[ GR No.

68687, Jan 31, 1987 ]

SPS. FRANCISCO CIMAFRANCA AND VIBESA GURDIEL v. IAC +

DECISION

231 Phil. 559

PARAS, J.:
This is a petition for review on certiorari of the Decision of
Respondent Appellate Court[1] dated December 29, 1984 in AC-G.R.
CV No. 60048 (Rollo, p. 39), affirming in toto the decision of the
Court of First Instance of Zamboanga del Norte, dated October 24,
1974 in Civil Case No. 2234 for Partition and Damages (Rollo, p. 65),
the dispositive portion of which reads as follows:
"IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court is of
the opinion and so holds that the preponderance of evidence is in
favor of defendants, and against the plaintiffs, wherefore, judgment is
hereby rendered as follows:
I. Declaring the defendants as the absolute owners of ¾ portion of
Lot 86, known as Lot No. 86-B, of the sketch plan (Exh. 3) consisting
of 1,109 square meters, including the improvements thereon.
II. Declaring the plaintiffs the absolute owners of ¼ undivided share
in Lot 86 known as Lot NO. 86-A of the sketch plan (Exh. 3)
consisting of 487 square meters, together with the improvements
thereon.
III. Declaring Transfer Certificate of Title No. T-4569 (Exh. A & 16)
null and void and of no legal effect; and ordering the Register of
Deeds of Zamboanga del Norte to issue a new certificate of title in the
names of plaintiffs, &fract14; undivided share of Lot 86, and also in
the names of the defendants, ¾ share of said lot, at the expense of
plaintiffs.
IV. Ordering the plaintiffs to pay attorney's fees in the sum of
P700.00 and costs of this action."
and of its Resolution dated July 23, 1984 (Rollo, p. 49), denying
petitioners' Motion for Reconsideration dated April 4, 1984.
The facts of the case as found by respondent Appellate Court, are as
follows:
"It appears that Lot No. 86 of Cad. Survey
of Lubungan, Zamboanga del Norte with an area of 1,589 square
meters was originally registered on August 18, 1919 under Original
Certificate of Title No. R0-1708 (6515) per Exh. 15 in the names of
'SimpliciaBagsican, a widow; Pedro Gurdiel, married
to Simplicia Adrias; Delfina Gurdiel, the wife of Jose Dalman;
and Cristeto Gurdiel, single, in the proportion of ½ share to the first
named and the remaining ½ in undivided equal shares to the last
three x x x ', pursuant to a decree dated March 2,
1917. Sometime in 1917, a portion of said lot 86 was sold by
Pedro Gurdiel to Perfecto Jalosjos, defendants' father. After the sale,
Perfecto Jalosjos took possession of the portion of Lot 86 sold, and
constructed a residential house thereon. Sometime in 1919,
Perfecto Jalosjos declared for taxation the portion of Lot 86 occupied
by him consisting of 1,023 square meters under Tax Declaration 7030
(Exh. 4). Simplicia Bagsican died in 1934 and was survived by her
children, namely: Pedro Gurdiel, Delfina Gurdiel married to
Jose Dalman and Cristeto Gurdiel. Delfina Gurdiel died in 1939 and
was survived by her children, namely: Iñigo, Jovita, Solomon,
Rosario, Celso, Priscila, Publeo and Geronimo, all
surnamed Dalman while Cristeto, 'just before the war disappeared
and was never heard from up to the present and is therefore
presumed dead x x x' per Exhibit 14. On March 13, 1958,
Pedro Gurdiel and the heirs of Delfina G. Dalman executed a 'Deed of
Extrajudicial partition and confirmation of Previous Sale' (Exh. 14)
whereby, the ½ pro-indiviso share of Simplicia Bagsican in Lot Nos.
86 and 9 as well as the interest of
Pedro Gurdiel, Delfina G. Dalman and Cristeto Gurdiel were
adjudicated to the surviving heirs ofSimplicia Bagsican, as
follows: Lot 86 to Pedro Gurdiel and Lot 9 to the Dalmans. In the
same document (Exh. 14) Pedro Gurdielfurther confirmed and
ratified the sale made by him 'many years ago' of 'one-fourth (14)
interest in Lot No. 86' to Perfecto Jalosjos. Upon the registration
of Exh. 14 on October 24, 1958, Original Certificate of Title No. R0-
1708 (6515) for Lot No. 86 was cancelled and in lieu thereof, Transfer
Certificate of Title No. T-4569 (Exh. A) was issued in the names of
'Pedro Gurdiel married to Simplicia Adrias, ¾ share; and
Perfecto Jalosjos married to Bonifacia Lorete &fract14; share x x x.'
Pedro Gurdiel died sometime in 1958 and was survived by his
widow Simplicia Adrias and 8 children,
namely: Anacorita, Ireneo, Lucrecia, Amparo, Cresencio,
Antonio, Vibesa and Dominador, all surnamed Gurdiel. It appears
that some of the heirs of Pedro Gurdiel conveyed their 1/9 share in
Lot No. 86 pertaining to the share of the late father. On December 21,
1970, the abovementioned heirs of the deceased
Pedro Gurdiel executed an 'Extrajudicial Settlement of Estate of
Deceased Person with Simultaneous Deed of Sale and Confirmation
of Previous Sales' (Exh. F) whereby the 'three fourth (¾) share over a
parcel of land x x x designated as Lot No. 86 x x x covered by Transfer
Certificate of Title T-4569 x x x' of the deceased Pedro Gurdiel was
first adjudicated to his 8 children in 1/9 share each,
except Dominador Gurdiel who had acquired the 1/9 share of his
mother and was given 2/9 share; and thereafter, taking cognizance of
the various conveyances made by some of the heirs in favor
of Vibesa Gurdiel married to Francisco Cimafrancadeclared the latter
the owner of 7/9 share of ¾ of the lot. It appears that the other 2/9
shares were acquired by the sisters FidelaEguia and Caridad Eguia,
1/9 share each, who are co-plaintiffs in this case and owners of an
adjoining Lot No. 87" (Rollo, pp. 42-42-A).
When surveyed on June 12, 1971, the portion occupied by plaintiffs
(petitioners herein) had an area of 487 square meters while the
portion occupied by defendants (private respondents herein) had an
area of 1,109 square meters as shown in the Sketch Plan. (Rollo, p. 77
and pp. 44-45).
On December 10, 1971, petitioners filed a Complaint for Partition and
Damages seeking the partition of the property in question and
the reconveyance by private respondents of the excess portion they
had been allegedly illegally occupying, the demolition and transfer of
their residential building and fence, as well as damages (Rollo, p.
51). Said complaint was amended on January 26, 1972 to include
private respondent Bonifacia Lorete Vda. de Jalosjos (Rollo, p.
55). On January 25, 1972, private respondents filed their answer
(Rollo, p. 58), praying for the cancellation of TCT No. T-4569, and
for an award of damages by way of counterclaim (Rollo, p. 61).
On February 7, 1972, petitioners filed their answer to the
counterclaim, arguing among other things, that TCT No. T-4569
which respondents sought to nullify, is and has always been valid and
binding against the whole world, and its validity cannot now be
properly raised in the instant suit (Rollo, p. 64).
The trial court decided in favor of the defendants and petitioners
appealed to respondent Intermediate Appellate Court which,
however, affirmed the decision of the lower court in toto. Thus, this
petition for review. A true copy of the Record on Appeal was sent to
the Court by registered mail on August 31, 1984.
On September 25, 1984, petitioners filed their petition with this Court
(Rollo, p. 9). In a resolution of the Second Division dated January 23,
1985, the Court resolved to require the respondents to comment on
the petition (Rollo, p. 126) which comment was filed by respondents
on March 8, 1985 (Rollo, p. 130). Petitioners' reply was filed on
March 29, 1985 (Rollo, p. 136).
On September 25, 1985, the Court, through the Second Division,
resolved to give due course to the petition and to require the parties
to submit their respective memoranda within twenty (20) days from
notice (Rollo, p. 141). Petitioners filed their memorandum on
December 2, 1985 (Rollo, p. 154); respondents filed theirs on
December 23, 1985 (Rollo, p. 171).
Petitioners raised the following points:
I. THE RESPONDENT COURT'S INFERENCE THAT TCT NO. T-
4569 IS A NULLITY HAS NO LEGAL BASIS.
II. THE RESPONDENT COURT'S FINDING THAT LACHES HAS
SUPERVENED IS NOT IN ACCORD WITH APPLICABLE LAW AND
JURISPRUDENCE.
III. THE RESPONDENT COURT'S CONCLUSION THAT THE
PORTION ACQUIRED BY PERFECTO JALOSJOS FROM PEDRO
GURDIEL IN 1917 CONSISTED OF A DETERMINATE ¾ PORTION
OF LOT NO. 86 IS MANIFESTLY MISTAKEN.
IV. THE RESPONDENT COURT'S PRONOUNCEMENT THAT THE
ACTUATION OF PRIVATE RESPONDENTS AND THEIR
PREDECESSORS-IN-INTEREST OVER A ¾ PORTION OF LOT NO.
86 HAD VALIDLY AND EFFECTIVELY PUT AN END TO THE CO-
OWNERSHIP OVER SAID LOT IS CONTRARY TO LAW AND
APPLICABLE DECISIONS OF THIS HONORABLE TRIBUNAL.
The petition is impressed with merit.
The trial court found that TCT No. T-4569 issued in the names of
Pedro Gurdiel, ¾ share and Perfecto Jalosjos, &fract14; share based
on the deed of partition executed by Pedro Gurdiel and his co-heirs
on October 6, 1958 (Entry No. 7899) which is purely self-serving, is a
patent nullity (Rollo, p. 78, par. 20); the deed of extrajudicial
partition of Lot 86 was effected without the consent of defendants
(Rollo, p. 80). Respondent Court paraphrased the ruling, as
follows: "Plaintiffs cannot avail of the extrajudicial partition which
was executed in 1958 without the knowledge and participation of the
defendants and in fraud of defendants' rights and interest over Lot
No. 86 which document became the basis for the issuance of TCT No.
T-4569 (Exh. A), as an excuse to avoid the consequences of their own
unjustified inaction and as a basis for the assertion of a right on which
they have slept for so long" (Rollo, p. 48). In other words, respondent
Court is of the view that TCT No. T-4569 is a patent nullity
proceeding from the fact that the deed of extrajudicial partition was
executed without the participation of defendants, and therefore in
fraud of their rights and interests, and after laches could already be
invoked against petitioners and their predecessors.
Petitioners question this conclusion of respondent Court as not being
based on any clear and distinct statement of the facts and the law,
TCT No. T-4569 having become incontrovertible
and imprescriptible by virtue of the lapse not only of four (4) but of
thirteen (13) long years from its issuance in 1958 before its validity
was challenged in private respondents' counterclaim filed in 1972;
and that private respondents are in estoppel or are barred by
prescription and laches from questioning the validity and binding
effect of TCT No. T-4569 or of the deed of partition of 1958 (Rollo, p.
155).
It is undisputed that the questioned deed of extrajudicial partition
was executed by Pedro Gurdiel and the heirs of Delfina G. Dalman on
March 13, 1958 whereby Lot 86 was adjudicated to Pedro Gurdiel and
Lot 9 to the Dalmans. It is equally undisputed that in the same
document Pedro Gurdiel confirmed and ratified the sale made by him
"many years ago" of one-fourth (&fract14;) interest in Lot 86 to
Perfecto Jalosjos and that upon registration of the document on
October 24, 1958, Original Certificate of Title No. RO-1708 (6515) for
Lot 86 was cancelled and in lieu thereof TCT No. T-4569 was issued
in the names of Pedro Gurdiel married to Simplicia Adrias, ¾ share
and Perfecto Jalosjos married to Bonifacia Lorete, &fract14; share
(Rollo, pp. 41-42).
Until 1972 respondents had not questioned the validity of the deed of
extrajudicial partition in 1958, nor the issuance of TCT No. T-4569
but only as a counterclaim to petitioners' complaint for
partition (Rollo, p. 62).
The main issue in this case is whether or not after the lapse of
fourteen (14) years respondent can still question the validity of the
deed of extrajudicial partition and subsequently TCT No. T-4569.
On this issue, the Supreme Court in various cases ruled in the
negative, as follows:
"The action to annul a deed of extrajudicial settlement upon the
ground of fraud may be filed within four years from the discovery of
the fraud. Such discovery is deemed to have taken place when said
instrument was filed with the Register of Deeds and new
certificates of title were issued in the name of respondents
respectively. x x x the registration of the deed of extra-judicial
settlement constitute constructive notice to the whole world."
(Gerona v. De Guzman, 11 SCRA 154 and 157 [1964] citing Diaz v.
Gornicho, L-11229, March 29, 1958; Avecilla v. Yatco, L-11578, May
14, 1958; J.M. Tuason & Co., Inc. v. Magdangal, L-15539, January
30, 1962; Lopez v. Gonzaga, L-18788, January 31, 1964)."
An action for reconveyance of real property on the ground of fraud
must be filed within four (4) years from the discovery of the
fraud. Such discovery is deemed to have taken place from the
issuance of the certificates of title (Baldin v. Medalla, 108 SCRA
666). Respondents had only four years from October, 1958 or until
1962 to bring this action, which respondents failed to do.
Moreover, the records show that respondents and their predecessors
can be charged not only with constructive notice but with actual
notice of the fraud, if any, in 1958, as well. As pointed out by
petitioners, Librado Balbosa, an employee of the Registry of Deeds
of Zamboanga, testified that the person who presented the 1958 deed
of partition for registration in the Office of the Registry of Deeds was
the late Perfecto Jalosjos himself (Rollo, p. 17) and it was
respondent Aracelita Jalosjos who received owner's copy of TCT No.
T-4569 and delivered the copy to her father who was still alive at that
time (Rollo, p. 74).
For laches to attach, the following elements must be present: (1)
Conduct on the part of the defendant or one under whom he claims,
giving rise to the situation of which complaint is made and for which
the complainant seeks remedy; (2) Delay in asserting the
complainant's right, the complainant having had knowledge or notice
of the defendant's conduct and having been afforded an opportunity
to institute a suit; (3) Lack of knowledge or notice on the part of the
defendant that the complainant would assert the right on which he
bases his suit; and (4) Injury or prejudice to the defendant in the
event relief is accorded to the complainant, or the suit is not held to
be barred (De Lucas v. Gamponia, 100 Phil. 277; Abraham v. Recto-
Kasten, 4 SCRA 298; Nielson & Co., INC. v. Lepanto Consolidated
Mining Corp., 18 SCRA 1040; San Miguel Corporation v. Cruz, 31
SCRA 819; Yusingco v. Ong Hing Lian, 42 SCRA 589; Perez v. Ong
Chua, 116 SCRA 732; Rafols v. Barba, 119 SCRA 146; Chacon
Enterprises v. Court of Appeals, 124 SCRA 784).
Respondents have not taken any step to have the deed of extrajudicial
partition corrected, if it is true as they claim it is, that what had been
sold to their father is ¾ share of Lot 86 instead of &fract14; share. It
is now both too late and bereft of basis to ask for the cancellation of
TCT No. T-4569. Inaction and neglect of a party to assert a right can
convert a valid claim into a stale demand (Perez v. Ong Chua, 116
SCRA 732 [1982]). An estoppel by laches arises from the negligence
or omission to assert a right within a reasonable time, warranting a
presumption that the party entitled to assert it either has abandoned
it or declined to assert it (Municipality of Carcar v. CFI of
