ARTICLE 828.
For a better understanding of the
G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE
ADRIANA MALOTO, ALDINA MALOTO
CASIANO, CONSTANCIO MALOTO,
PURIFICACION MIRAFLOR, ROMAN
CATHOLIC CHURCH OF MOLO, AND
ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO
MALOTO AND FELINO
MALOTO, respondents.
SARMIENTO, J.:
This is not the first time that the parties to
this case come to us. In fact, two other
cases directly related to the present one
and involving the same parties had already
been decided by us in the past. In G.R. No.
L-30479, 1 which was a petition for
certiorari and mandamus instituted by the
petitioners herein, we dismissed the
petition ruling that the more appropriate
remedy of the petitioners is a separate
proceeding for the probate of the will in
question. Pursuant to the said ruling, the
petitioners commenced in the then Court of
First Instance of Iloilo, Special Proceeding
No. 2176, for the probate of the disputed
will, which was opposed by the private
respondents presently, Panfilo and Felino
both surnamed Maloto. The trial court
dismissed the petition on April 30, 1970.
Complaining against the dismissal, again,
the petitioners came to this Court on a
petition for review by certiorari. 2 Acting on
the said petition, we set aside the trial
court's order and directed it to proceed to
hear the case on the merits. The trial court,
after hearing, found the will to have already
been revoked by the testatrix. Adriana
Maloto, and thus, denied the petition. The
petitioners appealed the trial court's
decision to the Intermediate Appellate
Court which, on June 7, 1985, affirmed the
order. The petitioners' motion for
reconsideration of the adverse decision
proved to be of no avail, hence, this
petition.
controversy, a factual account would be a
great help.
On October 20, 1963, Adriana Maloto died
leaving as heirs her niece and nephews,
the petitioners Aldina Maloto-Casiano and
Constancio, Maloto, and the private
respondents Panfilo Maloto and Felino
Maloto. Believing that the deceased did not
leave behind a last will and testament,
these four heirs commenced on November
4, 1963 an intestate proceeding for the
settlement of their aunt's estate. The case
was instituted in the then Court of First
Instance of Iloilo and was docketed as
Special Proceeding No. 1736. However,
while the case was still in progress, or to be
exact on February 1, 1964, the parties —
Aldina, Constancio, Panfilo, and Felino —
executed an agreement of extrajudicial
settlement of Adriana's estate. The
agreement provided for the division of the
estate into four equal parts among the
parties. The Malotos then presented the
extrajudicial settlement agreement to the
trial court for approval which the court did
on March 21, 1964. That should have
signalled the end of the controversy, but,
unfortunately, it had not.
Three years later, or sometime in March
1967, Atty. Sulpicio Palma, a former
associate of Adriana's counsel, the late
Atty. Eliseo Hervas, discovered a document
entitled "KATAPUSAN NGA
PAGBUBULAT-AN (Testamento)," dated
January 3,1940, and purporting to be the
last will and testament of Adriana. Atty.
Palma claimed to have found the
testament, the original copy, while he was
going through some materials inside the
cabinet drawer formerly used by Atty.
Hervas. The document was submitted to
the office of the clerk of the Court of First
Instance of Iloilo on April 1, 1967.
Incidentally, while Panfilo and Felino are
still named as heirs in the said will, Aldina
and Constancio are bequeathed much
bigger and more valuable shares in the
estate of Adriana than what they received
by virtue of the agreement of extrajudicial
settlement they had earlier signed. The will
likewise gives devises and legacies to other
parties, among them being the petitioners
1
Asilo de Molo, the Roman Catholic Church
Page
of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and
Constancio, joined by the other devisees
and legatees named in the will, filed in
Special Proceeding No. 1736 a motion for
reconsideration and annulment of the
proceedings therein and for the allowance
of the will When the trial court denied their
motion, the petitioner came to us by way of
a petition for certiorari and mandamus
assailing the orders of the trial court . 3 As
we stated earlier, we dismissed that petition
and advised that a separate proceeding for
the probate of the alleged will would be the
appropriate vehicle to thresh out the
matters raised by the petitioners.
Significantly, the appellate court while
finding as inconclusive the matter on
whether or not the document or papers
allegedly burned by the househelp of
Adriana, Guadalupe Maloto Vda. de Coral,
upon instructions of the testatrix, was
indeed the will, contradicted itself and
found that the will had been revoked. The
respondent court stated that the presence
of animus revocandi in the destruction of
the will had, nevertheless, been sufficiently
proven. The appellate court based its
finding on the facts that the document was
not in the two safes in Adriana's residence,
by the testatrix going to the residence of
Atty. Hervas to retrieve a copy of the will
left in the latter's possession, and, her
seeking the services of Atty. Palma in order
to have a new will drawn up. For reasons
shortly to be explained, we do not view
such facts, even considered collectively, as
sufficient bases for the conclusion that
Adriana Maloto's will had been effectively
revoked.
There is no doubt as to the testamentary
capacity of the testatrix and the due
execution of the will. The heart of the case
lies on the issue as to whether or not the
will was revoked by Adriana.
The provisions of the new Civil Code
pertinent to the issue can be found in
Article 830.
Art. 830. No will shall be
revoked except in the following
cases:
(1) By implication of law; or
(2) By some will, codicil, or
other writing executed as
provided in case of wills: or
(3) By burning, tearing,
cancelling, or obliterating the
will with the intention of
revoking it, by the testator
himself, or by some other
person in his presence, and by
his express direction. If
burned, torn cancelled, or
obliterated by some other
person, without the express
direction of the testator, the will
may still be established, and
the estate distributed in
accordance therewith, if its
contents, and due execution,
and the fact of its unauthorized
destruction, cancellation, or
obliteration are established
according to the Rules of
Court. (Emphasis Supplied.)
It is clear that the physical act of
destruction of a will, like burning in this
case, does not per se constitute an
effective revocation, unless the destruction
is coupled with animus revocandi on the
part of the testator. It is not imperative that
the physical destruction be done by the
testator himself. It may be performed by
another person but under theexpress
direction and in the presence of the
testator. Of course, it goes without saying
that the document destroyed must be the
will itself.
In this case, while animus revocandi or the
intention to revoke, may be conceded, for
that is a state of mind, yet that requisite
alone would not suffice. "Animus
revocandi is only one of the necessary
elements for the effective revocation of a
last will and testament. The intention to
revoke must be accompanied by the overt
physical act of burning, tearing, obliterating,
or cancelling the will carried out by the
testator or by another person in his
presence and under his express direction.
There is paucity of evidence to show
compliance with these requirements. For
one, the document or papers burned by
Adriana's maid, Guadalupe, was not
2
satisfactorily established to be a will at all,
Page
much less the will of Adriana Maloto. For
another, the burning was not proven to
have been done under the express
direction of Adriana. And then, the burning
was not in her presence. Both witnesses,
Guadalupe and Eladio, were one in stating
that they were the only ones present at the
place where the stove (presumably in the
kitchen) was located in which the papers
proffered as a will were burned.
The respondent appellate court in
assessing the evidence presented by the
private respondents as oppositors in the
trial court, concluded that the testimony of
the two witnesses who testified in favor of
the will's revocation appear "inconclusive."
We share the same view. Nowhere in the
records before us does it appear that the
two witnesses, Guadalupe Vda. de Corral
and Eladio Itchon, both illiterates, were
unequivocably positive that the document
burned was indeed Adriana's will.
Guadalupe, we think, believed that the
papers she destroyed was the will only
because, according to her, Adriana told her
so. Eladio, on the other hand, obtained his
information that the burned document was
the will because Guadalupe told him so,
thus, his testimony on this point is double
hearsay.
At this juncture, we reiterate that "(it) is an
important matter of public interest that a
purported win is not denied legalization on
dubious grounds. Otherwise, the very
institution of testamentary succession will
be shaken to its very foundations ...."4
The private respondents in their bid for the
dismissal of the present action for probate
instituted by the petitioners argue that the
same is already barred by res
adjudicata. They claim that this bar was
brought about by the petitioners' failure to
appeal timely from the order dated
November 16, 1968 of the trial court in the
intestate proceeding (Special Proceeding
No. 1736) denying their (petitioners')
motion to reopen the case, and their prayer
to annul the previous proceedings therein
and to allow the last will and testament of
the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no
application in the present controversy. For
a judgment to be a bar to a subsequent
case, the following requisites must concur:
(1) the presence of a final former judgment;
(2) the former judgment was rendered by a
court having jurisdiction over the subject
matter and the parties; (3) the former
judgment is a judgment on the merits; and
(4) there is, between the first and the
second action, Identity of parties, of subject
matter, and of cause of action. 5 We do not
find here the presence of all the
enumerated requisites.
For one, there is yet, strictly speaking, no
final judgment rendered insofar as the
probate of Adriana Maloto's will is
concerned. The decision of the trial court in
Special Proceeding No. 1736, although
final, involved only the intestate settlement
of the estate of Adriana. As such, that
judgment could not in any manner be
construed to be final with respect to the
probate of the subsequently discovered will
of the decedent. Neither is it a judgment on
the merits of the action for probate. This is
understandably so because the trial court,
in the intestate proceeding, was without
jurisdiction to rule on the probate of the
contested will . 6 After all, an action for
probate, as it implies, is founded on the
presence of a will and with the objective of
proving its due execution and validity,
something which can not be properly done
in an intestate settlement of estate
proceeding which is predicated on the
assumption that the decedent left no will.
Thus, there is likewise no Identity between
the cause of action in intestate proceeding
and that in an action for probate. Be that as
it may, it would be remembered that it was
precisely because of our ruling in G.R. No.
L-30479 that the petitioners instituted this
separate action for the probate of the late
Adriana Maloto's will. Hence, on these
grounds alone, the position of the private
respondents on this score can not be
sustained.
One last note. The private respondents
point out that revocation could be inferred
from the fact that "(a) major and substantial
bulk of the properties mentioned in the will
had been disposed of: while an insignificant
portion of the properties remained at the
time of death (of the testatrix); and,
furthermore, more valuable properties have
been acquired after the execution of the will
3
on January 3,1940." 7 Suffice it to state
Page
here that as these additional matters raised
by the private respondents are extraneous
to this special proceeding, they could only
be appropriately taken up after the will has
been duly probated and a certificate of its
allowance issued.

WHEREFORE, judgment is hereby

rendered REVERSING and SETTING
ASIDE the Decision dated June 7, 1985
and the Resolution dated October 22,
1986, of the respondent Court of Appeals,
and a new one ENTERED for the
allowance of Adriana Maloto's last will and
testament. Costs against the private
respondents.

This Decision is IMMEDIATELY

EXECUTORY.

SO ORDERED.

