G.R. No.

45629

September 22, 1938

ANTILANO G. MERCADO, petitioner,

vs.
ALFONSO SANTOS, Judge of First Instance of Pampanga, respondents.
ROSARIO BASA DE LEON, ET AL., intervenors.
Claro M. Recto and Benigno S. Aquino for petitioner.
Esperanza de la Cruz and Heracio Abistao for respondents.
Sotto and Sotto for intervenors.
LAUREL, J.:
On May 28, 1931, the petitioner herein filed in the Court of First Instance of P
ampanga a petition for the probate of the will of his deceased wife, Ines Basa.
Without any opposition, and upon the testimony of Benigno F. Gabino, one of the
attesting witnesses, the probate court, on June 27,1931, admitted the will to pr
obate. Almost three years later, on April 11, 1934, the five intervenors herein
moved ex parte to reopen the proceedings, alleging lack of jurisdiction of the c
ourt to probate the will and to close the proceedings. Because filed ex parte, t
he motion was denied. The same motion was filed a second time, but with notice t
o the adverse party. The motion was nevertheless denied by the probate court on
May 24, 1934. On appeal to this court, the order of denial was affirmed on July
26, 1935. (Basa vs. Mercado, 33 Off. Gaz., 2521.)
It appears that on October 27, 1932, i. e., sixteen months after the probate of
the will of Ines Basa, intervenor Rosario Basa de Leon filed with the justice of
the peace court of San Fernando, Pampanga, a complaint against the petitioner h
erein, for falsification or forgery of the will probated as above indicated. The
petitioner was arrested. He put up a bond in the sum of P4,000 and engaged the
services of an attorney to undertake his defense. Preliminary investigation of t
he case was continued twice upon petition of the complainant. The complaint was
finally dismissed, at the instance of the complainant herself, in an order dated
December 8, 1932. Three months later, or on March 2, 1933, the same intervenor
charged the petitioner for the second time with the same offense, presenting the
complaint this time in the justice of the peace court of Mexico, Pampanga. The
petitioner was again arrested, again put up a bond in the sum of P4,000, and eng
aged the services of counsel to defend him. This second complaint, after investi
gation, was also dismissed, again at the instance of the complainant herself who
alleged that the petitioner was in poor health. That was on April 27, 1933. Som
e nine months later, on February 2, 1934, to be exact, the same intervenor accus
ed the same petitioner for the third time of the same offense. The information w
as filed by the provincial fiscal of Pampanga in the justice of the peace court
of Mexico. The petitioner was again arrested, again put up a bond of P4,000, and
engaged the services of defense counsel. The case was dismissed on April 24, 19
34, after due investigation, on the ground that the will alleged to have been fa
lsified had already been probated and there was no evidence that the petitioner
had forged the signature of the testatrix appearing thereon, but that, on the co
ntrary, the evidence satisfactorily established the authenticity of the signatur
e aforesaid. Dissatisfied with the result, the provincial fiscal, on May 9, 1934
, moved in the Court of First Instance of Pampanga for reinvestigation of the ca
se. The motion was granted on May 23, 1934, and, for the fourth time, the petiti
oner was arrested, filed a bond and engaged the services of counsel to handle hi
s defense. The reinvestigation dragged on for almost a year until February 18, 1
934, when the Court of First Instance ordered that the case be tried on the meri
ts. The petitioner interposed a demurrer on November 25, 1935, on the ground tha
t the will alleged to have been forged had already been probated. This demurrer
was overruled on December 24, 1935, whereupon an exception was taken and a motio
n for reconsideration and notice of appeal were filed. The motion for reconsider
ation and the proposed appeal were denied on January 14, 1936. The case proceede

d to trial, and forthwith petitioner moved to dismiss the case claiming again th
at the will alleged to have been forged had already been probated and, further,
that the order probating the will is conclusive as to the authenticity and due e
xecution thereof. The motion was overruled and the petitioner filed with the Cou
rt of Appeals a petition for certiorari with preliminary injunction to enjoin th
e trial court from further proceedings in the matter. The injunction was issued
and thereafter, on June 19, 1937, the Court of Appeals denied the petition for c
ertiorari, and dissolved the writ of preliminary injunction. Three justices diss
ented in a separate opinion. The case is now before this court for review on cer
tiorari.
Petitioner contends (1) that the probate of the will of his deceased wife is a b
ar to his criminal prosecution for the alleged forgery of the said will; and, (2
) that he has been denied the constitutional right to a speedy trial.
1.
Section 306 of our Code of Civil Procedure provides as to the effect of
judgments.
SEC. 306.
Effect of judgment.
The effect of a judgment or final order in a
n action or special proceeding before a court or judge of the Philippine Islands
or of the United States, or of any State or Territory of the United States, hav
ing jurisdiction to pronounce the judgment or order, may be as follows.
1.
In case of a judgment or order against a specific thing, or in respect t
o the probate of a will, or the administration of the estate of a deceased perso
n, 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 th
ing, the will or administration, or the condition or relation of the person Prov
ided, That 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.
xxx

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xxx

(Emphasis ours.)
Section 625 of the same Code is more explicit as to the conclusiveness of the du
e execution of a probate will. It says.
SEC. 625.
Allowance Necessary, and Conclusive as to Execution. No will sha
ll pass either the real or personal estate, unless it is proved and allowed in t
he 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 it
s due execution. (Emphasis ours.)
(In Manahan vs. Manahan 58 Phil., 448, 451), we held:
. . . The decree of probate is conclusive with respect to the due execution ther
eof and it cannot be impugned on any of the grounds authorized by law, except th
at of fraud, in any separate or independent action or proceeding. 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; Ramir
ez vs. Gmur, 42 Phil., 855; and Chiong Jocsoy vs. Vano, 8 Phil., 119.
In 28 R. C. L., p. 377, section 378, it is said.
The probate of a will by the probate court having jurisdiction thereof is usuall
y considered as conclusive as to its due execution and validity, and is also con
clusive that the testator was of sound and disposing mind at the time when he ex

ecuted the will, and was not acting under duress, menace, fraud, or undue influe
nce, and that the will is genuine and not a forgery. (Emphasis ours.)
As our law on wills, particularly section 625 of our Code of Civil Procedure afo
requoted, was taken almost bodily from the Statutes of Vermont, the decisions of
the Supreme Court of the State relative to the effect of the probate of a will
are of persuasive authority in this jurisdiction. The Vermont statute as to the
conclusiveness of the due execution of a probated will reads as follows.
SEC. 2356.
No will shall pass either real or personal estate, unless it is
proved and allowed in the probate court, or by appeal in the county or supreme c
ourt; and the probate of a will of real or personal estate shall be conclusive a
s to its due execution. (Vermont Statutes, p. 451.)
Said the Supreme Court of Vermont in the case of Missionary Society vs. Eells (6
8 Vt., 497, 504): "The probate of a will by the probate court having jurisdictio
n thereof, upon the due notice, is conclusive as to its due execution against th
e whole world. (Vt. St., sec. 2336; Fosters Exrs. vs. Dickerson, 64 Vt., 233.)"
The probate of a will in this jurisdiction is a proceeding in rem. The provision
of notice by Publication as a prerequisite to the allowance of a will is constr
uctive notice to the whole world, and when probate is granted, the judgment of t
he court is binding upon everybody, even against the State. This court held in t
he case of Manalo vs. Paredes and Philippine Food Co. (47 Phil., 938):
The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and the
court acquires jurisdiction over all the persons interested, through the publica
tion of the notice prescribed by section 630 of the Code of Civil Procedure, and
any order that may be entered therein is binding against all of them.
Through the publication of the petition for the probate of the will, the court a
cquires jurisdiction over all such persons as are interested in said will; and a
ny judgment that may be rendered after said proceeding is binding against the wh
ole world.
In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of Vermont held.
In this State the probate of a will is a proceeding in rem being in form and sub
stance upon the will itself to determine its validity. The judgment determines t
he status of the instrument, whether it is or is not the will of the testator. W
hen the proper steps required by law have been taken the judgment is binding upo
n everybody, and makes the instrument as to all the world just what the judgment
declares it to be. (Woodruff vs. Taylor, 20 Vt., 65, 73; Burbeck vs. Little, 50
Vt., 713, 715; Missionary Society vs. Eells, 68 Vt., 497, 504; 35 Atl., 463.) T
he proceedings before the probate court are statutory and are not governed by co
mmon law rules as to parties or causes of action. (Holdrige vs. Holdriges Estate
, 53 Vt., 546, 550; Purdy vs. Estate of Purdy, 67 Vt. 50, 55; 30 Atl., 695.) No
process is issued against anyone in such proceedings, but all persons interested
in determining the state or conditions of the instrument are constructively not
ified by the publication of notice as required by G. L. 3219. (Woodruff vs. Tayl
or, supra; In re Warners Estate 98 Vt., 254; 271; 127 Atl., 362.)
Section 333, paragraph 4, of the Code of Civil Procedure establishes an incontro
vertible presumption in favor of judgments declared by it to be conclusive.
SEC. 333.
Conclusive Presumptions.
The following presumptions or deduction
s, which the law expressly directs to be made from particular facts, are deemed
conclusive.
xxx

