RULE 73

SEC 1

JURISDICTION

MALOLES II V. PHILIPS

These are petitions for review on certiorari of the decisions of the Thirteenth and the Special Eighth
Divisions of the Court of Appeals which ruled that petitioner has no right to intervene in the settlement
of the estate of Dr. Arturo de Santos. The cases were consolidated considering that they involve the
same parties and some of the issues raised are the same.

The facts which gave rise to these two petitions are as follows:

On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed a petition for probate
of his will1 in the Regional Trial Court, Branch 61, Makati, docketed as Sp. Proc. No. M-4223. In his
petition, Dr. De Santos alleged that he had no compulsory heirs; that he had named in his will as sole
legatee and devisee the Arturo de Santos Foundation, Inc.; that he disposed by his will his properties
with an approximate value of not less than P2,000,000.00; and that copies of said will were in the
custody of the named executrix, private respondent Pacita de los Reyes Phillips. A copy of the will2 was
annexed to the petition for probate.

On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61 issued an order granting
the petition and allowing the will. The order reads:

On 03 August 1995, the Court issued an Order setting the hearing of the petition on 12
September 1995, at 8:30 o'clock in the morning, copies of which were served to Arturo de
Santos Foundation, Inc. and Ms. Pacita de los Reyes Phillips (Officer's Return, dated 04
September 1995 attached to the records). When the case was called for hearing on the date set,
no oppositor appeared nor any written opposition was ever filed and on motion of petitioner,
he was allowed to adduce his evidence in support of the petition.

Petitioner personally appeared before this Court and was placed on the witness stand and was
directly examined by the Court through "free wheeling" questions and answers to give this
Court a basis to determine the state of mind of the petitioner when he executed the subject will.
After the examination, the Court is convinced that petitioner is of sound and disposing mind and
not acting on duress, menace and undue influence or fraud, and that petitioner signed his Last
Will and Testament on his own free and voluntary will and that he was neither forced nor
influenced by any other person in signing it.

Furthermore, it appears from the petition and the evidence adduced that petitioner in his
lifetime, executed his Last Will and Testament (Exhs. "A", "A-1", "A-2", "A-4", "A-5") at his
residence situated at 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City; said Last Will
and Testament was signed in the presence of his three (3) witnesses, namely, to wit: Dr. Elpidio
Valencia (Exhs. "A-6", "A-7", "A-8", "A-16", "A-16-A"), Atty. Edward J. Berenguer (Exhs. "A-3", "A-
3-A", "A-9", "A-10", & "A-11"), and Atty. Victoria C. delos Reyes (Exhs. "A-12", "A-13", "A-14", "A-
17", & "A-18"), who in turn, in the presence of the testator and in the presence of each and all
of the witnesses signed the said Last Will and Testament and duly notarized before Notary
Public Anna Melissa L. Rosario (Exh. "A-15"); on the actual execution of the Last Will and
Testament, pictures were taken (Exhs. "B" to "B-3").
 Petitioner has no compulsory heirs and Arturo de Santos Foundation, Inc., with address at No. 9
Bauhinia corner Intsia Streets, Forbes Park, Makati City has been named as sole legatee and
devisee of petitioner's properties, real and personal, approximately valued at not less than P2
million, Ms. Pacita de los Reyes Phillips was designated as executor and to serve as such without
a bond.1âwphi1.nêt

From the foregoing facts, the Court finds that the petitioner has substantially established the
material allegations contained in his petition. The Last Will and Testament having been executed
and attested as required by law; that testator at the time of the execution of the will was of
sane mind and/or not mentally incapable to make a Will; nor was it executed under duress or
under the influence of fear or threats; that it was in writing and executed in the language known
and understood by the testator duly subscribed thereof and attested and subscribed by three
(3) credible witnesses in the presence of the testator and of another; that the testator and all
the attesting witnesses signed the Last Will and Testament freely and voluntarily and that the
testator has intended that the instrument should be his Will at the time of affixing his signature
thereto.

WHEREFORE, as prayed for by the petitioner (testator himself) the petition for the allowance of
the Last Will and Testament of Arturo de Santos is hereby APPROVED and ALLOWED.

Shortly after the probate of his will, Dr. De Santos died on February 26, 1996.

On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for intervention claiming that, as the only
child of Alicia de Santos (testator's sister) and Octavio L. Maloles, Sr., he was the sole full-blooded
nephew and nearest of kin of Dr. De Santos. He likewise alleged that he was a creditor of the testator.
Petitioner thus prayed for the reconsideration of the order allowing the will and the issuance of letters
of administration in his name.

On the other hand, private respondent Pacita de los Reyes Phillips, the designated executrix of the will,
filed a motion for the issuance of letters testamentary with Branch 61. Later, however, private
respondent moved to withdraw her motion. This was granted, while petitioner was required to file a
memorandum of authorities in support of his claim that said court (Branch 61) still had jurisdiction to
allow his intervention.3

Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand, private
respondent, who earlier withdrew her motion for the issuance of letters testamentary in Branch 61,
refiled a petition for the same purpose with the Regional Trial Court, Makati, which was docketed as Sp.
Proc. No. M-4343 and assigned to Branch 65.

Upon private respondent's motion, Judge Salvador Abad Santos of Branch 65 issued an order, dated
June 28, 1996, appointing her as special administrator of Dr. De Santos's estate.

On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343 and to set aside the
appointment of private respondent as special administrator. He reiterated that he was the sole and full
blooded nephew and nearest of kin of the testator; that he came to know of the existence of Sp. Proc.
No. M-4343 only by accident; that the probate proceedings in Sp. Proc. No. M-4223 before Branch 61 of
the same court was still pending; that private respondent misdeclared the true worth of the testator's
estate; that private respondent was not fit to be the special administrator of the estate; and that
petitioner should be given letters of administration for the estate of Dr. De Santos.
On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc. No. M-4343 to Branch 61, on
the ground that "[it] is related to the case before Judge Gorospe of RTC Branch 61 . . ."

It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had denied on August 26, 1996
petitioner's motion for intervention. Petitioner brought this matter to the Court of Appeals which, in a
decision4 promulgated on February 13, 1998, upheld the denial of petitioner's motion for intervention.

Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the records of Sp. Proc.
No. M-4343 to Branch 65 on the ground that there was a pending case involving the Estate of Decedent
Arturo de Santos pending before said court. The order reads:

Acting on the ORDER dated 28 August 1996 of Branch 65, this Court, transferring this case to this
Branch 61 on the ground that this case is related with a case before this Court, let this case be
returned to Branch 65 with the information that there is no related case involving the ESTATE
OF DECEDENT ARTURO DE SANTOS pending before this Branch.

There is, however, a case filed by ARTURO DE SANTOS, as petitioner under Rule 76 of the Rules
of Court for the Allowance of his will during his lifetime docketed as SP. PROC. NO. M-4223
which was already decided on 16 February 1996 and has become final.

It is noted on records of Case No. M-4223 that after it became final, herein Petitioner Pacita de
los Reyes Phillips filed a MOTION FOR THE ISSUANCE OF LETTERS TESTAMENTARY, which was
subsequently withdrawn after this Court, during the hearing, already ruled that the motion
could not be admitted as the subject matter involves a separate case under Rule 78 of the Rules
of Court, and movant withdrew her motion and filed this case (No. 4343).

Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION before Case No. M-4223 and
this motion was already DENIED in the order (Branch 61) of 26 August 1996 likewise for the
same grounds that the matter is for a separate case to be filed under Rule 78 of the Rules of
Court and cannot be included in this case filed under Rule 76 of the Rules of Court.

It is further noted that it is a matter of policy that consolidation of cases must be approved by
the Presiding Judges of the affected Branches.

Initially, in his decision dated September 23, 1996,5 Judge Abad Santos appeared firm in his position that
" . . . it would be improper for (Branch 65) to hear and resolve the petition (Sp. Proc. No. M-4343),"
considering that the probate proceedings were commenced with Branch 61. He thus ordered the
transfer of the records back to the latter branch. However, he later recalled his decision and took
cognizance of the case "to expedite the proceedings." Thus, in his Order, dated October 21, 1996, he
stated:

Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of Branch 61 to continue hearing
this case notwithstanding the fact that said branch began the probate proceedings of the estate
of the deceased and must therefore continue to exercise its jurisdiction to the exclusion of all
others, until the entire estate of the testator had been partitioned and distributed as per Order
dated 23 September 1996, this branch (Regional Trial Court Branch 65) shall take cognizance of
the petition if only to expedite the proceedings, and under the concept that the Regional Trial
Court of Makati City is but one court.
 Furnish a copy of this order to the Office of the Chief justice and the Office of the Court
Administrator, of the Supreme Court; the Hon. Fernando V. Gorospe, Jr.; Pacita De Los Reyes
Phillips, Petitioner; and Octavio de Santos Maloles, Intervenor.

On November 4, 1996, Judge Abad Santos granted petitioner's motion for intervention. Private
respondent moved for a reconsideration but her motion was denied by the trial court. She then filed a
petition for certiorari in the Court of Appeals which, on February 26, 1997, rendered a decision6 setting
aside the trial court's order on the ground that petitioner had not shown any right or interest to
intervene in Sp. Proc. No. M-4343.

Hence, these petitions which raise the following issues:

1. Whether or not the Honorable Regional Trial Court — Makati, Branch 61 has lost jurisdiction
to proceed with the probate proceedings upon its issuance of an order allowing the will of Dr.
Arturo de Santos.

2. Whether or not the Honorable (Regional Trial Court — Makati, Branch 65) acquired
jurisdiction over the petition for issuance of letters testamentary filed by (private) respondent.

3. Whether or not the petitioner, being a creditor of the late Dr. Arturo de Santos, has a right to
intervene and oppose the petition for issuance of letters testamentary filed by the respondent.

4. Whether or not (private) respondent is guilty of forum shopping in filing her petition for
issuance of letters testamentary with the Regional Trial Court — Makati, Branch 65 knowing
fully well that the probate proceedings involving the same restate estate of the decedent is still
pending with the Regional Trial Court — Makati, Branch 61.

First. Petitioner contends that the probate proceedings in Branch 61 of RTC-Makati did not terminate
upon the issuance of the order allowing the will of Dr. De Santos. Citing the cases of Santiesteban
v. Santiesteban7 and Tagle v. Manalo,8 he argues that the proceedings must continue until the estate is
fully distributed to the lawful heirs, devisees, and legatees of the testator, pursuant to Rule 73, §1 of the
Rules of Court. Consequently, petitioner contends that Branch 65 could not lawfully act upon private
respondent's petition for issuance of letters testamentary.

The contention has no merit.

In cases for the probate of wills, it is well-settled that the authority of the court is limited to ascertaining
the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will
in accordance with the formalities prescribed by law.9

Ordinarily, probate proceedings are instituted only after the death of the testator, so much so that, after
approving and allowing the will, the court proceeds to issue letters testamentary and settle the estate of
the testator. The cases cited by petitioner are of such nature. In fact, in most jurisdictions, courts cannot
entertain a petition for probate of the will of a living testator under the principle of ambulatory nature
of wills.10

However, Art. 838 of the Civil Code authorizes the filing of a petition for probate of the will filed by the
testator himself. It provides:

CIVIL CODE, ART. 838. No will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court.
 The testator himself may, during his lifetime, petition the court having jurisdiction for the
allowance of his will. In such case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testator's death shall govern.

The Supreme Court shall formulate such additional Rules of Court as may be necessary for the
allowance of wills on petition of the testator.

Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator
or after his death, shall be conclusive as to its due execution.

Rule 76, §1 likewise provides:

Sec. 1. Who may petition for the allowance of will. — Any executor, devisee, or legatee named in
a will, or any other person interested in the estate, may, at any time after the death of the
testator, petition the court having jurisdiction to have the will allowed, whether the same be in
his possession or not, or is lost or destroyed.

The testator himself may, during his lifetime, petition in the court for the allowance of his will.

The rationale for allowing the probate of wills during the lifetime of testator has been explained by the
Code Commission thus:

Most of the cases that reach the courts involve either the testamentary capacity of the testator
or the formalities adopted in the execution of wills. There are relatively few cases concerning
the intrinsic validity of testamentary dispositions. It is far easier for the courts to determine the
mental condition of a testator during his lifetime than after his death. Fraud, intimidation and
undue influence are minimized. Furthermore, if a will does not comply with the requirements
prescribed by law, the same may be corrected at once. The probate during the testator's life,
therefore, will lessen the number of contest upon wills. Once a will is probated during the
lifetime of the testator, the only questions that may remain for the courts to decide after the
testator's death will refer to the intrinsic validity of the testamentary dispositions. It is possible,
of course, that even when the testator himself asks for the allowance of the will, he may be
acting under duress or undue influence, but these are rare cases.

After a will has been probated during the lifetime of the testator, it does not necessarily mean
that he cannot alter or revoke the same before his death. Should he make a new will, it would
also be allowable on his petition, and if he should die before he has had a chance to present
such petition, the ordinary probate proceeding after the testator's death would be in order.11

Thus, after the allowance of the will of Dr. De Santos on February 16, 1996, there was nothing else for
Branch 61 to do except to issue a certificate of allowance of the will pursuant to Rule 73, §12 of the
Rules of Court. There is, therefore, no basis for the ruling of Judge Abad Santos of Branch 65 of RTC-
Makati that —

Branch 61 of the Regional Trial Court of Makati having begun the probate proceedings of the
estate of the deceased, it continues and shall continue to exercise said jurisdiction to the
exclusion of all others. It should be noted that probate proceedings do not cease upon the
allowance or disallowance of a will but continues up to such time that the entire estate of the
testator had been partitioned and distributed.
 The fact that the will was allowed during the lifetime of the testator meant merely that the
partition and distribution of the estate was to be suspended until the latter's death. In other
words, the petitioner, instead of filing a new petition for the issuance of letters testamentary,
should have simply filed a manifestation for the same purpose in the probate court.12

Petitioner, who defends the order of Branch 65 allowing him to intervene, cites Rule 73, §1 which states:

Where estate of deceased persons settled. — If the decedent is an inhabitant of the Philippines
at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the Court of First Instance in the province in
which he resides at the time of his death, and if he is an inhabitant of a foreign country, the
Court of First Instance of any province 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.

The above rule, however, actually provides for the venue of actions for the settlement of the estate of
deceased persons. In Garcia Fule v. Court of Appeals, it was held:13

The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far
as it depends on the place of residence of the decedent, or of the location of the state," is in
reality a matter of venue, as the caption of the Rule indicates: "Settlement of Estate of Deceased
Persons. Venue and Processes." It could not have been intended to define the jurisdiction over
the subject matter, because such legal provision is contained in a law of procedure dealing
merely with procedural matters. Procedure is one thing, jurisdiction over the subject matter is
another. The power or authority of the court over the subject matter "existed was fixed before
procedure in a given cause began." That power or authority is not altered or changed by
procedure, which simply directs the manner in which the power or authority shall be fully and
justly exercised. There are cases though that if the power is not exercised conformably with the
provisions of the procedural law, purely, the court attempting to exercise it loses the power to
exercise it legally. However, this does not amount to a loss of jurisdiction over the subject
matter. Rather, it means that the court may thereby lose jurisdiction over the person or that the
judgment may thereby be rendered defective for lack of something essential to sustain it. The
appearance of this provision in the procedural law at once raises a strong presumption that it
has nothing to do with the jurisdiction of the court over the subject matter. In plain words, it is
just a matter of method, of convenience to the parties.

Indeed, the jurisdiction over probate proceedings and settlement of estates with approximate value of
over P100,000.00 (outside Metro Manila) or P200,000.00 (in Metro Manila) belongs to the regional trial
courts under B.P. Blg. 129, as amended. The different branches comprising each court in one judicial
region do not possess jurisdictions independent of and incompatible with each other.14

It is noteworthy that, although Rule 73, §1 applies insofar as the venue of the petition for probate of the
will of Dr. De Santos is concerned, it does not bar other branches of the same court from taking
cognizance of the settlement of the estate of the testator after his death. As held in the leading case
of Bacalso v. Ramolote:15

The various branches of the Court of First Instance of Cebu under the Fourteenth Judicial
District, are a coordinate and co-equal courts, and the totality of which is only one Court of First
 Instance. The jurisdiction is vested in the court, not in the judges. And when a case is filed in one
branch, jurisdiction over the case does not attach to the branch or judge alone, to the exclusion
of the other branches. Trial may be held or proceedings continue by and before another branch
or judge. It is for this reason that Section 57 of the Judiciary Act expressly grants to the Secretary
of Justice, the administrative right or power to apportion the cases among the different
branches, both for the convenience of the parties and for the coordination of the work by the
different branches of the same court. The apportionment and distribution of cases does not
involve a grant or limitation of jurisdiction, the jurisdiction attaches and continues to be vested
in the Court of First Instance of the province, and the trials may be held by any branch or judge
of the court.

Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp. Proc. No. M-4343.

Second. Petitioner claims the right to intervene in and oppose the petition for issuance of letters
testamentary filed by private respondent. He argues that, as the nearest next of kin and creditor of the
testator, his interest in the matter is material and direct. In ruling that petitioner has no right to
intervene in the proceedings before Branch 65 of RTC-Makati City, the Court of Appeals held:

The private respondent herein is not an heir or legatee under the will of the decedent Arturo de
Santos. Neither is he a compulsory heir of the latter. As the only and nearest collateral relative
of the decedent, he can inherit from the latter only in case of intestacy. Since the decedent has
left a will which has already been probated and disposes of all his properties the private
respondent can inherit only if the said will is annulled. His interest in the decedent's estate is,
therefore, not direct or immediate.

His claim to being a creditor of the estate is a belated one, having been raised for the first time
only in his reply to the opposition to his motion to intervene, and, as far as the records show,
not supported by evidence.

. . . . [T]he opposition must come from one with a direct interest in the estate or the will, and
the private respondent has none. Moreover, the ground cited in the private respondent's
opposition, that the petitioner has deliberately misdeclared the truth worth and value of the
estate, is not relevant to the question of her competency to act as executor. Section 2, Rule 76
of the Rules of Court requires only an allegation of the probable value and character of the
property of the estate. The true value can be determined later on in the course of the
settlement of the estate.16

Rule 79, §1 provides:

Opposition to issuance of letters testamentary. Simultaneous petition for administration. — Any

person interested in a will may state in writing the grounds why letters testamentary should not
issue to the persons named therein as executors, or any of them, and the court, after hearing
upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the same time,
be filed for letters of administration with the will annexed.

Under this provision, it has been held that an "interested person" is one who would be benefited by the
estate, such as an heir, or one who has a claim against the estate, such as a creditor, and whose interest
is material and direct, not merely incidental or contingent.17
Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered an "heir" of the
testator. It is a fundamental rule of testamentary succession that one who has no compulsory or forced
heirs may dispose of his entire estate by will. Thus, Art. 842 of the Civil Code provides:

One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of
any person having capacity to succeed.

One who has compulsory heirs may dispose of his estate provided he does not contravene the
provisions of this Code with regard to the legitimate of said heirs.

Compulsory heirs are limited to the testator's —

(1) Legitimate children and descendants, with respect to their legitimate parents and
ascendants;

(2) In default of the foregoing, legitimate parents and ascendants, with respect to their
legitimate children and descendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in Article 287 of the Civil Code.18

Petitioner, as nephew of the testator, is not a compulsory heir who may have been preterited in the
testator's will.

Nor does he have any right to intervene in the settlement proceedings based on his allegation that he is
a creditor of the deceased. Since the testator instituted or named an executor in his will, it is incumbent
upon the Court to respect the desires of the testator. As we stated in Ozaeta v. Pecson:19

The choice of his executor is a precious prerogative of a testator, a necessary concomitant of his
right to dispose of his property in the manner he wishes. It is natural that the testator should
desire to appoint one of his confidence, one who can be trusted to carry out his wishes in the
disposal of his estate. The curtailment of this right may be considered a curtailment of the right
to dispose.

Only if the appointed executor is incompetent, refuses the trust, or fails to give bond may the court
appoint other persons to administer the estate.20 None of these circumstances is present in this case.

Third. Petitioner contends that private respondent is guilty of forum shopping when she filed the
petition for issuance of letters testamentary (Sp. Proc. No. M-4343) while the probate proceedings (Sp.
Proc. No. M-4223) were still pending. According to petitioner, there is identity of parties, rights asserted,
and reliefs prayed for in the two actions which are founded on the same facts, and a judgment in either
will result in res judicata in the other.

This contention has no merit. As stated earlier, the petition for probate was filed by Dr. De Santos, the
testator, solely for the purpose of authenticating his will. Upon the allowance of his will, the proceedings
were terminated.1âwphi1.nêt
 On the other hand, the petition for issuance of letters testamentary was filed by private respondent, as
executor of the estate of Dr. De Santos, for the purpose of securing authority from the Court to
administer the estate and put into effect the will of the testator. The estate settlement proceedings
commenced by the filing of the petition terminates upon the distribution and delivery of the legacies
and devises to the persons named in the will. Clearly, there is no identity between the two petitions, nor
was the latter filed during the pendency of the former. There was, consequently, no forum shopping.

WHEREFORE, the petition is DENIED and the decisions of the Court of Appeals are hereby AFFIRMED.

SO ORDERED.

LIM V. CA

May a corporation, in its universality, be the proper subject of and be included in the inventory of the
estate of a deceased person?

Petitioner disputes before us through the instant petition for review on certiorari, the decision1 of the
Court of Appeals promulgated on 18 April 1996, in CA-GR SP No. 38617, which nullified and set aside the
orders dated 04 July 19952 , 12 September 19953 and 15 September 19954 of the Regional Trial Court of
Quezon City, Branch 93, sitting as a probate court.

Petitioner Rufina Luy Lim is the surviving spouse of late Pastor Y. Lim whose estate is the subject of
probate proceedings in Special Proceedings Q-95-23334, entitled, "In Re: Intestate Estate of Pastor Y.
Lim Rufina Luy Lim, represented by George Luy, Petitioner".1âwphi1.nêt

Private respondents Auto Truck Corporation, Alliance Marketing Corporation, Speed Distributing, Inc.,
Active Distributing, Inc. and Action Company are corporations formed, organized and existing under
Philippine laws and which owned real properties covered under the Torrens system.

On 11 June 1994, Pastor Y. Lim died intestate. Herein petitioner, as surviving spouse and duly
represented by her nephew George Luy, fried on 17 March 1995, a joint petition5 for the administration
of the estate of Pastor Y. Lim before the Regional Trial Court of Quezon City.

Private respondent corporations, whose properties were included in the inventory of the estate of
Pastor Y. Lim, then filed a motion6 for the lifting of lis pendens and motion7 for exclusion of certain
properties from the estate of the decedent.

In an order8 dated 08 June 1995, the Regional Trial Court of Quezon City, Branch 93, sitting as a probate
court, granted the private respondents' twin motions, in this wise:

Wherefore, the Register of Deeds of Quezon City is hereby ordered to lift, expunge or delete the
annotation of lis pendens on Transfer Certificates of Title Nos. 116716, 116717, 116718, 116719
and 5182 and it is hereby further ordered that the properties covered by the same titles as well
as those properties by (sic) Transfer Certificate of Title Nos. 613494, 363123, 236236 and
263236 are excluded from these proceedings.

SO ORDERED.

Subsequently, Rufina Luy Lim filed a verified amended petition9 which contained the following
averments:
3. The late Pastor Y. Lim personally owned during his lifetime the following business entities, to
wit:

Business Entity Address:

xxx xxx xxx

Alliance Block 3, Lot 6, Dacca BF

Marketing, Homes, Parañaque, Metro
Inc. Manila.

xxx xxx xxx

Speed
910 Barrio Niog, Aguinaldo
Distributing
Highway, Bacoor, Cavite.
Inc.

xxx xxx xxx

Auto Truck 2251 Roosevelt Avenue,

TBA Corp. Quezon City.

xxx xxx xxx

Active Block 3, Lot 6, Dacca BF

Distributors, Homes, Parañaque, Metro
Inc. Manila.

xxx xxx xxx

Action 100 20th Avenue Murphy,

Company Quezon City or 92-D Mc-
Arthur Highway Valenzuela
Bulacan.

3.1 Although the above business entities dealt and engaged in business with the public
as corporations, all their capital, assets and equity were however, personally owned by
the late Pastor Y Lim. Hence the alleged stockholders and officers appearing in the
respective articles of incorporation of the above business entities were mere dummies
of Pastor Y. Lim, and they were listed therein only for purposes of registration with the
Securities and Exchange Commission.

4. Pastor Lim, likewise, had Time, Savings and Current Deposits with the following banks: (a)
Metrobank, Grace Park, Caloocan City and Quezon Avenue, Quezon City Branches and (b) First
Intestate Bank (formerly Producers Bank), Rizal Commercial Banking Corporation and in other
banks whose identities are yet to be determined.

5. That the following real properties, although registered in the name of the above entities,
were actually acquired by Pastor Y. Lim during his marriage with petitioner, to wit:

Corporation Title Location

xxx xxx xxx

 k. Auto Truck TCT No. 617726 Sto. Domingo TBA
Corporation Cainta, Rizal

q. Alliance Marketing TCT No. 27896 Prance, Metro Manila

Copies of the above-mentioned Transfer Certificate of Title and/or Tax Declarations are hereto
attached as Annexes "C" to "W".

xxx xxx xxx

7. The aforementioned properties and/or real interests left by the late Pastor Y. Lim, are all
conjugal in nature, having been acquired by him during the existence of his marriage with
petitioner.

8. There are other real and personal properties owned by Pastor Y. Lim which petitioner could
not as yet identify. Petitioner, however will submit to this Honorable Court the identities thereof
and the necessary documents covering the same as soon as possible.

On 04 July 1995, the Regional Trial Court acting on petitioner's motion issued an order10 , thus:

Wherefore, the order dated 08 June 1995 is hereby set aside and the Registry of Deeds of
Quezon City is hereby directed to reinstate the annotation of lis pendens in case said annotation
had already been deleted and/or cancelled said TCT Nos. 116716, 116717, 116718, 116719 and
51282.

Further more (sic), said properties covered by TCT Nos. 613494, 365123, 236256 and 236237 by
virtue of the petitioner are included in the instant petition.

SO ORDERED.

On 04 September 1995, the probate court appointed Rufina Lim as special administrator11 and Miguel
Lim and Lawyer Donald Lee, as co-special administrators of the estate of Pastor Y. Lim, after which
letters of administration were accordingly issued.

In an order12 dated 12 September 1995, the probate court denied anew private respondents' motion for
exclusion, in this wise:

The issue precisely raised by the petitioner in her petition is whether the corporations are the
mere alter egos or instrumentalities of Pastor Lim, Otherwise (sic) stated, the issue involves the
piercing of the corporate veil, a matter that is clearly within the jurisdiction of this Honorable
Court and not the Securities and Exchange Commission. Thus, in the case of Cease vs. Court of
Appeals, 93 SCRA 483, the crucial issue decided by the regular court was whether the
corporation involved therein was the mere extension of the decedent. After finding in the
affirmative, the Court ruled that the assets of the corporation are also assets of the estate.

A reading of P.D. 902, the law relied upon by oppositors, shows that the SEC's exclusive (sic)
applies only to intra-corporate controversy. It is simply a suit to settle the intestate estate of a
deceased person who, during his lifetime, acquired several properties and put up corporations
as his instrumentalities.
 SO ORDERED.

On 15 September 1995, the probate court acting on an ex parte motion filed by petitioner, issued an
order13 the dispositive portion of which reads:

Wherefore, the parties and the following banks concerned herein under enumerated are hereby
ordered to comply strictly with this order and to produce and submit to the special
administrators, through this Honorable Court within (5) five days from receipt of this order their
respective records of the savings/current accounts/time deposits and other deposits in the
names of Pastor Lim and/or corporations above-mentioned, showing all the transactions made
or done concerning savings/current accounts from January 1994 up to their receipt of this court
order.

xxx xxx xxx

SO ORDERED.

Private respondent filed a special civil action for certiorari14 , with an urgent prayer for a restraining
order or writ of preliminary injunction, before the Court of Appeals questioning the orders of the
Regional Trial Court, sitting as a probate court.

On 18 April 1996, the Court of Appeals, finding in favor of herein private respondents, rendered the
assailed decision15 , the decretal portion of which declares:

Wherefore, premises considered, the instant special civil action for certiorari is hereby granted,
The impugned orders issued by respondent court on July 4, 1995 and September 12, 1995 are
hereby nullified and set aside. The impugned order issued by respondent on September 15,
1995 is nullified insofar as petitioner corporations" bank accounts and records are concerned.

