allowed to remain free on his
original bail pending the resolution of his appeal, unless the proper court directs
otherwise pursuant to Rule 114, Sec. 2 (a) of the Rules of Court, as amended;

2)
When an accused is charged with a capital offense or an offense which
under the law at the time of its commission and at the time of the application for
bail is punishable byreclusion perpetua and is out on bail, and after trial is convicted
by the trial court of a lesser offense than that charged in the complaint or
information, the same rule set forth in the preceding paragraph shall be applied;

3)
When an accused is charged with a capital offense or an offense which
under the law at the time of its commission and at the time of the application for
bail is punishable by reclusionperpetua and is out on bail and after trial is convicted
by the trial court of the offense charged, his bond shall be cancelled and the
accused shall be placed in confinement pending resolution of his appeal.

As to criminal cases covered under the third rule abovecited, which are now
pending appeal before his Court where the accused is still on provisional liberty, the
following rules are laid down:

1)
This Court shall order the bondsman to surrender the accused within ten
(10) days from notice to the court of origin. The bondsman thereupon, shall inform
this Court of the fact of surrender, after which, the cancellation of the bond shall be
ordered by this Court;

2)
The RTC shall order the transmittal of the accused to the National Bureau of
Prisons thru the Philippine National Police as the accused shall remain under
confinement pending resolution of his appeal;

3)
If the accused-appellant is not surrendered within the aforesaid period of ten
(10) days, his bond shall be forfeited and an order of arrest shall be issued by this
Court. The appeal taken by the accused shall also be dismissed under Section 8,
Rule 124 of the Revised Rules of Court as he shall be deemed to have jumped his
bail. (emphasis supplied)

Amendments were further introduced in Administrative Circular No. 12-94 dated

August 16, 1994 which brought about important changes in the said rules as
follows:

SECTION 4. Bail, a matter of right. All persons in custody shall: (a) before or
after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial
Court in Cities and Municipal Circuit Trial Court, and (b) before conviction by the
Regional Trial Court of an offense not punishable by death, reclusion perpetua or life
imprisonment, be admitted to bail as a matter of right, with sufficient sureties, or be
released on recognizance as prescribed by law of this Rule. (3a)

SECTION 5. Bail, when discretionary. Upon conviction by the Regional Trial Court
of an offense not punishable by death, reclusion perpetua or life imprisonment, the
court, on application, may admit the accused to bail.

The court, in its discretion, may allow the accused to continue on provisional liberty
under the same bail bond during the period of appeal subject to the consent of the
bondsman.
If the court imposed a penalty of imprisonment exceeding six (6) years but not more
than twenty (20) years, the accused shall be denied bail, or his bail previously
granted shall be cancelled, upon a showing by the prosecution, with notice to the
accused, of the following or other similar circumstances:

(a)
That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or
has committed the crime aggravated by the circumstance of reiteration;

(b)
That the accused is found to have previously escaped from legal
confinement, evaded sentence or has violated the conditions of his bail without
valid justification;

(c)
That the accused committed the offense while on probation, parole, under
conditional pardon;

(d)
That the circumstances of the accused or his case indicate the probability of
flight if released on bail; or

(e)
That there is undue risk that during the pendency of the appeal, the
accused may commit another crime.

The appellate court may review the resolution of the Regional Trial Court, on motion
and with notice to the adverse party. (n)

SECTION 6. Capital offense, defined. A capital offense, as the term is used in

these Rules, is an offense which, under the law existing at the time of its
commission and at the time of the application to be admitted to bail, maybe
punished with death. (4)

SECTION 7. Capital offense or an offense punishable by reclusion perpetua or life

imprisonment, not bailable. No person charged with a capital offense, or an
offense punishable byreclusion perpetua or life imprisonment, when evidence of
guilt is strong, shall be admitted to bail regardless of the stage of the criminal
prosecution. (emphasis supplied)

The above amendments of Administrative Circular No. 12-94 to Rule 114 were
thereafter amended by A.M. No. 00-5-03-SC to read as they do now.

The development over time of these rules reveals an orientation towards a

more restrictive approach to bail pending appeal. It indicates a faithful adherence to
the bedrock principle, that is, bail pending appeal should be allowed not with
leniency but with grave caution and only for strong reasons.

The earliest rules on the matter made all grants of bail after conviction for a noncapital offense by the Court of First Instance (predecessor of the Regional Trial
Court) discretionary. The 1988 amendments made applications for bail pending
appeal favorable to the appellant-applicant. Bail before final conviction in trial
courts for non-capital offenses or offenses not punishable by reclusion perpetua was
a matter of right, meaning, admission to bail was a matter of right at any stage of
the action where the charge was not for a capital offense or was not punished
by reclusion perpetua.[39]

The amendments introduced by Administrative Circular No. 12-94 made bail

pending appeal (of a conviction by the Regional Trial Court of an offense not
punishable by death, reclusion perpetua or life imprisonment) discretionary. Thus,
Administrative Circular No. 12-94 laid down more stringent rules on the matter of
post-conviction grant of bail.

A.M. No. 00-5-03-SC modified Administrative Circular No. 12-94 by clearly

identifying which court has authority to act on applications for bail pending appeal
under certain conditions and in particular situations. More importantly, it reiterated
the tough on bail pending appeal configuration of Administrative Circular No. 1294. In particular, it amended Section 3 of the 1988 Rules on Criminal Procedure
which entitled the accused to bail as a matter of right before final conviction.
[40] Under the present rule, bail is a matter of discretion upon conviction by the
Regional Trial Court of an offense not punishable by death, reclusion perpetua or life
imprisonment. Indeed, pursuant to the tough on bail pending appeal policy, the
presence of bail-negating conditions mandates the denial or revocation of bail
pending appeal such that those circumstances are deemed to be as grave as
conviction by the trial court for an offense punishable by
death, reclusion perpetua or life imprisonment where bail is prohibited.

Now, what is more in consonance with a stringent standards approach to bail

pending appeal? What is more in conformity with an ex abundante cautelam view of
bail pending appeal? Is it a rule which favors the automatic grant of bail in the
absence of any of the circumstances under the third paragraph of Section 5, Rule
114? Or is it a rule that authorizes the denial of bail after due consideration of all
relevant circumstances, even if none of the circumstances under the third
paragraph of Section 5, Rule 114 is present?

The present inclination of the rules on criminal procedure to frown on bail pending
appeal parallels the approach adopted in the United States where our original
constitutional and procedural provisions on bail emanated.[41] While this is of
course not to be followed blindly, it nonetheless shows that our treatment of bail
pending appeal is no different from that in other democratic societies.
In our jurisdiction, the trend towards a strict attitude towards the allowance of bail
pending appeal is anchored on the principle that judicial discretion particularly
with respect to extending bail should be exercised not with laxity but with caution
and only for strong reasons.[42] In fact, it has even been pointed out that grave
caution that must attend the exercise of judicial discretion in granting bail to a
convicted accused is best illustrated and exemplified in Administrative Circular No.
12-94 amending Rule 114, Section 5.[43]

Furthermore, this Court has been guided by the following:

The importance attached to conviction is due to the underlying principle that bail
should be granted only where it is uncertain whether the accused is guilty or
innocent, and therefore, where that uncertainty is removed by conviction it would,
generally speaking, be absurd to admit to bail. After a person has been tried and
convicted the presumption of innocence which may be relied upon in prior
applications is rebutted, and the burden is upon the accused to show error in the
conviction. From another point of view it may be properly argued that the
probability of ultimate punishment is so enhanced by the conviction that the
accused is much more likely to attempt to escape if liberated on bail than before
conviction.[44] (emphasis supplied)

As a matter of fact, endorsing the reasoning quoted above and relying thereon, the
Court declared in Yap v. Court of Appeals[45] (promulgated in 2001 when the
present rules were already effective), that denial of bail pending appeal is a matter
of wise discretion.

A FINAL WORD

Section 13, Article II of the Constitution provides:

SEC. 13. All persons, except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong, shall, before conviction,
be bailable by sufficient sureties, or be released on recognizance as may be
provided by law. x x x (emphasis supplied)

After conviction by the trial court, the presumption of innocence terminates and,
accordingly, the constitutional right to bail ends.[46] From then on, the grant of bail
is subject to judicial discretion. At the risk of being repetitious, such discretion must
be exercised with grave caution and only for strong reasons. Considering that the
accused was in fact convicted by the trial court, allowance of bail pending appeal
should be guided by a stringent-standards approach. This judicial disposition finds
strong support in the history and evolution of the rules on bail and the language of
Section 5, Rule 114 of the Rules of Court. It is likewise consistent with the trial
courts initial determination that the accused should be in prison. Furthermore,
letting the accused out on bail despite his conviction may destroy the deterrent
effect of our criminal laws. This is especially germane to bail pending appeal
because long delays often separate sentencing in the trial court and appellate
review. In addition, at the post-conviction stage, the accused faces a certain prison
sentence and thus may be more likely to flee regardless of bail bonds or other
release conditions. Finally, permitting bail too freely in spite of conviction invites
frivolous and time-wasting appeals which will make a mockery of our criminal justice
system and court processes.

WHEREFORE, the petition is hereby DISMISSED.

The Court of Appeals is hereby directed to resolve and decide, on the merits, the
appeal of petitioner Jose Antonio Leviste docketed as CA-G.R. CR No. 32159, with
dispatch.

Costs against petitioner.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-58509 December 7, 1982

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA

deceased, MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.

RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final
determination pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court of First Instance of
Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was
opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita
Bonilla Frias and Ephraim Bonilla on the following grounds:
(1) Appellant was estopped from claiming that the deceased left a will by failing to
produce the will within twenty days of the death of the testator as required by Rule
75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a disposition of
property after death and was not intended to take effect after death, and therefore
it was not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil.
509; and
(4 ) The deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.
The appellees likewise moved for the consolidation of the case with another case
Sp. Proc. No, 8275). Their motion was granted by the court in an order dated April 4,
1977.
On November 13, 1978, following the consolidation of the cases, the appellees
moved again to dismiss the petition for the probate of the will. They argued that:
(1) The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent
Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary evidence
unlike ordinary wills.

Upon opposition of the appellant, the motion to dismiss was denied by the court in
its order of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that the order
was contrary to law and settled pronouncements and rulings of the Supreme Court,
to which the appellant in turn filed an opposition. On July 23, 1979, the court set
aside its order of February 23, 1979 and dismissed the petition for the probate of
the will of Ricardo B. Bonilla. The court said:
... It is our considered opinion that once the original copy of the holographic will is
lost, a copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the
matter of holographic wills the law, it is reasonable to suppose, regards the
document itself as the material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed on
January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse
of more than 14 years from the time of the execution of the will to the death of the
decedent, the fact that the original of the will could not be located shows to our
mind that the decedent had discarded before his death his allegedly missing
Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of
Appeals in which it is contended that the dismissal of appellant's petition is contrary
to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground
that the appeal does not involve question of fact and alleged that the trial court
committed the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY
NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED
BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot be
found can be proved by means of a photostatic copy. Pursuant to Article 811 of the
Civil Code, probate of holographic wills is the allowance of the will by the court after
its due execution has been proved. The probate may be uncontested or not. If
uncontested, at least one Identifying witness is required and, if no witness is
available, experts may be resorted to. If contested, at least three Identifying
witnesses are required. However, if the holographic will has been lost or destroyed
and no other copy is available, the will can not be probated because the best and
only evidence is the handwriting of the testator in said will. It is necessary that
there be a comparison between sample handwritten statements of the testator and
the handwritten will. But, a photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made with the standard writings of the

testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the
execution and the contents of a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who have seen and/or read such will. The
will itself must be presented; otherwise, it shall produce no effect. The law regards
the document itself as material proof of authenticity." But, in Footnote 8 of said
decision, it says that "Perhaps it may be proved by a photographic or photostatic
copy. Even a mimeographed or carbon copy; or by other similar means, if any,
whereby the authenticity of the handwriting of the deceased may be exhibited and
tested before the probate court," Evidently, the photostatic or xerox copy of the lost
or destroyed holographic will may be admitted because then the authenticity of the
handwriting of the deceased can be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying
appellant's motion for reconsideration dated August 9, 1979, of the Order dated July
23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is
hereby SET ASIDE.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-26317

January 29, 1927

Estate of Miguel Mamuyac, deceased.

FRANCISCO GAGO, petitioner-appellant,
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.
Nicanor Tavora for appellant.
Jose Rivera for appellees.
JOHNSON, J.:
The purpose of this action was to obtain the probation of a last will and testament of
Miguel Mamuyac, who died on the 2d day of January, 1922, in the municipality of
Agoo of the Province of La Union. It appears from the record that on or about the
27th day of July, 1918, the said Miguel Mamuyac executed a last will and testament
(Exhibit A). In the month of January, 1922, the said Francisco Gago presented a
petition in the Court of First Instance of the Province of La Union for the probation of
that will. The probation of the same was opposed by Cornelio Mamuyac, Ambrosio
Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of
La Union). After hearing all of the parties the petition for the probation of said will
was denied by the Honorable C. M. Villareal on the 2d day of November, 1923, upon
the ground that the deceased had on the 16th day of April, 1919, executed a new
will and testament.

On the 21st day of February, 1925, the present action was commenced. Its purpose
was to secure the probation of the said will of the 16th day of April, 1919 (Exhibit 1).
To said petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina
Mamuyac presented their oppositions, alleging (a) that the said will is a copy of the
second will and testament executed by the said Miguel Mamuyac; (b) that the same
had been cancelled and revoked during the lifetime of Miguel Mamuyac and (c) that
the said will was not the last will and testament of the deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after
hearing the respective parties, denied the probation of said will of April 16, 1919,
upon the ground that the same had been cancelled and revoked in the year 1920.
Judge Teodoro, after examining the evidence adduced, found that the following facts
had been satisfactorily proved:
That Exhibit A is a mere carbon of its original which remained in the possession of
the deceased testator Miguel Mamuyac, who revoked it before his death as per
testimony of witness Jose Fenoy, who typed the will of the testator on April 16,
1919, and Carlos Bejar, who saw on December 30, 1920, the original Exhibit A (will
of 1919) actually cancelled by the testator Miguel Mamuyac, who assured Carlos
Bejar that inasmuch as he had sold him a house and the land where the house was
built, he had to cancel it (the will of 1919), executing thereby a new testament.
Narcisa Gago in a way corroborates the testimony of Jose Fenoy, admitting that the
will executed by the deceased (Miguel Mamuyac) in 1919 was found in the
possession of father Miguel Mamuyac. The opponents have successfully established
the fact that father Miguel Mamuyac had executed in 1920 another will. The same
Narcisa Gago, the sister of the deceased, who was living in the house with him,
when cross-examined by attorney for the opponents, testified that the original
Exhibit A could not be found. For the foregoing consideration and for the reason that
the original of Exhibit A has been cancelled by the deceased father Miguel
Mamuyac, the court disallows the probate of Exhibit A for the applicant." From that
order the petitioner appealed.
The appellant contends that the lower court committed an error in not finding from
the evidence that the will in question had been executed with all the formalities
required by the law; that the same had been revoked and cancelled in 1920 before
his death; that the said will was a mere carbon copy and that the oppositors were
not estopped from alleging that fact.
With reference to the said cancellation, it may be stated that there is positive proof,
not denied, which was accepted by the lower court, that will in question had been
cancelled in 1920. The law does not require any evidence of the revocation or
cancellation of a will to be preserved. It therefore becomes difficult at times to prove
the revocation or cancellation of wills. The fact that such cancellation or revocation
has taken place must either remain unproved of be inferred from evidence showing
that after due search the original will cannot be found. Where a will which cannot be
found is shown to have been in the possession of the testator, when last seen, the
presumption is, in the absence of other competent evidence, that the same was
cancelled or destroyed. The same presumption arises where it is shown that the

testator had ready access to the will and it cannot be found after his death. It will
not be presumed that such will has been destroyed by any other person without the
knowledge or authority of the testator. The force of the presumption of cancellation
or revocation by the testator, while varying greatly, being weak or strong according
to the circumstances, is never conclusive, but may be overcome by proof that the
will was not destroyed by the testator with intent to revoke it.
In view of the fat that the original will of 1919 could not be found after the death of
the testator Miguel Mamuyac and in view of the positive proof that the same had
been cancelled, we are forced to the conclusion that the conclusions of the lower
court are in accordance with the weight of the evidence. In a proceeding to probate
a will the burden of proofs is upon the proponent clearly to establish not only its
execution but its existence. Having proved its execution by the proponents, the
burden is on the contestant to show that it has been revoked. In a great majority of
instances in which wills are destroyed for the purpose of revoking them there is no
witness to the act of cancellation or destruction and all evidence of its cancellation
perishes with the testator. Copies of wills should be admitted by the courts with
great caution. When it is proven, however, by proper testimony that a will was
executed in duplicate and each copy was executed with all the formalities and
requirements of the law, then the duplicate may be admitted in evidence when it is
made to appear that the original has been lost and was not cancelled or destroyed
by the testator. (Borromeo vs. Casquijo, G.R. No. L-26063.)1
After a careful examination of the entire record, we are fully persuaded that the will
presented for probate had been cancelled by the testator in 1920. Therefore the
judgment appealed from is hereby affirmed. And without any finding as to costs, it is
so ordered.
Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
September 22, 1933
G.R. No. 38050
In the matter of the will of Donata Manahan. TIBURCIA MANAHAN, petitionerappellee,
vs.
ENGRACIA MANAHAN, opponent-appellant.
J. Fernando Rodrigo for appellant.
Heraclio H. del Pilar for appellee.
IMPERIAL, J.:
This is an appeal taken by the appellant herein, Engracia Manahan, from the order
of the Court of the First Instance of Bulacan dated July 1, 1932, in the matter of the

will of the deceased Donata Manahan, special proceedings No. 4162, denying her
motion for reconsideration and new trial filed on May 11, 1932.
The fact in the case are as follows:
On August 29, 1930, Tiburcia Manahan instituted special proceedings No. 4162, for
the probate of the will of the deceased Donata Manahan, who died in Bulacan,
Province of Bulacan, on August 3, 1930. The petitioner herein, niece of the testatrix,
was named the executrix in said will. The court set the date for the hearing and the
necessary notice required by law was accordingly published. On the day of the
hearing of the petition, no opposition thereto was filed and, after the evidence was
presented, the court entered the decree admitting the will to probate as prayed for.
The will was probated on September 22, 1930. The trial court appointed the herein
petitioner executrix with a bond of P1,000, and likewise appointed the committed on
claims and appraisal, whereupon the testamentary proceedings followed the usual
course. One year and seven months later, that is, on My 11, 1932, to be exact, the
appellant herein filed a motion for reconsideration and a new trial, praying that the
order admitting the will to probate be vacated and the authenticated will declared
null and void ab initio. The appellee herein, naturally filed her opposition to the
petition and, after the corresponding hearing thereof, the trial court erred its over of
denial on July 1, 1932. Engracia Manahan, under the pretext of appealing from this
last order, likewise appealed from the judgment admitting the will to probate.
In this instance, the appellant assigns seven (7) alleged errors as committed by the
trial court. Instead of discussing them one by one, we believe that, essentially, her
claim narrows down to the following: (1) That she was an interested party in the
testamentary proceedings and, as such, was entitled to and should have been
notified of the probate of the will; (2) that the court, in its order of September 22,
1930, did not really probate the will but limited itself to decreeing its authentication;
and (3) that the will is null and void ab initio on the ground that the external
formalities prescribed by the Code of Civil Procedure have not been complied with in
the execution thereof.
The appellant's first contention is obviously unfounded and untenable. She was not
entitled to notification of the probate of the will and neither had she the right to
expect it, inasmuch as she was not an interested party, not having filed an
opposition to the petition for the probate thereof. Her allegation that she had the
status of an heir, being the deceased's sister, did not confer on her the right to be
notified on the ground that the testatrix died leaving a will in which the appellant
has not been instituted heir. Furthermore, not being a forced heir, she did not
acquire any successional right.
The second contention is puerile. The court really decreed the authentication and
probate of the will in question, which is the only pronouncement required of the trial
court by the law in order that the will may be considered valid and duly executed in
accordance with the law. In the phraseology of the procedural law, there is no
essential difference between the authentication of a will and the probate thereof.
The words authentication and probate are synonymous in this case. All the law
requires is that the competent court declared that in the execution of the will the

essential external formalities have been complied with and that, in view thereof, the
document, as a will, is valid and effective in the eyes of the law.
The last contention of the appellant may be refuted merely by stating that, once a
will has been authenticated and admitted to probate, questions relative to the
validity thereof can no more be raised on appeal. The decree of probate is
conclusive with respect to the due execution thereof and it cannot impugned on any
of the grounds authorized by law, except that of fraud, in any separate or
independent action or proceedings (sec. 625, Code of Civil Procedure; Castaeda vs.
Alemany, 3 Phil., 426;Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza, 7
Phil., 347; Limjuco vs. Ganara, 11 Phil., 393; Montaano vs. Suesa, 14 Phil., 676; In
re Estate of Johnson, 39 Phil., 156; Riera vs. Palmaroli, 40 Phil., 105; Austria vs.
Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong Joc-Soy vs.
Vao, 8 Phil., 119).
But there is another reason which prevents the appellant herein from successfully
maintaining the present action and it is that inasmuch as the proceedings followed
in a testamentary case are in rem, the trial court's decree admitting the will to
probate was effective and conclusive against her, in accordance with the provisions
of section 306 of the said Code of Civil Procedure which reads as follows:
SEC. 306. EFFECT OF JUDGMENT. . . . .
1. In case of a judgment or order against a specific thing, or in respect to the
probate of a will, or the administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or relation of a particular person
the judgment or order is conclusive upon the title of the thing, the will or
administration, or the condition or relation of the person: Provided, That the probate
of a will or granting of letters of administration shall only be prima facieevidence of
the death of the testator or intestate; . . . .
On the other hand, we are at a loss to understand how it was possible for the herein
appellant to appeal from the order of the trial court denying her motion for
reconsideration and a new trial, which is interlocutory in character. In view of this
erroneous interpretation, she succeeded in appealing indirectly from the order
admitting the will to probate which was entered one year and seven months ago.
Before closing, we wish to state that it is not timely to discuss herein the validity
and sufficiency of the execution of the will in question. As we have already said, this
question can no more be raised in this case on appeal. After due hearing, the court
found that the will in question was valid and effective and the order admitting it to
probate, thus promulgated, should be accepted and respected by all. The probate of
the will in question now constitutes res judicata.
Wherefore, the appeal taken herein is hereby dismissed, with costs against the
appellant. So ordered.
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION
G.R. No. L-29300 June 21, 1978
PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ADOLFO FORTAJADA,
the deceased Pedro Gallanosa being substituted by his legal heirs, namely his
above-named widow and his children, ISIDRO GALLANOSA and LEDY GALLANOSA,
and grandchildren named IMELDA TECLA GALLANOSA and ROSARIO BRIGIDA
GALLANOSA, children of the late SIKATUNA GALLANOSA, son of Pedro D.H.
GALLONOSA, petitioners,
vs.
HON. UBALDO Y. ARCANGEL, Judge of Branch I of the Court of First Instance of
Sorsogon and FLORENTINO G. HITOSIS, CASIANO G. HITOSIS, TEOTIMO G. HITOSIS,
VICTORIO G. HITOSIS, EMILIA G. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS VDA.
DE CRUZ, JOAQUIN R. HITOSIS, FLORENTINO R. HITOSIS, VIRGINIA R. MITOSIS,
DEBORAH R. HITOSIS, EDILBERTO R. HITOSIS, LEONOR R. HITOSIS, NORMA R.
HITOSIS-VILLANUEVA, LEONCIO R. HITOSIS, minors ANGEL R. HITOSIS and RODOLFO
R. HITOSIS, represented by their legal guardian and mother LOURDES RELUCIO VDA.
DE HITOSIS, PETRONA HITOSIS-BALBIDO, MODESTO HITOSIS-GACILO, CLETO
HITOSIS, AGUSTIN HITOSIS-FORTES, TOMASA HITOSIS-BANARES VDA. DE BORRAS,
CONRADA HITOSIS-BANARES FRANCHE, RESTITUTO HITOSIS-BANARES, DAMIAN
HITOSIS-BANARES, FIDEL HITOSIS-BANARES, SUSANA HITOSIS-BANARES
RODRIGUEZ, JOSE HITOSIS, LOLITA HITOSIS-BANEGA, minors MILAGROS HITOSISBANEGA, ALICIA HITOSIS-BANEGA AND ELISA HITOSIS-BANEGA, represented by their
legal guardian and father ERNESTO BANEGA, FELICITAS HITOSIS-PENAFLOR,
GENOVEVA HITOSIS-ADRIATICO, MANUEL HITOSIS, PEDRO HITOSIS, LIBRATA
HITOSIS-BALMES, JUANITA HITOSIS-GABITO VDA. DE GABAS, MAURA HITOSISGABITO VDA. DE GANOLA and LEONA HITOSIS-GABITO GAMBA, respondents.
Haile Frivaldo for petitioners.
Joaquin R Mitosis for private respondents.