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xxx

4.
The judgment or order of a court, when declared by this code to be concl
usive.
Conclusive presumptions are inferences which the law makes so peremptory that it
will not allow them to be overturned by any contrary proof however strong. (Bra
nt vs. Morning Journal Assn., 80 N.Y.S., 1002, 1004; 81 App. Div., 183; see, als
o, Joslyn vs. Puloer, 59 Hun., 129, 140, 13 N.Y.S., 311.) The will in question h
aving been probated by a competent court, the law will not admit any proof to ov
erthrow the legal presumption that it is genuine and not a forgery.
The majority decision of the Court of Appeals cites English decisions to bolster
up its conclusion that "the judgment admitting the will to probate is binding u
pon the whole world as to the due execution and genuineness of the will insofar
as civil rights and liabilities are concerned, but not for the purpose of punish
ment of a crime." The cases of Dominus Rex vs. Vincent, 93 English Reports, Full
Reprint, 795, the first case being decided in 1721, were cited to illustrate th
e earlier English decisions to the effect that upon indictment for forging a wil
l, the probating of the same is conclusive evidence in the defendants favor of i
ts genuine character. Reference is made, however, to the cases of Rex vs. Gibson
, 168 English Reports, Full Reprint, 836, footnote (a), decided in 1802, and Rex
vs. Buttery and Macnamarra, 168 English Reports, Full Reprint, 836, decided in
1818, which establish a contrary rule. Citing these later cases, we find the fol
lowing quotation from Black on Judgments, Vol. II, page 764.
A judgment admitting a will to probate cannot be attacked collaterally although
the will was forged; and a payment to the executor named therein of a debt due t
he decedent will discharge the same, notwithstanding the spurious character of t
he instrument probated. It has also been held that, upon an indictment for forgi
ng a will, the probate of the paper in question is conclusive evidence in the de
fendants favor of its genuine character. But this particular point has lately be
en ruled otherwise.
It was the case of Rex vs. Buttery, supra, which induced the Supreme Court of Ma
ssachussetts in the case of Waters vs. Stickney (12 Allen 1; 90 Am. Dec., 122) a
lso cited by the majority opinion, to hold that "according to later and sounder
decisions, the probate, though conclusive until set aside of the disposition of
the property, does not protect the forger from punishment." This was reproduced
in 28 R.C.L., p. 376, and quoted in Barry vs. Walker (103 Fla., 533; 137 So., 71
1, 715), and Thompson vs. Freeman (149 So., 740, 742), also cited in support of
the majority opinion of the Court of Appeals. The dissenting opinion of the Cour
t of Appeals in the instant case under review makes a cursory study of the statu
tes obtaining in England, Massachussetts and Florida, and comes to the conclusio
n that the decisions cited in the majority opinion do not appear to "have been p
romulgated in the face of statutes similar to ours." The dissenting opinion cite
s Whartons Criminal Evidence (11th ed., sec. 831), to show that the probate of a
will in England is only prima facie proof of the validity of the will (Op. Cit.
quoting Marriot vs. Marriot, 93 English Reprint, 770); and 21 L.R.A. (pp. 68668
9 and note), to show that in Massachussetts there is no statute making the proba
te of a will conclusive, and that in Florida the statute(sec. 1810, Revised Stat
utes) makes the probate conclusive evidence as to the validity of the will with
regard to personal, and prima facie as to real estate. The cases decided by the
Supreme Court of Florida cited by the majority opinion, supra, refer to wills of
both personal and real estate.
The petitioner cites the case of State vs. McGlynn (20 Cal., 233, decided in 186
2), in which Justice Norton of the Supreme Court of California, makes the follow
ing review of the nature of probate proceedings in England with respect to wills
personal and real property.

In England, the probate of wills of personal estate belongs to the Ecclesiastica

l Courts. No probate of a will relating to real estate is there necessary. The r
eal estate, upon the death of the party seized, passes immediately to the devise
e under the will if there be one; or if there be no will, to the heir at law. Th
e person who thus becomes entitled takes possession. If one person claims to be
the owner under a will, and another denies the validity of the will and claims t
o be the owner as heir at law, an action of ejectment is brought against the par
ty who may be in possession by the adverse claimant; and on the trial of such an
action, the validity of the will is contested, and evidence may be given by the
respective parties as to the capacity of the testator to make a will, or as to
any fraud practiced upon him, or as to the actual execution of it, or as to any
other circumstance affecting its character as a valid devise of the real estate
in dispute. The decision upon the validity of the will in such action becomes re
s adjudicata, and is binding and conclusive upon the parties to that action and
upon any person who may subsequently acquire the title from either of those part
ies; but the decision has no effect upon other parties, and does not settle what
may be called the status or character of the will, leaving it subject to be enf
orced as a valid will, or defeated as invalid, whenever other parties may have a
contest depending upon it. A probate of a will of personal property, on the con
trary, is a judicial determination of the character of the will itself. It does
not necessarily or ordinarily arise from any controversy between adverse claiman
ts, but is necessary in order to authorize a disposition of the personal estate
in pursuance of its provisions. In case of any controversy between adverse claim
ants of the personal estate, the probate is given in evidence and is binding upo
n the parties, who are not at liberty to introduce any other evidence as to the
validity of the will.
The intervenors, on the other hand, attempt to show that the English law on will
s is different from that stated in the case of State vs. McGlynn, supra, citing
the following statutes.
1.

The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).

2.

The Court of Probate Act, 1857 (20 and 21 Vict. c. 77).

3.

The Judicature Act, 1873 (36 and 37 Vict. c. 66).

The Wills Act of 1837 provides that probate may be granted of "every instrumenta
l purporting to be testamentary and executed in accordance with the statutory re
quirements . . . if it disposes of property, whether personal or real." The Eccl
esiastical Courts which took charge of testamentary causes (Ewells Blackstone [1
910], p. 460), were determined by the Court of Probate Act of 1857, and the Cour
t of Probate in turn was, together with other courts, incorporated into the Supr
eme Court of Judicature, and transformed into the Probate Division thereof, by t
he Judicature Act of 1873. (Lord Halsbury, The Laws of England[1910], pp. 151156
.) The intervenors overlook the fact, however, that the case of Rex vs. Buttery
and Macnamarra, supra, upon which they rely in support of their theory that the
probate of a forged will does not protect the forger from punishment, was decide
d long before the foregoing amendatory statutes to the English law on wills were
enacted. The case of State vs. McGlynn may be considered, therefore, as more or
less authoritative on the law of England at the time of the promulgation of the
decision in the case of Rex vs. Buttery and Macnamarra.
In the case of State vs. McGlynn, the Attorney General of California filed an in
formation to set aside the probate of the will of one Broderick, after the lapse
of one year provided by the law of California for the review of an order probat
ing a will, in order that the estate may be escheated to the State of California
for the review of an probated will was forged and that Broderick therefore died
intestate, leaving no heirs, representatives or devisees capable of inheriting
his estate. Upon these facts, the Supreme Court of California held.

The fact that a will purporting to be genuine will of Broderick, devising his es
tate to a devisee capable of inheriting and holding it, has been admitted to pro
bate and established as a genuine will by the decree of a Probate Court having j
urisdiction of the case, renders it necessary to decide whether that decree, and
the will established by it, or either of them, can be set aside and vacated by
the judgment of any other court. If it shall be found that the decree of the Pro
bate Court, not reversed by the appellate court, is final and conclusive, and no
t liable to be vacated or questioned by any other court, either incidentally or
by any direct proceeding, for the purpose of impeaching it, and that so long as
the probate stands the will must be recognized and admitted in all courts to be
valid, then it will be immaterial and useless to inquire whether the will in que
stion was in fact genuine or forged. (State vs. McGlynn, 20 Cal., 233; 81 Am. De
c., 118, 121.).
Although in the foregoing case the information filed by the State was to set asi
de the decree of probate on the ground that the will was forged, we see no diffe
rence in principle between that case and the case at bar. A subtle distinction c
ould perhaps be drawn between setting aside a decree of probate, and declaring a
probated will to be a forgery. It is clear, however, that a duly probated will
cannot be declared to be a forgery without disturbing in a way the decree allowi
ng said will to probate. It is at least anomalous that a will should be regarded
as genuine for one purpose and spurious for another.
The American and English cases show a conflict of authorities on the question as
to whether or not the probate of a will bars criminal prosecution of the allege
d forger of the probate will. We have examined some important cases and have com
e to the conclusion that no fixed standard maybe adopted or drawn therefrom, in
view of the conflict no less than of diversity of statutory provisions obtaining
in different jurisdictions. It behooves us, therefore, as the court of last res
ort, to choose that rule most consistent with our statutory law, having in view
the needed stability of property rights and the public interest in general. To b
e sure, we have seriously reflected upon the dangers of evasion from punishment
of culprits deserving of the severity of the law in cases where, as here, forger
y is discovered after the probate of the will and the prosecution is had before
the prescription of the offense. By and large, however, the balance seems inclin
ed in favor of the view that we have taken. Not only does the law surround the e
xecution of the will with the necessary formalities and require probate to be ma
de after an elaborate judicial proceeding, but section 113, not to speak of sect
ion 513, of our Code of Civil Procedure provides for an adequate remedy to any p
arty who might have been adversely affected by the probate of a forged will, muc
h in the same way as other parties against whom a judgment is rendered under the
same or similar circumstances. (Pecson vs. Coronel, 43 Phil., 358.)The aggrieve
d party may file an application for relief with the proper court within a reason
able time, but in no case exceeding six months after said court has rendered the
judgment of probate, on the ground of mistake, inadvertence, surprise or excusa
ble neglect. An appeal lies to review the action of a court of first instance wh
en that court refuses to grant relief. (Banco Espaol Filipino vs. Palanca, 37 Phi
l., 921; Philippine Manufacturing Co. vs. Imperial, 47 Phil., 810; Samia vs. Med
ina, 56 Phil., 613.) After a judgment allowing a will to be probated has become
final and unappealable, and after the period fixed by section 113 of the Code of
Civil Procedure has expired, the law as an expression of the legislative wisdom
goes no further and the case ends there.
. . . The court of chancery has no capacity, as the authorities have settled, to
judge or decide whether a will is or is not a forgery; and hence there would be
an incongruity in its assuming to set aside a probate decree establishing a wil
l, on the ground that the decree was procured by fraud, when it can only arrive
at the fact of such fraud by first deciding that the will was a forgery. There s
eems, therefore, to be a substantial reason, so long as a court of chancery is n