SO ORDERED.

Through the expediency of Rule 45 of the Rules of Court, herein petitioner Rufina Luy Lim now comes
before us with a lone assignment of
16
error :

The respondent Court of Appeals erred in reversing the orders of the lower court which merely
allowed the preliminary or provisional inclusion of the private respondents as part of the estate
of the late deceased (sic) Pastor Y. Lim with the respondent Court of Appeals arrogating unto
itself the power to repeal, to disobey or to ignore the clear and explicit provisions of Rules
81,83,84 and 87 of the Rules of Court and thereby preventing the petitioner, from performing
her duty as special administrator of the estate as expressly provided in the said Rules.

Petitioner's contentions tread on perilous grounds.

In the instant petition for review, petitioner prays that we affirm the orders issued by the probate court
which were subsequently set aside by the Court of Appeals.

Yet, before we delve into the merits of the case, a review of the rules on jurisdiction over probate
proceedings is indeed in order.
The provisions of Republic Act 769117 , which introduced amendments to Batas Pambansa Blg. 129, are
pertinent:

Sec. 1. Section 19 of Batas Pambansa Blg. 129, otherwise known as the "Judiciary Reorganization
Act of 1980", is hereby amended to read as follows:

Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive jurisdiction:

xxx xxx xxx

(4) In all matters of probate, both testate and intestate, where the gross value of the estate
exceeds One Hundred Thousand Pesos (P100,000) or, in probate matters in Metro Manila,
where such gross value exceeds Two Hundred Thousand Pesos (P200,000);

xxx xxx xxx

Sec. 3. Section 33 of the same law is hereby amended to read as follows:

Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts in Civil Cases. — Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts shall exercise:

1. Exclusive original jurisdiction over civil actions and probate proceedings, testate and
intestate, including the grant of provisional remedies in proper cases, where the value
of the personal property, estate or amount of the demand does not exceed One
Hundred Thousand Pesos (P100,000) or, in Metro Manila where such personal property,
estate or amount of the demand does not exceed Two Hundred Thousand Pesos
(P200,000), exclusive of interest, damages of whatever kind, attorney's fees, litigation
expenses and costs, the amount of which must be specifically alleged, Provided, that
interest, damages of whatever kind, attorney's, litigation expenses and costs shall be
included in the determination of the filing fees, Provided further, that where there are
several claims or causes of actions between the same or different parties, embodied in
the same complaint, the amount of the demand shall be the totality of the claims in all
the causes of action, irrespective of whether the causes of action arose out of the same
or different transactions;

xxx xxx xxx

Simply put, the determination of which court exercises jurisdiction over matters of probate depends
upon the gross value of the estate of the decedent.

As to the power and authority of the probate court, petitioner relies heavily on the principle that a
probate court may pass upon title to certain properties, albeit provisionally, for the purpose of
determining whether a certain property should or should not be included in the inventory.

In a litany of cases, We defined the parameters by which the court may extend its probing arms in the
determination of the question of title in probate proceedings.

This Court, in PASTOR, JR. vs. COURT OF APPEALS,18 held:

 . . . As a rule, the question of ownership is an extraneous matter which the probate court cannot
resolve with finality. Thus, for the purpose of determining whether a certain property should or
should not be included in the inventory of estate properties, the Probate Court may pass upon
the title thereto, but such determination is provisional, not conclusive, and is subject to the final
decision in a separate action to resolve title.

We reiterated the rule in PEREIRA vs. COURT OF APPEALS19 :

. . . The function of resolving whether or not a certain property should be included in the
inventory or list of properties to be administered by the administrator is one clearly within the
competence of the probate court. However, the court's determination is only provisional in
character, not conclusive, and is subject to the final decision in a separate action which may be
instituted by the parties.

Further, in MORALES vs. CFI OF CAVITE20 citing CUIZON vs. RAMOLETE21 , We made an exposition on the
probate court's limited jurisdiction:

It is a well-settled rule that a probate court or one in charge of proceedings whether testate or
intestate cannot adjudicate or determine title to properties claimed to be a part of the estate
and which are equally claimed to belong to outside parties. All that the said court could do as
regards said properties is to determine whether they should or should not be included in the
inventory or list of properties to be administered by the administrator. If there is no dispute,
well and good; but if there is, then the parties, the administrator and the opposing parties have
to resort to an ordinary action for a final determination of the conflicting claims of title because
the probate court cannot do so.

Again, in VALERA vs. INSERTO22 , We had occasion to elucidate, through Mr. Justice Andres Narvasa23 :

Settled is the rule that a Court of First Instance (now Regional Trial Court), acting as a probate
court, exercises but limited jurisdiction, and thus has no power to take cognizance of and
determine the issue of title to property claimed by a third person adversely to the decedent,
unless the claimant and all other parties having legal interest in the property consent, expressly
or impliedly, to the submission of the question to the probate court for adjudgment, or the
interests of third persons are not thereby prejudiced, the reason for the exception being that
the question of whether or not a particular matter should be resolved by the court in the
exercise of its general jurisdiction or of its limited jurisdiction as a special court (e.g. probate,
land registration, etc.), is in reality not a jurisdictional but in essence of procedural one,
involving a mode of practice which may be waived. . . .

. . . . These considerations assume greater cogency where, as here, the Torrens title is not in the
decedent's name but in others, a situation on which this Court has already had occasion to rule .
. . . (emphasis Ours)

Petitioner, in the present case, argues that the parcels of land covered under the Torrens system and
registered in the name of private respondent corporations should be included in the inventory of the
estate of the decedent Pastor Y. Lim, alleging that after all the determination by the probate court of
whether these properties should be included or not is merely provisional in nature, thus, not conclusive
and subject to a final determination in a separate action brought for the purpose of adjudging once and
for all the issue of title.
Yet, under the peculiar circumstances, where the parcels of land are registered in the name of private
respondent corporations, the jurisprudence pronounced in BOLISAY vs., ALCID 24 is of great essence and
finds applicability, thus:

It does not matter that respondent-administratrix has evidence purporting to support her claim
of ownership, for, on the other hand, petitioners have a Torrens title in their favor, which under
the law is endowed with incontestability until after it has been set aside in the manner indicated
in the law itself, which of course, does not include, bringing up the matter as a mere incident in
special proceedings for the settlement of the estate of deceased persons. . . .

. . . . In regard to such incident of inclusion or exclusion, We hold that if a property covered by

Torrens title is involved, the presumptive conclusiveness of such title should be given due
weight, and in the absence of strong compelling evidence to the contrary, the holder thereof
should be considered as the owner of the property in controversy until his title is nullified or
modified in an appropriate ordinary action, particularly, when as in the case at bar, possession
of the property itself is in the persons named in the title. . . .

A perusal of the records would reveal that no strong compelling evidence was ever presented by
petitioner to bolster her bare assertions as to the title of the deceased Pastor Y. Lim over the properties.
Even so, P.D. 1529, otherwise known as, "The Property Registration Decree", proscribes collateral attack
on Torrens Title, hence:

xxx xxx xxx

Sec. 48. Certificate not subject to collateral attack. — A certificate of title shall not be subject to
collateral attack. It cannot be altered, modified or cancelled except in a direct proceeding in
accordance with law.

In CUIZON vs. RAMOLETE, where similarly as in the case at bar, the property subject of the controversy
was duly registered under the Torrens system, We categorically stated:

. . . Having been apprised of the fact that the property in question was in the possession of third
parties and more important, covered by a transfer certificate of title issued in the name of such
third parties, the respondent court should have denied the motion of the respondent
administrator and excluded the property in question from the inventory of the property of the
estate. It had no authority to deprive such third persons of their possession and ownership of
the property. . . .

Inasmuch as the real properties included in the inventory of the estate of the Late Pastor Y. Lim are in
the possession of and are registered in the name of private respondent corporations, which under the
law possess a personality separate and distinct from their stockholders, and in the absence of any
cogency to shred the veil of corporate fiction, the presumption of conclusiveness of said titles in favor of
private respondents should stand undisturbed.

Accordingly, the probate court was remiss in denying private respondents' motion for exclusion. While it
may be true that the Regional Trial Court, acting in a restricted capacity and exercising limited
jurisdiction as a probate court, is competent to issue orders involving inclusion or exclusion of certain
properties in the inventory of the estate of the decedent, and to adjudge, albeit, provisionally the
question of title over properties, it is no less true that such authority conferred upon by law and
reinforced by jurisprudence, should be exercised judiciously, with due regard and caution to the peculiar
circumstances of each individual case.
Notwithstanding that the real properties were duly registered under the Torrens system in the name of
private respondents, and as such were to be afforded the presumptive conclusiveness of title, the
probate court obviously opted to shut its eyes to this gleamy fact and still proceeded to issue the
impugned orders.

By its denial of the motion for exclusion, the probate court in effect acted in utter disregard of the
presumption of conclusiveness of title in favor of private respondents. Certainly, the probate court
through such brazen act transgressed the clear provisions of law and infringed settled jurisprudence on
this matter.

Moreover, petitioner urges that not only the properties of private respondent corporations are properly
part of the decedent's estate but also the private respondent corporations themselves. To rivet such
flimsy contention, petitioner cited that the late Pastor Y. Lim during his lifetime, organized and wholly-
owned the five corporations, which are the private respondents in the instant case.25 Petitioner thus
attached as Annexes "F"26 and "G"27 of the petition for review affidavits executed by Teresa Lim and Lani
Wenceslao which among others, contained averments that the incorporators of Uniwide Distributing,
Inc. included on the list had no actual and participation in the organization and incorporation of the said
corporation. The affiants added that the persons whose names appeared on the articles of incorporation
of Uniwide Distributing, Inc., as incorporators thereof, are mere dummies since they have not actually
contributed any amount to the capital stock of the corporation and have been merely asked by the late
Pastor Y. Lim to affix their respective signatures thereon.

It is settled that a corporation is clothed with personality separate and distinct from that of the persons
composing it. It may not generally be held liable for that of the persons composing it. It may not be held
liable for the personal indebtedness of its stockholders or those of the entities connected with it.28

Rudimentary is the rule that a corporation is invested by law with a personality distinct and separate
from its stockholders or members. In the same vein, a corporation by legal fiction and convenience is an
entity shielded by a protective mantle and imbued by law with a character alien to the persons
comprising it.

Nonetheless, the shield is not at all times invincible. Thus, in FIRST PHILIPPINE INTERNATIONAL BANK
vs. COURT OF APPEALS29 , We enunciated:

. . . When the fiction is urged as a means of perpetrating a fraud or an illegal act or as a vehicle
for the evasion of an existing obligation, the circumvention of statutes, the achievement or
perfection of a monopoly or generally the perpetration of knavery or crime, the veil with which
the law covers and isolates the corporation from the members or stockholders who compose it
will be lifted to allow for its consideration merely as an aggregation of individuals. . . .

Piercing the veil of corporate entity requires the court to see through the protective shroud which
exempts its stockholders from liabilities that ordinarily, they could be subject to, or distinguishes one
corporation from a seemingly separate one, were it not for the existing corporate fiction.30

The corporate mask may be lifted and the corporate veil may be pierced when a corporation is just but
the alter ego of a person or of another corporation. Where badges of fraud exist, where public
convenience is defeated; where a wrong is sought to be justified thereby, the corporate fiction or the
notion of legal entity should come to naught.31

Further, the test in determining the applicability of the doctrine of piercing the veil of corporate fiction is
as follows: 1) Control, not mere majority or complete stock control, but complete domination, not only
 of finances but of policy and business practice in respect to the transaction attacked so that the
corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2)
Such control must have been used by the defendant to commit fraud or wrong, to perpetuate the
violation of a statutory or other positive legal duty, or dishonest and unjust act in contravention of
plaintiffs legal right; and (3) The aforesaid control and breach of duty must proximately cause the injury
or unjust loss complained of. The absence of any of these elements prevent "piercing the corporate
veil".32

Mere ownership by a single stockholder or by another corporation of all or nearly all of the capital stock
of a corporation is not of itself a sufficient reason for disregarding the fiction of separate corporate
personalities.33

Moreover, to disregard the separate juridical personality of a corporation, the wrong-doing must be
clearly and convincingly established. It cannot be presumed.34

Granting arguendo that the Regional Trial Court in this case was not merely acting in a limited capacity
as a probate court, petitioner nonetheless failed to adduce competent evidence that would have
justified the court to impale the veil of corporate fiction. Truly, the reliance reposed by petitioner on the
affidavits executed by Teresa Lim and Lani Wenceslao is unavailing considering that the aforementioned
documents possess no weighty probative value pursuant to the hearsay rule. Besides it is imperative for
us to stress that such affidavits are inadmissible in evidence inasmuch as the affiants were not at all
presented during the course of the proceedings in the lower court. To put it differently, for this Court to
uphold the admissibility of said documents would be to relegate from Our duty to apply such basic rule
of evidence in a manner consistent with the law and jurisprudence.

Our pronouncement in PEOPLE BANK AND TRUST COMPANY vs. LEONIDAS35 finds pertinence:

Affidavits are classified as hearsay evidence since they are not generally prepared by the affiant
but by another who uses his own language in writing the affiant's statements, which may thus
be either omitted or misunderstood by the one writing them. Moreover, the adverse party is
deprived of the opportunity to cross-examine the affiants. For this reason, affidavits are
generally rejected for being hearsay, unless the affiant themselves are placed on the witness
stand to testify thereon.

As to the order36 of the lower court, dated 15 September 1995, the Court of Appeals correctly observed
that the Regional Trial Court, Branch 93 acted without jurisdiction in issuing said order; The probate
court had no authority to demand the production of bank accounts in the name of the private
respondent corporations.

WHEREFORE, in view of the foregoing disquisitions, the instant petition is hereby DISMISSED for lack of
merit and the decision of the Court of Appeals which nullified and set aside the orders issued by the
Regional Trial Court, Branch 93, acting as a probate court, dated 04 July 1995 and 12 September 1995 is
AFFIRMED.1âwphi1.nêt

SO ORDERED.

EXCLUSIVE JURISDICTION

REPUBLIC V. VILLARAMA
On 7 June 1993, petitioner sent a notice4 of Commencement of Probate Proceedings in Philippine Court
to the United States (U.S.) District Court of Hawaii, where a class action5 docketed as MDL No. 840 was
previously filed against former President Marcos.6 The action sought damages against the latter for
human rights violations he allegedly committed during his authoritarian rule.

After establishing the jurisdictional facts and concluding its presentation of evidence in the probate
court, petitioner filed an Urgent Motion for Appointment of Special Administrator/s7 citing the following
grounds in support thereof:

(1) The probate court has failed to appoint an administrator of the estate since
the filing of the petition.

(2) The US District Court of Hawaii awarded in favor of the claimants the amount
of US$1.2 Billion as exemplary damages against the estate of Ferdinand E.
Marcos.

(3) In its order of 19 November 1991 the said court granted a preliminary
injunction against the estate to prevent any transfer, encumbrance, conversion,
or disposition of the funds and assets of the estate.

(4) On the premise that no probate proceeding was pending anywhere, said
Court modified on 16 November 1992 its preliminary injunction to include
certain Swiss Banks.

(5) In July 1994, the plaintiffs in MDL No. 840 filed with the Hawaii District Court
a motion to further modify the preliminary injunction "to identify the Republic
of the Philippines as agent, representative, aide, and abettor of the defendant
Estate," notice of which was received by the Office of the Solicitor General on 25
July 1994.

(6) There was a need to preserve the estate, considering that it was the subject
of protracted litigation both here and abroad. Petitioner nominated
Commissioner of Internal Revenue Liwayway Vinzons-Chato as administrator of
the estate.

Ferdinand R. Marcos II opposed the motion claiming that the Commissioner of Internal Revenue was not
a suitable person to act as administrator of the estate.

In its Orders 8 of 9 September 1994, the probate court, per public respondent Judge Villarama, granted
the motion and appointed Commissioner Liwayway Vinzons-Chato as Special Administrator of the estate
of Ferdinand E. Marcos. Citing Section 1 of Rule 73 of the Rules of Court, the order also declared that
upon the filing of the petition for probate of the will, the probate court acquired jurisdiction over the
estate to the exclusion of all other courts; and that the U.S. District Court of Hawaii "cannot assert its
jurisdiction over the assets of the estate and exclude the jurisdiction already vested in [the probate
court]." He directed that a copy of the order be furnished the U.S. District Court of Hawaii through the
Department of Foreign Affairs.

On 24 October 1994, petitioner filed in the probate court a Petition for the Issuance of a Writ of
Preliminary Injunction with Urgent Ex-Parte Motion for a Temporary Restraining Order.9 It alleged that
in the class action the U.S. District Court of Hawaii issued sometime in October 1994 a Reference
Order10 appointing special masters for the purpose of obtaining depositions in the Philippines on the
following matters: (1) whether the victims identified in the claim forms suffered torture, summary
execution, or disappearance; and (2) the extent of damages sustained. The Reference Order prescribed
the procedure, including the availment of local court reporters and interpreters as might be required.
Petitioner asserted that the Reference Order impinged on the exclusive jurisdiction of the probate court
and disregarded the claim of the Philippine government against the Marcos estate. It also contended
that the claim against the estate should be filed before the probate court and that the Philippine
government should be accorded first preference in the priority list of the estate's creditors.

On 25 October 1994, respondent Judge Villarama issued a temporary restraining order11 against the
special masters and persons acting in their stead, and set for hearing the petition for the preliminary
injunction. The sheriff's
12
return indicated that service of the order was attempted upon the resident manager of New World
Hotel, Makati City, where Mr. Swift and the other "special masters" were billeted. However, the sheriff
was referred to the guest services manager, who refused to accept a copy of the order.

Before the hearing on the preliminary injunction could take place, petitioner filed an urgent ex-
parte motion13 to cite herein private respondents, Mr. Robert Swift, Atty. Rodrigo Domingo, and other
"concerned" persons in contempt of court based on media reports that they vowed to continue the
taking of depositions notwithstanding the issuance of a temporary restraining order. Petitioner also
questioned the legal practice in the Philippines of Mr. Swift, an American counsel who had no special
work permit and license to practice.

On 28 October 1994, respondent Judge Villarama issued an order14 directing private respondents to
comment on petitioner's motion and to show cause why they should not be cited for contempt. The
sheriff's return15 confirmed that the order was served upon Mr. Swift through the senior guest services
officer of the New World Hotel, Makati City, and personally upon Atty. Domingo at his office.

In the meantime, the Movement of Attorneys for Brotherhood, Integrity and Nationalism, Inc., (MABINI)
filed in SP Proc. No. 10279 a petition for leave to intervene as amicus curiae and pro se ex abundanti
cautela.16 It noted the hostile, if not indifferent, attitude the Philippine government continued to display
towards its citizens whose human rights were violated; and just when the victims had been vindicated
by the ruling of the U.S. Court District of Hawaii, it was the Philippine government which would serve as
an obstruction to their attainment of justice by suppressing their freedom to express the ordeal they
had suffered. MABINI underscored that the taking of the depositions was a compassionate remedy
granted to the Filipino victims, who were spared the burden of testifying in a foreign court.

Likewise, the Samahan ng Mga Ex-Detainees Laban sa Detensyon at Para sa Amnestiya (SELDA), a human
rights non-government organization, filed its special appearance with motion to dissolve the temporary
restraining order and to deny writ of preliminary injunction.17

In his Opposition18 Atty. Domingo asserted that the real motive of petitioner was to prevent the human
rights victims from recovering what was due them and that it forgot or conveniently chose not to
remember that in February 1987, it asked the U.S. Court of Appeals for the Ninth Circuit to allow the
human rights suits against Marcos to proceed to trial. He also contended that the motion for issuance of
a writ of preliminary injunction was grossly insufficient both in form and substance, since it was not
verified and was deficient and baseless.; and that petitioner's reliance on Section 1, Rule 73 of the Rules
of Court is misplaced. The words "exclusive jurisdiction" found therein should be limited to proceedings
concerning the probate of the will and settlement of the estate of the decedent and should not include
other litigation for or against the estate. He argued that MDL No. 840 is an action for recovery of
damages arising out of the late President's tortuous violation of international law. The action is totally
unrelated to the probate proceedings. He reasoned that the probate court is of limited jurisdiction and
that it can only exercise jurisdiction over the property of the estate in the Philippines. Moreover, the
probate court failed to acquire jurisdiction over the special masters, since they were never properly
summoned.

Anent petitioner's motion to cite them in contempt of court, Atty. Domingo alleged that said motion,
which was litigious in nature, was a useless scrap of paper for lack of the three-day notice for hearing.
Besides, the temporary restraining order could not be directed to him because he was neither a special
master nor a representative thereof. He was a lawyer for the human rights claimants.

In his pleading19 Mr. Swift joined Atty. Domingo in the latter's opposition and further alleged that the
petition for preliminary injunction became moot and academic, as the special masters voluntarily left
the country on 26 October 1994, without having been served a copy of the temporary restraining order.
He also raised the settled principle of comity, which required the probate court to avoid interference in
the conduct of judicial proceedings in a foreign country; warned that petitioner was courting danger in
encouraging the probate court to collaterally attack the jurisdiction of the U.S. District Court of Hawaii in
violation of said principle; and claimed that the temporary restraining order could not be directed to
him, since he was neither a special master nor a representative thereof but a counsel of the human
rights victims.

On 2 November 1994, public respondent Judge Villarama issued the assailed Order20 lifting the 25
October 1995 Temporary Restraining Order and denying the motion for the issuance of a writ of
preliminary injunction on the ground that petitioner has failed to show by convincing proof the
existence of a clear and positive right which should be protected. The said order also denied, on equity
considerations, the motion to cite private respondents in contempt of court.

Petitioner no longer sought a reconsideration of the Order for the following reasons: (a) such motion
would serve no useful purpose because it would raise the same points stated in the rejected motions;
(b) the error committed by respondent Judge was grave and patent as to make the questioned order
void; (c) the relief sought in this petition is extremely urgent because the Special Masters or the persons
acting in their stead were taking the depositions in furtherance and in implementation of the foreign
court's directive; and (d) the issue raised is purely a question of law.21

Instead, petitioner filed the instant petition for certiorari alleging that the trial court committed grave
abuse of discretion in failing to consider that the issuance and implementation of the reference order of
the Hawaii court violated the sovereignty of the Philippines and impinged on the exclusive jurisdiction of
the probate court.

In support thereof, petitioner invokes Section 1 of Rule 73 of the Rules of Court, which provides in part
as follows:

Sec. 1. Where estate of deceased person settled. . . . The court first taking cognizance of the
settlement of the estate of the decedent shall exercise jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the
decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except
in an appeal from that court, in the original case, or when the want of jurisdiction appears on
the record.

It raises a contradiction in public respondent Judge Villarama's actuation in that in his Order of 9
September 1994 he declared that the U.S. District Court of Hawaii could not assert its jurisdiction over
the assets of the estate and exclude the jurisdiction vested in the probate court. Said respondent was
aware that the purpose of the reference order was to determine the amount of compensatory damages
to be charged against the estate; however, he chose to ignore that it is the probate court which
exercises exclusive jurisdiction over the estate. He cannot, therefore, claim that petitioner failed to
prove "a clear and positive right which should be protected."

Anent the issue of contempt, petitioner argues that the following documentary evidence presented
before the probate court proved that Messrs. Swift and Domingo and other concerned persons defied
the probate court's temporary restraining order: (1) Special Master Order No. 4 issued by the
Supervising Special Master, which confirmed notice of the probate court's temporary restraining order;
and (2) letters22 of Mr. Swift to Mr. James Linn, American counsel of Mrs. Marcos (a) indicating that the
plaintiffs in MDL No. 840 would proceed with the taking of the depositions on 27 October 1994 at the
office of Atty. Domingo and the New World Hotel, (b) giving notice that the would take the depositions
of some class members on 28 October 1994, and (c) notifying the continuation of his taking of the
depositions on 29 October 1994. These notwithstanding, respondent Judge denied petitioner's motion
to cite Messrs. Swift and Domingo and other concerned persons in contempt of court due to equity
considerations. The denial was tainted with grave abuse of discretion.

In his comment filed on his behalf and as counsel for the other private respondents, Atty. Domingo
argues that the petition is moot and academic and without merit. The act primarily sought to be
restrained, which was the taking of the depositions, was accomplished as of 27 November 1994; and the
transcripts had been submitted to the U.S. District Court of Hawaii. Furthermore, the probate court had
no jurisdiction to adjudicate matters which had no reference or bearing to the probate, such as MDL No.
840. Besides, there was no law which prohibited the taking of depositions in the Philippines for
evidentiary use in a pending case abroad. The estate of Ferdinand E. Marcos even financed the taking of
the depositions. Lastly, Atty. Domingo reiterated that he could not be cited for contempt for not having
been served a copy of the temporary restraining order.

Mrs. Marcos subsequently filed a motion for leave to intervene and to admit its petition in intervention,
citing that petitioner failed to defend the interest of the estate of her late husband. She claims that the
proceeding undertaken by the special masters by virtue of the reference order was a continuation of the
trial of MDL No. 840, considering that (1) a reference is the trial and determination of questions arising
in litigation by a person appointed for that purpose by the court wherein the case is pending;23 (2) a
special master is an officer of the appointing court; and (3) the applicable law pertaining to a reference
and a master is Section 53 of the U.S. Rules of Civil Procedure for the District Courts. Public respondent
Judge then erred in considering the proceeding as one for deposition as a mode of discovery.
Accordingly, in denying the petition for injunction he abdicated the jurisdiction of the probate court in
favor of the U.S. District Court of Hawaii; he even made a turn-about since earlier, in his 9 September
1994 Order, he ruled that the Hawaii Court could not assert jurisdiction over the Marcos assets.

In a Comment submitted on 5 September 1995 in compliance with our resolution, petitioner offered no
objection to the intervention of Mrs. Marcos.

On 4 December 1995, we required the parties to submit their respective memoranda on why this
petition should not be dismissed for having become moot and academic considering that the taking of
the depositions by the special masters appointed pursuant to the Reference Order issued by the District
Court of Hawaii had been completed on 27 November 1994.

Petitioner filed its Memorandum urging us to decide this case on the merits even if the act to be
enjoined had already been consummated in view of the transcendental importance of the issues
involved: "sovereignty of the Philippines and the exclusive jurisdiction of the probate court of the
Philippines." There is a "compelling need to seek an incisive ruling from the highest tribunal of the land
to uphold the exclusive jurisdiction of the probate court and to protect this nation's sovereignty from
foreign transgressions and preserve the same as supreme and inviolable." To buttress its plea, it
cites Salonga v. Cruz Pano24 where we resolved the case on its merits even if the issue raised had
become moot and academic.

Private respondents in their memorandum, reiterate that the petition for the issuance of a writ of
preliminary injunction lacked the verification required under Section 4, Rule 58 of the Rules of Court.
They likewise submit that aside from the undisputed fact that the act sought to be enjoined had already
been completed, the judgment in MDL No. 840 became final on 27 January 1995 and that the estate of
Ferdinand E. Marcos was adjudged to pay close to US$2 billion in damages.

We dismiss the petition not only on the ground of mootness which, generally, would justify
dismissal.25 We dismiss it also for lack of merit.

It is settled that where the ground invoked in a special civil action for certiorari under Rule 65 of the
Rules of Court is abuse of discretion — as in this case — the abuse must be grave as where the power is
exercised in an arbitrary or despotic manner by reason of passion or personal hostility; or, it must be so
patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law.26This remedy then is extraordinary, and its use is
restricted to truly extraordinary cases.27

The pleadings of the parties in this case and the record of SP. Proc. No. 10279 fail to show that
respondent Judge Villarama had, as charged by petitioner, committed grave abuse of discretion in
denying the petition for a writ of preliminary injunction against the special masters.

In the first place, the petition for a writ of preliminary injunction was not verified. Section 4 of Rule 58 of
the Rules of Court is very explicit in its requirement that a preliminary injunction may be granted only
when the complaint is verified. Absence of verification makes an application or petition for preliminary
injunction patently insufficient both in form and substance.28

In the second place, even if we disregard the requirement of verification or consider the adverse parties
in estoppel from raising the issue when they allowed the petitioner to present evidence on the petition,
we find that respondent Judge Villarama committed no error in holding that petitioner failed to prove
that it had a clear and positive right to be protected.

Section 3, Rule 58 of the Rules of Court enumerates the grounds for the issuance of a preliminary
injunction:

(a) That the plaintiff is entitled to the relief demanded, and the whole or part of such relief
consists in restraining the commission or continuance of the acts complained of, or in the
performance of an act or acts, either for a limited period or perpetually;

(b) That the commission or continuance of some act complained of during the litigation or the
non-performance thereof would probably work injustice to the plaintiff; or

(c) That the defendant is doing, threatens, or is about to do, or is procuring or suffering to be
done, some act probably in violation of the plaintiffs rights respecting the subject of the action,
and tending to render the judgment ineffectual.