Cebu, Barile Branch, 119 SCRA 392 [1982]; Gumpin v. Court of
Appeals, 120 SCRA 687 [1983]; Guerrero v. Court of Appeals, 126
SCRA 109 [1983]; De Castro v. Tan, 129 SCRA 85 [1984]; Medija v.
Patcho, 132 SCRA 540 [1984]; Burgos v. Chief of Staff of the Phil.,
133 SCRA 800 [1984]; Corro v. Lising, 137 SCRA 541
[1985]; Tejido v. Zamacoma, 138 SCRA 78 [1985]).
Unfortunately, as things turned out, the lower court found petitioners
guilty of laches as respondents had already been in possession of ¾
portion of the lot for the last fifty-four (54) years before they filed
their complaint in 1971 (Rollo, p. 80) which conclusion was sustained
by respondent Appellate Court (Rollo, p. 46). Such conclusion is
untenable even for the sake of argument for Lot 86 is registered land
and registered lands are not subject to prescription. Adverse,
notorious and continuous possession under a claim of ownership for
the period fixed by law is ineffective against a Torrens Title
(Bolanos v. J.M. Tuason & Co., Inc., 37 SCRA 223 [1971]; Republic v.
Lichauco, 46 SCRA 305 [1972]; Spouses Co v. Serafin, 121 SCRA 61
[1982]; Mendiola v. Court of Appeals, 106 SCRA 130
[1981]; Umbay v. Alecha, 135 SCRA 427 [1985]). Unless there are
intervening rights of third persons which may be affected or
prejudiced by a decision directing the return of the lot to petitioners,
the equitable defense of laches will not apply as against the registered
owners (Urbano v. Concepcion, 94 SCRA 212 [1979]).
Respondent Court relied on the case of Arcuino v. Agaris (22 SCRA
407 [1962]) where the Court ruled in favor of defendants and their
predecessors-in-interest, they having been in possession of the lot in
litigation, for 26 years. Plaintiffs had sought to recover the lot in an
action for recovery of possession, damages and legal redemption,
alleging their co-ownership over the land to the extent of ¾ thereof.
It will be observed, however, that there is hardly any similarity
between said case and the case at bar. In the former, the Court ruled
that plaintiffs were not registered owners. They merely claimed to
have acquired, by succession their alleged title or interest in Lot No.
355. At any rate, plaintiffs therein were guilty of laches.
On the other hand, in the present case, a Torrens Title is involved,
and this Title gives petitioners ¾, and respondents only ¼ of the
land. Nor are petitioners guilty of laches, the respondents' claim
having been made only after a survey made of the land in 1972.
In fact, petitioners' claim that it is private respondents themselves
who are in estoppel or are barred by prescription and laches from
questioning the validity and binding effect of TCT No. T-4569 (Rollo,
p. 17) is well taken under the circumstances considering particularly
the time that has elapsed since the issuance of the pertinent Torrens
Title. Besides, a Torrens title cannot be attacked collaterally. The
issue on its validity can be raised only in an action expressly
instituted for that purpose (Magay v. Estiandan, 69 SCRA 456
[1976]; Barrios v. Court of Appeals, 78 SCRA 427 [1977]). The
efficacy and integrity of the Torrens System must be protected
(Director of Lands v. Court of Appeals, 102 SCRA 130 [1981]).
PREMISES CONSIDERED, the decision of respondent Court is
hereby REVERSED and SET ASIDE, and a new one is hereby
rendered, ordering the actual partition of the property in accordance
with TCT No. T-4569, ¾ share to petitioners and ¼ share to
respondents.
SO ORDERED.
Fernan, (Chairman), Alampay, Gutierrez, Jr., and Padilla, JJ., concur.
Bidin, J., no part.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-14676 January 31, 1963
CANDIDA VILLALUZ, ET AL., plaintiffs-appellants,
vs.
JUAN NEME and FELICISIMA VILLAFRANCA, defendants-appellees.
Jose L. Lapak for plaintiffs-appellants.
Rosario B. Zono-Sunga for defendants-appellees.
PAREDES, J.:
This case was elevated to this Court "on purely questions of law." The record
discloses that Maria Rocabo died intestate on February 17, 1937, leaving a parcel of
land granted her under Homestead Patent No. 185321, issued on May 20, 1930, and
covered by Original Certificate of Title No. 217 (Exh. A), of the Register of Deeds of
Camarines Norte. She left three (3) daughters, named Sinforosa, Patricia and Maria,
surnamed Villaluz and grandchildren, Candida, Emilia, Clemencia, Roberto and
Isidra Villaluz, legitimate children of her deceased son Pedro Villaluz; Isabelo and
Teodoro Napoles, legitimate sons of a deceased daughter; Severina Villaluz and
Sinforosa and Leonor Napoles, legitimate daughters of another deceased daughter,
Gregoria Villaluz.
After the approval of her application, but before granting of the patent, on March 6,
1926, Maria Rocabo donated the southern portion of the land to Maria, and the
northern portion to Patricia, in two notarial deeds donation (Exhibits 1 and 7),
giving them the right to present their deeds of donations to the Bureau of Lands. The
said donees accepted the donations and took actual possession of their respective
portions, but only Maria Villaluz remained on the entire land because Patricia left.
Maria cultivated and improved the land from 1927 to 1938, inclusive. Maria and
Patricia, however, forgot and cared not to present the deeds of donation to the
Bureau of Lands. On March 27, 1930, the patent was granted and O.C.T. No. 217 was
issued in the name of Maria Rocabo. Realizing that the deeds of donation were not in
accordance with the formalities required by law, and because Sinforosa Villaluz,
who had the custody of the title would not surrender it to the donees, unless given a
share, upon the advise of a Notary Public, Carlos de Jesus, Maria, Patricia and
Sinforosa, on September 1, 1939, executed a deed of extrajudicial partition (Exh. 2)
among themselves, to the exclusion and without the knowledge and consent of their
nephews and nieces, the herein plaintiffs-appellants, and in virtue thereof, O.C.T. No.
217 was cancelled and Transfer Certificate of Title No. 269 was issued in their
names (Exh. 5) after having made representations that they were the only heirs of
their mother, Maria Rocabo. On September 2, 1939, the 3 sisters declared the land
for taxation purposes (Exh. 4). On September 11, 1939, they sold the land to
Ramona Pajarillo, wife of Adriano Mago and Angela Pajarillo, wife of defendant Juan
Neme (Exh. 3). Ramona and Angela declared land for taxation purposes in their
names (Exh. 6). On August 3, 1953, the heirs of Adriano and Ramona sold the
undivided interest of the latter to Juan Neme (Exh. 8), who, on August 8, 1953, sold
the southern half portion of the property in favor of defendant Felicisima Villafranca
(Exh. 13). Thereafter, the plaintiffs-appellants came to know that the land which
was in the administration of their aunts, Sinforosa, Patricia and Maria, was already
in the possession of the defendants. After attempts of amicable settlement had
failed, the plaintiffs on June 3, 1954, filed a complaint for partition of said land and
recovery of their respective shares on the property and accounting of the fruits
thereof.
It also appears that the deeds of sale of the land in question executed in favor of the
defendants, had not been registered in favor of the defendants and had not been
recorded in accordance with Public Land Act No. 141 and the Land Registration
Law, Act No. 496; that the vendees failed to have their deed of sale (Exh. 3),
annotated on said T.C.T. No. 269, or have the title thereof transferred in their names.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be
admitted and approved by this Honorable Court, without prejudice to the parties
adducing other evidence to prove their case not covered by this stipulation of
facts. 1äwphï1.ñët
After due trial, the lower court rendered judgment, dismissing the complaint, with
costs against the plaintiffs, and declaring the defendants the owners of the land
described in the complaint and in the T.C.T. No. 269. Plaintiffs in their appeal, claim
that the lower court erred: (1) In not finding that the extrajudicial partition (Exh. 2),
only affected the partition of Sinforosa, Patricia and Maria, surnamed Villaluz, on the
land in question and not the participation of the plaintiffs-appellants, as compulsory
heirs of Maria Rocabo; (2) In finding that plaintiffs-appellants are already barred
from claiming their participation thereon; and (3) In finding that defendants-
appellees are owners, with right of possession, of the said land.
The contention of the plaintiffs-appellants is meritorious. The decision found to be
an incontrovertible fact that the land in question should be divided among the heirs
of the decedent Sinforosa, Patricia and Maria Villaluz and her grandchildren. Thus,
the trial Court said:
... The settlement of the estate of Maria Rocabo was summarily effected by the
extrajudicial partition executed September 1, 1939, by the three surviving children
to the exclusion of the plaintiffs who were entitled to inherit by representation. By
virtue of the extrajudicial partition, Exhibit 1, the Original Certificate of Title No. 217
in the name of Maria Rocabo was cancelled and Transfer Certificate of Title No. 269
was issued in lieu thereof in favor of Sinforosa Villaluz, Patricia Villaluz and Maria
Villaluz on September 6, 1939, to the prejudice of the plaintiffs. . . .
Furthermore, Maria having left no testament or last will, her heirs succeeded to the
possession and ownership of the land in question from the time of her death (Art.
440, Old Civil Code, Art. 533, New Civil Code; Lubrico v. Arbado, 12 Phil. 391). The
deed of extrajudicial partition (Exh. 2), was fraudulent and vicious, the same having
been executed among the 3 sisters, without including their co-heirs, who had no
knowledge of and consent to the same. The partition, therefore, did not and could
not prejudice the interest and participation of the herein plaintiffs-appellants, and
the sale of the land to the defendants did not and could not also prejudice and effect
plaintiffs-appellants' interest and participation thereon. The cancellation of O.C.T.
No. 217 and the issuance of T.C.T. No. 269, did not likewise prejudice the interest
and the participation of the plaintiffs-appellants. The three sisters could not have
sold what did not belong to them. Nemo dat quod non habet.
The trial court held that under Sec. 4, Rule 73 of the Rules, the plaintiffs' cause of
action had already prescribed. This section, however, refers only to the settlement
and distribution of the estate of the deceased by the heirs who make such partition
among themselves in good faith, believing that they are the only heirs with the right
succeed. In the case at bar, however, the surviving sisters could not have ignored
that they had co-heirs, the children of the 3 brothers who predeceased their mother.
Considering that Maria Rocabo died during the regime of the Spanish Civil Code, the
distribution of her properties should be governed by said Code, wherein it is
provided that between co-heirs, the act to demand the partition of the inheritance
does not prescribe. (Art 1965 [Old Civ. Code]; Baysa, et al. v. Baysa, 53 Off. Gaz.,
7282). Verily the 3 living sisters were possessing the property as administratrices or
trustees for and in behalf of the other co-heirs, plaintiffs-appellants herein, who
have the right to vindicate their inheritance, regardless of the lapse of time (Sevilla
v. De los Angeles, L-7745; 51 Off. Gaz., 5590, and case cited therein).
Moreover, the acquisition of the land in question is governed by the Public Land Act
No. 141 and the Land Registration Law Act No. 496. And considering that the deed
of sale had not been registered in accordance with the said laws, the same did not
constitute a conveyance which would bind or affect the land, because the
registration of a voluntary sale of land is the operative act that transmits or
transfers title (Tuason v. Raymundo, 28 Phil.635).
Defendants-appellees further argue that the extrajudicial partition should not be
taken independently of the deeds of donation as in fact, according to them, the crux
of the case lies mainly in the two deeds of donation, which enabled the donees to
possess the land and cut any and all rights of the plaintiffs-appellants to claim
participation therein. In other words, it is pretended that after the alleged
donations, the land in question was no longer a part of the intestate estate of Maria
Rocabo, and the plaintiffs-appellants could no longer participate thereon. But the
deeds of donation, according to the trial court, were defective and inoperative,
because they were not executed in accordance with law. The trial court itself began
to count the period of prescription "after the execution of the extrajudicial partition
and the issuance of Transfer Certificate of Title No. 269". The donees themselves
know that the donations were defective and inoperative, otherwise they would not
have subsequently decided to execute the deed of extrajudicial partition, which also
goes to show that the rights of the three sisters and the vendees, stemmed from the
said extrajudicial partition. The defendants-appellees, finally argue that, this
notwithstanding, the subsequent registration of the land in the names of the two
donees and Sinforosa Villaluz pursuant to the extrajudicial partition on September
1, 1939, and the subsequent sale thereof by the registered owners to the
defendants-appellees, on September 11, 1939, followed by the actual, adverse and
continuous possession by the vendees and successors for more than 10 years,
before the present complaint was filed, had barred the right of appellants to recover
title of the property and claim participation therein. Having held that the three
sisters were mere trustees of the property for the benefit of the appellants, and it
appearing that they had not repudiated the trust, defendants-appellees' pretension
in this respect is without merit. The finding in the appealed decision that "there is
no evidence that the said defendants are not innocent purchasers and for value"
(good faith), is of no moment in the case at bar. As heretofore adverted to, there was
no effective sale at all, which would affect the rights of the plaintiffs-appellants.
Moreover, the lack of good faith on the part of the defendants-appellees can
reasonably be inferred from thier conduct in not presenting for registration the
supposed deed of sale in their favor; in failing to annotate the sale on the T.C.T. of
the alleged donees, and in not asking that a transfer certificate of title be issued in
their (vendees') names. It may also be reasonably concluded that if they did not
present the deed of sale for registration, it was because they knew that their
vendors were not the sole and only heirs so as to entitle them to the ownership of
the land in question.
IN VIEW HEREOF, the decision appealed from is hereby set aside, and the case is
remanded to the court of origin, for further and appropriate proceedings..
Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Dizon and
Regala, JJ., concur.
Bengzon, C.J., took no part.
Makalintal, J., reserves his vote.