ot allowed to judge of the validity of a will, except as shown by the probate, f

or the exception of probate decrees from the jurisdiction which courts of chance
ry exercise in setting aside other judgments obtained by fraud. But whether the
exception be founded in good reason or otherwise, it has become too firmly estab
lished to be disregarded. At the present day, it would not be a greater assumpti
on to deny the general rule that courts of chancery may set aside judgments proc
ured by fraud, than to deny the exception to that rule in the case of probate de
crees. We must acquiesce in the principle established by the authorities, if we
are unable to approve of the reason. Judge Story was a staunch advocate for the
most enlarged jurisdiction of courts of chancery, and was compelled to yield to
the weight of authority. He says "No other excepted case is known to exist; and
it is not easy to discover the grounds upon which this exception stands, in poin
t of reason or principle, although it is clearly settled by authority. (1 Storys
Eq. Jur. sec. 440.)" (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 129. S
ee, also, Tracy vs. Muir, 121 American State Reports, 118, 125.)
We hold, therefore, that in view of the provisions of sections 306, 333 and 625
of our Code of Civil Procedure, criminal action will not lie in this jurisdictio
n against the forger of a will which had been duly admitted to probate by a cour
t of competent jurisdiction.
The resolution of the foregoing legal question is sufficient to dispose of the c
ase. However, the other legal question with reference to the denial to the accus
ed of his right to a speedy trial having been squarely raised and submitted, we
shall proceed to consider the same in the light of cases already adjudicated by
this court.
2.
The Constitution of the Philippines provides that "In all criminal prose
cutions the accused . . . shall enjoy the right . . . to have a speedy . . . tri
al. . . . (Art. III, sec. 1, par. 17. See, also, G.O. No. 58, sec. 15, No. 7.) S
imilar provisions are to be found in the Presidents Instructions to the Second P
hilippine Commission (par. 11), the Philippine Bill of July 1, 1902 (sec. 5, par
. 2) and the Jones Act of August 29, 1916 (sec. 3, par. 2). The provisions in th
e foregoing organic acts appear to have been taken from similar provisions in th
e Constitution of the United States (6th Amendment) and those of the various sta
tes of the American Union. A similar injunction is contained in the Malolos Cons
titution (art. 8, Title IV), not to speak of other constitutions. More than once
this court had occasion to set aside the proceedings in criminal cases to give
effect to the constitutional injunction of speedy trial. (Conde vs. Judge of Fir
st Instance and Fiscal of Tayabas [1923], 45 Phil., 173; Conde vs. Rivera and Un
son[1924], 45 Phil., 650; People vs. Castaeda and Fernandez[1936]), 35 Off. Gaz.,
1269; Kalaw vs. Apostol, Oct. 15, 1937, G.R. No. 45591; Esguerra vs. De la Cost
a, Aug. 30,1938, G.R. No. 46039.).
In Conde vs. Rivera and Unson, supra, decided before the adoption of our Constit
ution, we said.
Philippine organic and statutory law expressly guarantee that in all criminal pr
osecutions the accused shall enjoy the right to have a speedy trial. Aurelia Con
de, like all other accused persons, has a right to a speedy trial in order that
if innocent she may go free, and she has been deprived of that right in defiance
of law. Dismissed from her humble position, and compelled to dance attendance o
n courts while investigations and trials are arbitrarily postponed without her c
onsent, is palpably and openly unjust to her and a detriment to the public. By t
he use of reasonable diligence, the prosecution could have settled upon the appr
opriate information, could have attended to the formal preliminary examination,
and could have prepared the case for a trial free from vexatious, capricious, an
d oppressive delays.
In People vs. Castaeda and Fernandez, supra, this court found that the accused ha

d not been given a fair and impartial trial. The case was to have been remanded
to the court a quo for a new trial before an impartial judge. This step, however
, was found unnecessary. A review of the evidence convinced this court that a ju
dgment of conviction for theft, as charged, could not be sustained and, having i
n view the right to a speedy trial guaranteed by the Constitution to every perso
n accused of crime, entered a judgment acquitting the accused, with costs de ofi
cio. We said.
. . . The Constitution, Article III, section 1, paragraph 17, guarantees to ever
y accused person the right to a speedy trial. This criminal proceeding has been
dragging on for almost five years now. The accused have twice appealed to this c
ourt for redress from the wrong that they have suffered at the hands of the tria
l court. At least one of them, namely Pedro Fernandez alias Piro, had been con-f
ined in prison from July 20, 1932 to November 27, 1934, for inability to post th
e required bond of P3,000 which was finally reduced to P300. The Government shou
ld be the last to set an example of delay and oppression in the administration o
f justice and it is the moral and legal obligation of this court to see that the
criminal proceedings against the accused come to an end and that they be immedi
ately dis-charged from the custody of the law. (Conde vs. Rivera and Unson, 45 P
hil., 651.)
In Kalaw vs. Apostol, supra, the petitioner invoked and this court applied and g
ave effect to the doctrines stated in the second Conde case, supra. In granting
the writs prayed for, this court, after referring to the constitutional and stat
utory provisions guaranteeing to persons accused of crime the right to a speedy
trial, said:
Se infiere de los preceptos legales transcritos que todo acusado en causa crimin
al tiene derecho a ser juzgado pronta y publicamente. Juicio rapido significa un
juicioque se celebra de acuerdo con la ley de procedimiento criminal y los regl
amentos, libre de dilaciones vejatorias, caprichosas y opersivas (Burnett vs. St
ate, 76 Ark., 295; 88S. W., 956; 113 AMSR, 94; Stewart vs. State, 13 Ark., 720;
Peo. vs. Shufelt, 61 Mich., 237; 28 N. W., 79; Nixon vs. State, 10 Miss., 497; 4
1 AMD., 601; State vs. Cole, 4 Okl. Cr., 25; 109 P., 736; State vs. Caruthers, 1
Okl. Cr., 428; 98 P., 474; State vs. Keefe, 17 Wyo., 227, 98 p., 122;22 IRANS,
896; 17 Ann. Cas., 161). Segun los hechos admitidos resulta que al recurrente se
le concedio vista parcial del asunto, en el Juzgado de Primera Instancia de Sam
ar, solo despues de haber transcurrido ya mas de un ao y medio desde la presentac
ion de la primera querella y desde la recepcion de la causa en dicho Juzgado, y
despues de haberse transferido dos veces la vista delasunto sin su consentimient
o. A esto debe aadirse que laprimera transferencia de vista era claramente injust
ificadaporque el motivo que se alego consistio unicamente en laconveniencia pers
onal del ofendido y su abogado, no habiendose probado suficientemente la alegaci
on del primero de quese hallaba enfermo. Es cierto que el recurrente habia pedid
o que, en vez de sealarse a vista el asunto para el mayo de 1936, lo fuera para e
l noviembre del mismo ao; pero,aparte de que la razon que alego era bastante fuer
te porquesu abogado se oponia a comparecer por compromisos urgentes contraidos c
on anterioridad y en tal circunstancia hubiera quedado indefenso si hubiese sido
obligado a entraren juicio, aparece que la vista se pospuso por el Juzgado amot
u proprio, por haber cancelado todo el calendario judicial preparado por el Escr
ibano para el mes de junio. Declaramos, con visto de estos hechos, que al recurr
ents se leprivo de su derecho fundamental de ser juzgado prontamente.
Esguerra vs. De la Costa, supra, was a petition for mandamus to compel the respo
ndent judge of the Court of First Instance of Rizal to dismiss the complaint fil
ed in a criminal case against the petitioner, to cancel the bond put up by the s
aid petitioner and to declare the costs de oficio. In accepting the contention t
hat the petitioner had been denied speedy trial, this court said:
Consta que en menos de un ao el recurrente fue procesado criminalmente por el ale

gado delito de abusos deshonestos, en el Juzgado de Paz del Municipio de Cainta,

Rizal. Como consecuencia de las denuncias que contra el se presentaron fue arre
stado tres veces y para gozar de libertad provisional, en espera de los juicios,
se vio obligado a prestartres fianzas por la suma de P1,000 cada una. Si no se
da fin al proceso que ultimamente se ha incoado contra el recurrente la incertid
umbre continuara cerniendose sobre el y las consiguientes molestias y preocupaci
ones continuaran igualmente abrumandole. El Titulo III, articulo 1, No. 17,de la
Constitucion preceptua que en todo proceso criminalel acusado tiene derecho de
ser juzgado pronta y publicamente. El Articulo 15, No. 7, de la Orden General No
. 58 dispone asimismo que en las causas criminales el acusado tendra derecho a s
er juzgado pronta y publicamente. Si el recurrente era realmente culpable del de
lito que se le imputo, tenia de todos modos derechos a que fuera juzgado pronta
y publicamente y sin dilaciones arbitrarias y vejatorias. Hemos declarado reiter
adamente que existe un remedio positivo para los casos en que se viola el derech
o constitucional del acusado de ser juzgado prontamente. El acusado que esprivad
o de su derecho fundomental de ser enjuiciado rapidamente tiene derecho a pedir
que se le ponga en libertad, si estuviese detenido, o a que la causa que pende c
ontra el sea sobreseida definitivamente. (Conde contra Rivera y Unson, 45 Jur. F
il., 682; In the matter of Ford [1911], 160 Cal., 334; U. S. vs. Fox [1880], 3 M
ont., 512; Kalaw contra Apostol, R. G. No. 45591, Oct. 15, 1937; Pueblo contra C
astaeda y Fernandez, 35 Gac. Of., 1357.)
We are again called upon to vindicate the fundamental right to a speedy trial. T
he facts of the present case may be at variance with those of the cases hereinab
ove referred to. Nevertheless, we are of the opinion that, under the circumstanc
es, we should consider the substance of the right instead of indulging in more o
r less academic or undue factual differentiations. The petitioner herein has bee
n arrested four times, has put up a bond in the sum of P4,000 and has engaged th
e services of counsel to undertake his defense an equal number of times. The fir
st arrest was made upon a complaint filed by one of the intervenors herein for a
lleged falsification of a will which, sixteen months before, had been probated i
n court. This complaint, after investigation, was dismissed at the complainant's
own request. The second arrest was made upon a complaint charging the same offe
nse and this complaint, too, was dismissed at the behest of the complainant hers
elf who alleged the quite startling ground that the petitioner was in poor healt
h. The third arrest was made following the filing of an information by the provi
ncial fiscal of Pampanga, which information was dismissed, after due investigati
on, because of insufficiency of the evidence. The fourth arrest was made when th
e provincial fiscal secured a reinvestigation of the case against the petitioner
on the pretext that he had additional evidence to present, although such eviden
ce does not appear to have ever been presented.
It is true that the provincial fiscal did not intervene in the case until Februa
ry 2, 1934, when he presented an information charging the petitioner, for the th
ird time, of the offense of falsification. This, however, does not matter. The p
rosecution of offenses is a matter of public interest and it is the duty of the
government or those acting in its behalf to prosecute all cases to their termina
tion without oppressive, capricious and vexatious delay. The Constitution does n
ot say that the right to a speedy trial may be availed of only where the prosecu
tion for crime is commenced and undertaken by the fiscal. It does not exclude fr
om its operation cases commenced by private individuals. Where once a person is
prosecuted criminally, he is entitled to a speedy trial, irrespective of the nat
ure of the offense or the manner in which it is authorized to be commenced. In a
ny event, even the actuations of the fiscal himself in this case is not entirely
free from criticism. From October 27, 1932, when the first complaint was filed
in the justice of the peace court of San Fernando, to February 2, 1934, when the
provincial fiscal filed his information with the justice of the peace of Mexico
, one year, three months and six days transpired; and from April 27, 1933, when
the second criminal complaint was dismissed by the justice of the peace of Mexic
o, to February 2, 1934, nine months and six days elapsed. The investigation foll