4
Page
 ARTICLE 832.
EN BANC
[G.R. No. L-2538. September 21, 1951.]
Testate Estate of the Deceased
MARIANO MOLO Y LEGASPI. JUANA
JUAN VDA. DE MOLO, Petitioner-
Appellee, v. LUZ, GLICERIA and
CORNELIO MOLO, Oppositors-
Appellants.
Claro M. Recto and Serafin C. Dizon,
for Appellants.
Delgado & Flores, for Appellee.
SYLLABUS
1. WILLS; REVOCATION BY
SUBSEQUENT WILL; EFFECT OF VOID
REVOCATORY CLAUSE. — A subsequent
will containing a clause revoking a previous
will, having been disallowed for the reason
that it was not executed in conformity with
the provisions of section 618 of the Code of
Civil Procedure as to the making of wills,
cannot produce the effect of annuling the
previous will, inasmuch as said revocatory
clause is void (Samson v. Naval, 41 Phil.,
838).
2. ID.; PROBATE; DEPENDENT
RELATIVE REVOCATION. — Even in the
supposition that the destruction of the
original will by the testator could be
presumed from the failure of the petitioner
to produce it in court, such destruction
cannot have the effect of defeating the prior
will where it is founded on the mistaken
belief that the later will has been validly
executed and would be given due effect.
The earlier will can still be admitted to
probate under the principle of "dependent
relative revocation." The theory on which
this principle is predicated is that the
testator did not intend to die intestate. And
this intention is clearly manifest where he
executed two wills on two different
occasions and instituted his wife as his
universal heir.
DECISION
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court
of First Instance of Rizal admitting to
probate the last will and testament of the
deceased Mariano Molo y Legaspi
executed on August 17, 1918. The
oppositors- appellants brought the case on
appeal to this Court for the reason that the
value of the properties involved exceeds
P50,000.
Mariano Molo y Legaspi died on January
24, 1941, in the municipality of Pasay,
province of Rizal, without leaving any
forced heir either in the descending or
ascending line. He was survived, however,
by his wife, the herein petitioner Juana
Juan Vda. de Molo, and by his nieces and
nephew, the oppositors-appellants, Luz,
Gliceria and Cornelio, all surnamed Molo,
who were the legitimate children of
Candido Molo y Legaspi, deceased brother
of the testator. Mariano Molo y Legaspi left
two wills, one executed on August 17,
1918, (Exhibit A) and another executed on
June 20, 1939, (Exhibit I). The latter will
contains a clause which expressly revokes
the will executed in 1918.
On February 7, 1941, Juana Juan Vda. de
Molo filed in the Court of First Instance of
Rizal a petition, which was docketed as
special proceeding No. 8022, seeking the
probate of the will executed by the
deceased on June 20, 1939. There being
no opposition, the will was probated.
However, upon petition filed by the herein
oppositors, the order of the court admitting
the will to probate was set aside and the
case was reopened. After hearing, at which
both parties presented their evidence, the
court rendered decision denying the
probate of said will on the ground that the
petitioner failed to prove that the same was
executed in accordance with law.
In view of the disallowance of the will
executed on June 20, 1939, the widow on
February 24, 1944, filed another petition for
the probate of the will executed by the
deceased on August 17, 1918, which was
docketed as special proceeding No. 56, in
the same court. Again, the same oppositors
filed an opposition to the petition based on
5
three grounds: (1) that petitioner is now
Page
estopped from seeking the probate of the
will of 1918; (2) that said will has not been
executed in the manner required by law
and (3) that the will has been subsequently
revoked. But before the second petition
could be heard, the battle for liberation
came and the records of the case were
destroyed. Consequently, a petition for
reconstitution was filed, but the same was
found to be impossible because neither
petitioner nor oppositors could produce the
copies required for its reconstitution. As a
result, petitioner filed a new petition on
September 14, 1946, similar to the one
destroyed, to which the oppositors filed an
opposition based on the same grounds as
those contained in their former opposition.
Then, the case was set for trial, and on
May 28, 1948, the court issued an order
admitting the will to probate as already
stated in the early part of this decision.
From this order the oppositors appealed
assigning six errors, to
wit:jgc:chanrobles.com.ph
"I. The probate court erred in not holding
that the present petitioner voluntarily and
deliberately frustrated the probate of the
will dated June 20, 1939, in special
proceeding No. 8022, in order to enable her
to obtain the probate of another alleged will
of Molo dated 1918.
"II. The court a quo erred in not holding that
the petitioner is now estopped from seeking
the probate of Molo’s alleged will of 1918.
"III. The lower court erred in not holding
that petitioner herein has come to court
with ’unclean hands’ and as such is not
entitled to relief.
"IV. The probate court erred in not holding
that Molo’s alleged will of August 17, 1918
was not executed in the manner required
by law.
"V. The probate court erred in not holding
that the alleged will of 1918 was
deliberately revoked by Molo himself.
"VI. The lower court erred in not holding
that Molo’s will of 1918 was subsequently
revoked by the decedent’s will of
1939."cralaw virtua1aw library
In their first assignment of error, counsel for
oppositors contend that the probate court
erred in not holding that the petitioner
voluntarily and deliberately frustrated the
probate of the will dated June 20, 1939, in
order to enable her to obtain the probate of
the will executed by the deceased on
August 17, 1918, pointing out certain facts
and circumstances which in their opinion
indicate that petitioner connived with
witness Canuto Perez in an effort to defeat
and frustrate the probate of the 1939 will
because of her knowledge that said will
was intrinsically defective in that "the one
and only testamentary disposition thereof
was a ’disposición captatoria’." These
circumstances, counsel for the appellants
contend, constitute a series of steps
deliberately taken by petitioner with a view
to insuring the realization of her plan of
securing the probate of the 1918 will which
she believed would better safeguard her
right to inherit from the deceased.
These imputations of fraud and bad faith
allegedly committed in connection with
special proceedings No. 8022, now closed
and terminated, are vigorously met by
counsel for petitioner who contends that to
raise them in these proceedings which are
entirely new and distinct and completely
independent from the other is improper and
unfair as they find no support whatsoever in
any evidence submitted by the parties in
this case. They are merely based on
presumptions and conjectures not
supported by any proof. For this reason,
counsel contends, the lower court was
justified in disregarding them and in
passing them sub silentio in its decision.
A careful examination of the evidence
available in this case seems to justify this
contention. There is indeed no evidence
which may justify the insinuation that
petitioner had deliberately intended to
frustrate the probate of the 1939 will of the
deceased to enable her to seek the probate
of another will other than a mere conjecture
drawn from the apparently unexpected
testimony of Canuto Perez that he went out
of the room to answer an urgent call of
nature when Artemio Reyes was signing
the will and the failure of petitioner later to
impeach the character of said witness in
spite of the opportunity given her by the
court to do so. Apart from this insufficiency
6
of evidence, the record discloses that this
Page
failure has been explained by petitioner
when she informed the court that she was
unable to impeach the character of her
witness Canuto Perez because of her
inability to find witnesses who may impeach
him, and this explanation stands
uncontradicted. Whether this explanation is
satisfactory or not, it is not now for us to
determine. It is an incident that comes
within the province of the former case. The
failure of petitioner to present the testimony
of Artemio Reyes at the rehearing has also
been explained, and it appears that
petitioner has failed because his
whereabouts could not be found. Whether
this is true or not is not also for this Court to
determine. It is likewise within the province
and function of the court in the former case.
And the unfairness of this imputation
becomes more glaring when we take stock
of the developments that had taken place in
these proceedings which show in bold relief
the true nature of the conduct, behavior
and character of the petitioner so bitterly
assailed and held in disrepute by the
oppositors.
It should be recalled that the first petition
for the probate of the will executed on June
20, 1939, was filed on February 7, 1941, by
the petitioner. There being no opposition,
the will was probated. Subsequently,
however, upon petition of the herein
oppositors, the order of the court admitting
said will to probate was set aside, over the
vigorous opposition of the herein petitioner,
and the case was reopened. The reopening
was ordered because of the strong
opposition of the oppositors who contended
that the will had not been executed as
required by law. After the evidence of both
parties had been presented, the oppositors
filed an extensive memorandum wherein
they reiterated their view that the will
should be denied probate. And on the
strength of this opposition, the court
disallowed the will.
If petitioner then knew that the 1939 will
was inherently defective and would make
the testamentary disposition in her favor
invalid and ineffective, because it is a
"disposición captatoria", which knowledge
she may easily acquire through
consultation with a lawyer, there was no
need for her to go through the ordeal of
filing the petition for the probate of the will.
She could accomplish her desire by merely
suppressing the will or tearing or destroying
it, and then take steps leading to the
probate of the will executed in 1918. But
her conscience was clear and bade her to
take the only proper step possible under
the circumstances, which is to institute the
necessary proceedings for the probate of
the 1939 will. This she did and the will was
admitted to probate. But then the
unexpected happened. Over her vigorous
opposition, the herein appellants filed a
petition for reopening, and over her
vigorous objection, the same was granted
and the case was reopened. Her motion for
reconsideration was denied. Is it her fault
that the case was reopened? Is it her fault
that the order admitting the will to probate
was set aside? That was a contingency
which petitioner never expected. Had
appellants not filed their opposition to the
probate of the will and had they limited their
objection to the intrinsic validity of said will,
their plan to defeat the will and secure the
intestacy of the deceased would have
perhaps been accomplished. But they
failed in their strategy. If said will was
denied probate it is due to their own effort.
It is now unfair to impute bad faith to
petitioner simply because she exerted
every effort to protect her own interest and
prevent the intestacy of the deceased to
happen.
Having reached the foregoing conclusions,
it is obvious that the court did not commit
the second and third errors imputed to it by
the counsel for appellants. Indeed,
petitioner cannot be considered guilty of
estoppel which would prevent her from
seeking the probate of the 1918 will simply
because her effort to obtain the allowance
of the 1939 will has failed considering that
in both the 1918 and 1939 wills she was
instituted by her husband as his universal
heir. Nor can she be charged with bad faith
far having done so because of her desire to
prevent the intestacy of her husband. She
cannot be blamed for being zealous in
protecting her interest.
The next contention of appellants refers to
the revocatory clause contained in the 1939
will of the deceased which was denied
probate. They contend that,
notwithstanding the disallowance of said
7
will, the revocatory clause is valid and still
Page
has the effect of nullifying the prior will of
1918.
Counsel for petitioner meets this argument
by invoking the doctrine laid down in the
case of Samson v. Naval, (41 Phil., 838).
He contends that the facts involved in that
case are on all fours with the facts of this
case. Hence, the doctrine in that case is
here controlling.
There is merit in this contention. We have
carefully read the facts involved in the
Samson case and we are indeed
impressed by their striking similarity with
the facts of this case. We do not need to
recite here what those facts are; it is
enough to point out that they contain many
points and circumstances in common. No
reason, therefore, is seen why the doctrine
laid down in that case (which we quote
hereunder) should not apply and control the
present case.
"A subsequent will, containing a clause
revoking a previous will, having been
disallowed, for the reason that it was not
executed in conformity with the provisions
of section 618 of the Code of Civil
Procedure as to the making of wills, cannot
produce the effect of annulling the previous
will, inasmuch as said revocatory clause is
void." (41 Phil., 838.)
Apropos of this question, counsel for
oppositors make the remark that, while they
do not disagree with the soundness of the
ruling laid down in the Samson case, there
is reason to abandon said ruling because it
is archaic or antiquated and runs counter to
the modern trend prevailing in American
jurisprudence. They maintain that said
ruling is no longer controlling but merely
represents the point of view of the minority
and should, therefore, be abandoned, more
so if we consider the fact that section 623
of our Code of Civil Procedure, which
governs the revocation of wills, is of
American origin and as such should follow
the prevailing trend of the majority view in
the United States. A long line of authorities
is cited in support of this contention. And
these authorities hold the view, that "an
express revocation is immediately effective
upon the execution of the subsequent will,
and does not require that it first undergo
the formality of a probate proceeding." (p
63, appellants’ brief).
While there are many cases which uphold
the view entertained by counsel for
oppositors, and that view appears to be
controlling in the states where the decisions
had been promulgated, however, we are
reluctant to fall in line with the assertion
that is now the prevailing view in the United
States. In the search we have made of
American authorities on the subject, we
found ourselves in a pool of conflicting
opinions perhaps because of the peculiar
provisions contained in the statutes
adopted by each State on the subject of
revocation of wills. But the impression we
gathered from a review and study of the
pertinent authorities is that the doctrine laid
down in the Samson case is still a good
law. On page 328 of the American
Jurisprudence, Vol. 57, which is a revision
published in 1948, we found the following
passages which in our opinion truly reflect
the present trend of American
jurisprudence on this matter affecting the
revocation of prior
wills:jgc:chanrobles.com.ph
"SEC. 471. Observance of Formalities in
Execution of Instrument. — Ordinarily,
statutes which permit the revocation of a
will by another writing provide that to be
effective as a revocation, the writing must
be executed with the same formalities
which are required to be observed in the
execution of a will. Accordingly, where,
under the statutes, attestation is necessary
to the making of a valid will, an unattested
nontestamentary writing is not effective to
revoke a prior will. It has been held that a
writing fails as a revoking instrument where
it is not executed with the formalities
requisite for the execution of a will, even
though it is inscribed on the will itself,
although it may effect a revocation by
cancellation or obliteration of the words of
the will. A testator cannot reserve to himself
the power to modify a will by a written
instrument subsequently prepared but not
executed in the manner required for a will.
"SEC. 472. Subsequent Unexecuted,
Invalid, or Ineffective Will or Codicil. — A
will which is invalid because of the
incapacity of the testator or of undue
influence can have no effect whatever as a
8
revoking will. Moreover, a will is not
Page
revoked by the unexecuted draft of a later
one. Nor is a will revoked by a defectively
executed will or codicil, even though the
latter contains a clause expressly revoking
the former will, in a jurisdiction where it is
provided by a controlling statute that no
writing other than a testamentary
instrument is sufficient to revoke a will, for
the simple reason that there is no revoking
will. Similarly where the statute provides
that a will may be revoked by a subsequent
will or other writing executed with the same
formalities as are required in the execution
of wills, a defectively executed will does not
revoke a prior will, since it cannot be said
that there is a writing which complies with
the statute. Moreover, a will or codicil
which, on account of the manner in which it
is executed, is sufficient to pass only
personally does not affect dispositions of
real estate made by a former will, even
though it may expressly purport to do so.
The intent of the testator to revoke is
immaterial, if he has not complied with the
statute." (57 Am. Jur., 328, 329.)
We find the same opinion in the American
Law Reports, Annotated, edited in 1939.
On page 1400, Volume 123, there appear
many authorities on the "application of rules
where second will is invalid", among which
a typical one is the
following:jgc:chanrobles.com.ph
"It is universally agreed that where the
second will is invalid on account of not
being executed in accordance with the
provisions of the statute, or where the
testator has not sufficient mental capacity
to make a will or the will is procured
through undue influence, or the such, in
other words, where the second will is really
no will, it does not revoke the first will or
affect it in any manner." Mort v. Baker
University (1935) 229 Mo. App., 632, 78 S.
W. (2d), 498."cralaw virtua1aw library
These treaties cannot be mistaken. They
uphold the view on which the ruling in the
Samson case is predicated. They reflect
the opinion that this ruling is sound and
good and for this reason we see no
justification for abandoning it as now
suggested by counsel for the oppositors.
It is true that our law on the matter (sec.
623, Code of Civil Procedure) provides that
a will may be revoked "by some will, codicil,
or other writing executed as provided in
case of wills" ; but it cannot be said that the
1939 will should be regarded, not as a will
within the meaning of said word, but as
"other writing executed as provided in the
case of wills", simply because it was denied
probate. And even if it be regarded as any
other writing within the meaning of said
clause, there is authority for holding that
unless said writing is admitted to probate, it
cannot have the effect of revocation. (See
57 Am. Jur. pp. 329-330).
But counsel for oppositors contend that,
regardless of said revocatory clause, said
will of 1918 cannot still be given effect
because of the presumption that it was
deliberately revoked by the testator himself.
The oppositors contend that the testator,
after executing the 1939 will, and with full
knowledge of the revocatory clause
contained in said will, himself deliberately
destroyed the original of the 1918 will, and
that for this reason the will submitted by
petitioner for probate in these proceedings
is only a duplicate of said original.
There is no evidence which may directly
indicate that the testator deliberately
destroyed the original of the 1918 will
because of his knowledge of the revocatory
clause contained in the will he executed in
1939. The only evidence we have is that
when the first will was executed in 1918,
Juan Salcedo, who prepared it, gave the
original and copies to the testator himself
and apparently they remained in his
possession until he executed his second
will in 1939. And when the 1939 will was
denied probate on November 29, 1943, and
petitioner was asked by her attorney to look
for another will, she found the duplicate
copy (Exhibit A) among the papers or files
of the testator. She did not find the original.
If it can be inferred that the testator
deliberately destroyed the 1918 will
because of his knowledge of the revocatory
clause of the 1939 will, and it is true that he
gave a duplicate copy thereof to his wife,
the herein petitioner, the most logical step
for the testator to take is to recall said
duplicate copy in order that it may likewise
be destroyed. But this was not done as
shown by the fact that said duplicate copy
9
remained in the possession of petitioner. It
Page
is possible that because of the long lapse
of twenty-one (21) years since the first will
was executed, the original of the will had
been misplaced or lost, and forgetting that
there was a copy, the testator deemed it
wise to execute another will containing
exactly the same testamentary dispositions.
Whatever may be the conclusion we may
draw from this chain of circumstances, the
stubborn fact is that there is no direct
evidence of voluntary or deliberate
destruction of the first will by the testator.
This matter cannot be left to mere inference
or conjecture.
Granting for the sake of argument that the
earlier will was voluntarily destroyed by the
testator after the execution of the second
will, which revoked the first, could there be
any doubt, under this theory, that said
earlier will was destroyed by the testator in
the honest belief that it was no longer
necessary because he had expressly
revoked it in his will of 1939? In other
words, can we not say that the destruction
of the earlier will was but the necessary
consequence of the testator’s belief that the
revocatory clause contained in the
subsequent will was valid and the latter
would be given effect? If such is the case,
then it is our opinion that the earlier will can
still be admitted to probate under the
principle of "dependent relative
revocation."
"This doctrine is known as that of
dependent relative revocation, and is
usually applied where the testator cancels
or destroys a will or executes an instrument
intended to revoke a will with a present
intention to make a new testamentary
disposition as a substitute for the old, and
the new disposition is not made or, if made,
fails of effect for some reason. The doctrine
is not limited to the existence of some other
document, however, and has been applied
where a will was destroyed as a
consequence of a mistake of law . . . ." (68
C. J. p. 799).
"The rule is established that where the act
of destruction is connected with the making
of another will so as fairly to raise the
inference that the testator meant the
revocation of the old to depend upon the
efficacy of the new disposition intended to
be substituted, the revocation will be
conditional and dependent upon the
efficacy of the new disposition; and if, for
any reason, the new will intended to be
made as a substitute is inoperative, the
revocation fails and the original will remains
in full force." (Gardner, pp. 232, 233.)
"This is the doctrine of dependent relative
revocation. The failure of the new
testamentary disposition, upon whose
validity the revocation depends, is
equivalent to the non-fulfillment of a
suspensive condition, and hence prevents
the revocation of the original will. But a
mere intent to make at some time a will in
place of that destroyed will not render the
destruction conditional. It must appear that
the revocation is dependent upon the valid
execution of a new will." (1 Alexander, p.
751; Gardner, p. 233.)
We hold, therefore, that even in the
supposition that the destruction of the
original will by the testator could be
presumed from the failure of the petitioner
to produce it in court, such destruction
cannot have the effect of defeating the prior
will of 1918 because of the fact that it is
founded on the mistaken belief that the will
of 1939 has been validly executed and
would be given due effect. The theory on
which this principle is predicated is that the
testator did not intend to die intestate. And
this intention is clearly manifest when he
executed two wills on two different
occasions and instituted his wife as his
universal heir. There can therefore be no
mistake as to his intention of dying testate.
The remaining question to be determined
refers to the sufficiency of the evidence to
prove the due execution of the will.
The will in question was attested, as
required by law, by three witnesses,
Lorenzo Morales, Rufino Enriquez, and
Angel Cuenca. The first two witnesses died
before the commencement of the present
proceedings. So the only instrumental
witness available was Angel Cuenca and
under our law and precedents, his
testimony is sufficient to prove the due
execution of the will. However, petitioner
presented not only the testimony of Cuenca
but placed on the witness stand Juan
10
Salcedo, the notary public who prepared
and notarized the will upon the express
Page
desire and instruction of the testator. The
testimony of these witnesses shows that
the will had been executed in the manner
required by law. We have read their
testimony and we were impressed by their
readiness and sincerity. We are convinced
that they told the truth.

Wherefore, the order appealed from is

hereby affirmed, with costs against the
appellants.