Under this rule, a clear and positive right especially calling for judicial protection must be shown.
Injunction is not a remedy to protect or enforce contingent, abstract, or future rights; it will not issue to
protect a right not in esse and which may never arise, or to restrain an act which does not give rise to a
cause of action. There must exist an actual right.29

We fail to comprehend what clear and positive right petitioner has which may be violated by the
issuance and implementation of the Reference Order by the District Court of Hawaii. Petitioner seeks to
establish such a "right" by claiming that since the probate court was the first to take cognizance of the
settlement of the Marcos estate then pursuant to Section 1 of Rule 73 of the Rules of Court, it exercises
jurisdiction thereon to the exclusion of all other courts; and that, accordingly, the District Court of
Hawaii cannot assert jurisdiction over the assets of said estate. The argument is like a loose cannon ball
— way off its target.

For one, petitioner is unable to distinguish between the exclusive "right" on jurisdiction of the probate
court and the right contemplated by the law on injunction. For another, Section 1 of Rule 73 refers to
courts in the Philippines and simply means that once a special proceeding for the settlement of the
estate of a decedent is filed in one of such courts, that court has exclusive jurisdiction over said estate
and no other special proceedings involving the same subject matter may be filed before any other court.
Since foreign courts are not contemplated in Section 1, in no way then can it be validly maintained that
the District Court of Hawaii has encroached upon, or "impinged on," the jurisdiction of the probate court
by the issuance of the Reference Order. The Reference Order cannot be construed as concerning or
affecting the Marcos estate within the exclusive jurisdiction of the probate court. The duties of the
special masters as defined in the Reference Order were "to prepare written findings for submission to
the jury regarding (a) whether the victims identified in the claim forms suffered torture, summary
execution or disappearance, and (b) the extent of the damages sustained." No extravagant imagination
can lead us to a conclusion that such duties do not involve any issue cognizable by the probate court.

Neither is there merit to the claim that the issuance and implementation of the Reference Order
violated the sovereignty of the Philippines.

It is noteworthy that petitioner was aware of the pendency of MDL No. 840 of the District Court of
Hawaii. In fact, it did not oppose the action; on the contrary, it urged the U.S. Court of Appeals for the
Ninth District to allow the trial of the human rights litigation against the former strongman. Petitioner
even exhorted the human rights victims to pursue the justice which has eluded them for many years. In
its Amicus Curiae Brief30 filed before the U.S. District Court of Hawaii, petitioner declared:

The government of the Republic of the Philippines support of their claims. Because the
international law principles are clear and agreed upon by all nations, this judicial action does not
have the capacity of disrupting foreign relations between the concerned countries. The
Government of the Republic of the Philippines can state without hesitation or reservation that
its foreign relations with the United States will notbe adversely affected if these human rights
claims against Ferdinand Marcos are heard in U.S. courts; and, in fact, relations may well be
improved if Filipino citizens see that justice is available in U.S. courts. The Philippine
Government has previously expressed its deep concern to the U.S. Government about the need
for a just solution to the present suits against ex-President Marcos. See Opinion No. 34, s. 1986,
Ministry of Justice, Republic of the Philippines, dated April 23, 1986, attached hereto as Exhibit
A. The Philippine Government now respectfully requests this Honorable Court to allow the
present suits to proceed to trial.

As regards the denial of the motion to cite Messrs. Swift and Domingo in contempt of court, we rule that
the same was not tainted with grave abuse of discretion. It must be recalled that they were not served a
copy of the temporary restraining order which they allegedly defied.
 WHEREFORE, the petition is hereby DISMISSED and the Order of 2 November 1992 of the Regional Trial
Court, Branch 156, Pasig City, is AFFIRMED in toto.

SO ORDERED.

MUSA V. MOSON

Questions of jurisdiction of the Shari'a District Court, and of venue, in an intestate proceeding are herein
raised.

Involved is the intestate estate of the late Jamiri Musa, a Muslim, who passed away on 31 December
1987. He had six (6) wives, three (3) of whom he later divorced, and twenty three (23) children. He had
extensive real and personal properties located in the provinces of Maguindanao, Davao del Sur and
Davao Oriental. Petitioners, Hadji WAHIDA Musa and Hadji SALMA Musa, are among those he divorced,
while private respondent Hadji Jalai a ABDURAHIM is one of the three (3) surviving widows, RIZAL Musa
and BASSER Musa are two (2) of his sons.

On 7 July 1989, Respondent ABDURAHIM filed a "Joint Petition for the Administration and Settlement of
the Inestate Estate of the Late Jamiri Musa and Liquidation of Conjugal Partnership," before the Shari'a
District Court, Fifth Sharia's District, with station at Cotabato City (SDC Spec. Proceedings No. 89-19) (the
Intestate Case). That Court embraces the province of Maguindanao within its jurisdiction but not the
provinces of Davao del Sur and Oriental.

The Petition averred that the decedent Jamiri Musa a resident of Linao, Upi, Maguindanao, left various
properties located in the provinces of Maguindanao (184 hectares), Davao del Sur (61 hectares), and
Davao Oriental (207 hectares). Aside from the settlement of the vast estate, also prayed for was the
liquidation of the conjugal partnership assets of the decedent and ABDURAHIM and the segregation and
turn-over to the latter of her one-half (1/2) share.

Appearing as oppositors were: Petitioners WAHIDA and SALMA, the divorced wives, who also claim to
be widows of the deceased: RIZAL, Putih Musa, and Erum Musa, children of WAHIDA with the decedent;
and BASSER, another son. They alleged that venues was improperly said and that the properties of the
decedent located outside Aguinaldo were beyond the jurisdiction of the Shari'a District. Court, Fifth
Shari'a District.

Finding the Joint Petition to be sufficient in form and substance, Respondent Judge issued the Order of
Publication on 1 July 1989 and initially set the case for hearing on 18 September 1989.

All interested parties were duly represented during the hearing on said date where petitioners, through
counsel, manifested their desire to have the case amicably settled, Respondent Judo "in the interest of
peace and harmony among the heirs of the deceased Jamiri Musa," appointed the following as Special
Administrators: ABDURAHIM, for all properties situated in Maguindanao; RIZAL. for all properties
situated in Davao Oriental; and BASSER. for all properties situated in Davao del Sul.

However, on 4 October 1989, ABDURAHIM, in her manifestation and Motion to Cite for Contempt,"
accused BASSER, among others, of having allegedly fired upon the house of her son in-law in
Maguindanao on 21 September 1989.

Whereupon, on 13 October 1989, an "Opposition to Petition for Administration and Liquidation of

Conjugal Partnership" was filed by Petitioners, alleging that ABDURAHIM was never legally married to
the decedent and, as such, there was "nothing to support her claim" of having had a conjugal
partnership with the latter; and that venue was improperly laid. Petitioners also asked that RIZAL be
issued Letters of Administration instead.

In her Reply, filed on 25 October 1989, ABDURAHIM averred that, her marriage to the decedent was
admitted by the latter in various Deeds of Sale he had signed, which were presented as documentary
evidence. Since there was no amicable settlement reached, hearings on the Joint Petition were
conducted, commencing on 27 December 1989.

On 16 May 1990, Respondent Judge, issued an Order appointing ABDURAHIM as Regular Administratrix
upon the finding that she was legally married to the decedent. Petitioners moved for reconsideration.

In the interim, Respondent Judge issued an Amended Order, dated 4 June 1990, incorporating the
testimonies of the two (2) other witnesses presented by Petitioners, which were omitted in the Order,
dated 16 May 1990. Otherwise, the appointment of ABDURAHIM as Regular Administratrix was
maintained.

On 10 August 1990, Petitioners filed a "Motion for Reconsideration With Motion to Dismiss," raising
once again, mainly the questions of venue and of jurisdiction of the respondent Court over the real
properties of the decedent situated in the provinces of Davao del Sur and Davao Oriental.

Respondent Judge denied both Motions and upheld the Court's jurisdiction in his Order, dated 22
August 1990. Hence, the elevation of the instant Petition for Prohibition before this Court seeking to
enjoin respondent Judge Corocoy D. Moson, presiding over the Shari'a District Court, Fifth Shari'a
District, from further taking action on the "Joint Petition ."

Petitioners take the position that Respondent Judge should have dismissed the Intestate Case for lack of
jurisdiction and for improper venue. Private respondent maintains the contrary.

We rule against Petitioners.

Pres. Decree No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines,
explicitly provides that exclusive original jurisdiction, in matters of settlement of the estate of deceased
Muslims, belong to Shari'a District Courts. Thus:

Art. 143. Original Jurisdiction.—The Shari'a District Court shall have exclusive original
jurisdiction over:

xxx xxx xxx

(b) All cases involving disposition, distribution and settlement of the estate of deceased
Muslims, probate of wills, issuance of letters of administration or appointment of administrators
or executors regardless of the nature or the aggregate value of the property. (Chapter 1, Title I,
Book IV, par. (b), (Emphasis supplied).

Since the disposition, distribution and settlement of the estate of a deceased Muslim is, in fact, involved
herein, the Joint Petition was correctly filed before the Shari'a District Court, Fifth Shari'a District.

In invoking improper venue, however, petitioners call attention to the Rules of Court mandating that:

Sec. 1. Where estate of deceased persons settled.—If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or
 letters of administration granted, and his estate settled, in the Court of First Instance in the
province in which he resides at the time of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of any province 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 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. (Rule 73). (Emphasis supplied).

It is then claimed that since the residence of the decedent at the time of his death was actually in Davao
City, not Maguindanao, as averred by ABDUHARIM, the proceeding is beyond the jurisdiction of the
Shari'a District Court, Fifth Shari'a District, and that venue is more properly laid in Davao City before the
Regional Trial Court since there are no Shari'a District Courts therein.

At this juncture, it should be recalled that the residence of the deceased in an estate proceeding is not
an element of jurisdiction over the subject matter but merely of venue. The law of jurisdiction confers
upon Courts of First Instance (now Regional Trial Courts) jurisdiction over all probate cases
independently of the place of residence of the deceased (In the matter of the intestate estate of Kaw
Singco, 74 Phil. 239 [1943]).

To all appearances, the decedent was a resident of both Linao, Upi, Maguindanao, and Davao City. In
fact, in various Deeds of Sale presented as evidence by the parties, the decedent alternately stated his
place of residence as either Linao, Upi,Maguindanao which is the residence of ABDURAHIM, or Davao
City, where Petitioners reside. As this Court held in Uytengsu v. Republic, 95 Phil. 890 (1954), "a man can
have but one domicile for one and the same purpose at any time, but he may have numerous places of
residence." Venue, therefore, ordinarily could be at either place of the decedent's residence, i.e.,
Maguindanao or Davao City, but for the provisions of the Muslim Code vesting exclusive original
jurisdiction, in matters of disposition and settlement of estates of deceased Muslims, in Shari'a District
Courts (supra).

But petitioners also contend that the Shari'a District Court, Fifth Shari'a District, presided over by
respondent Judge, has no territorial jurisdiction over properties of the decedent situated in the
provinces of Davao del Sur and Davao Oriental, citing as statutory authority therefor the Code of Muslim
Personal Laws, which provides:

Art. 138. Shari'a judicial districts.—Five special judicial districts, each to have one Shari'a District
Court presided over by one judge, are constituted as follows:

xxx xxx xxx

(e) The Fifth Shari'a District, the Provinces of Maguindanao, North Cotabato and Sultan Kudarat,
and the City of Cotabato.

Indeed, Davao del Sur and Davao Oriental are not comprised within the Fifth Shari'a District.1âwphi1 In
fact, those provinces are outside the Autonomous Region in Muslim Mindanao created by Republic Act
No. 6734, its Organic Act. But as stated in that law, "the Shari'a District Court and the Shari'a Circuit
Courts created under existing laws shall continue to function as provided therein." (Art. IX, Sec. 13).

Additionally, the same Organic Act explicitly provides;

 (4) Except in cases of successional rights, the regular courts shall acquire jurisdiction over
controversies involving real property outside the area of autonomy. (Art. IX, Section 17[4]).
(Emphasis supplied)

Since the subject intestate proceeding concerns successional rights, coupled with the fact that the
decedent was also a resident of Linao, Upi, Maguindanao, owning real estate property located in that
province, venue has been properly laid with the Shari'a District Court, Fifth Shari'a District, winch is
vested with territorial jurisdiction over Maguindanao, notwithstanding the location in different
provinces of the other real proper- ties of the decedent.

A contrary ruling would only result in multiplicity of suits, to the detriment of the expeditious settlement
of estate proceedings (See Ngo Bun Tiong v. Sayo, 30 June 1988,163 SCRA 237 [1988]). Besides, the
judgment that may be rendered by the Shari'a District Court, Fifth Shari'a District, may be executed in
other provinces where the rest of the real estate is situated.

When an action covers various parcels of land situated in different provinces, venue may be laid
in the Court of First Instance of any of said provinces, and the judgment rendered therein may
be executed in other provinces where the rest of the real estate is situated (National Bank v.
Barreto, 52 Phil. 818 [1929]; Monte Piedad v. Rodrigo, 56 Phil. 310 [1931]; El Hogar Filipino v.
Seva ,57 Phil. 573 [L-1932]; Bank of P.I. v. Green, 57 Phil. 712 [1932]).

The Rules of Court likewise provide that the Court first taking cognizance of the settlement of the estate
of a decedent, shall exercise jurisdiction to the exclusion of all other Courts(Rule 73, sec. 1). There
should be no impediment to the application of said Rules as they apply suppletorily to the Code of
Muslim Personal Laws, there being nothing inconsistent with the provisions of the latter statute (Article
187 of said Code).

And while Rule 73 provides that "the jurisdiction assumed by a court, so far as it depends on the place of
residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding
except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the
record," we have taken cognizance of this Petition for Prohibition considering that the jurisdiction of a
Shari'a District Court, a relatively new Court in our judicial system, has been challenged.

WHEREFORE, this Petition for Prohibition is DENIED, and the case hereby REMANDED to the Shari'a
District Court, Fifth Shari'a District, for continuation of the intestate proceedings. No costs.

SO ORDERED.

VENUE: RESIDENCE V. DOMICILE

FULE V. CA

These two interrelated cases bring to Us the question of what the word "resides" in Section 1, Rule 73 of
the Revised Rules Of Court, referring to the situs of the settlement of the estate of deceased persons,
means. Additionally, the rule in the appointment of a special administrator is sought to be reviewed.

On May 2, 1973, Virginia G. Fule filed with the Court of First Instance of Laguna, at Calamba, presided
over by Judge Severo A. Malvar, a petition for letters of administration, docketed as Sp. Proc. No. 27-C,
alleging, inter alia, "that on April 26, 1973, Amado G. Garcia, a property owner of Calamba, Laguna, died
intestate in the City of Manila, leaving real estate and personal properties in Calamba, Laguna, and in
other places, within the jurisdiction of the Honorable Court." At the same time, she moved
ex parte for her appointment as special administratrix over the estate. On even date, May 2, 1973, Judge
Malvar granted the motion.

A motion for reconsideration was filed by Preciosa B. Garcia on May 8, 1973, contending that the order
appointing Virginia G. Fule as special administratrix was issued without jurisdiction, since no notice of
the petition for letters of administration has been served upon all persons interested in the estate; there
has been no delay or cause for delay in the proceedings for the appointment of a regular administrator
as the surviving spouse of Amado G. Garcia, she should be preferred in the appointment of a special
administratrix; and, Virginia G. Fule is a debtor of the estate of Amado G. Garcia. Preciosa B. Garcia,
therefore, prayed that she be appointed special administratrix of the estate, in lieu of Virginia G. Fule,
and as regular administratrix after due hearing.

While this reconsideration motion was pending resolution before the Court, Preciosa B. Garcia filed on
May 29, 1973 a motion to remove Virginia G. Fule as special administratrix alleging, besides the
jurisdictional ground raised in the motion for reconsideration of May 8, 1973 that her appointment was
obtained through erroneous, misleading and/or incomplete misrepresentations; that Virginia G. Fule has
adverse interest against the estate; and that she has shown herself unsuitable as administratrix and as
officer of the court.

In the meantime, the notice of hearing of the petition for letters of administration filed by Virginia G.
Fule with the Court of First Instance of Calamba, Laguna, was published on May 17, 24, and 31, 1973, in
the Bayanihan, a weekly publication of general circulation in Southern Luzon.

On June 6, 1973, Preciosa B. Garcia received a "Supplemental Petition for the Appointment of Regular
Administrator ' filed by Virginia G. Fule. This supplemental petition modified the original petition in four
aspects: (1) the allegation that during the lifetime of the deceased Amado G. Garcia, he was elected as
Constitutional Delegate for the First District of Laguna and his last place of residence was at Calamba,
Laguna; (2) the deletion of the names of Preciosa B. Garcia and Agustina Garcia as legal heirs of Amado
G. Garcia; (3) the allegation that Carolina Carpio, who was simply listed as heir in the original petition, is
the surviving spouse of Amado G. Garcia and that she has expressly renounced her preferential right to
the administration of the estate in favor of Virginia G. Fule; and (4) that Virginia G. Fule be appointed as
the regular administratrix. The admission of this supplemental petition was opposed by Preciosa B.
Garcia for the reason, among others, that it attempts to confer jurisdiction on the Court of First Instance
of Laguna, of which the court was not possessed at the beginning because the original petition was
deficient.

On July 19, 1973, Preciosa B. Garcia filed an opposition to the original and supplemental petitions for
letters of administration, raising the issues of jurisdiction, venue, lack of interest of Virginia G. Fule in the
estate of Amado G. Garcia, and disqualification of Virginia G Fule as special administratrix.

An omnibus motion was filed by Virginia G. Fule on August 20, 1973, praying for authority to take
possession of properties of the decedent allegedly in the hands of third persons as well as to secure cash
advances from the Calamba Sugar Planters Cooperative Marketing Association, Inc. Preciosa B. Garcia
opposed the motion, calling attention to the limitation made by Judge Malvar on the power of the
special administratrix, viz., "to making an inventory of the personal and real properties making up the
state of the deceased."

However, by July 2, 1973, Judge Malvar and already issued an order, received by Preciosa B. Garcia only
on July 31, 1973, denying the motion of Preciosa B. Garcia to reconsider the order of May 2, 1973,
appointing Virginia G. Fule as special administratrix, and admitting the supplementation petition of May
18,1973.
On August 31, 1973, Preciosa B. Garcia moved to dismiss the petition, because (1) jurisdiction over the
petition or over the parties in interest has not been acquired by the court; (2) venue was improperly
laid; and (3) Virginia G. Fule is not a party in interest as she is not entitled to inherit from the deceased
Amado G. Garcia.

On September 28, 1973, Preciosa B. Garcia filed a supplemental motion to substitute Virginia G. Fule as
special administratrix, reasoning that the said Virginia G. Fule admitted before before the court that she
is a full-blooded sister of Pablo G. Alcalde, an illegitimate son of Andrea Alcalde, with whom the
deceased Amado G. Garcia has no relation.

Three motions were filed by Preciosa B. Garcia on November 14, 1973, one, to enjoin the special
administratrix from taking possession of properties in the hands of third persons which have not been
determined as belonging to Amado G. Garcia; another, to remove the special administratrix for acting
outside her authority and against the interest of the estate; and still another, filed in behalf of the minor
Agustina B. Garcia, to dismiss the petition for want of cause of action, jurisdiction, and improper venue.

On November 28, 1973, Judge Malvar resolved the pending omnibus motion of Virgina G. Fule and the
motion to dismiss filed by Preciosa B. Garcia. Resolving the motion to dismiss, Judge Malvar ruled that
the powers of the special administratrix are those provided for in Section 2, Rule 80 of the Rules of
Court, 1subject only to the previous qualification made by the court that the administration of the
properties subject of the marketing agreement with the Canlubang Sugar Planters Cooperative
Marketing Association should remain with the latter; and that the special administratrix had already
been authorized in a previous order of August 20, 1973 to take custody and possession of all papers and
certificates of title and personal effects of the decedent with the Canlubang Sugar Planters Cooperative
Marketing Association, Inc. Ramon Mercado, of the Canlubang Sugar Planters Cooperative Marketing
Association, Inc., was ordered to deliver to Preciosa B. Garcia all certificates of title in her name without
any qualifying words like "married to Amado Garcia" does not appear. Regarding the motion to dismiss,
Judge Malvar ruled that the issue of jurisdiction had already been resolved in the order of July 2, 1973,
denying Preciosa B. Garcia's motion to reconsider the appointment of Virginia G. Fule and admitting the
supplemental petition, the failure of Virginia G. Fule to allege in her original petition for letters of
administration in the place of residence of the decedent at the time of his death was cured. Judge
Malvar further held that Preciosa B. Garcia had submitted to the jurisdiction of the court and had
waived her objections thereto by praying to be appointed as special and regular administratrix of the
estate.

An omnibus motion was filed by Preciosa B. Garcia on December 27, 1973 to clarify or reconsider the
foregoing order of Judge Malvar, in view of previous court order limiting the authority of the special
administratrix to the making of an inventory. Preciosa B. Garcia also asked for the resolution of her
motion to dismiss the petitions for lack of cause of action, and also that filed in behalf of Agustina B.
Garcia. Resolution of her motions to substitute and remove the special administratrix was likewise
prayed for.

On December 19, 1973, Judge Malvar issued two separate orders, the first, denying Preciosa B. Garcia's
motions to substitute and remove the special administratrix, and the second, holding that the power
allowed the special administratrix enables her to conduct and submit an inventory of the assets of the
estate.

On January 7, 1974, Preciosa B. Garcia moved for reconsideration of the foregoing orders of November
28, 1973 and December 19, 1973, insofar as they sustained or failed to rule on the issues raised by her:
(a) legal standing (cause of action) of Virginia G. Fule; (b) venue; (c) jurisdiction; (d) appointment,
qualification and removal of special administratrix; and (e) delivery to the special administratrix of
checks and papers and effects in the office of the Calamba Sugar Planters Cooperative Marketing
Association, Inc.

On March 27, 1973, Judge Malvar issued the first questioned order denying Preciosa B. Garcia's motion
for reconsideration of January 7, 1974. On July 19, 1974, Judge Malvar issued the other three
questioned orders: one, directing Ramon Mercado, of the Calamba Sugar Planters Cooperative
Marketing Association, Inc., to furnish Virginia G. Fule, as special administratrix, copy of the statement of
accounts and final liquidation of sugar pool, as well as to deliver to her the corresponding amount due
the estate; another, directing Preciosa B. Garcia to deliver to Virginia G. Fule two motor vehicles
presumably belonging to the estate; and another, directing Ramon Mercado to deliver to the court all
certificates of title in his possession in the name of Preciosa B. Garcia, whether qualified with the word
"single" or "married to Amado Garcia."

During the hearing of the various incidents of this case (Sp. Proc. 27-C) before Judge Malvar, 2 Virginia G.
Fule presented the death certificate of Amado G. Garcia showing that his residence at the time of his
death was Quezon City. On her part, Preciosa B. Garcia presented the residence certificate of the
decedent for 1973 showing that three months before his death his residence was in Quezon City.
Virginia G. Fule also testified that Amado G. Garcia was residing in Calamba, Laguna at the time of his
death, and that he was a delegate to the 1971 Constitutional Convention for the first district of Laguna.

On July 26, 1974, Preciosa B. Garcia and Agustina B. Garcia commenced a special action for certiorari
and/or prohibition and preliminary injunction before the Court of Appeals, docketed as CA-G.R. No.
03221-SP. primarily to annul the proceedings before Judge Malvar in Sp. Proc. No. 27-C of the Court of
First Instance of Laguna, or, in the alternative, to vacate the questioned four orders of that court, viz.,
one dated March 27, 1974, denying their motion for reconsideration of the order denying their motion
to dismiss the criminal and supplemental petitions on the issue, among others, of jurisdiction, and the
three others, all dated July 19, 1974, directing the delivery of certain properties to the special
administratrix, Virginia G. Fule, and to the court.

On January 30, 1975, the Court of Appeals rendered judgment annulling the proceedings before Judge
Severo A. Malvar in Sp. Proc. 27-C of the Court of First Instance of Calamba, Laguna, for lack of
jurisdiction.

Denied of their motion for reconsideration on March 31, 1975, Virginia G. Fule forthwith elevated the
matter to Us on appeal by certiorari. The case was docketed as G.R. No. L-40502.

However, even before Virginia G. Fule could receive the decision of the Court of Appeals, Preciosa B.
Garcia had already filed on February 1, 1975 a petition for letters of administration before the Court of
First Instance of Rizal, Quezon City Branch, docketed as Sp. Proc. No. Q-19738, over the same intestate
estate of Amado G. Garcia. On February 10, 1975, Preciosa B. Garcia urgently moved for her
appointment as special administratrix of the estate. Judge Vicente G. Ericta granted the motion and
appointed Preciosa B. Garcia as special administratrix upon a bond of P30,000.00. Preciosa B. Garcia
qualified and assumed the office.

For the first time, on February 14, 1975, Preciosa B. Garcia informed Judge Ericta of the pendency of Sp.
Proc. No. 27-C before Judge Malvar of the Court of First Instance of Laguna, and the annulment of the
proceedings therein by the Court of Appeals on January 30, 1975. She manifested, however, her
willingness to withdraw Sp. Proc. Q-19738 should the decision of the Court of Appeals annulling the
proceedings before the Court of First Instance of Laguna in Sp. Proc. No. 27-C have not yet become final,
it being the subject of a motion for reconsideration.
On March 10, 1973, Judge Ericta ordered the suspension of the proceedings before his court until
Preciosa B. Garcia inform the court of the final outcome of the case pending before the Court of
Appeals. This notwithstanding, Preciosa B. Garcia filed on December 11, 1975, an "Urgent Petition for
Authority to Pay Estate Obligations."

On December 13, 1975, Virginia G. Fule filed a "Special Appearance to Question Venue and Jurisdiction"
reiterating the grounds stated in the previous special appearance of March 3, 1975, and calling attention
that the decision of the Court of Appeals and its resolution denying the motion for reconsideration had
been appealed to this Court; that the parties had already filed their respective briefs; and that the case
is still pending before the Court.

On December 17, 1975, Judge Ernani Cruz Pano, who succeeded Judge Ericta, issued an order granting
Preciosa B. Garcia's "Urgent Petition for Authority to Pay Estate Obligations" in that the payments were
for the benefit of the estate and that there hangs a cloud of doubt on the validity of the proceedings in
Sp. Proc. No. 27-C of the Court of First Instance of Laguna.

A compliance of this Order was filed by Preciosa B. Garcia on January 12,1976.

On February 4,1974, VIRGINIA G. FULE instituted G.R. No. L-42670, a petition for certiorari with
temporary restraining order, to annul the proceedings in Sp. Proc. No. Q-19738 and to restrain Judge
Ernani Cruz Paño from further acting in the case. A restraining order was issued on February 9, 1976.

We dismiss the appeal in G.R. No. L-40502 and the petition for certiorari in G.R. No. L-42670 for the
reasons and considerations hereinafter stated.