owing the fourth arrest, made after the fiscal had secured a reinvestigation of
the case, appears also to have dragged on for about a year. There obviously has
been a delay, and considering the antecedent facts and circumstances within the
knowledge of the fiscal, the delay may not at all be regarded as permissible. In
Kalaw vs. Apostol, supra, we observed that the prosecuting officer all prosecut
ions for public offenses (secs. 1681 and 2465 of the Rev. Adm. Code), and that i
t is his duty to see that criminal cases are heard without vexatious, capricious
and oppressive delays so that the courts of justice may dispose of them on the
merits and determine whether the accused is guilty or not. This is as clear an a
dmonition as could be made. An accused person is entitled to a trial at the earl
iest opportunity. (Sutherland on the Constitution, p. 664; United States vs. Fox
, 3 Mont., 512.) He cannot be oppressed by delaying he commencement of trial for
an unreasonable length of time. If the proceedings pending trial are deferred,
the trial itself is necessarily delayed. It is not to be supposed, of course, th
at the Constitution intends to remove from the prosecution every reasonable oppo
rtunity to prepare for trial. Impossibilities cannot be expected or extraordinar
y efforts required on the part of the prosecutor or the court. As stated by the
Supreme Court of the United States, "The right of a speedy trial is necessarily
relative. It is consistent with delays and depends upon circumstances. It secure
s rights to a defendant. It does not preclude the rights of public justice." (Be
avers vs. Haubert [1905], 198 U. S., 86; 25 S. Ct., 573; 49 Law. ed., 950, 954.)
.
It may be true, as seems admitted by counsel for the intervenors, in paragraph 8
, page 3 of his brief, that the delay was due to "the efforts towards reaching a
n amicable extrajudicial compromise," but this fact, we think, casts doubt inste
ad upon the motive which led the intervenors to bring criminal action against th
e petitioner. The petitioner claims that the intention of the intervenors was to
press upon settlement, with the continuous threat of criminal prosecution, notw
ithstanding the probate of the will alleged to have been falsified. Argument of
counsel for the petitioner in this regard is not without justification. Thus aft
er the filing of the second complaint with the justice of the peace court of Mex
ico, complainant herself, as we have seen, asked for dismissal of the complaint,
on the ground that "el acusado tenia la salud bastante delicada," and, apparent
ly because of failure to arrive at any settlement, she decided to renew her comp
laint.
Counsel for the intervenors contend
and the contention is sustained by the Court
of Appeals that the petitioner did not complain heretofore of the denial of his
constitutional right to a speedy trial. This is a mistake. When the petitioner,
for the fourth time, was ordered arrested by the Court of First Instance of Pam
panga, he moved for reconsideration of the order of arrest, alleging, among othe
r things, "Que por estas continuas acusaciones e investigaciones, el acusado com
pareciente no obstante su mal estado de salud desde el ao 1932 en que tuvo que se
r operado por padecer de tuberculosis ha tenido que sostener litigios y ha sufri
do la mar de humiliaciones y zozobras y ha incudo en enormes gastos y molestias
y ha desatendido su quebrantada salud." The foregoing allegation was inserted on
page 6 of the amended petition for certiorari presented to the Court of Appeals
. The constitutional issue also appears to have been actually raised and conside
red in the Court of Appeals. In the majority opinion of that court, it is stated
:
Upon the foregoing facts, counsel for the petitioner submits for the considerati
on of this court the following questions of law: First, that the respondent cour
t acted arbitrarily and with abuse of its authority, with serious damage and pre
judice to the rights and interests of the petitioner, in allowing that the latte
r be prosecuted and arrested for the fourth time, and that he be subjected, also
for the fourth time, to a preliminary investigation for the same offense, hereb
y converting the court into an instrument of oppression and vengeance on the par
t of the alleged offended parties, Rosario Basa et al.; . . . .

And in the dissenting opinion, we find the following opening paragraph:

We cannot join in a decision declining to stop a prosecution that has dragged fo
r about five years and caused the arrest on four different occasions of a law ab
iding citizen for the alleged offense of falsifying a will that years be compete
nt jurisdiction.
From the view we take of the instant case, the petitioner is entitled to have th
e criminal proceedings against him quashed. The judgment of the Court of Appeals
is hereby reversed, without pronouncement regarding costs. So ordered.
==
[G.R. No. 138731. December 11, 2000]
TESTATE ESTATE OF MARIA MANUEL Vda. DE BIASCAN, petitioner, vs. ROSALINA C. BIAS
CAN, respondent.
D E C I S I O N
GONZAGA-REYES, J.:
This is a petition for review of the decision[1] of the Court of Appeals in CA-G
.R. SP Case No. 44306 affirming the orders dated October 22, 1996 and February 1
2, 1997 of the Regional Trial Court, Branch 4, Manila. These orders dismissed t
he appeal of petitioner from the orders dated April 2, 1981 and April 30, 1985 o
f the same Regional Trial Court.
The facts of the case are as follows:
On June 3, 1975, private respondent Rosalina J. Biascan filed a petition[2] deno
minated as Special Proceeding No. 98037 at the then Court of First Instance, Bra
nch 4, Manila praying for her appointment as administratrix of the intestate est
ate of Florencio Biascan and Timotea Zulueta. In an Order dated August 13, 1975
, private respondent was appointed as regular administratrix of the estates.
On October 10, 1975, Maria Manuel Vda. De Biascan, the legal wife of Florencio B
iascan entered her appearance as Oppositor-Movant in SP. Proc. No. 98037.[3] Sim
ultaneous with her appearance, she filed a pleading containing several motions i
ncluding a motion for intervention, a motion for the setting aside of private re
spondent s appointment as special administratrix and administratrix, and a motion
for her appointment as administratrix of the estate of Florencio Biascan.[4]
After an exchange of pleadings between the parties, Judge Serafin Cuevas, then p
residing judge of CFI Manila, Branch 4, issued an Omnibus Order[5] dated Novembe
r 13, 1975 which, among others, granted Maria s intervention and set for trial the
motion to set aside the Orders appointing respondent as administratrix.
On April 2, 1981, the trial court issued an Order[6] resolving that: (1) Maria i
s the lawful wife of Florencio; (2) respondent and her brother are the acknowled
ged natural children of Florencio; (3) all three are the legal heirs of Florenci
o who are entitled to participate in the settlement proceedings; (4) the motion
to set aside the order appointing private respondent as administratrix is denied
; and (5) the motion to approve inventory and appraisal of private respondent be
deferred. Maria, through her counsel, received a copy of this April 2, 1981 Or
der on April 9, 1981.[7]
On June 6, 1981, or fifty-eight (58) days after he receipt of the April 2, 1981
Order, Maria filed her motion for reconsideration[8] which private respondent op
posed.[9]
On November 15, 1981, the fourth floor of the City Hall of Manila was completely
gutted by fire. The records of the settlement proceedings were among those los

t in the fire. Thus, on January 2, 1985, private respondent filed a Petition fo

r Reconstitution[10] of the said records.
Due to the delay caused by the fire and the reconstitution of the records, it wa
s only on April 30, 1985 that the Regional Trial Court of Manila, Branch 4 issue
d an Order[11] denying Maria s June 6, 1981 Motion for Reconsideration.
Sometime thereafter, Maria died and her testate estate also became the subject o
f settlement proceedings. Atty. Marcial F. Lopez was appointed as interim speci
al administrator and engaged the services of the Siguion Reyna Montecillo and On
gsiako Law Offices on Behalf of the estate.
On August 21, 1996, the law firm was allegedly made aware of and given notice of
the April 30, 1985 Order when its associate visited Branch 4 of the Regional Tr
ial Court of Manila to inquire about the status of the case. The associate chec
ked the records if there was proof of service of the April 30, 1985 Order to the
former counsel of Maria, Atty. Marcial F. Lopez, but he discovered that there w
as none.[12] He was able to secure a certification[13] from the Clerk of Court o
f the Regional Trial Court of Manila, Branch 4 which stated that there was no pr
oof of service of the Order dated April 30, 1985 contained in the records of SP.
Proc. No. 98037.
A Notice of Appeal[14] dated April 22, 1996 was filed by petitioner from the Ord
ers dated April 2, 1981 and April 30, 1985 of the trial court. While the said n
otice of appeal was dated April 22, 1996, the stamp of the trial court on the fi
rst page of the notice clearly indicated that the same was received by the trial
court on September 20, 1996. A Record of Appeal[15] dated September 20, 1996 w
as likewise filed by petitioner.
On October 22, 1996, the trial court issued an Order[16] denying petitioner s appe
al on the ground that the appeal was filed out of time. The trial court ruled t
hat the April 2, 1981 Order which was the subject of the appeal already became f
inal as the Motion for Reconsideration thereof was filed sixty-five (65) days af
ter petitioner received the same. In addition, the court ruled that the notice
of appeal itself was filed manifestly late as the same was filed more than 11 ye
ars after the issuance of the June 11, 1985 Order denying petitioner s Motion for
Reconsideration. The Motion for Reconsideration dated November 13, 1996 of peti
tioner was likewise denied by the trial court in an Order[17] dated February 12,
1997.
Not satisfied with this decision, petitioner filed a Petition for Certiorari wit
h Prayer for Mandatory Injunction[18] with the Court of Appeals questioning the
October 12, 1996 and February 12, 1997 Orders of the Regional Trial Court.
In a Decision[19] dated February 16, 1999, the First Division of the Court of Ap
peals denied the petition for certiorari of petitioner. Petitioner s Motion for R
econsideration was likewise denied by the appellate court in a Resolution[20] da
ted May 18, 1999.
Hence, this Petition for Review on Certiorari where petitioner sets forth the fo
llowing ground for the reversal of the decision of the appellate court:
THE FIRST DIVISION OF THE COURT OF APPEALS (REVIEWING COURT) HAS SANCTIONED THE D
EPARTURE BY THE REGIONAL TRIAL COURT OF MANILA BRANCH 4 (TRIAL COURT) FROM THE U
SUAL COURSE OF JUDICIAL PROCEEDING IN ISSUING THE ASSAILED 16 FEBRUARY 1999 DECI
SION AND THE 18 MAY 1999 RESOLUTION WHEN IT AFFIRMED THE ERRONEOUS FINDING OF TH
E TRIAL COURT THAT THE ORDER DATED APRIL 2, 1981 BECAME FINAL AND EXECUTORY DESP
ITE THE FACT THAT NO OPPOSITION ON ITS TIMELINESS WAS FILED AND MOREOVER NO RULI
NG AS REGARDS ITS TIMELINESS WAS MADE. [21]

There is no merit in the petition.