11
Page
G.R. No. L-11823 February 11,
1918
CRISTINA SAMSON, DELFINA NAVAL,
and SOR CONSOLACION
EUGENIO, petitioners-appellants,
vs.
MONICA NAVAL, ROSA NAVAL, and
CELESTINA NAVAL, objectors-appellants.
Guillermo Lualhati for appellants.
Perfecto Gabriel for appellees.
ARAULLO, J.:
On September 20, 1915, attorney Perfecto
Gabriel presented in the Court of First
Instance of the city of Manila for allowance
as the will of Simeona F. Naval, who died in
said city two days previously, a document
executed by her of February 13, 1915, and
in which he was appointed executor. The
case was recorded as No. 13386 and, after
hearing the petition for allowance filed by
said executor, it was denied on the ground
that said document was not duly executed
by the deceased as her last will and
testament, inasmuch as she did not sign it
in the presence of three witness and the
two witnesses did not sign it in the
presence of each other. Thereafter the
nieces and legatees of the same deceased
filed in the same court for allowance as her
will, another document executed by her on
October 31, 1914, and, consequently, the
case was registered under another number,
which was No. 13579. The petition for
allowance was opposed by Monica Naval,
Rosa Naval, and Cristina Naval on the
ground that the will, the allowance of which
is asked, could not be allowed, because of
the existence of another will of subsequent
date, executed during her lifetime by the
same Simeona F. Naval, and because said
will has been revoked by another executed
subsequently by her during her lifetime,
and further, because sail will has not been
executed with the formalities required by
existing laws. Trial having taken place, at
which evidence was adduced, the court on
February 8, 1916, issued an order,
admitting said second document and
ordering its allowance as the last will and
testament o said deceased. From said
order the opponents appealed to this court
and transmitted to us the corresponding
declarations. Tow of the opponents, that is,
Rosa and Cristina Naval, assigned, as
errors committed by the court, the
following:
1. The finding of the court that the will of
October 31, 1914, has not been revoked by
that of February 13, 1915;
2. The act of the court in permitting the
petitioner to institute and proceed with the
proceedings relative to the last case for the
allowance of the will, No. 13579,
notwithstanding that proceedings had
already been had in the other case No.
13386 and final judgment rendered therein;
and
3. The act of the court in denying the
motion for continuance of the trial on the
allowance of the will of October 31, 1914,
which motion was presented for the sole
purpose of introducing evidence to show
the falsity of the signature appearing in said
will and submitting said signature to the
Bureau of Science for analysis.
The other opponent, Monica Naval,
assigned, besides the first two errors
already mentioned, the finding of the court
that the disallowance of the will of said
deceased, dated February 13, 1915, on the
ground that is was not executed in such
form that it could transmit real and personal
property, according to section 618 of the
Code of Civil Procedure, also had the effect
of annulling the revocatory clause in said
will.
From the evidence it appears, as we have
already stated, that the trial court declared
that the first document presented by the
executor of the deceased, Simeona F.
Naval, as a will executed by her on
February 13, 1915, and which was the
subject-matter of case No. 13386 of said
court, could not be allowed, on the ground
that it was not executed with the requisites
and formalities prescribed by law. Article
739 of the Civil Code provides that a former
will is by operation of law revoked by
another valid subsequent will, if the testator
does not state in the later will his desire
that the former should subsist wholly or
partly. In harmony with this provision of
substantive law, we find section 623 of the
12
Code of Civil Procedure, which provides
Page
that no will shall be revoked, except by
implication of law, otherwise than by some
will, codicil, or other writing executed as
provided in case of wills.
Therefore, according to the legal
provisions, in order that the will of February
13, 1915, that is, the first document
presented as the will of the deceased
Simeona F. Naval, could have the effect of
revoking that which was presented
afterwards by the petitioners as executed
by the same deceased on October 31,
1914, that is, on a date previous to the
execution of the first, it was necessary and
indispensable that the later will, that is, that
first presented for allowance, should be
perfect or valid, that it, executed as
provided by lay in case of wills.
It also appears from the record that the
opponents themselves maintained that said
later will, that is, that of February 13, 1915,
was not perfect, or executed as provided by
law in case of wills, and the Court of First
Instance of Manila has so held in
disallowing said documents as the will of
the deceased. So that it very evident that
the second will presented, that is, that of
October 31, 1914, was not and could not
have been revoked by the first, and the
court was not in error in so holding in the
order appealed from. We deem it
unnecessary to add a single word mere or
cite well-known doctrines and opinions of
jurists in support of what has already been
stated.
As to the second error assigned by the
opponents, we believe it sufficient to refer
to what the court below stated in the
judgment appealed from. It is as follows:
The court finds no incongruency in
the presentation of a prior will when
another will of subsequent date has
been disallowed. Disregarding the
fact that the petitioners in this case
were not those who presented the
will in No. 13386, in which the
petition was presented by the same
D. Perfecto Gabriel as executor, it is
proper to take into account that the
object of a petition for allowance is to
ask for an order declaring that a will
has been executed in accordance
with the requisites and formalities
required by law. This is a question for
the court to decide and is out of the
control of the party who presents the
will. The allowance or disallowance
of a will by a competent court
depends upon whether the evidence
adduced at the trial shows or does
not show that the formalities required
by law have been complied with, and
this cannot be determined in
advance, as a general rule, by the
person who presents the testament.
for he has not always concurred in or
seen the execution of the will.
If, therefore, the personal who
presents a will and asks that if be
allowed does not secure its
allowance, and he has in his
possession another will, or has
information that another exists, he
does not contradict himself by asking
for the allowance of the will of earlier
date merely because the later will
was declared invalid by the proper
court. If in this case there is any who
adopts a contradictory position, it is
the respondent himself, inasmuch as
in case No. 13386 he alleged, as a
ground for the disallowance of the
will then presented, that it was not
executed in accordance with the law,
and now he maintains the contrary,
for he claims that said will revoked
that which is now presented.
With respect to the third error, it is beyond
doubt that the court did not commit it, for it
appears that when the examination of the
witness, Cristina Samson, was finished and
the court told Attorney Lualhati, counsel for
the respondents, to continue adducing his
evidence, he said he had no more proof,
although he added that he would ask the
court to grant him permission to send the
will of 1914 to the Bureau of Science, which
petition was objected to by the attorney for
the proponents and denied by the court.
Immediately thereafter the attorney for the
opponents asked for the continuance of the
trial, which was also denied by the court,
after objection was made by the
proponents. The attorney for the opponents
excepted to said ruling.
Therefore, the petition of said attorney for
13
the remission of said will to the Bureau of
Page
Science, in the terms in which it was made
to the court, after ha had stated that he had
no more evidence to present, signified that
he left it to the discretion of the court to
grant it or not. Furthermore, no exception
was taken to the order to the order denying
this motion, and although the attorney for
the opponents excepted to the order
denying the motion for continuance of the
trial, such exception was completely
useless and ineffective for the purpose of
alleging before this court that the trial court
erred in that respect, for said resolution,
being one of those left to the discretion of
the court in the exercise of it functions,
according to section 141 of the Code of
Civil Procedure, it could not be the subject
of an exception, unless the court, in
denying said motion, abused its discretional
power and thereby prejudiced the essential
rights of the respondents, which is not the
case here.
The error which, in addition to the first two
already mentioned, has been assigned by
the opponent and appellant, Monica Naval,
and refers, according to her, to the court's
action in declaring that the disallowance of
the will of the deceased Simeona F. Naval,
dated February 13, 1915, for the reason
that it was not executed in such manner
and from that it could transmit real and
personal property, according to the
provisions of section 618 of the Code of
Civil Procedure, also had the effect of
annulling the revocatory clause of said will.
First of all, it is not true that the court made
such statement in the terms given in said
assignment of error, that is, it is not true
that the court declared that, because said
will was not executed in the form required
by law in order that it may transmit real and
personal property, according to the
provisions of section 618, the disallowance
of said will also had the effect of annulling
the revocatory clause therein contained. In
the order appealed from there is no
declaration or conclusion made in these
terms. The court did not say that the
annulment of the revocatory clause in said
will was the effect or consequence of the
fact that it was not allowed on the ground
that it was not executed in the form
required by law in order that it may transmit
real and personal property. Referring to the
construction, given by the respondent to
sections 618 and 623 of the Code of Civil
Procedure, to the effect that a subsequent
will may revoke a previous will, although
the later will has not been allowed by the
competent court, it being sufficient that the
intention of the testator to revoke the
previous will should be clearly expressed,
and that, while the requisite of allowance is
necessary in order that it may transmit
property from one person to another, it is
not necessary in order that it might
procedure other effects, for example, the
effect of a revocatory clause, or a clause of
aknowledgment of a child, — what the
court declared, we repeat, was that
although the revocation of a will should
have been effected, not by means of
another will or codicil, but by mans of a
document, as authorized by said section
623, which document should have the
requisites and conditions fixed in section
618, the presentation of the document to
the court was necessary in order that the
latter might allow it, by declaring that it was
executed with the formalities required by
law for the execution of a will, and finally
concluding that, just as to, is to be proved
that the requisites of section 618 have been
complied with in order that a will may be of
value through its allowance, so without
such allowance the revocatory clause like
the other provisions of the will, has no
value or effect except to show extraneous
matters, as, for example, the
acknowledgment of natural children, of
some debt or obligation. In such case, the
document could produce effect, but not as
will, but simply as a written admission
made by the person executing it. And It is
beyond doubt that the revocatory clause
contained in a document, like the present,
which contains provisions proper of a will,
as those relating to legacies and
distribution of the properties of the testator
after his death as well as the appointment
of executors, is not matter extraneous to
the will, but merely a part thereof, intimately
connected with it as well as with the will or
wills, the revocation of which is declared in
said clause; in short, the desire of the
testator declared in the revocatory clause is
related to the desire of the same testator
expressed in the provisions of the
testament in which said clause is found and
to that which he might have expressed in
14
the testaments which he may have
previously executed. There is such relation
Page
between the revocatory clause and the will
which contains it, that if the will does not
produce legal effects, because it has not
been executed in accordance with the
provisions of the law, neither would the
revocatory clause therein produce legal
effects. And if, in the present case, the so-
called will of the deceased, Simeona F.
Naval, dated February 13, 1915, was not
duly executed by her as her last will and
testament, ad declared by the court in its
decision of November 19, 1915, in case
No. 13386, for which reason its allowance
was denied, neither may it be maintained
that the revocatory clause contained in said
will is the expression of the last will of said
deceased. The disallowance of the ill,
therefore, produced the effect of annulling
the revocatory clause, not exactly because
said will was not executed in such from that
it could transmit real and personal property,
as inaccurately alleged by the appellant,
Monica Naval, to be the court's finding,
upon which said assignment of error is
based, but because it was proved that said
will was not executed or signed with the
formalities and requisites required by
section 618 of the Code of Civil Procedure,
a cause which also produces the nullity of
the same will, according to section 634 of
said law; and of course what is invalid in
law can produce no effect whatever.
If the instrument propounded as a
revocation be in form a will, it must
be perfect as such, and be
subscribed and attested as is
required by the statute. An
instrument intended to be a will, but
filing of its effect as such on account
of some imperfection in its structure
or for want of due execution, cannot
be set up for the purpose of revoking
a former will. (40 Cyc., p. 1177, and
cases cited therein.)
A subsequent will containing a
clause revoking an earlier will must,
as a general rule, be admitted to
probate before the clause of
revocation can have any effect, and
the same kind, quality, and method
of proof is required for the
establishment of the subsequent will
as was required for the
establishment of the former will. (40
Cyc., p. 1178, and cases cited
therein.)
But admitting that the will said to have been
executed by the deceased Simeona F.
Naval on February 13, 1915,
notwithstanding its inefficacy to transmit
property for the reason that it has not been
executed, according to the provisions of
said section 618 of the Code of Civil
Procedure, should be considered as
executed by her in order to express her
desire, appearing in one of its clauses, to
revoke and annul any previous will of hers,
as stated in clause 13, this being the
argument adduced by the appellant,
Monica naval, in support of said
assignment of error — neither could it be
maintained that, the allowance of said will
having been denied by the court on
November 11, 1915, said revocatory clause
subsists and the intention expressed by the
testratrix therein is valid and legally
effective, for the simple reason that, in
order that a will may be revoked by a
document, it is necessary, according to the
conclusive provisions of section 623 of said
procedural law, that such documents be
executed according to the provisions
relating to will in section 618, and the will in
question, or, according to the respondent,
the so-called document, was not executed
according to the provisions of said section,
according to the express finding of the trial
court in its order of November 11, 1915,
acquiesced in by the opponent herself, and
which is now final and executory.
Therefore, the disallowance of said will and
the declaration that it was not executed
according to the provisions of law as to
wills, produced the effect of annulling said
revocatory clause.
In support of the argument advanced in her
brief said appellant, Monica Naval, cites the
declaration made by the Supreme Court of
Massachusetts in Wallis vs. Wallis (114
Mass., 510, 512)m which, according to the
appellant herself, was in the following
terms:
If it be shown that a later will was
duly executed and attested,
containing a clause expressly
revoking former will nothing else
appearing as to its contents, it is
nevertheless good as a revocation,
15
but it can only be made available by
setting it up in opposition to the
Page
probate of the earlier will.
In the decision of said case the finding
referred to be by the appellant appears not
to have been made by the Supreme Court
of Massachusetts.
The syllabus of said decision says:
When a will revoking a former will is
in existence, it must be established in
the Probate Court; but when it has
been lost or destroyed, and its
contents cannot be sufficiently
proved to admit it to probate, it may
nevertheless be availed of as a
revocation in opposition to the
probate of the will revoked by it.:
And in the body of the decision there is a
declaration, to which the appellant must
have desired to refer in her brief, which
declaration says:
If it can be proved that a later will
was duly executed, attested and
subscribed, and that it contained a
clause expressly revoking all former
wills, but evidence of the rest of its
contents cannot be obtained, it is
nevertheless a good revocation; and
it can be made available only by
allowing it to be set up in opposition
to the probate of the earlier will,. . .
The facts of the case in which this decision
was rendered are different from the facts of
the case at bar. That was a case
concerning a will filed by one of the children
of the testatrix, Mary Wallis, as her last will,
to the allowance of which another son
objected, alleging that said will had been
revoked by another executed by the same
deceased subsequent to the will that was
filed, and that it had been fraudulently
destroyed or taken by his brother, the
proponent and his wife, or by one of them,
in order to deprive him of the rights
conferred upon him by said will. Therefore,
the will said to have been subsequently
executed by the testatrix and in which,
according to the oppositor, the clause
revocatory of the former will appeared, was
not presented by said oppositor, while the
previous will was, in the contrary, filed for
allowance by the son of the testratrix, who
appeared to be favored therein, said
oppositor having alleged that the
subsequent will, that is, that containing the
revocatory clause, had been drawn,
subscribed and executed in accordance
with the provisions of the law, a fact which
he was ready to prove just as he was ready
to prove that it had been destroyed or
suppressed by the proponent, his brother
and his wife, or one of them. In the case at
bar, the subsequent will containing the
revocatory clause of the previous will
executed by the deceased Simeona F.
Naval was presented to the court for
allowance and it was disallowed — a fact
which gave opportunity to the legatees of
said deceased to present a previous will
executed by her on October 31, 1914, and
said two wills having been successively
presented, evidence as to them was also
successively adduced for their allowance
by the court.
Therefore, the declaration made by the
Supreme Court of Massachusetts in Wallis
vs. Wallis (supra), to the effect that a
subsequent will containing a revocatory
clause of previous wills, constitutes a valid
revocation and may be used in objecting to
the allowance of the previous will, even
when it is not possible to obtain proof of the
remainder of the contents of said
subsequent will, refers to the case in which
the latter had been taken away, destroyed
or suppressed, and it was impossible to
present it for allowance, but requires for
that purpose that it be proved that said
subsequent will has been executed,
attested, and subscribed in due form and
that it contained, furthermore, that
revocatory clause. This is what said
declaration and, in relation thereto, also
what the syllabus of the decision thereof
clearly says. The court, through Chief
Justice Gray, in giving its opinion, thus
began by saying:
By our law, no will can be revoked by
any subsequent instrument, other
than a "will, codicil or writing, signed,
attested and subscribed in the
manner provided for making a will."
And when an instrument of
revocation is in existence and
capable of being propounded for
probate, its validity should be tried by
a direct proceeding instituted for the
16
purpose in the Probate Court.
(Loughton vs. Atkins, 1 Pick., 535.)
Page
It results, therefore, that while perfect parity witnesses did not sign in the presence of
does not exist between the case decided each other, or what is the same thing, that
by the Supreme Court of Massachusetts, to said document has not be attested and
which the appellant Monica Naval refers, subscribed in the manner established by
and that which is not before us, it is wholly law for the execution of will, or, in other
unquestionable that, whether the case words, as provided by law in case of wills,
deals with a subsequent will revocatory of a as stated by section 623 of said procedural
previous will, which may possibly be law, and this resolution was acquiesced in,
presented to a probate court for allowance, as already stated, by the respondents in
or of a subsequent will, also revocatory of a this case, and is, therefore, final and
previous will, which could not be presented executory.
for allowance, because it has been taken or
hidding, or mislaid — in order that such will In conclusions, the doctrine laid down in the
may constitute a valid revocation and be decision of the Supreme Court of
utilized in the second case, although the Massachusetts, invoked by the appellant,
remaining provisions may not be proven, in Monica Naval, is in conformity with the
opposition to the allowance of the previous provision of said section 623 of our
will, it is necessary to prove that it was procedural law and article 739 of the Civil
executed, attested, and subscribed in due Code, and the will executed by the
form, and, of course, also that it contained deceased Simeona F. Naval on October
a clause expressly revoking the previous 31, 1914, not having been revoked,
will, or, what is the same thing, that said according to these provisions, by the will
subsequent will has been executed presented and alleged as executed by the
according to the provisions relating to wills, same deceased subsequently on February
as expressed in section 623 of the 13, 1915, the allowance of which was
procedural law in force. There can be no denied by the Court of First Instance of
doubt whatever that this applies when the Manila, the court below was not in error in
revocation had been made to appear in a ordering the allowance of said will, that is,
writing or document susceptible of of that of October 31, 1914, as the last will
presentation for allowance, like the so- and testament of said deceased.
called will of the deceased Simeona F.
Naval, dated February 13, 1915, and
considered by said respondent and
appellant as a mere document of
revocation, for, as already seen in said
decision invoked by her, the requisite as to
signing, attesting, and subscribing in the
form, required by law for the execution of
wills in order that it may revoke a previous
will, is also required in a will as well as in a
codicil, or in a writing, and in referring to a
document of revocation, it is also
expressed that its validity should be proved
in a direct proceeding, instituted for the
purpose in a probate court. In the case at
bar, the document, executed by the
deceased, Simeona F. Naval, as her last
will and testament, dated February 13,
1915, has been presented for allowance; it
validity has been proved by means of said
procedure in the Court of Probate of
Manila, and that court denied its allowance,
on the ground that the document in
question had not been duly executed by the
17

deceased, as her last will and testament,

because she did not sign in the presence of
Page

three witnesses, and two of these

 ARTICLE 838. On 20 November 1951, CANUTO had
Lot 2 surveyed and subdivided into eight
lots (Lot Nos. 2-A to 2-H) through
[G.R. No. 115925. August 15, 2003] Subdivision Plan Psd 34713 which the
Director of Lands approved on 30 May
1952. Lot No. 2-A, with an area of 670
square meters, and Lot No. 2-E, with an
SPOUSES RICARDO PASCUAL and area of 2,000 square meters, were placed
CONSOLACION under CANUTOs name. Three other
SIOSON, petitioners, vs. COURT individuals took the remaining lots.[3]
OF APPEALS and REMEDIOS S.
EUGENIO-GINO, respondents. On 26 September 1956, CANUTO and
CONSOLACION executed a Kasulatan ng
DECISION Bilihang Tuluyan[4] (KASULATAN). Under
the KASULATAN, CANUTO sold his 10/70
CARPIO, J.: share in Lot 2 in favor of CONSOLACION
for P2,250.00. The KASULATAN, notarized
by Notary Public Jose T. de los Santos of
The Case Navotas, provides:

This is a petition for review of the Na ako, CANUTO SIOSON, mamamayang

Decision[1] dated 31 January 1994 of the Pilipino, may katampatang gulang, kasal
Court of Appeals ordering the Register of kay Raymunda San Diego, at naninirahan
Deeds of Metro Manila, District III, to place sa Tanza, Navotas, Rizal, sa bisa at
TCT No. (232252) 1321 in the name of pamamagitan ng kasulatang ito ay
respondent Remedios S. Eugenio- nagpapatunay at nagpapatibay:
Gino. The Decision ordered the Register of
Deeds to cancel the names of petitioners 1. Na ako ang lubos at tunay na
Ricardo Pascual and Consolacion Sioson may-ari ng 10/70
(petitioners) in TCT No. (232252) 1321. bahaging hindi hati
The Decision also directed petitioners to (10/70 porcion pro-
pay respondent moral and exemplary indiviso) ng isang lagay
damages and attorneys fees. na lupa (Lote No. 2,
Plano Psu-13245), na
nasa sa nayon ng
The Facts Tanza, Municipio ng
Navotas, Provincia ng
Rizal, at ang descripcion
Petitioner Consolacion Sioson o pagkakakilanlan ng
(CONSOLACION) and respondent nasabing lote ay
Remedios S. Eugenio-Gino (REMEDIOS) nakasaad sa Certificado
are the niece and granddaughter, Original, de Titulo No.
respectively, of the late Canuto Sioson 4207 ng Oficina ng
(CANUTO). CANUTO and 11 other Registrador de
individuals, including his sister Catalina Titulos ng Rizal, gaya ng
Sioson (CATALINA) and his brother sumusunod:
Victoriano Sioson (VICTORIANO), were co-
owners of a parcel of land in Tanza, xxxx
Navotas, Metro Manila. The property,
known as Lot 2 of Plan Psu 13245, had an 2. Na dahil at alang-alang sa
area of 9,347 square meters and was halagang Dalawang Libo
covered by Original Certificate of Title No. Dalawang Daan at
4207 issued by the Register of Deeds of Limampung Piso
Rizal. CATALINA, CANUTO, and (P2,250.00), salaping
VICTORIANO each owned an aliquot 10/70 Pilipino, na sa akin ay
share or 1,335 square meters of Lot 2. [2]
18

ibinayad ni
CONSOLACION
Page
 SIOSON, kasal kay Na kami ang mga buhay na anak na
Ricardo S. Pascual, may naiwan ni CANUTO SIOSON na
sapat na gulang, nagmamay-ari ng 10/70 bahaging hindi hati
mamamayang Pilipino, (10/70 porcion pro-indiviso) ng isang lagay
at naninirahan sa na lupa (Lote No. 2, plano Psu-13245), na
Dampalit, Malabon, nasa Nayon ng Tanza, Navotas, Rizal, at
Rizal at ang ang mga palatandaan nito ay nasasaad sa
pagkakatanggap ng Certificado Original de Titulo No. 4207 ng
nasabing halaga ay Tanggapan ng Registrador de Titulos ng
aking inaamin at Rizal;
pinatutunayan, ay aking
ipinagbili, inilipat at Na sa lubos naming kaalaman, ay ipinagbili
isinalin, sa pamamagitan ng aming Ama na si Canuto Sioson ang
ng bilihang tuluyan at kaniyang buong bahagi na 10/70 sa
walang pasubali a favor nasabing Lote No. 2, kay CONSOLACION
[sic] sa nasabing si SIOSON, may-bahay ni Ricardo S.
CONSOLACION Pascual, na taga Dampalit, Malabon, Rizal,
SIOSON, sa kanyang sa halagang P2,250.00, salaping pilipino,
tagapagmana at noong ika 16 [sic] ng Septiembre, 1956, sa
mapaglilipatan ang lahat pamamagitan ng isang KASULATAN NG
ng aking titulo, BILIHANG TULUYAN na pinagtibay sa
karapatan at kaparti na harap ng Notario Publico Jose T. de los
binubuo ng 10/70 Santos nang pechang nabanggit, sa
bahaging hindi hati Navotas, Rizal, (Doc. No. 194, Page No.
(10/70 porcion pro- 84; Book No. IV; Series of 1956);
indiviso) ng loteng
descrito or tinutukoy sa Na ang nasabing lupa na ipinagbili ng
itaas nito. (Emphasis aming Ama kay Consolacion Sioson ni
supplied) Pascual, ay nakikilala ngayong mga Lote
No. 2-A at Lote 2-E ng Plano de
CONSOLACION immediately took Subdivision Psd-34713; na pinagtibay ng
possession of Lot Nos. 2-A and 2-E. She Assistant Director of Lands noong Mayo
later declared the land for taxation 30, 1952;
purposes and paid the corresponding real
estate taxes.[5] Na aming ngayong pinatitibayan ang
pagka-pagbili ng bahagi ng aming Ama kay
On 23 October 1968, the surviving Consolacion Sioson ni Pascual ng ngayoy
children of CANUTO, namely, Felicidad nakikilalang Lote No. 2-A at Lote No. 2-E
and Beatriz, executed a joint ng Plano de Subdivision Psd-34713.
[6]
affidavit (JOINT AFFIDAVIT) affirming the (Emphasis supplied)
KASULATAN in favor of CONSOLACION.
They also attested that the lots their father On 28 October 1968, CONSOLACION
had sold to CONSOLACION were Lot Nos. registered the KASULATAN and the JOINT
2-A and 2-E of Subdivision Plan Psd AFFIDAVIT with the Office of the Register
34713. The JOINT AFFIDAVIT reads: of Deeds of Rizal (Register of
Deeds). Based on these documents, the
KAMING sina FELICIDAD SIOSON at Register of Deeds issued to
BEATRIZ SIOSON, pawang mga Pilipino, CONSOLACION Transfer Certificate of
kapuwa may sapat na gulang at Title No. (232252) 1321 covering Lot Nos.
naninirahan, ang una sa Tanza, Navotas at 2-A and 2-E of Subdivision Plan Psd 34713
ang ikalawa sa Concepcion, Malabon, with a total area of 2,670 square meters.
lalawigan ng Rizal, sa ilalim ng isang ganap
na panunumpa alinsunod sa batas, ay On 4 February 1988, REMEDIOS filed
malayang nagsasalaysay ng mga a complaint against CONSOLACION and
sumusunod: her spouse Ricardo Pascual in the
19