1. Section 1, Rule 73 of the Revised Rules of Court provides: "If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the Court of First Instance in the province in which he
resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance
of any province 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." With particular regard to letters of
administration, Section 2, Rule 79 of the Revised Rules of Court demands that the petition therefor
should affirmatively show the existence of jurisdiction to make the appointment sought, and should
allege all the necessary facts, such as death, the name and last residence of the decedent, the existence,
and situs if need be, of assets, intestacy, where this is relied upon, and the right of the person who seeks
administration, as next of kin, creditor, or otherwise, to be appointed. The fact of death of the intestate
and his last residence within the country are foundation facts upon which all subsequent proceedings in
the administration of the estate rest, and that if the intestate was not an inhabitant of the state at the
time of his death, and left no assets in the state, no jurisdiction is conferred on the court to grant letters
of administration. 3

The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far as it
depends on the place of residence of the decedent, or of the location of the estate," is in reality a
matter of venue, as the caption of the Rule indicates: "Settlement of Estate of Deceased
Persons. Venue and Processes. 4 It could not have been intended to define the jurisdiction over the
subject matter, because such legal provision is contained in a law of procedure dealing merely with
procedural matters. Procedure is one thing; jurisdiction over the subject matter is another. The power
or authority of the court over the subject matter "existed and was fixed before procedure in a given
cause began." That power or authority is not altered or changed by procedure, which simply directs the
manner in which the power or authority shall be fully and justly exercised. There are cases though that if
the power is not exercised conformably with the provisions of the procedural law, purely, the court
attempting to exercise it loses the power to exercise it legally. However, this does not amount to a loss
of jurisdiction over the subject matter. Rather, it means that the court may thereby lose jurisdiction over
the person or that the judgment may thereby be rendered defective for lack of something essential to
sustain it. The appearance of this provision in the procedural law at once raises a strong presumption
that it has nothing to do with the jurisdiction of the court over the subject matter. In plain words, it is
just a matter of method, of convenience to the parties. 5

The Judiciary Act of 1948, as amended, confers upon Courts of First Instance jurisdiction over all probate
cases independently of the place of residence of the deceased. Because of the existence of numerous
Courts of First Instance in the country, the Rules of Court, however, purposedly fixes the venue or the
place where each case shall be brought. A fortiori, the place of residence of the deceased in settlement
of estates, probate of will, and issuance of letters of administration does not constitute an element of
jurisdiction over the subject matter. It is merely constitutive of venue. And it is upon this reason that the
Revised Rules of Court properly considers the province where the estate of a deceased person shall be
settled as "venue." 6

2. But, the far-ranging question is this: What does the term "resides" mean? Does it refer to the actual
residence or domicile of the decedent at the time of his death? We lay down the doctrinal rule that the
term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or
domicile." This term "resides," like, the terms "residing" and "residence," is elastic and should be
interpreted in the light of the object or purpose of the statute or rule in which it is employed. 7 In the
application of venue statutes and rules — Section 1, Rule 73 of the Revised Rules of Court is of such
nature — residence rather than domicile is the significant factor. Even where the statute uses the word
"domicile" still it is construed as meaning residence and not domicile in the technical sense. Some cases
make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing
venue, the terms are synonymous, and convey the same meaning as the term "inhabitant." 8 In other
words, "resides" should be viewed or understood in its popular sense, meaning, the personal, actual or
physical habitation of a person, actual residence or place of abode. It signifies physical presence in a
place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal
residence, not legal residence or domicile. 9Residence simply requires bodily presence as
an inhabitant in a given place, while domicile requires bodily presence in that place and also an
intention to make it one's domicile. 10 No particular length of time of residence is required though;
however, the residence must be more than temporary. 11

3. Divergent claims are maintained by Virginia G. Fule and Preciosa B. Garcia on the residence of the
deceased Amado G. Garcia at the time of his death. In her original petition for letters of administration
before the Court of First Instance of Calamba, Laguna, Virginia G. Fule measely stated "(t)hat on April
26,1973, Amado G. Garcia, a property owner of Calamba, Laguna, died intestate in the City of Manila,
leaving real estate and personal properties in Calamba, Laguna, and in other places within the
jurisdiction of this Honorable Court." Preciosa B. Garcia assailed the petition for failure to satisfy the
jurisdictional requirement and improper laying of venue. For her, the quoted statement avers no
domicile or residence of the deceased Amado G. Garcia. To say that as "property owner of Calamba,
Laguna," he also resides in Calamba, Laguna, is, according to her, non sequitur. On the contrary, Preciosa
B. Garcia claims that, as appearing in his death certificate presented by Virginia G. Fule herself before
the Calamba court and in other papers, the last residence of Amado G. Garcia was at 11 Carmel Avenue,
Carmel Subdivision, Quezon City. Parenthetically, in her amended petition, Virginia G. Fule categorically
alleged that Amado G. Garcia's "last place of residence was at Calamba, Laguna."
On this issue, We rule that the last place of residence of the deceased Amado G. Garcia was at 11
Carmel Avenue, Carmel Subdivision, Quezon City, and not at Calamba, Laguna. A death certificate is
admissible to prove the residence of the decedent at the time of his death. 12 As it is, the death
certificate of Amado G. Garcia, which was presented in evidence by Virginia G. Fule herself and also by
Preciosa B. Garcia, shows that his last place of residence was at 11 Carmel Avenue, Carmel Subdivision,
Quezon City. Aside from this, the deceased's residence certificate for 1973 obtained three months
before his death; the Marketing Agreement and Power of Attorney dated November 12, 1971 turning
over the administration of his two parcels of sugar land to the Calamba Sugar Planters Cooperative
Marketing Association, Inc.; the Deed of Donation dated January 8, 1973, transferring part of his interest
in certain parcels of land in Calamba, Laguna to Agustina B. Garcia; and certificates of titles covering
parcels of land in Calamba, Laguna, show in bold documents that Amado G. Garcia's last place of
residence was at Quezon City. Withal, the conclusion becomes imperative that the venue for Virginia C.
Fule's petition for letters of administration was improperly laid in the Court of First Instance of Calamba,
Laguna. Nevertheless, the long-settled rule is that objection to improper venue is subject to waiver.
Section 4, Rule 4 of the Revised Rules of Court states: "When improper venue is not objected to in a
motion to dismiss, it is deemed waived." In the case before Us the Court of Appeals had reason to hold
that in asking to substitute Virginia G. Fule as special administratrix, Preciosa B. Garcia did not
necessarily waive her objection to the jurisdiction or venue assumed by the Court of First Instance of
Calamba, Laguna, but availed of a mere practical resort to alternative remedy to assert her rights as
surviving spouse, while insisting on the enforcement of the Rule fixing the proper venue of the
proceedings at the last residence of the decedent.

4. Preciosa B. Garcia's challenge to Virginia G. Fule's appointment as special administratrix is another

issue of perplexity. Preciosa B. Garcia claims preference to the appointment as surviving spouse. Section
1 of Rule 80 provides that "(w)hen there is delay in granting letters testamentary or of administration by
any cause including an appeal from the allowance or disallowance of a will, the court may appoint
a special administrator to take possession and charge of the estate of the deceased until the questions
causing the delay are decided and executors or administrators appointed. 13 Formerly, the appointment
of a special administrator was only proper when the allowance or disallowance of a will is under appeal.
The new Rules, however, broadened the basis for appointment and such appointment is now allowed
when there is delay in granting letters testamentary or administration by any cause e.g., parties cannot
agree among themselves. 14 Nevertheless, the discretion to appoint a special administrator or not lies in
the probate court. 15 That, however, is no authority for the judge to become partial, or to make his
personal likes and dislikes prevail over, or his passions to rule, his judgment. Exercise of that discretion
must be based on reason, equity, justice and legal principle. There is no reason why the same
fundamental and legal principles governing the choice of a regular administrator should not be taken
into account in the appointment of a special administrator. 16 Nothing is wrong for the judge to consider
the order of preference in the appointment of a regular administrator in appointing a special
administrator. After all, the consideration that overrides all others in this respect is the beneficial
interest of the appointee in the estate of the decedent. 17 Under the law, the widow would have the
right of succession over a portion of the exclusive property of the decedent, besides her share in the
conjugal partnership. For such reason, she would have as such, if not more, interest in administering the
entire estate correctly than any other next of kin. The good or bad administration of a property may
affect rather the fruits than the naked ownership of a property. 18

Virginia G. Fule, however, disputes the status of Preciosa B. Garcia as the widow of the late Amado G.
Garcia. With equal force, Preciosa B. Garcia maintains that Virginia G. Fule has no relation whatsoever
with Amado G. Garcia, or that, she is a mere illegitimate sister of the latter, incapable of any
successional rights. 19 On this point, We rule that Preciosa B. Garcia is prima facie entitled to the
appointment of special administratrix. It needs be emphasized that in the issuance of such appointment,
which is but temporary and subsists only until a regular administrator is appointed, 20 the appointing
 court does not determine who are entitled to share in the estate of the decedent but who is entitled to
the administration. The issue of heirship is one to be determined in the decree of distribution, and the
findings of the court on the relationship of the parties in the administration as to be the basis of
distribution. 21The preference of Preciosa B. Garcia is with sufficient reason. In a Donation Inter Vivos
executed by the deceased Amado G. Garcia on January 8, 1973 in favor of Agustina B. Garcia, he
indicated therein that he is married to Preciosa B. Garcia. 22 In his certificate of candidacy for the office
of Delegate to the Constitutional Convention for the First District of Laguna filed on September 1, 1970,
he wrote therein the name of Preciosa B. Banaticla as his spouse. 23 Faced with these documents and the
presumption that a man and a woman deporting themselves as husband and wife have entered into a
lawful contract of marriage, Preciosa B. Garcia can be reasonably believed to be the surviving spouse of
the late Amado G. Garcia. Semper praesumitur pro matrimonio. 24

5. Under these circumstances and the doctrine laid down in Cuenco vs. Court of Appeals, 25 this Court
under its supervisory authority over all inferior courts may properly decree that venue in the instant
case was properly assumed by and transferred to Quezon City and that it is in the interest of justice and
avoidance of needless delay that the Quezon City court's exercise of jurisdiction over the settlement of
the estate of the deceased Amado G. Garcia and the appointment of special administratrix over the
latter's estate be approved and authorized and the Court of First Instance of Laguna be disauthorized
from continuing with the case and instead be required to transfer all the records thereof to the Court of
First Instance of Quezon City for the continuation of the proceedings.

6. Accordingly, the Order of Judge Ernani Cruz Pano of December 17, 1975, granting the "Urgent Petition
for Authority to Pay Estate Obligations" filed by Preciosa B. Garcia in Sp. Proc. No. Q-19738, subject
matter of G.R. No. L-42670, and ordering the Canlubang Sugar Estate to deliver to her as special
administratrix the sum of P48,874.70 for payment of the sum of estate obligations is hereby upheld.

IN VIEW OF THE FOREGOING, the petitions of petitioner Virginia Garcia Fule in G.R. No. L-40502 and in
G.R. No. L42670 are hereby denied, with costs against petitioner.

SO ORDERED.

GARCIA-QUIAZON V. BELEN

This is a Petition for Review on Certiorari filed pursuant to Rule 45 of the Revised Rules of Court,
primarily assailing the 28 November 2008 Decision rendered by the Ninth Division of the Court of
Appeals in CA-G.R. CV No. 88589,1the decretal portion of which states:

WHEREFORE, premises considered, the appeal is hereby DENIED. The assailed Decision dated March 11,
2005, and the Order dated March 24, 2006 of the Regional Trial Court, Branch 275, Las Piñas City are
AFFIRMED in toto.2

The Facts

This case started as a Petition for Letters of Administration of the Estate of Eliseo Quiazon (Eliseo), filed
by herein respondents who are Eliseo’s common-law wife and daughter. The petition was opposed by
herein petitioners Amelia Garcia-Quaizon (Amelia) to whom Eliseo was married. Amelia was joined by
her children, Jenneth Quiazon (Jenneth) and Maria Jennifer Quiazon (Jennifer).

Eliseo died intestate on 12 December 1992.

On 12 September 1994, Maria Lourdes Elise Quiazon (Elise), represented by her mother, Ma. Lourdes
Belen (Lourdes), filed a Petition for Letters of Administration before the Regional Trial Court (RTC) of Las
Piñas City.3 In her Petition docketed as SP Proc. No. M-3957, Elise claims that she is the natural child of
Eliseo having been conceived and born at the time when her parents were both capacitated to marry
each other. Insisting on the legal capacity of Eliseo and Lourdes to marry, Elise impugned the validity of
Eliseo’s marriage to Amelia by claiming that it was bigamous for having been contracted during the
subsistence of the latter’s marriage with one Filipito Sandico (Filipito). To prove her filiation to the
decedent, Elise, among others, attached to the Petition for Letters of Administration her Certificate of
Live Birth4 signed by Eliseo as her father. In the same petition, it was alleged that Eliseo left real
properties worth ₱2,040,000.00 and personal properties worth ₱2,100,000.00. In order to preserve the
estate of Eliseo and to prevent the dissipation of its value, Elise sought her appointment as
administratrix of her late father’s estate.

Claiming that the venue of the petition was improperly laid, Amelia, together with her children, Jenneth
and Jennifer, opposed the issuance of the letters of administration by filing an Opposition/Motion to
Dismiss.5 The petitioners asserted that as shown by his Death Certificate, 6 Eliseo was a resident of
Capas, Tarlac and not of Las Piñas City, at the time of his death. Pursuant to Section 1, Rule 73 of the
Revised Rules of Court,7 the petition for settlement of decedent’s estate should have been filed in
Capas, Tarlac and not in Las Piñas City. In addition to their claim of improper venue, the petitioners
averred that there are no factual and legal bases for Elise to be appointed administratix of Eliseo’s
estate.

In a Decision8 dated 11 March 2005, the RTC directed the issuance of Letters of Administration to Elise
upon posting the necessary bond. The lower court ruled that the venue of the petition was properly laid
in Las Piñas City, thereby discrediting the position taken by the petitioners that Eliseo’s last residence
was in Capas, Tarlac, as hearsay. The dispositive of the RTC decision reads:

Having attained legal age at this time and there being no showing of any disqualification or
incompetence to serve as administrator, let letters of administration over the estate of the decedent
Eliseo Quiazon, therefore, be issued to petitioner, Ma. Lourdes Elise Quiazon, after the approval by this
Court of a bond in the amount of ₱100,000.00 to be posted by her.9

On appeal, the decision of the trial court was affirmed in toto in the 28 November 2008
Decision10 rendered by the Court of Appeals in CA-G.R.CV No. 88589. In validating the findings of the
RTC, the Court of Appeals held that Elise was able to prove that Eliseo and Lourdes lived together as
husband and wife by establishing a common residence at No. 26 Everlasting Road, Phase 5, Pilar Village,
Las Piñas City, from 1975 up to the time of Eliseo’s death in 1992. For purposes of fixing the venue of the
settlement of Eliseo’s estate, the Court of Appeals upheld the conclusion reached by the RTC that the
decedent was a resident of Las Piñas City. The petitioners’ Motion for Reconsideration was denied by
the Court of Appeals in its Resolution11 dated 7 August 2009.

The Issues

The petitioners now urge Us to reverse the assailed Court of Appeals Decision and Resolution on the
following grounds:

I. THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THAT ELISEO QUIAZON WAS A
RESIDENT OF LAS PIÑAS AND THEREFORE, THE PETITION FOR LETTERS OF ADMINISTRATION
WAS PROPERLY FILED WITH THE RTC OF LAS PIÑAS;
 II. THE COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT AMELIA GARCIA-QUIAZON WAS
NOT LEGALLY MARRIED TO ELISEO QUIAZON DUE TO PREEXISTING MARRIAGE; AND

III. THE COURT OF APPEALS OVERLOOKED THE FACT THAT ELISE QUIAZON HAS NOT SHOWN ANY
INTEREST IN THE PETITION FOR LETTERS OF ADMINISTRATION.12

The Court’s Ruling

We find the petition bereft of merit.

Under Section 1, Rule 73 of the Rules of Court, the petition for letters of administration of the estate of
a decedent should be filed in the RTC of the province where the decedent resides at the time of his
death:

Sec. 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 now Regional Trial Court in the province in
which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of
First Instance now Regional Trial Court 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.
(Emphasis supplied).

The term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or
domicile." This term "resides," like the terms "residing" and "residence," is elastic and should be
interpreted in the light of the object or purpose of the statute or rule in which it is employed. In the
application of venue statutes and rules – Section 1, Rule 73 of the Revised Rules of Court is of such
nature – residence rather than domicile is the significant factor.13Even where the statute uses word
"domicile" still it is construed as meaning residence and not domicile in the technical sense.14 Some
cases make a distinction between the terms "residence" and "domicile" but as generally used in statutes
fixing venue, the terms are synonymous, and convey the same meaning as the term "inhabitant." 15In
other words, "resides" should be viewed or understood in its popular sense, meaning, the personal,
actual or physical habitation of a person, actual residence or place of abode.16 It signifies physical
presence in a place and actual stay thereat.17 Venue for ordinary civil actions and that for special
proceedings have one and the same meaning.18 As thus defined, "residence," in the context of venue
provisions, means nothing more than a person’s actual residence or place of abode, provided he resides
therein with continuity and consistency.19

Viewed in light of the foregoing principles, the Court of Appeals cannot be faulted for affirming the
ruling of the RTC that the venue for the settlement of the estate of Eliseo was properly laid in Las Piñas
City. It is evident from the records that during his lifetime, Eliseo resided at No. 26 Everlasting Road,
Phase 5, Pilar Village, Las Piñas City. For this reason, the venue for the settlement of his estate may be
laid in the said city.

In opposing the issuance of letters of administration, the petitioners harp on the entry in Eliseo’s Death
Certificate that he is a resident of Capas, Tarlac where they insist his estate should be settled. While the
recitals in death certificates can be considered proofs of a decedent’s residence at the time of his death,
the contents thereof, however, is not binding on the courts. Both the RTC and the Court of Appeals
found that Eliseo had been living with Lourdes, deporting themselves as husband and wife, from 1972
up to the time of his death in 1995. This finding is consistent with the fact that in 1985, Eliseo filed an
action for judicial partition of properties against Amelia before the RTC of Quezon City, Branch 106, on
the ground that their marriage is void for being bigamous.20 That Eliseo went to the extent of taking his
marital feud with Amelia before the courts of law renders untenable petitioners’ position that Eliseo
spent the final days of his life in Tarlac with Amelia and her children. It disproves rather than supports
petitioners’ submission that the lower courts’ findings arose from an erroneous appreciation of the
evidence on record. Factual findings of the trial court, when affirmed by the appellate court, must be
held to be conclusive and binding upon this Court.21

Likewise unmeritorious is petitioners’ contention that the Court of Appeals erred in declaring Amelia’s
marriage to Eliseo as void ab initio. In a void marriage, it was though no marriage has taken place, thus,
it cannot be the source of rights. Any interested party may attack the marriage directly or collaterally. A
void marriage can be questioned even beyond the lifetime of the parties to the marriage.22 It must be
pointed out that at the time of the celebration of the marriage of Eliseo and Amelia, the law in effect
was the Civil Code, and not the Family Code, making the ruling in Niñal v. Bayadog23 applicable four-
square to the case at hand. In Niñal, the Court, in no uncertain terms, allowed therein petitioners to file
a petition for the declaration of nullity of their father’s marriage to therein respondent after the death
of their father, by contradistinguishing void from voidable marriages, to wit:

Consequently, void marriages can be questioned even after the death of either party but voidable
marriages can be assailed only during the lifetime of the parties and not after death of either, in which
case the parties and their offspring will be left as if the marriage had been perfectly valid. That is why
the action or defense for nullity is imprescriptible, unlike voidable marriages where the action
prescribes. Only the parties to a voidable marriage can assail it but any proper interested party may
attack a void marriage.24

It was emphasized in Niñal that in a void marriage, no marriage has taken place and it cannot be the
source of rights, such that any interested party may attack the marriage directly or collaterally without
prescription, which may be filed even beyond the lifetime of the parties to the marriage.25

Relevant to the foregoing, there is no doubt that Elise, whose successional rights would be prejudiced by
her father’s marriage to Amelia, may impugn the existence of such marriage even after the death of her
father. The said marriage may be questioned directly by filing an action attacking the validity thereof, or
collaterally by raising it as an issue in a proceeding for the settlement of the estate of the deceased
spouse, such as in the case at bar. Ineluctably, Elise, as a compulsory heir,26 has a cause of action for the
declaration of the absolute nullity of the void marriage of Eliseo and Amelia, and the death of either
party to the said marriage does not extinguish such cause of action.

Having established the right of Elise to impugn Eliseo’s marriage to Amelia, we now proceed to
determine whether or not the decedent’s marriage to Amelia is void for being bigamous.

Contrary to the position taken by the petitioners, the existence of a previous marriage between Amelia
and Filipito was sufficiently established by no less than the Certificate of Marriage issued by the Diocese
of Tarlac and signed by the officiating priest of the Parish of San Nicolas de Tolentino in Capas, Tarlac.
The said marriage certificate is a competent evidence of marriage and the certification from the National
Archive that no information relative to the said marriage exists does not diminish the probative value of
the entries therein. We take judicial notice of the fact that the first marriage was celebrated more than
50 years ago, thus, the possibility that a record of marriage can no longer be found in the National
Archive, given the interval of time, is not completely remote. Consequently, in the absence of any
showing that such marriage had been dissolved at the time Amelia and Eliseo’s marriage was
solemnized, the inescapable conclusion is that the latter marriage is bigamous and, therefore, void ab
initio.27

Neither are we inclined to lend credence to the petitioners’ contention that Elise has not shown any
interest in the Petition for Letters of Administration.

Section 6, Rule 78 of the Revised Rules of Court lays down the preferred persons who are entitled to the
issuance of letters of administration, thus:

Sec. 6. When and to whom letters of administration granted. — If no executor is named in the will, or
the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies
intestate, administration shall be granted:

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion
of the court, or to such person as such surviving husband or wife, or next of kin, requests to
have appointed, if competent and willing to serve;

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected
by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for
thirty (30) days after the death of the person to apply for administration or to request that
administration be granted to some other person, it may be granted to one or more of the
principal creditors, if competent and willing to serve;

(c) If there is no such creditor competent and willing to serve, it may be granted to such other
person as the court may select.

Upon the other hand, Section 2 of Rule 79 provides that a petition for Letters of Administration must be
filed by an interested person, thus:

Sec. 2. Contents of petition for letters of administration. — A petition for letters of administration must
be filed by an interested person and must show, so far as known to the petitioner:

(a) The jurisdictional facts;

(b) The names, ages, and residences of the heirs, and the names and residences of the creditors,
of the decedent;

(c) The probable value and character of the property of the estate;

(d) The name of the person for whom letters of administration are prayed.

But no defect in the petition shall render void the issuance of letters of administration.

An "interested party," in estate proceedings, is one who would be benefited in the estate, such as an
heir, or one who has a claim against the estate, such as a creditor. Also, in estate proceedings, the
phrase "next of kin" refers to those whose relationship with the decedent Is such that they are entitled
to share in the estate as distributees.28

In the instant case, Elise, as a compulsory heir who stands to be benefited by the distribution of Eliseo’s
estate, is deemed to be an interested party. With the overwhelming evidence on record produced by
Elise to prove her filiation to Eliseo, the petitioners’ pounding on her lack of interest in the
 administration of the decedent’s estate, is just a desperate attempt to sway this Court to reverse the
findings of the Court of Appeals. Certainly, the right of Elise to be appointed administratix of the estate
of Eliseo is on good grounds. It is founded on her right as a compulsory heir, who, under the law, is
entitled to her legitimate after the debts of the estate are satisfied.29 Having a vested right in the
distribution of Eliseo’s estate as one of his natural children, Elise can rightfully be considered as an
interested party within the purview of the law.

WHEREFORE, premises considered, the petition is DENIED for lack of merit. Accordingly, the Court of
Appeals assailed 28 November 2008 Decision and 7 August 2009 Resolution, arc AFFIRMED in toto.

SO ORDERED.

SAN LUIS V. SAN LUIS

Before us are consolidated petitions for review assailing the February 4, 1998 Decision 1 of the
Court of Appeals in CA-G.R. CV No. 52647, which reversed and set aside the September 12, 1995 2 and
January 31, 1996 3Resolutions of the Regional Trial Court of Makati City, Branch 134 in SP. Proc. No. M-
3708; and its May 15, 1998 Resolution 4 denying petitioners’ motion for reconsideration.

The instant case involves the settlement of the estate of Felicisimo T. San Luis (Felicisimo), who was the
former governor of the Province of Laguna. During his lifetime, Felicisimo contracted three marriages.
His first marriage was with Virginia Sulit on March 17, 1942 out of which were born six children, namely:
Rodolfo, Mila, Edgar, Linda, Emilita and Manuel. On August 11, 1963, Virginia predeceased Felicisimo.

Five years later, on May 1, 1968, Felicisimo married Merry Lee Corwin, with whom he had a son, Tobias.
However, on October 15, 1971, Merry Lee, an American citizen, filed a Complaint for Divorce 5 before
the Family Court of the First Circuit, State of Hawaii, United States of America (U.S.A.), which issued a
Decree Granting Absolute Divorce and Awarding Child Custody on December 14, 1973. 6

On June 20, 1974, Felicisimo married respondent Felicidad San Luis, then surnamed Sagalongos, before
Rev. Fr. William Meyer, Minister of the United Presbyterian at Wilshire Boulevard, Los Angeles,
California, U.S.A. 7 He had no children with respondent but lived with her for 18 years from the time of
their marriage up to his death on December 18, 1992.

Thereafter, respondent sought the dissolution of their conjugal partnership assets and the settlement of
Felicisimo’s estate. On December 17, 1993, she filed a petition for letters of administration 8 before the
Regional Trial Court of Makati City, docketed as SP. Proc. No. M-3708 which was raffled to Branch 146
thereof.

Respondent alleged that she is the widow of Felicisimo; that, at the time of his death, the decedent was
residing at 100 San Juanico Street, New Alabang Village, Alabang, Metro Manila; that the decedent’s
surviving heirs are respondent as legal spouse, his six children by his first marriage, and son by his
second marriage; that the decedent left real properties, both conjugal and exclusive, valued at
₱30,304,178.00 more or less; that the decedent does not have any unpaid debts. Respondent prayed
that the conjugal partnership assets be liquidated and that letters of administration be issued to her.

On February 4, 1994, petitioner Rodolfo San Luis, one of the children of Felicisimo by his first marriage,
filed a motion to dismiss 9 on the grounds of improper venue and failure to state a cause of action.
Rodolfo claimed that the petition for letters of administration should have been filed in the Province of
Laguna because this was Felicisimo’s place of residence prior to his death. He further claimed that
respondent has no legal personality to file the petition because she was only a mistress of Felicisimo
since the latter, at the time of his death, was still legally married to Merry Lee.

On February 15, 1994, Linda invoked the same grounds and joined her brother Rodolfo in seeking the
dismissal 10of the petition. On February 28, 1994, the trial court issued an Order 11 denying the two
motions to dismiss.

Unaware of the denial of the motions to dismiss, respondent filed on March 5, 1994 her
opposition 12 thereto. She submitted documentary evidence showing that while Felicisimo exercised the
powers of his public office in Laguna, he regularly went home to their house in New Alabang Village,
Alabang, Metro Manila which they bought sometime in 1982. Further, she presented the decree of
absolute divorce issued by the Family Court of the First Circuit, State of Hawaii to prove that the
marriage of Felicisimo to Merry Lee had already been dissolved. Thus, she claimed that Felicisimo had
the legal capacity to marry her by virtue of paragraph 2, 13 Article 26 of the Family Code and the doctrine
laid down in Van Dorn v. Romillo, Jr. 14

Thereafter, Linda, Rodolfo and herein petitioner Edgar San Luis, separately filed motions for
reconsideration from the Order denying their motions to dismiss. 15 They asserted that paragraph 2,
Article 26 of the Family Code cannot be given retroactive effect to validate respondent’s bigamous
marriage with Felicisimo because this would impair vested rights in derogation of Article 256 16 of the
Family Code.

On April 21, 1994, Mila, another daughter of Felicisimo from his first marriage, filed a motion to
disqualify Acting Presiding Judge Anthony E. Santos from hearing the case.

On October 24, 1994, the trial court issued an Order 17 denying the motions for reconsideration. It ruled
that respondent, as widow of the decedent, possessed the legal standing to file the petition and that
venue was properly laid. Meanwhile, the motion for disqualification was deemed moot and
academic 18 because then Acting Presiding Judge Santos was substituted by Judge Salvador S. Tensuan
pending the resolution of said motion.

Mila filed a motion for inhibition 19 against Judge Tensuan on November 16, 1994. On even date, Edgar
also filed a motion for reconsideration 20 from the Order denying their motion for reconsideration
arguing that it does not state the facts and law on which it was based.

On November 25, 1994, Judge Tensuan issued an Order 21 granting the motion for inhibition. The case
was re-raffled to Branch 134 presided by Judge Paul T. Arcangel.

On April 24, 1995, 22 the trial court required the parties to submit their respective position papers on the
twin issues of venue and legal capacity of respondent to file the petition. On May 5, 1995, Edgar
manifested 23 that he is adopting the arguments and evidence set forth in his previous motion for
reconsideration as his position paper. Respondent and Rodolfo filed their position papers on June
14, 24 and June 20, 25 1995, respectively.