Section 1, Rule 109 of the Rules of Court enumerates the orders and judgments in
special proceedings which may be the subject of an appeal. Thus:
Section 1. Orders or judgments from which appeals may be taken.
An interested pe
rson may appeal in a special proceeding from an order or judgment rendered by a
Regional Trial Court or a Juvenile and domestic Relations Court, where such orde
r or judgment:
(a)

Allows or disallows a will;

(b)
Determines who are the lawful heirs of a deceased person, or the dis
tributive shares of the estate to which such person is entitled;
(c)
Allows, or disallows, in whole or in part, any claim against the est
ate of a deceased person, or any claim presented on behalf of the estate in offs
et to a claim against it;
(d)
an;

Settles the account of an executor, administrator, trustee or guardi

(e)
Constitutes, in proceedings relating to the settlement of the estate
of a deceased person, or the administration of a trustee or guardian, a final d
etermination in the lower court of the rights of the party appealing, except tha
t no appeal shall be allowed from the appointment of a special administrator; an
d
(f)
Is the final order or judgment rendered in the case, and affects th
e substantial rights of the person appealing, unless it be an order granting or
denying a motion for new trial or for reconsideration.
An appeal is allowed in these aforesaid cases as these orders, decrees or judgme
nts issued by a court in a special proceeding constitute a final determination o
f the rights of the parties so appealing.[22] In contrast, interlocutory orders
are not appealable as these are merely incidental to judicial proceedings. In t
hese cases, the court issuing such orders retains control over the same and may
thus modify, rescind, or revoke the same on sufficient grounds at any time befor
e the final judgment.[23]
In the instant case, the Order dated April 2, 1981 of the trial court decreed, a
mong others, that Maria Manuel Vda. De Biascan, the lawful wife of the deceased
Florencio Biascan, private respondent Rosalina Biascan and her brother, German B
iascan, are entitled to participate in the settlement proceedings. Moreover, th
e said Order likewise denied Maria s motion to set aside the order appointing priv
ate respondent as regular administratrix of the estate. These rulings of the tr
ial court were precisely questioned by Maria in her Motion for Reconsideration d
ated June 6, 1981.
The ruling of the trial court that Maria, private respondent Rosalina Biascan an
d German Biascan were entitled to participate in the settlement proceedings fall
s squarely under paragraph (b), Section 1, Rule 109 of the Rules of Court as a p
roper subject of appeal. By so ruling, the trial court has effectively determin
ed that the three persons are the lawful heirs of the deceased. As such, the sa
me may be the proper subject of an appeal.
Similarly, the ruling of the trial court denying petitioner s motion to set aside
the order appointing private respondent as the regular administratrix of the est
ate of Florencio Bisacan is likewise a proper subject of an appeal. We have pre
viously held that an order of the trial court appointing a regular administrator

of a deceased person s estate is a final determination of the rights of the parti

es thereunder, and is thus, appealable.[24] This is in contrast with an order ap
pointing a special administrator who is appointed only for a limited time and fo
r a specific purpose. Because of the temporary character and special character
of this appointment, the Rules deem it not advisable for any party to appeal fro
m said temporary appointment.[25] Considering however that private respondent ha
s aleready been appointed as regular administratrix of the estate of Florencio B
iascan, her appointment as such may be questioned before the appellate court by
way of appeal.
It is thus clear that the Order dated April 2, 1981 may be the proper subject of
an appeal in a special proceeding. In special proceedings, such as the instant
proceeding for settlement of estate, the period of appeal from any decision or
final order rendered therein is thirty (30) days, a notice of appeal and a recor
d on appeal being required.[26] The appeal period may only be interrupted by the
filing of a motion for new trial or reconsideration. Once the appeal period ex
pires without an appeal or a motion for reconsideration or new trial being perfe
cted, the decision or order becomes final.
With respect to the Order dated April 2, 1981 issued by the trial court, petitio
ner admits that Maria Manuel Vda. De Biascan, its predecessor-in-interest, recei
ved a copy of the same of April 9, 1981. Applying these rules, Maria or her cou
nsel had thirty (30) days or until May 9 within which to file a notice of appeal
with record on appeal. She may also file a motion for reconsideration, in whic
h case the appeal period is deemed interrupted.
Considering that it was only June 6,
receipt of the order, that a motion
that the same was filed out of time.
eration was filed, there was no more
already become final.

1981, or a full fifty-eight (58) days after

for reconsideration was filed, it is clear
As such, when the said motion for reconsid
appeal period to interrupt as the Order had

Petitioner insists, however, that the order dated April 2, 1981 of the trial cou
rt did not become final and executory as no opposition on its timeliness was fil
ed and no ruling as regards its timeliness was made. Petitioner argues that alt
hough its motion for reconsideration was denied in the Order dated April 30, 198
5, the denial was made on grounds other than its failure to ask for a reconsider
ation within the period prescribed by law. As such, petitioner concludes, any p
rocedural defect attending the Motion for Reconsideration was deemed cured when
the trial court, in its Order dated April 30, 1985, took cognizance of the same
and rendered its ruling thereon.
There is no merit in this argument.
It is well-settled that judgment or orders become final and executory by operati
on of law and not by judicial declaration. Thus, finality of a judgment becomes
a fact upon the lapse of the reglementary period of appeal if no appeal is perf
ected[27] or motion for reconsideration or new trial is filed. The trial court
need not even pronounce the finality of the order as the same becomes final by o
peration of law. In fact, the trial court could not even validly entertain a mo
tion for reconsideration filed after the lapse of the period for taking an appea
l.[28] As such, it is of no moment that the opposing party failed to object to t
he timeliness of the motion for reconsideration or that the court denied the sam
e on grounds other than timeliness considering that at the time the motion was f
iled, the Order dated April 2, 1981 had already become final and executory. Bei
ng final and executory, the trial court can no longer alter, modify, or reverse
the questioned order.[29] The subsequent filing of the motion for reconsideratio
n cannot disturb the finality of the judgment or order.[30]
Even if we assume that the Motion for Reconsideration filed by petitioner had th

e effect of suspending the running of the appeal period for the April 2, 1981 Or
der, it is clear that petitioner s notice of appeal of the orders of the trial cou
rt was still filed out of time.
Under Section 3, Rule 41 of the Rules of Court then applicable, the time during
which a motion to set aside the judgment or order or for a new trial shall be de
ducted from the period from which to make an appeal. The rule further states th
at where the motion was filed during office hours of the last day of the appeal
period, the appeal must be perfected within the day following that in which the
party appealing received notice of the denial of said motion.
The Order of the trial court denying petitioner s Motion for Reconsideration of th
e April 2, 1981 Order was issued on April 30, 1985. Allegedly, petitioner was o
nly made aware of this April 30, 1985 Order on August 21, 1996 when it inquired
from the trial court about the status of the case. Giving petitioner the benefi
t of the doubt that it had indeed received notice of the order denying its motio
n for reconsideration on August 21, 1996, it follows that petitioner only had un
til the following day or on August 22, 1996 within which to perfect the appeal.
At this point, we note with disapproval petitioner s attempt to pass off its Notic
e of Appeal as having been filed on August 22, 1996. In all its pleadings befor
e this Court and the Court of Appeals, petitioner insists that its Notice of App
eal was filed the day after it secured the August 21, 1996 Certification from th
e trial court. While the Notice of Appeal was ostensibly dated August 22, 1996,
it is clear from the stamp[31] of the trial court that the same was received on
ly on September 20, 1996. Moreover, in the Order dated October 22, 1996 of the
trial court denying petitioner s appeal, the court clearly stated that the Notice
of Appeal with accompanying Record on Appeal was filed on September 20, 1996.
Considering that it is clear from the records that petitioner s notice of appeal w
as filed on September 20, 1996, the same was clearly filed out of time as it onl
y had until August 22, 1996 within which to file the said pleading. And while t
he rules on special proceedings recognize that a motion for extension of time to
file the notice of appeal and record of appeal may be granted,[32]
WHEREFORE, premises considered, we hereby DISMISS the petition for lack of merit
. The decision dated February 16, 1999 and the Resolution dated May 18, 1999 of
the Court of Appeals are hereby AFFIRMED.
SO ORDERED.
==
G.R. No. L-23445

June 23, 1966

REMEDIOS NUGUID, petitioner and appellant,

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, wi
thout descendants, legitimate or illegitimate. Surviving her were her legitimate
parents, Felix Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters,
namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed
Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance
of Rizal a holographic will allegedly executed by Rosario Nuguid on November 17