Regional Trial Court of Malabon, Branch

165, for Annulment or Cancellation of
Page
Transfer Certificate [of Title] and Damages.
REMEDIOS claimed that she is the owner
of Lot Nos. 2-A and 2-E because
CATALINA devised these lots to her in
CATALINAs last will and testament[7] (LAST
WILL) dated 29 May 1964. REMEDIOS
added that CONSOLACION obtained title
to these lots through fraudulent means
since the area covered by TCT (232252)
1321 is twice the size of CANUTOs share
in Lot 2. REMEDIOS prayed for the
cancellation of CONSOLACIONs title, the
issuance of another title in her name, and
the payment to her of damages.
Petitioners sought to dismiss the
complaint on the ground of
prescription. Petitioners claimed that the
basis of the action is fraud, and
REMEDIOS should have filed the action
within four years from the registration of
CONSOLACIONs title on 28 October 1968
and not some 19 years later on 4 February
1988. REMEDIOS opposed the motion,
claiming that she became aware of
CONSOLACIONs adverse title only in
February 1987. CONSOLACION
maintained that she had timely filed her
complaint within the four-year prescriptive
on 4 February 1988.
In its order of 28 April 1988, the trial
court denied petitioners motion to
dismiss. The trial court held that the
reckoning of the prescriptive period for filing
REMEDIOS complaint is evidentiary in
nature and must await the presentation of
the parties evidence during the trial. During
the pre-trial stage, REMEDIOS clarified that
she was claiming only CATALINAs 10/70
share in Lot 2, or 1,335 square meters,
which constitute of the area of Lot Nos. 2-A
and 2-E.[8] The trial of the case then
ensued.
The Ruling of the Trial Court
On 26 November 1990, the trial court
rendered judgment dismissing the case and
ordering REMEDIOS to pay
petitioners P10,000 as attorneys fees and
the cost of suit. The trial court held that the
action filed by REMEDIOS is based on
fraud, covered by the four-year prescriptive
period. The trial court also held that
REMEDIOS knew of petitioners adverse
title on 19 November 1982 when
REMEDIOS testified against petitioners in
an ejectment suit petitioners had filed
against their tenants in Lot Nos. 2-A and 2-
E. Thus, the complaint of REMEDIOS had
already prescribed when she filed it on 4
February 1988.
The trial court further ruled that
REMEDIOS has no right of action against
petitioners because CATALINAs LAST
WILL from which REMEDIOS claims to
derive her title has not been admitted to
probate. Under Article 838 of the Civil
Code, no will passes real or personal
property unless it is allowed in probate in
accordance with the Rules of Court. The
dispositive portion of the trial courts
decision provides:
WHEREFORE, judgment is hereby
rendered in favor of the defendants and
against plaintiff, ordering:
1. The dismissal of this case;
2. The plaintiff to pay the
defendants the sum of Ten
Thousand (P10,000.00) Pesos
as and for attorneys fees; and
3. The plaintiff to pay the costs of suit.[9]
REMEDIOS appealed to the Court of
Appeals.
The Ruling of the Court of Appeals
On 31 January 1994, the Court of
Appeals rendered judgment reversing the
decision of the trial court. The appellate
court held that what REMEDIOS filed was a
suit to enforce an implied trust allegedly
created in her favor when CONSOLACION
fraudulently registered her title over Lot
Nos. 2-A and 2-E. Consequently, the
prescriptive period for filing the complaint is
ten years, not four. The Court of Appeals
counted this ten-year period from 19
November 1982. Thus, when REMEDIOS
filed her complaint on 4 February 1988, the
ten-year prescriptive period had not yet
expired.
20
The appellate court held that
CATALINAs unprobated LAST WILL does
Page
not preclude REMEDIOS from seeking
reconveyance of Lot Nos. 2-A and 2-E as INVOLVED IN THIS CASE,
the LAST WILL may subsequently be AND IN ORDERING THE
admitted to probate. The dispositive portion CANCELLATION OF THE
of the appellate courts ruling provides: CERTIFICATE OF TITLE
OF PETITIONERS.
WHEREFORE, the decision appealed from
III. THE COURT OF
is REVERSED and SET ASIDE. The
APPEALS ACTED WITH
Registry of Deeds of Rizal or Metro Manila,
GRAVE ABUSE OF
District III, is ordered to place Transfer
DISCRETION
Certificate of Title No. (232252) 1321 under
AMOUNTING TO LACK
the name of Remedios S. Eugenio-Gino as
OF JURISDICTION AND
executor of the will of Catalina Sioson and
IN GROSS VIOLATION OF
cancel the names of the Spouses Ricardo
THE RULES OF COURT
Pascual and Consolacion Sioson
IN ORDERING THE
inscribed over said title as owners of the
ENTIRE PROPERTY
covered lot. Defendants-appellees spouses
COVERED BY
Ricardo Pascual and Consolacion Sioson
TRANSFER
are ordered to pay plaintiff-appellant
CERTIFICATE OF TITLE
Remedios S. Eugenio-Gino moral damages
NO. (232252) 1321 TO BE
in the amount of P50,000.00, exemplary
PLACED IN THE NAME
damages of P20,000[.00] and attorneys
OF PRIVATE
fees of P20,000.00 and P500.00 per
RESPONDENT,
appearance.[10]
BECAUSE THE CLAIM OF
Petitioners sought reconsideration of PRIVATE RESPONDENT
the ruling. However, the Court of Appeals IS LIMITED ONLY TO
denied their motion in its order dated 15 ONE-HALF (1/2)
June 1994. PORTION OF THE
PROPERTY, AND THE
Hence, this petition. OTHER HALF THEREOF
UNQUESTIONABLY
BELONGS TO
The Issues PETITIONERS.
IV. THE COURT OF
Petitioners allege the following APPEALS ERRED IN
assignment of errors: HOLDING THAT
I. THE COURT OF APPEALS PETITIONERS ACTED
ERRED IN HOLDING FRAUDULENTLY AND IN
THAT BAD FAITH IN SECURING
PRIVATE RESPONDENTS THEIR CERTIFICATE OF
CAUSE OF ACTION IS TITLE TO THE
NOT BARRED BY PROPERTY INVOLVED IN
PRESCRIPTION WHICH THIS CASE, AND IN
FINDING IS MANIFESTLY ORDERING
CONTRARY TO LAW AND PETITIONERS TO PAY
THE APPLICABLE PRIVATE RESPONDENTS
DECISIONS OF THIS MORAL DAMAGES,
HONORABLE COURT. EXEMPLARY DAMAGES
AND ATTORNEYS
II. THE COURT OF APPEALS FEES.[11]
ERRED IN NOT HOLDING
THAT PRIVATE The pivotal questions are: (1) whether
RESPONDENT DOES prescription bars the action filed by
NOT HAVE ANY TITLE REMEDIOS, and (2) whether REMEDIOS
AND HAS UTTERLY is a real party-in-interest.
21

FAILED TO PROVE ANY

Page

TITLE TO THE LOTS

The Ruling of the Court
The petition has merit.
The Action is Barred by Prescription
The trial court held that the action filed
by REMEDIOS is one based on
fraud. REMEDIOS action seeks to recover
real property that petitioners allegedly
acquired through fraud.Consequently, the
trial court held that the action prescribes in
four years counted from REMEDIOS actual
discovery of petitioners adverse title. The
trial court concluded that REMEDIOS
belatedly filed her suit on 4 February 1988
because she actually knew of petitioners
adverse title since 19 November 1982.
On the other hand, the Court of
Appeals held that what REMEDIOS filed
was a suit to enforce an implied
trust. REMEDIOS had ten years counted
from actual notice of the breach of trust,
that is, the assertion of adverse title, within
which to bring her action. The appellate
court held that REMEDIOS seasonably
filed her complaint on 4 February 1988
because she allegedly discovered
petitioners adverse title only on 19
November 1982.
What REMEDIOS filed was an action to
enforce an implied trust but the same is
already barred by prescription.
Prescriptive Period is 10 Years Counted
From Registration of Adverse Title
The four-year prescriptive period relied
upon by the trial court applies only if the
fraud does not give rise to an implied trust,
and the action is to annul a voidable
contract under Article 1390[12] of the Civil
Code. In such a case, the four-year
prescriptive period under Article
1391[13] begins to run from the time of
discovery of the mistake, violence,
intimidation, undue influence or fraud.
In the present case, REMEDIOS does
not seek to annul the
KASULATAN. REMEDIOS does not assail
the KASULATAN as a voidable contract. In
fact, REMEDIOS admits the validity of the
sale of 1,335 square meters of land under
the KASULATAN. However, REMEDIOS
alleges that the excess area of 1,335
meters is not part of the sale under the
KASULATAN.REMEDIOS seeks the
removal of this excess area from TCT No.
(232252) 1321 that was issued to
CONSOLACION. Consequently,
REMEDIOS action is for Annulment or
Cancellation of Transfer Certificate [of Title]
and Damages.[14]
REMEDIOS action is based on an
implied trust under Article 1456 since she
claims that the inclusion of the additional
1,335 square meters in TCT No. (232252)
1321 was without basis. In effect,
REMEDIOS asserts that CONSOLACION
acquired the additional 1,335 square
meters through mistake or fraud and thus
CONSOLACION should be considered a
trustee of an implied trust for the benefit of
the rightful owner of the property. Clearly,
the applicable prescriptive period is ten
years under Article 1144 and not four years
under Articles 1389 and 1391.
It is now well-settled that the
prescriptive period to recover property
obtained by fraud or mistake, giving rise to
an implied trust under Article 1456[15] of the
Civil Code, is ten years pursuant to Article
1144.[16] This ten-year prescriptive period
begins to run from the date the adverse
party repudiates the implied trust, which
repudiation takes place when the adverse
party registers the land.[17]
REMEDIOS filed her complaint on 4
February 1988 or more than 19 years after
CONSOLACION registered her title over
Lot Nos. 2-A and 2-E on 28 October
1968. Unquestionably, REMEDIOS filed the
complaint late thus warranting its
dismissal. As the Court recently declared
in Spouses Alfredo v. Spouses
Borras,[18]
Following Caro,[19] we have consistently
held that an action for reconveyance based
on an implied trust prescribes in ten
years. We went further by specifying the
reference point of the ten-year prescriptive
period as the date of the registration of the
deed or the issuance of the title.
22
The Court of Appeals Reckoning of
Page
Prescriptive Period from Actual Notice
of Adverse Title Not Justified
In holding that the action filed by
REMEDIOS has not prescribed, the Court
of Appeals invoked this Courts ruling
in Adille v. Court of Appeals.[20] In Adille,
the Court reckoned the ten-year
prescriptive period for enforcing implied
trusts not from registration of the adverse
title but from actual notice of the adverse
title by the cestui que trust. However, the
Court, in justifying its deviation from the
general rule, explained:
[W]hile actions to enforce a constructive
trust prescribes (sic) in ten years, reckoned
from the date of the registration of the
property, we x x x are not prepared to count
the period from such date in this case. We
note the petitioners sub rosa efforts to get
hold of the property exclusively for himself
beginning with his fraudulent
misrepresentation in his unilateral affidavit
of extrajudicial settlement that he is the
only heir and child of his mother Feliza[]
with the consequence that he was able to
secure title in his name also. (Emphasis
supplied)
Such commission of specific fraudulent
conduct is absent in the present
case. Other than asserting that petitioners
are guilty of fraud because they secured
title to Lot Nos. 2-A and 2-E with an area
twice bigger than what CANUTO allegedly
sold to CONSOLACION, REMEDIOS did
not present any other proof of petitioners
fraudulent conduct akin to Adille.
CONSOLACION obtained title to Lot
Nos. 2-A and 2-E through the KASULATAN
executed by CANUTO and the JOINT
AFFIDAVIT executed by his surviving
children, one of whom, Felicidad, is the
mother of REMEDIOS. The KASULATAN
referred to the sale of CANUTOs 10/70
share in Lot 2 without specifying the area of
the lot sold. The JOINT AFFIDAVIT
referred to the Plano de Subdivision Psd-
34713 without also specifying the area of
the lot sold. However, Subdivision Plan Psd
34713, as certified by the Assistant Director
of Lands on 30 May 1952, showed an area
of 2,670 square meters in the name of
CANUTO. Based on these documents, the
Register of Deeds issued TCT No.
(232252) 1321 to CONSOLACION covering
an area of 2,670 square meters.
REMEDIOS does not assail the
KASULATAN or the JOINT AFFIDAVIT as
fictitious or forged. REMEDIOS even
admits the authenticity of Subdivision Plan
Psd 34713 as certified by the Assistant
Director of Lands.[21] Moreover, REMEDIOS
has not contested petitioners claim that
CANUTO doubled his share in Lot 2 by
acquiring VICTORIANOs share.[22]
Plainly, the increase in the area sold
from 1,335 square meters to 2,670 square
meters is a glaring mistake. There is,
however, no proof whatsoever that this
increase in area was the result of
fraud. Allegations of fraud in actions to
enforce implied trusts must be proved by
clear and convincing evidence.[23] Adille,
which is anchored on fraud,[24] cannot apply
to the present case.
At any rate, even if we apply Adille to
this case, prescription still bars REMEDIOS
complaint. As executrix of CATALINAs
LAST WILL, REMEDIOS submitted to the
then Court of First Instance of Caloocan in
Special Proceedings Case No. C-208 the
inventory of all the property comprising
CATALINAs estate, which included Lot
Nos. 2-A and 2-E. In a motion dated 7
November 1977, CONSOLACION sought
the exclusion of these lots from the
inventory, invoking her title over
them. REMEDIOS was served a copy of
the motion on 8 November 1977 against
which she filed an opposition.
Nevertheless, the trial court overruled
REMEDIOS objection. In its order of 3
January 1978, the trial court granted
CONSOLACIONs motion and ordered the
exclusion of Lot Nos. 2-A and 2-E from the
estate of CATALINA. REMEDIOS did not
appeal from this ruling.
REMEDIOS thus had actual notice of
petitioners adverse title on 8 November
1977. Even if, for the sake of argument, the
ten-year prescriptive period begins to run
upon actual notice of the adverse title, still
REMEDIOS right to file this suit has
prescribed. REMEDIOS had until 11
November 1987 within which to file her
complaint. When she did so on 4 February
23
1988, the prescriptive period had already
lapsed.
Page
Respondent is Not a Real Party-in-
Interest
Not only does prescription bar
REMEDIOS complaint. REMEDIOS is also
not a real party-in-interest who can file the
complaint, as the trial court correctly ruled.
The 1997 Rules of Civil Procedure
require that every action must be
prosecuted or defended in the name of the
real party-in-interest who is the party who
stands to benefit or suffer from the
judgment in the suit.[25] If one who is not a
real party-in-interest brings the action, the
suit is dismissible for lack of cause of
action.[26]
REMEDIOS anchored her claim over
Lot Nos. 2-A and 2-E (or over its one-half
portion) on the devise of these lots to her
under CATALINAs LAST WILL. However,
the trial court found that the probate court
did not issue any order admitting the LAST
WILL to probate. REMEDIOS does not
contest this finding. Indeed, during the trial,
REMEDIOS admitted that Special
Proceedings Case No. C-208 is still
pending.[27]
Article 838 of the Civil Code states that
[N]o will shall pass either real or personal
property unless it is proved and allowed in
accordance with the Rules of Court. This
Court has interpreted this provision to
mean, until admitted to probate, [a will] has
no effect whatever and no right can be
claimed thereunder.[28] REMEDIOS anchors
her right in filing this suit on her being a
devisee of CATALINAs LAST
WILL. However, since the probate court
has not admitted CATALINAs LAST WILL,
REMEDIOS has not acquired any right
under the LAST WILL. REMEDIOS is thus
without any cause of action either to seek
reconveyance of Lot Nos. 2-A and 2-E or to
enforce an implied trust over these lots.
The appellate court tried to go around
this deficiency by ordering the
reconveyance of Lot Nos. 2-A and 2-E to
REMEDIOS in her capacity as executrix of
CATALINAs LAST WILL. This is
inappropriate because REMEDIOS sued
petitioners not in such capacity but as the
alleged owner of the disputed lots. Thus,
REMEDIOS alleged in her complaint:
3. The plaintiff is a niece and compulsory
heir of the late CATALINA SIOSON who
died single and without any child of her own
and who, during her lifetime, was the owner
of those two (2) parcels of land located at
Tanza, Navotas, Rizal (now Metro Manila),
formerly covered by Original Certificate of
Title No. 4207 of the Registry of Deeds for
the Province of Rizal, x x x.
4. The plaintiff, aside from being the
compulsory heir of the deceased
CATALINA SIOSON, has sole and
exclusive claim of ownership over the
above-mentioned two (2) parcels of land by
virtue of a will or Huling Habilin at
Pagpapasiya executed by Catalina Sioson
on May 19, 1964 before Notary Public
Efren Y. Angeles at Navotas, Rizal, in
which document the deceased Catalina
Sioson specifically and exclusively
bequeathed to the plaintiff the above-
mentioned Lots 2-A and 2-E of Psd-34713
approved by the Bureau of Lands on May
30, 1952. Copy of the Huling Habilin at
Pagpapasiya consisting of four (4) pages is
hereto attached and forms an integral part
hereof as Annex A;
5. Sometime on or about February, 1987,
plaintiff discovered that the above-
mentioned Lots 2-A and 2-E of subdivision
plan Psd-34713 are now registered or titled
in the name of the defendants under
Transfer Certificate of Title No. (232252)
1321 of the Registry of Deeds of Rizal, now
Metro-Manila District III. Copy of the title is
hereto attached and forms an integral part
hereof as Annex B;
6. Upon further inquiry and investigation,
plaintiff discovered that the defendants
were able to obtain title in their name of the
said parcels of land by virtue of a Kasulatan
ng Bilihang Tuluyan allegedly executed by
Canuto Sioson on September 26, 1956
before Notary Public Jose [T.] de
los Santos of Navotas, Metro-Manila. Copy
of the said document is hereto attached
and forms an integral part hereof as Annex
C;
7. The plaintiff also discovered that
although x x x the original sale did not
specify the parcels of land sold by Canuto
24
Sioson, the defendants submitted an
Page
alleged Affidavit executed by Felicidad
Sioson and Beatriz Sioson identifying the Appeals dated 31 January 1994 and its
lots sold by Canuto Sioson to the Resolution dated 15 June 1994 are SET
defendants as Lots 2-A and 2-E of ASIDE. The complaint filed by respondent
subdivision plan Psd-34713. Copy of the Remedios Eugenio-Gino, dated 2 February
Affidavit dated October 3, 1968 on the 1988 is DISMISSED.
basis of which the present Transfer
SO ORDERED.
Certificate of Title No. (232252) 1321 was
issued to the defendants is hereto attached
and forms an integral part hereof as Annex
D;

8. The defendants are clearly guilty of fraud

in presenting the aforementioned Affidavit
(Annex D) to the Register of Deeds as the
basis of their claim to Lots 2-A and 2-E in
view of the fact that the parcels sold to
them by Canuto Sioson, assuming
there was such a sale, were different
parcels of land, Lots 2-A and 2-E being the
properties of the late Catalina Sioson who
bequeathed the same to the plaintiff.

xxxx

12. Because of the defendants fraudulent

actuations on this matter, plaintiff suffered
and continious [sic] to suffer moral
damages arising from anxiety, shock and
wounded feelings. Defendants should also
be assessed exemplary damages by way
of a lesson to deter them from again
committing the fraudulent acts, or acts of
similar nature, by virtue of which they were
able to obtain title to the parcels of land
involved in this case x x x.[29] (Emphasis
supplied)

Indeed, all throughout the proceedings

below and even in her Comment to this
petition, REMEDIOS continued to pursue
her claim as the alleged owner of one-half
of the disputed lots.