AQUINO, J.:
In this special civil action of certiorari, filed on July 29, 1968, the petitioners seek to
annul the orders of respondent Judge dated May 3 trial June 17, 1968, wherein he
reconsidered his order of January 10, 1968, dismissing, on the ground of
prescription, the complaint in Civil Case No. 2233 of the Court of First Instance of
Sorsogon.
The case involves the sixty-one parcels of land in Sorsogon left by Florentino Hitosis,
with an estimated value of P50,000, trial claims for damages exceeding one million
pesos. The undisputed facts are as follows:
1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he
was eighty years old. He died on May 26, 1939 at Irosin, Sorsogon. A childless
widower, he as survived by his brother, Leon Hitosis. His other brothers, named

Juan, Tito (Juancito), Leoncio (Aloncio) trial Apolonio and only sister, Teodora, were
all dead.
2. On June 24, 1939 a petition for the probate of his will was filed in the Court of
First Instance of Sorsogon (Special Proceeding No. 3171). The notice of hearing was
duly published. In that will, Florentino bequeathed his one-half share in the conjugal
estate to his second wife, Tecla Dollentas, and, should Tecla predecease him, as was
the case, his one-half share would be assigned to the spouses Pedro Gallanosa and
Corazon Grecia, the reason being that Pedro, Tecla's son by her first marriage, grew
up under the care of Florentino; he had treated Pedro as his foster child, and Pedro
has rendered services to Florentino and Tecla. Florentino likewise bequeathed his
separate properties consisting of three parcels of abaca land and parcel of riceland
to his protege (sasacuyang ataman), Adolfo Fortajada, a minor.
3. Opposition to the probate of the will was registered by the testator's legal heirs,
namely, his surviving brother, Leon, trial his nephews trial nieces. After a hearing,
wherein the oppositors did not present any evidence in support of their opposition,
Judge Pablo S. Rivera, in his decision of October 27, 1939, admitted the will to
probate and appointed Gallanosa as executor. Judge Rivera specifically found that
the testator executed his last will "gozando de buena salud y facultades mentales y
no obrando en virtud de amenaza, fraude o influencia indebida."
4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses trial Adolfo
Fortajada, submitted a project of partition covering sixty-one parcels of land located
in various parts of Sorsogon, large cattle trial several pieces of personal property
which were distributed in accordance with Florentino's will. The heirs assumed the
obligations of the estate amounting to P7,129.27 in the portion of P2,376.42 for
Adolfo Fortajada and P4,752.85 for the Gallanosa spouses. The project of partition
was approved by Judge Doroteo Amador in his order of March 13, 1943, thus
confirming the heirs' possession of their respective shares. The testator's legal heirs
did not appeal from the decree of probate trial from the order of partition trial
distribution.
5. On February 20, 1952, Leon Hitosis trial the heirs of Florentino's deceased
brothers trial sisters instituted an action in the Court of First Instance of Sorsogon
against Pedro Gallanosa for the recovery of the said sixty-one parcels of land. They
alleged that they, by themselves or through their predecessors-in-interest, had been
in continuous possession of those lands en concepto de dueo trial that Gallanosa
entered those lands in 1951 trial asserted ownership over the lands. They prayed
that they be declared the owners of the lands trial that they be restored to the
possession thereof. They also claimed damages (Civil Case No. 696).
6. Gallanosa moved to dismiss the above complaint for lack of cause of action trial
on the ground of bar by the prior judgment in the probate proceeding. Judge
Anatolio C. Maalac dismiss the complaint on the ground of res judicata in his order
of August 14, 1952 wherein he said:
It also appears that the plaintiffs and/or their predecessors-in-interest had
intervened in the testate proceedings in Civil Case No. 3171 of this Court for- the

purpose of contesting the probate of the will of (the) late Florentino Hitosis; trial had
their opposition prospered trial the will denied of probate, the proceedings would
have been converted into one of intestacy (Art. 960 Civil Code) and the settlement
of the estate of the said deceased would have been made in accordance with the
provisions of law governing legal or intestate succession ... , in which case the said
plaintiffs, as the nearest of kin or legal heirs of said Florentino Mitosis, would have
succeeded to the ownership and possession of the 61 parcels of land in question
forming part of his estate (art. 1003, Civil Code).
However, the derision of the Court was adverse to them, when it their opposition
trial ordered the probate of his will. From this decision (Annex K) legalizing the said
will, the oppositors did not file any appeal within the period fixed by law, despite the
fact that they were duly notified thereof, so that the said decision had become final
trial it now constitutes a bar to any action that the plaintiffs may institute for the
purpose of a redetermination of their rights to inherit the properties of the late
Florentino Hitosis.
In other words, the said decision of this Court in Civil Case special ) No. 3171, in
which the herein plaintiffs or their predecessors-in-interest had intervened as
parties oppositors, constitutes a final judicial determination of the issue that the
said plaintiffs, as ordinary heirs, have no legal rights to succeed to any of the
properties of the late Florentino Hitosis; consequently, their present claim to the
ownership trial possession of the 61 parcels of land in question is without any legal
merit or basis.
7. The plaintiffs did not appeal from that order of dismissal which should have set
the matter at rest. But the same plaintiffs or oppositors to the probate of the will,
trial their heirs, with a persistence befitting a more meritorious case, filed on
September 21, 1967, or fifteen years after the dismissal of Civil Case No. 696 trial
twenty-eight years after the probate of the will another action in the same court
against the Gallanosa spouses trial Adolfo Fortajada for the "annulment" of the will
of Florentino Hitosis trial and for the recovery of the same sixty-one parcels of land.
They prayed for the appointment of a receiver.
8. As basis of their complaint, they alleged that the Gallanosa spouses, through
fraud trial deceit, caused the execution trial simulation of the document purporting
to be the last will trial testament of Florentino Hitosis. While in their 1952 complaint
the game plaintiffs alleged that they were in possession of the lands in question, in
their 1967 complaint they admitted that since 1939, or from the death of Florentino
Hitosis, the defendants (now the petitioners) have been in possession of the
disputed lands (Par. XIV of the complaint, p. 70, Rollo in Civil Case No. 555, Gubat
Branch, which was transferred to Branch I in Sorsogon town where Special
Proceeding No. 3171 trial Civil Case No. 696 were decided trial which was redocketed as Civil Case No. 2233).
9. As already stated, that 1967 complaint, upon motion of the defendants, now the
petitioners, was dismissed by respondent Judge. The plaintiffs filed a motion for
reconsideration Respondent Judge. granted it trial set aside the order of dismissal.

He denied defendants' motion for the reconsideration of his order setting aside that
dismissal order.
The petitioners or the defendants below contend in this certiorari case that the
lower court has no jurisdiction to set aside the 1939 decree of probate trial the 1952
order of dismissal in Civil Case No. 696 trial that it acted with grave abuse of
discretion in not dismissing private respondents' 1967 complaint.
The issue is whether, under the facts set forth above, the private respondents have
a cause of action the "annulment" of the will of Florentino Hitosis trial for the
recovery of the sixty-one parcels of land adjudicated under that will to the
petitioners.
We hold that the lower court committed a grave abuse of discretion in
reconsideration its order of dismissal trial in ignoring the 1939 testamentary case
trial the 1952 Civil Case No. 696 which is the same as the instant 1967 case.
A rudimentary knowledge of substantive law trial procedure is sufficient for an
ordinary lawyer to conclude upon a causal perusal of the 1967 complaint that it is
baseless trial unwarranted.
What the plaintiffs seek is the "annulment" of a last will trial testament duly
probated in 1939 by the lower court itself. The proceeding is coupled with an action
to recover the lands adjudicated to the defendants by the same court in 1943 by
virtue of the probated will, which action is a resuscitation of The complaint of the
same parties that the same court dismissed in 1952.
It is evident from the allegations of the complaint trial from defendants' motion to
dismiss that plaintiffs' 1967 action is barred by res judicata, a double-barrelled
defense, trial by prescription, acquisitive trial extinctive, or by what are known in
the jus civile trial the jus gentium as usucapio, longi temporis
possesio and praescriptio (See Ramos vs. Ramos, L-19872, December 3, 1974, 61
SCRA 284).
Our procedural law does not sanction an action for the "annulment" of a will. In
order that a will may take effect, it has to be probated, legalized or allowed in the
proper testamentary proceeding. The probate of the will is mandatory (Art. 838,
Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules of Court; Guevara vs.
Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249).
The testamentary proceeding is a special proceeding for the settlement of the
testator's estate. A special proceeding is distinct trial different from an ordinary
action (Secs. 1 trial 2, Rule 2 trial sec. 1, Rule 72, Rules of Court).
We say that the defense of res judicata, as a ground for the dismissal of plaintiffs'
1967 complaint, is a two-pronged defense because (1) the 1939 trial 1943 decrees
of probate trial distribution in Special Proceeding No. 3171 trial (2) the 1952 order of
dismissal in Civil Case No. 696 of the lower court constitute bars by former
judgment, Rule 39 of the Rules of Court provides:

SEC. 49. Effect of judgments. The effect of a judgment or final order rendered by
a court or judge of the Philippines, having jurisdiction to pronounce the judgment or
order, may be as follows:
(a) In case of a judgment or order against a specific thing, or in respect to the
probate of a will or the administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or status of a particular person
or his relationship to another, the judgment or order is conclusive upon the title to
the thing the will or administration, or the condition, status or relationship of the
person; however, the probate of a will or granting of letters of administration shall
only be prima facie evidence of the death of the testator or intestate;
(b) In other cases the judgment or order is, with respect to the matter directly
adjudged or as to any other matter that could have been raised in relation thereto,
conclusive between the parties trial their successors in interest by title subsequent
to the commencement of the action or special proceeding, litigating of the same
thing trial under the same title trial in the same capacity;
(c) In any other litigation between the same parties or their successors in interest,
that only is deemed to have been adjudged in a former judgment which appears
upon its face to have been so adjudged, or which was actually trial necessarily
included therein or necessary thereto.
The 1939 decree of probate is conclusive as to the due execution or formal validity
of the will (Sec. 625, Act 190, sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court;
Last par. of art. 838, Civil Code).
That means that the testator was of sound trial disposing mind at the time when he
executed the will and was not acting under duress, menace, fraud, or undue
influence; that the will was signed by him in the presence of the required number of
witnesses, and that the will is genuine trial is not a forgery. Accordingly, these facts
cannot again be questioned in a subsequent proceeding, not even in a criminal
action for the forgery of the will. (3 Moran's Comments on the Rules of Court, 1970
Edition, p. 395; Manahan vs. Manahan, 58 Phil. 448).
After the finality of the allowance of a will, the issue as to the voluntariness of its
execution cannot be raised anymore (Santos vs. De Buenaventura, L-22797,
September 22, 1966, 18 SCRA 47).
In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was not
entertained after the decree of probate had become final. That case is summarized
as follows:
Wills; Probate; Alledged Fraudulent Will; Appeal. V. died. His will was admitted to
probate without objection. No appeal was taken from said order. It was admitted
that due trial legal notice had been given to all parties. Fifteen months after the
date of said order, a motion was presented in the lower court to have said will
declared null and void, for the reason that fraud had been practised upon the
deceased in the making of his will.

Held: That under section 625 of Act No. 190, the only time given parties who are
displeased with the order admitting to probate a will, for an appeal is the time given
for appeals in ordinary actions; but without deciding whether or not an order
admitting a will to probate will be opened for fraud, after the time allowed for an
appeal has expired, when no appeal is taken from an order probating a will, the
heirs can not, in subsequent litigation in the same proceedings, raise questions
relating to its due execution. The probate of a will is conclusive as to its due
execution trial as to the testamentary capacity of The testator. (See Austria vs.
Heirs of Ventenilla. 99 Phil. 1069).
On the other hand, the 1943 decree of adjudication rendered by the trial court in
the testate proceeding for the settlement of the estate of Florentino Hitosis, having
been rendered in a proceeding in rem, is under the abovequoted section 49(a),
binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of
Johnson, 39 Phil. 156; De la Cerna vs. Potot, 120 Phil. 1361, 1364; McMaster vs.
Hentry Reissmann & Co., 68 Phil. 142).
It is not only the 1939 probate proceeding that can be interposed as res
judicata with respect to private respondents' complaint, The 1952 order of dismissal
rendered by Judge Maalac in Civil Case No. 696, a judgment in personam was an
adjudication on the merits (Sec. 4, Rule 30, old Rules of Court). It constitutes a bar
by former judgment under the aforequoted section 49(b) (Anticamara vs. Ong, L29689. April 14, 1978).
The plaintiffs or private respondents did not even bother to ask for the annulment of
the testamentary proceeding trial the proceeding in Civil Case No. 696. Obviously,
they realized that the final adjudications in those cases have the binding force of res
judicata and that there is no ground, nor is it timely, to ask for the nullification of
the final orders trial judgments in those two cases.
It is a fundamental concept in the organization of every jural system, a principle of
public policy, that, at the risk of occasional errors, judgments of courts should
become final at some definite date fixed by law. Interest rei publicae ut finis sit
litum. "The very object for which the courts were constituted was to put an end to
controversies." (Dy Cay vs. Crossfield and O'Brien, 38 Phil. 521: Pealosa vs. Tuason,
22 Phil, 303; De la Cerna vs. Potot, supra).
After the period for seeking relief from a final order or judgment under Rule 38 of
the Rules of Court has expired, a final judgment or order can be set aside only on
the grounds of (a) lack of jurisdiction or lack of due process of law or (b) that the
judgment was obtained by means of extrinsic or collateral fraud. In the latter case,
the period for annulling the judgment is four years from the discovery of the fraud
(2 Moran's Comments on the Rules of Court, 1970 Edition, pp. 245-246; Mauricio vs.
Villanueva, 106 Phil. 1159).
To hurdle over the obstacle of prescription, the trial court, naively adopting the
theory of plaintiffs' counsel, held that the action for the recovery of the lands had
not prescribed because the rule in article 1410 of the Civil Code, that "the action or

defense for the declaration of the inexistence of a contract does not prescribe",
applies to wills.
That ruling is a glaring error. Article 1410 cannot possibly apply to last wills trial
testaments. The trial court trial plaintiffs' counsel relied upon the case of Dingle vs.
Guillermo, 48 0. G. 4410, allegedly decided by this Court, which cited the ruling in
Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time cannot give efficacy to
voidcontracts, a ruling elevated to the category of a codal provision in article 1410.
The Dingle case was decided by the Court of Appeals. Even the trial court did not
take pains to verify the misrepresentation of plaintiffs' counsel that the Dingle case
was decided by this Court. An elementary knowledge of civil law could have alerted
the trial court to the egregious error of plaintiffs' counsel in arguing that article 1410
applies to wills.
WHEREFORE, the lower court's orders of May 3 trial June 17, 1968 are reversed trial
set aside trial its order of dismissal dated January 10, 1968 is affirmed. Costs
against the private respondents.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio, and Santos, JJ., concur.
Concepcion, Jr., J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. L-53546 June 25, 1992

THE HEIRS OF THE LATE JESUS FRAN and CARMEN MEJIA RODRIGUEZ, petitioners,
vs.
HON. BERNARDO LL. SALAS, CONCEPCION MEJIA ESPINA and MARIA MEJIA
GANDIONGCO, respondents.

DAVIDE, JR., J.:

This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of
Court, with prayer for a writ of preliminary injunction, to annul and set aside, for
having been issued without jurisdiction or with grave abuse of discretion amounting
to lack of jurisdiction, the following Orders of the respondent Judge in Special
Proceedings No. 3309-R of Branch VIII of the then Court of First Instance (now
Regional Trial Court) of Cebu entitled "In The Matter of the Petition for Probate of the
Last Will and Testament of Remedios Mejia Vda. de Tiosejo:"

1. The Order of 26 February 1980 setting for hearing private respondents' Omnibus
Motion for Reconsideration 1 which was filed six (6) years, ten (10) months and
eighteen (18) days after the probate judgment was rendered and six (6) years and
twenty-one (21) days after the testate proceedings was declared closed and
terminated; and
2. The Order of 2 June 1980 finding the signature of the testatrix in the last will and
testament to be a forgery and (a) declaring the testatrix as having died intestate;
(b) declaring the testamentary dispositions in said last will and testament as null
and void; (c) setting aside the order dated 10 September 1973 declaring the testate
proceedings closed and terminated; (d) revoking the appointment of Jesus Fran as
executor while appointing respondent Concepcion M. Espina as administratrix; and
(e) ordering the conversion of the proceedings to one of intestacy. 2 This Order
effectively annulled and set aside the probate judgment of 13 November 1972.
Petitioners would also have this Court nullify all other actions of respondent Judge in
said Sp. Proc. No. 3309-R; restore the status quo therein prior to the issuance of the
foregoing orders; and permanently enjoin respondent Judge from reopening said
proceedings.
The following facts are not controverted:
Remedios M. Vda. de Tiosejo, a widow, died on 10 July 1972 in Cebu City with
neither descendants nor ascendants; she left real and personal properties located in
Cebu City, Ormoc City and Puerto Bello, Merida, Leyte. Earlier, on 23 April 1972, she
executed a last will and testament 3 wherein she bequeathed to her collateral
relatives (brothers, sisters, nephews and nieces) all her properties, and designated
Rosario Tan or, upon the latter's death, Jesus Fran, as executor to serve without
bond. Instrumental witnesses to the will were Nazario Pacquiao, Alcio Demerre and
Primo Miro.
On 15 July 1972, Jesus Fran filed a petition with the Court of First instance of Cebu
for the probate of Remedios' last will and testament. 4 The case was raffled to the
original Branch VIII thereof which was then presided over by Judge Antonio D. Cinco.
The petition alleged that Rosario Tan is not physically well and, therefore, will not be
assuming the position of administratrix. Tan signed a waiver in favor of Jesus Fran
on the third page of the said petition. The probate court issued an order setting the
petition for hearing on 18 September 1972. Meanwhile, on 31 July 1972, the court
appointed petitioner Jesus Fran as special administrator.
On 10 August 1972, the private respondents, who are sisters of the deceased, filed
a manifestation 5 alleging that they needed time to study the petition because
some heirs who are entitled to receive their respective shares have been
intentionally omitted therein, and praying that they be given ample time to file their
opposition, after which the hearing be reset to another date.
Private respondents did not file any opposition. Instead, they filed on 18 September
1972 a "Withdrawal of Opposition to the Allowance of Probate (sic) of the Will"
wherein they expressly manifested, with their "full knowledge and consent that . . .

they have no objection of (sic) the allowance of the . . . will of the late Remedios
Mejia Vda. de Tiosejo," and that they have "no objection to the issuance of letters
testamentary in favor of petitioner, Dr. Jesus Fran." 6
No other party filed an opposition. The petition thus became uncontested.
During the initial hearing, petitioner Fran introduced the requisite evidence to
establish the jurisdictional facts.
Upon a determination that the court had duly acquired jurisdiction over the
uncontested petition for probate, Judge Cinco issued in open court an order
directing counsel for petitioner to present evidence proving the authenticity and due
execution of the will before the Clerk of Court who was, accordingly, so authorized
to receive the same.
The reception of evidence by the Clerk of Court immediately followed. Petitioner
Fran's first witness was Atty. Nazario R. Pacquiao, one at the subscribing witnesses
to the will. The original of the will, marked as Exhibit "F", and its English translation,
marked as Exhibit "F-Translation", were submitted to the Clerk of Court. 7 Petitioner
Fran was the second and also the last witness. He enumerated the names of the
surviving heirs of the deceased.
On 13 November 1972, the probate court rendered a decision admitting to probate
the will of the testatrix, Remedios Mejia Vda. de Tiosejo, and appointing petitioner
Fran as executor thereof. 8 The dispositive portion of the decision reads:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered declaring the
last will and testament of the deceased Remedios Mejia Vda. de Tiosejo marked as
Exhibit F as admitted to probate. Dr. Jesus Fran is hereby appointed as executor of
the will. Let letters testamentary be issued in favor of Dr. Jesus Fran. The special
administrator's bond put up by Dr. Jesus Fran as special administrator duly approved
by this Court shall serve and be considered as the executor's bond considering that
the special administrator and executor are one and the same person.
The requisite notice to creditors was issued, but despite the expiration of the period
therein fixed, no claim was presented against the estate.
On 4 January 1973, petitioner Fran filed an Inventory of the Estate; 9 copies thereof
were furnished each of the private respondents.
Subsequently, a Project of Partition based on the dispositions made in the will and
signed by all the devisees and legatees, with the exception of Luis Fran, Remedios
C. Mejia and respondent Concepcion M. Espina, was submitted by the executor for
the court's approval. 10 Said legatees and devisees submitted certifications wherein
they admit receipt of a copy of the Project of Partition together with the notice of
hearing, and state that they had no objection to its approval. 11
The notice of hearing referred to in these certifications is the 6 August 1973 notice
issued by the Clerk of Court setting the hearing on the Project of Partition for 29
August 1973. 12

After the hearing on the Project of Partition, the court issued its Order of 10
September 1973 13 approving the same, declaring the parties therein as the only
heirs entitled to the estate of Remedios Mejia Vda. de Tiosejo, directing the
administrator to deliver to the said parties their respective shares and decreeing the
proceedings closed. The dispositive portion thereof reads:
WHEREFORE, the signers (sic) to the project of partition are declared the only, heirs
entitled to the estate; the project of partition submitted is ordered approved and the
administrator is ordered to deliver to each one of them their respective aliquot parts
as distributed in the said project of partition. It is understood that if there are
expenses incurred or to be incurred as expenses of partition, Section 3 of Rule 90
shall be followed.
Let this proceedings be now declared closed.
SO ORDERED.
Thereafter, the aforesaid Branch VIII of the Court of First Instance of Cebu was
converted to a Juvenile and Domestic Relations Court. On November 1978, by virtue
of Presidential Decree No. 1439, Branch XVII (Davao City) of the Court of First
Instance of Cebu, presided over by herein respondent Judge, was officially
transferred to Cebu City and renumbered as Branch VIII.
On 1 October 1979, private respondents filed with the new Branch VIII an Omnibus
Motion for Reconsideration of the probate judgment of 13 November 1972 and the
Order of partition of 10 September 1973, in said motion, they ask the court to
declare the proceedings still open and admit their opposition to the allowance of the
will, 14 which they filed on 1 October 1979. They allege that: (a) they were not
furnished with a copy of the will; (b) the will is a forgery; (c) they were not notified
of any resolution or order on their manifestation requesting time within which to file
their opposition, or of the order authorizing the clerk of court to receive the
evidence for the petitioner, or of the order closing the proceedings; (d) the
reception of evidence by the clerk of court was void per the ruling in Lim Tanhu vs.
Ramolete; 15 (e) the project of partition contains no notice of hearing and they were
not notified thereof; (f) the petitioner signed the project of partition as administrator
and not as executor, thereby proving that the decedent died intestate; (g) the
petitioner did not submit any accounting as required by law; and (h) the petitioner
never distributed the estate to the devisees and legatees.
In a detailed opposition 16 to the above Omnibus Motion for Reconsideration,
petitioner Fran refuted all the protestations of private respondents. Among other
reasons, he stresses therein that: (a) private respondents are in estoppel to
question the will because they filed their Withdrawal Of Opposition To The Allowance
of Will which states that after thoroughly studying the petition, to which was
attached a copy of the English translation of the will, they have no objection to its
allowance; the order directing the clerk of court to receive the evidence was
dictated in open court in the presence of private respondents; private respondent
Maria M. Gandiongco signed the Project of Partition and private respondent
Concepcion M. Espina submitted a certification stating therein that she received the

notice of hearing therefor and has no objection to its approval; (b) except for some
properties, either covered by a usufruct under the will or agreed upon by the parties
to be held in common by reason of its special circumstance, there was an actual
distribution of the estate in accordance with the Project of Partition; insofar as
private respondents are concerned, they not only received their respective shares,
they even purchased the shares of the other devisees. To top it all, private
respondents' children, namely Rodrigo M. Gandiongco, Jr. and Victor Espina,
mortgaged their respective shares in favor of a bank
Notwithstanding petitioners' objections, respondent Judge issued on 26 February
1980 an Order setting for hearing the said Omnibus Motion for Reconsideration on 8
April 1980 so that "the witnesses and the exhibits (may be) properly ventilated." 17
On 25 March 1980, petitioners filed a Motion to Dismiss the Omnibus and to
Reconsider the 26 February 1980 Order setting it for hearing on 17 April
1980, 18 but the respondent Judge prematurely denied it for lack of merit in his
Order of 31 March 1980. 19
Consequently, on 8 April 1980, the instant petition was filed challenging the
jurisdiction of the lower court in taking cognizance of the Omnibus Motion for
Reconsideration considering that the probate judgment and the order approving the
Project of Partition and terminating the proceedings had long become final and had
in fact been executed. Private respondents had long lost their right to appeal
therefrom. The Omnibus Motion for Reconsideration cannot likewise be treated as a
petition for relief from judgment for under Rule 38 of the Revised Rules of Court, the
same must be filed within sixty (60) days from receipt of notice of the
judgment/order and within six (6) months from the date of said judgment.
Therefore, this remedy can no longer be availed of.
On 8 April 1980, the date the instant petition was filed, respondent Judge proceeded
with the hearing of the Omnibus Motion for Reconsideration. He received the
testimonies of private respondents and one Romeo O. Varena, an alleged
handwriting expert from the Philippine Constabulary, who averred that the signature
of the testatrix on the will is a forgery. The respondent Judge likewise issued an
Order on the same date stating that unless he received a restraining order from this
Court within twenty (20) days therefrom, he will reopen Sp. Proc. No. 3309-R.
On 14 April 1980, petitioners filed a Supplemental Petition asking this Court to
restrain respondent Judge from reopening the case. 20
In their voluminous Comments and Opposition to the petition and Supplemental
Petition, 21 private respondents not only amplify in great detail the grounds raised
in their Omnibus Motion for Reconsideration, they also squarely raise for the first
time the following issues.
(a) The probate court never acquired jurisdiction over the case since petitioner Jesus
Fran failed to submit to the court the original of the will.