, 1951, some 11 years before her demise. Petitioner prayed that said will be adm
itted to probate and that letters of administration with the will annexed be iss
ued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate
father and mother of the deceased Rosario Nuguid, entered their opposition to t
he probate of her will. Ground therefor, inter alia, is that by the institution
of petitioner Remedios Nuguid as universal heir of the deceased, oppositors
who
are compulsory heirs of the deceased in the direct ascending line were illegally
preterited and that in consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and obj
ection thereto, oppositors moved to dismiss on the ground of absolute preteritio
n.
On September 6, 1963, petitioner registered her opposition to the motion to dism
iss.1wph1.t
The court's order of November 8, 1963, held that "the will in question is a comp
lete nullity and will perforce create intestacy of the estate of the deceased Ro
sario Nuguid" and dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court
on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case
is for the probate of a will. The court's area of inquiry is limited to an exami
nation of, and resolution on, the extrinsic validity of the will. The due execut
ion thereof, the testatrix's testamentary capacity, and the compliance with the
requisites or solemnities by law prescribed, are the questions solely to be pres
ented, and to be acted upon, by the court. Said court at this stage of the proce
edings is not called upon to rule on the intrinsic validity or efficacy of the p
rovisions of the will, the legality of any devise or legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the quest
ion of whether or not the will should be allowed probate. For them, the meat of
the case is the intrinsic validity of the will. Normally, this comes only after
the court has declared that the will has been duly authenticated.2 But petitione
r and oppositors, in the court below and here on appeal, travelled on the issue
of law, to wit: Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of the will, no
thing will be gained. On the contrary, this litigation will be protracted. And f
or aught that appears in the record, in the event of probate or if the court rej
ects the will, probability exists that the case will come up once again before u
s on the same issue of the intrinsic validity or nullity of the will. Result: wa
ste of time, effort, expense, plus added anxiety. These are the practical consid
erations 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.3 After all, there ex
ists a justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the concl
usion below that the will is a complete nullity. This exacts from us a study of
the disputed will and the applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed

a certain amount of property, do hereby give, devise, and bequeath all of the pr
operty which I may have when I die to my beloved sister Remedios Nuguid, age 34,
residing with me at 38-B Iriga, Q.C. In witness whereof, I have signed my name
this seventh day of November, nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which,
in part, provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory hei
rs in the direct line, whether living at the time of the execution of the will o
r 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. ..
.
Except for inconsequential variation in terms, the foregoing is a reproduction o
f Article 814 of the Civil Code of Spain of 1889, which is similarly herein copi
ed, thus
Art. 814. The preterition of one or all of the forced 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 void the institution of heir; but the legacies and better
ments4 shall be valid, in so far as they are not inofficious. ...
A comprehensive understanding of the term preterition employed in the law become
s a necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le nombr
a siquiera o aun nombrandole como padre, hijo, etc., no se le instituya heredero
ni se le deshereda expresamente ni se le asigna parte alguna de los bienes, res
ultando privado de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el testam
ento omita el testador a uno cualquiera de aquellos a quienes por su muerte corr
esponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la
omision sea completa; que el heredero forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective
of the problem before us, to have on hand a clear-cut definition of the word an
nul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342,
343, 204 Pa. 484.6
The word "annul" as used in statute requiring court to annul alimony provisions
of divorce decree upon wife's remarriage means to reduce to nothing; to annihila
te; obliterate; blot out; to make void or of no effect; to nullify; to abolish.
N.J.S.A. 2:50
38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 13
6 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effec
t; to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 1
4 S.E. 2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no desc

endants, legitimate or illegitimate. But she left forced heirs in the direct asc
ending line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And
, the will completely omits both of them: They thus received nothing by the test
ament; tacitly, they were deprived of their legitime; neither were they expressl
y disinherited. This is a clear case of preterition. Such preterition in the wor
ds of Manresa "anulara siempre la institucion de heredero, dando caracter absolu
to a este ordenamiento referring to the mandate of Article 814, now 854 of the C
ivil Code.9 The one-sentence will here institutes petitioner as the sole, univer
sal heir
nothing more. No specific legacies or bequests are therein provided for
. It is in this posture that we say that the nullity is complete. Perforce, Rosa
rio Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existi
r, en todo o en parte? No se aade limitacion alguna, como en el articulo 851, en
el que se expresa que se anulara la institucion de heredero en cuanto prejudique
a la legitima del deseheredado Debe, pues, entenderse que la anulacion es compl
eta o total, y que este articulo como especial en el caso que le motiva rige con
preferencia al 817. 10
The same view is expressed by Sanchez Roman:
La consecuencia de la anulacion o nulidad de la institucion de heredero por pret
ericion de uno, varios o todos los forzosos en linea recta, es la apertura de la
sucesion intestada total o parcial. Sera total, cuando el testador que comete l
a pretericion, hubiese dispuesto de todos los bienes por titulo universal de her
encia en favor de los herederos instituidos, cuya institucion se anula, porque a
si lo exige la generalidad del precepto legal del art. 814, al determinar, como
efecto de la pretericion, el de que "anulara la institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no escapi
ng the conclusion that the universal institution of petitioner to the entire inh
eritance results in totally abrogating the will. Because, the nullification of s
uch institution of universal heir
without any other testamentary disposition in
the will amounts to a declaration that nothing at all was written. Carefully wor
ded and in clear terms, Article 854 offers no leeway for inferential interpretat
ion. Giving it an expansive meaning will tear up by the roots the fabric of the
statute. On this point, Sanchez Roman cites the "Memoria annual del Tribunal Sup
reme, correspondiente a 1908", which in our opinion expresses the rule of interp
retation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la in
stitucion de heredero, no consiente interpretacion alguna favorable a la persona
instituida en el sentido antes expuesto aun cuando parezca, y en algun caso pud
iera ser, mas o menos equitativa, porque una nulidad no significa en Derecho sin
o la suposicion de que el hecho o el acto no se ha realizado, debiendo por lo ta
nto procederse sobre tal base o supuesto, y consiguientemente, en un testamento
donde falte la institucion, es obligado llamar a los herederos forzosos en todo
caso, como habria que llamar a los de otra clase, cuando el testador no hubiese
distribudo todos sus bienes en legados, siendo tanto mas obligada esta consecuen
cia legal cuanto que, en materia de testamentos, sabido es, segun tiene declarad
o la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad d
e quien testa si esta voluntad no aparece en la forma y en las condiciones que l
a ley ha exigido para que sea valido y eficaz, por lo que constituiria una inter
pretacion arbitraria, dentro del derecho positivo, reputar como legatario a un h
eredero cuya institucion fuese anulada con pretexto de que esto se acomodaba mej
or a la voluntad del testador, pues aun cuando asi fuese, sera esto razon para m
odificar la ley, pero no autoriza a una interpretacion contraria a sus terminos
y a los principios que informan la testamentifaccion, pues no porque parezca mej
or una cosa en el terreno del Derecho constituyente, hay razon para convereste j
uicio en regla de interpretacion, desvirtuando y anulando por este procedimiento

lo que el legislador quiere establecer. 12

3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, "the devises and legacies shall be valid insofar as they are no
t inofficious". Legacies and devises merit consideration only when they are so e
xpressly given as such in a will. Nothing in Article 854 suggests that the mere
institution of a universal heir in a will
void because of preterition
would give
the heir so instituted a share in the inheritance. As to him, the will is inexi
stent. There must be, in addition to such institution, a testamentary dispositio
n granting him bequests or legacies apart and separate from the nullified instit
ution of heir. Sanchez Roman, speaking of the two component parts of Article 814
, now 854, states that preterition annuls the institution of the heir "totalment
e por la pretericion"; but added (in reference to legacies and bequests) "pero s
ubsistiendo ... todas aquellas otras disposiciones que no se refieren a la insti
tucion de heredero ... . 13 As Manresa puts it, annulment throws open to intesta
te succession the entire inheritance including "la porcion libre (que) no hubies
e dispuesto en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the insti
tution of petitioner as universal heir. That institution, by itself, is null and
void. And, intestate succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheri
tance rather than one of preterition". 15 From this, petitioner draws the conclu
sion that Article 854 "does not apply to the case at bar". This argument fails t
o appreciate the distinction between pretention and disinheritance.
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 me
ntioned, they are neither instituted as heirs nor are expressly disinherited." 1
6 Disinheritance, in turn, "is a testamentary disposition depriving any compulso
ry heir of his share in the legitime for a cause authorized by law. " 17 In Manr
esa's own words: "La privacion expresa de la legitima constituye la desheredacio
n. La privacion tacita de la misma se denomina pretericion." 18 Sanchez Roman em
phasizes the distinction by stating that disinheritance "es siempre voluntaria";
preterition, upon the other hand, is presumed to be "involuntaria". 19 Express
as disinheritance should be, the same must be supported by a legal cause specifi
ed in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced
heirs. It simply omits their names altogether. Said will rather than be labeled
ineffective disinheritance is clearly one in which the said forced heirs suffer
from preterition.
On top of this is the fact that the effects flowing from preterition are totally
different from those of disinheritance. Preterition under Article 854 of the Ci
vil Code, we repeat, "shall annul the institution of heir". This annulment is in
toto, unless in the will there are, in addition, testamentary dispositions in t
he form of devises or legacies. In ineffective disinheritance under Article 918
of the same Code, such disinheritance shall also "annul the institution of heirs
", put only "insofar as it may prejudice the person disinherited", which last ph
rase was omitted in the case of preterition. 21 Better stated yet, in disinherit
ance the nullity is limited to that portion of the estate of which the disinheri
ted heirs have been illegally deprived. Manresa's expressive language, in commen
ting on the rights of the preterited heirs in the case of preterition on the one
hand and legal disinheritance on the other, runs thus: "Preteridos, adquiren el
derecho a todo; desheredados, solo les corresponde un tercio o dos tercios, 22
el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are e