G.R. No. L-54919 May 30, 1984

POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch
XXXVIII, Court of First Instance of Manila and NENITA CAMPOS
PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to annul the order of the
respondent judge of the Court of First Instance of Manila, Branch XXXVIII, which
admitted to and allowed the probate of the last will and testament of Adoracion C.
Campos, after an ex-parte presentation of evidence by herein private respondent.
On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner
Hermogenes Campos and her sisters, private respondent Nenita C. Paguia, Remedios
C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was
the only compulsory heir, he executed an Affidavit of Adjudication under Rule 74,
Section I of the Rules of Court whereby he adjudicated unto himself the ownership
of the entire estate of the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the
reprobate of a will of the deceased, Adoracion Campos, which was allegedly
executed in the United States and for her appointment as administratrix of the
estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an American citizen at the time
of her death and was a permanent resident of 4633 Ditman Street, Philadelphia,
Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while
temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that during
her lifetime, the testatrix made her last wig and testament on July 10, 1975,
according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New
Jersey as executor; that after the testatrix death, her last will and testament was
presented, probated, allowed, and registered with the Registry of Wins at the
County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who
was appointed after Dr. Barzaga had declined and waived his appointment as
executor in favor of the former, is also a resident of Philadelphia, U.S.A., and that
therefore, there is an urgent need for the appointment of an administratrix to
administer and eventually distribute the properties of the estate located in the
Philippines.
On January 11, 1978, an opposition to the reprobate of the will was filed by herein
petitioner alleging among other things, that he has every reason to believe that the
will in question is a forgery; that the intrinsic provisions of the will are null and
void; and that even if pertinent American laws on intrinsic provisions are invoked,
the same could not apply inasmuch as they would work injustice and injury to him.
On December 1, 1978, however, the petitioner through his counsel, Atty. Franco
Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights or Interests)
stating that he "has been able to verify the veracity thereof (of the will) and now
confirms the same to be truly the probated will of his daughter Adoracion." Hence,
an ex-partepresentation of evidence for the reprobate of the questioned will was
made.
On January 10, 1979, the respondent judge issued an order, to wit:
At the hearing, it has been satisfactorily established that Adoracion C. Campos, in
her lifetime, was a citizen of the United States of America with a permanent
residence at 4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D) that when
alive, Adoracion C. Campos executed a Last Will and Testament in the county of
Philadelphia, Pennsylvania, U.S.A., according to the laws thereat (Exhibits E-3 to E-3-
b) that while in temporary sojourn in the Philippines, Adoracion C. Campos died in
the City of Manila (Exhibit C) leaving property both in the Philippines and in the
United States of America; that the Last Will and Testament of the late Adoracion C.
Campos was admitted and granted probate by the Orphan's Court Division of the
Court of Common Pleas, the probate court of the Commonwealth of Pennsylvania,
County of Philadelphia, U.S.A., and letters of administration were issued in favor of
Clement J. McLaughlin all in accordance with the laws of the said foreign country on
procedure and allowance of wills (Exhibits E to E-10); and that the petitioner is not
suffering from any disqualification which would render her unfit as administratrix
of the estate in the Philippines of the late Adoracion C. Campos.
WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby
admitted to and allowed probate in the Philippines, and Nenita Campos Paguia is
hereby appointed Administratrix of the estate of said decedent; let Letters of
Administration with the Will annexed issue in favor of said Administratrix upon her
filing of a bond in the amount of P5,000.00 conditioned under the provisions of
Section I, Rule 81 of the Rules of Court.
Another manifestation was filed by the petitioner on April 14, 1979, confirming the
withdrawal of his opposition, acknowledging the same to be his voluntary act and
deed.
On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the
order allowing the will be set aside on the ground that the withdrawal of his
opposition to the same was secured through fraudulent means. According to him,
the "Motion to Dismiss Opposition" was inserted among the papers which he signed
in connection with two Deeds of Conditional Sales which he executed with the
Construction and Development Corporation of the Philippines (CDCP). He also
alleged that the lawyer who filed the withdrawal of the opposition was not his
counsel-of-record in the special proceedings case.
The petition for relief was set for hearing but the petitioner failed to appear. He
made several motions for postponement until the hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or
Set Aside the Order of January 10, 1979, and/or dismiss the case for lack of
jurisdiction. In this motion, the notice of hearing provided:
Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in
the morning for submission for reconsideration and resolution of the Honorable
Court. Until this Motion is resolved, may I also request for the future setting of the
case for hearing on the Oppositor's motion to set aside previously filed.
The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the
case was called for hearing on this date, the counsel for petitioner tried to argue his
motion to vacate instead of adducing evidence in support of the petition for relief.
Thus, the respondent judge issued an order dismissing the petition for relief for
failure to present evidence in support thereof. Petitioner filed a motion for
reconsideration but the same was denied. In the same order, respondent judge also
denied the motion to vacate for lack of merit. Hence, this petition.
Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will,
which, incidentally has been questioned by the respondent, his children and forced
heirs as, on its face, patently null and void, and a fabrication, appointing Polly
Cayetano as the executrix of his last will and testament. Cayetano, therefore, filed a
motion to substitute herself as petitioner in the instant case which was granted by
the court on September 13, 1982.
A motion to dismiss the petition on the ground that the rights of the petitioner
Hermogenes Campos merged upon his death with the rights of the respondent and
her sisters, only remaining children and forced heirs was denied on September 12,
1983.
Petitioner Cayetano persists with the allegations that the respondent judge acted
without or in excess of his jurisdiction when:
1) He ruled the petitioner lost his standing in court deprived the Right to Notice
(sic) upon the filing of the Motion to Dismiss opposition with waiver of rights or
interests against the estate of deceased Adoracion C. Campos, thus, paving the way
for the hearing ex-parte of the petition for the probate of decedent will.
2) He ruled that petitioner can waive, renounce or repudiate (not made in a public
or authenticated instrument), or by way of a petition presented to the court but by
way of a motion presented prior to an order for the distribution of the estate-the
law especially providing that repudiation of an inheritance must be presented,
within 30 days after it has issued an order for the distribution of the estate in
accordance with the rules of Court.
3) He ruled that the right of a forced heir to his legitime can be divested by a decree
admitting a will to probate in which no provision is made for the forced heir in
complete disregard of Law of Succession
4) He denied petitioner's petition for Relief on the ground that no evidence was
adduced to support the Petition for Relief when no Notice nor hearing was set to
afford petitioner to prove the merit of his petition — a denial of the due process and
a grave abuse of discretion amounting to lack of jurisdiction.
5) He acquired no jurisdiction over the testate case, the fact that the Testator at the
time of death was a usual resident of Dasmariñas, Cavite, consequently Cavite Court
of First Instance has exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No. L-
7792, July 1955).
The first two issues raised by the petitioner are anchored on the allegation that the
respondent judge acted with grave abuse of discretion when he allowed the
withdrawal of the petitioner's opposition to the reprobate of the will.
We find no grave abuse of discretion on the part of the respondent judge. No proof
was adduced to support petitioner's contention that the motion to withdraw was
secured through fraudulent means and that Atty. Franco Loyola was not his counsel
of record. The records show that after the firing of the contested motion, the
petitioner at a later date, filed a manifestation wherein he confirmed that the Motion
to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the
motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long
withdrawn from the case and had been substituted by Atty. Franco Loyola who in
turn filed the motion. The present petitioner cannot, therefore, maintain that the old
man's attorney of record was Atty. Lagrosa at the time of filing the motion. Since the
withdrawal was in order, the respondent judge acted correctly in hearing the
probate of the will ex-parte, there being no other opposition to the same.
The third issue raised deals with the validity of the provisions of the will. As a
general rule, the probate court's authority is limited only to the extrinsic validity of
the will, the due execution thereof, the testatrix's testamentary capacity and the
compliance with the requisites or solemnities prescribed by law. The intrinsic
validity of the will normally comes only after the court has declared that the will has
been duly authenticated. However, where practical considerations demand that the
intrinsic validity of the will be passed upon, even before it is probated, the court
should meet the issue. (Maninang vs. Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the respondent judge allowed
the reprobate of Adoracion's will, Hermogenes C. Campos was divested of his
legitime which was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the petitioner and thus,
the respondent judge should have denied its reprobate outright, the private
respondents have sufficiently established that Adoracion was, at the time of her
death, an American citizen and a permanent resident of Philadelphia, Pennsylvania,
U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code which
respectively provide:
Art. 16 par. (2).
xxx xxx xxx
However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found.
Art. 1039.
Capacity to succeed is governed by the law of the nation of the decedent.
the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A.,
which is the national law of the decedent. Although the parties admit that the
Pennsylvania law does not provide for legitimes and that all the estate may be given
away by the testatrix to a complete stranger, the petitioner argues that such law
should not apply because it would be contrary to the sound and established public
policy and would run counter to the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the provisions of the will, as
provided for by Article 16(2) and 1039 of the Civil Code, the national law of the
decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20
SCRA 358) wherein we ruled:
It is therefore evident that whatever public policy or good customs may be involved
in our system of legitimes, Congress has not intended to extend the same to the
succession of foreign nationals. For it has specifically chosen to leave, inter alia, the
amount of successional rights, to the decedent's national law. Specific provisions
must prevail over general ones.
xxx xxx xxx
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of
Texas, U.S.A., and under the law of Texas, there are no forced heirs or legitimes.
Accordingly, since the intrinsic validity of the provision of the will and the amount of
successional rights are to be determined under Texas law, the Philippine Law on
legitimes cannot be applied to the testacy of Amos G. Bellis.
As regards the alleged absence of notice of hearing for the petition for relief, the
records wig bear the fact that what was repeatedly scheduled for hearing on
separate dates until June 19, 1980 was the petitioner's petition for relief and not his
motion to vacate the order of January 10, 1979. There is no reason why the
petitioner should have been led to believe otherwise. The court even admonished
the petitioner's failing to adduce evidence when his petition for relief was
repeatedly set for hearing. There was no denial of due process. The fact that he
requested "for the future setting of the case for hearing . . ." did not mean that at the
next hearing, the motion to vacate would be heard and given preference in lieu of
the petition for relief. Furthermore, such request should be embodied in a motion
and not in a mere notice of hearing.
Finally, we find the contention of the petition as to the issue of jurisdiction utterly
devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it is provided that:
SECTION 1. Where estate of deceased persons settled. — If the decedent is an
inhabitant of the Philippines at the time of his death, whether a citizen or an alien,
his will shall be proved, or letters of administration granted, and his estate settled,
in the Court of First Instance in the province in which he resided at the time of his
death, and if he is an inhabitant of a foreign country, the Court of First Instance of
any province in which he had estate. The court first taking cognizance of the
settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of
all other courts. The jurisdiction assumed by a court, so far as it depends on the
place of residence of the decedent, or of the location of his estate, shall not be
contested in a suit or proceeding, except in an appeal from that court, in the original
case, or when the want of jurisdiction appears on the record.
Therefore, the settlement of the estate of Adoracion Campos was correctly filed with
the Court of First Instance of Manila where she had an estate since it was alleged
and proven that Adoracion at the time of her death was a citizen and permanent
resident of Pennsylvania, United States of America and not a "usual resident of
Cavite" as alleged by the petitioner. Moreover, petitioner is now estopped from
questioning the jurisdiction of the probate court in the petition for relief. It is a
settled rule that a party cannot invoke the jurisdiction of a court to secure
affirmative relief, against his opponent and after failing to obtain such relief,
repudiate or question that same jurisdiction. (See Saulog Transit, Inc. vs. Hon.
Manuel Lazaro, et al., G. R. No. 63 284, April 4, 1984).
WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack
of merit.
SO ORDERED.
Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.
Teehankee, J., (Chairman), took no part.

G.R. No. L-48840 December 29, 1943

ERNESTO M. GUEVARA, petitioner-appellant,
vs.
ROSARIO GUEVARA and her husband PEDRO BUISON, respondent-appellees.
Primacias, Abad, Mencias & Castillo for appellant.
Pedro C. Quinto for appellees.