Other Matters Raised in the Petition

The Court deems it unnecessary to

pass upon the other errors petitioners
assigned concerning the award of damages
and attorneys fees to REMEDIOS. Such
award assumes that REMEDIOS is a real
party-in-interest and that she timely filed
her complaint. As earlier shown, this is not
the case.
25

WHEREFORE, we GRANT the

Page

petition. The Decision of the Court of

G.R. No. L-57848 June 19, 1982
RAFAEL E. MANINANG and SOLEDAD
L. MANINANG, petitioners,
vs.
COURT OF APPEALS, HON. RICARDO
L. PRONOVE, JR., as Judge of the Court
of First Instance of Rizal and
BERNARDO S. ASENETA, respondents.
MELENCIO-HERRERA, J.:
A Petition to Review the Decision of April
28, 1981 of respondent Appellate Court in
CA-G.R. No. 12032-R entitled "Rafael E.
Maninang and Soledad L. Maninang vs.
Hon. Ricardo Pronove, Judge of the Court
of First Instance of Rizal, Pasig, Branch XI,
and Bernardo S. Aseneta".
Pertinent to the controversy are the
following antecedental facts:
On May 21, 1977, Clemencia Aseneta,
single, died at the Manila Sanitarium
Hospital at age 81. She left a holographic
will, the pertinent portions of which are
quoted hereunder:
xxx xxx xxx
It is my will that all my real
properties located in Manila,
Makati, Quezon City, Albay
and Legaspi City and all my
personal properties shagllbe
inherited upon my death by
Dra. Soledad L. Maninang with
whose family I have lived
continuously for around the
last 30 years now. Dra.
Maninang and her husband
Pamping have been kind to
me. ... I have found peace and
happiness with them even
during the time when my
sisters were still alive and
especially now when I am now
being troubled by my nephew
Bernardo and niece Salvacion.
I am not incompetent as Nonoy
would like me to appear. I
know what is right and wrong. I
can decide for myself. I do not
consider Nonoy as my adopted
son. He has made me do
things against my will.
xxx xxx xxx
On June 9, 1977, petitioner Soledad
Maninang filed a Petition for probate of the
Will of the decedent with the Court of First
Instance-Branch IV, Quezon City (Sp. Proc.
No. Q-23304, hereinafter referred to as the
Testate Case).
On July 25, 1977, herein respondent
Bernardo Aseneta, who, as the adopted
son, claims to be the sole heir of decedent
Clemencia Aseneta, instituted intestate
proceedings with the Court of First
Instance-Branch XI, Pasig, Rizal (Sp. Proc.
No. 8569, called hereinafter the Intestate
Case" for brevity).
On December 23, 1977, the Testate and
Intestate Cases were ordered consolidated
before Branch XI, presided by respondent
Judge.
Respondent Bernardo then filed a Motion to
Dismiss the Testate Case on the ground
that the holographic will was null and void
because he, as the only compulsory heir,
was preterited and, therefore, intestacy
should ensue. In support of said Motion to
Dismiss, respondent Bernardo cited the
cases of Neri vs. Akutin (72 Phil.
322); Nuguid vs. Nuguid (17 SCRA 449),
and Ramos vs. Baldovino (2 CA Rep. 2nd,
878). 1
In her Opposition to said Motion to Dismiss,
petitioner Soledad averred that it is still the
rule that in a case for probate of a Will, the
Court's area of inquiry is limited to an
examination of and resolution on the
extrinsic validity of the will; and that
respondent Bernardo was effectively
disinherited by the decedent. 2
On September 8, 1980, the lower Court
ordered the dismissal of the Testate Case
in this wise:
For reasons stated in the
motion to dismiss filed by
petitioner Bernardo S. Aseneta
which the Court finds
26
meritorious, the petition for
Page
probate of will filed by Soledad
 L. Maninang and which was
docketed as Sp. Proc. No. Q-
23304 is DISMISSED, without
pronouncement as to costs.
On December 19, 1980, the lower Court
denied reconsideration for lack of merit and
in the same Order appointed Bernardo as
the administrator of the intestate estate of
the deceased Clemencia Aseneta
"considering that he is a forced heir of said
deceased while oppositor Soledad
Maninang is not, and considering further
that Bernardo Aseneta has not been shown
to be unfit to perform the duties of the trust.
" impugned as being vicious or
Petitioners Maninang resorted to a
certiorari Petition before respondent Court
of Appeals alleging that the lower Court
exceeded its jurisdiction in issuing the
Orders of dismissal of the Testate Case
(September 8, 1980) and denial of
reconsideration (December 19, 1980).
On April 28, 1981, respondent
3
Court denied certiorari and ruled that the
trial Judge's Order of dismissal was final in
nature as it finally disposed of the Testate
Case and, therefore, appeal was the proper
remedy, which petitioners failed to avail of.
Continuing, it said that even granting that
the lower Court committed errors in issuing
the questioned Orders, those are errors of
judgment reviewable only by appeal and
not by Certiorari. 'Thus, this Petition before
us.
We find that the Court a quo a quo acted in
excess of its jurisdiction when it dismissed
the Testate Case. Generally, the probate of
a Will is mandatory.
No will shall pass either real
personal property unless it
proved and allowed
accordance with the Rules
Court. 4
The law enjoins the probate of the Will and
public policy requires it, because unless the
Will is probated and notice thereof given to
the whole world, the right of a person to
dispose of his property by Will may be
rendered nugatory. 5
Normally, the probate of a Will does not
look into its intrinsic validity.
... The authentication of a will
decides no other question than
such as touch upon the
capacity of the testator and the
compliance with those
requisites or solemnities which
the law prescribes for the
validity of wills. It does not
determine nor even by
implication prejudge the
validity or efficiency (sic) of the
provisions, these may be
null, notwithstanding its
authentication. The que0stions
relating to these points remain
entirely unaffected, and may
be raised even after the will
has been authenticated .... 6
Opposition to the intrinsic
validity or legality of the
provisions of the will cannot be
entertained in Probate
proceeding because its only
purpose is merely to determine
if the will has been executed in
accordance with the
7
requirements of the law.
Respondent Bernardo, however, relies on
the pronouncement in Nuguid vs. Nuguid 8,
reading:
In a proceeding for the probate
of a will, the Court's area of
inquiry is limited to an
examination of, and resolution
on, the extrinsic validity of the
will, the due execution thereof,
or the testatrix's testamentary
is capacity and the compliance
in with the requisites or
of solemnities prescribed by law.
The intrinsic validity of the will
normally comes only after the
court has declared that the will
has been duly
authenticated. However, where
practical considerations
demand that the intrinsic
validity of the will be passed
27
upon, even before it is
Page
probated, the Court should
 meet that issue. (Emphasis
supplied)
Our ruling in Balanay vs. Hon.
9
Martinez had a similar thrust:
The trial court acted correctly
in passing upon the will's
intrinsic validity even before its
formal validity had been
established. The probate of a
will might become an Idle
ceremony if on its face it
appears to be intrinsically void.
Where practical considerations
demand that the intrinsic
validity of the will be passed
upon, even before it is
probated, the court should
meet the issue.
The Nuguid and the Balanay cases provide
the exception rather than the rule. The
intrinsic validity of the Wills in those cases
was passed upon even before probate
because "practical considerations" so
demanded. Moreover, for the parties in
the Nuguid case, the "meat of the
controversy" was the intrinsic validity of the
Will; in fact, the parties in that case
"shunted aside the question of whether or
not the Will should be allowed probate." Not
so in the case before us now where the
probate of the Will is insisted on by
petitioners and a resolution on the extrinsic
validity of the Will demanded.
Moreover, in the Nuguid case, this Court
ruled that the Will was intrinsically invalid
as it completely preterited the parents of
the testator. In the instant case, a crucial
issue that calls for resolution is whether
under the terms of the decedent's Will,
private respondent had been preterited or
disinherited, and if the latter, whether it was
a valid disinheritance. Preterition and
disinheritance are two diverse concepts.
... Preterition "consists in the
omission in the testator's will of
the forced heirs or anyone of
them, either because they are
not mentioned therein, or,
though mentioned, they are
neither instituted as heirs nor
are expressly disinherited."
(Neri vs. Akutin, 72 Phil. 325).
Disinheritance, in turn, "is a
testamentary disposition
depriving any compulsory heirs
of his share in the legitimate
for a cause authorized by law."
(Justice J.B.L. Reyes and R.C.
Puno, "An Outline of Philippine
Civil Law", 1956 ed., Vol. III, p.
8, citing cases) Disinheritance
is always "voluntary",
preterition upon the other
hand, is presumed to be
"involuntary" (Sanchez Roman,
Estudios de Derecho Civil 2nd
edition, Volume 2.o p. 1131). 10
The effects of preterition and disinheritance
are also totally different.
... The effects flowing from
preterition are totally different
from those of disinheritance.
Pretention under Article 854 of
the New Civil Code shall annul
the institution of heir. This
annulment is in toto, unless in
the wail there are, in addition,
testamentary dispositions in
the form of devises or legacies.
In ineffective disinheritance
under Article 918 of the same
Code, such disinheritance shall
also "annul the institution of
heirs", but only "insofar as it
may prejudice the person
disinherited", which last phrase
was omitted in the case of
preterition (III Tolentino, Civil
Code of the Philippines, 1961
Edition, p. 172). Better stated
yet, in disinheritance the nullity
is limited to that portion of the
estate of which the disinherited
heirs have been illegally
deprived. 11
By virtue of the dismissal of the Testate
Case, the determination of that
controversial issue has not been thoroughly
considered. We gather from the assailed
Order of the trial Court that its conclusion
was that respondent Bernardo has been
preterited We are of opinion, however, that
from the face of the Will, that conclusion is
not indubitable.
28
Page
As held in the case of Vda. de Precilla vs.
Narciso 12

... it is as important a matter of

public interest that a purported
will is not denied legalization
on dubious grounds.
Otherwise, the very institution
of testamentary succession will
be shaken to its foundation, ...

Coming now to the procedural aspect,

suffice it to state that in view of our finding
that respondent Judge had acted in excess
of his jurisdiction in dismissing the Testate
Case, certiorari is a proper remedy. An act
done by a Probate Court in excess of its
jurisdiction may be corrected
13
by Certiorari. And even assuming the
existence of the remedy of appeal, we
harken to the rule that in the broader
interests of justice, a petition for certiorari
may be entertained, particularly where
appeal would not afford speedy and
adequate relief.

WHEREFORE, the Decision in question is

set aside and the Orders of the Court of
First Instance-Branch XI, Rizal, dated
September 8, 1980 and December 19,
1980, are nullified. Special Proceeding No.
Q-23304 is hereby remanded to said Court
of First Instance-Branch XI. Rizal, therein to
be reinstated and consolidated with Special
Proceeding No. 8569 for further
proceedings.

No pronouncement as to costs.