On September 12, 1995, the trial court dismissed the petition for letters of administration. It held that,
at the time of his death, Felicisimo was the duly elected governor and a resident of the Province of
Laguna. Hence, the petition should have been filed in Sta. Cruz, Laguna and not in Makati City. It also
ruled that respondent was without legal capacity to file the petition for letters of administration
because her marriage with Felicisimo was bigamous, thus, void ab initio. It found that the decree of
absolute divorce dissolving Felicisimo’s marriage to Merry Lee was not valid in the Philippines and did
not bind Felicisimo who was a Filipino citizen. It also ruled that paragraph 2, Article 26 of the Family
Code cannot be retroactively applied because it would impair the vested rights of Felicisimo’s legitimate
children.

Respondent moved for reconsideration 26 and for the disqualification 27 of Judge Arcangel but said
motions were denied. 28

Respondent appealed to the Court of Appeals which reversed and set aside the orders of the trial court
in its assailed Decision dated February 4, 1998, the dispositive portion of which states:

WHEREFORE, the Orders dated September 12, 1995 and January 31, 1996 are hereby REVERSED and SET
ASIDE; the Orders dated February 28 and October 24, 1994 are REINSTATED; and the records of the case
is REMANDED to the trial court for further proceedings. 29

The appellante court ruled that under Section 1, Rule 73 of the Rules of Court, the term "place of
residence" of the decedent, for purposes of fixing the venue of the settlement of his estate, refers to the
personal, actual or physical habitation, or actual residence or place of abode of a person as distinguished
from legal residence or domicile. It noted that although Felicisimo discharged his functions as governor
in Laguna, he actually resided in Alabang, Muntinlupa. Thus, the petition for letters of administration
was properly filed in Makati City.

The Court of Appeals also held that Felicisimo had legal capacity to marry respondent by virtue of
paragraph 2, Article 26 of the Family Code and the rulings in Van Dorn v. Romillo, Jr. 30 and Pilapil v. Ibay-
Somera. 31 It found that the marriage between Felicisimo and Merry Lee was validly dissolved by virtue
of the decree of absolute divorce issued by the Family Court of the First Circuit, State of Hawaii. As a
result, under paragraph 2, Article 26, Felicisimo was capacitated to contract a subsequent marriage with
respondent. Thus –

With the well-known rule – express mandate of paragraph 2, Article 26, of the Family Code of the
Philippines, the doctrines in Van Dorn, Pilapil, and the reason and philosophy behind the enactment of
E.O. No. 227, — there is no justiciable reason to sustain the individual view — sweeping statement — of
Judge Arc[h]angel, that "Article 26, par. 2 of the Family Code, contravenes the basic policy of our state
against divorce in any form whatsoever." Indeed, courts cannot deny what the law grants. All that the
courts should do is to give force and effect to the express mandate of the law. The foreign divorce
having been obtained by the Foreigner on December 14, 1992, 32 the Filipino divorcee, "shall x x x have
capacity to remarry under Philippine laws". For this reason, the marriage between the deceased and
petitioner should not be denominated as "a bigamous marriage.

Therefore, under Article 130 of the Family Code, the petitioner as the surviving spouse can institute the
judicial proceeding for the settlement of the estate of the deceased. x x x 33

Edgar, Linda, and Rodolfo filed separate motions for reconsideration 34 which were denied by the Court
of Appeals.

On July 2, 1998, Edgar appealed to this Court via the instant petition for review on certiorari. 35 Rodolfo
later filed a manifestation and motion to adopt the said petition which was granted. 36

In the instant consolidated petitions, Edgar and Rodolfo insist that the venue of the subject petition for
letters of administration was improperly laid because at the time of his death, Felicisimo was a resident
of Sta. Cruz, Laguna. They contend that pursuant to our rulings in Nuval v. Guray 37 and Romualdez v.
RTC, Br. 7, Tacloban City, 38"residence" is synonymous with "domicile" which denotes a fixed permanent
residence to which when absent, one intends to return. They claim that a person can only have one
domicile at any given time. Since Felicisimo never changed his domicile, the petition for letters of
administration should have been filed in Sta. Cruz, Laguna.

Petitioners also contend that respondent’s marriage to Felicisimo was void and bigamous because it was
performed during the subsistence of the latter’s marriage to Merry Lee. They argue that paragraph 2,
Article 26 cannot be retroactively applied because it would impair vested rights and ratify the void
bigamous marriage. As such, respondent cannot be considered the surviving wife of Felicisimo; hence,
she has no legal capacity to file the petition for letters of administration.

The issues for resolution: (1) whether venue was properly laid, and (2) whether respondent has legal
capacity to file the subject petition for letters of administration.

The petition lacks merit.

Under Section 1, 39 Rule 73 of the Rules of Court, the petition for letters of administration of the estate
of Felicisimo should be filed in the Regional Trial Court of the province "in which he resides at the time
of his death." In the case of Garcia Fule v. Court of Appeals, 40 we laid down the doctrinal rule for
determining the residence – as contradistinguished from domicile – of the decedent for purposes of
fixing the venue of the settlement of his estate:

[T]he term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or
domicile." This term "resides," like the terms "residing" and "residence," is elastic and should be
interpreted in the light of the object or purpose of the statute or rule in which it is employed. In the
application of venue statutes and rules – Section 1, Rule 73 of the Revised Rules of Court is of such
nature – residence rather than domicile is the significant factor. Even where the statute uses the word
"domicile" still it is construed as meaning residence and not domicile in the technical sense. Some cases
make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing
venue, the terms are synonymous, and convey the same meaning as the term "inhabitant." In other
words, "resides" should be viewed or understood in its popular sense, meaning, the personal, actual or
physical habitation of a person, actual residence or place of abode. It signifies physical presence in a
place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal
residence, not legal residence or domicile. Residence simply requires bodily presence as an inhabitant in
a given place, while domicile requires bodily presence in that place and also an intention to make it
one’s domicile. No particular length of time of residence is required though; however, the residence
must be more than temporary. 41 (Emphasis supplied)

It is incorrect for petitioners to argue that "residence," for purposes of fixing the venue of the
settlement of the estate of Felicisimo, is synonymous with "domicile." The rulings in Nuval and
Romualdez are inapplicable to the instant case because they involve election cases. Needless to say,
there is a distinction between "residence" for purposes of election laws and "residence" for purposes of
fixing the venue of actions. In election cases, "residence" and "domicile" are treated as synonymous
terms, that is, the fixed permanent residence to which when absent, one has the intention of
returning. 42 However, for purposes of fixing venue under the Rules of Court, the "residence" of a person
is his personal, actual or physical habitation, or actual residence or place of abode, which may not
necessarily be his legal residence or domicile provided he resides therein with continuity and
consistency. 43 Hence, it is possible that a person may have his residence in one place and domicile in
another.

In the instant case, while petitioners established that Felicisimo was domiciled in Sta. Cruz, Laguna,
respondent proved that he also maintained a residence in Alabang, Muntinlupa from 1982 up to the
time of his death. Respondent submitted in evidence the Deed of Absolute Sale 44 dated January 5, 1983
showing that the deceased purchased the aforesaid property. She also presented billing
statements 45 from the Philippine Heart Center and Chinese General Hospital for the period August to
December 1992 indicating the address of Felicisimo at "100 San Juanico, Ayala Alabang, Muntinlupa."
Respondent also presented proof of membership of the deceased in the Ayala Alabang Village
Association 46 and Ayala Country Club, Inc., 47 letter-envelopes 48 from 1988 to 1990 sent by the
deceased’s children to him at his Alabang address, and the deceased’s calling cards 49 stating that his
home/city address is at "100 San Juanico, Ayala Alabang Village, Muntinlupa" while his office/provincial
address is in "Provincial Capitol, Sta. Cruz, Laguna."

From the foregoing, we find that Felicisimo was a resident of Alabang, Muntinlupa for purposes of fixing
the venue of the settlement of his estate. Consequently, the subject petition for letters of
administration was validly filed in the Regional Trial Court 50 which has territorial jurisdiction over
Alabang, Muntinlupa. The subject petition was filed on December 17, 1993. At that time, Muntinlupa
was still a municipality and the branches of the Regional Trial Court of the National Capital Judicial
Region which had territorial jurisdiction over Muntinlupa were then seated in Makati City as per
Supreme Court Administrative Order No. 3. 51 Thus, the subject petition was validly filed before the
Regional Trial Court of Makati City.

Anent the issue of respondent Felicidad’s legal personality to file the petition for letters of
administration, we must first resolve the issue of whether a Filipino who is divorced by his alien spouse
abroad may validly remarry under the Civil Code, considering that Felicidad’s marriage to Felicisimo was
solemnized on June 20, 1974, or before the Family Code took effect on August 3, 1988. In resolving this
issue, we need not retroactively apply the provisions of the Family Code, particularly Art. 26, par. (2)
considering that there is sufficient jurisprudential basis allowing us to rule in the affirmative.

The case of Van Dorn v. Romillo, Jr. 52 involved a marriage between a foreigner and his Filipino wife,
which marriage was subsequently dissolved through a divorce obtained abroad by the latter. Claiming
that the divorce was not valid under Philippine law, the alien spouse alleged that his interest in the
properties from their conjugal partnership should be protected. The Court, however, recognized the
validity of the divorce and held that the alien spouse had no interest in the properties acquired by the
Filipino wife after the divorce. Thus:

In this case, the divorce in Nevada released private respondent from the marriage from the standards of
American law, under which divorce dissolves the marriage. As stated by the Federal Supreme Court of
the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:

"The purpose and effect of a decree of divorce from the bond of matrimony by a competent jurisdiction
are to change the existing status or domestic relation of husband and wife, and to free them both from
the bond. The marriage tie, when thus severed as to one party, ceases to bind either. A husband without
a wife, or a wife without a husband, is unknown to the law. When the law provides, in the nature of a
penalty, that the guilty party shall not marry again, that party, as well as the other, is still absolutely
freed from the bond of the former marriage."

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would
have no standing to sue in the case below as petitioner’s husband entitled to exercise control over
conjugal assets. As he is bound by the Decision of his own country’s Court, which validly exercised
jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own
representation before said Court from asserting his right over the alleged conjugal property. 53
As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longer be
considered married to the alien spouse. Further, she should not be required to perform her marital
duties and obligations. It held:

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still
marriedto private respondent and still subject to a wife's obligations under Article 109, et. seq. of the
Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and
fidelity, and render support to private respondent. The latter should not continue to be one of her heirs
with possible rights to conjugal property. She should not be discriminated against in her own country if
the ends of justice are to be served.54 (Emphasis added)

This principle was thereafter applied in Pilapil v. Ibay-Somera 55 where the Court recognized the validity
of a divorce obtained abroad. In the said case, it was held that the alien spouse is not a proper party in
filing the adultery suit against his Filipino wife. The Court stated that "the severance of the marital bond
had the effect of dissociating the former spouses from each other, hence the actuations of one would
not affect or cast obloquy on the other." 56

Likewise, in Quita v. Court of Appeals, 57 the Court stated that where a Filipino is divorced by his
naturalized foreign spouse, the ruling in Van Dorn applies. 58 Although decided on December 22, 1998,
the divorce in the said case was obtained in 1954 when the Civil Code provisions were still in effect.

The significance of the Van Dorn case to the development of limited recognition of divorce in the
Philippines cannot be denied. The ruling has long been interpreted as severing marital ties between
parties in a mixed marriage and capacitating the Filipino spouse to remarry as a necessary consequence
of upholding the validity of a divorce obtained abroad by the alien spouse. In his treatise, Dr. Arturo M.
Tolentino cited Van Dorn stating that "if the foreigner obtains a valid foreign divorce, the Filipino spouse
shall have capacity to remarry under Philippine law." 59In Garcia v. Recio, 60 the Court likewise cited the
aforementioned case in relation to Article 26. 61

In the recent case of Republic v. Orbecido III, 62 the historical background and legislative intent behind
paragraph 2, Article 26 of the Family Code were discussed, to wit:

Brief Historical Background

On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise
known as the "Family Code," which took effect on August 3, 1988. Article 26 thereof states:

All marriages solemnized outside the Philippines in accordance with the laws in force in the country
where they were solemnized, and valid there as such, shall also be valid in this country, except those
prohibited under Articles 35, 37, and 38.

On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was
likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was
added to Article 26. As so amended, it now provides:

ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this country, except
those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall have capacity to remarry under Philippine law. (Emphasis supplied)

x x x x
Legislative Intent

Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of
Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to
avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino spouse.

Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo,
Jr. The Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held
therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines, and
consequently, the Filipino spouse is capacitated to remarry under Philippine law. 63 (Emphasis added)

As such, the Van Dorn case is sufficient basis in resolving a situation where a divorce is validly obtained
abroad by the alien spouse. With the enactment of the Family Code and paragraph 2, Article 26 thereof,
our lawmakers codified the law already established through judicial precedent.1awphi1.net

Indeed, when the object of a marriage is defeated by rendering its continuance intolerable to one of the
parties and productive of no possible good to the community, relief in some way should be
obtainable. 64 Marriage, being a mutual and shared commitment between two parties, cannot possibly
be productive of any good to the society where one is considered released from the marital bond while
the other remains bound to it. Such is the state of affairs where the alien spouse obtains a valid divorce
abroad against the Filipino spouse, as in this case.

Petitioners cite Articles 15 65 and 17 66 of the Civil Code in stating that the divorce is void under
Philippine law insofar as Filipinos are concerned. However, in light of this Court’s rulings in the cases
discussed above, the Filipino spouse should not be discriminated against in his own country if the ends
of justice are to be served. 67 In Alonzo v. Intermediate Appellate Court, 68 the Court stated:

But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its
purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge
should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never
be interpreted in such a way as to cause injustice as this is never within the legislative intent. An
indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render
justice.

Thus, we interpret and apply the law not independently of but in consonance with justice. Law and
justice are inseparable, and we must keep them so. To be sure, there are some laws that, while
generally valid, may seem arbitrary when applied in a particular case because of its peculiar
circumstances. In such a situation, we are not bound, because only of our nature and functions, to apply
them just the same, in slavish obedience to their language. What we do instead is find a balance
between the word and the will, that justice may be done even as the law is obeyed.

As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded,
yielding like robots to the literal command without regard to its cause and consequence. "Courts are apt
to err by sticking too closely to the words of a law," so we are warned, by Justice Holmes again, "where
these words import a policy that goes beyond them."
xxxx

More than twenty centuries ago, Justinian defined justice "as the constant and perpetual wish to render
every one his due." That wish continues to motivate this Court when it assesses the facts and the law in
every case brought to it for decision. Justice is always an essential ingredient of its decisions. Thus when
the facts warrants, we interpret the law in a way that will render justice, presuming that it was the
intention of the lawmaker, to begin with, that the law be dispensed with justice. 69

Applying the above doctrine in the instant case, the divorce decree allegedly obtained by Merry Lee
which absolutely allowed Felicisimo to remarry, would have vested Felicidad with the legal personality
to file the present petition as Felicisimo’s surviving spouse. However, the records show that there is
insufficient evidence to prove the validity of the divorce obtained by Merry Lee as well as the marriage
of respondent and Felicisimo under the laws of the U.S.A. In Garcia v. Recio, 70 the Court laid down the
specific guidelines for pleading and proving foreign law and divorce judgments. It held that presentation
solely of the divorce decree is insufficient and that proof of its authenticity and due execution must be
presented. Under Sections 24 and 25 of Rule 132, a writing or document may be proven as a public or
official record of a foreign country by either (1) an official publication or (2) a copy thereof attested by
the officer having legal custody of the document. If the record is not kept in the Philippines, such copy
must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the
Philippine foreign service stationed in the foreign country in which the record is kept and (b)
authenticated by the seal of his office. 71

With regard to respondent’s marriage to Felicisimo allegedly solemnized in California, U.S.A., she
submitted photocopies of the Marriage Certificate and the annotated text 72 of the Family Law Act of
California which purportedly show that their marriage was done in accordance with the said law. As
stated in Garcia, however, the Court cannot take judicial notice of foreign laws as they must be alleged
and proved. 73

Therefore, this case should be remanded to the trial court for further reception of evidence on the
divorce decree obtained by Merry Lee and the marriage of respondent and Felicisimo.

Even assuming that Felicisimo was not capacitated to marry respondent in 1974, nevertheless, we find
that the latter has the legal personality to file the subject petition for letters of administration, as she
may be considered the co-owner of Felicisimo as regards the properties that were acquired through
their joint efforts during their cohabitation.

Section 6, 74 Rule 78 of the Rules of Court states that letters of administration may be granted to the
surviving spouse of the decedent. However, Section 2, Rule 79 thereof also provides in part:

SEC. 2. Contents of petition for letters of administration. – A petition for letters of administration must
be filed by an interested person and must show, as far as known to the petitioner: x x x.

An "interested person" has been defined as one who would be benefited by the estate, such as an heir,
or one who has a claim against the estate, such as a creditor. The interest must be material and direct,
and not merely indirect or contingent. 75

In the instant case, respondent would qualify as an interested person who has a direct interest in the
estate of Felicisimo by virtue of their cohabitation, the existence of which was not denied by petitioners.
If she proves the validity of the divorce and Felicisimo’s capacity to remarry, but fails to prove that her
marriage with him was validly performed under the laws of the U.S.A., then she may be considered as a
co-owner under Article 144 76 of the Civil Code. This provision governs the property relations between
 parties who live together as husband and wife without the benefit of marriage, or their marriage is void
from the beginning. It provides that the property acquired by either or both of them through their work
or industry or their wages and salaries shall be governed by the rules on co-ownership. In a co-
ownership, it is not necessary that the property be acquired through their joint labor, efforts and
industry. Any property acquired during the union is prima facie presumed to have been obtained
through their joint efforts. Hence, the portions belonging to the co-owners shall be presumed equal,
unless the contrary is proven. 77

Meanwhile, if respondent fails to prove the validity of both the divorce and the marriage, the applicable
provision would be Article 148 of the Family Code which has filled the hiatus in Article 144 of the Civil
Code by expressly regulating the property relations of couples living together as husband and wife but
are incapacitated to marry. 78 In Saguid v. Court of Appeals, 79 we held that even if the cohabitation or
the acquisition of property occurred before the Family Code took effect, Article 148 governs. 80 The
Court described the property regime under this provision as follows:

The regime of limited co-ownership of property governing the union of parties who are not legally
capacitated to marry each other, but who nonetheless live together as husband and wife, applies to
properties acquired during said cohabitation in proportion to their respective contributions. Co-
ownership will only be up to the extent of the proven actual contribution of money, property or
industry. Absent proof of the extent thereof, their contributions and corresponding shares shall be
presumed to be equal.

xxxx

In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue of co-ownership of
properties acquired by the parties to a bigamous marriage and an adulterous relationship, respectively,
we ruled that proof of actual contribution in the acquisition of the property is essential. x x x

As in other civil cases, the burden of proof rests upon the party who, as determined by the pleadings or
the nature of the case, asserts an affirmative issue. Contentions must be proved by competent evidence
and reliance must be had on the strength of the party’s own evidence and not upon the weakness of the
opponent’s defense. x x x 81

In view of the foregoing, we find that respondent’s legal capacity to file the subject petition for letters of
administration may arise from her status as the surviving wife of Felicisimo or as his co-owner under
Article 144 of the Civil Code or Article 148 of the Family Code.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals reinstating and affirming the
February 28, 1994 Order of the Regional Trial Court which denied petitioners’ motion to dismiss and its
October 24, 1994 Order which dismissed petitioners’ motion for reconsideration is AFFIRMED. Let this
case be REMANDED to the trial court for further proceedings.

SO ORDERED.

JAO V. CA

Rodolfo and Perico Jao were the only sons of the spouses Ignacio Jao Tayag and Andrea V. Jao, who died
intestate in 1988 and 1989, respectively. The decedents left real estate, cash, shares of stock and other
personal properties.
On April 17, 1991, Perico instituted a petition for issuance of letters of administration before the
Regional Trial Court of Quezon City, Branch 99, over the estate of his parents, docketed as Special
Proceedings No. Q-91-8507.1Pending the appointment of a regular administrator, Perico moved that he
be appointed as special administrator. He alleged that his brother, Rodolfo, was gradually dissipating the
assets of the estate. More particularly, Rodolfo was receiving rentals from real properties without
rendering any accounting, and forcibly opening vaults belonging to their deceased parents and disposing
of the cash and valuables therein.

Rodolfo moved for the dismissal of the petition on the ground of improper venue.2 He argued that the
deceased spouses did not reside in Quezon City either during their lifetime or at the time of their
deaths. The decedent’s actual residence was in Angeles City, Pampanga, where his late mother used to
run and operate a bakery. As the health of his parents deteriorated due to old age, they stayed in
Rodolfo’s residence at 61 Scout Gandia Street, Quezon City, solely for the purpose of obtaining medical
treatment and hospitalization. Rodolfo submitted documentary evidence previously executed by the
decedents, consisting of income tax returns, voter’s affidavits, statements of assets and liabilities, real
estate tax payments, motor vehicle registration and passports, all indicating that their permanent
residence was in Angeles City, Pampanga.1âwphi1.nêt

In his opposition,3 Perico countered that their deceased parents actually resided in Rodolfo’s house in
Quezon City at the time of their deaths. As a matter of fact, it was conclusively declared in their death
certificates that their last residence before they died was at 61 Scout Gandia Street, Quezon
City.4 Rodolfo himself even supplied the entry appearing on the death certificate of their mother,
Andrea, and affixed his own signature on the said document.

Rodolfo filed a rejoinder, stating that he gave the information regarding the decedents’ residence on the
death certificates in good faith and through honest mistake. He gave his residence only as reference,
considering that their parents were treated in their late years at the Medical City General Hospital in
Mandaluyong, Metro Manila. Their stay in his house was merely transitory, in the same way that they
were taken at different times for the same purpose to Perico’s residence at Legaspi Towers in Roxas
Boulevard. The death certificates could not, therefore, be deemed conclusive evidence of the
decedents’ residence in light of the other documents showing otherwise.5

The court required the parties to submit their respective nominees for the position.6 Both failed to
comply, whereupon the trial court ordered that the petition be archived.7

Subsequently, Perico moved that the intestate proceedings be revived.8 After the parties submitted the
names of their respective nominees, the trial court designated Justice Carlos L. Sundiam as special
administrator of the estate of Ignacio Jao Tayag and Andrea Jao.9

On April 6, 1994, the motion to dismiss filed by petitioner Rodolfo was denied, to wit:

A mere perusal of the death certificates of the spouses issued separately in 1988 and 1989,
respectively, confirm the fact that Quezon City was the last place of residence of the decedents.
Surprisingly, the entries appearing on the death certificate of Andrea V. Jao were supplied by
movant, Rodolfo V. Jao, whose signature appears in said document. Movant, therefore, cannot
disown his own representation by taking an inconsistent position other than his own admission.
xxx xxx xxx.

WHEREFORE, in view of the foregoing consideration, this court DENIES for lack of merit
movant’s motion to dismiss.
 SO ORDERED.10

Rodolfo filed a petition for certiorari with the Court of Appeals, which was docketed as CA-G.R. SP No.
35908. On December 11, 1996, the Court of Appeals rendered the assailed decision, the dispositive
portion of which reads:

WHEREFORE, no error, much less any grave abuse of discretion of the court a quo having been
shown, the petition for certiorari is hereby DISMISSED. The questioned order of the respondent
Judge is affirmed in toto.

SO ORDERED.11

Rodolfo’s motion for reconsideration was denied by the Court of Appeals in the assailed resolution
dated February 17, 1997.12 Hence, this petition for review, anchored on the following grounds:

RESPONDENT COURT HAD DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD

WITH THE LAW AND IS DIRECTLY CONTRADICTORY TO THE APPLICABLE DECISION ALREADY
RENDERED BY THIS HONORABLE COURT.

II

RESPONDENT COURT ERRED IN DISREGARDING THE RULING OF THIS HONORABLE COURT IN THE
CASE OF EUSEBIO VS. EUSEBIO, 100 PHILS. 593, WHICH CLEARLY INTERPRETED WHAT IS MEANT
BY RESIDENCE IN SEC. 1 OF RULE 73 OF THE RULES OF COURT.

III

RESPONDENT COURT ERRED IN HOLDING THAT PHYSICAL PRESENCE IN A PLACE AT THE TIME OF
DEATH IS DETERMINATIVE OF DECEDENT’S RESIDENCE RATHER THAN THE INTENTION OF THE
DECEDENTS TO ESTABLISH THEIR PERMANENT RESIDENCE IN ANOTHER PLACE.

IV

RESPONDENT COURT ERRED IN APPLYING BY ANALOGY THE RESIDENCE CONTEMPLATED IN SEC.

2 OF RULE 4 FOR THE PURPOSE OF SERVING SUMMONS TO A DEFENDANT IN A PERSONAL
ACTION TO THE RESIDENCE CONTEMPLATED IN SEC. 1 OF RULE 73 FOR THE PURPOSE OF
DETERMINING VENUE IN THE SETTLEMENT OF THE ESTATE OF A DECEASED.

RESPONDENT COURT ERRED IN GIVING MORE WEIGHT TO THE ENTRY OF PETITIONER AND
PRIVATE RESPONDENT IN THE RESPECTIVE DEATH CERTIFICATES OF THE DECEDENTS RATHER
THAN THE OVERWHELMING EVIDENCE SHOWING THE CLEAR INTENTION OF THE DECEDENTS TO
ESTABLISH THEIR PERMANENT RESIDENCE IN ANGELES CITY.

VI
 RESPONDENT COURT ERRED IN APPLYING THE PRINCIPLE OF ESTOPPEL AS AGAINST PETITIONER
WHICH CAN NOT BE MORE PERSUASIVE THAN THE CLEAR INTENTION OF THE DECEDENTS
THEMSELVES TO ESTABLISH PERMANENT RESIDENCE IN ANGELES CITY.

VII

RESPONDENT COURT ERRED IN DISMISSING THE PETITION FOR CERTIORARI DESPITE THE CLEAR
ABUSE OF DISCRETION ON THE PART OF THE TRIAL COURT IN INSISTING TO TAKE COGNIZANCE
OF SP. PROCEEDING NO. Q-91-8507.13

The main issue before us is: where should the settlement proceedings be had --- in Pampanga, where
the decedents had their permanent residence, or in Quezon City, where they actually stayed before
their demise?

Rule 73, Section 1 of the Rules of Court states:

Where estate of deceased persons be settled. – If the decedent is an inhabitant of the Philippines
at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the Court of First Instance in the province in
which he resides at the time of his death, and if he is an inhabitant of a foreign country, the
Court of First Instance of any province 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. (underscoring ours)

Clearly, the estate of an inhabitant of the Philippines shall be settled or letters of administration granted
in the proper court located in the province where the decedent resides at the time of his death.

Petitioner Rodolfo invokes our ruling in the case of Eusebio v. Eusebio, et al.,14 where we held that
the situs of settlement proceedings shall be the place where the decedent had his permanent residence
or domicile at the time of death. In determining residence at the time of death, the following factors
must be considered, namely, the decedent had: (a) capacity to choose and freedom of choice; (b)
physical presence at the place chosen; and (c) intention to stay therein permanently.15 While it appears
that the decedents in this case chose to be physically present in Quezon City for medical convenience,
petitioner avers that they never adopted Quezon City as their permanent residence.1âwphi1.nêt

The contention lacks merit.

The facts in Eusebio were different from those in the case at bar. The decedent therein, Andres Eusebio,
passed away while in the process of transferring his personal belongings to a house in Quezon City. He
was then suffering from a heart ailment and was advised by his doctor/son to purchase a Quezon City
residence, which was nearer to his doctor. While he was able to acquire a house in Quezon City, Eusebio
died even before he could move therein. In said case, we ruled that Eusebio retained his domicile --- and
hence, residence --- in San Fernando, Pampanga. It cannot be said that Eusebio changed his residence
because, strictly speaking, his physical presence in Quezon City was just temporary.

In the case at bar, there is substantial proof that the decedents have transferred to petitioner’s Quezon
City residence. Petitioner failed to sufficiently refute respondent’s assertion that their elderly parents
stayed in his house for some three to four years before they died in the late 1980s.
Furthermore, the decedents’ respective death certificates state that they were both residents of Quezon
City at the time of their demise. Significantly, it was petitioner himself who filled up his late mother’s
death certificate. To our mind, this unqualifiedly shows that at that time, at least, petitioner recognized
his deceased mother’s residence to be Quezon City. Moreover, petitioner failed to contest the entry in
Ignacio’s death certificate, accomplished a year earlier by respondent.

The recitals in the death certificates, which are admissible in evidence, were thus properly considered
and presumed to be correct by the court a quo. We agree with the appellate court’s observation that
since the death certificates were accomplished even before petitioner and respondent quarreled over
their inheritance, they may be relied upon to reflect the true situation at the time of their parents’
death.