OZAETA, J.:
Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural daughter,
respectively, of the deceased Victorino L. Guevara, are litigating here over their
inheritance from the latter. The action was commenced on November 12, 1937, by
Rosario Guevara to recover from Ernesto Guevara what she claims to be her strict
ligitime as an acknowledged natural daughter of the deceased — to wit, a portion of
423,492 square meters of a large parcel of land described in original certificate of
title No. 51691 of the province of Pangasinan, issued in the name of Ernesto M.
Guervara — and to order the latter to pay her P6,000 plus P2,000 a year as damages
for withholding such legitime from her. The defendant answered the complaint
contending that whatever right or rights the plaintiff might have had, had been
barred by the operation of law.
It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A),
apparently with all the formalities of the law, wherein he made the following
bequests: To his stepdaughter Candida Guevara, a pair of earrings worth P150 and a
gold chain worth P40; to his son Ernesto M. Guevara, a gold ring worth P180 and all
the furniture, pictures, statues, and other religious objects found in the residence of
the testator in Poblacion Sur, Bayambang, Pangasinan; "a mi hija Rosario Guevara," a
pair of earrings worth P120; to his stepson Piuo Guevara, a ring worth P120; and to
his wife by second marriage, Angustia Posadas, various pieces of jewelry worth
P1,020.
He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M.
Guevara y a mis hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio, apellidados
Guevara," a residential lot with its improvements situate in the town of Bayambang,
Pangasinan, having an area of 960 square meters and assessed at P540; to his wife
Angustia Posadas he confirmed the donation propter nuptias theretofore made by
him to her of a portion of 25 hectares of the large parcel of land of 259-odd hectares
described in plan Psu-66618. He also devised to her a portion of 5 hectares of the
same parcel of land by way of complete settlement of her usufructurary
right.1awphil.net
He set aside 100 hectares of the same parcel of land to be disposed of either by him
during his lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay all
his pending debts and to degray his expenses and those of his family us to the time
of his death.
The remainder of said parcel of land his disposed of in the following manner:
(d). — Toda la porcion restante de mi terreno arriba descrito, de la extension
superficial aproximada de ciento veintinueve (129) hectareas setenta (70) areas, y
veiticinco (25) centiares, con todas sus mejoras existentes en la misma, dejo y
distribuyo, pro-indiviso, a mis siguientes herederos como sigue:
A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y
cincuenta y cuatro (54) centiareas, hacia la parte que colinda al Oeste de las cien
(100) hectareas referidas en el inciso (a) de este parrafo del testamento, como su
propiedad absoluta y exclusiva, en la cual extension superficial estan incluidas
cuarenta y tres (43) hectareas, veintitres (23) areas y cuarenta y dos (42) centiareas
que le doy en concepto de mejora.
A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un
(61) areas y setenta y un (71) centiareas, que es la parte restante.
Duodecimo. — Nombro por la presente como Albacea Testamentario a mi hijo
Ernesto M. Guevara, con relevacion de fianza. Y una vez legalizado este testamento, y
en cuanto sea posible, es mi deseo, que los herederos y legatarios aqui nombrados
se repartan extrajudicialmente mis bienes de conformidad con mis disposiciones
arriba consignadas.
Subsequently, and on July 12, 1933, Victorino L. Guevarra executed whereby he
conveyed to him the southern half of the large parcel of land of which he had
theretofore disposed by the will above mentioned, inconsideration of the sum of P1
and other valuable considerations, among which were the payment of all his debts
and obligations amounting to not less than P16,500, his maintenance up to his
death, and the expenses of his last illness and funeral expenses. As to the northern
half of the same parcel of land, he declared: "Hago constar tambien que reconozco a
mi referido hijo Ernesto M. guevara como dueño de la mitad norte de la totalidad y
conjunto de los referidos terrenos por haberlos comprado de su propio peculio del
Sr. Rafael T. Puzon a quien habia vendido con anterioridad."
On September 27, 1933, final decree of registration was issued in land registration
case No. 15174 of the Court of First Instance of Pangasinan, and pursuant thereto
original certificate of title No. 51691 of the same province was issued on October 12
of the same year in favor of Ernesto M. Guevara over the whole parcel of land
described in the deed of sale above referred to. The registration proceeding had
been commenced on November 1, 1932, by Victorino L. Guevara and Ernesto M.
Guevara as applicants, with Rosario, among others, as oppositor; but before the trial
of the case Victorino L. Guevara withdrew as applicant and Rosario Guevara and her
co-oppositors also withdrew their opposition, thereby facilitating the issuance of the
title in the name of Ernesto M. Guevara alone.
On September 27, 1933, Victorino L. Guevarra died. His last will and testament,
however, was never presented to the court for probate, nor has any administration
proceeding ever been instituted for the settlement of his estate. Whether the various
legatees mentioned in the will have received their respective legacies or have even
been given due notice of the execution of said will and of the dispositions therein
made in their favor, does not affirmatively appear from the record of this case. Ever
since the death of Victorino L. Guevara, his only legitimate son Ernesto M. Guevara
appears to have possessed the land adjudicated to him in the registration
proceeding and to have disposed of various portions thereof for the purpose of
paying the debts left by his father.
In the meantime Rosario Guevara, who appears to have had her father's last will and
testament in her custody, did nothing judicially to invoke the testamentary
dispositions made therein in her favor, whereby the testator acknowledged her as
his natural daughter and, aside from certain legacies and bequests, devised to her a
portion of 21.6171 hectares of the large parcel of land described in the will. But a
little over four years after the testor's demise, she (assisted by her husband)
commenced the present action against Ernesto M. Guevara alone for the purpose
hereinbefore indicated; and it was only during the trial of this case that she
presented the will to the court, not for the purpose of having it probated but only to
prove that the deceased Victirino L. Guevara had acknowledged her as his natural
daughter. Upon that proof of acknowledgment she claimed her share of the
inheritance from him, but on the theory or assumption that he died intestate,
because the will had not been probated, for which reason, she asserted, the
betterment therein made by the testator in favor of his legitimate son Ernesto M.
Guevara should be disregarded. Both the trial court and the Court of appeals
sustained that theory.
Two principal questions are before us for determination: (1) the legality of the
procedure adopted by the plaintiff (respondent herein) Rosario Guevara; and (2)
the efficacy of the deed of sale exhibit 2 and the effect of the certificate of title issued
to the defendant (petitioner herein) Ernesto M. Guevara.
I
We cannot sanction the procedure adopted by the respondent Rosario Guevara, it
being in our opinion in violation of procedural law and an attempt to circumvent
and disregard the last will and testament of the decedent. The Code of Civil
Procedure, which was in force up to the time this case was decided by the trial court,
contains the following pertinent provisions:
Sec. 625. Allowance Necessary, and Conclusive as to Execution. — No will shall pass
either the real or personal estate, unless it is proved and allowed in the Court of
First Instance, or by appeal to the Supreme Court; and the allowance by the court of
a will of real and personal estate shall be conclusive as to its due execution.
Sec. 626. Custodian of Will to Deliver. — The person who has the custody of a will
shall, within thirty days after he knows of the death of the testator, deliver the will
into the court which has jurisdiction, or to the executor named in the will.
Sec. 627. Executor to Present Will and Accept or Refuse Trust. — A person named as
executor in a will, shall within thirty days after he knows of the death of the testor,
or within thirty days after he knows that he is named executor, if he obtained such
knowledge after knowing of the death of the testor, present such will to the court
which has jurisdiction, unless the will has been otherwise returned to said court,
and shall, within such period, signify to the court his acceptance of the trust, or
make known in writing his refusal to accept it.
Sec. 628. Penalty. — A person who neglects any of the duties required in the two
proceeding sections, unless he gives a satisfactory excuse to the court, shall be
subject to a fine not exceeding one thousand dollars.
Sec. 629. Person Retaining Will may be Committed. — If a person having custody of a
will after the death of the testator neglects without reasonable cause to deliver the
same to the court having jurisdiction, after notice by the court so to do, he may be
committed to the prison of the province by a warrant issued by the court, and there
kept in close confinement until he delivers the will.
The foregoing provisions are now embodied in Rule 76 of the new Rules of Court,
which took effect on July 1, 1940.
The proceeding for the probate of a will is one in rem, with notice by publication to
the whole world and with personal notice to each of the known heirs, legatees, and
devisees of the testator (section 630, C. c. P., and sections 3 and 4, Rule 77). Altho
not contested (section 5, Rule 77), the due execution of the will and the fact that the
testator at the time of its execution was of sound and disposing mind and not acting
under duress, menace, and undue influence or fraud, must be proved to the
satisfaction of the court, and only then may the will be legalized and given effect by
means of a certificate of its allowance, signed by the judge and attested by the seal of
the court; and when the will devises real property, attested copies thereof and of the
certificate of allowance must be recorded in the register of deeds of the province in
which the land lies. (Section 12, Rule 77, and section 624, C. C. P.)
It will readily be seen from the above provisions of the law that the presentation of a
will to the court for probate is mandatory and its allowance by the court is essential
and indispensable to its efficacy. To assure and compel the probate of will, the law
punishes a person who neglects his duty to present it to the court with a fine not
exceeding P2,000, and if he should persist in not presenting it, he may be committed
to prision and kept there until he delivers the will.
The Court of Appeals took express notice of these requirements of the law and held
that a will, unless probated, is ineffective. Nevertheless it sanctioned the procedure
adopted by the respondent for the following reasons:
The majority of the Court is of the opinion that if this case is dismissed ordering the
filing of testate proceedings, it would cause injustice, incovenience, delay, and much
expense to the parties, and that therefore, it is preferable to leave them in the very
status which they themselves have chosen, and to decide their controversy once and
for all, since, in a similar case, the Supreme Court applied that same criterion
(Leaño vs. Leaño, supra), which is now sanctioned by section 1 of Rule 74 of the
Rules of Court. Besides, section 6 of Rule 124 provides that, if the procedure which
the court ought to follow in the exercise of its jurisdiction is not specifically pointed
out by the Rules of Court, any suitable process or mode of procedure may be
adopted which appears most consistent to the spirit of the said Rules. Hence, we
declare the action instituted by the plaintiff to be in accordance with law.
Let us look into the validity of these considerations. Section 1 of Rule 74 provides as
follows:
Section 1. Extrajudicial settlement by agreement between heirs. — If the decedent left
no debts and the heirs and legatees are all of age, or the minors are represented by
their judicial guardians, the parties may, without securing letters of administration,
divide the estate among themselves as they see fit by means of a public instrument
filed in the office of the register of deeds, and should they disagree, they may do so
in an ordinary action of partition. If there is only one heir or one legatee, he may
adjudicate to himself the entire estate by means of an affidavit filed in the office of
the register of deeds. It shall be presumed that the decedent left no debts if no
creditor files a petition for letters of administration within two years after the death
of the decedent.
That is a modification of section 596 of the Code of Civil Procedure, which reads as
follows:
Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. — Whenever all
the heirs of a person who died intestate are of lawful age and legal capacity and
there are no debts due from the estate, or all the debts have been paid the heirs may,
by agreement duly executed in writing by all of them, and not otherwise, apportion
and divide the estate among themselves, as they may see fit, without proceedings in
court.
The implication is that by the omission of the word "intestate" and the use of the
word "legatees" in section 1 of Rule 74, a summary extrajudicial settlement of a
deceased person's estate, whether he died testate or intestate, may be made under
the conditions specified. Even if we give retroactive effect to section 1 of Rule 74 and
apply it here, as the Court of Appeals did, we do not believe it sanctions the
nonpresentation of a will for probate and much less the nullification of such will
thru the failure of its custodian to present it to the court for probate; for such a
result is precisely what Rule 76 sedulously provides against. Section 1 of Rule 74
merely authorizes the extrajudicial or judicial partition of the estate of a decedent
"without securing letter of administration." It does not say that in case the decedent
left a will the heirs and legatees may divide the estate among themselves without
the necessity of presenting the will to the court for probate. The petition to probate
a will and the petition to issue letters of administration are two different things,
altho both may be made in the same case. the allowance of a will precedes the
issuance of letters testamentary or of administration (section 4, Rule 78). One can
have a will probated without necessarily securing letters testamentary or of
administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if the
decedent left a will and no debts and the heirs and legatees desire to make an
extrajudicial partition of the estate, they must first present that will to the court for
probate and divide the estate in accordance with the will. They may not disregard
the provisions of the will unless those provisions are contrary to law. Neither may
they so away with the presentation of the will to the court for probate, because such
suppression of the will is contrary to law and public policy. The law enjoins the
probate of the will and public policy requires it, because unless the will is probated
and notice thereof given to the whole world, the right of a person to dispose of his
property by will may be rendered nugatory, as is attempted to be done in the instant
case. Absent legatees and devisees, or such of them as may have no knowledge of
the will, could be cheated of their inheritance thru the collusion of some of the heirs
who might agree to the partition of the estate among themselves to the exclusion of
others.
In the instant case there is no showing that the various legatees other than the
present litigants had received their respective legacies or that they had knowledge
of the existence and of the provisions of the will. Their right under the will cannot be
disregarded, nor may those rights be obliterated on account of the failure or refusal
of the custodian of the will to present it to the court for probate.
Even if the decedent left no debts and nobdy raises any question as to the
authenticity and due execution of the will, none of the heirs may sue for the
partition of the estate in accordance with that will without first securing its
allowance or probate by the court, first, because the law expressly provides that "no
will shall pass either real or personal estate unless it is proved and allowed in the
proper court"; and, second, because the probate of a will, which is a proceeding in
rem, cannot be dispensed with the substituted by any other proceeding, judicial or
extrajudicial, without offending against public policy designed to effectuate the
testator's right to dispose of his property by will in accordance with law and to
protect the rights of the heirs and legatees under the will thru the means provided
by law, among which are the publication and the personal notices to each and all of
said heirs and legatees. Nor may the court approve and allow the will presented in
evidence in such an action for partition, which is one in personam, any more than it
could decree the registration under the Torrens system of the land involved in an
ordinary action for reinvindicacion or partition.
We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court
of Appeals, does not sanction the procedure adopted by the respondent.
The case of Leaño vs. Leaño (25 Phil., 180), cited by the Court of Appeals, like section
1 of Rule 74, sanctions the extrajudicial partition by the heirs of the properties left
by a decedent, but not the nonpresentation of a will for probate. In that case one
Paulina Ver executed a will on October 11, 1902, and died on November 1, 1902. Her
will was presented for probate on November 10, 1902, and was approved and
allowed by the Court on August 16, 1904. In the meantime, and on November 10,
1902, the heirs went ahead and divided the properties among themselves and some
of them subsequently sold and disposed of their shares to third persons. It does not
affirmatively appear in the decision in that case that the partition made by the heirs
was not in accordance with the will or that they in any way disregarded the will. In
closing the case by its order dated September 1, 1911, the trial court validated the
partition, and one of the heirs, Cunegunda Leaño, appealed. In deciding the appeal
this Court said:
The principal assignment of error is that the lower court committed an error in
deciding that the heirs and legatees of the estate of Dña. Paulina Ver had voluntarily
divided the estate among themselves.
In resolving that question this Court said:
In view of the positive finding of the judge of the lower court that there had been a
voluntary partition of the estate among the heirs and legatees, and in the absence of
positive proof to the contrary, we must conclude that the lower court had some
evidence to support its conclusion.
Thus it will be seen that as a matter of fact no question of law was raised and
decided in that case. That decision cannot be relied upon as an authority for the
unprecedented and unheard of procedure adopted by the respondent whereby she
seeks to prove her status as an acknowledged natural child of the decedent by his
will and attempts to nullify and circumvent the testamentary dispositions made by
him by not presenting the will to the court for probate and by claiming her legitime
as an acknowledged natural child on the basis of intestacy; and that in the face of
express mandatory provisions of the law requiring her to present the will to the
court for probate.
In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed
from the procedure sanctioned by the trial court and impliedly approved by this
Court in the Leaño case, by holding that an extrajudicial partition is not proper in
testate succession. In the Riosa case the Court, speaking thru Chief Justice Avanceña,
held:
1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. — Section
596 of the Code of Civil Procedure, authorizing the heirs of a person who dies
intestate to make extrajudicial partition of the property of the deceased, without
going into any court of justice, makes express reference to intestate succession, and
therefore excludes testate succession.
2. ID.; EFFECTS OF; TESTATE SUCCESSION. — In the instant case, which is a testate
succession, the heirs made an extrajudicial partition of the estate and at the same
time instituted proceeding for the probate of the will and the administration of the
estate. When the time came for making the partition, they submitted to the court the
extrajudicial partition previously made by them, which the court approved. Held:
That for the purposes of the reservation and the rights and obligations created
thereby, in connection with the relatives benefited, the property must not be
deemed transmitted to the heirs from the time the extrajudicial partition was made,
but from the time said partition was approved by the court. (Syllabus.)
The Court of Appeals also cites section 6 of Rule 124, which provides that if the
procedure which the court ought to follow in the exercise of its jurisdiction is not
specifically pointed out by the Rules of Court, any suitable process for mode of
proceeding may be adopted which appears most conformable to the spirit of the
said Rules. That provision is not applicable here for the simple reason that the
procedure which the court ought to follow in the exercise of its jurisdiction is
specifically pointed out and prescribed in detail by Rules 74, 76, and 77 of the Rules
of Court.
The Court of Appeals also said "that if this case is dismissed, ordering the filing of
testate proceedings, it would cause injustice, inconvenience, delay, and much
expense to the parties." We see no injustice in requiring the plaintiff not to violate
but to comply with the law. On the contrary, an injustice might be committed against
the other heirs and legatees mentioned in the will if the attempt of the plaintiff to
nullify said will by not presenting it to the court for probate should be sanctioned.
As to the inconvenience, delay, and expense, the plaintiff herself is to blame because
she was the custodian of the will and she violated the duty imposed upon her by
sections 2, 4, and 5 of Rule 76, which command her to deliver said will to the court
on pain of a fine not exceeding P2,000 and of imprisonment for contempt of court.
As for the defendant, he is not complaining of inconvenience, delay, and expense, but
on the contrary he is insisting that the procedure prescribed by law be followed by
the plaintiff.
Our conclusion is that the Court of Appeals erred in declaring the action instituted
by the plaintiff to be in accordance with law. It also erred in awarding relief to the
plaintiff in this action on the basis of intestacy of the decedent notwithstanding the
proven existence of a will left by him and solely because said will has not been
probated due to the failure of the plaintiff as custodian thereof to comply with the
duty imposed upon her by the law.
It is apparent that the defendant Ernesto M. Guevara, who was named executor in
said will, did not take any step to have it presented to the court for probate and did
not signify his acceptance of the trust or refusal to accept it as required by section 3
of Rule 76 (formerly section 627 of the Code of Civil Procedure), because his
contention is that said will, insofar as the large parcel of land in litigation is
concerned, has been superseded by the deed of sale exhibit 2 and by the subsequent
issuance of the Torrens certificate of title in his favor.
II
This brings us to the consideration of the second question, referring to the efficacy
of the deed of sale exhibit 2 and the effect of the certificate of titled issued to the
defendant Ernesto M. Guevara. So that the parties may not have litigated here in
vain insofar as that question is concerned, we deem it proper to decide it now and
obviate the necessity of a new action.
The deed of sale exhibit 2 executed by and between Victorino L. Guevara and
Ernesto M. Guevara before a notary public on July 12, 1933, may be divided into two
parts: (a) insofar as it disposes of and conveys to Ernesto M. Guevara the southern
half of Victorino L. Guevara's hacienda of 259-odd hectares in consideration of P1
and other valuable considerations therein mentioned; and (b) insofar as it declares
that Ernesto M. Guevara became the owner of the northern half of the same
hacienda by repurchasing it with his own money from Rafael T. Puzon.
A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in
consideration of the latter's assumption of the obligation to pay all the debts of the
deceased, the Court of Appeals found it to be valid and efficacious because: "(a) it
has not been proven that the charges imposed as a condition is [are] less than the
value of the property; and (b) neither has it been proven that the defendant did not
comply with the conditions imposed upon him in the deed of transfer." As a matter
of fact the Court of Appeals found" "It appears that the defendant has been paying
the debts left by his father. To accomplish this, he had to alienate considerable
portions of the above-mentioned land. And we cannot brand such alienation as
anomalous unless it is proven that they have exceeded the value of what he has
acquired by virtue of the deed of July 12, 1933, and that of his corresponding share
in the inheritance." The finding of the Court of Appeals on this aspect of the case is
final and conclusive upon the respondent, who did not appeal therefrom.
B. With regard to the northern half of the hacienda, the findings of fact and of law
made by the Court of Appeals are as follows:
The defendant has tried to prove that with his own money, he bought from Rafael
Puzon one-half of the land in question, but the Court a quo, after considering the
evidence, found it not proven; we hold that such conclusion is well founded. The
acknowledgment by the deceased, Victorino L. Guevara, of the said transactions,
which was inserted incidentally in the document of July 12, 1933, is clearly belied by
the fact that the money paid to Rafael Puzon came from Silvestre P. Coquia, to whom
Victorino L. Guevara had sold a parcel of land with the right of repurchase. The
defendant, acting for his father, received the money and delivered it to Rafael Puzon
to redeem the land in question, and instead of executing a deed of redemption in
favor of Victorino L. Guevara, the latter executed a deed of sale in favor of the
defendant.
The plaintiff avers that she withdrew her opposition to the registration of the land
in the name of the defendant, because of the latter's promise that after paying all the
debt of their father, he would deliver to her and to the widow their corresponding
shares. As their father then was still alive, there was no reason to require the
delivery of her share and that was why she did not insist on her opposition, trusting
on the reliability and sincerity of her brother's promise. The evidence shows that
such promise was really made. The registration of land under the Torrens system
does not have the effect of altering the laws of succession, or the rights of partition
between coparceners, joint tenants, and other cotenants nor does it change or affect
in any other way any other rights and liabilities created by law and applicable to
unregistered land (sec. 70, Land Registration Law). The plaintiff is not, then, in
estoppel, nor can the doctrine of res judicata be invoked against her claim. Under
these circumstances, she has the right to compel the defendant to deliver her
corresponding share in the estate left by the deceased, Victorino L. Guevara.
In his tenth to fourteenth assignments of error the petitioner assails the foregoing
findings of the Court of Appeals. But the findings of fact made by said court are final
and not reviewable by us on certiorari. The Court of Appeals found that the money
with which the petitioner repurchased the northern half of the land in question from
Rafael Puzon was not his own but his father's, it being the proceeds of the sale of a
parcel of land made by the latter to Silvestre P. Coquia. Said court also found that the
respondent withdrew her opposition to the registration of the land in the name of
the petitioner upon the latter's promise that after paying all the debts of their father
he would deliver to her and to the widow their corresponding shares. From these
facts, it results that the interested parties consented to the registration of the land in
question in the name of Ernesto M. Guevara alone subject to the implied trust on
account of which he is under obligation to deliver and convey to them their
corresponding shares after all the debts of the original owner of said land had been
paid. Such finding does not constitute a reversal of the decision and decree of
registration, which merely confirmed the petitioner's title; and in the absence of any
intervening innocent third party, the petitioner may be compelled to fulfill the
promise by virtue of which he acquired his title. That is authorized by section 70 of
the Land Registration Act, cited by the Court of Appeals, and by the decision of this
Court in Severino vs. Severino, 44 Phil., 343, and the cases therein cited.
Upon this phase of the litigation, we affirm the finding of the Court of Appeals that
the northern half of the land described in the will exhibit A and in original certificate
of title No. 51691 still belongs to the estate of the deceased Victorino L. Guevara. In
the event the petitioner Ernesto M. Guevara has alienated any portion thereof, he is
under obligation to compensate the estate with an equivalent portion from the
southern half of said land that has not yet been sold. In other words, to the estate of
Victorino L. Guevara still belongs one half of the total area of the land described in
said original certificate of title, to be taken from such portions as have not yet been
sold by the petitioner, the other half having been lawfully acquired by the latter in
consideration of his assuming the obligation to pay all the debts of the deceased.
Wherefore, that part of the decision of the Court of Appeals which declares in effect
that notwithstanding exhibit 2 and the issuance of original certificate of title No.
51691 in the name of Ernesto M. Guevara, one half of the land described in said
certificate of title belongs to the estate of Victorino L. Guevara and the other half to
Ernesto M. Guevara in consideration of the latter's assumption of the obligation to
pay all the debts of the deceased, is hereby affirmed; but the judgment of said court
insofar as it awards any relief to the respondent Rosario Guevara in this action is
hereby reversed and set aside, and the parties herein are hereby ordered to present
the document exhibit A to the proper court for probate in accordance with law,
without prejudice to such action as the provincial fiscal of Pangasinan may take
against the responsible party or parties under section 4 of Rule 76. After the said
document is approved and allowed by the court as the last will and testament of the
deceased Victorino L. Guevara, the heirs and legatees therein named may take such
action, judicial or extrajudicial, as may be necessary to partition the estate of the
testator, taking into consideration the pronouncements made in part II of this
opinion. No finding as to costs in any of the three instances.
Yulo, C.J., and Hontiveros, 1 J., concur.