SO ORDERED.
29
Page
G.R. No. 45629 September 22,
1938
ANTILANO G. MERCADO, petitioner,
vs.
ALFONSO SANTOS, Judge of First
Instance of Pampanga, respondents.
ROSARIO BASA DE LEON, ET
AL., intervenors.
Claro M. Recto and Benigno S. Aquino for
petitioner.
Esperanza de la Cruz and Heracio Abistao
for respondents.
Sotto and Sotto for intervenors.
LAUREL, J.:
On May 28, 1931, the petitioner herein filed
in the Court of First Instance of Pampanga
a petition for the probate of the will of his
deceased wife, Ines Basa. Without any
opposition, and upon the testimony of
Benigno F. Gabino, one of the attesting
witnesses, the probate court, on June
27,1931, admitted the will to probate.
Almost three years later, on April 11, 1934,
the five intervenors herein moved ex
parte to reopen the proceedings, alleging
lack of jurisdiction of the court to probate
the will and to close the proceedings.
Because filed ex parte, the motion was
denied. The same motion was filed a
second time, but with notice to the adverse
party. The motion was nevertheless denied
by the probate court on May 24, 1934. On
appeal to this court, the order of denial was
affirmed on July 26, 1935.
(Basa vs. Mercado, 33 Off. Gaz., 2521.)
It appears that on October 27, 1932, i. e.,
sixteen months after the probate of the will
of Ines Basa, intervenor Rosario Basa de
Leon filed with the justice of the peace
court of San Fernando, Pampanga, a
complaint against the petitioner herein, for
falsification or forgery of the will probated
as above indicated. The petitioner was
arrested. He put up a bond in the sum of
P4,000 and engaged the services of an
attorney to undertake his defense.
Preliminary investigation of the case was
continued twice upon petition of the
complainant. The complaint was finally
dismissed, at the instance of the
complainant herself, in an order dated
December 8, 1932. Three months later, or
on March 2, 1933, the same intervenor
charged the petitioner for the second time
with the same offense, presenting the
complaint this time in the justice of the
peace court of Mexico, Pampanga. The
petitioner was again arrested, again put up
a bond in the sum of P4,000, and engaged
the services of counsel to defend him. This
second complaint, after investigation, was
also dismissed, again at the instance of the
complainant herself who alleged that the
petitioner was in poor health. That was on
April 27, 1933. Some nine months later, on
February 2, 1934, to be exact, the same
intervenor accused the same petitioner for
the third time of the same offense. The
information was filed by the provincial fiscal
of Pampanga in the justice of the peace
court of Mexico. The petitioner was again
arrested, again put up a bond of P4,000,
and engaged the services of defense
counsel. The case was dismissed on April
24, 1934, after due investigation, on the
ground that the will alleged to have been
falsified had already been probated and
there was no evidence that the petitioner
had forged the signature of the testatrix
appearing thereon, but that, on the
contrary, the evidence satisfactorily
established the authenticity of the signature
aforesaid. Dissatisfied with the result, the
provincial fiscal, on May 9, 1934, moved in
the Court of First Instance of Pampanga for
reinvestigation of the case. The motion was
granted on May 23, 1934, and, for the
fourth time, the petitioner was arrested,
filed a bond and engaged the services of
counsel to handle his defense. The
reinvestigation dragged on for almost a
year until February 18, 1934, when the
Court of First Instance ordered that the
case be tried on the merits. The petitioner
interposed a demurrer on November 25,
1935, on the ground that the will alleged to
have been forged had already been
probated. This demurrer was overruled on
December 24, 1935, whereupon an
exception was taken and a motion for
reconsideration and notice of appeal were
filed. The motion for reconsideration and
the proposed appeal were denied on
January 14, 1936. The case proceeded to
trial, and forthwith petitioner moved to
dismiss the case claiming again that the will
30
alleged to have been forged had already
been probated and, further, that the order
Page
probating the will is conclusive as to the
authenticity and due execution thereof. The
motion was overruled and the petitioner
filed with the Court of Appeals a petition
for certiorari with preliminary injunction to
enjoin the trial court from further
proceedings in the matter. The injunction
was issued and thereafter, on June 19,
1937, the Court of Appeals denied the
petition for certiorari, and dissolved the writ
of preliminary injunction. Three justices
dissented in a separate opinion. The case
is now before this court for review
on certiorari.
Petitioner contends (1) that the probate of
the will of his deceased wife is a bar to his
criminal prosecution for the alleged forgery
of the said will; and, (2) that he has been
denied the constitutional right to a speedy
trial.
1. Section 306 of our Code of Civil
Procedure provides as to the effect of
judgments.
SEC. 306. Effect of judgment. — The
effect of a judgment or final order in
an action or special proceeding
before a court or judge of the
Philippine Islands or of the United
States, or of any State or Territory of
the United States, having jurisdiction
to pronounce the judgment or order,
may be as follows.
1. In case of a judgment or order
against a specific thing, or in respect
to the probate of a will, or the
administration of the estate of a
deceased person, or in respect to the
personal, political, or legal condition
or relation of a particular person, the
judgment or order is conclusive
upon the title of the thing, the will or
administration, or the condition or
relation of the person Provided, That
the probate of a will or granting of
letters of administration shall only
be prima facie evidence of the death
of the testator or intestate.
xxx xxx xxx
(Emphasis ours.)
Section 625 of the same Code is more
explicit as to the conclusiveness of the due
execution of a probate will. It says.
SEC. 625. Allowance Necessary,
and Conclusive as to Execution. —
No will shall pass either the real or
personal estate, unless it is proved
and allowed in the Court of First
Instance, or by appeal to the
Supreme Court; and the allowance
by the court of a will of real and
personal estate shall be conclusive
as to its due execution. (Emphasis
ours.)
(In Manahan vs. Manahan 58 Phil., 448,
451), we held:
. . . The decree of probate is
conclusive with respect to the due
execution thereof and it cannot be
impugned on any of the grounds
authorized by law, except that of
fraud, in any separate or
independent action or proceeding.
Sec. 625, Code of Civil Procedure;
Castañeda vs. Alemany, 3 Phil., 426;
Pimentel vs. Palanca, 5 Phil., 436;
Sahagun vs. De Gorostiza, 7 Phil.,
347; Limjuco vs. Ganara, 11 Phil.,
393; Montañano vs. Suesa, 14 Phil.,
676; in re Estate of Johnson, 39 Phil,
156; Riera vs. Palmaroli, 40 Phil.,
105; Austria vs. Ventenilla, 21 Phil.,
180; Ramirez vs. Gmur, 42 Phil.,
855; and Chiong Jocsoy vs. Vano, 8
Phil., 119.
In 28 R. C. L., p. 377, section 378, it is said.
The probate of a will by the probate
court having jurisdiction thereof is
usually considered as conclusive as
to its due execution and validity, and
is also conclusive that the testator
was of sound and disposing mind at
the time when he executed the will,
and was not acting under duress,
menace, fraud, or undue
influence, and that the will is genuine
and not a forgery. (Emphasis ours.)
As our law on wills, particularly section 625
of our Code of Civil Procedure aforequoted,
31
was taken almost bodily from the Statutes
Page
of Vermont, the decisions of the Supreme
Court of the State relative to the effect of
the probate of a will are of persuasive
authority in this jurisdiction. The Vermont
statute as to the conclusiveness of the due
execution of a probated will reads as
follows.
SEC. 2356. No will shall pass either
real or personal estate, unless it is
proved and allowed in the probate
court, or by appeal in the county or
supreme court; and the probate of a
will of real or personal estate shall be
conclusive as to its due execution.
(Vermont Statutes, p. 451.)
Said the Supreme Court of Vermont in the
case of Missionary Society vs. Eells (68 Vt.,
497, 504): "The probate of a will by the
probate court having jurisdiction thereof,
upon the due notice, is conclusive as to its
due execution against the whole world. (Vt.
St., sec. 2336; Fosters Exrs. vs. Dickerson,
64 Vt., 233.)"
The probate of a will in this jurisdiction is a
proceeding in rem. The provision of notice
by Publication as a prerequisite to the
allowance of a will is constructive notice to
the whole world, and when probate is
granted, the judgment of the court is
binding upon everybody, even against the
State. This court held in the case of Manalo
vs. Paredes and Philippine Food Co. (47
Phil., 938):
The proceeding for the probate of a
will is one in rem (40 Cyc., 1265),
and the court acquires jurisdiction
over all the persons interested,
through the publication of the notice
prescribed by section 630 of the
Code of Civil Procedure, and any
order that may be entered therein is
binding against all of them.
Through the publication of the
petition for the probate of the will, the
court acquires jurisdiction over all
such persons as are interested in
said will; and any judgment that may
be rendered after said proceeding is
binding against the whole world.
In Everrett vs. Wing (103 Vt., 488, 492), the
Supreme Court of Vermont held.
In this State the probate of a will is a
proceeding in rem being in form and
substance upon the will itself to
determine its validity. The judgment
determines the status of the
instrument, whether it is or is not the
will of the testator. When the proper
steps required by law have been
taken the judgment is binding upon
everybody, and makes the
instrument as to all the world just
what the judgment declares it to be.
(Woodruff vs. Taylor, 20 Vt., 65, 73;
Burbeck vs. Little, 50 Vt., 713, 715;
Missionary Society vs. Eells, 68 Vt.,
497, 504; 35 Atl., 463.) The
proceedings before the probate court
are statutory and are not governed
by common law rules as to parties or
causes of action.
(Holdrige vs. Holdriges Estate, 53
Vt., 546, 550; Purdy vs. Estate of
Purdy, 67 Vt. 50, 55; 30 Atl., 695.)
No process is issued against anyone
in such proceedings, but all persons
interested in determining the state or
conditions of the instrument are
constructively notified by the
publication of notice as required by
G. L. 3219.
(Woodruff vs. Taylor, supra; In
re Warners Estate 98 Vt., 254; 271;
127 Atl., 362.)
Section 333, paragraph 4, of the Code of
Civil Procedure establishes an
incontrovertible presumption in favor of
judgments declared by it to be conclusive.
SEC. 333. Conclusive Presumptions.
— The following presumptions or
deductions, which the law expressly
directs to be made from particular
facts, are deemed conclusive.
xxx xxx xxx
4. The judgment or order of a court,
when declared by this code to be
conclusive.
Conclusive presumptions are inferences
which the law makes so peremptory that it
will not allow them to be overturned by any
contrary proof however strong.
32
(Brant vs. Morning Journal Assn., 80
Page
N.Y.S., 1002, 1004; 81 App. Div., 183; see,
also, Joslyn vs. Puloer, 59 Hun., 129, 140,
13 N.Y.S., 311.) The will in question having
been probated by a competent court, the
law will not admit any proof to overthrow
the legal presumption that it is genuine and
not a forgery.
The majority decision of the Court of
Appeals cites English decisions to bolster
up its conclusion that "the judgment
admitting the will to probate is binding upon
the whole world as to the due execution
and genuineness of the will insofar as civil
rights and liabilities are concerned, but not
for the purpose of punishment of a crime."
The cases of Dominus Rex vs. Vincent, 93
English Reports, Full Reprint, 795, the first
case being decided in 1721, were cited to
illustrate the earlier English decisions to the
effect that upon indictment for forging a will,
the probating of the same is conclusive
evidence in the defendants favor of its
genuine character. Reference is made,
however, to the cases of Rex vs. Gibson,
168 English Reports, Full Reprint, 836,
footnote (a), decided in 1802, and
Rex vs. Buttery and Macnamarra, 168
English Reports, Full Reprint, 836, decided
in 1818, which establish a contrary rule.
Citing these later cases, we find the
following quotation from Black on
Judgments, Vol. II, page 764.
A judgment admitting a will to
probate cannot be attacked
collaterally although the will was
forged; and a payment to the
executor named therein of a debt
due the decedent will discharge the
same, notwithstanding the spurious
character of the instrument probated.
It has also been held that, upon an
indictment for forging a will, the
probate of the paper in question is
conclusive evidence in the
defendants favor of its genuine
character. But this particular point
has lately been ruled otherwise.
It was the case of Rex vs. Buttery, supra,
which induced the Supreme Court of
Massachussetts in the case of
Waters vs. Stickney (12 Allen 1; 90 Am.
Dec., 122) also cited by the majority
opinion, to hold that "according to later and
sounder decisions, the probate, though
conclusive until set aside of the disposition
of the property, does not protect the forger
from punishment." This was reproduced in
28 R.C.L., p. 376, and quoted in
Barry vs. Walker (103 Fla., 533; 137 So.,
711, 715), and Thompson vs. Freeman
(149 So., 740, 742), also cited in support of
the majority opinion of the Court of
Appeals. The dissenting opinion of the
Court of Appeals in the instant case under
review makes a cursory study of the
statutes obtaining in England,
Massachussetts and Florida, and comes to
the conclusion that the decisions cited in
the majority opinion do not appear to "have
been promulgated in the face of statutes
similar to ours." The dissenting opinion
cites Whartons Criminal Evidence (11th
ed., sec. 831), to show that the probate of a
will in England is only prima facie proof of
the validity of the will (Op. Cit. quoting
Marriot vs. Marriot, 93 English Reprint,
770); and 21 L.R.A. (pp. 686689 and note),
to show that in Massachussetts there is no
statute making the probate of a will
conclusive, and that in Florida the
statute(sec. 1810, Revised Statutes) makes
the probate conclusive evidence as to the
validity of the will with regard to personal,
and prima facie as to real estate. The
cases decided by the Supreme Court of
Florida cited by the majority opinion, supra,
refer to wills of both personal and real
estate.
The petitioner cites the case of
State vs. McGlynn (20 Cal., 233, decided in
1862), in which Justice Norton of the
Supreme Court of California, makes the
following review of the nature of probate
proceedings in England with respect to wills
personal and real property.
In England, the probate of wills of
personal estate belongs to the
Ecclesiastical Courts. No probate of
a will relating to real estate is there
necessary. The real estate, upon the
death of the party seized, passes
immediately to the devisee under the
will if there be one; or if there be no
will, to the heir at law. The person
who thus becomes entitled takes
possession. If one person claims to
be the owner under a will, and
33
another denies the validity of the will
and claims to be the owner as heir at
Page
law, an action of ejectment is brought
 against the party who may be in
possession by the adverse claimant;
and on the trial of such an action, the
validity of the will is contested, and
evidence may be given by the
respective parties as to the capacity
of the testator to make a will, or as to
any fraud practiced upon him, or as
to the actual execution of it, or as to
any other circumstance affecting its
character as a valid devise of the real
estate in dispute. The decision upon
the validity of the will in such action
becomes res adjudicata, and is
binding and conclusive upon the
parties to that action and upon any
person who may subsequently
acquire the title from either of those
parties; but the decision has no effect
upon other parties, and does not
settle what may be called the status
or character of the will, leaving it
subject to be enforced as a valid will,
or defeated as invalid, whenever
other parties may have a contest
depending upon it. A probate of a will
of personal property, on the contrary,
is a judicial determination of the
character of the will itself. It does not
necessarily or ordinarily arise from
any controversy between adverse
claimants, but is necessary in order
to authorize a disposition of the
personal estate in pursuance of its
provisions. In case of any
controversy between adverse
claimants of the personal estate, the
probate is given in evidence and is
binding upon the parties, who are not
at liberty to introduce any other
evidence as to the validity of the will.
The intervenors, on the other hand, attempt
to show that the English law on wills is
different from that stated in the case of
State vs. McGlynn, supra, citing the
following statutes.
1. The Wills Act, 1837 (7 Will. 4 E 1
Vict. c. 26).
2. The Court of Probate Act, 1857
(20 and 21 Vict. c. 77).
3. The Judicature Act, 1873 (36 and
37 Vict. c. 66).
The Wills Act of 1837 provides that probate
may be granted of "every instrumental
purporting to be testamentary and executed
in accordance with the statutory
requirements . . . if it disposes of property,
whether personal or real." The
Ecclesiastical Courts which took charge of
testamentary causes (Ewells Blackstone
[1910], p. 460), were determined by the
Court of Probate Act of 1857, and the Court
of Probate in turn was, together with other
courts, incorporated into the Supreme
Court of Judicature, and transformed into
the Probate Division thereof, by the
Judicature Act of 1873. (Lord Halsbury, The
Laws of England[1910], pp. 151156.) The
intervenors overlook the fact, however, that
the case of Rex vs. Buttery and
Macnamarra, supra, upon which they rely
in support of their theory that the probate of
a forged will does not protect the forger
from punishment, was decided long before
the foregoing amendatory statutes to the
English law on wills were enacted. The
case of State vs. McGlynn may be
considered, therefore, as more or less
authoritative on the law of England at the
time of the promulgation of the decision in
the case of Rex vs. Buttery and
Macnamarra.
In the case of State vs. McGlynn, the
Attorney General of California filed an
information to set aside the probate of the
will of one Broderick, after the lapse of one
year provided by the law of California for
the review of an order probating a will, in
order that the estate may be escheated to
the State of California for the review of an
probated will was forged and that Broderick
therefore died intestate, leaving no heirs,
representatives or devisees capable of
inheriting his estate. Upon these facts, the
Supreme Court of California held.
The fact that a will purporting to be
genuine will of Broderick, devising
his estate to a devisee capable of
inheriting and holding it, has been
admitted to probate and established
as a genuine will by the decree of a
Probate Court having jurisdiction of
the case, renders it necessary to
decide whether that decree, and the
34
will established by it, or either of
them, can be set aside and vacated
Page
by the judgment of any other court. If
 it shall be found that the decree of
the Probate Court, not reversed by
the appellate court, is final and
conclusive, and not liable to be
vacated or questioned by any other
court, either incidentally or by any
direct proceeding, for the purpose of
impeaching it, and that so long as the
probate stands the will must be
recognized and admitted in all courts
to be valid, then it will be immaterial
and useless to inquire whether the
will in question was in fact genuine or
forged. (State vs. McGlynn, 20 Cal.,
233; 81 Am. Dec., 118, 121.).
Although in the foregoing case the
information filed by the State was to set
aside the decree of probate on the ground
that the will was forged, we see no
difference in principle between that case