(b) They were deprived of the opportunity to examine the will as petitioner Jesus
Fran did not attach it to the petition; what was attached was only the English
translation of the will.
(c) Even assuming that the probate judge could validly delegate the reception of
evidence to the Clerk of Court, the proceeding before the latter would still be void
as he failed to take an oath of office before entering upon his duties as
commissioner and failed to render a report on the matters submitted to him.
(d) Respondent Maria M. Vda. de Gandiongco was defrauded into (sic) signing the
Project of Partition and respondent Concepcion M. Espina, her certification, when
they were misled by petitioner Fran into believing that the Agreement of Petition to
be submitted to the court is the Extra Judicial Partition they signed on 7 May 1973.
(e) Petitioner Fran is guilty of fraud in urdervaluing the estate of the late Remedios
M. Vda. de Tiosejo by reporting properties worth only P400,000.00 when in truth and
in fact the estate has an aggregate value of P2,094,333.00.
In the Resolution dated 2 June 1980, We issued a restraining order enjoining
respondent Judge from reopening Sp. Proc. No. 3309-R. 22
However, on the same date, before the restraining order was served on him;
respondent Judge issued the impugned order declaring the testamentary
dispositions of the will void, finding the signature of the late Remedios M. Vda. de
Tiosejo to be a forgery, decreeing the reopening of Sp. Proc. No. 3309-R and
converting the same into an intestate proceeding. 23
Hence, on 6 June 1980, petitioners filed their Second Supplemental
Petition 24 asking this Court to declare as null and void the Order of 2 June 1980
and, pending such declaration, to restrain respondent Judge from enforcing the
same. Private respondents filed their Comment and Opposition to the Second
Supplemental Petition on 9 July 1980.
Thereafter, as mandated in the resolution of 30 June 1980, 25 this Court gave due
course to this case and required the parties to file their respective Memoranda,
which private respondents complied with on 16 August 1980; 26 petitioners filed
theirs on 27 August 1980. 27 Consequently, the parties continued to file several
pleadings reiterating substantially the same allegations and arguments earlier
submitted to this Court.
On 22 March 1984, counsel for petitioners filed a manifestation informing this Court
of the death of petitioner Fran on 29 February 1984 and enumerating therein his
surviving heirs. On 2 April 1984, this Court resolved to have said heirs substitute
him in this case.
Over a year later, respondent Maria M. Vda. de Gandiongco filed an
affidavit, 28 sworn to before the acting Clerk of Court of the Regional Trial Court in
Cebu City, disclosing the following material facts: (a) she signed the Omnibus
Motion for Reconsideration dated 1 October 1979 without knowing or reading the
contents thereof; (b) she saw the will of the late Remedios M. Vda. de Tiosejo

written in the Cebuano dialect after the same was executed by the latter; the said
will bearing the authentic signature of Remedios was the very one presented to the
probate court by petitioner's counsel; (c) she received the notice of hearing of the
petition for probate and because she was convinced that the signature of the
testatrix was genuine, she, together with Concepcion M. Espina, withdrew her
opposition; (d) she received her share of the estate of the late Remedios M. Vda. de
Tiosejo which was distributed in accordance with the provisions of the latter's will;
and (e) she did not authorize Atty. Numeriano Estenzo or other lawyers to present a
motion to this Court after 25 February 1981 when Estenzo withdrew as counsel for
private respondents. She then asks this Court to consider as withdrawn her
Opposition to the Allowance of the Will, her participation in the Omnibus Motion for
Reconsideration and her Opposition to this petition.
Due to this development, We required private respondent Concepcion M. Espina to
comment on the affidavit of private respondent Maria M. Vda. de Gandiongco.
On 17 August 1985, private respondents filed a joint manifestation 29 wherein they
claim that Maria M. Vda. de Gandiongco does not remember, executing the affidavit.
A few weeks before the affidavit was filed, particularly on 17 June 1985, Maria M.
Vda. de Gandiongco was confined in the hospital; she could not recall having
signed, during this period, any affidavit or recognized her sisters and other relatives.
On 19 September 1985, respondent Maria M. Vda. de Gandiongco, through special
counsel, filed a Manifestation/Motion with a second Affidavit attached
thereto 30 confessing that she signed the Joint Manifestation dated 16 August 1985
"without knowing or being informed of its contents, and only upon Mrs. Concepcion
Espina's request." She reiterated her desire to withdraw from the Omnibus Motion
for Reconsideration filed in Sp. Proc. No, 3309-R as well as from the instant petition.
Despite the valiant attempt of private respondent Concepcion M. Espina to influence
and control the action of Maria Gandiongco, there is nothing in the records that
would cast any doubt on the irrevocability of the latter's decision to withdraw her
participation in the Omnibus Motion for Reconsideration and Opposition to this case.
That decision, however, is not a ground for dropping her as a private respondent as
the respondent Judge had already issued the abovementioned Order of 2 June 1980.
The petition and the supplemental petitions are impressed with merit.
We do not hesitate to rule that the respondent Judge committed grave abuse of
discretion amounting to lack of jurisdiction when he granted the Omnibus Motion for
Reconsideration and thereafter set aside the probate judgment of 13 November
1972 in Sp. Proc. No. 3309-R, declared the subject will of the testatrix a forgery,
nullified the testamentary dispositions therein and ordered the conversion of the
testate proceedings into one of intestacy.
It is not disputed that private respondents filed on the day of the initial hearing of
the petition their "Withdrawal of Opposition To Allowance of Probate (sic) Will"
wherein they unequivocally state that they have no objection to the allowance of
the will. For all legal intents and purposes, they became proponents of the same.

After the probate court rendered its decision on 13 November 1972, and there
having been no claim presented despite publication of notice to creditors, petitioner
Fran submitted a Project of Partition which private respondent Maria M. Vda. de
Gandiongco voluntarily signed and to which private respondent Espina expressed
her conformity through a certification filed with the probate court. Assuming for the
sake of argument that private respondents did not receive a formal notice of the
decision as they claim in their Omnibus Motion for Reconsideration, these acts
nevertheless constitute indubitable proof of their prior actual knowledge of the
same. A formal notice would have been an idle ceremony. In testate proceedings, a
decision logically precedes the project of partition, which is normally an
implementation of the will and is among the last operative acts to terminate the
proceedings. If private respondents did not have actual knowledge of the decision,
they should have desisted from performing the above acts and instead demanded
from petitioner Fran the fulfillment of his alleged promise to show them the will. The
same conclusion refutes and defeats the plea that they were not notified of the
order authorizing the Clerk of Court to receive the evidence and that the Clerk of
Court did not notify them of the date of the reception of evidence. Besides, such
plea must fail because private respondents were present when the court dictated
the said order.
Neither do We give any weight to the contention that the reception of evidence by
the Clerk of Court is null and void per the doctrine laid, down in Lim Tanhu vs.
Ramolete. 31 In the first place, Lim Tanhu was decided on 29 August 1975, nearly
four (4) years after the probate court authorized the Clerk of Court to receive the
evidence for the petitioner in this case. A month prior to Lim Tanhu, or on 30 July
1975, this Court, in Laluan vs. Malpaya, 32 recognized and upheld the practice of
delegating the reception of evidence to Clerks of Court. Thus:
No provision of law or principle of public policy prohibits a court from authorizing its
clerk of court to receive the evidence of a party litigant. After all, the reception of
evidence by the clerk of court constitutes but a ministerial task the taking down
of the testimony of the witnesses and the marking of the pieces of documentary
evidence, if any, adduced by the party present. This task of receiving evidence
precludes, on the part of the clerk of court the exercise of judicial discretion usually
called for when the other party who is present objects to questions propounded and
to the admission of the documentary evidence proffered. 33 More importantly, the
duty to render judgment on the merits of the case still rests with the judge who is
obliged to personally and directly prepare the decision based upon the evidence
reported. 34
But where the proceedings before the clerk of court and the concomitant result
thereof, i.e., the judgment rendered by the court based on the evidence presented
in such limited proceedings, prejudice the substantial rights of the aggrieved party,
then there exists, sufficient justification to grant the latter complete opportunity to
thresh out his case in court. 35
Monserrate vs. Court of Appeals, 36 decided on 29 September 1989, reiterated this
rule. Lim Tanhu then cannot be used as authority to nullify the order of the probate

court authorizing the Clerk of Court to receive the evidence for the rule is settled
that "when a doctrine of this Court is overruled and a different view is adopted, the
new doctrine should be applied prospectively, and should not apply to parties who
had relied on the old doctrine and acted on the faith thereof." 37 It may also be
emphasized in this connection that Lim Tanhu did not live long; it was subsequently
overruled in Gochangco vs. Court of First Instance of Negros Occidental, 38 wherein
this Court, en banc, through Justice, now Chief Justice, Andres R. Narvasa, in
reference to what the trial court termed as "the doctrinal rule laid down in the
recent case of Lim Tan Hu (sic) vs. Ramolete," ruled:
Now, that declaration does not reflect long observed and established judicial
practice with respect to default cases. It is not quite consistent, too, with the several
explicitly authorized instances under the Rules where the function of receiving
evidence and even of making recommendatory findings of facts on the basis thereof
may be delegated to commissioners, inclusive of the Clerk of Court. These instances
are set out in Rule 33, . . . ; Rule 67 and 69, . . . ; Rule 86, . . . ; Rule 136, . . . . In all
these instances, the competence of the clerk of court is assumed. Indeed, there
would seem, to be sure, nothing intrinsically wrong in allowing presentation of
evidence ex parte before a Clerk of Court. Such a procedure certainly does not
foreclose relief to the party adversely affected who, for valid cause and upon
appropriate and seasonable application, may bring about the undoing thereof or the
elimination of prejudice thereby caused to him; and it is, after all, the Court itself
which is duty bound and has the ultimate responsibility to pass upon the evidence
received in this manner, discarding in the process such proofs as are incompetent
and then declare what facts have thereby been established. In considering and
analyzing the evidence preparatory to rendition of judgment on the merits, it may
not unreasonably be assumed that any serious error in the ex-parte presentation of
evidence, prejudicial to any absent party, will be detected and duly remedied by the
Court, and/or may always, in any event, be drawn to its attention by any interested
party.
xxx xxx xxx
It was therefore error for the Court a quo to have declared the judgment by default
to be fatally flawed by the fact that the plaintiff's evidence had been received not
by the Judge himself but by the clerk of court.
The alternative claim that the proceedings before the Clerk of Court were likewise
void because said official did not take an oath is likewise untenable. The Clerk of
Court acted as such when he performed the delegated task of receiving evidence. It
was not necessary for him to take an oath for that purpose; he was bound by his
oath of office as a Clerk of Court. Private respondents are obviously of the
impression that by the delegation of the reception of evidence to the Clerk of Court,
the latter became a commissioner as defined under Rule 33 of the Rules of Court
entitled Trial by Commissioner. This is not correct; as this Court said inLaluan:
The provisions of Rule 33 of the Rules of Court invoked by both parties properly
relate to the reference by a court of any or all of the issues in a case to a person so
commissioned to act or report thereon. These provisions explicitly spell out the rules

governing the conduct of the court, the commissioner, and the parties before,
during, and after the reference proceedings. Compliance with these rules of conduct
becomes imperative only when the court formally orders a reference of the case to
a commissioner. Strictly speaking then, the provisions of Rule 33 find no application
to the case at bar where the court a quo merely directed the clerk of court to take
down the testimony of the witnesses presented and to mark the documentary
evidence proferred on a date previously set for hearing.
Belatedly realizing the absence of substance of the above grounds, private
respondents now claim in their Comments to the Petition and the Supplemental
Petition that the trial court never acquired jurisdiction over the petition because
only the English translation of the will and not a copy of the same was
attached to the petition; the will was not even submitted to the court for their
examination within twenty (20) days after the death of the testatrix; and that there
was fraud in the procurement of the probate judgment principally because they
were not given any chance to examine the signature of the testatrix and were
misled into signing the withdrawal of their opposition on the assurance of petitioner
Fran and their sister, Rosario M. Tan, that the will would be shown to them during
the trial. These two grounds easily serve as the bases for the postulation that the
decision is null and void and so, therefore, their omnibus motion became all the
more timely and proper.
The contentions do not impress this Court.
In Santos vs. Castillo 39 and Salazar vs. Court of First Instance of
Laguna, 40 decided six (6) months apart in 1937, this Court already ruled that it is
not necessary that the original of the will be attached to the petition. In the first, it
ruled: "The original of said document [the will] must be presented or sufficient
reasons given to justify the nonpresentation of said original and the acceptance of
the copy or duplicate thereof." 41 In the second case, this Court was more emphatic
in holding that:
The law is silent as to the specific manner of bringing the jurisdictional allegations
before the court, but practice and jurisprudence have established that they should
be made in the form of an application and filed with the original of the will attached
thereto. It has been the practice in some courts to permit attachment of a mere
copy of the will to the application, without prejudice to producing the original
thereof at the hearing or when the court so requires. This precaution has been
adopted by some attorneys to forestall its disappearance, which has taken place in
certain cases. 42
That the annexing of the original will to the petition is not a jurisdictional
requirement is clearly evident in Section 1, Rule 76 of the Rules of Court which
allows the filing of a petition for probate by the person named therein regardless of
whether or not he is in possession of the will, or the same is lost or destroyed. The
section reads in full as follows:
Sec. 1. Who may petition for the allowance of will. Any executor, devisee, or
legatee named in a will, or any other person interested in the estate, may, at any

time after the death of the testator, petition the court having jurisdiction to have
the will allowed, whether the same be in his possession or not, or is lost or
destroyed.
In the instant case, a copy of the original will and its English translation were
attached to the petition as Annex "A" and Annex "A-1", respectively, and made
integral parts of the same. It is to be presumed that upon the filing of the petition
the Clerk of Court, or his duly authorized subordinate, examined the petition and
found that the annexes mentioned were in fact attached thereto. If they were not,
the petition cannot be said to have been properly presented and the Clerk of Court
would not have accepted it for docketing. Under Section 6, Rule 136 of the Rules of
Court, the Clerk of Court shall receive and file all pleadings and other papers
properly presented, endorsing on each such paper the time when it was filed. The
presumption of regularity in the performance of official duty militates against
private respondents' claim that Annex "A" of the petition was not in fact attached
thereto.
The certification of the Assistant Clerk of Court issued on 8 April
1980, 43 or SIX (6) months after the filing of the motion for reconsideration, to the
effect that as per examination of the records of Sp. Proc. No. 3309-R, "the copy of
the Will mentioned in the petition as Annex "A" is not found to be attached as of this
date in the said petition; only the English Translation of said Will is attached thereof
(sic) as Annex "A-1" does not even save the day for private respondents. It is not
conclusive because it fails to state the fact that as hereafter shown, the pages of
the records which correspond to the four (4) pages of Annex "A" were missing or
were detached therefrom. As emphatically asserted by the petitioners in their Reply
to the Comments of private respondents, 44 duly supported by a certification of the
former Clerk of Court of the original Branch VIII of the court below, 45 and which
private respondents merely generally denied in their motion for reconsideration with
comments and opposition to consolidated reply, 46 the four-page xerox copy of will,
marked as Annex "A" of the petition, became, as properly marked by the personnel
of the original Branch VIII of the court below upon the filing of the petition, pages 5,
6, 7 and 8 while the translation thereof, marked as Annex "A-1", became pages 9,
10, 11 and 12 of the records. The markings were done in long hand. The records of
the case were thereafter sent to the Clerk of Court, 14th Judicial District, Cebu City
on 9 February 1978. These records, now in the possession of the respondent Judge,
show that said pages 5, 6, 7 and 8 in long are missing. As a consequence thereof,
petitioners filed with the Executive Judge of the court below an administrative
complaint.
It is not likewise disputed that the original of the will was submitted in evidence and
marked as Exhibit "F". It forms part of the records of the special proceedings a
fact which private respondents admit in their Omnibus Motion for Reconsideration,
thus:
9. That an examination of the alleged will of our deceased sister has revealed that
the signatures at the left hand margin of Exhibit "F", are written by (sic) different
person than the signature appearing at the bottom of said alleged will . . . 47

The availability of the will since 18 September 1972 for their examination renders
completely baseless the private respondents' claim of fraud on petitioner Fran's part
in securing the withdrawal of their opposition to the probate of the will. If indeed
such withdrawal was conditioned upon Fran's promise that the private respondents
would be shown the will during the trial, why weren't the appropriate steps taken by
the latter to confront Fran about this promise before certifications of conformity to
the project of partition were filed?
Granting for the sake of argument that the non-fulfillment of said promise
constitutes fraud, such fraud is not of the kind which provides sufficient justification
for a motion for reconsideration or a petition for relief from judgment under Rule 37
and Rule 38, respectively, of the Rules of Court, or even a separate action for
annulment of judgment. It is settled that for fraud to be invested with, sufficiency, it
must be extrinsic or collateral to the matters involved in the issues raised during the
trial which resulted in such judgment. 48
In Our jurisdiction, the following courses of action are open to an aggrieved party to
set aside or attack the validity of a final judgment:
(1) Petition for relief under Rule 38 of the Rules of Court which must be filed within
sixty (60) days after learning of the decision, but not more than six (6) months after
such decision is entered;
(2) By direct action, via a special civil action for certiorari, or by collateral attack,
assuming that the decision is void for want of jurisdiction;
(3) By an independent civil action under Article 1114 of the Civil Code, assuming
that the decision was obtained through fraud and Rule 38 can not be applied. 49
It is not difficult to see that private respondents had lost their right to file a petition
for relief from judgment, it appearing that their omnibus motion for reconsideration
was filed exactly six (6) years, ten (10) months and twenty-two (22) days after the
rendition of the decision, and six (6) years, one (1) month and thirteen (13) days
after the court issued the order approving the Project of Partition, to which they
voluntarily expressed their conformity through their respective certifications, and
closing the testate proceedings.
Private respondents did not avail of the other two (2) modes of attack.
The probate judgment of 13 November 1972, long final and undisturbed by any
attempt to unsettle it, had inevitably passed beyond the reach of the court below to
annul or set the same aside, by mere motion, on the ground that the will is a
forgery. Settled is the rule that the decree of probate is conclusive with respect to
the due execution of the will and it cannot be impugned on any of the grounds
authorized by law, except that of fraud, in any separate or independent action or
proceeding. 50 We wish also to advert to the related doctrine which holds that final
judgments are entitled to respect and should not be disturbed; otherwise, there
would be a wavering of trust in the courts. 51 In Lee Bun Ting vs. Aligaen, 52 this
Court had the occasion to state the rationale of this doctrine, thus:

Reasons of public policy, judicial orderliness, economy and judicial time and the
interests of litigants, as well as the peace and order of society, all require that
stability be accorded the solemn and final judgments of the courts or tribunals of
competent jurisdiction.
This is so even if the decision is incorrect 53 or, in criminal cases, the penalty
imposed is erroneous. 54
Equally baseless and unmeritorious is private respondents' contention that the
order approving the Project of Partition and closing the proceedings is null and void
because the Project of Partition did not contain a notice of hearing and that they
were not notified of the hearing thereon. In truth, in her own certification 55 dated 5
September 1973, private respondent Concepcion M. Espina admitted that she
"received a copy of the Project of Partition and the Notice of Hearing in the aboveentitled proceeding, and that she has no objection to the approval of the said
Project of Partition." The notice of hearing she referred to is the Notice of Hearing
For Approval of Project of Partition issued on 6 August 1973 by the Clerk of
Court. 56 Private respondent Espina was lying through her teeth when she claimed
otherwise.
The non-distribution of the estate, which is vigorously denied by the petitioners, is
not a ground for the re-opening of the testate proceedings. A seasonable motion for
execution should have been filed. In De Jesus vs.
Daza, 57 this Court ruled that if the executor or administrator has possession of the
share to be delivered, the probate court would have jurisdiction within the same
estate proceeding to order him to transfer that possession to the person entitled
thereto. This is authorized under Section 1, Rule 90 of the Rules of Court. However,
if no motion for execution is filed within the reglementary period, a separate action
for the recovery of the shares would be in order. As We see it, the attack of 10
September 1973 on the Order was just a clever ploy to give asemblance of strength
and substance to the Omnibus Motion for Reconsideration by depicting therein a
probate court committing a series of fatal, substantive and procedural blunders,
which We find to be imaginary, if not deliberately fabricated.
WHEREFORE, the instant petition and supplemental petitions are GRANTED. The
Order of respondent Judge of 2 June 1980 and all other orders issued by him in Sp.
Proc. No. 3309-R, as well as all other proceedings had therein in connection with or
in relation to the Omnibus Motion for Reconsideration, are hereby ANNULLED and
SET ASIDE.
The restraining order issued on 2 June 1980 is hereby made PERMANENT.
Costs against private respondent Concepcion M. Espina.

EN BANC
G.R. No. L-6620 January 11, 1912
ALEJANDRA AUSTRIA, petitioner-appellee,

vs.
RAMON VENTENILLA, ET AL., opponents-appellants.
Addison B. Ritchey, for appellants.
Pedro Ma. Sison, for appellee.
JOHNSON, J. :chanrobles virtual law library
It appears from the record that one Antonio Ventenilla, died on the 13th of March,
1909, in the municipality of Mangatarem, Province of Pangasinan, leaving a will
which, after due notice in accordance with the provisions of the law, was duly
admitted to probate on the 14th of April, 1909, and the said Doa Alejandra Austria
was appointed administratrix of his estate, by order of the Honorable James C.
Jenkins, judge of the Court of First Instance of the Province of
Pangasinan.chanroblesvirtualawlibrary chanrobles virtual law library
On the 30th day of July, 1909, the said administratrix (Doa Alejandra Austria) with
will annexed, presented a report of her administration of said estate, petitioned the
court, after due notification to all of the parties interested, to distribute the estate in
accordance with the will and the law. So far as the record show no action was taken
upon said petition until the 5th day of October,
1910.chanroblesvirtualawlibrary chanrobles virtual law library
On the 6th day of August, 1910, the said opponents, through their attorney, A. B.
Ritchey, presented the following petition, asking that the will of the said Antonio
Ventenilla be annulled:
PETITION FOR ANNULMENT OF A WILL.
Now come Don Ramon Ventenilla, Eulalio Soriano V., Domingo Soriano, Carmen
Rosario, Maria Ventenilla, and Oliva Dizon to impugn the instrument to this court,
said to be the last will and testament of the said deceased, on the following
grounds:chanrobles virtual law library
That before his death the deceased always intended to distribute his property in
equal shares among his wife and his brothers and their representatives, and often
expressed such intention before executing the instrument herein submitted, and
after executing it often declared that he had distributed the same in the manner
and aforesaid;chanrobles virtual law library
That the deceased could not read or write Spanish and that therefore on the date of
executing said instrument he did not know what the same contained except through
translation;chanrobles virtual law library
That the said instrument was not translated to the testator, or if so, it was not
correctly translated, and that said deceased never intended to execute it as his last
will and testament in the manner and form of the instrument herein submitted, and
that at the time of his death he thought that the instrument executed clearly

ordered the distribution in the manner aforesaid; chanrobles virtual law library
That by reason of the fraud and deceit practiced upon the testator and a lack of a
good translation, the herein submitted is null and void;chanrobles virtual law library
That the tenth paragraph of said instrument is null because of its obscurity and
ambiguity and is in plain contradiction to the proceeding paragraphs, and that the
other paragraph have more force and weight;chanrobles virtual law library
Therefore, the petitioners pray the court:
(1) That the testamentary provisions of the will of the deceased Antonio Ventenilla
be declared null and void; that the inheritance of the said deceased be declared
intestate; that his window and Don Hemorgenes Mendoza be appointed
administrators under sufficient bond to protect the interest of the heirs and the
other interest parties;chanrobles virtual law library
(2) That the will be amended, in case the court does not see fit to annul it, by
declaring the tenth paragraph null;chanrobles virtual law library
(3) That they be further granted any other relief which appear just and equitable to
the court.
Lingayen, P. I., August 6, 1910.
(Sgd.) A. B. Ritchey,
Attorney for petitioners.
It will be noted that the opponents made no effort to question the legality of he will,
even though legal notice had been given in accordance with the law, until more
than fifteen months had expired from the date on which the lower court duly
admitted said will to probate.chanroblesvirtualawlibrary chanrobles virtual law
library
Section 625 of the Code of Procedure in Civil Actions provides that:
No will shall either the real or personal estate unless it is proved and allowed in the
Court of First Instance or by appeal to the Supreme Court; and the allowance by the
court of a will of real and personal estate shall be conclusive as to its due execution.
This court has held, under the provision of this section, that "the probate of a will is
conclusive as to its due execution, and as to the testamentary capacity of the
testator." (Castaeda vs. Alemany, 3 Phil. Rep., 426; Pimentel vs. Palanca, 5 Phil.
Rep., 436; Sahagunvs. Gorostiza, 7 Phil. Rep., 347; Chiong Joc-Soy vs. Vao, 8 Phil.
Rep., 119; Sanches vs.Pascual, 11 Phil. Rep., 395; Montaano vs. Suesa, 14 Phil.
Rep., 676.)chanrobles virtual law library
When no appeal is taken from an order probating a will, the heirs can not, in
subsequent litigation in the same proceedings, raise question relating to its due
execution. (Chong Joc-Soy vs. Vao et al., 8 Phil. Rep., 119.)chanrobles virtual law
library

The opponents not having appealed from the order admitting the will to probate, as
they had a right to do, that order is final and conclusive,
(Pimentel vs. Palanca, supra) unless some fraud sufficient to vitiate the proceedings
is discovered. In the present case, however, the alleged fraud, in view of all the
facts contained in the record, in our opinion, is not sufficiently proved to justify a
reopening of the probate of the will in question, especially in view of the long delay
of the parties interested.chanroblesvirtualawlibrary chanrobles virtual law library
The said section 625 was evidently taken from section 2356 of the Statutes of
Vermont. In most of the states of the United States certain number of months is
given to the interested parties to appeal from an order of the court admitting to
probate a will. (In the matter of the estate of Giovanni Sbarboro, 63 Cal., 5;
Thompson vs. Samson, 64 Cal., 330; In the matter of the estate of Richard T. Maxell,
74 Cal., 387; Wetherbee et al. vs. Chase, 57 Vt., 347.)chanrobles virtual law library
Under said section 625 and the decisions of the court, it seems that the only time
given the parties who are displeased with the order admitting a will to probate, is
the time given for appeals in ordinary actions. Without deciding whether or not the
order admitting a will to probate can be open for fraud, after the time allowed for an
appeal has expired, we hold in the present case simply that the showing as to fraud
is not sufficient to justify a reopening of the proceedings. The judgment of the lower
court is, therefore, hereby affirmed with costs.
Torres, Mapa, Moreland and Trent, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-32636

March 17, 1930

In the matter Estate of Edward Randolph Hix, deceased.