Separate Opinions

BOCOBO, J., concurring:

I concur in the result. Extrajudicial settlement by agreement among the heirs is
authorized by section 1 of Rule 74. only "if the decedent left no debts." In this case,
according to the findings of the Court of Appeals, Ernesto M. Guevara "has been
paying the debts left by his father." It is true that said Ernesto M. Guevara, in
consideration of the conveyance to him of the southern half of the hacienda,
assumed all the debts of the deceased, but this agreement is binding only upon the
parties to the contract but not upon the creditors who did not consent thereto. (Art.
1205, Civil Code.) There being debts when the father died, section 1 of Rule 74 is not
applicable.
MORAN, J., concurring in part and dissenting in part:
I would be agreeable to the majority decision but for a statement therein made
which in my view repeals by an erroneous interpretation the provisions of Rule 74,
section 1, of the Rules of Court, which reads as follows:
EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS. — If the
decedent left no debts and the heirs and legatees are all of age, or the minors are
represented by their judicial guardians, the parties may, without securing letters of
administration, divide the estate among themselves as they see fit by means of a
public instrument filed in the office of the register of deeds, and should they
disagree, they may do so in an ordinary action of partition. If there is only one heir
or one legatee, he may adjudicate to himself the entire estate by means of an
affidavit filed in the office of the register of deeds. It shall be presumed that the
decedent left no debts if no creditor files a petition for letters of administration
within two years after the death of the decedent.
The majority holds that under this provision, the heirs and legatees, even if all of
them are of age, and there are no debts to be paid, cannot make an extrajudicial
settlement of the estate left by the decedent without first submitting in court for
probate the will left by the testator. This erroneous interpretation clearly overlooks
not only the letter and the spirit but more specially the whole background of the
provision.
It is admitted that the provision has been taken from section 596 of Act No. 190 but
with modification consisting in that it is made to apply in testate succession. Said
section 596 reads:
SETTLEMENT OF CERTAIN INTESTATE ESTATES WITHOUT LEGAL PROCEEDINGS.
— Whenever all the heirs of a person who died intestate are of lawful age and legal
capacity, and there are no debts due from the estate, or all the debts have been paid
the heirs may, by agreement duly executed in writing by all of them, and not
otherwise, apportion and divide the estate among themselves, as they may see fit,
without proceedings in court.
It must be observed that the procedure contemplated in this legal provision is
completely extrajudicial and the same procedure intended in section 1 of Rule 74
above quoted which is captioned "Extrajudicial Settlement by Agreement . . .".
Justice Laurel, who was one of the members of this Court when the new Rules were
promulgated, in commenting upon Rule 74, said:
RULE 74. SUMMARY SETTLEMENT OF ESTATES. — The corresponding provisions
in the Code of Civil Procedures are sections 596-598. There is substantial analogy
between the provisions of the Code of Civil Procedure and those of Rule 74, save
that: (1) Under section 1 of Rule 74, there may be extrajudicial settlement whether a
person died testate or intestate, while under section 596 of the Code of Civil
Procedure extrajudicial settlement can be had only when a person dies intestate. (2)
Under Rule 74, section 1, extrajudicial settlement may take place 'if the decedent left
no debts,' while under section 596 of the Code of Civil Procedure it may take place
'when there are no debts due from the estate, or all the debts have been paid.' (3)
Under section 596 of the Code of Civil Procedure, extrajudicial settlement may take
place when 'the heirs and legatees are of lawful age and legal capacity, while under
section 1 of Rule 74 it may take place when the 'the heirs and legatees are all of legal
age, or the minors are represented by their judicial guardians' (4) Unlike the Code of
Civil Procedure, section 596, section 1 of Rule 74 requires the extrajudicial
agreement to be filed in the office of the register of deeds; provides that should the
heirs disagree, 'they may do so in an ordinary action of partition', and that 'if there is
only one heir or one legatee, he may adjudicate to himself the entire estate by means
of an affidavit filed in the office of the register of deeds', and that 'it shall be
presumed that the decedent left no debts if no creditor files a petition for letter of
administration within two years after the death of the decedent.' [(Emphasis
mine); Laurel, Procedural Reform in the Philippines, pp. 137-138].
The phrase "extrajudicial settlement" unquestionably means liquidation and
distribution of the estate without judicial proceeding. In other words, even in cases
of testate succession, the heirs and legatees, when they are all of age or are
represented by their judicial guardians, and there are no debts to be paid, are
allowed by section 1 of Rule 74 of the Rules of Court to liquidate and distribute
among themselves the estate left by the decedent and need not go to court even for
the probate of the will. Unless legal terms mean nothing, this is clearly what it meant
in said provision by the words "extrajudicial settlement" and by the clause " . . . the
parties may, without securing letters of administration, divide the estate among
themselves as they see fit" . . . . When judicial administration is made unnecessary by
the provision, the inevitable implication is that the probate of the will is also
unnecessary, the probate having no other object than administration for purposes of
distribution according to the provisions of the will. That is why section 4 of rule 78
provides:
ESTATE, HOW ADMINISTERED. — When a will is thus allowed, the court shall grant
letters testamentary, or letters of administration with the will annexed, such letters
testamentary or of administration shall extend to all the estate of the testator in the
Philippines. Such estate, after the payment of just debts and expenses of
administration, shall be disposed of according to such will, so far as such will may
operate upon it; and the residue, if any, shall be disposed of as is provided by law in
cases of estates in the Philippines belonging to persons who are inhabitants of
another state or country.
If judicial administration and distribution is made unnecessary by section 1 of Rule
74, then, I repeat, the probate of the will being purposeless, becomes unnecessary. If
the parties have already divided the estate in accordance with the will, the probate
of the will is a useless ceremony. If they have divided the estate in a different
manner, the probate of the will is worse than useless; it is ridiculous. The following
words of this Court in a previous case may well be here reiterated:
These sections provide for the voluntary division of the whole property of the
decedent without proceedings in court. The provisions which they contain are
extremely important. The wisdom which underlies them is apparent. It is the
undisputed policy of every people which maintains the principle of private
ownership of property that he who owns a thing shall not be deprived of its
possession or use except for the most urgent and imperative reasons and then only
so long as is necessary to make the rights which underlie those reasons effective. It
is a principle of universal acceptance which declares that one has the instant right to
occupy and use that which he owns, and it is only in the presence of reasons of the
strongest and most urgent nature that the principle is prevented from
accomplishing the purpose which underlies it. The force which gave birth to this
stern and imperious principle is the same force which destroyed the feudal
despotism and created the democracy of private owners.
These provisions should, therefore, be given the most liberal construction so that
the intent of the framers may be fully carried out. They should not be straitened or
narrowed but should rather be given that wideness and fullness of application
without which they cannot produce their most beneficial effects.
. . . The purpose which underlies them, as we have already intimated, is to put into
one's hands the property which belongs to him not only at the earliest possible
moment but also with the least possible expense. By permitting the partition and
division without proceedings in court no time is lost and substantially all expense
and waste are saved. This is as it should be. The State fails wretchedly in its duly to
its citizens if the machinery furnished by it for the division and distribution of the
property of a decedent is so cumbersome, unwieldy and expensive that a
considerable portion of the estate is absorbed in the process of such division. . . .
(McMicking vs. Sy Conbieng, 21 Phil., 211; 219-220).
Indeed, there can be no valid reason why the probate of a will may not be dispensed
with by agreement of all the parties interested and the estate left by the decedent
settled extrajudicially among all the heirs and legatees, as is now provided in section
1 of Rule 74. It is well recognized that the allowance of a will gives conclusiveness
merely to its provisions which are governed by the substantive law regarding
descent and distribution. If so, why cannot all the parties interested agree, without
going to court, that the will of the decedent is in form valid (this being the only point
to be litigated in a probate proceeding), and that they will divide the inheritance in
the manner acceptable to them? The procedure would not be against public policy
or the law placing in the hands of the courts the probate of wills, because what the
courts are enjoined to do for the benefit of the parties, the latter have already done.
As long as the extrajudicial partition of the estate does not affect the rights of third
parties and is not rendered invalid by any provision of the substantive law, no
possible objection can be raised thereto. On practical considerations, it would be
useless to force the parties, at their expense, to go thru the formality of probating a
will and dividing the estate in accordance therewith, because as soon as the routine
is over, they are of course free to make such transfers to one another as will be
necessary to effect a partition which they would have made if they were allowed to
settle the estate extrajudicially. It is true that there are provisions in the Rules of
Court compelling the delivery of a will to the competent court and punishing
omissions to do so, but said provisions are calculated to protect the interests of the
persons entitled to share in the inheritance. The latter may waive such benefit. This
waiver cannot be said to be withdrawal or diminution of the jurisdiction of the
court, since it only implies a desire of the parties not to litigate. The fear that "absent
legatees and devisees, or such of them as may have no knowledge of the will, could
be cheated of their inheritance thru the collusion of some of the heirs who might
agree to the partition of the estate among themselves to the exclusion of others", is
wisely provided against in the requirement of the Rule that all the parties interested
and all the beneficiaries under the will should be parties to the extrajudicial
settlement. The participation of all the interested parties excludes the probability of
fraud or collusion and, even in that eventuality, the aggrieved beneficiaries are not
without adequate remedy for the voidance of the partition under the Civil Code.
And this is in accordance with the weight of authority in this and other jurisdictions.
In Leaño vs. Leaño (25 Phil., 180), all the heirs and legatees have made an
extrajudicial partition of the estate left by the decedent and then filed the will in
court which was probated. Nine years of costly probate proceedings have followed
after which the extrajudicial partition was made known to court. such extrajudicial
partition was objected to by one party upon the ground that it was not in conformity
with the provisions of the will. But the trial Court held:
Naturally the partition made by the heirs voluntarily and spontaneously must
produce and has produced a legal status, which cannot be annulled merely for the
caprice of one person. and it cannot be said that, because the partition was not made
in accordance with the will, if such be the case, the latter has to be annulled, for by
voluntarily and spontaneously concurring therein they implicitly renounced the
effects of said will, of which they were aware. (See p. 183).
On appeal, this Court affirmed the ruling with the following pronouncement:
In view of the positive finding of the judge of the lower court that there had been a
voluntary partition of the estate among the heirs and legatees and in the absence of
positive proof to the contrary, we must conclude that the lower court had some
evidence to support his conclusion. If the heirs and legatees had voluntarily divided
the estate among themselves, then their division is conclusive, unless and until it is
shown that there were debts existing against the estate which had not been paid. No
claim is made whatever by third parties nor objections of any character are made by
others than the heirs against said partition. We see no reason why their heirs and
legatees should not be bound by their voluntary acts. (Page 183–184).
This case furnishes precisely a valuable experience as to the practical wisdom
underlying the procedure established in section 1 of Rule 74. After the will was
probated and after nine years of costly administration proceedings, nothing —
absolutely nothing — was accomplished by the court except to make the belated
pronouncement that the extrajudicial partition made by the parties prior to the
institution of the proceedings was proper and binding upon them. Thus, the whole
proceedings for nine years have proved no more than a futile chronicle of wasted
time and money for the parties and the court. This disgraceful experience could not
and did not pass unnoticed to the members of this Court who drafted the new Rules
of Court. The solemn admonition made by this Court in a previous case
(McMicking vs. Sy Conbieng, supra) when it said that "the State fails wretchedly in its
duly to its citizens if the machinery furnished by it for the division and distribution
of the property of a decedent is so cumbersome, unwieldy and expensive that a
considerable portion of the estate is absorbed in the process of such division", rang
with re-echoing insistence and was heeded to when the new Rules of Court was
drafted and promulgated. The fundamental policy pervading the whole system of
procedure adopted in said Rules is speed, economy an justice. Thus, features of
procedure were done away with when, without them, the same purpose may be
achieved. The result is brevity and simplicity of procedure with such guarantees as
the necessary to assure due process. And to remedy such evil as is disclosed in the
Leaño case, a completely extrajudicial settlement is allowed even in testate
succession with the probate of the will dispensed with, when the heirs and legatees
who are all of age or represented by their judicial guardians, so agree, and there are
not debts to be paid. Thus, the scope of section 596 of Act No. 190 was amplified and
with it the ruling of this Court in Riosa vs. Rocha (48 Phil., 737). The procedure is in
consonance with the almost unanimous weight of authority in other jurisdictions:
The complainant, to which a demurrer was sustained, shows that all the persons
interested in a decedent's estate, as widow, heirs, distributees, legatees, or devisees,
including the person appointed executrix by the will, and the husbands of femes
covert, (all being adults), by agreement divided among themselves all the property
of the estate according to the direction of the will, paid off all debts against the
estate, and delivered the note described to the plaintiff, as a part of her share; and
all this was done without probate of the will, or administration of the estate. The
effect of such a division was to invest the plaintiff with an equitable title to the note.
In the absence of the will, the decisions of this court, heretofore made, would meet
every argument in favor of an opposite conclusion. (Anderson vs. Anderson, 37 Ala.,
683; Marshall vs. Crow, 29 Ala., 278; Vanderveer vs. Alston, 16 Ala., 494;
Miller vs. Eatman, 11 feature of this case, take it out of the principle of those
decisions? We can perceive no sufficient reason why it should. All the parties
interested, or to be affected, may as well by agreement divide property, where there
is a will, without employing the agency of courts, as in case of intestacy. Parties,
competent to act, ought to do that, without the agency of courts, which the courts
would ultimately accomplish. To deny them the privilege of so doing, would
manifest a judicial abhorrence of harmony. By the probate of the will, the claims of
heirs and distributees, and of the widow, would have been subordinated to the
directions of the will. this has been accomplished by the agreement. There being no
debts, the executrix would have had no other duty to perform, than to divide the
property according to the will. This, too, has been done by agreement of competent
parties. All the ends and objects of judicial proceedings have been accomplished, by
agreement of the parties; and that agreement must be effective. (Carter vs. Owens,