ntitled to receive their legitimes, but that the institution of heir "is not inv
alidated," although the inheritance of the heir so instituted is reduced to the
extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran i
n the Neri case heretofore cited, viz:
But the theory is advanced that the bequest made by universal title in favor of
the children by the second marriage should be treated as legado and mejora and,
accordingly, it must not be entirely annulled but merely reduced. This theory, i
f adopted, will result in a complete abrogation of Articles 814 and 851 of the C
ivil Code. If every case of institution of heirs may be made to fall into the co
ncept of legacies and betterments reducing the bequest accordingly, then the pro
visions of Articles 814 and 851 regarding total or partial nullity of the instit
ution, would. be absolutely meaningless and will never have any application at a
ll. And the remaining provisions contained in said article concerning the reduct
ion of inofficious legacies or betterments would be a surplusage because they wo
uld be absorbed by Article 817. Thus, instead of construing, we would be destroy
ing integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure to
distinguish institution of heirs from legacies and betterments, and a general f
rom a special provision. With reference to article 814, which is the only provis
ion material to the disposition of this case, it must be observed that the insti
tution of heirs is therein dealt with as a thing separate and distinct from lega
cies or betterments. And they are separate and distinct not only because they ar
e distinctly and separately treated in said article but because they are in them
selves different. Institution of heirs is a bequest by universal title of proper
ty that is undetermined. Legacy refers to specific property bequeathed by a part
icular or special title. ... But again an institution of heirs cannot be taken a
s a legacy. 25
The disputed order, we observe, declares the will in question "a complete nullit
y". Article 854 of the Civil Code in turn merely nullifies "the institution of h
eir". Considering, however, that the will before us solely provides for the inst
itution of petitioner as universal heir, and nothing more, the result is the sam
e. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review i
s hereby affirmed. No costs allowed. So ordered.
==
he Incompetent, CARMEN CAIZA, represented by her legal guardian, AMPARO EVANGELIS
TA, petitioner, vs. COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and
his wife, LEONORA ESTRADA, respondents.
D E C I S I O N
NARVASA, C.J.:
On November 20, 1989, being then ninety-four (94) years of age, Carmen Caiza, a s
pinster, a retired pharmacist, and former professor of the College of Chemistry
and Pharmacy of the University of the Philippines, was declared incompetent by j
udgment[1] of the Regional Trial Court of Quezon City, Branch 107,[2] in a guard
ianship proceeding instituted by her niece, Amparo A. Evangelista.[3] She was so
adjudged because of her advanced age and physical infirmities which included ca
taracts in both eyes and senile dementia. Amparo A. Evangelista was appointed le
gal guardian of her person and estate.
Caiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On Sept
ember 17, 1990, her guardian Amparo Evangelista commenced a suit in the Metropol
itan Trial Court (MetroTC) of Quezon City (Branch 35) to eject the spouses Pedro
and Leonora Estrada from said premises.[4] The complaint was later amended to i

dentify the incompetent Caiza as plaintiff, suing through her legal guardian, Amp
aro Evangelista.
The amended Complaint[5] pertinently alleged that plaintiff Caiza was the absolut
e owner of the property in question, covered by TCT No. 27147; that out of kindn
ess, she had allowed the Estrada Spouses, their children, grandchildren and sons
-in-law to temporarily reside in her house, rent-free; that Caiza already had urg
ent need of the house on account of her advanced age and failing health, "so fun
ds could be raised to meet her expenses for support, maintenance and medical tre
atment;" that through her guardian, Caiza had asked the Estradas verbally and in
writing to vacate the house but they had refused to do so; and that "by the defe
ndants' act of unlawfully depriving plaintiff of the possession of the house in
question, they ** (were) enriching themselves at the expense of the incompetent,
because, while they ** (were) saving money by not paying any rent for the house
, the incompetent ** (was) losing much money as her house could not be rented by
others." Also alleged was that the complaint was "filed within one (1) year fro
m the date of first letter of demand dated February 3, 1990."
In their Answer with Counterclaim, the defendants declared that they had been li
ving in Caiza's house since the 1960's; that in consideration of their faithful s
ervice they had been considered by Caiza as her own family, and the latter had in
fact executed a holographic will on September 4, 1988 by which she "bequeathed"
to the Estradas the house and lot in question.
Judgment was rendered by the MetroTC on April 13, 1992 in Caiza's favor,[6] the E
stradas being ordered to vacate the premises and pay Caiza P5,000.00 by way of at
torney's fees.
But on appeal,[7] the decision was reversed by the Quezon City Regional Trial Co
urt, Branch 96.[8] By judgment rendered on October 21, 1992,[9] the RTC held tha
t the "action by which the issue of defendants' possession should be resolved is
accion publiciana, the obtaining factual and legal situation ** demanding adjud
ication by such plenary action for recovery of possession cognizable in the firs
t instance by the Regional Trial Court."
Caiza sought to have the Court of Appeals reverse the decision of October 21, 199
2, but failed in that attempt. In a decision[10] promulgated on June 2, 1993, th
e Appellate Court[11] affirmed the RTC's judgment in toto. It ruled that (a) the
proper remedy for Caiza was indeed an accion publiciana in the RTC, not an accio
n interdictal in the MetroTC, since the "defendants have not been in the subject
premises as mere tenants or occupants by tolerance, they have been there as a s
ort of adopted family of Carmen Caiza," as evidenced by what purports to be the h
olographic will of the plaintiff; and (b) while "said will, unless and until it
has passed probate by the proper court, could not be the basis of defendants' cl
aim to the property, ** it is indicative of intent and desire on the part of Car
men Caiza that defendants are to remain and are to continue in their occupancy an
d possession, so much so that Caiza's supervening incompetency can not be said to
have vested in her guardian the right or authority to drive the defendants out.
"[12]
Through her guardian, Caiza came to this Court praying for reversal of the Appell
ate Court's judgment. She contends in the main that the latter erred in (a) hold
ing that she should have pursued an accion publiciana, and not an accion interdi
ctal; and in (b) giving much weight to "a xerox copy of an alleged holographic w
ill, which is irrelevant to this case."[13]
In the responsive pleading filed by them on this Court's requirement,[14] the Es
tradas insist that the case against them was really not one of unlawful detainer
; they argue that since possession of the house had not been obtained by them by
any "contract, express or implied," as contemplated by Section 1, Rule 70 of th

e Rules of Court, their occupancy of the premises could not be deemed one "termi
nable upon mere demand (and hence never became unlawful) within the context of t
he law." Neither could the suit against them be deemed one of forcible entry, th
ey add, because they had been occupying the property with the prior consent of t
he "real owner," Carmen Caiza, which "occupancy can even ripen into full ownershi
p once the holographic will of petitioner Carmen Caiza is admitted to probate." T
hey conclude, on those postulates, that it is beyond the power of Caiza's legal g
uardian to oust them from the disputed premises.
Carmen Caiza died on March 19, 1994,[15] and her heirs -- the aforementioned guar
dian, Amparo Evangelista, and Ramon C. Nevado, her niece and nephew, respectivel
y -- were by this Court's leave, substituted for her.[16]
Three issues have to be resolved: (a) whether or not an ejectment action is the
appropriate judicial remedy for recovery of possession of the property in disput
e; (b) assuming desahucio to be proper, whether or not Evangelista, as Caiza's le
gal guardian had authority to bring said action; and (c) assuming an affirmative
answer to both questions, whether or not Evangelista may continue to represent
Caiza after the latter's death.
I
It is axiomatic that what determines the nature of an action as well as which co
urt has jurisdiction over it, are the allegations of the complaint and the chara
cter of the relief sought.[17] An inquiry into the averments of the amended comp
laint in the Court of origin is thus in order.[18]
The amended Complaint alleges:[19]
"6.
That the plaintiff, Carmen Caiza, is the sole and absolute owner of a hou
se and lot at No. 61 Scout Tobias, Quezon City, which property is now the subjec
t of this complaint;
**

**

**

9.
That the defendants, their children, grandchildren and sons-in-law, wer
e allowed to live temporarily in the house of plaintiff, Carmen Caiza, for free,
out of her kindness;
10.
That the plaintiff, through her legal guardian, has duly notified the de
fendants, for them to vacate the said house, but the two (2) letters of demand w
ere ignored and the defendants refused to vacate the same. **
11.
That the plaintiff, represented by her legal guardian, Amparo Evangelist
a, made another demand on the defendants for them to vacate the premises, before
Barangay Captain Angelina A. Diaz of Barangay Laging Handa, Quezon City, but af
ter two (2) conferences, the result was negative and no settlement was reached.
A photocopy of the Certification to File Action dated July 4, 1990; issued by sa
id Barangay Captain is attached, marked Annex "D" and made an integral part here
of;
12.
That the plaintiff has given the defendants more than thirty (30) days t
o vacate the house, but they still refused to vacate the premises, and they are
up to this time residing in the said place;
13.
That this complaint is filed within one (1) year from the date of first
letter of demand dated February 3, 1990 (Annex "B") sent by the plaintiff to the
defendants, by her legal guardian -- Amparo Evangelista;
14.

By the defendants' act of unlawfully depriving the plaintiff of the poss

ession of the house in question, they are enriching themselves at the expense of
the incompetent plaintiff, because, while they are saving money by not paying a
ny rent for the house, the plaintiff is losing much money as her house could not
be rented by others;
15.
That the plaintiff's health is failing and she needs the house urgently,
so that funds could be raised to meet her expenses for her support, maintenance
and medical treatment;
16.
That because of defendants' refusal to vacate the house at No. 61 Scout
Tobias, Quezon City, the plaintiff, through her legal guardian, was compelled to
go to court for justice, and she has to spend P10,000.00 as attorney's fees."
Its prayer[20] is quoted below:
"WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen Cai
za, represented by her legal guardian. Amparo Evangelista, respectfully prays to
this Honorable Court, to render judgment in favor of plaintiff and against the
defendants as follows:
1.
To order the defendants, their children, grandchildren, sons-in-la
w and other persons claiming under them, to vacate the house and premises at No.
61 Scout Tobias, Quezon City, so that its possession can be restored to the pla
intiff, Carmen Caiza: and
2.

To pay attorney's fees in the amount of P10,000.00;

3.

To pay the costs of the suit."