A.W. FLUEMER, petitioner-appellant,
vs.
ANNIE COUSHING HIX, oppositor-appellee.
C.A. Sobral for appellant.
Harvey & O' Brien and Gibbs & McDonough for appellee.
MALCOLM, J.:
The special administrator of the estate of Edward Randolph Hix appeals from a decision of
Judge of First Instance Tuason denying the probate of the document alleged to by the last will
and testament of the deceased. Appellee is not authorized to carry on this appeal. We think,
however, that the appellant, who appears to have been the moving party in these proceedings,
was a "person interested in the allowance or disallowance of a will by a Court of First Instance,"

and so should be permitted to appeal to the Supreme Court from the disallowance of the will
(Code of Civil Procedure, sec. 781, as amended; Villanueva vs. De Leon [1925], 42 Phil., 780).
It is theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on
November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West
Verginia Code, Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and as certified to by the
Director of the National Library. But this was far from a compliance with the law. The laws of a
foreign jurisdiction do not prove themselves in our courts. the courts of the Philippine Islands are
not authorized to take American Union. Such laws must be proved as facts. (In re Estate of
Johnson [1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no
was printed or published under the authority of the State of West Virginia, as provided in section
300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate
of the officer having charge of the original, under the sale of the State of West Virginia, as
provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show
that the extract from the laws of West Virginia was in force at the time the alleged will was
executed.
In addition, the due execution of the will was not established. The only evidence on this point is
to be found in the testimony of the petitioner. Aside from this, there was nothing to indicate that
the will was acknowledged by the testator in the presence of two competent witnesses, of that
these witnesses subscribed the will in the presence of the testator and of each other as the law
of West Virginia seems to require. On the supposition that the witnesses to the will reside
without the Philippine Islands, it would then the duty of the petitioner to prove execution by
some other means (Code of Civil Procedure, sec. 633.)
It was also necessary for the petitioner to prove that the testator had his domicile in West
Virginia and not establish this fact consisted of the recitals in the CATHY will and the testimony
of the petitioner. Also in beginning administration proceedings orginally in the Philippine Islands,
the petitioner violated his own theory by attempting to have the principal administration in the
Philippine Islands.
While the appeal pending submission in this court, the attorney for the appellant presented an
unverified petition asking the court to accept as part of the evidence the documents attached to
the petition. One of these documents discloses that a paper writing purporting to be the was
presented for probate on June 8, 1929, to the clerk of Randolph Country, State of West Virginia,
in vacation, and was duly proven by the oaths of Dana Wamsley and Joseph L. MAdden, the
subscribing witnesses thereto , and ordered to be recorded and filed. It was shown by another
document that, in vacation, on June 8, 1929, the clerk of court of Randolph Country, West
Virginia, appointed Claude W. Maxwell as administrator, cum testamento annexo, of the estate
of Edward Randolph Hix, deceased. In this connection, it is to be noted that the application for
the probate of the will in the Philippines was filed on February 20, 1929, while the proceedings
in West Virginia appear to have been initiated on June 8, 1929. These facts are strongly
indicative of an intention to make the Philippines the principal administration and West Virginia
the ancillary administration. However this may be, no attempt has been made to comply with
Civil Procedure, for no hearing on the question of the allowance of a will said to have been
proved and allowed in West Virginia has been requested. There is no showing that the
deceased left any property at any place other than the Philippine Islands and no contention that
he left any in West Virginia.

Reference has been made by the parties to a divorce purported to have been awarded Edward
Randolph Hix from Annie Cousins Hix on October 8, 1925, in the State of West specific
pronouncements on the validity or validity of this alleged divorce.
For all of the foregoing, the judgment appealed from will be affirmed, with the costs of this
instance against the appellant.
Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 76714 June 2, 1994

SALUD TEODORO VDA. DE
PEREZ
, petitioner,
vs.
HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch 18, RTC,
Bulacan, respondent.
Natividad T. Perez for petitioner.
Benedicto T. Librojo for private respondents.

QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside the
Order dated November 19, 1986 of the Regional Trial Court, Branch 18, Bulacan presided by
respondent Judge Zotico A. Tolete, in Special Proceedings No. 1793-M.
We grant the petition.
II
Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American citizens,
established a successful medical practice in New York, U.S.A. The Cunanans lived at No. 2896
Citation Drive, Pompey, Syracuse, New York, with their children, Jocelyn, 18; Jacqueline, 16;
and Josephine, 14.

On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing to his wife
"all the remainder" of his real and personal property at the time of his death "wheresoever
situated" (Rollo, p. 35). In the event he would survive his wife, he bequeathed all his property to
his children and grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee. He appointed his wife
as executrix of his last will and testament and Dr. Rafael G. Cunanan, Jr. as substitute executor.
Article VIII of his will states:
If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such
circumstances that there is not sufficient evidence to determine the order of our
deaths, then it shall be presumed that I predeceased her, and my estate shall be
administered and distributed, in all respects, in accordance with such
presumption (Rollo, p. 41).
Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last will and testament
containing the same provisions as that of the will of her husband. Article VIII of her will states:
If my husband, JOSE F. CUNANAN, and I shall die under such circumstances
that there is not sufficient evidence to determine the order of our deaths, then it
shall be presumed that he predeceased me, and my estate shall be administered
and distributed in all respects, in accordance with such presumption. (Rollo, p.
31).
On January 9, 1982, Dr. Cunanan and his entire family perished when they were trapped by fire
that gutted their home. Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee and substitute executor
of the two wills, filed separate proceedings for the probate thereof with the Surrogate Court of
the County of Onondaga, New York. On April 7, these two wills were admitted to probate and
letters testamentary were issued in his favor.
On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunanan, and
petitioner herein, filed with the Regional P. Cunanan, and petitioner herein, filed with the
Regional Trial Court, Malolos, Bulacan a petition for the reprobate of the two bills ancillary to the
probate proceedings in New York. She also asked that she be appointed the special
administratrix of the estate of the deceased couple consisting primarily of a farm land in San
Miguel, Bulacan.
On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided by Judge
Gualberto J. de la Llana, issued an order, directing the issuance of letters of special
administration in favor of petitioner upon her filing of a P10,000.00 bond. The following day,
petitioner posted the bond and took her oath as special administration.
As her first act of administration, petitioner filed a motion, praying that the Philippine Life
Insurance Company be directed to deliver the proceeds in the amount of P50,000.00 of the life
insurance policy taken by Dr. Jose F. Cunanan with Dr. Evelyn Perez-Cunanan and their
daughter Jocelyn as beneficiaries. The trial court granted the motion.
Counsel for the Philippine American Life Insurance Company then filed a manifestation, stating
that said company then filed a manifestation, stating that said company had delivered to
petitioner the amount of P49,765.85, representing the proceeds of the life insurance policy of Dr.
Jose F. Cunanan.

In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan, Sr. be ordered to
deliver to her a Philippine Trust Company passbook with P25,594.00 in savings deposit, and the
Family Savings Bank time deposit certificates in the total amount of P12,412.52.
On May 31, Atty. Federico Alday filed a notice of appearance as counsel for the heirs of Dr. Jose
F. Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla Cunanan Bautista, Lydia Cunanan
Ignacio, Felipe F. Cunanan and Loreto Cunanan Concepcion (Cunanan heirs). He also
manifested that before receiving petitioner's motion of May 19, 1983, his clients were unaware
of the filing of the testate estate case and therefore, "in the interest of simple fair play," they
should be notified of the proceedings (Records, p. 110). He prayed for deferment of the hearing
on the motions of May 19, 1983.
Petitioner then filed a counter manifestation dated June 13, 1983, asserting: (1) that the
"Cunanan collaterals are neither heirs nor creditors of the late Dr. Jose F. Cunanan" and
therefore, they had "no legal or proprietary interests to protect" and "no right to intervene"; (2)
that the wills of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan, being American citizens,
were executed in accordance with the solemnities and formalities of New York laws, and
produced "effects in this jurisdiction in accordance with Art. 16 in relation to Art. 816 of the Civil
Code"; (3) that under Article VIII of the two wills, it was presumed that the husband predeceased
the wife; and (4) that "the Cunanan collaterals are neither distributees, legatees or beneficiaries,
much less, heirs as heirship is only by institution" under a will or by operation of the law of New
York (Records, pp. 112-113).
On June 23, the probate court granted petitioner's motion of May 19, 1983. However, on July
21, the Cunanan heirs filed a motion to nullify the proceedings and to set aside the appointment
of, or to disqualify, petitioner as special administratrix of the estates of Dr. Jose F. Cunanan and
Dr. Evelyn Perez-Cunanan. The motion stated: (1) that being the "brothers and sisters and the
legal and surviving heirs" of Dr. Jose F. Cunanan, they had been "deliberately excluded" in the
petition for the probate of the separate wills of the Cunanan spouses thereby misleading the
Bulacan court to believe that petitioner was the sole heir of the spouses; that such
"misrepresentation" deprived them of their right to "due process in violation of Section 4, Rule
76 of the Revised Rules of Court; (2) that Dr. Rafael G. Cunanan, Jr., the executor of the estate
of the Cunanan spouses, was likewise not notified of the hearings in the Bulacan court; (3) that
the "misrepresentation and concealment committed by" petitioner rendered her unfit to be a
special administratrix; (4) that Dr. Rafael G. Cunanan, Jr. had, by virtue of a verified power of
attorney, authorized his father,
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael Cunanan, Sr. is
qualified to be a regular administrator "as practically all of the subject estate in the Philippines
belongs to their brother, Dr. Jose F. Cunanan" (Records, pp. 118-122). Hence, they prayed: (1)
that the proceedings in the case be declared null and void; (2) that the appointment of petitioner
as special administratrix be set aside; and (3) that Dr. Rafael Cunanan, Sr. be appointed the
regular administrator of the estate of the deceased spouses.
Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an inventory or
accounting of all monies received by her in trust for the estate.
In her opposition, petitioner asserted: (1) that she was the "sole and only heir" of her daughter,
Dr. Evelyn Perez-Cunanan to the exclusion of the "Cunanan collaterals"; hence they were
complete strangers to the proceedings and were not entitled to notice; (2) that she could not
have "concealed" the name and address of Dr. Rafael G. Cunanan, Jr. because his name was

prominently mentioned not only in the two wills but also in the decrees of the American
surrogate court; (3) that the rule applicable to the case is Rule 77, not Rule 76, because it
involved the allowance of wills proved outside of the Philippines and that nowhere in Section 2
of Rule 77 is there a mention of notice being given to the executor who, by the same provision,
should himself file the necessary ancillary proceedings in this country; (4) that even if the
Bulacan estate came from the "capital" of Dr. Jose F. Cunanan, he had willed all his worldly
goods to his wife and nothing to his brothers and sisters; and (5) that Dr. Rafael G. Cunanan, Jr.
had unlawfully disbursed $215,000.00 to the Cunanan heirs, misappropriated $15,000.00 for
himself and irregularly assigned assets of the estates to his American lawyer (Records, pp. 151160).
In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the
Cunanan heirs had entered into an agreement in the United States "to settle and divide equally
the estates," and that under Section 2 of Rule 77 the "court shall fix a time and place for the
hearing and cause notice thereof to be given as in case of an original will presented for
allowance" (Records, pp. 184-185).
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court for failure to
comply with the Order of June 23, 1983 and for appropriating money of the estate for his own
benefit. She also alleged that she had impugned the agreement of November 24, 1982 before
the Surrogate Court of Onondaga, New York which rendered a decision on April 13, 1983,
finding that "all assets are payable to Dr. Evelyn P. Cunanans executor to be then distributed
pursuant to EPTL4-1.1 subd [a] par [4]" (Rollo, p. 52).
On their part, the Cunanan heirs replied that petitioner was estopped from claiming that they
were heirs by the agreement to divide equally the estates. They asserted that by virtue of
Section 2 of Rule 77 of the Rules of Court, the provisions of Sections 3, 4 and 5 of Rule 76 on
the requirement of notice to all heirs, executors, devisees and legatees must be complied with.
They reiterated their prayer: (1) that the proceedings in the case be nullified; (2) that petitioner
be disqualified as special administratrix; (3) that she be ordered to submit an inventory of all
goods, chattels and monies which she had received and to surrender the same to the court; and
(4) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator.
Petitioner filed a rejoinder, stating that in violation of the April 13, 1983 decision of the American
court Dr. Rafael G. Cunanan, Jr. made "unauthorized disbursements from the estates as early
as July 7, 1982" (Records, p. 231). Thereafter, petitioner moved for the suspension of the
proceedings as she had "to attend to the settlement proceedings" of the estate of the Cunanan
spouses in New York (Records, p. 242). The Cunanans heirs opposed this motion and filed a
manifestation, stating that petitioner had received $215,000.00 "from the Surrogates Court as
part of legacy" based on the aforesaid agreement of November 24, 1982 (Records, p. 248).
On February 21, 1984, Judge de la Llana issued an order, disallowing the reprobate of the two
wills, recalling the appointment of petitioner as special administratrix, requiring the submission
of petitioner of an inventory of the property received by her as special administratrix and
declaring all pending incidents moot and academic. Judge de la Llana reasoned out that
petitioner failed to prove the law of New York on procedure and allowance of wills and the court
had no way of telling whether the wills were executed in accordance with the law of New York.
In the absence of such evidence, the presumption is that the law of succession of the foreign
country is the same as the law of the Philippines. However, he noted, that there were only two

witnesses to the wills of the Cunanan spouses and the Philippine law requires three witnesses
and that the wills were not signed on each and every page, a requirement of the Philippine law.
On August 27, 1985, petitioner filed a motion for reconsideration of the Order dated February
21, 1984, where she had sufficiently proven the applicable laws of New York governing the
execution of last wills and testaments.
On the same day, Judge de la Llana issued another order, denying the motion of petitioner for
the suspension of the proceedings but gave her 15 days upon arrival in the country within which
to act on the other order issued that same day. Contending that the second portion of the
second order left its finality to the discretion of counsel for petitioner, the Cunanans filed a
motion for the reconsideration of the objectionable portion of the said order so that it would
conform with the pertinent provisions of the Judiciary Reorganization Act of 1980 and the Interim
Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court, Malolos, to
which the reprobate case was reassigned, issued an order stating that "(W)hen the last will and
testament . . . was denied probate," the case was terminated and therefore all orders
theretofore issued should be given finality. The same Order amended the February 21, 1984
Order by requiring petitioner to turn over to the estate the inventoried property. It considered the
proceedings for all intents and purposes, closed (Records,
p. 302).
On August 12, petitioner filed a motion to resume proceedings on account of the final settlement
and termination of the probate cases in New York. Three days later, petitioner filed a motion
praying for the reconsideration of the Order of April 30, 1985 on the strength of the February 21,
1984 Order granting her a period of 15 days upon arrival in the country within which to act on
the denial of probate of the wills of the Cunanan spouses. On August 19, respondent Judge
granted the motion and reconsidered the Order of April 30, 1985.
On August 29, counsel for petitioner, who happens to be her daughter, Natividad, filed a motion
praying that since petitioner was ailing in Fort Lee, New Jersey, U.S.A. and therefore
incapacitated to act as special administratrix, she (the counsel) should be named substitute
special administratrix. She also filed a motion for the reconsideration of the Order of February
21, 1984, denying probate to the wills of the Cunanan spouses, alleging that respondent Judge
"failed to appreciate the significant probative value of the exhibits . . . which all refer to the offer
and admission to probate of the last wills of the Cunanan spouses including all procedures
undertaken and decrees issued in connection with the said probate" (Records, pp. 313-323).
Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order of August 19,
1985, alleging lack of notice to their counsel.
On March 31, 1986, respondent Judge to which the case was reassigned denied the motion for
reconsideration holding that the documents submitted by petitioner proved "that the wills of the
testator domiciled abroad were properly executed, genuine and sufficient to possess real and
personal property; that letters testamentary were issued; and that proceedings were held on a
foreign tribunal and proofs taken by a competent judge who inquired into all the facts and
circumstances and being satisfied with his findings issued a decree admitting to probate the
wills in question." However, respondent Judge said that the documents did not establish the law
of New York on the procedure and allowance of wills (Records, p. 381).

On April 9, 1986, petitioner filed a motion to allow her to present further evidence on the foreign
law. After the hearing of the motion on April 25, 1986, respondent Judge issued an order
wherein he conceded that insufficiency of evidence to prove the foreign law was not a fatal
defect and was curable by adducing additional evidence. He granted petitioner 45 days to
submit the evidence to that effect.
However, without waiting for petitioner to adduce the additional evidence, respondent Judge
ruled in his order dated June 20, 1986 that he found "no compelling reason to disturb its ruling
of March 31, 1986" but allowed petitioner to "file anew the appropriate probate proceedings for
each of the testator" (Records, p. 391).
The Order dated June 20, 1986 prompted petitioner to file a second motion for reconsideration
stating that she was "ready to submit further evidence on the law obtaining in the State of New
York" and praying that she be granted "the opportunity to present evidence on what the law of
the State of New York has on the probate and allowance of wills" (Records, p. 393).
On July 18, respondent Judge denied the motion holding that to allow the probate of two wills in
a single proceeding "would be a departure from the typical and established mode of probate
where one petition takes care of one will." He pointed out that even in New York "where the wills
in question were first submitted for probate, they were dealt with in separate proceedings"
(Records, p. 395).
On August 13, 1986, petitioner filed a motion for the reconsideration of the Order of July 18,
1986, citing Section 3, Rule 2 of the Rules of Court, which provides that no party may institute
more than one suit for a single cause of action. She pointed out that separate proceedings for
the wills of the spouses which contain basically the same provisions as they even named each
other as a beneficiary in their respective wills, would go against "the grain of inexpensive, just
and speedy determination of the proceedings" (Records, pp. 405-407).
On September 11, 1986, petitioner filed a supplement to the motion for reconsideration,
citing Benigno v. De La Pea, 57 Phil. 305 (1932) (Records,
p. 411), but respondent Judge found that this pleading had been filed out of time and that the
adverse party had not been furnished with a copy thereof. In her compliance, petitioner stated
that she had furnished a copy of the motion to the counsel of the Cunanan heirs and reiterated
her motion for a "final ruling on her supplemental motion" (Records, p. 421).
On November 19, respondent Judge issued an order, denying the motion for reconsideration
filed by petitioner on the grounds that "the probate of separate wills of two or more different
persons even if they are husband and wife cannot be undertaken in a single petition" (Records,
pp. 376-378).
Hence, petitioner instituted the instant petition, arguing that the evidence offered at the hearing
of April 11, 1983 sufficiently proved the laws of the State of New York on the allowance of wills,
and that the separate wills of the Cunanan spouses need not be probated in separate
proceedings.
II
Petitioner contends that the following pieces of evidence she had submitted before respondent
Judge are sufficient to warrant the allowance of the wills:

(a) two certificates of authentication of the respective wills of Evelyn and Jose by
the Consulate General of the Philippines (Exhs. "F" and "G");
(b) two certifications from the Secretary of State of New York and Custodian of
the Great Seal on the facts that Judge Bernard L. Reagan is the Surrogate of the
Country of Onondaga which is a court of record, that his signature and seal of
office are genuine, and that the Surrogate is duly authorized to grant copy of the
respective wills of Evelyn and Jose
(Exhs. "F-1" and "G-1");
(c) two certificates of Judge Reagan and Chief Clerk Donald E. Moore stating
that they have in their records and files the said wills which were recorded on
April 7, 1982 (Exhs. "F-2" and "G-2");
(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh. "G-3"
"G-6");
(e) certificates of Judge Reagan and the Chief Clerk certifying to the
genuineness and authenticity of the exemplified copies of the two wills (Exhs. "F7" and "F-7");
(f) two certificates of authentication from the Consulate General of the Philippines
in New York (Exh. "H" and "F").
(g) certifications from the Secretary of State that Judge Reagan is duly
authorized to grant exemplified copies of the decree of probate, letters
testamentary and all proceedings had and proofs duly taken
(Exhs. "H-1" and "I-1");
(h) certificates of Judge Reagan and the Chief Clerk that letters testamentary
were issued to Rafael G. Cunanan (Exhs. "H-2" and "I-2");
(i) certification to the effect that it was during the term of Judge Reagan that a
decree admitting the wills to probate had been issued and appointing Rafael G.
Cunanan as alternate executor (Exhs. "H-3" and
"I-10");
(j) the decrees on probate of the two wills specifying that proceedings were held
and proofs duly taken (Exhs. "H-4" and "I-5");
(k) decrees on probate of the two wills stating that they were properly executed,
genuine and valid and that the said instruments were admitted to probate and
established as wills valid to pass real and personal property (Exhs. "H-5" and "I5"); and
(l) certificates of Judge Reagan and the Chief Clerk on the genuineness and
authenticity of each others signatures in the exemplified copies of the decrees of
probate, letters testamentary and proceedings held in their court (Exhs. "H-6"
and "I-6") (Rollo, pp. 13-16).