41 Ala., 215; 216-217).
The absence of sound objection on this ground to a contract having for its sole
purpose the disposition of property in a manner different from that proposed by a a
testator, even where the contract contemplates the rejection of the will when
offered for probate or its setting aside when admitted to probate, when it is entirely
free from fraud, and is made by all the parties in interest, may be freely conceded. As
has often been substantially said, the public generally has not interest in the matter
of the probate of a will; and only those interested in the estate under the will or
otherwise are affected by such a contract. If they all agree upon some course to be
followed, and their contract is otherwise free from contemplated fraud or violation
of any law, no one else has any such interest as warrants complaint. Such was the
character of contract involved in Spangenberg vs. Spangenberg (App.), 126 Pac., 379,
especially relied on by plaintiff here, where the contract purported to affect only
such property of the deceased as should in fact be received by the parties thereto. In
Estate of Garcelon, 104 Cal, 570; 38 Pac., 414; 32 L. R. A.,. 595; 43 Am. St., Rep., 134,
another case much relied on by plaintiff, a contract by an heir to refrain from
contesting a will was involved. It was said that the contract was one that concerned
the parties alone, and one that did not appear to be against public policy.
(Gugolz vs. Gehrkens, 130 Pac, Rep., 8, 10; 164 Cal., 596).
The question of public policy is introduced. The disposition of one's property after
death is controlled by statute. One of the next of kin has no vested interest in such
property. In cases of intestacy, a next of kin has such interest as the statute declares.
In case there is a will, he has an interest which gives him a standing and right to
contest the will. This right is his alone; in it the public has no interest; he may refrain
from exercising it, or he may dispose of it as he wishes, by release or assignment or
settlement, and the law of public policy is not offended. (In re cook's Will, 217 N. Y.
S., 176, 180-181).
Agreement. — "It has been definitely decided by the courts of this state, and of many
other states, that the beneficiaries under a will have a right to agree among
themselves upon any distribution they see proper of the property bequeathed to
them.
. . . That holding is based upon the proposition that the property is theirs. No one
else is interested in its disposition, and they may, with propriety, make any
distribution of it that suits them, so long as they do not invade the rights of other
parties or infringe some rule of public policy'. (Fore vs. McFadden, 276 N. W., 327;
329).
The first assignment of error presented by appellants complains of the action of the
court in sustaining exceptions to averments asking the enforcement of the
agreement that the will should not be probated, and that the estate should be
divided among the parties as they would be entitled as heirs at law of the deceased,
the proponent of the will surrendering thereby his rights as principal legatee. This
assignment must be sustained. It cannot be seen that the agreement is contrary to
public policy. Parties may make any contract with reference to their property rights
that is not illegal, may adjust by compromise their differences and disputes
concerning the same and, as they bind themselves, so shall they be bound. It is
difficult to understand why this cannot be effected by an agreement not to probate a
will, or how it interferes with public policy. The power to litigate and to establish a
right by appeal to the courts is as much the subject of contract as any other right in
property. Such adjustments by contract are favored by the law and the courts, and
are not deemed to be an unwarranted interference with the jurisdiction of the
courts, or against public policy. On the contrary, public policy favors them.
Appellants have cited a case in point, — the case of Phillips v. Phillips, 8 Watts, 197,
in which it is held competent for devisees and legatees to bind themselves by a
written or parol agreement to destroy a will before probate, and that a party to the
agreement would be estopped from claiming any interest under the will. The court
says: "It cannot admit of doubt that before probate the parties in interest under a
will would have the right to set aside a will, and such an act would be favored, when
the object was to avert a family controversy". The agreement that the will should
not be probated, and that the parties would take the property as heirs at law of the
deceased, destroyed the legal effect of the will; and it could not thereafter have legal
existence in conferring rights upon the legatees. (Stringfellow vs. Early, 40 SW., 871,
873-874; 15 Tex. Civ. App., 597).
The contention that the complaint does not state a cause of action, because the
contract sued on is against public policy, and therefore void, is made here for the
first time. It is to the interest of the public generally that the right to make contract
should not be unduly restricted, and no agreement will be pronounced void, as
being against public policy, unless it clearly contravenes that which has been
declared by statutory enactment or by judicial decisions to be public policy, or
unless the agreement manifestly tends in some way to injure the public. Whether or
not a contract in any given case is contrary to public policy is a question of law, to be
determined from the circumstances of each particular case. Smith vs. Du Bose, 78 Ga.,
413; 3 SE., 309-316; 6 Am. St. Rep., 260; Weber vs. Shay, 56 Ohio St., 116; 46 NE.,
377; 37 L.R.A., 230; 60 Am. St. Rep., 743; Pierce vs. Randolph, 12 Tex., 290; Print
Numerical Registering Co. vs. Sampson, 19 L. R. Eq. Cas., 465.
The contract in controversy is in effect but an agreement whereby the parties
thereto, "because of their love and affection for one another" and "being desirous of
avoiding litigation over the estate" of their father "in case of his death," agreed to
ignore his will in the event that he made one, and then share his estate equally as if
he had died intestate. In other words, the contract was but an agreement of heirs
apparent not to contest the will of an ancestor. There is nothing to be fond in our
code or statutory law prohibiting the making and enforcement of such a contract,
and it has been held in this state that a contract, made after the death of the
deceased, not to contest his will, is purely personal to the parties making it, that it is
not against public policy, and that, when fairly made, it will be enforced,
(Spangenberg vs. Spangenberg, 126 Pac. Rep., 379, 382; 19 Cal. App., 439).
Probate Dispensed With. — Probate of a will may be dispensed with by an agreement
between the persons interested; or it may be dispensed with where the testator,
before his death, conveyed to the devisees all the property which he had devised to
them, or where the will makes no other disposition of the testator's property than
the law would have done had he died interstate, and the rights sought to be
established are admitted by all concerned. But where the language of the will
expressly invokes the jurisdiction of the probate court the fact that no
administration is necessary does not affect the power of the court to probate the
will. (68 C. J., pp. 877-878).
Agreement between Persons Interested: a. Requisites and Validity. (1) In General. — It
has been held that, since the nature of a probate proceeding is one in rem, the
parties cannot submit a controversy arising therein to arbitration. The law,
however, favors the settlement, in good faith, of will contests, by a so-called "family
settlement", although it changes the mode of disposition of the estate; and, therefore,
subject to the limitation that a contestant cannot compromise anything beyond his
own personal interest in the contest, persons, such as devisees, legatee, heirs, or
next of kin, having interest in the will or estate, sufficient to entitle them to opposed
probate or contest the will, may enter into an agreement which, in the absence of
fraud or misrepresentation, is valid and binding on all the parties thereto, whereby
they waive probate of the will and bind themselves to abide by its provisions, or
whereby they agree that the will is not to be probated or is to be superseded or
destroyed; or whereby any controversy relative to the probate or contest of the will
is compromised or settled, and a contest is avoided, whether or not there were, in
fact, valid grounds for the contest. Such an agreement, in order to be valid, must not
exclude anyone entitled under the will, must be entered into by all the persons
affected thereby, and all the parties thereto must be competent to make the
agreement, and either they or their representative must fully execute it, and, under
some statutes, it must be properly approved by the court." ([Emphasis supplied] 68
C. J., pp. 909-910).
As to Probate. — The operation and effect of the agreement may not to supersede
the provisions of the will, but to carry out its provisions without a probate, and
under such agreement the parties are precluded from denying the probate, or
insisting on the invalidating of the will for want of probate. So, also, a person who
agrees not to contest the will is precluded from opposing probate; or the probate of
a will may be dispensed with, and the persons interested in the estate under the will
given at least an equitable interest in the property, where they, being under no
disability, divide the estate, pursuant to an agreement among themselves. Where the
effect of the agreement of all interested parties is to repudiate or renounce the will, it
will not be probated, especially where the agreement expressly so provides; but it has
been held that, where the executor, defending a torn will, agrees, for a
consideration, not to probate it, the court should not refuse probate without
notifying other beneficiaries and requiring testimony as to the tearing of the will by
the testator. Probate, however, is not prevented by an agreement executed by a part
only of the beneficiaries, and the parties to such agreement are not prevented
thereby from taking under the will which is probated by another interested person.
([Emphasis supplied] 68 C. J., pp. 914-915).
Thus, where the parties, being in doubt as to the instrument being construed as a
will, and for the purpose of saving a family controversy and for the purpose of
dividing the estate, enter into a compromise and settlement agreement, under the
terms of which the entire estate is to be, and has in part been, divided, and agree
that the instrument shall not be offered for probate, it is sufficient to prevent a
probate. (Brown vs. Burk, 26 NW [2d ed.], 415.
Validity of Agreements of Dispense with Probate or to Modify or Set Aside Will. —
Though in some jurisdictions an agreement to dispense with the probate of a will
has been declared to be against public policy and void, in a majority of the decisions
on the point it has been held that all the persons interested in decedent's estate may
by agreement divide the estate among themselves, without probating such
decedent's will or administering the estate, and the validity of a contract having for
its sole purpose the disposition of property in a manner different from that
proposed by a testator, even where the contract contemplates the rejection of the
will when offered for probate or its setting aside when admitted to probate, when it
is entirely free from fraud, and is made by all the parties in interest, would seem to
be freely concede. Thus it has been held that all the parties in interest may agree to
eliminate from a will a clause providing for survivorship among them. But an
agreement to resist the probate of a will and procure it to be set aside so as to curt
off the interest of one who is not a party to such agreement is against public policy.
Nor does the right of all the parties in interest to set aside or disregard a will extend
to the case of an active trust, for a definite term, created by a testator as he deems
proper for the protection of his beneficiaries. A contract between the next of kin of a
decedent, that they will each have a certain portion of the estate, does not amount to
an agreement to divide the estate without probating the will. (28 R.C.L., pp. 357-
358).
The minority decision pointed out in the last quotation from the Ruling Case Law
(Vol. 28, pp. 357-358) is from the Supreme Court of only one State — that of
Wisconsin, in re Will of Dardis (135 Wis., 457; 115 NW., 332). All the other States
held the contrary doctrine that is now embodied in section 1 of Rule 74.
Commenting upon the Wisconsin rule, the Editor of the L.R.A. says the following:
No case has been found other than Re Dardis wherein any court passed upon the
validity of a stipulation to secure the denial to probate of a will theretofore offered
for probate, on the ground that the testator was mentally incompetent to make a
will at the time of its execution. The decision of the court is based upon the doctrine
therein enunciated, that proceedings to probate a will are proceedings in rem, which
public interest demands should be pursued to a final adjudication, regardless of the
wishes of the interested parties. In this connection and with reference to this
broader question, it is of interest to note that courts of other jurisdictions, although
generally recognizing that proceedings to probate a will are proceedings in rem,
hold that the proceeding is inter partes to the extent that all the parties in interest
may control the probate proceedings, even to the extent of doing away with the
probate. (23 L.R.A. [N.S.], p.783).
For the sake of fixity in judicial policy, this Court in the exercise of its constitutional
powers, has solemnly given a form of a rule — section 1, Rule 74 — to what was
merely the consensus of judicial opinion. We cannot now repudiate the procedure
outlined in said provision unless we amend it by another rule.
The majority, however, expresses fear that abuses may easily be committed under
the Rules. Such fears have always been the bugbear set up against all task of
procedural reforms. To be sure, there has never been any provision of law that is
not liable to abuses. If by mere possibility of abuse we are to disregard clear
provisions of a procedural law, the result would not only the abrogation of all laws
but also the abolition of all courts. When a procedural law is calculated to remedy an
evil under a specific situation therein contemplated, it must be deemed good even if
other situations may be simulated or falsified and placed within its purview. And
when that law is duly enacted, it is no concern of the courts to pass upon its wisdom,
their duty being to apply its provisions in a manner which shall not defeat the
intention underlying it. Laws are promulgated to be obeyed and when they are
abused there are the courts to check up the abuse. Courts must deal with the specific
circumstances of each case and construe the provisions in such a manner as to make
it impregnable if possible to further abuses. This is constructive, not destructive,
jurisprudence. This explains why laws are more often worded so broadly as to lay
merely general principles — a skeleton — the flesh to be supplied with judicial
decisions. Judicial statemanship requires that courts in deciding judicial
controversies should be careful not to advance opinions which are not necessary to
a proper disposition of the case. Judicial experience has shown that such advanced
opinions may not infrequently place the court in an embarrassing position when a
proper case with the proper factual environment is properly presented with all its
angles before the court. Jurisprudence must be carefully progressive and not
impetuously aggressive. for instance, the majority, impressed by the awful
circumstances of the present case, has found it dangerous to hold that the probate of
the will may be dispensed with. While this conclusion is constructive under the
peculiar facts of the case, to generalize it is to make destructive. If a proper case is
presented to the court wherein all the heirs and legatees who are all of age have
agreed to dispense with the probate of a will and have actually made an extrajudicial
partition, and if it appears further that each of the recipients is in peaceful
enjoyment of his share in the estate, I am sure that the majority, with the practical
wisdom they have shown in other cases, would not dare disturb the peace enjoyed
by such heirs and legatees and compel them to go into court and litigate.
The majority, without the necessity of holding whether the probate of a will may or
may not be dispensed with under Rule 74, section 1, could have decided this case by
stating that said provision is not applicable, its requirements not being present. And
I would be wholly agreeable to this conclusion because the beneficiaries under the
will do not appear to have made an extrajudicial settlement of the estate left by the
deceased Victorino L. Guevara, nor the action brought by the natural daughter,
Rosario Guevara, is one for partition against all such beneficiaries founded either on
an extrajudicial settlement or on the provisions of the will as accepted by all parties
to be valid and binding. Upon the contrary, Rosario Guevara appears to be wishing
to take advantage of the will in so far as it is favorable to her, and repudiate it in so
far as it is favorable to others. Apparently, Rosario Guevara was in possession of the
will and the other heirs and legatees were not aware of its contents. The situation
not being the one contemplated by section 1 of Rule 74, plaintiff may not invoke its
provisions.