In essence, the amended complaint states:

1)
that the Estradas were occupying Caiza's house by tolerance -- having bee
n "allowed to live temporarily ** (therein) for free, out of ** (Caiza's) kindne
ss;"
2)
that Caiza needed the house "urgently" because her "health ** (was) faili
ng and she ** (needed) funds ** to meet her expenses for her support, maintenanc
e and medical treatment;"
3)
that through her general guardian, Caiza requested the Estradas several t
imes, orally and in writing, to give back possession of the house;
4)
that the Estradas refused and continue to refuse to give back the house
to Caiza, to her continuing prejudice; and
5)
cate.

that the action was filed within one (1) year from the last demand to va

Undoubtedly, a cause of action for desahucio has been adequately set out. It is
settled that in an action for unlawful detainer, it suffices to allege that the
defendant is unlawfully withholding possession from the plaintiff is deemed suff
icient,[21] and a complaint for unlawful detainer is sufficient if it alleges th
at the withholding of possession or the refusal to vacate is unlawful without ne
cessarily employing the terminology of the law.[22]
The Estradas' first proffered defense derives from a literal construction of Sec
tion 1, Rule 70 of the Rules of Court which inter alia authorizes the institutio
n of an unlawful detainer suit when "the possession of any land or building is u
nlawfully withheld after the expiration or termination of the right to hold poss
ession, by virtue of any contract, express or implied." They contend that since

they did not acquire possession of the property in question "by virtue of any co
ntract, express or implied" -- they having been, to repeat, "allowed to live tem
porarily ** (therein) for free, out of ** (Caiza's) kindness" -- in no sense coul
d there be an "expiration or termination of ** (their) right to hold possession,
by virtue of any contract, express or implied." Nor would an action for forcibl
e entry lie against them, since there is no claim that they had "deprived (Caiza)
of the possession of ** (her property) by force, intimidation, threat, strategy
, or stealth."
The argument is arrant sophistry. Caiza's act of allowing the Estradas to occupy
her house, rent-free, did not create a permanent and indefeasible right of posse
ssion in the latter's favor. Common sense, and the most rudimentary sense of fai
rness clearly require that act of liberality be implicitly, but no less certainl
y, accompanied by the necessary burden on the Estradas of returning the house to
Caiza upon her demand. More than once has this Court adjudged that a person who
occupies the land of another at the latter's tolerance or permission without any
contract between them is necessarily bound by an implied promise that he will v
acate upon demand, failing which a summary action for ejectment is the proper re
medy against him.[23] The situation is not much different from that of a tenant
whose lease expires but who continues in occupancy by tolerance of the owner, in
which case there is deemed to be an unlawful deprivation or withholding of poss
ession as of the date of the demand to vacate.[24] In other words, one whose sta
y is merely tolerated becomes a deforciant illegally occupying the land or prope
rty the moment he is required to leave.[25] Thus, in Asset Privatization Trust v
s. Court of Appeals,[26] where a company, having lawfully obtained possession of
a plant upon its undertaking to buy the same, refused to return it after failin
g to fulfill its promise of payment despite demands, this Court held that "(a)ft
er demand and its repudiation, ** (its) continuing possession ** became illegal
and the complaint for unlawful detainer filed by the ** (plant's owner) was its
proper remedy."
It may not be amiss to point out in this connection that where there had been mo
re than one demand to vacate, the one-year period for filing the complaint for u
nlawful detainer must be reckoned from the date of the last demand,[27] the reas
on being that the lessor has the option to waive his right of action based on pr
evious demands and let the lessee remain meanwhile in the premises.[28] Now, the
complaint filed by Caiza's guardian alleges that the same was "filed within one
(1) year from the date of the first letter of demand dated February 3, 1990." Al
though this averment is not in accord with law because there is in fact a second
letter of demand to vacate, dated February 27, 1990, the mistake is inconsequen
tial, since the complaint was actually filed on September 17, 1990, well within
one year from the second (last) written demand to vacate.
The Estradas' possession of the house stemmed from the owner's express permissio
n. That permission was subsequently withdrawn by the owner, as was her right; an
d it is immaterial that the withdrawal was made through her judicial guardian, t
he latter being indisputably clothed with authority to do so. Nor is it of any c
onsequence that Carmen Caiza had executed a will bequeathing the disputed propert
y to the Estradas; that circumstance did not give them the right to stay in the
premises after demand to vacate on the theory that they might in future become o
wners thereof, that right of ownership being at best inchoate, no transfer of ow
nership being possible unless and until the will is duly probated.
Thus, at the time of the institution of the action of desahucio, the Estradas ha
d no legal right to the property, whether as possessors by tolerance or sufferan
ce, or as owners. They could not claim the right of possession by sufferance, th
at had been legally ended. They could not assert any right of possession flowing
from their ownership of the house; their status as owners is dependent on the p
robate of the holographic will by which the property had allegedly been bequeath
ed to them -- an event which still has to take place; in other words; prior to t

he probate of the will, any assertion of possession by them would be premature a

nd inefficacious.
In any case, the only issue that could legitimately be raised under the circumst
ances was that involving the Estradas' possession by tolerance, i.e., possession
de facto, not de jure. It is therefore incorrect to postulate that the proper r
emedy for Caiza is not ejectment but accion publiciana, a plenary action in the R
TC or an action that is one for recovery of the right to possession de jure.
II
The Estradas insist that the devise of the house to them by Caiza clearly denotes
her intention that they remain in possession thereof, and legally incapacitated
her judicial guardian, Amparo Evangelista, from evicting them therefrom, since
their ouster would be inconsistent with the ward's will.
A will is essentially ambulatory; at any time prior to the testator's death, it
may be changed or revoked;[29] and until admitted to probate, it has no effect w
hatever and no right can be claimed thereunder, the law being quite explicit: "N
o will shall pass either real or personal property unless it is proved and allow
ed in accordance with the Rules of Court" (ART. 838, id.).[30] An owner's intent
ion to confer title in the future to persons possessing property by his toleranc
e, is not inconsistent with the former's taking back possession in the meantime
for any reason deemed sufficient. And that in this case there was sufficient cau
se for the owner's resumption of possession is apparent: she needed to generate
income from the house on account of the physical infirmities afflicting her, ari
sing from her extreme age.
Amparo Evangelista was appointed by a competent court the general guardian of bo
th the person and the estate of her aunt, Carmen Caiza. Her Letters of Guardiansh
ip[31] dated December 19, 1989 clearly installed her as the "guardian over the p
erson and properties of the incompetent CARMEN CAIZA with full authority to take
possession of the property of said incompetent in any province or provinces in w
hich it may be situated and to perform all other acts necessary for the manageme
nt of her properties ** "[32] By that appointment, it became Evangelista's duty
to care for her aunt's person, to attend to her physical and spiritual needs, to
assure her well-being, with right to custody of her person in preference to rel
atives and friends.[33] It also became her right and duty to get possession of,
and exercise control over, Caiza's property, both real and personal, it being rec
ognized principle that the ward has no right to possession or control of his pro
perty during her incompetency.[34] That right to manage the ward's estate carrie
s with it the right to take possession thereof and recover it from anyone who re
tains it,[35] and bring and defend such actions as may be needful for this purpo
se. [36]
Actually, in bringing the action of desahucio, Evangelista was merely dischargin
g the duty to attend to "the comfortable and suitable maintenance of the ward" e
xplicitly imposed on her by Section 4, Rule 96 of the Rules of Court, viz.:
"SEC. 4.
Estate to be managed frugally, and proceeds applied to maintenan
ce of ward.
A guardian must manage the estate of his ward frugally and without w
aste, and apply the income and profits thereof, so far as maybe necessary, to th
e comfortable and suitable maintenance of the ward and his family, if there be a
ny; and if such income and profits be insufficient for that purpose, the guardia
n may sell or encumber the real estate, upon being authorized by order to do so,
and apply to such of the proceeds as may be necessary to such maintenance."
Finally, it may be pointed out in relation to the Estradas's defenses in the eje
ctment action, that as the law now stands, even when, in forcible entry and unla
wful detainer cases, the defendant raises the question of ownership in his plead

ings and the question of possession cannot be resolved without deciding the issu
e of ownership, the Metropolitan Trial Courts, Municipal Trial Courts, and Munic
ipal Circuit Trial Courts nevertheless have the undoubted competence to resolve.
"the issue of ownership ** only to determine the issue of possession."[37]
III
As already stated, Carmen Caiza passed away during the pendency of this appeal. T
he Estradas thereupon moved to dismiss the petition, arguing that Caiza's death a
utomatically terminated the guardianship, Amaparo Evangelista lost all authority
as her judicial guardian, and ceased to have legal personality to represent her
in the present appeal. The motion is without merit.
While it is indeed well-established rule that the relationship of guardian and w
ard is necessarily terminated by the death of either the guardian or the ward,[3
8] the rule affords no advantage to the Estradas. Amparo Evangelista, as niece o
f Carmen Caiza, is one of the latter's only two (2) surviving heirs, the other be
ing Caiza's nephew, Ramon C. Nevado. On their motion and by Resolution of this Co
urt[39] of June 20, 1994, they were in fact substituted as parties in the appeal
at bar in place of the deceased, in accordance with Section 17, Rule 3 of the R
ules of Court, viz.:[40]
"SEC. 18.
Death of a party.
After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representati
ve of the deceased to appear and be substituted for the deceased within a period
of thirty (30) days, or within such time as may be granted. If the legal repres
entative fails to appear within said time, the court may order the opposing part
y to procure the appointment of a legal representative of the deceased within a
time to be specified by the court, and the representative shall immediately appe
ar for and on behalf of the interest of the deceased. The court charges involved
in procuring such appointment, if defrayed by the opposing party, may be recove
red as costs. The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or administrator and
the court may appoint guardian ad litem for the minor heirs.
To be sure, an ejectment case survives the death of a party. Caiza's demise did n
ot extinguish the desahucio suit instituted by her through her guardian.[41] Tha
t action, not being a purely personal one, survived her death; her heirs have ta
ken her place and now represent her interests in the appeal at bar.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals promulg
ated on June 2, 1993 -- affirming the Regional Trial Court's judgment and dismis
sing petitioner's petition for certiorari -- is REVERSED and SET ASIDE, and the
Decision dated April 13, 1992 of the Metropolitan Trial Court of Quezon City, Br
anch 35, in Civil Case No. 3410 is REINSTATED and AFFIRMED. Costs against privat
e respondents.
SO ORDERED.