The death certificates thus prevailed as proofs of the decedents’ residence at the time of death, over the
numerous documentary evidence presented by petitioner. To be sure, the documents presented by
petitioner pertained not toresidence at the time of death, as required by the Rules of Court, but
to permanent residence or domicile. In Garcia-Fule v. Court of Appeals,16 we held:

xxx xxx xxx the term "resides" connotes ex vi termini "actual residence" as distinguished from
"legal residence or domicile." This term "resides", like the terms "residing" and "residence", is
elastic and should be interpreted in the light of the object or purpose of the statute or rule in
which it is employed. In the application of venue statutes and rules – Section 1, Rule 73 of the
Revised Rules of Court is of such nature – residence rather than domicile is the significant factor.
Even where the statute uses the word "domicile" still it is construed as meaning residence and
not domicile in the technical sense. Some cases make a distinction between the terms
"residence" and "domicile" but as generally used in statutes fixing venue, the terms are
synonymous, and convey the same meaning as the term "inhabitant." In other words, "resides"
should be viewed or understood in its popular sense, meaning, the personal, actual or physical
habitation of a person, actual residence or place of abode. It signifies physical presence in a
place and actual stay thereat. In this popular sense, the term means merely residence, that is,
personal residence, not legal residence or domicile. Residence simply requires bodily presence
as an inhabitant in a given place, while domicile requires bodily presence in that place and also
an intention to make it one’s domicile. No particular length of time of residence is required
though; however, the residence must be more than temporary.17

Both the settlement court and the Court of Appeals found that the decedents have been living with
petitioner at the time of their deaths and for some time prior thereto. We find this conclusion to be
substantiated by the evidence on record. A close perusal of the challenged decision shows that, contrary
to petitioner’s assertion, the court below considered not only the decedents’ physical presence in
Quezon City, but also other factors indicating that the decedents’ stay therein was more than
temporary. In the absence of any substantial showing that the lower courts’ factual findings stemmed
from an erroneous apprehension of the evidence presented, the same must be held to be conclusive
and binding upon this Court.

Petitioner strains to differentiate between the venue provisions found in Rule 4, Section 2, 18 on ordinary
civil actions, and Rule 73, Section 1, which applies specifically to settlement proceedings. He argues that
while venue in the former understandably refers to actual physical residence for the purpose of serving
summons, it is the permanent residence of the decedent which is significant in Rule 73, Section 1.
Petitioner insists that venue for the settlement of estates can only refer to permanent residence or
domicile because it is the place where the records of the properties are kept and where most of the
decedents’ properties are located.
 Petitioner’s argument fails to persuade.

It does not necessarily follow that the records of a person’s properties are kept in the place where he
permanently resides. Neither can it be presumed that a person’s properties can be found mostly in the
place where he establishes his domicile. It may be that he has his domicile in a place different from that
where he keeps his records, or where he maintains extensive personal and business interests. No
generalizations can thus be formulated on the matter, as the question of where to keep records or
retain properties is entirely dependent upon an individual’s choice and peculiarities.

At any rate, petitioner is obviously splitting straws when he differentiates between venue in ordinary
civil actions and venue in special proceedings. In Raymond v. Court of Appeals19 and Bejer v. Court of
Appeals,20 we ruled that venue for ordinary civil actions and that for special proceedings have one and
the same meaning. As thus defined, "residence", in the context of venue provisions, means nothing
more than a person’s actual residence or place of abode, provided he resides therein with continuity
and consistency.21 All told, the lower court and the Court of Appeals correctly held that venue for the
settlement of the decedents’ intestate estate was properly laid in the Quezon City court.

WHEREFORE, in view of the foregoing, the petition is DENIED, and the decision of the Court of Appeals in
CA-G.R. SP No. 35908 is AFFIRMED.

SO ORDERED.

VENUE: INHABITANT OF A FOREIGN COUNTRY

PALAGANAS V PALAGANAS

This case is about the probate before Philippine court of a will executed abroad by a foreigner although
it has not been probated in its place of execution.

The Facts and the Case

On November 8, 2001 Ruperta C. Palaganas (Ruperta), a Filipino who became a naturalized United
States (U.S.) citizen, died single and childless. In the last will and testament she executed in California,
she designated her brother, Sergio C. Palaganas (Sergio), as the executor of her will for she had left
properties in the Philippines and in the U.S.

On May 19, 2003 respondent Ernesto C. Palaganas (Ernesto), another brother of Ruperta, filed with the
Regional Trial Court (RTC) of Malolos, Bulacan, a petition for the probate of Ruperta’s will and for his
appointment as special administrator of her estate.1 On October 15, 2003, however, petitioners Manuel
Miguel Palaganas (Manuel) and Benjamin Gregorio Palaganas (Benjamin), nephews of Ruperta, opposed
the petition on the ground that Ruperta’s will should not be probated in the Philippines but in the U.S.
where she executed it. Manuel and Benjamin added that, assuming Ruperta’s will could be probated in
the Philippines, it is invalid nonetheless for having been executed under duress and without the
testator’s full understanding of the consequences of such act. Ernesto, they claimed, is also not qualified
to act as administrator of the estate.

Meantime, since Ruperta’s foreign-based siblings, Gloria Villaluz and Sergio, were on separate occasions
in the Philippines for a short visit, respondent Ernesto filed a motion with the RTC for leave to take their
deposition, which it granted. On April, 13, 2004 the RTC directed the parties to submit their
memorandum on the issue of whether or not Ruperta’s U.S. will may be probated in and allowed by a
court in the Philippines.
On June 17, 2004 the RTC issued an order:2 (a) admitting to probate Ruperta’s last will; (b) appointing
respondent Ernesto as special administrator at the request of Sergio, the U.S.-based executor
designated in the will; and (c) issuing the Letters of Special Administration to Ernesto.

Aggrieved by the RTC’s order, petitioner nephews Manuel and Benjamin appealed to the Court of
Appeals (CA),3arguing that an unprobated will executed by an American citizen in the U.S. cannot be
probated for the first time in the Philippines.

On July 29, 2005 the CA rendered a decision,4 affirming the assailed order of the RTC,5 holding that the
RTC properly allowed the probate of the will, subject to respondent Ernesto’s submission of the
authenticated copies of the documents specified in the order and his posting of required bond. The CA
pointed out that Section 2, Rule 76 of the Rules of Court does not require prior probate and allowance
of the will in the country of its execution, before it can be probated in the Philippines. The present case,
said the CA, is different from reprobate, which refers to a will already probated and allowed abroad.
Reprobate is governed by different rules or procedures. Unsatisfied with the decision, Manuel and
Benjamin came to this Court.

The Issue Presented

The key issue presented in this case is whether or not a will executed by a foreigner abroad may be
probated in the Philippines although it has not been previously probated and allowed in the country
where it was executed.

The Court’s Ruling

Petitioners Manuel and Benjamin maintain that wills executed by foreigners abroad must first be
probated and allowed in the country of its execution before it can be probated here. This, they claim,
ensures prior compliance with the legal formalities of the country of its execution. They insist that local
courts can only allow probate of such wills if the proponent proves that: (a) the testator has been
admitted for probate in such foreign country, (b) the will has been admitted to probate there under its
laws, (c) the probate court has jurisdiction over the proceedings, (d) the law on probate procedure in
that foreign country and proof of compliance with the same, and (e) the legal requirements for the valid
execution of a will.

But our laws do not prohibit the probate of wills executed by foreigners abroad although the same have
not as yet been probated and allowed in the countries of their execution. A foreign will can be given
legal effects in our jurisdiction. Article 816 of the Civil Code states that the will of an alien who is abroad
produces effect in the Philippines if made in accordance with the formalities prescribed by the law of the
place where he resides, or according to the formalities observed in his country.6

In this connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides that if the decedent is
an inhabitant of a foreign country, the RTC of the province where he has an estate may take cognizance
of the settlement of such estate. Sections 1 and 2 of Rule 76 further state that the executor, devisee, or
legatee named in the will, or any other person interested in the estate, may, at any time after the death
of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in
his possession or not, or is lost or destroyed.

Our rules require merely that the petition for the allowance of a will must show, so far as known to the
petitioner: (a) the jurisdictional facts; (b) the names, ages, and residences of the heirs, legatees, and
devisees of the testator or decedent; (c) the probable value and character of the property of the estate;
(d) the name of the person for whom letters are prayed; and (e) if the will has not been delivered to the
 court, the name of the person having custody of it. Jurisdictional facts refer to the fact of death of the
decedent, his residence at the time of his death in the province where the probate court is sitting, or if
he is an inhabitant of a foreign country, the estate he left in such province.7The rules do not require
proof that the foreign will has already been allowed and probated in the country of its execution.

In insisting that Ruperta’s will should have been first probated and allowed by the court of California,
petitioners Manuel and Benjamin obviously have in mind the procedure for the reprobate of will before
admitting it here. But, reprobate or re-authentication of a will already probated and allowed in a foreign
country is different from that probate where the will is presented for the first time before a competent
court. Reprobate is specifically governed by Rule 77 of the Rules of Court. Contrary to petitioners’
stance, since this latter rule applies only to reprobate of a will, it cannot be made to apply to the present
case. In reprobate, the local court acknowledges as binding the findings of the foreign probate court
provided its jurisdiction over the matter can be established.

Besides, petitioners’ stand is fraught with impractically.1âwphi1 If the instituted heirs do not have the
means to go abroad for the probate of the will, it is as good as depriving them outright of their
inheritance, since our law requires that no will shall pass either real or personal property unless the will
has been proved and allowed by the proper court.8

Notably, the assailed RTC order of June 17, 2004 is nothing more than an initial ruling that the court can
take cognizance of the petition for probate of Ruperta’s will and that, in the meantime, it was
designating Ernesto as special administrator of the estate. The parties have yet to present evidence of
the due execution of the will, i.e. the testator’s state of mind at the time of the execution and
compliance with the formalities required of wills by the laws of California. This explains the trial court’s
directive for Ernesto to submit the duly authenticated copy of Ruperta’s will and the certified copies of
the Laws of Succession and Probate of Will of California.

WHEREFORE, the Court DENIES the petition and AFFIRMS the Court of Appeals decision in CA-G.R. CV
83564 dated July 29, 2005.

SO ORDERED.

SEC. 2

AGTARAP V. AGTARAP

Before us are the consolidated petitions for review on certiorari of petitioners Sebastian G. Agtarap
(Sebastian)1 and Eduardo G. Agtarap (Eduardo),2 assailing the Decision dated November 21, 20063 and
the Resolution dated March 27, 20074 of the Court of Appeals (CA) in CA-G.R. CV No. 73916.

The antecedent facts and proceedings—

On September 15, 1994, Eduardo filed with the Regional Trial Court (RTC), Branch 114, Pasay City, a
verified petition for the judicial settlement of the estate of his deceased father Joaquin Agtarap
(Joaquin). It was docketed as Special Proceedings No. 94-4055.

The petition alleged that Joaquin died intestate on November 21, 1964 in Pasay City without any known
debts or obligations. During his lifetime, Joaquin contracted two marriages, first with Lucia Garcia
(Lucia),5 and second with Caridad Garcia (Caridad). Lucia died on April 24, 1924. Joaquin and Lucia had
three children—Jesus (died without issue), Milagros, and Jose (survived by three children, namely,
Gloria,6 Joseph, and Teresa7). Joaquin married Caridad on February 9, 1926. They also had three
children—Eduardo, Sebastian, and Mercedes (survived by her daughter Cecile). At the time of his death,
Joaquin left two parcels of land with improvements in Pasay City, covered by Transfer Certificates of
Title (TCT) Nos. 873-(38254) and 874-(38255). Joseph, a grandson of Joaquin, had been leasing and
improving the said realties and had been appropriating for himself ₱26,000.00 per month since April
1994.

Eduardo further alleged that there was an imperative need to appoint him as special administrator to
take possession and charge of the estate assets and their civil fruits, pending the appointment of a
regular administrator. In addition, he prayed that an order be issued (a) confirming and declaring the
named compulsory heirs of Joaquin who would be entitled to participate in the estate; (b) apportioning
and allocating unto the named heirs their aliquot shares in the estate in accordance with law; and (c)
entitling the distributees the right to receive and enter into possession those parts of the estate
individually awarded to them.

On September 26, 1994, the RTC issued an order setting the petition for initial hearing and directing
Eduardo to cause its publication.

On December 28, 1994, Sebastian filed his comment, generally admitting the allegations in the petition,
and conceding to the appointment of Eduardo as special administrator.

Joseph, Gloria, and Teresa filed their answer/opposition. They alleged that the two subject lots belong
to the conjugal partnership of Joaquin with Lucia, and that, upon Lucia’s death in April 1924, they
became the pro indiviso owners of the subject properties. They said that their residence was built with
the exclusive money of their late father Jose, and the expenses of the extensions to the house were
shouldered by Gloria and Teresa, while the restaurant (Manong’s Restaurant) was built with the
exclusive money of Joseph and his business partner. They opposed the appointment of Eduardo as
administrator on the following grounds: (1) he is not physically and mentally fit to do so; (2) his interest
in the lots is minimal; and (3) he does not possess the desire to earn. They claimed that the best
interests of the estate dictate that Joseph be appointed as special or regular administrator.

On February 16, 1995, the RTC issued a resolution appointing Eduardo as regular administrator of
Joaquin’s estate. Consequently, it issued him letters of administration.

On September 16, 1995, Abelardo Dagoro filed an answer in intervention, alleging that Mercedes is
survived not only by her daughter Cecile, but also by him as her husband. He also averred that there is a
need to appoint a special administrator to the estate, but claimed that Eduardo is not the person best
qualified for the task.

After the parties were given the opportunity to be heard and to submit their respective proposed
projects of partition, the RTC, on October 23, 2000, issued an Order of Partition,8 with the following
disposition—

In the light of the filing by the heirs of their respective proposed projects of partition and the payment
of inheritance taxes due the estate as early as 1965, and there being no claim in Court against the estate
of the deceased, the estate of JOAQUIN AGTARAP is now consequently – ripe – for distribution among
the heirs minus the surviving spouse Caridad Garcia who died on August 25, 1999.

Considering that the bulk of the estate property were acquired during the existence of the second
marriage as shown by TCT No. (38254) and TCT No. (38255) which showed on its face that decedent was
married to Caridad Garcia, which fact oppositors failed to contradict by evidence other than their
negative allegations, the greater part of the estate is perforce accounted by the second marriage and
the compulsory heirs thereunder.

The Administrator, Eduardo Agtarap rendered a true and just accounting of his administration from his
date of assumption up to the year ending December 31, 1996 per Financial and Accounting Report dated
June 2, 1997 which was approved by the Court. The accounting report included the income earned and
received for the period and the expenses incurred in the administration, sustenance and allowance of
the widow. In accordance with said Financial and Accounting Report which was duly approved by this
Court in its Resolution dated July 28, 1998 – the deceased JOAQUIN AGTARAP left real properties
consisting of the following:

I LAND:

Two lots and two buildings with one garage quarter located at #3030 Agtarap St., Pasay City, covered by
Transfer Certificate of Title Nos. 38254 and 38255 and registered with the Registry of Deeds of Pasay
City, Metro Manila, described as follows:

TCT NO. LOT NO. AREA/SQ.M. ZONAL VALUE AMOUNT

38254 745-B-1 1,335 sq. m. ₱5,000.00 ₱6,675,000.00

38255 745-B-2 1,331 sq. m. ₱5,000.00 ₱6,655,000.00

TOTAL------------------------------------------------------------- ₱13,330,000.00

II BUILDINGS AND IMPROVEMENTS:

BUILDING I (Lot # 745-B-1) ------------------------------ ₱350,000.00

BUILDING II (Lot # 745-B-2) ----------------------------- 320,000.00

Building Improvements -------------------------------------- 97,500.00

Restaurant ------------------------------------------------------ 80,000.00

TOTAL --------------------------------------------------------- ₱847,500.00

TOTAL NET WORTH ----------------------------------------- ₱14,177,500.00

WHEREFORE, the net assets of the estate of the late JOAQUIN AGTARAP with a total value of
₱14,177,500.00, together with whatever interest from bank deposits and all other incomes or
increments thereof accruing after the Accounting Report of December 31, 1996, after deducting
therefrom the compensation of the administrator and other expenses allowed by the Court, are hereby
ordered distributed as follows:

TOTAL ESTATE – ₱14,177,500.00

CARIDAD AGTARAP – ½ of the estate as her conjugal share – ₱7,088,750.00, the other half of
₱7,088,750.00 – to be divided among the compulsory heirs as follows:
 1) JOSE (deceased) - ₱1,181,548.30

2) MILAGROS (deceased) - ₱1,181,548.30

3) MERCEDES (deceased) - ₱1,181,548.30

4) SEBASTIAN - ₱1,181,548.30

5) EDUARDO - ₱1,181,548.30

6) CARIDAD - ₱1,181,548.30

The share of Milagros Agtarap as compulsory heir in the amount of ₱1,181,548.30 and who died in 1996
will go to Teresa Agtarap and Joseph Agtarap, Walter de Santos and half brothers Eduardo and Sebastian
Agtarap in equal proportions.

TERESA AGTARAP - ₱236,291.66

JOSEPH AGTARAP - ₱236,291.66

WALTER DE SANTOS - ₱236,291.66

SEBASTIAN AGTARAP - ₱236,291.66

EDUARDO AGTARAP - ₱236,291.66

Jose Agtarap died in 1967. His compulsory heirs are as follows:

COMPULSORY HEIRS:

1) GLORIA – (deceased) – represented by Walter de Santos –

- ₱295,364.57

2) JOSEPH AGTARAP - ₱295,364.57

3) TERESA AGTARAP - ₱295,364.57

4) PRISCILLA AGTARAP - ₱295,364.57

Hence, Priscilla Agtarap will inherit ₱295,364.57.

Adding their share from Milagros Agtarap, the following heirs of the first marriage stand to receive the
total amount of:

HEIRS OF THE FIRST MARRIAGE:

1avvphi1
1) JOSEPH AGTARAP - ₱236,291.66 – share from Milagros Agtarap

₱295,364.57 – as compulsory heir of

 ₱531,656.23 Jose Agtarap

2) TERESA AGTARAP - ₱236,291.66 – share from Milagros Agtarap

₱295,364.57 – as compulsory heir of

₱531,656.23 Jose Agtarap

3) WALTER DE SANTOS - ₱236,291.66 – share from Milagros Agtarap

₱295,364.57 – as compulsory heir of

₱531,656.23 Jose Agtarap

HEIRS OF THE SECOND MARRIAGE:

a) CARIDAD AGTARAP - died on August 25, 1999

₱7,088,750.00 - as conjugal share

₱1,181,458.30 - as compulsory heir

Total of ₱8,270,208.30

b) SEBASTIAN AGTARAP - ₱1,181,458.38 – as compulsory heir

₱ 236,291.66 – share from Milagros

c) EDUARDO AGTARAP - ₱1,181,458.38 – as compulsory heir

₱ 236,291.66 – share from Milagros

d) MERCEDES - as represented by Abelardo Dagoro as the

surviving spouse of a compulsory heir

₱1,181,458.38

REMAINING HEIRS OF CARIDAD AGTARAP:

1) SEBASTIAN AGTARAP

2) EDUARDO AGTARAP
MERCEDES AGTARAP (Predeceased Caridad Agtarap)

In sum, Sebastian Agtarap and Eduardo Agtarap stand to inherit:

SEBASTIAN – ₱4,135,104.10 – share from Caridad Garcia

₱1,181,458.30 - as compulsory heir
₱ 236,291.66 - share from Milagros

₱5,522,854.06
 EDUARDO – ₱4,135,104.10 – share from Caridad Garcia
₱1,181,458.30 – as compulsory heir
₱ 236,291.66 – share from Milagros

₱5,522,854.06

SO ORDERED.9

Eduardo, Sebastian, and oppositors Joseph and Teresa filed their respective motions for reconsideration.

On August 27, 2001, the RTC issued a resolution10 denying the motions for reconsideration of Eduardo
and Sebastian, and granting that of Joseph and Teresa. It also declared that the real estate properties
belonged to the conjugal partnership of Joaquin and Lucia. It also directed the modification of the
October 23, 2000 Order of Partition to reflect the correct sharing of the heirs. However, before the RTC
could issue a new order of partition, Eduardo and Sebastian both appealed to the CA.

On November 21, 2006, the CA rendered its Decision, the dispositive portion of which reads—

WHEREFORE, premises considered, the instant appeals are DISMISSED for lack of merit. The assailed
Resolution dated August 27, 2001 is AFFIRMED and pursuant thereto, the subject properties (Lot No.
745-B-1 [TCT No. 38254] and Lot No. 745-B-2 [TCT No. 38255]) and the estate of the late Joaquin
Agtarap are hereby partitioned as follows:

The two (2) properties, together with their improvements, embraced by TCT No. 38254 and TCT No.
38255, respectively, are first to be distributed among the following:

Lucia Mendietta - ½ of the property. But since she is deceased, her share shall be inherited by Joaquin,
Jesus, Milagros and Jose in equal shares.

Joaquin Agtarap - ½ of the property and ¼ of the other half of the property which pertains to Lucia
Mendietta’s share.

Jesus Agtarap - ¼ of Lucia Mendietta’s share. But since he is already deceased (and died without issue),
his inheritance shall, in turn, be acquired by Joaquin Agtarap.

Milagros Agtarap - ¼ of Lucia Mendietta’s share. But since she died in 1996 without issue, 5/8 of her
inheritance shall be inherited by Gloria (represented by her husband Walter de Santos and her daughter
Samantha), Joseph Agtarap and Teresa Agtarap, (in representation of Milagros’ brother Jose Agtarap)
and 1/8 each shall be inherited by Mercedes (represented by her husband Abelardo Dagoro and her
daughter Cecile), Sebastian Eduardo, all surnamed Agtarap.

Jose Agtarap - ¼ of Lucia Mendietta’s share. But since he died in 1967, his inheritance shall be acquired
by his wife Priscilla, and children Gloria (represented by her husband Walter de Santos and her daughter
Samantha), Joseph Agtarap and Teresa in equal shares.

Then, Joaquin Agtarap’s estate, comprising three-fourths (3/4) of the subject properties and its
improvements, shall be distributed as follows:
Caridad Garcia - 1/6 of the estate. But since she died in 1999, her share shall be inherited by her children
namely Mercedes Agtarap (represented by her husband Abelardo Dagoro and her daughter Cecilia),
Sebastian Agtarap and Eduardo Agtarap in their own right, dividing the inheritance in equal shares.

Milagros Agtarap - 1/6 of the estate. But since she died in 1996 without issue, 5/8 of her inheritance
shall be inherited by Gloria (represented by her husband Walter de Santos and her daughter Samantha),
Joseph Agtarap and Teresa Agtarap, (in representation of Milagros’ brother Jose Agtarap) and 1/8 each
shall be inherited by Mercedes (represented by her husband Abelardo Dagoro and her daughter Cecile),
Sebastian and Eduardo, all surnamed Agtarap.

Jose Agtarap - 1/6 of the estate. But since he died in 1967, his inheritance shall be acquired by his wife
Priscilla, and children Gloria (represented by her husband Walter de Santos and her daughter
Samantha), Joseph Agtarap and Teresa Agtarap in equal shares.

Mercedes Agtarap - 1/6 of the estate. But since she died in 1984, her inheritance shall be acquired by
her husband Abelardo Dagoro and her daughter Cecile in equal shares.

Sebastian Agtarap - 1/6 of the estate.

Eduardo Agtarap - 1/6 of the estate.

SO ORDERED.11

Aggrieved, Sebastian and Eduardo filed their respective motions for reconsideration.

In its Resolution dated March 27, 2007, the CA denied both motions. Hence, these petitions ascribing to
the appellate court the following errors:

G.R. No. 177192

1. – The Court of Appeals erred in not considering the aforementioned important facts12 which
alter its Decision;

2. – The Court of Appeals erred in not considering the necessity of hearing the issue of
legitimacy of respondents as heirs;

3. – The Court of Appeals erred in allowing violation of the law and in not applying the doctrines
of collateral attack, estoppel, and res judicata.13

G.R. No. 177099

THE COURT OF APPEALS (FORMER TWELFTH DIVISION) DID NOT ACQUIRE JURISDICTION OVER THE
ESTATE OF MILAGROS G. AGTARAP AND ERRED IN DISTRIBUTING HER INHERITANCE FROM THE ESTATE
OF JOAQUIN AGTARAP NOTWITHSTANDING THE EXISTENCE OF HER LAST WILL AND TESTAMENT IN
VIOLATION OF THE DOCTRINE OF PRECEDENCE OF TESTATE PROCEEDINGS OVER INTESTATE
PROCEEDINGS.

II.

THE COURT OF APPEALS (FORMER TWELFTH DIVISION) ERRED IN DISMISSING THE DECISION APPEALED
FROM FOR LACK OF MERIT AND IN AFFIRMING THE ASSAILED RESOLUTION DATED AUGUST 27, 2001 OF
THE LOWER COURT HOLDING THAT THE PARCELS OF LAND COVERED BY TCT NO. 38254 AND TCT (NO.)
38255 OF THE REGISTRY OF DEEDS FOR THE CITY OF PASAY BELONG TO THE CONJUGAL PARTNERSHIP
OF JOAQUIN AGTARAP MARRIED TO LUCIA GARCIA MENDIETTA NOTWITHSTANDING THEIR
REGISTRATION UNDER THEIR EXISTING CERTIFICATES OF TITLE AS REGISTERED IN THE NAME OF
JOAQUIN AGTARAP, CASADO CON CARIDAD GARCIA. UNDER EXISTING JURISPRUDENCE, THE PROBATE
COURT HAS NO POWER TO DETERMINE THE OWNERSHIP OF THE PROPERTY DESCRIBED IN THESE
CERTIFICATES OF TITLE WHICH SHOULD BE RESOLVED IN AN APPROPRIATE SEPARATE ACTION FOR A
TORRENS TITLE UNDER THE LAW IS ENDOWED WITH INCONTESTABILITY UNTIL IT HAS BEEN SET ASIDE
IN THE MANNER INDICATED IN THE LAW ITSELF.14

As regards his first and second assignments of error, Sebastian contends that Joseph and Teresa failed to
establish by competent evidence that they are the legitimate heirs of their father Jose, and thus of their
grandfather Joaquin. He draws attention to the certificate of title (TCT No. 8026) they submitted, stating
that the wife of their father Jose is Presentacion Garcia, while they claim that their mother is Priscilla. He
avers that the marriage contracts proffered by Joseph and Teresa do not qualify as the best evidence of
Jose’s marriage with Priscilla, inasmuch as they were not authenticated and formally offered in
evidence. Sebastian also asseverates that he actually questioned the legitimacy of Joseph and Teresa as
heirs of Joaquin in his motion to exclude them as heirs, and in his reply to their opposition to the said
motion. He further claims that the failure of Abelardo Dagoro and Walter de Santos to oppose his
motion to exclude them as heirs had the effect of admitting the allegations therein. He points out that
his motion was denied by the RTC without a hearing.

With respect to his third assigned error, Sebastian maintains that the certificates of title of real estate
properties subject of the controversy are in the name of Joaquin Agtarap, married to Caridad Garcia, and
as such are conclusive proof of their ownership thereof, and thus, they are not subject to collateral
attack, but should be threshed out in a separate proceeding for that purpose. He likewise argues that
estoppel applies against the children of the first marriage, since none of them registered any objection
to the issuance of the TCTs in the name of Caridad and Joaquin only. He avers that the estate must have
already been settled in light of the payment of the estate and inheritance tax by Milagros, Joseph, and
Teresa, resulting to the issuance of TCT No. 8925 in Milagros’ name and of TCT No. 8026 in the names of
Milagros and Jose. He also alleges that res judicata is applicable as the court order directing the deletion
of the name of Lucia, and replacing it with the name of Caridad, in the TCTs had long become final and
executory.

In his own petition, with respect to his first assignment of error, Eduardo alleges that the CA erroneously
settled, together with the settlement of the estate of Joaquin, the estates of Lucia, Jesus, Jose,
Mercedes, Gloria, and Milagros, in contravention of the principle of settling only one estate in one
proceeding. He particularly questions the distribution of the estate of Milagros in the intestate
proceedings despite the fact that a proceeding was conducted in another court for the probate of the
will of Milagros, bequeathing all to Eduardo whatever share that she would receive from Joaquin’s
estate. He states that this violated the rule on precedence of testate over intestate proceedings.