Petitioner adds that the wills had been admitted to probate in the Surrogate Courts Decision of
April 13, 1983 and that the proceedings were terminated on November 29, 1984.
The respective wills of the Cunanan spouses, who were American citizens, will only be effective
in this country upon compliance with the following provision of the Civil Code of the Philippines:
Art. 816. The will of an alien who is abroad produces effect in the Philippines if
made with the formalities prescribed by the law of the place in which he resides,
or according to the formalities observed in his country, or in conformity with those
which this Code prescribes.
Thus, proof that both wills conform with the formalities prescribed by New York laws or by
Philippine laws is imperative.
The evidence necessary for the reprobate or allowance of wills which have been probated
outside of the Philippines are as follows: (1) the due execution of the will in accordance with the
foreign laws; (2) the testator has his domicile in the foreign country and not in the Philippines;
(3) the will has been admitted to probate in such country; (4) the fact that the foreign tribunal is a
probate court, and (5) the laws of a foreign country on procedure and allowance of wills (III
Moran Commentaries on the Rules of Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil.
500 [1954]; Fluemer v. Hix, 54 Phil. 610 [1930]). Except for the first and last requirements, the
petitioner submitted all the needed evidence.
The necessity of presenting evidence on the foreign laws upon which the probate in the foreign
country is based is impelled by the fact that our courts cannot take judicial notice of them
(Philippine Commercial and Industrial Bank v. Escolin, 56 SCRA 266 [1974]).
Petitioner must have perceived this omission as in fact she moved for more time to submit the
pertinent procedural and substantive New York laws but which request respondent Judge just
glossed over. While the probate of a will is a special proceeding wherein courts should relax the
rules on evidence, the goal is to receive the best evidence of which the matter is susceptible
before a purported will is probated or denied probate (Vda. de Ramos v. Court of Appeals, 81
SCRA 393 [1978]).
There is merit in petitioners insistence that the separate wills of the Cunanan spouses should
be probated jointly. Respondent Judges view that the Rules on allowance of wills is couched in
singular terms and therefore should be interpreted to mean that there should be separate
probate proceedings for the wills of the Cunanan spouses is too literal and simplistic an
approach. Such view overlooks the provisions of Section 2, Rule 1 of the Revised Rules of
Court, which advise that the rules shall be "liberally construed in order to promote their object
and to assist the parties in obtaining just, speedy, and inexpensive determination of every action
and proceeding."
A literal application of the Rules should be avoided if they would only result in the delay in the
administration of justice (Acain v. Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts
v. Leonidas, 129 SCRA 33 [1984]).
What the law expressly prohibits is the making of joint wills either for the testators reciprocal
benefit or for the benefit of a third person (Civil Code of the Philippines, Article 818). In the case
at bench, the Cunanan spouses executed separate wills. Since the two wills contain essentially

the same provisions and pertain to property which in all probability are conjugal in nature,
practical considerations dictate their joint probate. As this Court has held a number of times, it
will always strive to settle the entire controversy in a single proceeding leaving no root or branch
to bear the seeds of future litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]).
This petition cannot be completely resolved without touching on a very glaring fact petitioner
has always considered herself the sole heir of
Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr. Jose F.
Cunanan, she noticeably failed to notify his heirs of the filing of the proceedings. Thus, even in
the instant petition, she only impleaded respondent Judge, forgetting that a judge whose order
is being assailed is merely a nominal or formal party (Calderon v. Solicitor General, 215 SCRA
876 [1992]).
The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof
to be given as in case of an original will presented for allowance" (Revised Rules of Court, Rule
27, Section 2) means that with regard to notices, the will probated abroad should be treated as if
it were an "original will" or a will that is presented for probate for the first time. Accordingly,
compliance with Sections 3 and 4 of Rule 76, which require publication and notice by mail or
personally to the "known heirs, legatees, and devisees of the testator resident in the Philippines"
and to the executor, if he is not the petitioner, are required.
The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim, are entitled to
notices of the time and place for proving the wills. Under Section 4 of Rule 76 of the Revised
Rules of Court, the "court shall also cause copies of the notice of the time and place fixed for
proving the will to be addressed to the designated or other known heirs, legatees, and devisees
of the testator, . . . "
WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow petitioner
reasonable time within which to submit evidence needed for the joint probate of the wills of the
Cunanan spouses and see to it that the brothers and sisters of Dr. Jose F. Cunanan are given
all notices and copies of all pleadings pertinent to the probate proceedings.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-3677

November 29, 1951

In the Matter of the Testate Estate of BASIL GORDON BUTLER; MERCEDES

LEON, petitioner-appellant, and ADA LOGGEY GHEZZI, administratrix-appellant,
vs.
MANUFACTURERS LIFE INSURANCE CO., thru Philippine Branch, oppositor-appellee.
Juan S. Rustia for petitioner and appellant.
Peralta & Agrava for oppositor and appellee.

TUASON, J.:
This is an appeal from the Court of First Instance of Manila which denied a motion of the
administratrix in the matter of the testate estate of Basil Gordon Butler (Special Proceedings No.
6218). The motion prayed for the citation of the Manager of the Manila Branch of the
Manufacturers Life Insurance Co. of Toronto, Canada, to appear and under a complete
accounting of certain funds the said Branch allegedly has in its possession and claimed to
belong to the estate. His Honor, Judge Rafael Amparo of the court below, held that these funds
"came into the possession of the Manufacturers Life Insurance Co., Inc., regularly and in due
course and, therefore, sees no justifiable ground to require said company to render an
accounting thereon."
The essential facts are that Basil Gordon Butler, formerly a resident of the Philippines, died in
Brooklyn, New York City, in 1945, leaving a will which was duly probated in the Surrogate's
Court of New York County on August 3 of the same year, and of which James Ross, Sr., James
Madison Ross, Jr. and Ewald E. Selph were named executors. The estate having been settled,
the proceedings were closed on July 17, 1947.
The will contained this residuary clause:
After payment of these legacies and my just debts, including funeral expenses, I devise,
give and bequeath all of my remaining estate and personal effects of which I may die
possessed to Mercedes de Leon, of Maypajo, Caloocan, Rizal, to wit: the personal
effects to be delivered to her for her use and profit; the moneys, securities and other
valuable property, not personal effects, to be held in trust for her benefit by my
executors, at their absolute discretion, to be administered for her permanent benefit in
whatever way they may consider most advantageous in the circumstances existing.
Since the said Mercedes de Leon is not of sound judgment, and discretion in the
handling of money, it is not my wish that she be given any sums of money other than for
her current needs, except as my executors in their judgment deem advantageous to her.
In case the amount available for this bequest be sufficient to purchase an adequate
annuity, the executors in their discretion may do so. And I attest and direct that I do not
wish to intend that the action of my executors upon their discretion in this matter be
questioned by anyone whatsoever.
For the purpose of carrying out that testamentary provision, James Madison Ross was
appointed trustee by the New York County Surrogate's Court on February 4, 1948. Once
appointed, and with the beneficiary signing the application with him, Ross bought an annuity
from the Manufacturer's life Insurance Co. at its head office in Toronto, Canada, paying in
advance $17,091.03 as the combined premiums. The contract stipulates for a monthly payment
of $57.60 to Mercedes Benz during her lifetime, with the proviso that in the event of her death,
the residue, if any, of the capital sum shall be paid in one sum to James Madison Ross or his
successor as trustee. And beginning May 27, 1948, Mercedes de Leon has been receiving the
stipulated monthly allowance through the Insurance Company's Manila Office.
With the object, so it would seem, of getting hold at once of the entire amount invested in the
annuity, Mercedes de Leon on September 4, 1948, presented Butler's will for probate in the
Court of First Instance of Manila, and secured the appointment of Ada Loggey Ghezzi as
administratrix with the will annexed early in 1949. (James Madison Ross and Ewald E. Selph
had expressly declined appointment as executors "on the ground that the probate proceedings

of the above estate were terminated by the Surrogate's Court of the County of New York, New
York City, U. S. A., and that there are no properties of the estate left to be administered.") After
having qualified, the administratrix filed the motion which Judge Amparo has denied; and as the
party most if not solely interested in that motion, Mercedes de Leon has joined Ghezzi in this
appeal.
The administration of Butler's estate granted in New York was the principal or domiciliary
administration (Johannesvs. Harvey, 43 Phil., 175), while the administration taken out in the
Philippines is ancillary. However, the distinction serves only to distinguish one administration
from the other, for the two proceedings are separate and independent. (34 C.J.S. 1232,1233).
The important thing to inquire into is the Manila court's authority with respect to the assets
herein involved. The general rule universally recognized is that administration extends only to
the assets of a decedent found within the state or country where it was granted, so that an
administrator appointed in one state or country has no power over property in another state or
country. (Keenan vs. Toury, 132 A.L.R. 1362; Nash vs. Benari, 3 A.L.R. 61; Michigan Trust
Co. vs. Chaffee, 149 A.L.R. 1078).This principle is specifically embodied in section 4 of Rule 78
of the Rules of Court:
Estate, how administered.When a will is thus allowed, the court shall grant letters
testamentary, or letters of administration with the will annexed, and such letters
testamentary or of administration, shall extend to all the estate of the testator in the
Philippines. Such estate, after the payment of just debts and expenses of administration,
shall be disposed of according to such will, so far as such will may operate upon it; and
the residue, if any, shall be disposed of as is provided by law in cases of estates in the
Philippines belonging to persons who are inhabitants of another state or country.
It is manifest from the facts before set out that the funds in question are outside the jurisdiction
of the probate court of Manila. Having been invested in an annuity in Canada under a contract
executed in the country, Canada is the suits of the money. The party whose appearance the
appellant seeks is only a branch or agency of the company which holds the funds in its
possession, the agency's intervention being limited to delivering to the annuitant the checks
made out and issued from the home office. There is no showing or allegation that the funds
have been transferred or removed to the Manila Branch.
Even if the money were in the hands of the Manila Branch, yet it no longer forms part of butler's
estate and is beyond the control of the court. It has passed completely into the hands of the
company in virtue of a contract duly authorized and validly executed. Whether considered as a
trust or as simple consideration for the company's assumed obligation, which it has been
religiously performing, of paying periodical allowances to the annuitant, the proceeds of the sale
can not be withdrawn without the consent of the company, except, upon the death of the
annuitant, the residuary legatee may claim the remainder, if there be any. Neither the domiciliary
or ancillary executor of Butler's will, nor the trustee, nor the annuitant has disposition of any of
these funds beyond the amounts and except upon the conditions agreed upon in the contract for
annuity.
In the third place, the power of the court to cite a person for the purpose stated in the
administratrix's motion is defined in section 7 of Rule 88, which provides.

Person entrusted with estate compelled to render account.The court, on complaint of

an executor or administrator, with any part the estate of the deceased to appear before
it, and may require such person to render a full account, on oath, of the money, goods,
chattels, bonds, accounts, or other papers belonging to such estate as came to his
possession in trust for such executor or administrator, and for his proceedings thereon;
and if the person so cited refuses to appear to render such account, the court may
punish him for contempt as having disobeyed a lawful order of the court.
The appellant administratrix did not entrust to the appellee the money she wants the latter to
account for, nor did the said money come to the appellee's possession in trust for the
administratrix. In other words, the administratrix is a complete stranger to the subject of the
motion and to the appellee. There being no creditors, the only subject of the motion, we incline
to believe, is to enable Mercedes de Leon to get the legacy in a lump sum in complete disregard
of the wishes of the testator, who showed deep concern for her welfare, and of the annuity
contract which the annuitant herself applied for in conjunction with the trustee.
All in all, from every standpoint, including that of the annuitant's financial well-being, the motion
and the appeal are utterly groundless and ill-advised.
The appealed order therefore is affirmed with costs against the appellants.
Paras, C.J., Feria, Pablo, Bengzon, Padilla, Reyes, Jugo, and Bautista Angelo, JJ., concur.

G.R. No. L-20080 March 27, 1923

Intestate estate of the deceased GERONIMA UY COQUE.
JUAN NAVAS L. SIOCA, Petitioner-Appellant, vs. JOSE
GARCIA, administrator-appellee.
Romualdez Bros. and Pedro C. Mendiola for appellant.
Ruperto Kapunan for appellee.
OSTRAND, J.:
This is an appeal from an order of the Court of First Instance of Samar, dated
November 11, 1922, and appointing Jose Garcia, administrator of the estate of the
deceased Geronima Uy Coque.chanroblesvirtualawlibrary chanrobles virtual law
library
The appellant is the surviving spouse of the deceased and maintains that the court
erred in not appointing him administrator instead of Jose Garcia. As the refusal to
appoint the appellant appears in an order of the court below dated September 30,
1922, from which no appeal has been taken, we might well consider the question
raised upon this appealres adjudicata. For the satisfaction of counsel, we shall,
however, briefly state another reason why the appeal must
fail.chanroblesvirtualawlibrary chanrobles virtual law library
It is well settled that a probate court cannot arbitrarily and without sufficient reason
disregard the preferential rights of the surviving spouse to the administration of the

estate of the deceased spouse. But, if the person enjoying such preferential rights is
unsuitable, the court may appoint another person. (Paragraph 2 of sec. 642 of the
Code of Civil Procedure.) The determination of a person's suitability for the office of
administrator rests, to a great extent, in the sound judgment of the court exercising
the power of appointment and such judgment will not be interfered with on appeal
unless it appears affirmatively that the court below was in
error.chanroblesvirtualawlibrary chanrobles virtual law library
In the present case the court based its ruling on the fact that it appeared from the
record in Civil Case No. 1041 of the same court, that the appellant had adverse
interest in the estate of such a character as to render him unsuitable as
administrator. Unsuitableness may consist in adverse interest of some kind or
hostility to those immediately interested in the estate. (18 Cyc., 93, 94.) The court
below therefore stated facts which may constitute sufficient grounds for setting
aside the appellant's preferential rights and which, in the absence of proof to the
contrary, must be presumed sufficient. Whether they are in fact sufficient, we are
not in position to determine as we have not before us the record in the aforesaid
case No. 1041; it being a record of the court below, that court could properly take
judicial notice thereof, but we cannot.chanroblesvirtualawlibrary chanrobles virtual
law library
The order appealed from is affirmed, with the costs against the appellant. So
ordered.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 74769 September 28, 1990
BEATRIZ F. GONZALES, petitioner,
vs.
HON. ZOILO AGUINALDO, Judge of Regional Trial Court, Branch 143, Makati, Metro
Manila and TERESA F. OLBES, respondents.
Andres V. Maglipon for petitioner.
Sycip, Salazar, Hernandez & Gatmaitan for private respondent.

PADILLA, J.:
This is a petition for certiorari which seeks to annul, on the ground of grave abuse of discretion,
the Order of the respondent Judge, dated 15 January 1985, cancelling the appointment of the
petitioner Beatriz F. Gonzales as a co-administratrix in Special Proceedings No. 021 entitled "In

the Matter of the Intestate Estate of Ramona Gonzales Vda. de Favis," Branch 143, RTC,
Makati, Metro Manila; and the Order of 15 May 1985 denying reconsideration of the same.
The facts are:
Special Proceedings No. 021, pending before the court a quo, is an intestate proceeding
involving the estate of the deceased Doa Ramona Gonzales Vda. de Favis. Doa Ramona is
survived by her four (4) children who are her only heirs, namely, Asterio Favis, Beatriz F.
Gonzales, Teresa F. Olbes, and Cecilia Favis-Gomez.
On 25 October 1983, the court a quo appointed petitioner Beatriz F. Gonzales and private
respondent Teresa Olbes as co-administratices of the estate.
On 11 November 1984, while petitioner Beatriz F. Gonzales was in the United States
accompanying her ailing husband who was receiving medical treatment in that country, private
respondent Teresa Olbes filed a motion, dated 26 November 1984, to remove Beatriz F.
Gonzales as co-administratrix, on the ground that she is incapable or unsuitable to discharge
the trust and had committed acts and omissions detrimental to the interest of the estate and the
heirs. Copy of said motion was served upon petitioner's then counsel of record, Atty. Manuel
Castro who, since 2 June 1984, had been suspended by the Supreme Court from the practice of
law throughout the Philippines. 1
After the filing of private respondent's aforesaid motion, respondent Judge Zoilo Aguinaldo
issued an Order dated 4 December 1984 which required Beatriz F. Gonzales and the other
parties to file their opposition, if any, thereto. Only Asterio Favis opposed the removal of Beatriz
F. Gonzales as co-administratrix, as the latter was still in the United States attending to her
ailing husband.
In an Order dated 15 January 1985, respondent Judge cancelled the letters of administration
granted to Beatriz F. Gonzales and retained Teresa Olbes as the administratrix of the estate of
the late Ramona Gonzales. The Court, in explaining its action, stated:
. . . In appointing them, the court was of the opinion that it would be to the best
interest of the estate if two administrators who are the children of the deceased
would jointly administer the same. Unfortunately, as events have shown, the two
administrators have not seen eye to eye with each other and most of the time
they have been at loggerheads with each other to the prejudice of the estate.
Beatriz F. Gonzales has been absent from the country since October, 1984 as
she is in the United States as stated in the motion and opposition of Asterio Favis
dated December 11, 1984, and she has not returned even up to this date so that
Teresa F. Olbes has been left alone to administer the estate. Under these
circumstances, and in order that the estate will be administered in an orderly and
efficient manner, the court believes that there should be now only one
administrator of the estate.2
Petitioner moved to reconsider the Order of 15 January 1985. Her motion was opposed
separately by private respondent Teresa Olbes and another co-heir Cecilia Gomez. In her
manifestation and opposition to petitioner's motion for reconsideration, Cecilia Gomez stated
that it would be pointless to re-appoint Beatriz F. Gonzales as co-administratrix of Teresa Olbes,
as the former would be leaving soon for the United States to attend to unfinished business.

Moreover, she expressed satisfaction with the manner respondent Teresa Olbes had been
managing and administering the estate.
In his Order dated 7 May 1986, a part of which is hereunder quoted, respondent Judge denied
petitioner's motion for reconsideration for lack of merit. He said:
xxx xxx xxx
After a consideration of the motion for reconsideration and the oppositions
thereto, the court believes and so holds that it should be denied. The court in its
discretion has issued its order dated January 15, 1985 cancelling the
appointment and the letters of administration issued to Beatriz F. Gonzales and it
reiterates the same for the best interest of the estate of the deceased. It is
noteworthy that of the four heirs of the deceased, one of them being the movant
Beatriz F. Gonzales, two of them, namely, Cecilia F. Gomez and Teresa F. Olbes,
opposed the motion. The other heir Asterio Favis, did not file or make any
comment to the motion. As can be gathered from the oppositions of Cecilia F.
Gomez and Teresa F. Olbes, the reappointment of Beatriz F. Gonzales as a coadministratrix would not be conducive to the efficient and orderly administration
of the estate of the deceased Ramona Gonzales vda. de Favis. 3
Petitioner contends before this Court that respondent Judge's Order dated 15 January 1985
should be nullified on the ground of grave abuse of discretion, as her removal was not shown by
respondents to be anchored on any of the grounds provided under Section 2, Rule 82, Rules of
Court, which states:
Sec. 2. Court may remove or accept resignation of executor or administrator.
Proceedings upon death, resignation or removal If an executor or
administrator neglects to render his account and settle the estate according to
law, or to perform an order or judgment of the court, or a duty expressly provided
by these rules, or absconds, or becomes insane, or otherwise incapable or
unsuitable to discharge the trust, the court may remove him, or in its discretion,
may permit him to resign. . . .
While appellate courts are generally disinclined to interfere with the action taken by the probate
court in the matter of removal of an administrator, 4 we find, in the case at bar, sufficient cause
to reverse the order of the probate court removing petitioner as co-administratrix of the estate.
The rule is that if no executor is named in the will, or the named executor or executors are
incompetent, refuse the trust, or fail to give bond, or a person dies intestate, the court must
appoint an administrator of the estate of the deceased 5 who shall act as representative not only
of the court appointing him but also of the heirs and the creditors of the estate. 6 In the exercise
of its discretion, the probate court may appoint one, two or more co-administrators to have the
benefit of their judgment and perhaps at all times to have different interests represented. 7
In the appointment of the administrator of the estate of a deceased person, the principal
consideration reckoned with is the interest in said estate of the one to be appointed as
administrator. 8 This is the same consideration which Section 6 of Rule 78 takes into account in
establishing the order of preference in the appointment of administrators for the estate. The
underlying assumption behind this rule is that those who will reap the benefit of a wise, speedy,

economical administration of the estate, or, on the other hand, suffer the consequences of
waste, improvidence or mismanagement, have the highest interest and most influential motive
to administer the estate correctly. 9
Administrators have such an interest in the execution of their trust as entitle them to protection
from removal without just cause. 10 Hence, Section 2 of Rule 82 of the Rules of Court provides
the legal and specific causes authorizing the court to remove an administrator. 11
While it is conceded that the court is invested with ample discretion in the removal of an
administrator, it however must have some fact legally before it in order to justify a removal.
There must be evidence of an act or omission on the part of the administrator not conformable
to or in disregard of the rules or the orders of the court, which it deems sufficient or substantial
to warrant the removal of the administrator. In making such a determination, the court must
exercise good judgment, guided by law and precedents.
In the present case, the court a quo did not base the removal of the petitioner as coadministratrix on any of the causes specified in respondent's motion for relief of the petitioner.
Neither did it dwell on, nor determine the validity of the charges brought against petitioner by
respondent Olbes. The court based the removal of the petitioner on the fact that in the
administration of the estate, conflicts and misunderstandings have existed between petitioner
and respondent Teresa Olbes which allegedly have prejudiced the estate, and the added
circumstance that petitioner had been absent from the country since October 1984, and up to 15
January 1985, the date of the questioned order.
Certainly, it is desirable that the administration of the deceased's estate be marked with
harmonious relations between co-administrators. But for mere disagreements between such
joint fiduciaries, without misconduct, one's removal is not favored. 12 Conflicts of opinion and
judgment naturally, and, perhaps inevitably, occur between persons with different interests in the
same estate. Such conflicts, if unresolved by the co-administrators, can be resolved by the
probate court to the best interest of the estate and its heirs.
We, like petitioner, find of material importance the fact that the court a quo failed to find hard
facts showing that the conflict and disharmony between the two (2) co-administratrices were
unjustly caused by petitioner, or that petitioner was guilty of incompetence in the fulfillment of
her duties, or prevented the management of the estate according to the dictates of prudence, or
any other act or omission showing that her continuance as co-administratrix of the estate
materially endangers the interests of the estate. Petitioner Beatriz F. Gonzales is as interested
as respondent Olbes and the other heirs in that the properties of the estate be duly administered
and conserved for the benefit of the heirs; and there is as yet no ground to believe that she has
prejudiced or is out to prejudice said estate to warrant the probate court into removing petitioner
as co-administratrix.
Respondent Judge removed petitioner Beatriz F. Gonzales as co-administratrix of the estate
also on the ground that she had been absent from the country since October 1984 and had not
returned as of 15 January 1985, the date of the questioned order, leaving respondent Olbes
alone to administer the estate.
In her motion for reconsideration of the Order dated 15 January 1985, petitioner explained to the
court a quo that her absence from the country was due to the fact that she had to accompany
her ailing husband to the United States for medical treatment. 13 It appears too that petitioner's

absence from the country was known to respondent Olbes, and that the latter and petitioner
Gonzales had continually maintained correspondence with each other with respect to the
administration of the estate during the petitioner's absence from the country. 14 As a matter of
fact, petitioner, while in the United States, sent respondent Olbes a letter addressed to the Land
Bank of the Philippines dated 14 November 1984, and duly authenticated by the Philippine
Consulate in San Francisco, authorizing her (Olbes) to receive, and collect the interests
accruing from the Land Bank bonds belonging to the estate, and to use them for the payment of
accounts necessary for the operation of the administration. 15
The above facts, we note, show that petitioner had never abandoned her role as coadministratrix of the estate nor had she been remiss in the fullfilment of her duties. Suffice it to
state, temporary absence in the state does not disqualify one to be an administrator of the
estate. Thus, as held in re Mc Knight's Will, a temporary residence outside of the state,
maintained for the benefit of the health of the executors' family, is not such a removal from the
state as to necessitate his removal as executor.
. . . It seems quite clear that a temporary absence from the state on account of ill
health, or on account of business or for purposes of travel or pleasure, would not
necessarily establish the fact that an executor "has removed" from the estate,
within the intent of the statute. The learned surrogate was evidently satisfied that
the sojourn of these executors in New Jersey was nothing more than a departure
from the state for the benefit of relatives, not designed to constitute a permanent
change of abode, and contemplating a return to New York as soon as the
purpose of their absence should be accomplished. In this view, I am inclined to
think that he was right in refusing to hold that he was constrained to revoke the
letters by the provisions of the Code to which I have referred. I therefore advise
an affirmance of the order. 16
Finally, it seems that the court a quo seeks refuge in the fact that two (2) of the other three (3)
heirs of the estate of the deceased (Teresa Olbes and Cecilia Favis Gomez) have opposed the
retention or re-appointment of petitioner as co-administratrix of the estate. Suffice it to state that
the removal of an administrator does not lie on the whims, caprices and dictates of the heirs or
beneficiaries of the estate, nor on the belief of the court that it would result in orderly and
efficient administration. In re William's Adm'r., the court held:
A county court having appointed a stranger administrator as expressly authorized
by Ky. St. 3897, after the relatives of decedent had lost their right of precedence,
could not remove the appointee merely because of the request of relatives and
the belief upon the part of the court that the best interest of deceased would be
thereby subserved, since the administrator had such an interest as entitled him to
protection from removal without cause. 17
As the appointment of petitioner Beatriz F. Gonzales was valid, and no satisfactory cause for her
removal was shown, the court a quo gravely abused its discretion in removing her. Stated
differently, petitioner Beatriz F. Gonzales was removed without just cause. Her removal was
therefore improper.
WHEREFORE, the petition is GRANTED. The Order of the court a quo dated 15 January 1985
removing petitioner Beatriz F. Gonzales as co-administratrix in Special Proceedings No. 021,
entitled "In the Matter of the Intestate Estate of Ramona Gonzales Vda. de Favis" and the Order

of the same Court dated 15 May 1985 denying reconsideration of said Order, are hereby
REVERSED and SET ASIDE. Petitioner is ordered reinstated as co-administratrix of said estate.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
November 2, 1916
G.R. No. 10959
PRIMITIVA PARAS, petitioner-appellant,
vs.
LUDOVICO NARCISO, objector-appellee.
Francisco Siopongco for appellant.
Crossfield and O'Brien for appellee.
CARSON, J.:
This is an appeal from a judgment denying probate to a document purporting to be
the last will and testament of Mariano Magsino, deceased, on the ground that it had
not been executed by the deceased; that the signature thereto was forged; and that
the instrument had been prepared and signed by the witnesses after the death of
the alleged testator.
Except as to alleged error in the admission of certain testimony as to the
handwriting of the deceased, the appellant's assignment of errors deals exclusively
with alleged errors of the trial court in accepting as true or declining to believe the
testimony of certain witnesses. The trial judge saw and heard these witnesses
testify, and there is nothing in the record which would justify us in disturbing his
findings as to the respective credibility or lack of credibility of the various witnesses.
Accepting these findings as we do there can be no doubt as to the correctness of
the conclusions of the court below touching the time, form, and manner in which
the instrument in question was executed.
It is not necessary to make an express ruling at this time as to whether or not
certain witnesses who testified as to the genuineness of certain signatures of the
deceased were properly qualified as handwriting experts. The genuineness of the
signatures in question was duly established in the manner and form prescribed in
section 327 of theCode of Civil Procedure ; and, indeed, these signatures appear to
have been admitted in evidence as genuine signatures of the deceased without
objection by the appellant. In like manner the other matters testified to by the
alleged handwriting experts appear to have been established by other evidence in
the record, and it is quite clear from the opinion filed by the trial judge that he relied
rather on his own opinion, after comparison of the undoubtedly genuine signature of
the deceased with the signature attached to the alleged will as authorized in the