and the case at bar. A subtle distinction
could perhaps be drawn between setting
aside a decree of probate, and declaring a
probated will to be a forgery. It is clear,
however, that a duly probated will cannot
be declared to be a forgery without
disturbing in a way the decree allowing said
will to probate. It is at least anomalous that
a will should be regarded as genuine for
one purpose and spurious for another.
The American and English cases show a
conflict of authorities on the question as to
whether or not the probate of a will bars
criminal prosecution of the alleged forger of
the probate will. We have examined some
important cases and have come to the
conclusion that no fixed standard maybe
adopted or drawn therefrom, in view of the
conflict no less than of diversity of statutory
provisions obtaining in different
jurisdictions. It behooves us, therefore, as
the court of last resort, to choose that rule
most consistent with our statutory law,
having in view the needed stability of
property rights and the public interest in
general. To be sure, we have seriously
reflected upon the dangers of evasion from
punishment of culprits deserving of the
severity of the law in cases where, as here,
forgery is discovered after the probate of
the will and the prosecution is had before
the prescription of the offense. By and
large, however, the balance seems inclined
in favor of the view that we have taken. Not
only does the law surround the execution of
the will with the necessary formalities and
require probate to be made after an
elaborate judicial proceeding, but section
113, not to speak of section 513, of our
Code of Civil Procedure provides for an
adequate remedy to any party who might
have been adversely affected by the
probate of a forged will, much in the same
way as other parties against whom a
judgment is rendered under the same or
similar circumstances. (Pecson vs.Coronel,
43 Phil., 358.)The aggrieved party may file
an application for relief with the proper
court within a reasonable time, but in no
case exceeding six months after said court
has rendered the judgment of probate, on
the ground of mistake, inadvertence,
surprise or excusable neglect. An appeal
lies to review the action of a court of first
instance when that court refuses to grant
relief. (Banco Español Filipino vs. Palanca,
37 Phil., 921; Philippine Manufacturing
Co. vs. Imperial, 47 Phil., 810;
Samia vs. Medina, 56 Phil., 613.) After a
judgment allowing a will to be probated has
become final and unappealable, and after
the period fixed by section 113 of the Code
of Civil Procedure has expired, the law as
an expression of the legislative wisdom
goes no further and the case ends there.
. . . The court of chancery has no
capacity, as the authorities have
settled, to judge or decide whether a
will is or is not a forgery; and hence
there would be an incongruity in its
assuming to set aside a probate
decree establishing a will, on the
ground that the decree was procured
by fraud, when it can only arrive at
the fact of such fraud by first deciding
that the will was a forgery. There
seems, therefore, to be a substantial
reason, so long as a court of
chancery is not allowed to judge of
the validity of a will, except as shown
by the probate, for the exception of
probate decrees from the jurisdiction
which courts of chancery exercise in
setting aside other judgments
obtained by fraud. But whether the
exception be founded in good reason
or otherwise, it has become too firmly
established to be disregarded. At the
35
present day, it would not be a greater
assumption to deny the general rule
Page
that courts of chancery may set aside
 judgments procured by fraud, than to
deny the exception to that rule in the
case of probate decrees. We must
acquiesce in the principle established
by the authorities, if we are unable to
approve of the reason. Judge Story
was a staunch advocate for the most
enlarged jurisdiction of courts of
chancery, and was compelled to
yield to the weight of authority. He
says "No other excepted case is
known to exist; and it is not easy to
discover the grounds upon which this
exception stands, in point of reason
or principle, although it is clearly
settled by authority. (1 Storys Eq.
Jur. sec. 440.)" (State vs. McGlynn,
20 Cal., 233; 81 Am. Dec., 118,
129. See, also, Tracy vs. Muir, 121
American State Reports, 118, 125.)
We hold, therefore, that in view of the
provisions of sections 306, 333 and 625 of
our Code of Civil Procedure, criminal action
will not lie in this jurisdiction against the
forger of a will which had been duly
admitted to probate by a court of competent
jurisdiction.
The resolution of the foregoing legal
question is sufficient to dispose of the case.
However, the other legal question with
reference to the denial to the accused of
his right to a speedy trial having been
squarely raised and submitted, we shall
proceed to consider the same in the light of
cases already adjudicated by this court.
2. The Constitution of the Philippines
provides that "In all criminal prosecutions
the accused . . . shall enjoy the right . . . to
have a speedy . . . trial. . . . (Art. III, sec. 1,
par. 17. See, also, G.O. No. 58, sec. 15,
No. 7.) Similar provisions are to be found in
the Presidents Instructions to the Second
Philippine Commission (par. 11), the
Philippine Bill of July 1, 1902 (sec. 5, par.
2) and the Jones Act of August 29, 1916
(sec. 3, par. 2). The provisions in the
foregoing organic acts appear to have been
taken from similar provisions in the
Constitution of the United States (6th
Amendment) and those of the various
states of the American Union. A similar
injunction is contained in the Malolos
Constitution (art. 8, Title IV), not to speak of
other constitutions. More than once this
court had occasion to set aside the
proceedings in criminal cases to give effect
to the constitutional injunction of speedy
trial. (Conde vs. Judge of First Instance and
Fiscal of Tayabas [1923], 45 Phil., 173;
Conde vs. Rivera and Unson[1924], 45
Phil., 650; People vs. Castañeda and
Fernandez[1936]), 35 Off. Gaz., 1269;
Kalaw vs. Apostol, Oct. 15, 1937, G.R. No.
45591; Esguerra vs. De la Costa, Aug.
30,1938, G.R. No. 46039.).
In Conde vs. Rivera and Unson, supra,
decided before the adoption of our
Constitution, we said.
Philippine organic and statutory law
expressly guarantee that in all
criminal prosecutions the accused
shall enjoy the right to have a speedy
trial. Aurelia Conde, like all other
accused persons, has a right to a
speedy trial in order that if innocent
she may go free, and she has been
deprived of that right in defiance of
law. Dismissed from her humble
position, and compelled to dance
attendance on courts while
investigations and trials are arbitrarily
postponed without her consent, is
palpably and openly unjust to her
and a detriment to the public. By the
use of reasonable diligence, the
prosecution could have settled upon
the appropriate information, could
have attended to the formal
preliminary examination, and could
have prepared the case for a trial
free from vexatious, capricious, and
oppressive delays.
In People vs. Castañeda and Fernandez,
supra, this court found that the accused
had not been given a fair and impartial trial.
The case was to have been remanded to
the court a quo for a new trial before an
impartial judge. This step, however, was
found unnecessary. A review of the
evidence convinced this court that a
judgment of conviction for theft, as
charged, could not be sustained and,
having in view the right to a speedy trial
guaranteed by the Constitution to every
person accused of crime, entered a
judgment acquitting the accused, with
36
costs de oficio. We said.
Page
 . . . The Constitution, Article III,
section 1, paragraph 17, guarantees
to every accused person the right to
a speedy trial. This criminal
proceeding has been dragging on for
almost five years now. The accused
have twice appealed to this court for
redress from the wrong that they
have suffered at the hands of the trial
court. At least one of them, namely
Pedro Fernandez alias Piro, had
been con-fined in prison from July
20, 1932 to November 27, 1934, for
inability to post the required bond of
P3,000 which was finally reduced to
P300. The Government should be
the last to set an example of delay
and oppression in the administration
of justice and it is the moral and legal
obligation of this court to see that the
criminal proceedings against the
accused come to an end and that
they be immediately dis-charged
from the custody of the law.
(Conde vs. Rivera and Unson, 45
Phil., 651.)
In Kalaw vs. Apostol, supra, the petitioner
invoked and this court applied and gave
effect to the doctrines stated in the second
Conde case, supra. In granting the writs
prayed for, this court, after referring to the
constitutional and statutory provisions
guaranteeing to persons accused of crime
the right to a speedy trial, said:
Se infiere de los preceptos legales
transcritos que todo acusado en
causa criminal tiene derecho a ser
juzgado pronta y publicamente.
Juicio rapido significa un juicioque se
celebra de acuerdo con la ley de
procedimiento criminal y los
reglamentos, libre de dilaciones
vejatorias, caprichosas y opersivas
(Burnett vs.State, 76 Ark., 295; 88S.
W., 956; 113 AMSR, 94;
Stewart vs. State, 13 Ark., 720;
Peo. vs. Shufelt, 61 Mich., 237; 28 N.
W., 79; Nixon vs. State, 10 Miss.,
497; 41 AMD., 601; State vs. Cole, 4
Okl. Cr., 25; 109 P., 736;
State vs. Caruthers, 1 Okl. Cr., 428;
98 P., 474; State vs. Keefe, 17 Wyo.,
227, 98 p., 122;22 IRANS, 896; 17
Ann. Cas., 161). Segun los hechos
admitidos resulta que al recurrente
se le concedio vista parcial del
asunto, en el Juzgado de Primera
Instancia de Samar, solo despues de
haber transcurrido ya mas de un año
y medio desde la presentacion de la
primera querella y desde la
recepcion de la causa en dicho
Juzgado, y despues de haberse
transferido dos veces la vista
delasunto sin su consentimiento. A
esto debe añadirse que laprimera
transferencia de vista era claramente
injustificadaporque el motivo que se
alego consistio unicamente en
laconveniencia personal del ofendido
y su abogado, no habiendose
probado suficientemente la alegacion
del primero de quese hallaba
enfermo. Es cierto que el recurrente
habia pedido que, en vez de
señalarse a vista el asunto para el
mayo de 1936, lo fuera para el
noviembre del mismo año;
pero,aparte de que la razon que
alego era bastante fuerte porquesu
abogado se oponia a comparecer
por compromisos urgentes
contraidos con anterioridad y en tal
circunstancia hubiera quedado
indefenso si hubiese sido obligado a
entraren juicio, aparece que la vista
se pospuso por el Juzgado amotu
proprio, por haber cancelado todo el
calendario judicial preparado por el
Escribano para el mes de junio.
Declaramos, con visto de estos
hechos, que al recurrents se leprivo
de su derecho fundamental de ser
juzgado prontamente.
Esguerra vs. De la Costa, supra, was a
petition for mandamus to compel the
respondent judge of the Court of First
Instance of Rizal to dismiss the complaint
filed in a criminal case against the
petitioner, to cancel the bond put up by the
said petitioner and to declare the costs de
oficio. In accepting the contention that the
petitioner had been denied speedy trial, this
court said:
Consta que en menos de un año el
recurrente fue procesado
criminalmente por el alegado delito
37
de abusos deshonestos, en el
Juzgado de Paz del Municipio de
Page
Cainta, Rizal. Como consecuencia
 de las denuncias que contra el se
presentaron fue arrestado tres veces
y para gozar de libertad provisional,
en espera de los juicios, se vio
obligado a prestartres fianzas por la
suma de P1,000 cada una. Si no se
da fin al proceso que ultimamente se
ha incoado contra el recurrente la
incertidumbre continuara
cerniendose sobre el y las
consiguientes molestias y investigation, was dismissed at the
preocupaciones continuaran
igualmente abrumandole. El Titulo III,
articulo 1, No. 17,de la Constitucion
preceptua que en todo proceso
criminalel acusado tiene derecho de
ser juzgado pronta y publicamente.
El Articulo 15, No. 7, de la Orden
General No. 58 dispone asimismo
que en las causas criminales el
acusado tendra derecho a ser
juzgado pronta y publicamente. Si el
recurrente era realmente culpable
del delito que se le imputo, tenia de
todos modos derechos a que fuera
juzgado pronta y publicamente y sin
dilaciones arbitrarias y vejatorias.
Hemos declarado reiteradamente
que existe un remedio positivo para
los casos en que se viola el derecho
constitucional del acusado de ser
juzgado prontamente. El acusado
que esprivado de su derecho
fundomental de ser enjuiciado
rapidamente tiene derecho a pedir
que se le ponga en libertad, si
estuviese detenido, o a que la causa
que pende contra el sea sobreseida
definitivamente.
(Conde contra Rivera y Unson, 45
Jur. Fil., 682; In the matter of Ford
[1911], 160 Cal., 334; U. S. vs. Fox
[1880], 3 Mont., 512;
Kalaw contra Apostol, R. G. No.
45591, Oct. 15, 1937;
Pueblo contra Castañeda y exclude
Fernandez, 35 Gac. Of., 1357.)
We are again called upon to vindicate the
fundamental right to a speedy trial. The
facts of the present case may be at
variance with those of the cases
hereinabove referred to. Nevertheless, we
are of the opinion that, under the
circumstances, we should consider the
substance of the right instead of indulging
in more or less academic or undue factual
differentiations. The petitioner herein has
been arrested four times, has put up a
bond in the sum of P4,000 and has
engaged the services of counsel to
undertake his defense an equal number of
times. The first arrest was made upon a
complaint filed by one of the intervenors
herein for alleged falsification of a will
which, sixteen months before, had been
probated in court. This complaint, after
complainant's own request. The second
arrest was made upon a complaint
charging the same offense and this
complaint, too, was dismissed at the behest
of the complainant herself who alleged the
quite startling ground that the petitioner
was in poor health. The third arrest was
made following the filing of an information
by the provincial fiscal of Pampanga, which
information was dismissed, after due
investigation, because of insufficiency of
the evidence. The fourth arrest was made
when the provincial fiscal secured a
reinvestigation of the case against the
petitioner on the pretext that he had
additional evidence to present, although
such evidence does not appear to have
ever been presented.
It is true that the provincial fiscal did not
intervene in the case until February 2,
1934, when he presented an information
charging the petitioner, for the third time, of
the offense of falsification. This, however,
does not matter. The prosecution of
offenses is a matter of public interest and it
is the duty of the government or those
acting in its behalf to prosecute all cases to
their termination without oppressive,
capricious and vexatious delay. The
Constitution does not say that the right to a
speedy trial may be availed of only where
the prosecution for crime is commenced
and undertaken by the fiscal. It does not
from its operation cases
commenced by private individuals. Where
once a person is prosecuted criminally, he
is entitled to a speedy trial, irrespective of
the nature of the offense or the manner in
which it is authorized to be commenced. In
any event, even the actuations of the fiscal
himself in this case is not entirely free from
criticism. From October 27, 1932, when the
38
first complaint was filed in the justice of the
peace court of San Fernando, to February
Page
2, 1934, when the provincial fiscal filed his
information with the justice of the peace of
Mexico, one year, three months and six
days transpired; and from April 27, 1933,
when the second criminal complaint was
dismissed by the justice of the peace of
Mexico, to February 2, 1934, nine months
and six days elapsed. The investigation
following the fourth arrest, made after the
fiscal had secured a reinvestigation of the
case, appears also to have dragged on for
about a year. There obviously has been a
delay, and considering the antecedent facts
and circumstances within the knowledge of
the fiscal, the delay may not at all be
regarded as permissible. In Kalaw vs.
Apostol, supra, we observed that the
prosecuting officer all prosecutions for
public offenses (secs. 1681 and 2465 of the
Rev. Adm. Code), and that it is his duty to
see that criminal cases are heard without
vexatious, capricious and oppressive
delays so that the courts of justice may
dispose of them on the merits and
determine whether the accused is guilty or
not. This is as clear an admonition as could
be made. An accused person is entitled to
a trial at the earliest opportunity.
(Sutherland on the Constitution, p. 664;
United States vs. Fox, 3 Mont., 512.) He
cannot be oppressed by delaying he
commencement of trial for an unreasonable
length of time. If the proceedings pending
trial are deferred, the trial itself is
necessarily delayed. It is not to be
supposed, of course, that the Constitution
intends to remove from the prosecution
every reasonable opportunity to prepare for
trial. Impossibilities cannot be expected or
extraordinary efforts required on the part of
the prosecutor or the court. As stated by
the Supreme Court of the United States,
"The right of a speedy trial is necessarily
relative. It is consistent with delays and
depends upon circumstances. It secures
rights to a defendant. It does not preclude
the rights of public justice."
(Beavers vs. Haubert [1905], 198 U. S., 86;
25 S. Ct., 573; 49 Law. ed., 950, 954.).
It may be true, as seems admitted by
counsel for the intervenors, in paragraph 8,
page 3 of his brief, that the delay was due
to "the efforts towards reaching an
amicable extrajudicial compromise," but
this fact, we think, casts doubt instead upon
the motive which led the intervenors to
bring criminal action against the petitioner.
The petitioner claims that the intention of
the intervenors was to press upon
settlement, with the continuous threat of
criminal prosecution, notwithstanding the
probate of the will alleged to have been
falsified. Argument of counsel for the
petitioner in this regard is not without
justification. Thus after the filing of the
second complaint with the justice of the
peace court of Mexico, complainant herself,
as we have seen, asked for dismissal of the
complaint, on the ground that "el acusado
tenia la salud bastante delicada," and,
apparently because of failure to arrive at
any settlement, she decided to renew her
complaint.
Counsel for the intervenors contend — and
the contention is sustained by the Court of
Appeals — that the petitioner did not
complain heretofore of the denial of his
constitutional right to a speedy trial. This is
a mistake. When the petitioner, for the
fourth time, was ordered arrested by the
Court of First Instance of Pampanga, he
moved for reconsideration of the order of
arrest, alleging, among other things, "Que
por estas continuas acusaciones e
investigaciones, el acusado compareciente
no obstante su mal estado de salud desde
el año 1932 en que tuvo que ser operado
por padecer de tuberculosis ha tenido que
sostener litigios y ha sufrido la mar de
humiliaciones y zozobras y ha incudo en
enormes gastos y molestias y ha
desatendido su quebrantada salud." The
foregoing allegation was inserted on page 6
of the amended petition
for certiorari presented to the Court of
Appeals. The constitutional issue also
appears to have been actually raised and
considered in the Court of Appeals. In the
majority opinion of that court, it is stated:
Upon the foregoing facts, counsel for
the petitioner submits for the
consideration of this court the
following questions of law: First, that
the respondent court acted arbitrarily
and with abuse of its authority, with
serious damage and prejudice to the
rights and interests of the petitioner,
in allowing that the latter be
prosecuted and arrested for the
39
fourth time, and that he be subjected,
also for the fourth time, to a
Page
preliminary investigation for the same
 offense, hereby converting the court
into an instrument of oppression and
vengeance on the part of the alleged
offended parties, Rosario Basa et al.;
....