Anent his second assignment of error, Eduardo contends that the CA gravely erred when it affirmed that
the bulk of the realties subject of this case belong to the first marriage of Joaquin to Lucia,
notwithstanding that the certificates of title were registered in the name of Joaquin Agtarap casado con
("married to") Caridad Garcia. According to him, the RTC, acting as an intestate court with limited
jurisdiction, was not vested with the power and authority to determine questions of ownership, which
properly belongs to another court with general jurisdiction.

The Court’s Ruling

As to Sebastian’s and Eduardo’s common issue on the ownership of the subject real properties, we hold
that the RTC, as an intestate court, had jurisdiction to resolve the same.

The general rule is that the jurisdiction of the trial court, either as a probate or an intestate court,
relates only to matters having to do with the probate of the will and/or settlement of the estate of
deceased persons, but does not extend to the determination of questions of ownership that arise during
the proceedings.15 The patent rationale for this rule is that such court merely exercises special and
limited jurisdiction.16 As held in several cases,17 a probate court or one in charge of estate proceedings,
whether testate or intestate, cannot adjudicate or determine title to properties claimed to be a part of
the estate and which are claimed to belong to outside parties, not by virtue of any right of inheritance
from the deceased but by title adverse to that of the deceased and his estate. All that the said court
could do as regards said properties is to determine whether or not they should be included in the
inventory of properties to be administered by the administrator. If there is no dispute, there poses no
problem, but if there is, then the parties, the administrator, and the opposing parties have to resort to
an ordinary action before a court exercising general jurisdiction for a final determination of the
conflicting claims of title.

However, this general rule is subject to exceptions as justified by expediency and convenience.

First, the probate court may provisionally pass upon in an intestate or a testate proceeding the question
of inclusion in, or exclusion from, the inventory of a piece of property without prejudice to the final
determination of ownership in a separate action.18 Second, if the interested parties are all heirs to the
estate, or the question is one of collation or advancement, or the parties consent to the assumption of
jurisdiction by the probate court and the rights of third parties are not impaired, then the probate court
is competent to resolve issues on ownership.19 Verily, its jurisdiction extends to matters incidental or
collateral to the settlement and distribution of the estate, such as the determination of the status of
each heir and whether the property in the inventory is conjugal or exclusive property of the deceased
spouse.20

We hold that the general rule does not apply to the instant case considering that the parties are all heirs
of Joaquin and that no rights of third parties will be impaired by the resolution of the ownership issue.
More importantly, the determination of whether the subject properties are conjugal is but collateral to
the probate court’s jurisdiction to settle the estate of Joaquin.1auuphi1

It should be remembered that when Eduardo filed his verified petition for judicial settlement of
Joaquin’s estate, he alleged that the subject properties were owned by Joaquin and Caridad since the
TCTs state that the lots were registered in the name of Joaquin Agtarap, married to Caridad Garcia. He
also admitted in his petition that Joaquin, prior to contracting marriage with Caridad, contracted a first
marriage with Lucia. Oppositors to the petition, Joseph and Teresa, however, were able to present proof
before the RTC that TCT Nos. 38254 and 38255 were derived from a mother title, TCT No. 5239, dated
March 17, 1920, in the name of FRANCISCO VICTOR BARNES Y JOAQUIN AGTARAP, el primero casado
con Emilia Muscat, y el Segundo con Lucia Garcia Mendietta (FRANCISCO VICTOR BARNES y JOAQUIN
AGTARAP, the first married to Emilia Muscat, and the second married to Lucia Garcia
Mendietta).21 When TCT No. 5239 was divided between Francisco Barnes and Joaquin Agtarap, TCT No.
10864, in the name of Joaquin Agtarap, married to Lucia Garcia Mendietta, was issued for a parcel of
land, identified as Lot No. 745 of the Cadastral Survey of Pasay, Cadastral Case No. 23, G.L.R.O. Cadastral
Record No. 1368, consisting of 8,872 square meters. This same lot was covered by TCT No. 5577
(32184)22 issued on April 23, 1937, also in the name of Joaquin Agtarap, married to Lucia Garcia
Mendietta.
The findings of the RTC and the CA show that Lucia died on April 24, 1924, and subsequently, on
February 9, 1926, Joaquin married Caridad. It is worthy to note that TCT No. 5577 (32184) contained an
annotation, which reads—

Ap-4966 – NOTA: Se ha enmendado el presente certificado de titulo, tal como aparece, tanchando las
palabras "con Lucia Garcia Mendiet[t]a" y poniendo en su lugar, entre lineas y en tinta encarnada, las
palabras "en segundas nupcias con Caridad Garcia", en complimiento de un orden de fecha 28 de abril
de 1937, dictada por el Hon. Sixto de la Costa, juez del Juzgado de Primera Instancia de Rizal, en el
expediente cadastal No. 23, G.L.R.O. Cad. Record No. 1368; copia de cual orden has sido presentada con
el No. 4966 del Libro Diario, Tomo 6.0 y, archivada en el Legajo T-No. 32184.

Pasig, Rizal, a 29 abril de 1937.23

Thus, per the order dated April 28, 1937 of Hon. Sixto de la Costa, presiding judge of the Court of First
Instance of Rizal, the phrase con Lucia Garcia Mendiet[t]a was crossed out and replaced by en segundas
nuptias con Caridad Garcia, referring to the second marriage of Joaquin to Caridad. It cannot be
gainsaid, therefore, that prior to the replacement of Caridad’s name in TCT No. 32184, Lucia, upon her
demise, already left, as her estate, one-half (1/2) conjugal share in TCT No. 32184. Lucia’s share in the
property covered by the said TCT was carried over to the properties covered by the certificates of title
derivative of TCT No. 32184, now TCT Nos. 38254 and 38255. And as found by both the RTC and the CA,
Lucia was survived by her compulsory heirs – Joaquin, Jesus, Milagros, and Jose.

Section 2, Rule 73 of the Rules of Court provides that when the marriage is dissolved by the death of the
husband or the wife, the community property shall be inventoried, administered, and liquidated, and
the debts thereof paid; in the testate or intestate proceedings of the deceased spouse, and if both
spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of
either. Thus, the RTC had jurisdiction to determine whether the properties are conjugal as it had to
liquidate the conjugal partnership to determine the estate of the decedent. In fact, should Joseph and
Teresa institute a settlement proceeding for the intestate estate of Lucia, the same should be
consolidated with the settlement proceedings of Joaquin, being Lucia’s spouse.24 Accordingly, the CA
correctly distributed the estate of Lucia, with respect to the properties covered by TCT Nos. 38254 and
38255 subject of this case, to her compulsory heirs.

Therefore, in light of the foregoing evidence, as correctly found by the RTC and the CA, the claim of
Sebastian and Eduardo that TCT Nos. 38254 and 38255 conclusively show that the owners of the
properties covered therein were Joaquin and Caridad by virtue of the registration in the name of
Joaquin Agtarap casado con (married to) Caridad Garcia, deserves scant consideration. This cannot be
said to be a collateral attack on the said TCTs. Indeed, simple possession of a certificate of title is not
necessarily conclusive of a holder’s true ownership of property.25 A certificate of title under the Torrens
system aims to protect dominion; it cannot be used as an instrument for the deprivation of
ownership.26 Thus, the fact that the properties were registered in the name of Joaquin Agtarap, married
to Caridad Garcia, is not sufficient proof that the properties were acquired during the spouses’
coverture.27The phrase "married to Caridad Garcia" in the TCTs is merely descriptive of the civil status of
Joaquin as the registered owner, and does not necessarily prove that the realties are their conjugal
properties.28

Neither can Sebastian’s claim that Joaquin’s estate could have already been settled in 1965 after the
payment of the inheritance tax be upheld. Payment of the inheritance tax, per se, does not settle the
estate of a deceased person. As provided in Section 1, Rule 90 of the Rules of Court—
SECTION 1. When order for distribution of residue made. -- When the debts, funeral charges, and
expenses of administration, the allowance to the widow, and inheritance tax, if any, chargeable to the
estate in accordance with law, have been paid, the court, on the application of the executor or
administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the
residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to
which each is entitled, and such persons may demand and recover their respective shares from the
executor or administrator, or any other person having the same in his possession. If there is a
controversy before the court as to who are the lawful heirs of the deceased person or as to the
distributive share to which each person is entitled under the law, the controversy shall be heard and
decided as in ordinary cases.

No distribution shall be allowed until the payment of the obligations above mentioned has been made
or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court,
conditioned for the payment of said obligations within such time as the court directs.

Thus, an estate is settled and distributed among the heirs only after the payment of the debts of the
estate, funeral charges, expenses of administration, allowance to the widow, and inheritance tax. The
records of these cases do not show that these were complied with in 1965.

As regards the issue raised by Sebastian on the legitimacy of Joseph and Teresa, suffice it to say that
both the RTC and the CA found them to be the legitimate children of Jose. The RTC found that Sebastian
did not present clear and convincing evidence to support his averments in his motion to exclude them as
heirs of Joaquin, aside from his negative allegations. The RTC also noted the fact of Joseph and Teresa
being the children of Jose was never questioned by Sebastian and Eduardo, and the latter two even
admitted this in their petitions, as well as in the stipulation of facts in the August 21, 1995
hearing.29 Furthermore, the CA affirmed this finding of fact in its November 21, 2006 Decision.30

Also, Sebastian’s insistence that Abelardo Dagoro and Walter de Santos are not heirs to the estate of
Joaquin cannot be sustained. Per its October 23, 2000 Order of Partition, the RTC found that Gloria
Agtarap de Santos died on May 4, 1995, and was later substituted in the proceedings below by her
husband Walter de Santos. Gloria begot a daughter with Walter de Santos, Georgina Samantha de
Santos. The RTC likewise noted that, on September 16, 1995, Abelardo Dagoro filed a motion for leave
of court to intervene, alleging that he is the surviving spouse of Mercedes Agtarap and the father of
Cecilia Agtarap Dagoro, and his answer in intervention. The RTC later granted the motion, thereby
admitting his answer on October 18, 1995.31 The CA also noted that, during the hearing of the motion to
intervene on October 18, 1995, Sebastian and Eduardo did not interpose any objection when the
intervention was submitted to the RTC for resolution.32

Indeed, this Court is not a trier of facts, and there appears no compelling reason to hold that both courts
erred in ruling that Joseph, Teresa, Walter de Santos, and Abelardo Dagoro rightfully participated in the
estate of Joaquin. It was incumbent upon Sebastian to present competent evidence to refute his and
Eduardo’s admissions that Joseph and Teresa were heirs of Jose, and thus rightful heirs of Joaquin, and
to timely object to the participation of Walter de Santos and Abelardo Dagoro. Unfortunately, Sebastian
failed to do so. Nevertheless, Walter de Santos and Abelardo Dagoro had the right to participate in the
estate in representation of the Joaquin’s compulsory heirs, Gloria and Mercedes, respectively.33

This Court also differs from Eduardo’s asseveration that the CA erred in settling, together with Joaquin’s
estate, the respective estates of Lucia, Jesus, Jose, Mercedes, and Gloria. A perusal of the November 21,
2006 CA Decision would readily show that the disposition of the properties related only to the
settlement of the estate of Joaquin. Pursuant to Section 1, Rule 90 of the Rules of Court, as cited above,
the RTC was specifically granted jurisdiction to determine who are the lawful heirs of Joaquin, as well as
 their respective shares after the payment of the obligations of the estate, as enumerated in the said
provision. The inclusion of Lucia, Jesus, Jose, Mercedes, and Gloria in the distribution of the shares was
merely a necessary consequence of the settlement of Joaquin’s estate, they being his legal heirs.

However, we agree with Eduardo’s position that the CA erred in distributing Joaquin’s estate pertinent
to the share allotted in favor of Milagros. Eduardo was able to show that a separate proceeding was
instituted for the probate of the will allegedly executed by Milagros before the RTC, Branch 108, Pasay
City.34 While there has been no showing that the alleged will of Milagros, bequeathing all of her share
from Joaquin’s estate in favor of Eduardo, has already been probated and approved, prudence dictates
that this Court refrain from distributing Milagros’ share in Joaquin’s estate.

It is also worthy to mention that Sebastian died on January 15, 2010, per his Certificate of Death.35 He is
survived by his wife Teresita B. Agtarap (Teresita) and his children Joaquin Julian B. Agtarap (Joaquin
Julian) and Ana Ma. Agtarap Panlilio (Ana Ma.).

Henceforth, in light of the foregoing, the assailed November 21, 2006 Decision and the March 27, 2007
Resolution of the CA should be affirmed with modifications such that the share of Milagros shall not yet
be distributed until after the final determination of the probate of her purported will, and that Sebastian
shall be represented by his compulsory heirs.

WHEREFORE, the petition in G.R. No. 177192 is DENIED for lack of merit, while the petition in G.R. No.
177099 is PARTIALLY GRANTED, such that the Decision dated November 21, 2006 and the Resolution
dated March 27, 2007 of the Court of Appeals are AFFIRMED with the following MODIFICATIONS: that
the share awarded in favor of Milagros Agtarap shall not be distributed until the final determination of
the probate of her will, and that petitioner Sebastian G. Agtarap, in view of his demise on January 15,
2010, shall be represented by his wife Teresita B. Agtarap and his children Joaquin Julian B. Agtarap and
Ana Ma. Agtarap Panlilio.

These cases are hereby remanded to the Regional Trial Court, Branch 114, Pasay City, for further
proceedings in the settlement of the estate of Joaquin Agtarap. No pronouncement as to costs.

SO ORDERED.

ALIPIO V. CA

The question for decision in this case is whether a creditor can sue the surviving spouse for the
collection of a debt which is owed by the conjugal partnership of gains, or whether such claim must be
filed in proceedings for the settlement of the estate of the decedent. The trial court and the Court of
Appeals ruled in the affirmative. We reverse.

The facts are as follows:

Respondent Romeo Jaring1 was the lessee of a 14.5 hectare fishpond in Barito, Mabuco, Hermosa,
Bataan. The lease was for a period of five years ending on September 12, 1990. On June 19, 1987, he
subleased the fishpond, for the remaining period of his lease, to the spouses Placido and Purita Alipio
and the spouses Bienvenido and Remedios Manuel. The stipulated amount of rent was ₱485,600.00,
payable in two installments of ₱300,000.00 and ₱185,600.00, with the second installment falling due on
June 30, 1989. Each of the four sublessees signed the contract.

The first installment was duly paid, but of the second installment, the sublessees only satisfied a portion
thereof, leaving an unpaid balance of ₱50,600.00. Despite due demand, the sublessees failed to comply
with their obligation, so that, on October 13, 1989, private respondent sued the Alipio and Manuel
spouses for the collection of the said amount before the Regional Trial Court, Branch 5, Dinalupihan,
Bataan. In the alternative, he prayed for the rescission of the sublease contract should the defendants
fail to pay the balance.

Petitioner Purita Alipio moved to dismiss the case on the ground that her husband, Placido Alipio, had
passed away on December 1, 1988.2 She based her action on Rule 3, §21 of the 1964 Rules of Court
which then provided that "when the action is for recovery of money, debt or interest thereon, and the
defendant dies before final judgment in the Court of First Instance, it shall be dismissed to be
prosecuted in the manner especially provided in these rules." This provision has been amended so that
now Rule 3, §20 of the 1997 Rules of Civil Procedure provides:

When the action is for the recovery of money arising from contract, express or implied, and the
defendant dies before entry of final judgment in the court in which the action was pending at the time
of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final
judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner
especially provided in these Rules for prosecuting claims against the estate of a deceased person.

The trial court denied petitioner's motion on the ground that since petitioner was herself a party to the
sublease contract, she could be independently impleaded in the suit together with the Manuel spouses
and that the death of her husband merely resulted in his exclusion from the case.3 The Manuel spouses
failed to file their answer. For this reason, they were declared in default.

On February 26, 1991, the lower court rendered judgment after trial, ordering petitioner and the
Manuel spouses to pay private respondent the unpaid balance of ₱50,600.00 plus attorney's fees in the
amount of ₱10,000.00 and the costs of the suit.

Petitioner appealed to the Court of Appeals on the ground that the trial court erred in denying her
motion to dismiss. In its decision4 rendered on July 10, 1997, the appellate court dismissed her appeal. It
held:

The rule that an action for recovery of money, debt or interest thereon must be dismissed when the
defendant dies before final judgment in the regional trial court, does not apply where there are other
defendants against whom the action should be maintained. This is the teaching of Climaco v. Siy Uy,
wherein the Supreme Court held:

Upon the facts alleged in the complaint, it is clear that Climaco had a cause of action against the persons
named as defendants therein. It was, however, a cause of action for the recovery of damages, that is, a
sum of money, and the corresponding action is, unfortunately, one that does not survive upon the death
of the defendant, in accordance with the provisions of Section 21, Rule 3 of the Rules of Court.

xxx xxx xxx

However, the deceased Siy Uy was not the only defendant, Manuel Co was also named defendant in the
complaint. Obviously, therefore, the order appealed from is erroneous insofar as it dismissed the case
against Co. (Underlining added)

Moreover, it is noted that all the defendants, including the deceased, were signatories to the contract of
sub-lease. The remaining defendants cannot avoid the action by claiming that the death of one of the
parties to the contract has totally extinguished their obligation as held in Imperial Insurance, Inc. v.
David:
We find no merit in this appeal. Under the law and well settled jurisprudence, when the obligation is a
solidary one, the creditor may bring his action in toto against any of the debtors obligated in solidum.
Thus, if husband and wife bound themselves jointly and severally, in case of his death, her liability is
independent of and separate from her husband's; she may be sued for the whole debt and it would be
error to hold that the claim against her as well as the claim against her husband should be made in the
decedent's estate. (Agcaoili vs. Vda. de Agcaoili, 90 Phil. 97).5

Petitioner filed a motion for reconsideration, but it was denied on June 4, 1998.6 Hence this petition
based on the following assignment of errors:

A. THE RESPONDENT COURT COMMITTED REVERSIBLE ERROR IN APPLYING CLIMACO v. SIY UY,
19 SCRA 858, IN SPITE OF THE FACT THAT THE PETITIONER WAS NOT SEEKING THE DISMISSAL OF
THE CASE AGAINST REMAINING DEFENDANTS BUT ONLY WITH RESPECT TO THE CLAIM FOR
PAYMENT AGAINST HER AND HER HUSBAND WHICH SHOULD BE PROSECUTED AS A MONEY
CLAIM.

B. THE RESPONDENT COURT COMMITTED REVERSIBLE ERROR IN APPLYING IMPERIAL

INSURANCE INC. v. DAVID, 133 SCRA 317, WHICH IS NOT APPLICABLE BECAUSE THE SPOUSES IN
THIS CASE DID NOT BIND THEMSELVES JOINTLY AND SEVERALLY IN FAVOR OF RESPONDENT
JARING.7

The petition is meritorious. We hold that a creditor cannot sue the surviving spouse of a decedent in an
ordinary proceeding for the collection of a sum of money chargeable against the conjugal partnership
and that the proper remedy is for him to file a claim in the settlement of estate of the decedent.

First. Petitioner's husband died on December 1, 1988, more than ten months before private respondent
filed the collection suit in the trial court on October 13, 1989. This case thus falls outside of the ambit of
Rule 3, §21 which deals with dismissals of collection suits because of the death of the defendant during
the pendency of the case and the subsequent procedure to be undertaken by the plaintiff, i.e., the filing
of claim in the proceeding for the settlement of the decedent's estate. As already noted, Rule 3, §20 of
the 1997 Rules of Civil Procedure now provides that the case will be allowed to continue until entry of
final judgment. A favorable judgment obtained by the plaintiff therein will then be enforced in the
manner especially provided in the Rules for prosecuting claims against the estate of a deceased person.
The issue to be resolved is whether private respondent can, in the first place, file this case against
petitioner.

Petitioner and her late husband, together with the Manuel spouses, signed the sublease contract
binding themselves to pay the amount of stipulated rent. Under the law, the Alipios' obligation (and also
that of the Manuels) is one which is chargeable against their conjugal partnership. Under Art. 161(1) of
the Civil Code, the conjugal partnership is liable for ¾

All debts and obligations contracted by the husband for the benefit of the conjugal partnership, and
those contracted by the wife, also for the same purpose, in the cases where she may legally bind the
partnership.8

When petitioner's husband died, their conjugal partnership was automatically dissolved9 and debts
chargeable against it are to be paid in the settlement of estate proceedings in accordance with Rule 73,
§2 which states:

Where estate settled upon dissolution of marriage. ¾ When the marriage is dissolved by the death of the
husband or wife, the community property shall be inventoried, administered, and liquidated, and the
debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses have
died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either.

As held in Calma v. Tañedo,10 after the death of either of the spouses, no complaint for the collection of
indebtedness chargeable against the conjugal partnership can be brought against the surviving spouse.
Instead, the claim must be made in the proceedings for the liquidation and settlement of the conjugal
property. The reason for this is that upon the death of one spouse, the powers of administration of the
surviving spouse ceases and is passed to the administrator appointed by the court having jurisdiction
over the settlement of estate proceedings.11Indeed, the surviving spouse is not even a de
facto administrator such that conveyances made by him of any property belonging to the partnership
prior to the liquidation of the mass of conjugal partnership property is void.12

The ruling in Calma v. Tañedo was reaffirmed in the recent case of Ventura v. Militante.13 In that case,
the surviving wife was sued in an amended complaint for a sum of money based on an obligation
allegedly contracted by her and her late husband. The defendant, who had earlier moved to dismiss the
case, opposed the admission of the amended complaint on the ground that the death of her husband
terminated their conjugal partnership and that the plaintiff's claim, which was chargeable against the
partnership, should be made in the proceedings for the settlement of his estate. The trial court
nevertheless admitted the complaint and ruled, as the Court of Appeals did in this case, that since the
defendant was also a party to the obligation, the death of her husband did not preclude the plaintiff
from filing an ordinary collection suit against her. On appeal, the Court reversed, holding that ¾

as correctly argued by petitioner, the conjugal partnership terminates upon the death of either spouse. .
. . Where a complaint is brought against the surviving spouse for the recovery of an indebtedness
chargeable against said conjugal [partnership], any judgment obtained thereby is void. The proper
action should be in the form of a claim to be filed in the testate or intestate proceedings of the deceased
spouse.

In many cases as in the instant one, even after the death of one of the spouses, there is no liquidation of
the conjugal partnership. This does not mean, however, that the conjugal partnership continues. And
private respondent cannot be said to have no remedy. Under Sec. 6, Rule 78 of the Revised Rules of
Court, he may apply in court for letters of administration in his capacity as a principal creditor of the
deceased . . . if after thirty (30) days from his death, petitioner failed to apply for administration or
request that administration be granted to some other person.14

The cases relied upon by the Court of Appeals in support of its ruling, namely, Climaco v. Siy
Uy15 and Imperial Insurance, Inc. v. David,16 are based on different sets of facts. In Climaco, the
defendants, Carlos Siy Uy and Manuel Co, were sued for damages for malicious prosecution. Thus, apart
from the fact the claim was not against any conjugal partnership, it was one which does not survive the
death of defendant Uy, which merely resulted in the dismissal of the case as to him but not as to the
remaining defendant Manuel Co.

With regard to the case of Imperial, the spouses therein jointly and severally executed an indemnity
agreement which became the basis of a collection suit filed against the wife after her husband had died.
For this reason, the Court ruled that since the spouses' liability was solidary, the surviving spouse could
be independently sued in an ordinary action for the enforcement of the entire obligation.

It must be noted that for marriages governed by the rules of conjugal partnership of gains, an obligation
entered into by the husband and wife is chargeable against their conjugal partnership and it is the
partnership which is primarily bound for its repayment.17 Thus, when the spouses are sued for the
enforcement of an obligation entered into by them, they are being impleaded in their capacity as
representatives of the conjugal partnership and not as independent debtors such that the concept of
joint or solidary liability, as between them, does not apply. But even assuming the contrary to be true,
the nature of the obligation involved in this case, as will be discussed later, is not solidary but rather
merely joint, making Imperial still inapplicable to this case.

From the foregoing, it is clear that private respondent cannot maintain the present suit against
petitioner.1âwphi1 Rather, his remedy is to file a claim against the Alipios in the proceeding for the
settlement of the estate of petitioner's husband or, if none has been commenced, he can file a petition
either for the issuance of letters of administration18 or for the allowance of will,19 depending on whether
petitioner's husband died intestate or testate. Private respondent cannot short-circuit this procedure by
lumping his claim against the Alipios with those against the Manuels considering that, aside from
petitioner's lack of authority to represent their conjugal estate, the inventory of the Alipios' conjugal
property is necessary before any claim chargeable against it can be paid. Needless to say, such power
exclusively pertains to the court having jurisdiction over the settlement of the decedent's estate and not
to any other court.

Second. The trial court ordered petitioner and the Manuel spouses to pay private respondent the unpaid
balance of the agreed rent in the amount of ₱50,600.00 without specifying whether the amount is to be
paid by them jointly or solidarily. In connection with this, Art. 1207 of the Civil Code provides:

The concurrence of two or more creditors or of two or more debtors in one and the same obligation
does not imply that each one of the former has a right to demand, or that each one of the latter is
bound to render, entire compliance with the prestations. There is a solidary liability only when the
obligation expressly so estates, or when the law or the nature of the obligation requires solidarity.

Indeed, if from the law or the nature or the wording of the obligation the contrary does not appear, an
obligation is presumed to be only joint, i.e., the debt is divided into as many equal shares as there are
debtors, each debt being considered distinct from one another.20

Private respondent does not cite any provision of law which provides that when there are two or more
lessees, or in this case, sublessees, the latter's obligation to pay the rent is solidary. To be sure, should
the lessees or sublessees refuse to vacate the leased property after the expiration of the lease period
and despite due demands by the lessor, they can be held jointly and severally liable to pay for the use of
the property. The basis of their solidary liability is not the contract of lease or sublease but the fact that
they have become joint tortfeasors.21 In the case at bar, there is no allegation that the sublessees
refused to vacate the fishpond after the expiration of the term of the sublease. Indeed, the unpaid
balance sought to be collected by private respondent in his collection suit became due on June 30, 1989,
long before the sublease expired on September 12, 1990.

Neither does petitioner contend that it is the nature of lease that when there are more than two lessees
or sublessees their liability is solidary. On the other hand, the pertinent portion of the contract involved
in this case reads:22

2. That the total lease rental for the sub-leased fishpond for the entire period of three (3) years and two
(2) months is FOUR HUNDRED EIGHT-FIVE THOUSAND SIX HUNDRED (₱485,600.00) PESOS, including all
the improvements, prawns, milkfishes, crabs and related species thereon as well all fishing equipment,
paraphernalia and accessories. The said amount shall be paid to the Sub-Lessor by the Sub-Lessees in
the following manner, to wit:

A. Three hundred thousand (₱300,000.00) Pesos upon signing this contract; and
 B. One Hundred Eight-Five Thousand Six-Hundred (₱185,6000.00) Pesos to be paid on June 30, 1989.

Clearly, the liability of the sublessees is merely joint. Since the obligation of the Manuel and Alipio
spouses is chargeable against their respective conjugal partnerships, the unpaid balance of ₱50,600.00
should be divided into two so that each couple is liable to pay the amount of ₱25,300.00.

WHEREFORE, the petition is GRANTED. Bienvenido Manuel and Remedios Manuel are ordered to pay
the amount of ₱25,300.00, the attorney's fees in the amount of ₱10,000.00 and the costs of the suit.
The complaint against petitioner is dismissed without prejudice to the filing of a claim by private
respondent in the proceedings for the settlement of estate of Placido Alipio for the collection of the
share of the Alipio spouses in the unpaid balance of the rent in the amount of ₱25,300.00.

SO ORDERED.