section of the Code of Civil Procedurejust mentioned, rather than upon the
statements of the alleged experts. We agree with his conclusions in this regard and
even if it were held that these handwriting experts had failed to qualify as such, the
admission of their evidence in the record would at most be error without prejudice.
At the conclusion of appellant's brief some question is raised as to whether the
appellee had sufficient interest in the estate of the deceased to maintain his
opposition to the admission of the alleged will to probate. This question does not
appear to have been raised in the court below, and no error is assigned as to the
action of the trial judge with regard thereto. It is very clear that counsel for
appellant cannot be heard to raise this question for the first time in a passing
comment in his brief filed on appeal.
We do not doubt that before any person may intervene in proceedings had in the
Courts of First Instance for the probate of a will, he should be required to show an
interest in the will or in the property affected thereby either as executor or
otherwise; and that strangers should not be permitted. over the objection of the real
parties in interest, to embarras the proceedings by meddling or intruding
themselves in matters with which they have no concern.
The admission to probate of a will may be opposed or contested by, and only by,
persons having some interest in the estate which will be affected and concluded by
the probate of the proposed will. (40 Cyc., 1230, and cases cited.).
But the mere fact that a stranger has been permitted to oppose or contest the
probate of a will is not reversible error and does not invalidate the proceedings
where no objection is interposed by any of the parties in interest .The judgment of
the court in probate proceedings is not based on the fact that there is or is not
opposition to the probate of the will but upon the production of evidence which
discloses that there are or are not sufficient grounds for the probate of the will as
propounded; and the reason for the rule excluding strangers from contesting the
will, is not that thereby the court may be prevented from learning facts which would
justify or necessitate a denial of probate, but rather that the courts and the litigants
should not be molested by the intervention in the proceedings of persons with no
interest in the estate which would entitle them to be heard with relation thereto.
In the case at bar no objection was made in the court below to the intervention of
the contestant, and no motion was made either in that court or in this to exclude
the contestant. We conclude therefore that, assuming that this contestant had no
interest in the estate, a fact which, is substantially conceded in the brief submitted
by his counsel, nevertheless, his intervention in the proceedings, in the absence of
objection by any interested party, did not constitute reversible error.
It is to be observed further that the judgment of the court below, denying probate to
the instrument propounded as the last will and testament of Mariano Magsino,
deceased, was based on the evidence introduced at the hearing on the probate
proceedings. That evidence, as we have said, fully sustains the findings of the
probate judge that this instrument is not the last will and testament of the deceased
.No objection was made to the introduction of this evidence on the ground that it

was submitted by a stranger who should not have been permitted to intervene in
the proceedings .Having been admitted to record without objection, and being
competent, relevant and material, and conclusive in support of the judgment of the
trial court, it would be absurd for us to hold that the judgment below erred in basing
his judgment thereon, merely on the ground that on appeal it is made to appear or
is admitted that the contestant had no interest in the estate. Whether the
contestant had or had not any right to intervene, the evidence submitted at the trial
without objection, conclusively sustains the findings of the trial judge on which he
properly based his denial of probate.
The judgment entered in the court below should be affirmed, with costs of this
instance against the appellant .So ordered.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23372

June 14, 1967

IN RE: INTESTATE ESTATE OF THE LATE PIO DURAN. CIPRIANO DURAN and MIGUEL
DURAN, petitioners-appellants,
vs.
JOSEFINA B. DURAN, movant-oppositor and appellee.
A. C. Aguilar, N. J. Quisumbing and E. Quisumbing-Fernando for petitioners-appellants.
Bausa, Ampil and Suarez for movant-oppositor-appellee.
BENGZON J.P, J.:
Pio Duran died without testament on February 28, 1961 in Guinobatan Albay. Among his alleged
heirs are Josefina Duran, as surviving spouse; several brothers and sisters; nephews and
nieces.
Subsequent to his death, on June 2, 1962, Cipriano Duran, one of the surviving brothers,
executed a public instrument assigning and renouncing his hereditary rights to the decedent's
estate in favor of Josefina Duran, for the consideration of P2,500.00.
A year later, on June 8, 1963, Cipriano Duran filed in the Court of First Instance of Albay a
petition for intestate proceedings to settle Pio Duran's estate, further asking that he be named
the administrator. An ex parte motion to be appointed special administrator was also filed by
him.
Against said petition, Josefina Duran filed on August 9, 1963 an opposition, praying for its
dismissal upon the ground that the petitioner is not an "interested person" in the estate, in view
of the deed of transfer and renunciation the estate, in view of afore-stated, attaching a copy of
the same; in the alternative, she asked to be appointed administratrix.

Replying to this, Cipriano alleged, on September 11, 1963, alleged in his opposition to the
motion to dismiss, that Josefina Duran was not the decedent's wife. Anent the deed of
assignment, he contended that the same was procured thru fraud, with gross inadequacy of
price and vitiated by lesion.
Still later, another brother of the decedent, Miguel Duran, filed on September 14, 1963, a
petition to be joined as co-petitioner of Cipriano. Josefina Duran moved to strike out said petition
as an improper attempt to intervene in the case. She also filed a reply to Cipriano's opposition to
her motion to dismiss. In turn, Miguel filed an opposition to Josefina's motion to strike
out.1wph1.t
Acting on said motions, on June 3, 1964, the Court of First Instance issued an order dismissing
the petition of Cipriano for his lack of interest in the estate. Said lack of interest was premised
on the deed of transfer executed by Cipriano, regarding which the court declared itself without
power to examine in said proceedings, collaterally, the alleged fraud, inadequacy of price and
lesion that would render it rescissible or voidable. And with the petition's dismissal, Miguel's
petition to be joined as co-petitioner was deemed without leg to stand on.
Appeal to Us directly, on questions of law, was taken by Cipriano and Miguel Duran.
The Rules of Court provides that a petition for administration and settlement of an estate must
be filed by an "interested person" (See. 2, Rule 79). Appellants contend that the deed of
assignment executed by Cipriano did not operate to render him a person without interest in the
estate. Relying on In re Irene Santos, L-11848, May 31, 1962, they argue that an assignment by
one heir of his share in the estate to a co-heir amounts to a partition needing approval by the
settlement court to be effective; and that the assigning heir does not lose his status as a person
interested in the estate, even after said assignment is approved by the court.
The situation in the Santos case involves an assignment between co-heirs pendente lite, during
the course of settlement proceedings, properly and validly commenced. At the time of said
assignment, therefore, the settlement court had already acquired jurisdiction over the properties
of estate. As a result, any assignment regarding the same had to be approved by said court.
And since the approval the court is not deemed final until the estate is closed the assigning heir
remains an interested person in proceedings even after said approval, which can be vacated is
given.
In the present case, however, the assignment took place when no settlement proceedings was
pending. The properties subject matter of the assignment were not under the jurisdiction of a
settlement court. Allowing that the assignment must be deemed a partition as between the
assignor and assignee, the same does not need court approval to be effective as between the
parties. An extrajudicial partition is valid as between the participants even if the requisites of
Sec. 1, Rule 74 for extrajudicial partition are not followed, since said requisites are for purposes
of binding creditors and non-participating heirs only (Hernandez v. Andal, 78 Phil. 196). Should it
be contended that said partition was attended with fraud, lesion or inadequacy of price, the
remedy is to rescind or to annul the same in an action for that purpose. And in the meanwhile,
assigning heir cannot initiate a settlement proceedings, for until the deed of assignment is
annulled or rescinded, it is deemed valid and effective against him, so that he is left without that
"interest" in the estate required to petite for settlement proceedings.

Anent appellant Miguel Duran, he sought in his petition below to "join petitioner Cipriano Duran
as co-petitioner in the latter's petition . . . and incorporates herein by adoption all the allegations
made in said petition." (Record on Appeal, pp. 45-46). The same, therefore, amounted to a
petition to intervene in the settlement proceedings. As aptly ruled by the court a quo, since there
was really no settlement proceedings in the first place, the petition to intervene must be denied.
Finally, although Josefina Duran prayed to be appointed administratrix, her doing so did not
amount to ratification of the petition for settlement under the ruling in Eusebio v. Valmores, 97
Phil. 163, since she did so merely by way of an alternative prayer, should her motion to dismiss
fail. And said motion to dismiss was properly sustained.
Wherefore, the dismissal order appealed from is hereby affirmed, with costs against appellants.
So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. L-44888 February 7, 1992

PILIPINAS SHELL PETROLEUM CORPORATION, petitioner,
vs.
FIDEL P. DUMLAO, Judge of the Court of First Instance of Agusan Del Norte and Butuan
City, BONIFACIO CANONOY, Judicial Administrator of the Estate of Regino Canonoy,
CARMEN VDA. DE CANONOY, TEODULO CANONOY, REGINO CANONOY, JR.,
MARIANITA CANONOY GUINTO and GLORIA CANONOY BASA, respondents.
Dominguez & Paderna Law Offices Co. for petitioner.
Wenceslao B. Rosales for private respondents.

DAVIDE, JR., J.:

Brought to focus in this petition are the following issues: (a) whether the jurisdictional facts that
need to be stated in a petition for letters of administration under Section 2(a), Rule 79 of the
Rules of Court include the specific assertion that the petitioner therein is an "interested person,"
and (b) whether the administration court may properly and validly dismiss a petition for letters of
administration filed by one who is not an "interested person" after having appointed an heir of
the decedent as administrator of the latter's intestate estate and set for pre-trial a claim against
the said estate

Ricardo M. Gonzalez, District Manager of Shell Philippines, Inc. for Mindanao (hereinafter
referred to as Shell), filed on 8 January 1973 a petition entitled "In the Matter of the Intestate
Estate of the Deceased Regino Canonoy, Petition for Letters of Administration, Ricardo M.
Gonzalez, Petitioner" with the then Court of First Instance (now Regional Trial Court) of Agusan
del Norte and Butuan City, praying therein that he be appointed judicial administrator of the
estate of the deceased Regino Canonoy. The case was docketed as SP PROC. No. 343 and
was raffled to Branch II of the trial court.
On 27 January 1973, Judge Vicente B. Echavez, Jr. of Branch II issued an Order (1) setting the
hearing on the petition for 23 March 1973 at 8:30 a.m.; (2) directing that the order be published,
at petitioner's expense, once a week for three (3) consecutive weeks in a newspaper with a
nationwide circulation published regularly by a government agency or entity, or in any
newspaper published and edited in any part of the country which is in operation during the
existence of the present national emergency and of general circulation in the province of
Agusan del Norte and in Butuan City, if any there be; and (3) ordering that copies of the order
be sent by registered mail or personal delivery, at the petitioner's expense, to each of all the
known heirs of the deceased Regino Canonoy, within the periods prescribed by Section 4, Rule
76 of the Rules of Court. 1
In their Opposition to the issuance of letters of administration to Gonzalez filed on 21 March
1973, 2 private respondents, who are heirs of Regino Canonoy, allege that: Gonzalez "is a
complete stranger to the intestate estate" of Regino Canonoy; he is "not even a creditor" of the
estate; he is a resident of Davao City and thus if appointed as administrator of the estate, the
bulk of which is located in Butuan City, "he would not be able to perform his duties efficiently;"
and he is an employee of Shell Philippines, Inc., an alleged creditor of the estate, and so "he
would not be able to properly and effectively protect the interest of the estate in case of
conflicts." They, however, "propose" and pray that since Bonifacio Canonoy, one of Regino's
sons, enjoys preference in appointment pursuant to Section 6, Rule 78 of the Rules of Court, he
should "be appointed administrator of the said intestate estate and the corresponding letters of
administration be issued in his favor."
On 25 July 1973, after due hearing, the trial court appointed Bonifacio Canonoy as administrator
of the intestate estate of Regino Canonoy, 3 having found him competent to act as such. None
of the parties moved to reconsider this order or appealed therefrom. On 23 November 1973,
herein petitioner Shell, then known as Shell Philippines, Inc., filed its claim against the estate of
the deceased Regino Canonoy. The duly appointed administrator, Bonifacio Canonoy, filed on 9
October 1974 a Motion to Dismiss the claim of Shell 4 which the latter contested by filing an
Opposition. Shell likewise filed an amended claim against the estate. 5 On 12 May 1975, the
administrator filed his Reply to the Opposition to Motion to Dismiss. 6 On 25 May 1975, he filed
an Answer to the amended claim filed by Shell. 7 In the said Answer, he interposes compulsory
counterclaims for the estate in the amount of P659,423.49 representing rentals for land
occupied by the Shell Service Station, lighting allowances, allowances for salaries and wages of
service attendants, sales commission due the deceased Regino Canonoy and reasonable
attorney's fees. Petitioner filed an answer to the Counterclaim.
Upon joinder of the issues on Shell's claim, the trial court, this time presided over by respondent
Judge Fidel P. Dumlao, set the pre-trial for 15 August 1975. 8 This was later re-set to 23
September 1975. 9

On 18 August 1975, petitioner filed a motion to require the judicial administrator to file an
inventory of the properties of the deceased. 10
At the pre-trial held on 23 September 1975, counsel for the administrator requested for time to
file a Motion to Dismiss the case. In an Order issued on that date, the court granted him ten (10)
days to file the motion; opposing counsel was likewise given ten (10) days from receipt of the
same to file whatever pleading he may deem proper to file, after which the motion shall be
deemed submitted for resolution. 11 The motion was filed on 30 September 1975. It alleges that
the court did not acquire jurisdiction over the subject matter and nature thereof because the
petitioner therein, Mr. Gonzalez, is not the "interested person" contemplated by Section 2, Rule
79 of the Rules of Court. 12 Shell filed its Opposition to the Motion on 16 October 1975 13 on the
ground that the trial court had acquired jurisdiction over the case to issue letters of
administration as the interest of Gonzalez in the estate is not a jurisdictional fact that needs to
be alleged in the petition. If at all, Gonzalez' lack of interest in the estate of the deceased only
affected his competence to be appointed administrator. In an Order dated 8 November 1975,
respondent Judge, finding the motion to be well-taken and meritorious, dismissed the
case. 14 The motion for its reconsideration having been denied by the trial court on 23 January
1976, 15 Shell filed the instant petition which it denominated as a petition for review
on certiorari under Rule 45 of the Rules of Court.
In the Resolution dated 6 December 1976, this Court required the respondents to comment on
the petition; 16 the latter complied with the same on 31 January 1977. 17 Thereafter, on 7
February 1977, this Court resolved, inter alia, to treat the petition for review as a special civil
action under Rule 65 of the Rules of Court and require the parties to submit their respective
Memoranda; 18 petitioner filed its Memorandum on 4 April 1977 19 while the respondents filed
theirs on 3 June 1977. 20
The petition is impressed with merit; it must perforce be granted.
Under the peculiar circumstances of the case, the trial court clearly acted with grave abuse of
discretion when it dismissed SP PROC. No. 343 after having set for pre-trial petitioner's
amended claim against the estate. That said dismissal was predicated solely on the ground that
petitioner therein, Ricardo Gonzalez, is not an "interested person," and that, since such interest
is a jurisdictional requirement, the trial court acquired no jurisdiction over the case, serves only
to compound the error.
1. Section 2, Rule 79 of the Rules of Court provides:
xxx xxx xxx
Sec. 2. Contents of petition of letters of administration. A petition for letters of
administration must be filed by an interested person and must show, so far as
known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, and the names
and residences of the creditors, of the decedent;
(c) The probable value and character of the property of the estate;

(d) The name of the person for whom letters of administration are
prayed.
But no defect in the petition shall render void the issuance of letters of
administration.
xxx xxx xxx
The jurisdictional facts alluded to are: the death of the testator, his residence at the time of his
death in the province where the probate court is sitting or, if he is an inhabitant of a foreign
country, his having left his estate in such province. 21 These facts are amply enumerated in the
petition filed by Gonzalez. 22 The fact of death of the intestate and of his residence within the
country are foundation facts upon which all the subsequent proceedings in the administration of
the estate rest, and that if the intestate was not an inhabitant of the state at the time of his
death, and left no assets in the state, and none came into it afterwards, no jurisdiction is
conferred on the court to grant letters of administration in any county. 23 Clearly, the allegation
that a petitioner seeking letters of administration is an interested person, does not fall within the
enumeration of jurisdictional facts. Of course, since the opening sentence of the section
requires that the petition must be filed by an interested person, it goes without saying that a
motion to dismiss may lie not on the basis of lack of jurisdiction on the part of the court, but
rather on the ground of lack of legal capacity to institute the proceedings.
This is precisely what happened in Saguinsin vs. Lindayag, 24 where the dismissal of a petition
for letters of administration was affirmed because the petitioner "is not an heir of her deceased
sister and, therefore, has no material and direct interest in her estate." 25 In the said case, this
Court defined an interested party as one who would be benefited by the estate, such as an heir,
or one who has a claim against the estate, such as a creditor; this interest must be material and
direct, not merely indirect or contingent. 26
The Saguinsin doctrine is not, however, without exception. An objection to a petition for letters of
administration on that ground may be barred by waiver or estoppel.
Private respondents herein did not file a motion to dismiss the petition filed by Gonzalez on the
ground of lack of capacity to sue; 27 they instead filed an Opposition which, unfortunately, did not
ask for the dismissal of the petition but merely opposed the issuance of letters of administration
in favor of Gonzalez because, among other reasons, he is a stranger to the estate. The
Opposition also proposed that Bonifacio Canonoy, one of the children of the deceased Regino
Canonoy, be appointed administrator of the latter's intestate estate. The failure to move for a
dismissal amounted to a waiver of the above-mentioned ground. Section 8, Rule 15 of the Rules
of Court provides that:
A motion attacking a pleading or a proceeding shall include all objections then
available, and all objections not so included shall be deemed waived.
However, if a motion to dismiss is not filed, as what obtains in this case, any of the grounds
available for such a motion, except for improper venue, may be pleaded as an affirmative
defense, and a preliminary hearing thereon may be had as if a motion to dismiss had been
filed. 28 Excepted from the above rules are the following grounds: (a) failure to state a cause of
action which may be alleged in a later pleading if one is permitted, or by a motion for judgment

on the pleadings, or at the trial on the merits; and (b) lack of jurisdiction over the subject matter
of the action, 29 subject to the exception as hereinafter discussed.
In Insurance Company of North America vs. C.F. Sharp & Co., Inc., 30 this Court ruled:
Finally, appellant would contend that plaintiff has no capacity to sue and is not
the real party in interest. It is now too late to raise these objections here. These
should have been asserted in the motion to dismiss filed by defendant below. Not
having been included therein, they are now barred by the rule on omnibus
motion.
By proposing that Bonifacio Canonoy be appointed as administrator instead of Mr. Gonzalez,
private respondents have in fact approved or ratified the filing of the petition by the latter.
In Eusebio vs. Valmores, 31 We held that:
xxx xxx xxx
The evidence submitted in the hearing does not satisfactorily prove that the
petitioner was legally adopted; hence, he did not have any interest in the
properties of the deceased Rosalia Saquitan. Under ordinary circumstances,
such defect would authorize the dismissal of the proceedings especially in view
of the fact that the surviving spouse of Rosalia Saquitan had filed an affidavit of
adjudication under the provisions of Section 1 of Rule 74 of the Rules. Counsel
for Domingo Valmores, however, had not objected to the application for the
appointment of an administrator; he only objected to the appointment of the said
stranger Eulogio Eusebio as administrator, claiming to have the right as surviving
spouse to be appointed as such administrator. By this act of Domingo Valmores,
surviving spouse of the deceased, therefore, the fatal defect in the petition may
be considered, as cured. In other words, the filing of the petition for the
appointment of an administrator may be considered as having been ratified by
the surviving husband, Domingo Valmores, and for this reason the proceedings
may not be dismissed.
2. There can be no dispute that the trial court had acquired jurisdiction over SP PROC. No. 343.
Immediately after the filing of the case, the trial court complied with Section 3, Rule 79 of the
Rules of Court by issuing the Order dated 27 January 1973. At the initial hearing on 25 July
1973, petitioner Gonzalez established the jurisdictional requirements by submitting in evidence
proof of publication and service of notices of the petition. Thereafter, it heard the evidence on
the qualifications and competence of Bonifacio Canonoy, then appointed him as the
administrator and finally directed that letters of administration be issued to him, and that he
takes his oath of office after putting up a surety or property bond in the amount of P5,000.00. 32
It is be presumed that Bonifacio Canonoy immediately qualified as administrator because in that
capacity, he filed a motion to dismiss petitioner's claim against the estate, 33 a Reply to the
Opposition to the motion to dismiss 34 and an Answer to the petitioner's amended claim against
the estate wherein he interposed a counterclaim, 35 praying thus:
WHEREFORE, it is most respectfully prayed of this Honorable Court to dismiss
the above-mentioned "Amended Claim Against the Estate" and to order the

claimant to pay into the intestate estate of Regino Canonoy the said sum of
P659,423.49, together with the interest thereon at the legal rate beginning from
the date hereof, the reasonable attorney's fees for the prosecution of this
counterclaim, and costs;
OR IN THE ALTERNATIVE, in the event that any sum is found due from and
payable by the said intestate estate of Regino Canonoy in favor of the said
claimant, the said amount be deducted from the above-mentioned sum and,
thereafter, to order the claimant to pay the balance remaining unto the said
intestate estate of Regino Canonoy, together with interest thereon at the legal
rate beginning from date hereof, the reasonable attorney's fees for the
prosecution of this counterclaim, and costs.
Clearly, therefore, not only had the administrator and the rest of the private respondents
voluntarily submitted to the jurisdiction of the trial court, they even expressly affirmed and
invoked such jurisdiction in praying for reliefs and remedies in their favor, namely: (a) denial of
Gonzalez' prayer to be appointed as administrator, (b) appointment of Bonifacio Canonoy as
administrator, (c) denial of petitioner Shell's amended claim against the estate, and (d) the
granting of the counterclaim. Hence, they cannot now be heard to question the jurisdiction of the
trial court. While it may be true that jurisdiction may be raised at any stage of the proceedings, a
party who has affirmed and invoked it in a particular matter to secure an affirmative relief cannot
be allowed to afterwards deny that same jurisdiction to escape penalty.
In Tijam, et al. al. vs. Sibonghanoy, et al., 36 this Court held:
It has been held that a party can not invoke the jurisdiction of a court to secure
affirmative relief against his opponent and, after obtaining or failing to obtain such
relief, repudiate or question that same jurisdiction (Dean vs. Dean, 136 Or. 694,
86 A.L.R. 79). In the case just cited, by way of explaining the rule, it was further
said that the question whether (sic) the court had jurisdiction either of the subjectmatter of the action or of the parties was not important in such cases because
the party is barred from such conduct not because the judgment or order of the
court is valid and conclusive as an adjudication, but for the reason that such a
practice can not be tolerated obviously for reasons of public policy.
Furthermore, it has also been held that 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 (Pease vs. Rathbun-Jones etc.,
243 U.S. 273, 61 L. Ed. 715, 37 S. Ct. 283; St. Louis etc. vs. McBride, 141 U.S.
127, 35 L. Ed. 659). And in Littleton vs. Burgess, 16 Wyo. 58, the Court said that
it is not right for a party who has affirmed and invoked the jurisdiction of a court in
a particular matter to secure an affirmative relief, to afterwards deny that same
jurisdiction to escape a penalty.
The respondent Judge should have lent his ears to Tijam vs. Sibonghanoy instead of
peremptorily granting the motion to dismiss in an Order which does not even care to expound
on why the court found the said motion to be meritorious. He exhibited undue haste in removing
the case from his docket and in abdicating judicial authority and responsibility. Howsoever
viewed, he committed grave abuse of discretion.