Footnotes
1 Justice Hontiveros of the Court of Appeals took part in this case by special
designation.

G.R. No. 38050 September 22, 1933

In the matter of the will of Donata Manahan. TIBURCIA MANAHAN, petitioner-

appellee,
vs.
ENGRACIA MANAHAN, opponent-appellant.

J. Fernando Rodrigo for appellant.

Heraclio H. del Pilar for appellee.

IMPERIAL, J.:

This is an appeal taken by the appellant herein, Engracia Manahan, from the order of
the Court of the First Instance of Bulacan dated July 1, 1932, in the matter of the will
of the deceased Donata Manahan, special proceedings No. 4162, denying her motion
for reconsideration and new trial filed on May 11, 1932.

The fact in the case are as follows:

On August 29, 1930, Tiburcia Manahan instituted special proceedings No. 4162, for
the probate of the will of the deceased Donata Manahan, who died in Bulacan,
Province of Bulacan, on August 3, 1930. The petitioner herein, niece of the testatrix,
was named the executrix in said will. The court set the date for the hearing and the
necessary notice required by law was accordingly published. On the day of the
hearing of the petition, no opposition thereto was filed and, after the evidence was
presented, the court entered the decree admitting the will to probate as prayed for.
The will was probated on September 22, 1930. The trial court appointed the herein
petitioner executrix with a bond of P1,000, and likewise appointed the committed
on claims and appraisal, whereupon the testamentary proceedings followed the
usual course. One year and seven months later, that is, on My 11, 1932, to be exact,
the appellant herein filed a motion for reconsideration and a new trial, praying that
the order admitting the will to probate be vacated and the authenticated will
declared null and void ab initio. The appellee herein, naturally filed her opposition
to the petition and, after the corresponding hearing thereof, the trial court erred its
over of denial on July 1, 1932. Engracia Manahan, under the pretext of appealing
from this last order, likewise appealed from the judgment admitting the will to
probate.

In this instance, the appellant assigns seven (7) alleged errors as committed by the
trial court. Instead of discussing them one by one, we believe that, essentially, her
claim narrows down to the following: (1) That she was an interested party in the
testamentary proceedings and, as such, was entitled to and should have been
notified of the probate of the will; (2) that the court, in its order of September 22,
1930, did not really probate the will but limited itself to decreeing its
authentication; and (3) that the will is null and void ab initio on the ground that the
external formalities prescribed by the Code of Civil Procedure have not been
complied with in the execution thereof.

The appellant's first contention is obviously unfounded and untenable. She was not
entitled to notification of the probate of the will and neither had she the right to
expect it, inasmuch as she was not an interested party, not having filed an
opposition to the petition for the probate thereof. Her allegation that she had the
status of an heir, being the deceased's sister, did not confer on her the right to be
notified on the ground that the testatrix died leaving a will in which the appellant
has not been instituted heir. Furthermore, not being a forced heir, she did not
acquire any successional right.

The second contention is puerile. The court really decreed the authentication and
probate of the will in question, which is the only pronouncement required of the
trial court by the law in order that the will may be considered valid and duly
executed in accordance with the law. In the phraseology of the procedural law, there
is no essential difference between the authentication of a will and the probate
thereof. The words authentication and probate are synonymous in this case. All the
law requires is that the competent court declared that in the execution of the will
the essential external formalities have been complied with and that, in view thereof,
the document, as a will, is valid and effective in the eyes of the law.

The last contention of the appellant may be refuted merely by stating that, once a
will has been authenticated and admitted to probate, questions relative to the
validity thereof can no more be raised on appeal. The decree of probate is conclusive
with respect to the due execution thereof and it cannot impugned on any of the
grounds authorized by law, except that of fraud, in any separate or independent
action or proceedings (sec. 625, Code of Civil Procedure; Castañeda vs. Alemany, 3
Phil., 426; Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza, 7 Phil., 347;
Limjuco vs. Ganara, 11 Phil., 393; Montañano vs. Suesa, 14 Phil., 676; In re Estate of
Johnson, 39 Phil., 156; Riera vs. Palmaroli, 40 Phil., 105; Austria vs. Ventenilla, 21
Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong Joc-Soy vs. Vaño, 8 Phil., 119).

But there is another reason which prevents the appellant herein from successfully
maintaining the present action and it is that inasmuch as the proceedings followed
in a testamentary case are in rem, the trial court's decree admitting the will to
probate was effective and conclusive against her, in accordance with the provisions
of section 306 of the said Code of Civil Procedure which reads as follows:

SEC. 306. EFFECT OF JUDGMENT. — . . . .

1. In case of a judgment or order against a specific thing, or in respect to the

probate of a will, or the administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or relation of a particular person
the judgment or order is conclusive upon the title of the thing, the will or
administration, or the condition or relation of the person: Provided, That the
probate of a will or granting of letters of administration shall only be prima facie
evidence of the death of the testator or intestate; . . . .