CORTES V. CA

This is a petition for review on certiorari seeking a reversal of the decision dated September 9, 1994 of
the Court of Appeals1 in C.A.-G.R. SP. No. 33826;

"IN VIEW OF THE FOREGOING, the petition is GIVEN DUE COURSE and the assailed order of October 18,
1993, issued by the respondent court in Special Proceeding No. 90-54955 is hereby SET ASIDE and
declared NULL and VOID. With costs against the private respondent."2

and the reinstatement of the order of the probate court, thus:

"WHEREFORE, Menandro Reselva and all those acting for or through him, is/are ordered to vacate
forthwith the house and lot of the estate situated in 173 Ilaw St., Balut, Tondo, Manila, and to deliver to
the executrix Milagros R. Cortes the possession thereof as well as the owner's duplicate certificate of the
title thereof."3

The following facts, as found by the Court of Appeals, are undisputed:

"Herein petitioner Menandro A. Reselva, private respondent (petitioner in this petition) Milagros R.
Cortes, and Florante Reselva are brothers and sister and children - heirs of the late spouses Teodoro T.
Reselva and Lucrecia Aguirre Reselva, who died on April 11, 1989 and May 13, 1987, respectively. During
their lifetime, they acquired a property particularly a house and lot consisting of 100 square meters,
more or less, with address at 173 Ilaw St., Balut, Tondo, Manila. As can be gleaned from the records,
Lucrecia Aguirre Reselva died ahead of Teodoro T. Reselva. The latter executed a holographic will which
was probated in this case on July 31, 1991, with Milagros R. Cortes, as the appointed Executrix. After
having been appointed and qualified as Executrix, she filed a motion before respondent probate court
praying that Menandro A. Reselva, the occupant of the property, be ordered to vacate the property at
No. 173 Ilaw St., Balut, Tondo, Manila and turn over to said Executrix the possession thereof (Annex 'D').
This is the motion which the respondent court granted in the assailed order of October 18, 1993."4

In the Appellate Court, the Regional Trial Court's order was set aside for having been issued beyond the
latter's limited jurisdiction as a probate court.5

The long standing rule is that probate courts, or those in charge of proceedings whether testate or
intestate, cannot adjudicate or determine title to properties claimed to be part of the estate and
which are claimed to belong to outside parties.6 Stated otherwise, "claims for title to, or right of
 possession of, personal or real property, made by the heirs themselves, by title adverse to that of the
deceased, or made by third persons, cannot be entertained by the (probate) court."7

In the present case, however, private respondent Menandro A. Reselva, who refused to vacate the
house and lot being eyed as part of the estate of the late Teodoro T. Reselva, cannot be considered an
"outside party" for he is one of the three compulsory heirs of the former. As such, he is very much
involved in the settlement of Teodoro's estate.8 By way of exception to the above-mentioned rule,
"when the parties are all heirs of the decedent, it is optional upon them to submit to the probate court
the question of title to property."9 Here, the probate court is competent to decide the question of
ownership. More so, when the opposing parties belong to the poor stratum of society and a separate
action would be most expensive and inexpedient.10 1âwphi1

In addition, Menandro's claim is not at all adverse to, or in conflict with that of, the decedent since the
former's theory merely advances co-ownership with the latter.11 In the same way, when the controversy
is whether the property in issue belongs to the conjugal partnership or exclusively to the decedent, the
same is properly within the jurisdiction of the probate court, which necessarily has to liquidate the
conjugal partnership in order to determine the estate of the decedent which is to be distributed among
the heirs.12

More importantly, the case at bar falls squarely under Rule 73, Section 2 of the Revised Rules of Court,
thus:

"RULE 73

"SEC. 2. Where estate upon dissolution of marriage. - When the marriage is dissolved by the death of the
husband or wife, the community property shall be inventoried, administered, and liquidated, and the
debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses have
died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either."

Hence, in the 1991 case of Vita vs. Montanano we ruled:

"(I)t is not necessary to file a separate proceeding in court for the proper disposition of the estate of
Isidra Montanano. Under Rule 73, Section 2 of the Rules of Court, if both spouses have died, the
conjugal partnership shall be liquidated in the testate or intestate proceedings of either. In the present
case, therefore, the conjugal partnership of Isidra Montanano and Edilberto Vita should be liquidated in
the testate proceedings of the latter."13

Consequently, this case before us should be returned to the probate court for the liquidation of the
conjugal partnership of Teodoro and Lucrecia Reselva prior to the settlement of the estate of Teodoro.

WHEREFORE, without reinstating the assailed order of the trial court, the questioned decision of the
Court of Appeals dated September 9, 1994 in CA-G.R. SP No. 33826 is hereby SET ASIDE and the case
REMANDED to the court of origin for further proceedings. No pronouncement as to costs.

SO ORDERED.

SEC. 3

DILLENA V. CA
This is a petition for review on certiorari of the decision dated NOVEMBER 14, 1986 of the respondent
Court of Appeals which dismissed the petition for certiorari (CA-G.R. SP No. 08404) filed by herein
petitioner Eladio Dillena to nullify the orders dated August 10, 1984, September 13, 1984 and October
28, 1985 of the RTC, Branch 84, Quezon City, sitting as a probate court in Sp. Proc. No. Q-19378. The said
orders annulled the sale of fishponds under administration, executed by private respondent Aurora
Carreon, as administratrix of the estate under administration in favor of petitioner, for the reason that
said sale was made without authority from and/or approval of the probate court.

The facts of this case as found by the Court of Appeals are as follows:

Spouses Dolores Sebastian and Rufino Carreon died on March 7, 1974 and August 21, 1974, in Quezon
City and Manila, respectively, leaving an adopted daughter Aurora Carreon, private respondent herein.
On October 21, 1974, Fausta Carreon Herrera, sister of the deceased Rufino Carreon instituted Sp. Proc.
No. Q-19378 entitled "In the Matter of the Intestate Estate of the Deceased Spouses Rufino B. Carreon
and Dolores Sebastian — Petition for Letters of Administration" before the then CFI, Branch XXXI,
Quezon City. On November 7, 1974, the said court appointed Fausta Carreon Herrera as Special
Administratrix only for the purpose of receiving and collecting all sums of money due and payable to the
estate, in addition to the powers and duties provided for under Section 2, Rule 80 of the Rules of Court.

On October 3, 1975, private respondent executed an Extra-Judicial Settlement of the Estate of the
deceased spouses, adjudicating to herself all the real properties of the said spouses.

On October 14, 1975, private respondent filed a motion to revoke the letters of administration issued to
Fausta Carreon Herrera. Accordingly, the lower court, on March 31, 1976, granted the motion and
allowed private respondent to administer the properties of the estate. Thereafter, private respondent
acted as administratrix of the estate although it was only on June 27, 1980 that the appointment of
private respondent was formalized and she was granted letters of administration on July 1, 1980.

Meanwhile, on November 8, 1978, private respondent, while being the administratrix of the estate,
executed an extrajudicial adjudication of the three (3) fishpond properties of the deceased spouses in
Hagonoy, Bulacan. By virtue of said extrajudicial adjudication, Transfer Certificates of Title Nos. 140243,
140244 and 140245 in the names of the deceased spouses were cancelled and in lieu thereof, Transfer
Certificates of Title were issued in the name of private respondent.

On November 13, 1978, private respondent sold in favor of petitioner the three fishponds in question
without the knowledge and approval of the probate court. Prior to the sale, petitioner had been leasing
these fishponds for several years. As a result of the sale, transfer certificates of title over the said
properties were issued in favor of petitioner.

Aside from the aforesaid sale, petitioner previously sold real properties of the estate to Luisa S.
Rodriguez on July 19, 1977 and to the Starlight Industrial Co., Inc. on December 7, 1977. Both sales were
likewise made without the approval of the probate court. The said court, having learned of the aforesaid
transfers of the real properties without its approval, issued an order dated September 22, 1981
requiring the three vendees to appear on October 23, 1981 and to explain why the deeds of sale, as well
as the transfer certificates of title issued as a consequence thereof, should not be cancelled for having
been executed without court approval.

The aforesaid vendees were duly furnished with copies of the order dated September 22, 1981. Only
Starlight Industries, Co., Inc. appeared on October 23, 1981. Again, the vendees were required to submit
their respective explanations and the hearing on the incident was re-set to November 11, 1981.
Petitioner was again duly served with a copy of said order.
At the scheduled hearing, Starlight Industries Co., Inc. submitted an explanation, thus, the sale in its
favor was approved and confirmed by the probate court. However, vendees Luisa S. Rodriguez and
petitioner Eladio Dillena neither appeared at the scheduled hearing nor submitted their explanations as
to why the sales in their favor should not be cancelled for having been executed without court approval.

On August 10, 1984, acting on the claim of Atty. Eugenio Balatbat for attorney's fees on account of his
legal services rendered to private respondent and to the estate, the probate court approved the
payment of said fees to be paid out of the properties of the estate. The same was ordered annotated as
a lien on the transfer certificates of title of the real properties of the estate, including those properties
transferred by private respondent without court approval.

On September 13, 1984, the lower court, on motion of Atty. Balatbat for a definitive ruling as to the
validity of the sale made by administratrix-private respondent to Luisa S. Rodriguez and petitioner,
declared that the transfers in favor of the aforesaid vendees are null and void and without force and
effect for having been made without court authority and approval. Petitioner was served with a copy of
the said order on December 13, 1984.

On July 25, 1985, or after seven (7) months from the time the order of September 13, 1984 was received
by petitioner, the latter filed a petition before the probate court in the same Sp. Proc No. Q-19378 by
way of special appearance alleging that said court, in view of its limited jurisdiction as a probate court,
has no power to annul the sale of the fishponds in question; that the orders annulling the sale are void
because he is not a party to Sp. Proc. No. Q-19378; that the lower court has no jurisdiction over the res,
which are located in Bulacan province.

After hearing the petition and the opposition therein, the lower court, on October 28, 1985, denied the
petition and ordered petitioner to return physical possession of the fishponds to private respondent.
Petitioner sought reconsideration of the aforesaid order which was denied.

On February 20, 1986, a petition for certiorari was instituted by petitioner before the respondent Court
of Appeals and as earlier mentioned, the said court, on November 14, 1986, dismissed the petition.
Petitioner's motion for reconsideration was likewise denied on March 2, 1987; hence, this petition.

In the present petition, petitioner sets forth as issues the following: 1) that the Court of Appeals in
upholding the order of the trial court, deprived him of his property without due process of law because
he was not a proper party in the court a quo; 2) that the Court of Appeals violated the rule that the
jurisdiction of a court, when acting in the settlement of the estate, is limited and cannot encroach upon
questions of ownership; and 3) that the nullification and revocation of the transfer certificates of title
were brought about by the dictate of the probate court to annotate an attorney's lien thereon, an order
which is discordant with law and jurisprudence.

After a careful examination of the entire record of the case, We find the instant Petition devoid of merit.

Anent the first issue, petitioner postulates that he was deprived of the questioned fishponds without
due process; and that not being an original party before the probate court, he was not summoned
thereto.

We are not persuaded. The probate court in its order dated September 22, 1981 issued in the exercise
of its probate jurisdiction (Sec. 3, Rule 730, required petitioner to appear before it on October 23, 1 981
to explain why the deed of sale in favor of petitioner, as well as the transfer certificates of title issued as
a consequence thereof should not be cancelled for having been executed without authority from and
approval of the court. Petitioner, despite receipt of the aforesaid order, failed to appear on the
scheduled date. However, the probate court still gave him fifteen (15) days to submit the required
explanation and the case was re-set to November 11, 1981. But then again, petitioner, despite receipt of
the second notice requiring his appearance, chose not to appear and totally ignored the order of the
probate court to submit the explanation. One who was given full opportunity to present his evidence
and who failed to do so cannot complain that he was denied due process when the court rendered its
decision (Ganadin vs. Ramos, 99 SCRA 613).

As found out by the Court of Appeals, petitioner was afforded every opportunity to present his
explanation but he repeatedly failed to appear on the two scheduled hearings for the purpose. As said
in Municipality of Daet vs. Hidalgo Enterprises, 138 SCRA 265, and re-echoed in Divine Word High School
vs. NLRC, 143 SCRA 346, there is no denial of due process where petitioner was afforded an opportunity
to present his case.

Moreover, petitioner, on July 25, 1985, filed a petition before the probate court, by way of special
appearance, precisely questioning the power of the said court to declare null and void the sale of the
fishponds involved herein. As has been stated, the lower court after hearing the petition and the
opposition thereto denied the same.

Clearly, petitioner was given full opportunity to present his case. Thus, We give no credence to
petitioner's assertion that he was denied due process of law.

On the second issue, petitioner asseverates that the probate court, in view of its limited jurisdiction,
cannot declare as null and void, the sale of the questioned properties.

At the outset, it must be emphasized that the questioned properties (fishponds) were included in the
inventory of properties of the estate submitted by then administratrix Fausta Carreon Herrera on
November 14, 1974. Private respondent was appointed as administratrix of the estate on March 31,
1976 in lieu of Fausta Carreon Herrera. On November 13, 1978, the questioned deed of sale of the
fishponds was executed between petitioner and private respondent without notice to and approval of
the probate court. Even after the said sale, administratrix Aurora Carreon still included the three
fishponds as among the real properties of the estate in her inventory submitted on August 13, 1981. In
fact, as stated by the Court of Appeals, petitioner, at the time of the sale of the fishponds in question,
knew that the same were part of the estate under administration. Said the Court of Appeals:

Moreover, Dillena himself had knowledge that the fishponds are included in the
inventory of properties in the estate of the deceased spouses and that they are under
special proceedings, hence, no singular act of Aurora Carreon could bind these
fishponds more so as Dillena had been leasing these fishponds for years. (Court of
Appeals Decision, p. 7).

The evidence shows that when the questioned properties were sold without court approval by private
respondent to petitioner, the same were under administration. The subject properties therefore are
under the jurisdiction of the probate court which according to our settled jurisprudence has the
authority to approve any disposition regarding properties under administration.

An administratrix of an estate already subject of a special proceeding pending before the probate court
cannot enjoy blanket authority to dispose of real properties as she pleases. More emphatic is the
declaration We made in Estate of Olave vs. Reyes (123 SCRA 767) wherein We stated that when the
estate of the deceased person is already the subject of a testate or intestate proceeding, the
administrator cannot enter into any transaction involving it without prior approval of the probate court.
Only recently, in Manotok Realty, Inc. vs. Court of Appeals (149 SCRA 174), We held that the sale of an
immovable property belonging to an estate of a decedent, in a special proceeding, needs court approval,
thus:

Although the Rules of Court do not specifically state that the sale of an immovable
property belonging to an estate of a decedent, in a special proceeding, should be made
with the approval of the court, this authority is necessarily included in its capacity as a
probate court.

This pronouncement finds support in the previous case of Dolores Vda. de Gil vs. Agustin Cancio (14
SCRA 797) wherein We emphasized that it is within the jurisdiction of a probate court to approve the
sale of properties of a deceased person by his prospective heirs before final adjudication. Consequently,
it is error to say that this matter should be threshed out in a separate action.

It being settled that property under administration needs the approval of the probate court before it can
be disposed of, any unauthorized disposition does not bind the estate and is null and void. As early as
1921 in the case of Godoy vs. Orellano (42 Phil. 347), We laid down the rule that a sale by an
administrator of property of the deceased, which is not authorized by the probate court is null and void
and title does not pass to the purchaser.

There is hardly any doubt that the probate court can declare null and void the disposition of the
property under administration, made by private respondent, the same having been effected without
authority from the said court. It is the probate court that has the power to authorize and/or approve the
sale (Sections 4 and 7, Rule 89), hence, a fortiori, it is said court that can declare it null and void for as
long as the proceedings had not been closed or terminated. To uphold petitioner's contention that the
probate court cannot annul the unauthorized sale, would render meaningless the power pertaining to
the said court. Sales of properties under administration which do not comply with the requisites under
sections 4 and 7 of Rule 89 are null and void (Bonaga vs. Soler, 2 SCRA 755).

On the third issue, petitioner questions the order of the probate court allowing the annotation of an
attorney's lien on the transfer certificate of title of the estate subject of the special proceedings. Again,
the issue raised does not deserve any consideration because it is already settled that the application to
fix attorney's fees may be made before and passed upon by the probate court in the same proceedings
where attorney's services were rendered (Palanca vs. Pecson, et al., 94 Phil. 419).

Finally, it may not be amiss to point out that the order dated September 13, 1984 of the probate court
nullifying the deed of sale between petitioner and private respondent was received by the former on
December 17, 1984. However, petitioner did not appeal from said order to the appellate court. Instead,
on July 25, 1985 or about seven (7) months thereafter, petitioner filed a petition before the probate
court questioning the power of the said court to nullify the deed of sale which petition was likewise
denied on October 25, 1985.

In view thereof, the order dated September 13, 1984, nullifying the deed of sale had long become final
and executory for failure of petitioner to appeal therefrom within the reglementary period. On this
score alone, the petition for certiorari which was belatedly filed by petitioner before the Court of
Appeals on February 20, 1986 should have been dismissed outright because the remedy of certiorari
does not lie where appeal has been lost. certiorari cannot take the place of an appeal (Santos, Jr. vs.
Court of Appeals, 152 SCRA 378; De la Cruz vs. Intermediate Appellate Court, 134 SCRA 417; Santiago vs.
Castro, 128 SCRA 545).

WHEREFORE, the petition is DISMISSED and the assailed decision is hereby AFFIRMED.
SEC. 4

VALDEZ V. PEOPLE

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the
Decision of the Regional Trial Court (RTC) of Camiling, Tarlac dated November 12, 2007 dismissing
petitioner Angelita Valdez’s petition for the declaration of presumptive death of her husband, Sofio
Polborosa (Sofio).

The facts of the case are as follows:

Petitioner married Sofio on January 11, 1971 in Pateros, Rizal. On December 13, 1971, petitioner gave
birth to the spouses’ only child, Nancy. According to petitioner, she and Sofio argued constantly because
the latter was unemployed and did not bring home any money. In March 1972, Sofio left their conjugal
dwelling. Petitioner and their child waited for him to return but, finally, in May 1972, petitioner decided
to go back to her parents’ home in Bancay 1st, Camiling, Tarlac. Three years passed without any word
from Sofio. In October 1975, Sofio showed up at Bancay 1st. He and petitioner talked for several hours
and they agreed to separate. They executed a document to that effect.1 That was the last time
petitioner saw him. After that, petitioner didn’t hear any news of Sofio, his whereabouts or even if he
was alive or not.2

Believing that Sofio was already dead, petitioner married Virgilio Reyes on June 20, 1985.3 Subsequently,
however, Virgilio’s application for naturalization filed with the United States Department of Homeland
Security was denied because petitioner’s marriage to Sofio was subsisting.4 Hence, on March 29, 2007,
petitioner filed a Petition before the RTC of Camiling, Tarlac seeking the declaration of presumptive
death of Sofio.

The RTC rendered its Decision5 on November 12, 2007, dismissing the Petition for lack of merit. The RTC
held that Angelita "was not able to prove the well-grounded belief that her husband Sofio Polborosa
was already dead." It said that under Article 41 of the Family Code, the present spouse is burdened to
prove that her spouse has been absent and that she has a well-founded belief that the absent spouse is
already dead before the present spouse may contract a subsequent marriage. This belief, the RTC said,
must be the result of proper and honest-to-goodness inquiries and efforts to ascertain the whereabouts
of the absent spouse.

The RTC found that, by petitioner’s own admission, she did not try to find her husband anymore in light
of their mutual agreement to live separately. Likewise, petitioner’s daughter testified that her mother
prevented her from looking for her father. The RTC also said there is a strong possibility that Sofio is still
alive, considering that he would have been only 61 years old by then, and people who have reached
their 60s have not become increasingly low in health and spirits, and, even assuming as true petitioner’s
testimony that Sofio was a chain smoker and a drunkard, there is no evidence that he continues to drink
and smoke until now.

Petitioner filed a motion for reconsideration.6 She argued that it is the Civil Code that applies in this case
and not the Family Code since petitioner’s marriage to Sofio was celebrated on January 11, 1971, long
before the Family Code took effect. Petitioner further argued that she had acquired a vested right under
the provisions of the Civil Code and the stricter provisions of the Family Code should not be applied
against her because Title XIV of the Civil Code, where Articles 384 and 390 on declaration of absence and
presumption of death, respectively, can be found, was not expressly repealed by the Family Code. To
apply the stricter provisions of the Family Code will impair the rights petitioner had acquired under the
Civil Code.
The RTC denied the Motion for Reconsideration in a Resolution dated December 10, 2007.7

Petitioner now comes before this Court seeking the reversal of the RTC Decision and Motion for
Reconsideration.

In its Manifestation and Motion,8 the Office of the Solicitor General (OSG) recommended that the Court
set aside the assailed RTC Decision and grant the Petition to declare Sofio presumptively dead. The OSG
argues that the requirement of "well-founded belief" under Article 41 of the Family Code is not
applicable to the instant case. It said that petitioner could not be expected to comply with this
requirement because it was not yet in existence during her marriage to Virgilio Reyes in 1985. The OSG
further argues that before the effectivity of the Family Code, petitioner already acquired a vested right
as to the validity of her marriage to Virgilio Reyes based on the presumed death of Sofio under the Civil
Code. This vested right and the presumption of Sofio’s death, the OSG posits, could not be affected by
the obligations created under the Family Code.9

Next, the OSG contends that Article 390 of the Civil Code was not repealed by Article 41 of the Family
Code.10 Title XIV of the Civil Code, the OSG said, was not one of those expressly repealed by the Family
Code. Moreover, Article 256 of the Family Code provides that its provisions shall not be retroactively
applied if they will prejudice or impair vested or acquired rights.11

The RTC Decision, insofar as it dismissed the Petition, is affirmed. However, we must state that we are
denying the Petition on grounds different from those cited in the RTC Decision.

Initially, we discuss a procedural issue. Under the Rules of Court, a party may directly appeal to this
Court from a decision of the trial court only on pure questions of law. A question of law lies, on one
hand, when the doubt or difference arises as to what the law is on a certain set of facts; on the other
hand, a question of fact exists when the doubt or difference arises as to the truth or falsehood of the
alleged facts. Here, the facts are not disputed; the controversy merely relates to the correct application
of the law or jurisprudence to the undisputed facts.12

The RTC erred in applying the provisions of the Family Code and holding that petitioner needed to prove
a "well-founded belief" that Sofio was already dead. The RTC applied Article 41 of the Family Code, to
wit:

Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for
four consecutive years and the spouse present has a well-founded belief that the absent spouse was
already dead. In case of disappearance where there is danger under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting a subsequent marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse.

It is readily apparent, however, that the marriages of petitioner to Sofio and Virgilio on January 11, 1971
and June 20, 1985, respectively, were both celebrated under the auspices of the Civil Code.

The pertinent provision of the Civil Code is Article 83:

Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of
such person with any person other than such first spouse shall be illegal and void from its performance,
unless:

(1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at the time of the second
marriage without the spouse present having news of the absentee being alive, of if the
absentee, though he has been absent for less than seven years, is generally considered as dead
and believed to be so by the spouse present at the time of contracting such subsequent
marriage, or if the absentee is presumed dead according to Articles 390 and 391. The marriage
so contracted shall be valid in any of the three cases until declared null and void by a competent
court.

Article 390 of the Civil Code states:

Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he
shall be presumed dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an absence
of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be
sufficient in order that his succession may be opened.

The Court, on several occasions, had interpreted the above-quoted provision in this wise:

For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially
declared an absentee. The declaration of absence made in accordance with the provisions of the Civil
Code has for its sole purpose to enable the taking of the necessary precautions for the administration of
the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the
former spouse has been absent for seven consecutive years at the time of the second marriage, that the
spouse present does not know his or her former spouse to be living, that such former spouse is generally
reputed to be dead and the spouse present so believes at the time of the celebration of the marriage.13

Further, the Court explained that presumption of death cannot be the subject of court proceedings
independent of the settlement of the absentee’s estate.

In re Szatraw14 is instructive. In that case, petitioner contracted marriage with a Polish national in 1937.
They lived together as husband and wife for three years. Sometime in 1940, the husband, on the pretext
of visiting some friends, left the conjugal abode with their child and never returned. After inquiring from
friends, petitioner found that her husband went to Shanghai, China. However, friends who came from
Shanghai told her that the husband was not seen there. In 1948, petitioner filed a petition for the
declaration of presumptive death of her husband arguing that since the latter had been absent for more
than seven years and she had not heard any news from him and about her child, she believes that he is
dead. In deciding the case, the Court said:

The petition is not for the settlement of the estate of Nicolai Szatraw, because it does not appear that
he possessed property brought to the marriage and because he had acquired no property during his
married life with the petitioner. The rule invoked by the latter is merely one of evidence which permits
the court to presume that a person is dead after the fact that such person had been unheard from in
seven years had been established. This presumption may arise and be invoked and made in a case,
either in an action or in a special proceeding, which is tried or heard by, and submitted for decision to, a
competent court. Independently of such an action or special proceeding, the presumption of death
cannot be invoked, nor can it be made the subject of an action or special proceeding. In this case, there
is no right to be enforced nor is there a remedy prayed for by the petitioner against her absent husband.
Neither is there a prayer for the final determination of his right or status or for the ascertainment of a
particular fact (Hagans v. Wislizenus, 42 Phil. 880), for the petition does not pray for a declaration that
the petitioner's husband is dead, but merely asks for a declaration that he be presumed dead because
he had been unheard from in seven years. If there is any pretense at securing a declaration that the
petitioner's husband is dead, such a pretension cannot be granted because it is unauthorized. The
petition is for a declaration that the petitioner's husband is presumptively dead. But this declaration,
even if judicially made, would not improve the petitioner's situation, because such a presumption is
already established by law. A judicial pronouncement to that effect, even if final and executory, would
still be a prima facie presumption only. It is still disputable. It is for that reason that it cannot be the
subject of a judicial pronouncement or declaration, if it is the only question or matter involved in a case,
or upon which a competent court has to pass. The latter must decide finally the controversy between
the parties, or determine finally the right or status of a party or establish finally a particular fact, out of
which certain rights and obligations arise or may arise; and once such controversy is decided by a final
judgment, or such right or status determined, or such particular fact established, by a final decree, then
the judgment on the subject of the controversy, or the decree upon the right or status of a party or
upon the existence of a particular fact, becomes res judicata, subject to no collateral attack, except in a
few rare instances especially provided by law. It is, therefore, clear that a judicial declaration that a
person is presumptively dead, because he had been unheard from in seven years, being a presumption
juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final. Proof of
actual death of the person presumed dead because he had been unheard from in seven years, would
have to be made in another proceeding to have such particular fact finally determined.1avvphi1 If a
judicial decree declaring a person presumptively dead, because he had not been heard from in seven
years, cannot become final and executory even after the lapse of the reglementary period within which
an appeal may be taken, for such presumption is still disputable and remains subject to contrary proof,
then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the
petitioner.15

In Lukban v. Republic,16 petitioner Lourdes G. Lukban contracted marriage with Francisco Chuidian on
December 10, 1933. A few days later, on December 27, Francisco left Lourdes after a violent quarrel. She
did not hear from him after that day. Her diligent search, inquiries from his parents and friends, and
search in his last known address, proved futile. Believing her husband was already dead since he had
been absent for more than twenty years, petitioner filed a petition in 1956 for a declaration that she is a
widow of her husband who is presumed to be dead and has no legal impediment to contract a
subsequent marriage. On the other hand, the antecedents in Gue v. Republic17 are similar to Szatraw. On
January 5, 1946, Angelina Gue’s husband left Manila where they were residing and went to Shanghai,
China. From that day on, he had not been heard of, had not written to her, nor in anyway
communicated with her as to his whereabouts. Despite her efforts and diligence, she failed to locate
him. After 11 years, she asked the court for a declaration of the presumption of death of Willian Gue,
pursuant to the provisions of Article 390 of the Civil Code of the Philippines.

In both cases, the Court reiterated its ruling in Szatraw. It held that a petition for judicial declaration that
petitioner's husband is presumed to be dead cannot be entertained because it is not authorized by
law.18

From the foregoing, it can be gleaned that, under the Civil Code, the presumption of death is established
by law19and no court declaration is needed for the presumption to arise. Since death is presumed to
have taken place by the seventh year of absence,20 Sofio is to be presumed dead starting October 1982.
Consequently, at the time of petitioner’s marriage to Virgilio, there existed no impediment to
petitioner’s capacity to marry, and the marriage is valid under paragraph 2 of Article 83 of the Civil Code.

Further, considering that it is the Civil Code that applies, proof of "well-founded belief" is not required.
Petitioner could not have been expected to comply with this requirement since the Family Code was not
yet in effect at the time of her marriage to Virgilio. The enactment of the Family Code in 1988 does not
change this conclusion. The Family Code itself states:

Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other laws.

To retroactively apply the provisions of the Family Code requiring petitioner to exhibit "well-founded
belief" will, ultimately, result in the invalidation of her second marriage, which was valid at the time it
was celebrated. Such a situation would be untenable and would go against the objectives that the
Family Code wishes to achieve.

In sum, we hold that the Petition must be dismissed since no decree on the presumption of Sofio’s death
can be granted under the Civil Code, the same presumption having arisen by operation of law. However,
we declare that petitioner was capacitated to marry Virgilio at the time their marriage was celebrated in
1985 and, therefore, the said marriage is legal and valid.

WHEREFORE, the foregoing premises considered, the Petition is DENIED.

SO ORDERED.