WHEREFORE, the instant petition is hereby GRANTED and the Order of respondent Judge of 8
November 1975 in SP PROC. No. 343 is hereby SET ASIDE. The court below is further ordered
to hear and decide petitioner's claim against the estate in said case, unless supervening events
had occurred making it unnecessary, and to conduct therein further proceedings pursuant to the
Rules of Court until the case is closed and terminated.
Costs against private respondents.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-4783

May 26, 1952

JULITA RELUCIO, petitioner,

vs.
HON. RAMON R. SAN JOSE, ETC., respondents.
Jose P. Villareal and Rosendo J. Tansinsin for petitioner. Enrique Rimando for respondent
Equitable Banking Corporation.
Guillermo Plana for claimant Godofredo M. Tinio.
PARAS, C. J.:
In special proceeding No. 70588 of the Court of First Instance of Manila, the herein petitioner,
Julita Relucio, was appointed administratrix of the testate estate of Felipe Relucio, Sr., qualifying
as such on August 24, 1925. Upon petition filed on June 27, 1950 by Lorenzo, Rolando and
Leticia Relucio, to which the petitioner filed an opposition, the Court of First Instance of Manila
issued an order on January 15, 1951, appointing Rolando Relucio as administrator in
substitution of the petitioner. The latter, failing to obtain a reconsideration, filed a notice of
appeal. Before the appeal could be perfected, Rolando Relucio moved for the immediate
execution of the order appointing him as administrator. In the order of March 20, 1951, however,
the court merely made reference to the letters of administration issued in favor of Rolando
Relucio and did not pass on the motion for immediate execution. On April 3, 1951, Rolando
Relucio filed a motion praying that the petitioner be declared in contempt of court for failing to
deliver to him, after demand, all papers, documents, titles and properties of the estate under her
administration. In the order dated April 10, 1951, the Court of First Instance of Manila denied
this motion for contempt and appointed the Equitable Banking Corporation as special
administrator pending the appeal of the petitioner from the order of January 15, 1951. The court
ruled that the appeal suspended the appointment of Rolando Relucio as administrator; but in the
same breath it justified the appointment of the special administrator by arguing that, if the
petitioner has to remain as administratrix during the pendency of her appeal, "a removed

administrator may easily nullify such removal by interposing an appeal." Upon denial of her
motion for reconsideration, the petitioner instituted in this Court the present petition for certiorari.
From the very position taken by the respondent Judge of the Court of First Instance of Manila, it
is plain that the motion for immediate execution of the order of January 15, 1951, was in effect
denied, with the result that the petitioner must be deemed as having the right to continue as
administratrix until her appeal is finally disposed of. It is noteworthy that the petitioner was
named in the will of Felipe Relucio, Sr., (already duly probated) not only as administratrix but as
executrix, and her substitution by Rolando Relucio in virtue of the appealed order of January 15,
1951 is not for any cause, but is based solely on the circumstance that Rolando Relucio is an
heir. At any rate, as already noted, the respondent Judge had not seen fit to order, for any
special reason, the immediate execution of the order of January 15, 1951.
The cases in which a special administrator may be appointed are specified in section 1 of Rule
81 of the Rules of Court which provides as follows: "When there is delay in granting letters
testamentary or of administration occasioned by an appeal from the allowance or disallowance
of a will, or from any other cause, the court may appoint a special administrator to collect and
take charge of the estate of the deceased and executors or administrators thereupon
appointed." A special administrator may also be appointed in a case covered by section 8 of
Rule 87 which provides as follows: "If the executor or administrator has a claim against the
estate he represents, he shall give notice thereof, in writing, to the court, and the court shall
appoint a special administrator who shall, in the adjustment of such claim, have the same power
and be subject to the same liability as the general administrator or executor in the settlement of
other claims. The court may order the executor or administrator to pay to the special
administrator necessary funds to defend such claim."
There is no pretense that the case at bar is one falling under either section 1 of Rule 81 or
section 8 of Rule 87. In any view of the case, there is a regular administrator. Pending her
appeal from the order of January 15, 1951, the petitioner had the right to act as administratrix. If
the respondent Judge had decreed the immediate execution of the order of January 15, 1951,
Rolando Relucio would then be the administrator pending petitioner's appeal. Consequently, the
respondent Judge exceeded his jurisdiction in appointing the respondent Equitable Banking
Corporation as special administrator.
Wherefore, the petition is hereby granted and the order of the respondent Judge of April 10,
1951, appointing the Equitable Banking Corporation as special Administrator is set aside,
without costs. So ordered.
Feria, Pablo, Bengzon, Tuason, Montemayor, Bautista Angelo and Labrador, JJ., concur.
[G.R. No. 97356. September 30, 1992.]
HON. ARTURO C. CORONA, in his capacity as Acting Secretary of the
Department of Transportation and Communications, COMMODORE
ROGELIO A. DAYAN, in his capacity as General Manager of the Philippine
Ports Authority, and EUFRACIO SEGUNDO C. PAGUNURAN, in his capacity
as Chairman of the Department of Transportation and Communications
Administrative Action Board, Petitioners, v. COURT OF APPEALS,

LEOPOLDO F. BUNGUBUNG and CRISTETO E. DINOPOL, Respondents.

Abad, Bautista & Associates for respondent Dinopol.
Jose F. Miravite for respondent Bungubung.
SYLLABUS
1. ADMINISTRATIVE LAW; DEPARTMENT OF TRANSPORTATION AND
COMMUNICATIONS; PHILIPPINE PORTS AUTHORITY; GENERAL MANAGER WITH
AUTHORITY TO REMOVE PERSONNEL BELOW THE RANK OF ASSISTANT MANAGER.
The issue of the jurisdiction of the Secretary of the DOTC and/or the AAB over
administrative cases involving personnel below the rank of Assistant General
Manager of the PPA has been raised and settled in Beja, Sr. v. Court of Appeals. The
Court, after discussing the nature of an attached agency and its relationship with
the Department to which it is attached, held: "Hence, the inescapable conclusion is
that with respect to the management of personnel, an attached agency is, to a
certain extent, free from Departmental interference and control. This is more
explicitly shown by P.D. No. 857 which provides: . . . (d) The General Manager
shall, subject to the approval by the Board, appoint and remove personnel below
the rank of Assistant General Manager . . ."cralaw virtua1aw library
2. ID.; ID.; ID.; ID.; ID.; POWER TO INVESTIGATE PERSONNEL, IMPLIEDLY
GRANTED. Although the foregoing section does not expressly provide for a
mechanism for an administrative investigation of personnel, by vesting the power to
remove erring employees on the General Manager, with the approval of the PPA
Board of Directors, the law impliedly grants said officials the power to investigate its
personnel below the rank of Assistant (General) Manager who may be charged with
an administrative offense. During such investigation, the PPA General Manager, as
earlier stated, may subject the employee concerned to preventive suspension. The
investigation should be conducted in accordance with the procedure set out in Sec.
38 of P.D. No. 807. Only after gathering sufficient facts may the PPA General
Manager impose the proper penalty in accordance with law. It is the latter action
which requires the approval of the PPA Board of Directors.
3. ID.; ID.; SECRETARY OF THE DOTC; ONLY WITH APPELLATE JURISDICTION.
The DOTC Secretarys jurisdiction is circumscribed by the aforequoted provisions of
the PPA Charter and the Civil Service Law which give him only appellate jurisdiction
over disciplinary matters involving personnel below that of Assistant General
Manager. He does not have the power to initiate proceedings against a subordinate
official of the PPA; otherwise, we shall witness the absurd spectacle of the DOTC
Secretary acting as complainant-initiator of an administrative case which later falls
upon him to review.
4. ID.; ID.; ID.; ID.; COMPLAINTS INITIATED BY PROPER OFFICIAL OR ANY
AGGRIEVED PARTY; SECRETARY SHOULD INHIBIT HIMSELF FROM FILING

COMPLAINT. What is prescribed by the law and the Beja case is that all
complaints against a PPA official or employee below the rank of Assistant General
Manager shall be filed before the PPA General Manager by the proper officials, such
as the PPA police or any aggrieved party. The aggrieved party should not, however,
be one and the same official upon whose lap the complaint he has filed may
eventually fall on appeal. Nemo potest esse simul
actor
et judex. No man can be at once a litigant and judge. Unless, of course, in an
exceptional case, such official inhibits himself or expresses his willingness at the
outset to waive his right to review the case on appeal.
5. STATUTORY CONSTRUCTION AND INTERPRETATION; WHERE A LATER SPECIAL
LAW IS REPUGNANT TO A PRIOR GENERAL LAW, A PARTIAL REPEAL OF THE LATTER
WILL BE IMPLIED. The Court, however, agrees with the Court of Appeals
ratiocination in arriving at the conclusion that Sec. 8, Art. V of the PPA Charter
should prevail over Sec. 37(b) of the Civil Service Law, considering that where a
later special law on a particular subject is repugnant to, or inconsistent with, a prior
general law on the same subject, a partial repeal of the latter will be implied to the
extent of the inconsistency, or an exception grafted upon the general law. Since, in
a sense, the two laws are in pari materia, both should be construed as to harmonize
with each other. Interpretare et concordare legibus est optimus interpretandi. Every
statute must be so construed and harmonized with other statutes as to form a
uniform system of jurisprudence.
6. ID.; ID.; REASON. For the assumption is that whenever the legislature enacts
a law, it has in mind the previous statutes relating to the same subject matter, and
in the absence of any express repeal or amendment, the new statute is deemed
enacted in accordance with the legislative policy embodied in those prior statutes.
7. REMEDIAL LAW; ACTIONS; JURISDICTION; ISSUE THEREON MAY BE RAISED ON
APPEAL; REQUISITE; CASE AT BAR. While it is true that a party may be estopped
from raising the question of jurisdiction on appeal, such estoppel may be invoked
successfully only if the party failed to raise such question in the early stages of the
proceedings. The records show that Bungubung did not wait for the rendition of an
AAB decision before he questioned its jurisdiction. After filing his answer, he filed a
motion to dismiss on the issue of jurisdiction and even went to the extent of
elevating the issue to this Court. For his part, Dinopol also filed a motion to dismiss
the case against him and, upon its denial, filed a motion for reconsideration. In the
absence of proof of laches on the part of the private respondents, the doctrine
enunciated in Tijam v. Sibonghanoy (23 SCRA 29) upon which petitioners rely, is
inapplicable. As correctly pointed out by counsel for respondent Dinopol, it has been
clearly held in People v. Eduarte (182 SCRA 750) that the ruling in the Tijam case is
but an exception to the general rule that the lack of jurisdiction of a court may be
raised at any stage of the proceedings, even on appeal.
8. ADMINISTRATIVE LAW; EXHAUSTION OF ADMINISTRATIVE REMEDIES; RULE
NOT APPLICABLE WHERE THE ISSUE INVOLVES A QUESTION OF LAW. Neither is
the doctrine of exhaustion of administrative remedies applicable in this case.

Besides the fact that the AAB was patently without jurisdiction to act on the
administrative complaints filed against respondents Dinopol and Bungubung, the
instant petition raises only questions of law, one of the exceptions to the general
rule on exhaustion of administrative remedies. Most enlightening is the following
portion of the decision in Quisumbing v. Gumban: ". . . The doctrine of exhaustion
of administrative remedies is not a hard and fast rule. It has been repeatedly held
that the principle requiring previous exhaustion of administrative remedies is not
applicable where the question in dispute is a purely legal one; where the
controverted act is patently illegal or was performed without jurisdiction or in
excess of jurisdiction; where the respondent is a department secretary, whose acts
as an alter ego of the President, bear the implied or assumed approval of the latter;
where there are circumstances indicating the urgency of judicial intervention; or
where the respondent has acted in disregard of due process. The rule does not
apply where insistence on its observance would result in nullification of the claim
being asserted; and when the rule does not provide a plain, speedy and adequate
remedy."
DECISION
ROMERO, J.:
The instant petition for review on certiorari once again puts in issue the Department
of Transportation and Communications (DOTC) Secretarys power to discipline
employees of the Philippine Ports Authority (PPA) below the rank of Assistant
General Manager in his capacity as alter ego of the President.
On May 15, 1987, President Corazon C. Aquino issued Administrative Order No. 25
creating a Presidential Committee on Public Ethics and Accountability, Sec. 1 of
which declares as a policy that:jgc:chanrobles.com.ph
"The Department Secretary shall be directly responsible to the President in
eradicating graft and corruption in his Department and the offices, agencies,
government-owned or controlled corporations attached to or under his Department.
The Department Secretary shall likewise be responsible to the President for the
implementation of policies and programs to minimize or prevent graft and
corruption and to promote the ethical standards of public service."cralaw virtua1aw
library
Pursuant to the mandate of A.O. No. 25, former DOTC Secretary Rainerio Reyes
issued Office Order No. 88-318 creating the Administrative Action Board (AAB) "to
act, decide and recommend to the Secretary appropriate measures on cases of
administrative malfeasance, irregularities, grafts and acts of corruption in the
Department."cralaw virtua1aw library
On August 26, 1988, two PPA police officers, Rosmelito del Mundo and Geronimo

Gorospe, filed in the AAB which was then presided by Chairman Onofre Villaluz, a
complaint for dishonesty and conduct prejudicial to the best interest of the service
against Leopoldo Bungubung, District Manager of the Port of Manila (AAB-031-88).
Bungubung filed his answer but later, he filed a motion to dismiss assailing the
jurisdictional competence of the AAB on the ground that it was the General Manager
of the PPA who had jurisdiction over the case. AAB denied the motion to dismiss in
a written order which was issued by Secretary Reyes himself upon the
recommendation of the AAB.
Subsequently, the PPA General Manager, Rogelio A. Dayan, filed another "formal
charge" against Bungubung and one Mario Tan for dishonesty, inefficiency and
incompetence in the performance of official duties, willful violation of reasonable
office rules and regulations and/or conduct prejudicial to the best interest of the
service. Docketed as Adm. Case No. 11-01-88, the case was indorsed to the AAB
for appropriate action.
Questioning the jurisdiction of the AAB over the administrative cases against him,
Bungubung filed a petition for certiorari with preliminary injunction and/or
temporary restraining order with this Court (G.R. Nos. 86468-69). In the resolution
of January 26, 1989, the Court required the respondents to file their comment on
the petition and issued a temporary restraining order enjoining the AAB from
further acting on the administrative cases.chanrobles lawlibrary : rednad
Meanwhile, on August 26, 1988 or on the same date that the first administrative
case against Bungubung was filed, Secretary Reyes also filed a complaint with the
AAB against Cristeto Dinopol, then Manager of the Port of Davao, for dishonesty,
grave misconduct, conduct prejudicial to the best interest of the service and for
violation of the Anti-Graft Law (Adm. Case NO. AAB-006-88). PPA General Manager
Dayan then issued a preventive suspension order against Dinopol. On September
19, 1988, said PPA General Manager also filed Adm. Case No. AAB-016-88 against
Dinopol for dishonesty and conduct prejudicial to the best interest of the service.
At the hearings conducted by AAB, Dinopol actively participated. He presented his
evidence therein although he asserted that the PPA General Manager, not the AAB,
had jurisdiction to initiate and conduct an administrative investigation under Sec. 8
of P.D. No. 857, the PPA Charter.
On October 27, 1988, the AAB rendered a decision in Adm. Case AAB-006-88
finding Dinopol guilty as charged and imposed on him the penalty of dismissal from
the service with cause plus the accessory penalties of cancellation of eligibilities,
forfeiture of leave credits and retirement benefits, and disqualification for reemployment in the government service. On November 23, 1988, AAB rendered its
decision in Adm. Case AAB-016-88 also finding Dinopol guilty as charged. He was
also meted the same penalty and its accessories as those imposed on him in Adm.
Case AAB-006-88.
Copies of said decisions were mailed to Dinopol on December 6, 1988 but on that

day, Dinopol filed with the Regional Trial Court of Pasig, 1 a petition for certiorari,
prohibition and mandamus with prayer for preliminary injunction and/or temporary
restraining order challenging the jurisdiction of the AAB over the administrative
cases against him. The following day, said court issued an order directing the
respondents therein (petitioners herein) "to desist from continuing the proceedings
of the Administrative Action Board" and "to observe the status quo on the situation
prior to (Dinopols) suspension."cralaw virtua1aw library
Respondents therein opposed the application for the issuance of a writ of
preliminary injunction but on January 9, 1988, the court issued a resolution
ordering the reinstatement of Dinopol to his former position of Port Manager of
Davao and the payment to him of back salaries and other emoluments during his
preventive suspension. The court also issued the writ of preliminary injunction
prayed for by Dinopol.
A motion praying for the reconsideration of the said resolution and for the
dissolution of the writ was filed by the respondent officials therein. On the other
hand, Dinopol filed a motion to cite the PPA General Manager in contempt of court
for failing to reinstate him and pay his back salaries. On January 26, 1989, the
court denied the motion and directed the immediate implementation of the writ of
preliminary injunction with a warning that in case of non-compliance therewith,
respondent officials therein shall be fined P1,000.00 and imprisoned for a period not
exceeding one month.
This prompted the said respondents to file with this Court a petition
for certiorari and prohibition with an urgent prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction. Acting on the petition which
was captioned as "Hon. Rainerio O. Reyes, etc., Et. Al. v. Engr. Cristeto E. Dinopol,
Et. Al." and docketed as G.R. No. 86646, on February 2, 1989, this Court issued the
temporary restraining order prayed for and enjoined the lower court to cease and
desist from implementing the resolution and writ of preliminary injunction both
dated January 9, 1989 as well as the order of January 26, 1989.
G.R. Nos. 86468-69 (the Bungubung case) and G.R. No. 86646 (the Dinopol case)
were later consolidated upon the submission of the petitioners in the latter case
that the two petitions present the common issue of whether or not the Secretary of
the DOTC and/or the AAB have jurisdiction to initiate and hear administrative cases
against PPA personnel whose rank are below that of an assistant general manager.
After their consolidation, the two cases were referred to the Court of Appeals "for
appropriate action." chanrobles law library
The cases were docketed in the Court of Appeals as CA-G.R. No. SP-17195.
Asserting that the periods of their preventive suspension had been unduly
extended, Bungubung and Dinopol moved for their immediate reinstatement
pendente lite. The Court of Appeals granted the motion in its resolution of July 5
and 20, 1989. Hence, the DOTC Secretary Oscar Orbos, PPA General Manager
Dayan and then AAB Chairman Villaluz interposed a petition for certiorari and
prohibition with urgent prayer for the issuance of a temporary restraining order

and/or writ of preliminary injunction with this Court, submitting the issue of
whether or not Dinopol and Bungubung were entitled to immediate reinstatement
and payment of backwages pending adjudication on the merits of their cases by the
Court of Appeals.
Acting on said petition which was docketed as G.R. No. 92358, on March 20, 1990,
the Court issued a temporary restraining order enjoining the Court of Appeals from
implementing its resolutions of July 5, 1989, July 20, 1989 and January 19, 1990.
In due course, on November 21, 1990, the Court En Banc rendered a decision
granting the petition. 2
On December 17, 1990, the Court of Appeals promulgated its decision in CA-G.R.
SP-17195. 3 In substance, the Court of Appeals ruled that the DOTC Secretary is
without jurisdiction over the administrative cases against Bungubung and Dinopol
for two reasons:chanrob1es virtual 1aw library
First. While the Civil Service Law vests upon the Department heads "jurisdiction to
investigate and decide matters involving disciplinary action against officers and
employees under their jurisdiction," 4 said law cannot prevail over Sec. 8, Art. V of
the PPA Charter (P.D. No. 857) which states that" (t)he General Manager (of the
PPA) shall, subject to the approval of the Board, appoint and remove personnel
below the rank of Assistant General Manager." The Court of Appeals
explained:jgc:chanrobles.com.ph
"The above-quoted provision is in the nature of a special law while the present Civil
Service Law granting jurisdiction to department heads, is in the nature of a general
law. Special law prevails over general law. Being a special rule limited to the
creation and functions of the Philippine Ports Authority, PD No. 857 prevails over
the Civil Service Law, insofar as it involves jurisdiction to remove personnel below
the rank of Assistant General Manager as specifically lodged in the PPA General
Manager. The Civil Service Law authorizes a department head to commence and try
administrative cases, but this general provision must yield to the specific provision
found in the PPA Charter. The particular enactment must be operative, and the
general enactment must be taken to affect only such cases within its general
language as are not within the provisions of the particular enactment (25 R.C.L., p.
1010, citing numerous cases)."cralaw virtua1aw library
The appellate court also stressed that, not only is the PPA Charter a particular law
said Charter, having been enacted on December 23, 1975, is a more recent
enactment than P.D. No. 807 which was issued on October 6, 1975.
Second. The power of review by the Office of the President has been repealed by
P.D. 1409. The DOTC Secretary, acting as the alter ego of the President, can no
longer exercise disciplinary jurisdiction over PPA personnel:jgc:chanrobles.com.ph
". . . Further, the power of review by the Office of the President under P.D. No. 807
was repealed by P.D. 1409 creating the Merit Systems Board in the Civil Service
Commission (Meram v. Edralin, 154 SCRA 235). The theory that Secretary Reyes,

acting as alter ego of the President, can no longer be sustained. The Administrative
Action Board (AAB) of the DOTC must yield to the jurisdiction of the PPA General
Manager." chanrobles virtual lawlibrary
Petitioner moved for the reconsideration of the decision of the Court of Appeals but
the motion was denied. Hence, the instant recourse through a petition for review
on certiorari submitting that the Court of Appeals decision is contrary to law and
settled jurisprudence because: (a) it effectively deprived the DOTC Secretary,
acting as the alter ego of the President, of the authority to control and/or supervise
personnel actions involving employees of the PPA; (b) it nullified the proceedings of
the AAB for want of jurisdiction, notwithstanding that respondent Dinopol submitted
himself to the jurisdiction of the body, and (c) it granted writs of certiorari in favor
of respondents who, on the other hand, failed to exhaust available and adequate
remedies. 5
The issue of the jurisdiction of the Secretary of the DOTC and/or the AAB over
administrative cases involving personnel below the rank of Assistant General
Manager of the PPA has been raised and settled in Beja, Sr. v. Court of Appeals. 6
The Court, after discussing the nature of an attached agency and its relationship
with the Department to which it is attached, held:jgc:chanrobles.com.ph
"Hence, the inescapable conclusion is that with respect to the management of
personnel, an attached agency is, to a certain extent, free from Departmental
interference and control. This is more explicitly shown by P.D. No. 857 which
provides:chanrob1es virtual 1aw library
SECTION 8. Management and Staff .
a) The President shall, upon the recommendation of the Board, appoint the General
Manager and the Assistant General Managers.
b) All other officials and employees of the Authority shall be selected and appointed
on the basis of merit and fitness based on a comprehensive and progressive merit
system to be established by the Authority immediately upon its organization and
consistent with Civil Service rules and regulations. The recruitment, transfer,
promotion, and dismissal of all personnel of the Authority, including temporary
workers, shall be governed by such merit system.
c) The General Manager shall, subject to the approval of the Board, determine the
staffing pattern and the number of personnel of the Authority, define their duties
and responsibilities, and fix their salaries and emoluments. For professional and
technical positions, the General Manager shall recommend salaries and emoluments
that are comparable to those of similar positions in other government-owned
corporations, the provisions of existing rules and regulations on wage and position
classification notwithstanding.
d) The General Manager shall, subject to the approval by the Board, appoint and
remove personnel below the rank of Assistant General Manager.

x.

(Emphasis supplied)
Although the foregoing section does not expressly provide for a mechanism for an
administrative investigation of personnel, by vesting the power to remove erring
employees on the General Manager, with the approval of the PPA Board of Directors,
the law impliedly grants said officials the power to investigate its personnel below
the rank of Assistant (General) Manager who may be charged with an
administrative offense. During such investigation, the PPA General Manager, as
earlier stated, may subject the employee concerned to preventive suspension. The
investigation should be conducted in accordance with the procedure set out in Sec.
38 of P.D. No. 807. Only after gathering sufficient facts may the PPA General
Manager impose the proper penalty in accordance with law. It is the latter action
which requires the approval of the PPA Board of Directors.
From an adverse decision of the PPA General Manager and the Board of Directors,
the employee concerned may elevate the matter to the Department Head or
Secretary. Otherwise, he may appeal directly to the Civil Service Commission. The
permissive recourse to the Department Secretary is sanctioned by the Civil Service
Law (P.D. 807) under the following provisions:chanrob1es virtual 1aw library
SECTION 37. Disciplinary Jurisdiction.
(a) The Commission shall decide upon appeal all administrative disciplinary cases
involving the imposition of a penalty of suspension for more than thirty days, or fine
in an amount exceeding thirty days salary, demotion in rank or salary or transfer,
removal or dismissal from office. A complaint may be filed directly with the
Commission by a private citizen against a government official or employee in which
case it may hear and decide the case or it may deputize any department or agency
or official or group of officials to conduct the investigation. The results of the
investigation shall be submitted to the Commission with recommendation as to the
penalty to be imposed or other action to be taken.
(b) The heads of departments, agencies and instrumentalities, provinces, cities and
municipalities shall have jurisdiction to investigate and decide matters involving
disciplinary action against officers and employees under their jurisdiction. The
decisions shall be final in case the penalty imposed is suspension for not more than
thirty days or fine in an amount not exceeding thirty days salary. In case the
decision rendered by a bureau or office head is appealable to the Commission, the
same may be initially appealed to the department and finally to the Commission
and pending appeal, the same shall be executory except when the penalty is
removal, in which case the same shall be executory only after confirmation by the
department head.
x

x.