On the other hand, we are at a loss to understand how it was possible for the herein
appellant to appeal from the order of the trial court denying her motion for
reconsideration and a new trial, which is interlocutory in character. In view of this
erroneous interpretation, she succeeded in appealing indirectly from the order
admitting the will to probate which was entered one year and seven months ago.

Before closing, we wish to state that it is not timely to discuss herein the validity and
sufficiency of the execution of the will in question. As we have already said, this
question can no more be raised in this case on appeal. After due hearing, the court
found that the will in question was valid and effective and the order admitting it to
probate, thus promulgated, should be accepted and respected by all. The probate of
the will in question now constitutes res judicata.

Wherefore, the appeal taken herein is hereby dismissed, with costs against the
appellant. So ordered.

Avanceña, C.J., Malcolm, Villa-Real, and Hull, JJ., concur.

G.R. No. 4445 September 18, 1909

CATALINA BUGNAO, proponent-appellee,

vs.
FRANCISCO UBAG, ET AL., contestants-appellants.

Rodriguez and Del Rosario for appellants.

Fernando Salas for appellee.

CARSON, J.:

This is an appeal from an order of the Court of First Instance of Oriental Negros,
admitting to probate a document purporting to be the last will and testament of
Domingo Ubag, deceased. The instrument was propounded by his widow, Catalina
Bugnao, the sole beneficiary thereunder, and probate was contested by the
appellants, who are brothers and sisters of the deceased, and who would be entitled
to share in the distribution of his estate, if probate were denied, as it appears that
the deceased left no heirs in the direct ascending or descending line.
Appellants contend that the evidence of record is not sufficient to establish the
execution of the alleged will in the manner and form prescribed in section 618 of the
Code of Civil Procedure; and that at the time when it is alleged that the will was
executed, Ubag was not of sound mind and memory, and was physically and
mentally incapable of making a will.

The instrument propounded for probate purports to be the last will and testament
of Domingo Ubag, signed by him in the presence of three subscribing and attesting
witnesses, and appears upon its face to have been duly executed in accordance with
the provisions of the Code of Civil Procedure touching the making of wills.

Two of the subscribing witnesses, Victor J. Bingtoy and Catalino Mariño, testified in
support of the will, the latter being the justice of the peace of the municipality
wherein it was executed; and their testimony was corroborated in all important
details by the testimony of the proponent herself, who was present when the will
was made. It does not appear from the record why the third subscribing witness
was not called; but since counsel for the contestants makes no comment upon his
absence, we think it may safely be inferred that there was some good and sufficient
reason therefore. In passing, however, it may be well to observe that, when because
of death, sickness, absence, or for any other reason, it is not practicable to call to the
witness stand all the subscribing witnesses to a will offered for probate, the reason
for the absence of any of these witnesses should be made to appear of record, and
this especially in cases such as the one at bar, wherein there is a contests.

The subscribing witnesses gave full and detailed accounts of the execution of the
will and swore that the testator, at the time of its execution, was of sound mind and
memory, and in their presence attached his signature thereto as his last will and
testament, and that in his presence and in the presence of each other, they as well as
the third subscribing witness. Despite the searching and exhaustive cross-
examination to which they were subjected, counsel for appellants could point to no
flaw in their testimony save an alleged contradiction as to a single incident which
occurred at or about the time when the will was executed a contradiction, however,
which we think is more apparent than real. One of the witnesses stated that the
deceased sat up in bed and signed his name to the will, and that after its execution
food was given him by his wife; while the other testified that he was assisted into a
sitting position, and was given something to eat before he signed his name. We think
the evidence discloses that his wife aided the sick man to sit up in bed at the time
when he signed his name to the instrument, and that he was given nourishment
while he was in that position, but it is not quite clear whether this was immediately
before or after, or both before and after he attached his signature to the will. To say
that the sick man sat up or raised himself up in bed is not necessarily in conflict with
the fact that he received assistance in doing so; and it is not at all improbable or
impossible that nourishment might have been given to him both before and after
signing the will, and that one witness might remember the former occasion and the
other witness might recall the latter, although neither witness could recall both. But,
however this may have been, we do not think that a slight lapse of memory on the
part of one or the other witness, as to the precise details of an unimportant incident,
to which his attention may not have been particularly directed, is sufficient to raise a
doubt as to the veracity of these witnesses, or as to the truth and accuracy of their
recollection of the fact of the execution of the instrument. Of course, a number of
contradictions in the testimony of alleged subscribing witnesses to a will as to the
circumstances under which it was executed, or even a single contradiction as to a
particular incident, where the incident was of such a nature that the intention of any
person who was present must have been directed to it, and where the contradictory
statements in regard to it are so clear and explicit as to negative the possibility or
probability of mistake, might well be sufficient to justify the conclusion that the
witnesses could not possibly have been present, together, at the time when it is
alleged the will was executed; but the apparent contradictions in the testimony of
the witnesses in the case at bar fall far short of raising a doubt a to their veracity,
and on the other hand their testimony as a whole gives such clear, explicit, and
detailed account of all that occurred, and is so convincing and altogether satisfactory
that we have no doubt that the trial judge who heard them testify properly accepted
their testimony as worthy of entire confidence and belief.

The contestants put upon the stand four witnesses for the purpose of proving that at
the time and on the occasion when the subscribing witnesses testified that the will
was executed, these witnesses were not in the house with the testator, and that the
alleged testator was at that time in such physical and mental condition that it was
impossible for him to have made a will. Two of these witnesses, upon cross-
examination, admitted that they were not in the house at or between the hours of
four and six in the afternoon of the day on which the will is alleged to have been
made, this being the time at which the witnesses in support of the will testified that
it was executed. Of the other witnesses, one is a contestant of the will, Macario Ubag,
a brother of the testator, and the other, Canuto Sinoy, his close relative. These
witnesses swore that they were in the house of the deceased, where he was lying ill,
at or about the time when it is alleged that the will was executed, and that at that
time the alleged subscribing witnesses were not in the house, and the alleged
testator was so sick that he was unable to speak, to understand, or to make himself
understood, and that he was wholly incapacitated to make a will. But the testimony
of Macario Ubag is in our opinion wholly unworthy of credence. In addition to his
manifest interest in the result of the investigation, it clearly discloses a fixed and
settled purpose to overthrow the will at all costs, and to that end an utter disregard
of the truth, and readiness to swear to any fact which he imagined would aid in
securing his object. An admittedly genuine and authentic signature of the deceased
was introduced in evidence for comparison with the signature attached to the will,
but this witness in his anxiety to deny the genuineness of the signature of his
brother to the will, promptly and positively swore that the admittedly genuine
signature was not his brother's signature, and only corrected his erroneous
statement in response to a somewhat suggestive question by his attorney which
evidently gave him to understand that his former answer was likely to prejudice his
own cause. On cross-examination, he was forced to admit that because his brother
and his brother's wife (in those favor the will was made) were Aglipayanos, he and
his other brothers and sisters had not visited them for many months prior to the one
particular occasion as to which testified; and he admitted further, that, although he
lived near at hand, at no time thereafter did he or any of the other members of his
family visit their dying brother, and that they did not even attend the funeral. If the
testimony of this witness could be accepted as true, it would be a remarkable
coincidence indeed, that the subscribing witnesses to the alleged will should have
falsely pretended to have joined in its execution on the very day, and at the precise
hour, when this interested witness happened to pay his only visit to his brother
during his last illness, so that the testimony of this witness would furnish conclusive
evidence in support of the allegations of the contestants that the alleged will was not
executed at the time and place or in the manner and form alleged by the subscribing
witnesses. We do not think that the testimony of this witness nor any of the other
witnesses for the contestants is sufficient to raise even a doubt as to the truth of the
testimony of the subscribing witnesses as to the fact of the execution of the will, or
as to the manner and from in which it was executed.

In the course of the proceedings, an admittedly genuine signature of the deceased

was introduced in evidence, and upon a comparison of this signature with the
signature attached to the instrument in question, we are wholly of the opinion of the
trial judge, who held in this connection as follows:

No expert evidence has been adduced with regard to these two signatures, and the
presiding judge of this court does not claim to possess any special expert knowledge
in the matter of signatures; nevertheless, the court has compared these two
signatures, and does not find that any material differences exists between the same.
It is true that the signature which appears in the document offered for
authentication discloses that at the time of writing the subscriber was more
deliberate in his movements, but two facts must be acknowledge: First, that the
testator was seriously ill, and the other fact, that for some reason which is not stated
the testator was unable to see, and was a person who was not in the habit of signing
his name every day.

These facts should sufficiently explain whatever difference may exist between the
two signatures, but the court finds that the principal strokes in the two signatures
are identical.

That the testator was mentally capable of making the will is in our opinion fully
established by the testimony of the subscribing witnesses who swore positively that,
at the time of its execution, he was of sound mind and memory. It is true that their
testimony discloses the fact that he was at that time extremely ill, in an advanced
stage of tuberculosis complicated with severe intermittent attacks of asthma; that
he was too sick to rise unaided from his bed; that he needed assistance even to rise
himself to a sitting position; and that during the paroxysms of asthma to which he
was subject he could not speak; but all this evidence of physical weakness in no wise
establishes his mental incapacity or a lack of testamentary capacity, and indeed the
evidence of the subscribing witnesses as to the aid furnished them by the testator in
preparing the will, and his clear recollection of the boundaries and physical
description of the various parcels of land set out therein, taken together with the
fact that he was able to give to the person who wrote the will clear and explicit
instructions as to his desires touching the disposition of his property, is strong
evidence of his testamentary capacity.

Counsel for appellant suggests that the fact that the alleged will leaves all the
property of the testator to his widow, and wholly fails to make any provision for his
brothers or sisters, indicates a lack of testamentary capacity and undue influence;
and because of the inherent improbability that a man would make so unnatural and
unreasonable a will, they contend that this fact indirectly corroborates their
contention that the deceased never did in fact execute the will. But when it is
considered that the deceased at the time of his death had no heirs in the ascending
or descending line; that a bitter family quarrel had long separated him from his
brothers and sisters, who declined to have any relations with the testator because
he and his wife were adherents of the Aglipayano Church; and that this quarrel was
so bitter that none of his brothers or sisters, although some of them lived in the
vicinity, were present at the time of his death or attended his funeral; we think the
fact that the deceased desired to leave and did leave all of his property to his widow
and made no provision for his brothers and sisters, who themselves were grown
men and women, by no means tends to disclose either an unsound mind or the
presence of undue influence on the part of his wife, or in any wise corroborates
contestants' allegation that the will never was executed.

It has been said that "the difficulty of stating standards or tests by which to
determine the degree of mental capacity of a particular person has been everywhere
recognized, and grows out of the inherent impossibility of measuring mental
capacity, or its impairment by disease or other causes" (Greene vs. Greene, 145 III.,
264, 276); and that "it is probable that no court has ever attempted to lay down any
definite rule in respect to the exact amount of mental capacity requisite for the
making of a valid will, without appreciating the difficulty of the undertaking" (Trish
vs. Newell, 62 III., 196, 203).

Between the highest degree of soundness of mind and memory which

unquestionably carries with it full testamentary capacity, and that degree of mental
aberration generally known as insanity or idiocy, there are numberless degrees of
mental capacity or incapacity, and while on one hand it has been held that "mere
weakness of mind, or partial imbecility from the disease of body, or from age, will
not render a person incapable of making a will, a weak or feeble minded person may
make a valid will, provided he has understanding memory sufficient to enable him
to know what he is about, and how or to whom he is disposing of his property"
(Lodge vs. Lodge, 2 Houst. (Del.), 418); that, "To constitute a sound and disposing
mind, it is not necessary that the mind should be unbroken or unimpaired,
unshattered by disease or otherwise" (Sloan vs. Maxwell, 3 N. J. Eq., 563); that "it has
not been understood that a testator must possess these qualities (of sound and
disposing mind and memory) in the highest degree. . . . Few indeed would be the
wills confirmed, if this is correct. Pain, sickness, debility of body, from age or
infirmity, would, according to its violence or duration, in a greater or less degree,
break in upon, weaken, or derange the mind, but the derangement must be such as
deprives him of the rational faculties common to man" (Den. vs. Vancleve, 5 N. J.
L.,680); and, that "Sound mind does not mean a perfectly balanced mind. The
question of soundness is one of degree" (Boughton vs. Knight, L. R.,3 P. & D., 64; 42
L. J. P., 25); on the other hand, it has been held that "testamentary incapacity does
not necessarily require that a person shall actually be insane or of an unsound mind.
Weakness of intellect, whether it arises from extreme old age from disease, or great
bodily infirmities or suffering, or from all these combined, may render the testator
incapable of making a valid will, providing such weakness really disqualifies her
from knowing or appreciating the nature, effects, or consequences of the act she is
engaged in" (Manatt vs. Scott, 106 Iowa, 203; 68 Am. St. Rep., 293, 302).

But for the purposes of this decision it is not necessary for us to attempt to lay down
a definition of testamentary capacity which will cover all possible cases which may
present themselves, because, as will be seen from what has already been said, the
testator was, at the time of making the instrument under consideration, endowed
with all the elements of mental capacity set out in the following definition of
testamentary capacity which has been frequently announced in courts of last resort
in England and the United States; and while is some cases testamentary capacity has
been held to exist in the absence of proof of some of these elements, there can be no
question that, in the absence of proof of very exceptional circumstances, proof of the
existence of all these elements in sufficient to establish the existence of
testamentary capacity.

Testamentary capacity is the capacity to comprehend the nature of the transaction

which the testator is engaged at the time, to recollect the property to be disposed of
and the person who would naturally be supposed to have claims upon the testator,
and to comprehend the manner in which the instrument will distribute his property
among the objects of his bounty.

(Cf. large array of cases cited in support of this definition in the Encyclopedia of Law,
vol. 23, p. 71, second edition.)

In our opinion, the evidence of record establishes in a strikingly conclusive manner

the execution of the instrument propounded as the last will and testament of the
deceased; that it was made in strict conformity with the requisites prescribed by
law; and that, at the time of its execution, the deceased was of sound mind and
memory, and executed the instrument of his own free will and accord.

The order probating the will should be land is hereby affirmed, with the cost of this
instance against the appellants.

Arellano, C. J., Torres, Johnson, and Moreland, JJ., concur.