(Emphasis supplied.)
It is, therefore, clear that the transmittal of the complaint by the PPA General
Manager to the AAB was premature. The PPA General Manager should have first
conducted an investigation, made the proper recommendation for the imposable
penalty and sought its approval by the PPA Board of Directors. It was discretionary
on the part of the herein petitioner to elevate the case to the then DOTC Secretary
Reyes. Only then could the AAB take jurisdiction of the case." chanrobles virtual
lawlibrary
Petitioners contention, therefore, that the DOTC Secretary, acting as alter ego of
the President, has jurisdiction over PPA personnel like the private respondents
herein, is correct only to a certain extent. The DOTC Secretarys jurisdiction is
circumscribed by the aforequoted provisions of the PPA Charter and the Civil
Service Law which give him only appellate jurisdiction over disciplinary matters
involving personnel below that of Assistant General Manager. He does not have the
power to initiate proceedings against a subordinate official of the PPA; otherwise,
we shall witness the absurd spectacle of the DOTC Secretary acting as complainantinitiator of an administrative case which later falls upon him to review.
What is prescribed by the law and the Beja case is that all complaints against a PPA
official or employee below the rank of Assistant General Manager shall be filed
before the PPA General Manager by the proper officials, such as the PPA police or
any aggrieved party. The aggrieved party should not, however, be one and the
same official upon whose lap the complaint he has filed may eventually fall on
appeal. Nemo potest esse simul actor et judex. No man can be at once a litigant
and judge. Unless, of course, in an exceptional case, such official inhibits himself or
expresses his willingness at the outset to waive his right to review the case on
appeal.
Moreover, the fact that the PPA is a government agency "attached" to the DOTC
extensively affects the extent of whatever control and supervision the said
Departments Secretary may exercise. In Beja, the Court
said:jgc:chanrobles.com.ph
"Attachment of an agency to a Department is one of the three administrative
relationships mentioned in Book IV, Chapter 7 of the Administrative Code of 1987,
the other two being supervision and control, and administrative
supervision.Attachment is defined in Sec. 38 thereof as follows:chanrob1es virtual
1aw library
(3) Attachment. (a) This refers to the lateral relationship between the
department or its equivalent and the attached agency or corporation for purposes of
policy and program coordination. The coordination shall be accomplished by having
the department represented in the governing board of the attached agency or
corporation, either as chairman or as a member, with or without voting rights, if
this is permitted by the charter; having the attached corporation or agency comply
with a system of periodic reporting which shall reflect the progress of programs and

projects; and having the department or its equivalent provide general policies
through its equivalent provide general policies through its representative in the
board, which shall serve as the framework for the internal policies of the attached
corporation or agency;
x

x.

An attached agency has a larger measure of independence from the Department to

which it is attached than one which is under departmental supervision and control
or administrative supervision. This is borne out by the lateral relationship between
the Department and the attached agency. The attachment is merely for policy and
program coordination. with respect to administrative matters, the independence of
an attached agency from Departmental control and supervision is further reinforced
by the fact that even an agency under a Departments administrative supervision is
free from Departmental interference with respect to appointments and other
personnel actions in accordance with the decentralization of personnel functions
under the Administrative Code of 1987. Moreover, the Administrative Code explicitly
provides that Chapter 8 of Book IV on supervision and control shall not apply to
chartered institutions attached to a Department." (Emphasis supplied.)
Thus, while PPA personnel are, as mandated by P.D. 868, "embraced in the Civil
Service," the DOTC may not "act directly whenever a specific function is entrusted
by law or regulation to a subordinate." 7
It should be noted that in AAB-031-88, the complaint against Bungubung was
erroneously filed directly with the AAB and it was no less than DOTC Secretary
Reyes who, upon the recommendation of the AAB, denied Bungubungs motion to
dismiss. The PPA General Manager also erroneously indorsed to the AAB Adm. Case
No. 11-01-88, the complaint he himself filed against Bungubung, without having
conducted an investigation and recommending the appropriate penalty as required
by the facts found at said investigation.chanrobles virtual lawlibrary
With regard to Adm. Case No. AAB-006-88 against Dinopol, it was filed with the
AAB by Secretary Reyes himself while the other case against Dinopol, Adm. Case
No. 016-88, was filed by the PPA General Manager directly with the AAB without
said PPA officials appropriate investigation and corresponding recommendation.
Under these circumstances, the absurd situation mentioned above could ensue: the
DOTC Secretary deciding on appeal his own complaint. On the other hand, in Adm.
Case No. 016-88, the PPA General Manager abdicated his duty of conducting an
investigation and submitting his recommendation, as demanded by his factual
findings.
Filing a case directly with the AAB may be a shortcut to accomplish the laudable
purpose of A.O. No. 25. However, whatever advantage may accrue therefrom in
terms of time element, may be offset by the denial of the right to a fair and
unbiased proceeding insofar as the personnel complained against is concerned. At
the very least, he should be afforded the opportunity of confronting the charges
against him in the forum where the law requires that they should be ventilated. If

at all, this procedure may deprive the DOTC Secretary of control and supervision
over personnel of the PPA below the rank of Assistant General Manager but only at
the initial stage of an administrative proceeding. Should the defendant employee be
dissatisfied with the ruling of the PPA General Manager, he can always elevate his
case to the DOTC Secretary wherein the AAB will play a pivotal role or, at his
option, go directly to the Civil Service Commission. Hence, the Court of Appeals is
less than accurate in its sweeping statement that the DOTC Secretary, as alter ego
of the President, has completely lost control and supervision over disciplinary
matters involving the PPA employees concerned. In fact, in the administrative
hierarchy set up under both the PPA Charter and the Civil Service Law, the DOTC
Secretary has the ultimate say before recourse to the courts may be made.
The Court, however, agrees with the Court of Appeals ratiocination in arriving at
the conclusion that Sec. 8, Art. V of the PPA Charter should prevail over Sec. 37(b)
of the Civil Service Law, considering that where a later special law on a particular
subject is repugnant to, or inconsistent with, a prior general law on the same
subject, a partial repeal of the latter will be implied to the extent of the
inconsistency, or an exception grafted upon the general law. 8 Since, in a sense, the
two laws are in pari materia, both should be construed as to harmonize with each
other. Interpretare et concordare legibus est optimus interpretandi. Every statute
must be so construed and harmonized with other statutes as to form a uniform
system of jurisprudence. 9
For the assumption is that whenever the legislature enacts a law, it has in mind the
previous statutes relating to the same subject matter, and in the absence of any
express repeal or amendment, the new statute is deemed enacted in accordance
with the legislative policy embodied in those prior statutes. 10
Applying the foregoing rules on statutory construction, the DOTC Secretary has not
entirely relinquished his power of control and supervision over an attached agency,
such as the PPA. The PPA Charter merely defined and, to a certain extent, delimited
such power which, under the Civil Service law is of general application.chanrobles
virtual lawlibrary
Petitioners claim that the private respondents are estopped from challenging the
jurisdiction of the AAB as they actively participated in the proceedings therein
deserves scant consideration. While it is true that a party may be estopped from
raising the question of jurisdiction on appeal, 11 such estoppel may be invoked
successfully only if the party failed to raise such question in the early stages of the
proceedings. The records show that Bungubung did not wait for the rendition of an
AAB decision before he questioned its jurisdiction. After filing his answer, he filed a
motion to dismiss on the issue of jurisdiction and even went to the extent of
elevating the issue to this Court. For his part, Dinopol also filed a motion to dismiss
the case against him and, upon its denial, filed a motion for reconsideration. 12 In
the absence of proof of laches on the part of the private respondents, the doctrine
enunciated in Tijam v. Sibonghanoy 13 upon which petitioners rely, is inapplicable.
As correctly pointed out by counsel for respondent Dinopol, it has been clearly held
in People v. Eduarte 14 that the ruling in the Tijam case is but an exception to the

general rule that the lack of jurisdiction of a court may be raised at any stage of the
proceedings, even on appeal.
Neither is the doctrine of exhaustion of administrative remedies applicable in this
case. Besides the fact that the AAB was patently without jurisdiction to act on the
administrative complaints filed against respondents Dinopol and Bungubung, the
instant petition raises only questions of law, one of the exceptions to the general
rule on exhaustion of administrative remedies. Most enlightening is the following
portion of the decision in Quisumbing v. Gumban: 15
". . . The doctrine of exhaustion of administrative remedies is not a hard and fast
rule. It has been repeatedly held that the principle requiring previous exhaustion of
administrative remedies is not applicable where the question in dispute is a purely
legal one; where the controverted act is patently illegal or was performed without
jurisdiction or in excess of jurisdiction; where the respondent is a department
secretary, whose acts as an alter ego of the President, bear the implied or assumed
approval of the latter; where there are circumstances indicating the urgency of
judicial intervention; or where the respondent has acted in disregard of due
process. The rule does not apply where insistence on its observance would result in
nullification of the claim being asserted; and when the rule does not provide a plain,
speedy and adequate remedy." (Emphasis supplied.).chanrobles.com:cralaw:red
WHEREFORE, the petition for review on certiorari is hereby DENIED. The decisions
of the Administrative Action Board in AAB-006-88 and AAB-016-88 against Cristeto
E. Dinopol are hereby declared NULL AND VOID and, together with the cases
against Leopoldo F. Bungubung, AAB-031-88 and Adm. Case No. 11-01-88, they
shall be REMANDED to the General Manager of the Philippine Ports Authority for
immediate reinvestigation.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-59935 September 30, 1982
FLORA DE GRACIA REGNER VDA. DE DAYRIT, petitioner,
vs.
HON. JOSE R. RAMOLETE, Presiding Judge of the Court of First Instance of Cebu,
Branch III, ATTY. CASIMIRO R. MADARANG, JR., and ATTY. VICENTE JAYME, respondents.

MELENCIO-HERRERA, J.:
This special civil action for "Certiorari, Prohibition and Mandamus" seeks mainly to nullify
respondent Judge's Order dated March 3, 1982, in Special Proceedings No. 4004-R of the

Court of First Instance of Cebu, cancelling petitioner's appointment as Special Administratrix of

the estate of her husband, Norberto L. Dayrit, and appointing in her stead private respondent
Atty. Casimiro R. Madarang, Jr., her nephew, as Special Administrator with a bond of
P10,000.00.
The background facts, only in so far as pertinent to this Petition, follow:
Petitioner married Norberto L. Dayrit in 1934. She alleged that Norberto did not bring any
property into the marriage but that she brought a vast estate of paraphernal properties inherited
from her parents. Her husband managed said properties by tolerance and that out of the fruits
thereof they acquired some conjugal assets. Norberto abandoned her in 1972.
After 6 years of separation in fact, Norberto returned in 1978 and filed before the Juvenile and
Domestic Relations Court of Cebu a "Complaint for Recovery of Administration of Conjugal
Properties", which, according to petitioner included paraphernal properties administered by her
during their separation. Norberto was represented by counsel, Atty. Vicente Jayme. In a
Compromise Agreement submitted and approved in that case, Norberto was to administer the
properties in Iligan City in addition to specified conjugal properties in Cebu City, while petitioner
was to exercise full administration over her paraphernal and some conjugal properties in Cebu
City except those turned over to Norberto. There was to be no accounting between the spouses.
On February 14, 1981, Norberto died leaving a Will naming herein respondent, Atty. Vicente
Jayme, as executor. The latter then filed Special Proceedings No. 4004-R for probate of the Will
and praying that he be appointed Executor, and before admission of the Will to probate, as
Special Administrator. Petitioner and their adopted daughter, Lydia Dayrit, opposed respondent
Jayme's appointment alleging that petitioner was better qualified to manage the estate.
Petitioner likewise prayed for the disallowance of the Will and that the proceedings be converted
to intestacy.
On March 19, 1981, petitioner was appointed by the Probate Court presided by respondent
Judge, as Special Administrator, without bond.
On April 18, 1981, petitioner submitted an Inventory of Properties and prayed for its approval.
Respondent Jayme opposed it principally on the ground that petitioner had merely submitted a
token list of properties.
On January 19, 1982, the Court directed petitioner to render an accounting of her
administration.
In the meantime, petitioner prayed the Court for authority to assign 10 shares of Club Filipino,
Inc., Cebu, to Atty. Casimiro Madarang, Jr., her nephew and counsel, to act not only as her
proxy but to sit in the Board of Directors. The Probate Court allowed the assignment.
On January 27, 1982, respondent Atty. Jayme presented a Petition for Change of Special
Administratrix praying that Atty. Madarang, Jr., be appointed as substitute Special Administrator
on the ground that petitioner had filed an inadequate inventory; that she had transferred and
placed in the name of third parties certain properties worth approximately P4 million; that she
had not rendered any accounting; and that she was no longer capable to discharge her duties
as Special Administratrix.

Because of Atty. Jayme's petition to have Atty. Madarang appointed as substitute Special
Administrator, Atty. Madarang prayed that he be allowed to inhibit himself during the hearing for
change of Administrator.
As an offshoot of Atty. Jayme's aforesaid petition for Atty. Madarang's appointment, petitioner
terminated Atty. Madarang's services as her counsel. Attys. Amadeo D. Seno and Regalado E.
Maambong then appeared as petitioner's new counsel.
In the meantime, on February 10, 1982, Atty. Madarang filed a Petition for Guardianship in
Special Proceedings No. 2090-JD before the Juvenile and Domestic Relations Court of Cebu
praying that he be appointed guardian over the property of petitioner, who was already 73 years
old, and that Dr. Domingo Veloso be appointed as guardian over her person. It was claimed that
petitioner was afflicted with chronic diabetes causing mental lapses, forgetfulness, and diabetic
coma, and that she was becoming the target of deceit and exploitation, Respondent Atty.
Jayme, and two of petitioner's nearest relatives intervened in that proceeding and joined Atty.
Madarang's petition for guardianship.
Back to the Probate case, on February 12, 1982, the Court directed petitioner to deposit with the
Philippine National Bank in the name of the Estate all her cash receipts from conjugal
properties. Petitioner prayed for reconsideration of that Order.
On February 26, 1982, the Probate Court granted an exparte Motion of respondent Atty. Jayme
ordering that the Bank of America and the City Bank, both in the United States, be informed that
the deposits in said banks being incustodia legis, no withdrawals should be allowed without
Court approval. Petitioner moved for reconsideration alleging that all said deposits were her
paraphernal properties.
On March 3, 1982, the Probate Court issued the disputed Order, principally challenged herein,
revoking petitioner's Letters of Special Administration on the grounds that petitioner had shown
interest adverse to many valuable properties of the Estate, the compelling need to preserve the
estate properties from further unauthorized disbursements and other dispositions, and for the
protection of creditors. Respondent Atty. Madarang was appointed in her stead, with a bond of
P10,000.00.
On March 15, 1982, the Court authorized Atty. Madarang, as Special Administrator, to withdraw
P30,000.00 from the deposit in the Philippine National Bank for payment of workers' salaries,
and ordered petitioner to turn over the sum of P60,000.00 representing management fee
charged to the Cebu Coliseum in 1981 and disbursed without Court authority.
It was the foregoing series of Orders that prompted petitioner to resort to this Petition against
respondent Judge and private respondent Attys. Madarang and Jayme, claiming that Atty.
Madarang's replacement of petitioner on March 3, 1982, as well as respondent Judge's Orders
of January 19, 1982, February 12, 1982, February 26, 1982, and March 15, 1982 were arbitrary,
whimsical and done with grave abuse of discretion amounting to lack of jurisdiction.
In his Comment, Atty. Madarang contended that respondent Court had the duty to issue the
disputed interlocutory Orders for the maintenance and preservation of the estate.
For his part, Atty. Jayme denied any grave abuse of discretion by respondent Judge, contending
that petitioner was never denied due process of law.

We gave due course to this Petition.

Without delving into the other questions raised, which are unnecessary for the resolution of the
principal issue, it is our considered opinion that inasmuch as petitioner-wife owns onehalf of the
conjugal properties and that she, too, is a compulsory heir of her husband, to deprive her of any
hand in the administration of the estate prior to the probate of the will would be unfair to her
proprietary interests. Justice and equity also demand that opposing sides in a probate
proceeding be adequately represented in the administration of the decedent's estate. 1
And this, despite the distrust and animosity allegedly pervading the relationship between
petitioner and respondent Atty. Madarang, for it is expected that the Probate Court will be on
hand to resolve conflicts that may arise, the paramount consideration always being the best
interests of the estate.
As in the case of Corona vs. Court of Appeals, G. R. No. L-59821, promulgated on August 30,
1982, the Special Administrators are reminded that while they may have respective interests to
protect, they are officers of the Court subject to the supervision and control of the Probate Court
and are expected to work in the best interests of the entire estate, its smooth administration,
and its earliest settlement, and that whatever differences there may be between them shall be
ironed out fairly and objectively for the attainment of that end.
WHEREFORE, the Court of First Instance of Cebu, Branch III, is hereby ordered, in Special
Proceedings No. 4004R pending before it, to appoint petitioner Flora de Gracia Regner Vda. de
Dayrit as co-Special Administrator, without bond, who shall act as such jointly with Atty. Casimiro
R. Madarang, Jr., the other Special Administrator, on all matters affecting the estate.
No pronouncement as to costs.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 94284 April 8, 1991

RICARDO C. SILVERIO, petitioner,
vs.
THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as Judge of the Regional Trial
Court of Cebu City, Branch IX, and PEOPLE OF THE PHILIPPINES, respondents.
Quisumbing, Torres & Evangelista for petitioner.

MELENCIO-HERRERA, J.:p

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court praying that the
Decision of respondent Court of Appeals in CA-G.R. SP No. 15827, entitled "Ricardo C. Silverio
vs. Hon. Benigno C. Gaviola, etc., et al.," dated 31 January 1990, as well as the Resolution of
29 June 1990 denying reconsideration, be set aside.
On 14 October 1985, Petitioner was charged with violation of Section 20 (4) of the Revised
Securities Act in Criminal Case No. CBU-6304 of the Regional Trial Court of Cebu. In due time,
he posted bail for his provisional liberty.
On 26 January 1988, or more than two (2) years after the filing of the Information, respondent
People of the Philippines filed an Urgent ex parte Motion to cancel the passport of and to issue
a hold-departure Order against accused-petitioner on the ground that he had gone abroad
several times without the necessary Court approval resulting in postponements of the
arraignment and scheduled hearings.
Overruling opposition, the Regional Trial Court, on 4 April 1988, issued an Order directing the
Department of Foreign Affairs to cancel Petitioner's passport or to deny his application therefor,
and the Commission on Immigration to prevent Petitioner from leaving the country. This order
was based primarily on the Trial Court's finding that since the filing of the Information on 14
October 1985, "the accused has not yet been arraigned because he has never appeared in
Court on the dates scheduled for his arraignment and there is evidence to show that accused
Ricardo C. Silverio, Sr. has left the country and has gone abroad without the knowledge and
permission of this Court" (Rollo, p. 45). Petitioner's Motion for Reconsideration was denied on
28 July 1988.
Petitioner's Certiorari Petition before the Court of Appeals met a similar fate on 31 January
1990. Hence, this Petition for Review filed on 30 July 1990.
After the respective pleadings required by the Court were filed, we resolved to give due course
and to decide the case.
Petitioner contends that respondent Court of Appeals erred in not finding that the Trial Court
committed grave abuse of discretion amounting to lack of jurisdiction in issuing its Orders, dated
4 April and 28 July 1988, (1) on the basis of facts allegedly patently erroneous, claiming that the
scheduled arraignments could not be held because there was a pending Motion to Quash the
Information; and (2) finding that the right to travel can be impaired upon lawful order of the
Court, even on grounds other than the "interest of national security, public safety or public
health."
We perceive no reversible error.
1) Although the date of the filing of the Motion to Quash has been omitted by Petitioner, it is
apparent that it was filed long after the filing of the Information in 1985 and only after several
arraignments had already been scheduled and cancelled due to Petitioner's non-appearance. In
fact, said Motion to Quash was set for hearing only on 19 February 1988. Convincingly shown
by the Trial Court and conformed to by respondent Appellate Court is the concurrence of the
following circumstances:
1. The records will show that the information was filed on October 14, 1985. Until
this date (28 July 1988), the case had yet to be arraigned. Several scheduled

arraignments were cancelled and reset, mostly due to the failure of accused
Silverio to appear. The reason for accused Silverio's failure to appear had
invariably been because he is abroad in the United States of America;
2. Since the information was filed, until this date, accused Silverio had never
appeared in person before the Court;
3. The bond posted by accused Silverio had been cancelled twice and warrants
of arrest had been issued against him all for the same reason failure to
appear at scheduled arraignments.
In all candidness, the Court makes the observation that it has given accused
Silverio more than enough consideration. The limit had long been reached
(Order, 28 July 1988, Crim. Case No. CBU-6304, RTC, Cebu, p. 5; Rollo, p. 73).
Patently, therefore, the questioned RTC Orders, dated 4 April 1988 and 28 July 1988, were not
based on erroneous facts, as Petitioner would want this Court to believe. To all appearances,
the pendency of a Motion to Quash came about only after several settings for arraignment had
been scheduled and cancelled by reason of Petitioner's non-appearance.
2) Petitioner's further submission is that respondent Appellate Court "glaringly erred" in finding
that the right to travel can be impaired upon lawful order of the Court, even on grounds other
than the "interest of national security, public safety or public health."
To start with, and this has not been controverted by Petitioner, the bail bond he had posted had
been cancelled and Warrants of Arrest had been issued against him by reason, in both
instances, of his failure to appear at scheduled arraignments. Warrants of Arrest having been
issued against him for violation of the conditions of his bail bond, he should be taken into
custody. "Bail is the security given for the release of a person in custody of the law, furnished by
him or a bondsman, conditioned upon his appearance before any court when so required by the
Court or the Rules (1985 Rules on Criminal Procedure, as amended, Rule 114, Secs. 1 and 2).
The foregoing condition imposed upon an accused to make himself available at all times
whenever the Court requires his presence operates as a valid restriction of his right to travel
(Manotoc, Jr. vs. Court of Appeals, et al. No. 62100, 30 May 1986, 142 SCRA 149). A person
facing criminal charges may be restrained by the Court from leaving the country or, if abroad,
compelled to return (Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138). So it is also that
"An accused released on bail may be re-arrested without the necessity of a warrant if he
attempts to depart from the Philippines without prior permission of the Court where the case is
pending (ibid., Sec. 20 [2nd
par. ]).
Petitioner takes the posture, however, that while the 1987 Constitution recognizes the power of
the Courts to curtail the liberty of abode within the limits prescribed by law, it restricts the
allowable impairment of the right to travel only on grounds of interest of national security, public
safety or public health, as compared to the provisions on freedom of movement in the 1935 and
1973 Constitutions.
Under the 1935 Constitution, the liberty of abode and of travel were treated under one provision.
Article III, Section 1(4) thereof reads:

The liberty of abode and of changing the same within the limits prescribed by law
shall not be impaired.
The 1973 Constitution altered the 1935 text by explicitly including the liberty of travel, thus:
The liberty of abode and of travel shall not be impaired except upon lawful order
of the court or when necessary in the interest of national security, public safety, or
public health (Article IV, Section 5).
The 1987 Constitution has split the two freedoms into two distinct sentences and treats them
differently, to wit:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.
Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right to travel
only on the grounds of "national security, public safety, or public health."
The submission is not well taken.
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty
of travel may be impaired even without Court Order, the appropriate executive officers or
administrative authorities are not armed with arbitrary discretion to impose limitations. They can
impose limits only on the basis of "national security, public safety, or public health" and "as may
be provided by law," a limitive phrase which did not appear in the 1973 text (The Constitution,
Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the phraseology in the
1987 Constitution was a reaction to the ban on international travel imposed under the previous
regime when there was a Travel Processing Center, which issued certificates of eligibility to
travel upon application of an interested party (See Salonga vs. Hermoso & Travel Processing
Center, No. 53622, 25 April 1980, 97 SCRA 121).
Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the
inherent power of the Courts to use all means necessary to carry their orders into effect in
criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial
officer, all auxillary writs, process and other means necessary to carry it into effect may be
employed by such Court or officer (Rule 135, Section 6, Rules of Court).
Petitioner's argument that the ruling in Manotoc, Jr., v. Court of Appeals, et al. (supra), to the
effect that the condition imposed upon an accused admitted to bail to make himself available at
all times whenever the Court requires his presence operates as a valid restriction on the right to
travel no longer holds under the 1987 Constitution, is far from tenable. The nature and function
of a bail bond has remained unchanged whether under the 1935, the 1973, or the 1987
Constitution. Besides, the Manotoc ruling on that point was but a re-affirmation of that laid down
long before in People v. Uy Tuising, 61 Phil. 404 (1935).
Petitioner is facing a criminal charge. He has posted bail but has violated the conditions thereof
by failing to appear before the Court when required. Warrants for his arrest have been issued.
Those orders and processes would be rendered nugatory if an accused were to be allowed to

leave or to remain, at his pleasure, outside the territorial confines of the country. Holding an
accused in a criminal case within the reach of the Courts by preventing his departure from the
Philippines must be considered as a valid restriction on his right to travel so that he may be
dealt with in accordance with law. The offended party in any criminal proceeding is the People of
the Philippines. It is to their best interest that criminal prosecutions should run their course and
proceed to finality without undue delay, with an accused holding himself amenable at all times to
Court Orders and processes.
WHEREFORE, the judgment under review is hereby AFFIRMED. Costs against petitioner,
Ricardo C. Silverio.
SO ORDERED.