And in the dissenting opinion, we find the

following opening paragraph:

We cannot join in a decision

declining to stop a prosecution that
has dragged for about five years and
caused the arrest on four different
occasions of a law abiding citizen for
the alleged offense of falsifying a will
that years be competent jurisdiction.

From the view we take of the instant case,

the petitioner is entitled to have the criminal
proceedings against him quashed. The
judgment of the Court of Appeals is hereby
reversed, without pronouncement regarding
costs. So ordered.

40
Page
G.R. Nos. L-46430-31 July 30, 1979
FRANCISCA ALSUA-BETTS, JOSEPH O.
BETTS, JOSE MADARETA, ESTEBAN P.
RAMIREZ, and THE REGISTER OF
DEEDS FOR ALBAY
PROVINCE, petitioners,
vs.
COURT OF APPEALS, AMPARO ALSUA
BUENVIAJE, FERNANDO BUENVIAJE,
FERNANDO ALSUA, represented by his
guardian, CLOTILDE S. ALSUA and
PABLO ALSUA, respondents.
Rafael Triumfante for petitioners.
Sabido-Sabido & Associates and Madrid
Law Office for private respondents.
GUERRERO, J.:1äwphï1.ñët
This is an appeal by certiorari from the
decision of the Court of Appeals in CA-G.R.
Nos. 54492-R and 54493-R which reversed
the decision of the Court of First Instance of
Albay allowing the probate of the win of
Don Jesus Alsua in Special Proceedings
No. 699 and dismissing the complaint in
Civil Case 3068 after declaring the two
deeds of sale executed by Don Jesus
Alsua legal and valid. The respondent
court 1 denied the probate of the will,
declared null and void the two sales subject
of the complaint and ordered the
defendants, petitioners herein, to pay
damages to the plaintiffs, now the private
respondents, the sum of Five Thousand
Pesos (P5,000.00), to render an accounting
of the properties in their possession and to
reimburse the latter the net gain in the
proportion that appertains to them in the
properties from the date of the firing of the
complaint up to complete restoration plus
Fifty Thousand Pesos (P50,000.00) as
attorney's fees and costs.
The antecedent events leading to the filing
of these two consolidated actions are the
following.
On November 25, 1949, Don Jesus Alsua
and his wife, Doñ;a Florentina Rella, both
of Ligao, Albay, together with all their living
children, Francisca Alsua-Betts, Pablo
Alsua, Fernando Alsua thru this judicial
guardian Clotilde Samson, and Amparo
Alsua de Buenviaje, entered into a duly
notarized agreement, Escritura de Particion
Extrajudicial(Exhibit 8), over the then
present and existing properties of the
spouses Don Jesus and Doñ;a Florentina
enumerated in a prepared inventory,
Exhibit 8-A, the essential features of which
are stated in private respondents' Brief, pp.
26-29, to wit: têñ.£îhqwâ£
(1) Basis of the partition:
Inventory (Annex A) of all the
properties of the Alsua
spouses, which inventory
consists of 97 pages, all of
them signed by the spouses
and all the above named heirs
in the left margin of every page
(parafo primers).
(2) An acknowledgment of the
spouses that all the properties
described in the inventory
(Annex A) are conjugal
properties with the exception of
five parcels of land Identified
with the figures of 1 to 5 and
30 shares of San Miguel
Brewery stock which are
paraphernal properties of the
late Doñ;a Tinay (segundo
parafo).
(3) An acknowledgment that
during their marriage, they had
nine children but five of them
died minors, unmarried (parafo
tercero y cuatro).
(4) An acknowledgment that on
the basis of Article 1056 of the
Civil Code (old) to avoid
Possible misunderstanding
among their children
concerning the inheritance
they are entitled to in the event
of death of one of them they
have decided to effectuate an
extrajudicial partition of all the
properties described in Annex
"A" thereto under the following
terms and conditions: (Parafo
quinto):
41
To Francisca Alsua, married to Joseph O.
Page
Betts were allotted or assigned all the real
properties with the improvements thereon
specifically described from pages 1-12 of
said inventory or, 34 parcels of land with a
total land area of 5,720,364 sq. meters,
with a book or appraised value of
P69,740.00.
To Pablo Alsua, married to Teresa Locsin
were allotted or assigned all the real
properties with the improvements thereon
specifically described from pages 12-20 of
said inventory or, 26 parcels of land with a
total land area of 5,679,262 sq. meters,
with a book or appraised value of
P55,940.00.
To Fernando Alsua, married to Clotilde
Samson were allotted or assigned all the
real properties with the improvements
thereon specifically described from pages
20-33 of said inventory or, 47 parcels of
land with a total land area of 6,639,810 sq.
meters, with a book or appraised value of
P89,300.00.
To Amparo Alsua, married to Fernando
Buenviaje were allotted or assigned all the
real properties with the improvements
thereon specifically described from pages
33-47 of said inventory or, 47 parcels of
land with a total land area of 5,630,715 sq.
meters, with a book or appraised value of
P58,830.00. têñ.£îhqwâ£
(a) Each and every one of the
heirs named above
acknowledge and admit that
the totality of the properties
allotted and adjudicated to the
heirs as described in the
preceding paragraph,
constitute one half of the
properties described in Annex
"A", including any amount of
cash deposited.
(b) That all the heirs
acknowledge and admit that all
the properties assigned to
them as their hereditary portion
represent one-half not only of
the conjugal properties but
includes the paraphernal
properties — waiving now and
forever any complaint or claim
they have or they may have
concerning the amount, value,
extension and location of the
properties that are allotted to
each and everyone. They also
waive any claim they have or
they may have over the
remaining portion of the
properties, which spouses
reserved for themselves.
(c) That in case of death of one
of the spouses, each and
everyone of the heirs
acknowledge that the
properties which are left in the
possession of the surviving
spouse, including any amount
in cash, are even less than the
one- half that should
correspond in absolute
ownership as his legitimate
participation in the conjugal
properties. In consequence
they waive any claim that they
have or may have over said
portion of said properties or
any amount in cash during the
lifetime of the surviving
spouse, including any right or
claim they have or they may
have over the paraphernal
properties of Doñ;a Tinay in
the event the surviving spouse
is Don Jesus.
(d) The spouses on their part
in case of death of any one of
them, the surviving spouse
waives any claim he or she
may have over the properties
assigned or adjudicated to the
heirs under and by virtue of
this deed. The properties
which were reserved for them
(the spouses) should be
considered as his or her
legitimate participation in the
conjugal properties and the fair
compensation of his or her
usufruct on the properties that
the surviving spouse reserved
for himself or herself which
shag be distributed in equal
shares among the heirs upon
his or her death unless said
42
properties of some of them
have been disposed of during
Page
 the lifetime of the surviving
spouse.
(e) Any heir who may dare
question the validity and
legitimacy of the provision
contained herein shall be
under obligation to pay to the
other heirs, in the concept of
damages and prejudice, the
sum of P5,000.00 plus
attorney's fees.
(f) The provisions of this deed
shall bind the successors of
the herein heirs.
(g) In the event of death of one
of the spouses, the properties
assigned or adjudicated to
each and everyone of the heirs
shall be considered as his
share or participation in the
estate or as his inheritance left
by the deceased and each heir
shall become the absolute
owner of the properties
adjudicated to him under this
deed.
On January 5, 1955, Don Jesus and Doñ;a
Florentina, also known as Doñ;a Tinay
separately executed their respective
holographic wills (Exhs. 6-B and 7-B), the
provisions of which were in conformity and
in implementation of the extrajudicial
partition of November 25, 1949. Their
holographic wills similarly provided for the
institution of the other to his or her share in
the conjugal properties, the other half of the
conjugal assets having been partitioned to
constitute their legitime among their four
living children in the Extrajudicial Partition
of 1949. The wigs also declared that in the
event of future acquisitions of other
properties by either of them, one-half
thereof would belong to the other spouse,
and the other half shall be divided equally
among the four children. The holographic
will of Doñ;a Tinay written in Spanish
reads, as translated: têñ.£îhqwâ£
TESTAMENT
I, FLORENTINA R. DE
ALSUA, 67 years old, Filipina,
married to Don Jesus Alsua,
resident of and with postal
address in the Municipality of
Ligao, Province of Albay,
Philippines, being in the full
possession of my mental and
physical faculties freely and
spontaneously execute this my
last will and testament in my
handwriting and signed by me
and expressed in the Spanish
language which I speak, write
and understand, this 5th day of
January, 1955 in the
Municipality of Ligao, Province
of Albay, and in which I ordain
and provide:
First: That in or about the year
1906 I was married to my
husband Don Jesus Alsua and
begot nine (9) children with
him, four (4) of whom are still
living and they are Francisco
Alsua, Pablo Alsua, Fernando
Alsua and Amparo Alsua. The
other five (5) died during their
minority, single and without
children.
Second: That after my
marriage to my husband Don
Jesus Alsua and during our
conjugal union, and as a result
of our efforts and industry, we
were able to acquire conjugal
properties consisting of abaca
(abales) and cacao lands and
urban lands registered in the
office of the Registry of
Property of the Province of
Albay and in the City of Manila.
Third: That I institute as my
heirs with right to inherit the
following- my spouse Don
Jesus Alsua, one-half (1/2) of
my properties, real and
personal, and the other half, to
my children Francisco Alsua,
married to Joseph O. Betts,
Pablo Alsua, Fernando Alsua,
married to Clotilde Samson,
and Amparo Alsua, married to
Fernando Buenviaje, in equal
parts. It is to be understood,
43
however, that the other half
Page
that corresponds as legitime to
 my above named children
have already been given to
them, pursuant to a document
dated November 25, 1949 and
ratified on the same day,
month and year before Notary
Public Segundo G. Flores
(Reg. No. 525; Pag. 15; Lib.
11; Series of 1949) enjoining
each and everyone of them to
respect and faithfully comply
with each and every clause
contained in the said
document.
Fourth: That should I acquire
new properties after the
execution of this testament, the
same shall be partitioned
among my spouse and above
named children or the children
mentioned in above par. 3 in
the same proportion that is,
one-half (1 1/2) to my spouse;
and the other half to my
children in equal parts.
Fifth: That I name as my
executor my husband Don
Jesus Alsua without having to
post any bond.
IN VIRTUE WHEREOF, I
hereby sign in my own
handwriting this testament on
this 5th day of January, 1955
in the Municipality of Ligao,
Province of Albay, Philippines
(SGD.) FLORENTINA R. DE
ALSUA
(Joint Record on appeal pp.
420-423, CA-G.R. No. 54492-
R)
As previously stated, Don Jesus Alsua
executed a separate but similar holographic
will on the same day, Jan. 5, 1955 in
exactly the same terms and conditions as
the above will of his wife.
On May 21, 1956, the spouses Don Jesus
and Doñ;a Tinay filed before the Court of
First Instance of Albay their respective
petitions for the probate of their respective
holographic wins which were docketed as
Special Proceedings No. 484 (Jesus Alsua,
Petitioner) and Special Proceedings No.
485 (Doñ;a Florentina Ralla de Alsua,
Petitioner).
On August 14, 1956, the spouses Don
Jesus and Doñ;a Tinay executed their
mutual and reciprocal codicils amending
and supplementing their respective
holographic wins. Again, the codicils
similarly acknowledged and provided that
one-half of all the properties of the
spouses, conjugal and paraphernal, had
been disposed of, conveyed to and
partitioned among their legitimate heirs in
the "Escritura de Particion" of November
25, 1949, but that they reserved for
themselves (the spouses Don Jesus and
Doñ;a Tinay) the other half or those not
disposed of to the said legitimate heirs
under the above agreement of partition,
and that they mutually and reciprocally
bequeathed unto each other their
participation therein as well as in all
properties which might be acquired
subsequently. Each spouse also declared
that should she or he be the surviving
spouse, whatever belongs to him or her or
would pertain to him or her, would be
divided equally among the four children. It
was also declared in both codicils that upon
the death of either of the spouses, the
surviving spouse was designated mutually
and reciprocally as the executor or
administrator of all the properties reserved
for themselves.
The codicil executed by Doñ;a Tinay,
written in Spanish reads, as
translated: têñ.£îhqwâ£
CODICIL
This codicil supplements and
amends the preceding
testament. That my spouse
and I have agreed to divide the
properties which we have
acquired into 2 parts. The 1/2
that would correspond to me
covers all the properties that I
have partitioned among my
children in the Document of
Partition dated November 25,
1949 before Notary Public
44
Segundo G. Flores, Jr. (Doc.
Page
No. 525; Pag. No. 15; Lib. No.
11; Series of 1949) (and) even
as the properties which by
reason of this testament I
leave to my husband as his
share and the other half that
corresponds to my husband
constitutes an the properties
that up to now have not been
disposed of, particularly the
urban lands situated in
Legaspi, Albay, Ligao of the
Province of Albay and in the
City of Manila, with the
exception of that portion that I
bequeath to my husband as
his inheritance and his
legitimate.
That I institute as my heirs with
the right to inherit my husband
Don Jesus Alsua and my
children Francisco Alsua,
Pablo Alsua, Fernando Alsua
and Amparo Alsua. I leave to
my aforecited children all the
properties described in the
above mentioned Document of
Partition dated November 25,
1949 which correspond to
each one of them and in the
profits (fruits) expressed in the
same, and in the event that the
properties granted to one or
any of my children should
exceed in quantity or value
those corresponding to another
or others, I hereby declare that
it is my will that the same be
divided among my children as
their inheritance from the free
portion of my property.
I leave to my spouse Don
Jesus Alsua as his legitime
and as Ws inheritance the part
of the free portion of my
property which have not been
allocated in favor of my
children in the Document of
Partition aforecited and that
which should exceed 1/2 of the
conjugal property of gains that
pertains to him as above
stated, including all those
properties which we shall
acquire after the execution of
this document.
In case it should be God's will
that I survive my spouse, I
hereby declare that it is my will
that any and all kinds of
property that pertain to me or
would pertain to me, which
have not been disposed of
pursuant to the partition,
should be divided equally
among my above-mentioned
heirs after my death. Ligao,
Albay, Philippines, August
14,1956.
joint Record on Appeal pp.
423-425, CA-G.R. No. 54492-
R)
And as stated previously, on the same day,
August 14, 1956, Don Jesus executed also
a separate but similar codicil in exactly the
same terms and conditions as the above
codicil of his wife. Also on the same day of
August 14, 1956, the spouses Don Jesus
and Doñ;a Tinay both filed their respective
supplemental petitions for the probate of
their respective codicils in the probate
proceedings earlier filed. On February 19,
1957, their respective holographic wins and
the codicils thereto were duly admitted to
probate.
Upon the death of Doñ;a Tinay on October
2, 1959, Don Jesus was named executor to
serve without bond in an order issued by
the probate court on October 13, 1959.
Letters testamentary having been issued in
favor of Don Jesus, he took his oath of
office and performed his duties as such
until July 1, 1960.
Thereafter in the early part of November,
1959, Don Jesus cancelled his holographic
will in the presence of his bookkeeper and
secretary, Esteban P. Ramirez, whom he
instructed to make a list of all his remaining
properties with their corresponding
descriptions. His lawyer, Atty. Gregorio
imperial Sr. was then instructed to draft a
new will which was duly signed by Don
Jesus and his attesting witnesses on
November 14, 1959 at Ms home in Ligao,
Albay. This notarial will and testament
(Exh. A) of Don Jesus executed on
November 14, 1959 had three essential
45
features: (a) it expressly cancelled, revoked
Page
and annulled all the provisions of Don
Jesus' holographic will of January 5, 1955
and his codicil of August 14, 1956; (b) it
provided for the collation of all his
properties donated to his four living children
by virtue of the "Escritura de Particion
Extra. judicial" of 1949, and that such
properties be taken into account in the
partition of his estate among the children;
and (c) it instituted his children as
legatees/devisees of certain specific
properties, and as to the rest of the
properties and whatever may be
subsequently acquired in the future, before
his death, were to be given to Francisca
and Pablo, naming Francesca as executrix
to serve without a bond.
After all debts, funeral charges and other
expenses of the estate of Doñ;a Tinay had
been paid, all her heirs including Don
Jesus, submitted to the probate court for
approval a deed of partition executed on
December 19, 1959 (Exh. 7-Q) and which
essentially confirmed the provisions of the
partition of 1949, the holographic will and
codicil of Doñ;a Tinay. On July 6, 1960, the
court approved the partition of 1959 and on
January 6, 1961 declared the termination of
the proceedings on the estate of Doñ;a
Tinay.
On May 6,1964, Don Jesus Alsua died.
On May 20, 1964, petitioner herein
Francisca Alsua Betts, as the executrix
named in the will of November 14, 1959,
filed a petition for the probate of said new
will of Don Jesus Alsua before the Court of
First Instance of Albay and was docketed
as Special Proceedings No. 699.
Oppositions thereto were filed by Pablo,
Amparo and Fernando, thru his judicial
guardian Clotilde Samson, on the following
grounds: (a) that Don Jesus was not of
sound and disposing mind at the time of the
execution of the alleged will; (b) that the will
was executed under duress or influence of
fear or threats; or it was procured by undue
and improper pressure and influence on the
part of the main beneficiaries and of person
or persons in collusion with them, or the
signature of the testator was secured by or
thru fraud; (c) that the will was not executed
according to the formal requirements of the
law; and (d) that the alleged will subject of
probate contravened the Extrajudicial
Partition of 1949 agreed upon by him, his
deceased spouse, Doñ;a Tinay, and all his
children, Francisco, Pablo, Amparo and
Fernando thru his judicial guardian Clotilde
Samson, and also contravened Don Jesus'
own probated holographic will and codicil of
1955 and 1956, respectively, essentially
confirming and implementing the said
partition of 1949 which had already been
partially executed by all the signatories
thereto in the partition of the estate of
Doñ;a Tinay in December, 1959.
On the basis of Francisca's designation as
executrix in the new will dated November
14, 1959, the Probate Court appointed her
Administratrix of the estate of her late
father, Don Jesus Alsua. She then filed with
the Probate Court an inventory of the
properties of the estate which, according to
the oppositors therein (the private
respondents now) did not include some
properties appearing in the agreement of
November 25. 1949 or in the inventory
attached thereto as Annex "A" and in the
"Escritura de Particion" of December 19,
1959 as belonging to or should pertain to
Don Jesus. According to the oppositors,
these properties consist of thirty- three (33)
premium agricultural lots with a total land
area of 1,187,970 square meters, or
approximately 119 hectares and with a total
assessed value of P48,410.00 or a
probable total market value of P238,000.00
at only P2,000.00 per hectare, and four (4)
commercial urban lots Ideally located in the
business section of Legazpi City including
the lot and the building presently occupied
by the well-known "Mayon Hotel" with an
assessed value of approximately
P117,260.00 or a probable market value at
the time of P469,040.00. It appearing from
the new will that these properties were
bequeathed to Pablo Alsua and Francisco
Alsua-Betts, specifically, 3 parcels of the 33
agricultural lands to Pablo and the rest to
Francisco, the oppositors also raised in
issue the non-inclusion of said properties in
the inventory of the estate of their late
father. In answer, Francisco claimed
ownership over the same, alleging that she
bought the properties from their father and
presenting the two Deeds of Sale now
being assailed, one dated August 26, 1961
purporting to show the sale of the 33
46
parcels of agricultural land to Francisco by
their father for the price of P70,000.00 and
Page
the other dated November 26, 1962
evidencing the sale of the four urban lots
for the sum of P80,000.00. Claiming fraud
in the sales, the oppositors filed Civil Case
No. 3068, seeking the annulment of the
aforesaid two deeds of sale, with damages,
which upon agreement of the parties was
then jointly heard and tried with Special
Proceedings No. 699 for probate of the
Last Will and Testament of Don Jesus
executed on November 14, 1959.
After a joint hearing of the merits of these
two cases, the Court of First Instance of
Albay promulgated a decision on January
15, 1973, the dispositive portion of which
states: têñ.£îhqwâ£
WHEREFORE, in view of all
the foregoing, judgment is
hereby rendered, to wit:
1. In Special Proceedings 699,
the Court hereby APPROVES
and ALLOWS the Will
executed by Don Jesus Alsua
at Ligao, Albay, on November
14, 1959, which had been
marked as Exhibit A,
consisting of nine (9) pages,
and orders that the same be
made the basis for division and
distribution of the estate of said
testator;
2. In Civil Case 3068, the
Court hereby dismisses the
complaint and holds that the
sale on August 26, 1961 (Exh.
U) and the sale on November
26, 1962 (Exh. W), are lawful
and valid sales and
accordingly conveyed title to
the VENDEE thereof. The
Plaintiffs in Civil Case 3068.
are ordered jointly and
severally to pay to the
defendant, Francisco Alsua
Betts Fifty Thousand Pesos
(P50,000.00) as damages and
Fifty Thousand (P50,000.00)
Pesos for attorney's fees or a
total of One Hundred
Thousand Pesos
(P100,000.00) and to pay the
costs.
On appeal by herein respondents to the
Court of Appeals, the court reversed the
appealed decision in a judgment rendered
on April 4, 1977, the dispositive portion of
which states, as translated, thus —
têñ.£îhqwâ£
IN VIEW OF THE
FOREGOING, this Tribunal
finds itself constrained to set
aside as it hereby sets aside
the decision appealed from in
the following manner: (1) in
Special Proceedings 699, the
probate of the will, Exh. A, is
hereby denied; (2) in Civil
Case No. 3068, Exhs. U and
W and the titles issued on the
basis thereof are hereby
declared null and void,
ordering the appellees
Francisco Alsua and Joseph
Betts to pay to the plaintiffs in
the concept of fixed damages,
the sum of P5,000.00 and to
render an accounting of
properties in their possession
and to reimburse the plaintiffs
the net gain, in the proportion
that appertains to them in the
properties subject of litigation
in Civil Case No. 3068 from the
date of the filing of this
complaint, up to the complete
restoration of the properties
pertaining to (plaintiffs)
pursuant to Article 2208 of the
New Civil Code, paragraph 11,
ordering them in addition to
pay to the plaintiffs and
oppositors the sum of
P50,000.00 as attorney's fees,
and the costs.
Hence, the petition at bar assailing the
respondent court's decision on four
assigned errors, to wit: têñ.£îhqwâ£
I. The respondent Court of
Appeals erred in not affirming
the findings of the probate
court (Special Proceedings No.
699) that private respondents,
oppositors to the probate of the
will, are in estoppel to question
47
the competence of testator
Page
Don Jesus Alsua.
 II. The respondent Court of would seem inimical to public
Appeals grossly erred in policy. Over and above the
holding that testator Don Jesus interest of private parties is
Alsua cannot revoke his that of the state to see that
previous will. testamentary dispositions be
carried out if, and only if,
III. The respondent court's executed conformably to law.
finding is grounded entirely on
speculation, surmises or The Supreme Court of New
conjectures resulting in a gross York aptly said in Re Canfield's
misapprehension of facts. Will, 300 N.Y.S.,
502: têñ.£îhqwâ£
IV. The respondent court
grossly erred in annulling the 'The primary
sales of August 26, 1961 (Exh. purpose of the
U), and of November 26, 1962 proceeding is not
(Exh. W). to establish the
existence of the
On the first issue of estoppel raised in the right of any living
assignment of errors, We hold that the person, but to
same is of no moment. The controversy as determine whether
to the competency or incompetency of Don or not the
Jesus Alsua to execute his will cannot be decedent has
determined by acts of the herein private performed the
respondents as oppositors to the will in acts specified by
formally agreeing in writing jointly with the the pertinent
petitioner Francisca Alsua de Betts that statutes, which
their father, Don Jesus Alsua, be appointed are the essential
by the court executor of the will of their prerequisites to
mother in Special Proceedings No. 485, personal direction
Testate Estate of Doñ;a Florentina Ralla de of the mode of
Alsua and in subsequently petitioning the devolution of his
court not to require Don Jesus Alsua to file property on death.
any accounting as executor in the There is no legal
proceedings, which petitioners claim and but merely a moral
was upheld by the trial court as constituting duty resting upon
estoppel on the part of the private a proponent to
respondents from questioning the attempt to validate
competence of Don Jesus Alsua. the wishes of the
departed, and he
The principle of estoppel is not applicable may and
in probate proceedings, a ruling laid down frequently does
in the case of Testate Estate of the Late receive no
Procopia Apostol Benedicta Obispo, et al personal benefit
vs. Remedios Obispo, 50 O.G. 614, from the
penned by Justice J.B.L. Reyes, an performance of
eminent and recognized authority on Civil the act.
Law when he was still in the Court of
Appeals, and We quote: têñ.£îhqw⣠One of the most
fundamental
Finally, probate proceedings conceptions of
involve public interest, and the probate law, is
application therein of the rile of that it is the duty
estoppel, when it win block the of the court to
ascertainment of the truth as to effectuate, in so
48

the circumstances surrounding far as may be

Page

the execution of a testament, compatible with

 the public interest, (2) If the testator was insane,
the devolutionary or otherwise mentally
wishes of a incapable of making a wilt at
deceased person the time of its execution;
(Matter of
Watson's Wilt 262 (3) If it was executed through
N.Y., 284, 294, force or under duress, or the
186, N.E., 787; influence of fear, or threats;
Matter of
Marriman's Estate, (4) If it was procured by undue
124 Misc. 320, and improper pressure and
325, 208, N.Y.S., influence, on the part of the
672; Foley, S., beneficiary or of some other
affirmed 217 app. person;
Div., 733, 216
N.Y.S., 126, (5) If the signature of the
Henderson, S., testator was procured by fraud,
Matter of Draske's
Estate, 160 Misc. (6) If the testator acted by
587, 593, 290, mistake or did not intend that
N.Y.S., 581). To the instrument he signed
that end, the court should be his will at the time of
is, in effect, an affixing his signature thereto.
additional party to
every litigation The issue under consideration appears to
affecting the Us to have been answered by the
disposal of the respondent court itself when it accepted the
assets of the findings of the trial court on the due
deceased. Matter execution of the questioned will and
of Van testament of Don Jesus,
Valkenburgh's declaring: têñ.£îhqwâ£
Estate, 164 Misc.
295, 298, N.Y.S., ... and going back to the
219.' previous question, whether the
questioned will and testament
The next issue that commands Our of November 14, 1959, Exh. A,
attention is whether the respondent court was executed in accordance
erred in not allowing the probate of the last with Arts. 805-809 of the New
will and testament of Don Jesus Alsua. Civil Code, this Tribunal from
Petitioners claim that the disallowance was the very beginning accepts the
based on speculations, surmises or findings of the inferior court
conjectures, disregarding the facts as found concerning the
by the trial court. The Civil Court is very question, têñ.£îhqwâ£
clear and explicit in providing the cases
where a will may be disallowed under On October 2,
Article 839 which provides as 1959, Doñ;a
follows: têñ.£îhqw⣠Florentina died at
Ligao, Albay.
Art. 839. The will shall be About 2 weeks
disallowed in any of the after said death of
following cases: his wife, Don
Jesus Alsua
(1) If the formalities required by decided to make a
law have not been complied new will, thereby
with; revoking and
49

cancelling his
Page

previous
holographic will He handed to
which he made on them a list and on
January 5, 1955 the left he
and also its codicil indicated the
dated August 14, name of the child
1956. In the to whom the listed
presence of his properties shall
bookkeeper and pertain. Atty.
secretary, Jorge Imperial
Esteban P. took notes of the
Ramirez, he instructions of Don
crossed out in ink Jesus Alsua. To
each and every Don Jesus,
page of said page Spanish is his
he wrote on each major language,
page the word as in fact his
"cancelado", and conversations with
affixed his Don Gregorio are
signature thereon always in Spanish.
(Exh V-5, V-6, A few days before
consecutively up November 14,
to and including 1959, Atty. Jorge
Exh. V-14). He S. Imperial
then instructed showed to Don
Ramirez to make Jesus the semi-
a list of all s final draft of the
properties with will and after
their reading it Don
corresponding Jesus said that it
descriptions. was as directed by
him, and after
Meanwhile, Don making a few
Jesus Alsua sent minor corrections,
for his lawyer, Don he instructed Atty.
Gregorio Imperial, Jorge S. Imperial
Sr. and the latter to put the win in
came final form. He
accompanied by further told Atty,
his son, Atty. Jorge Imperial that
Jorge S, Imperial, the signing of the
who, incidentally, will should be at
is now a judge of his home in Ligao,
the Court of First in the morning of
Instance of Naga November 14,
City, Camarines 1959, and that the
Sur. Don Jesus witnesses should
informed his be Mr. Ramon
lawyers that he Balana, the then
wanted to make a Register of Deeds
new will, and of Albay; Mr. Jose
accordingly gave Madarieta who is
more detailed a friend of the
instructions as to family; and Mr.
how he wanted to Jose Gaya who is
50

divide his a sort of employee

properties among of Don Jesus.
Page

his four children.

Thus in the Gaya called for
morning of Mr. Jose
November 14, Madarieta, whose
1959, Don residence is just
Gregorio and Atty. across the road
Jorge S. Imperial, from the house of
riding in a sedan, Don Jesus. Mr.
stopped at the Madarieta was
Legaspi residence already informed
of Mr. Ramon by Don Jesus
Balana, and himself about the
informed the latter fact of signing the
that Don Jesus will that morning,
was requesting and so, on being
him to be one of advised by Mr.
the attesting Gaya that the
witnesses to his Imperials had
will. Mr. Balana, already arrived,
having a very high Madarieta
regard for Don proceeded to the
Jesus, considered residence of Don
it an honor to be Jesus, without
so asked, and much delay. With
gladly went with the coming of
the Imperials. Madarieta and the
They arrived at coming back of
the residence of Gaya, there were
Don Jesus at now six people
Ligao; Albay, gathered in the
almost ten o'clock living room,
of that morning, namely: Don
and they were Jesus Alsua, Don
ushered in by Mr. Gregorio Imperial
Jose Gaya, and Atty. Jorge S.
the latter Imperial Mr.
requested them to Ramon Balana,
be seated at the Mr. Jose
usual receiving Madarieta, and
room on the Mr. Jose Gaya. All
ground floor while the witnesses who
he announced testified for the
their arrival to Don petitioner declared
Jesus who was on that Don Jesus
the second floor. was in bright and
Soon Don Jesus lively conversation
came down, which ran from
carrying with him problems of
the will to be farming and the
signed placed merits of French-
inside a cartolina made wines. At 1
folder. He greeted 1:00 o'clock, Don
Don Gregorio, Mr. Gregorio made a
Balan, and Atty. remark that it is
Imperial and about time to do
51

immediately joined what they were

them in there for, and this
Page

conversation. Mr. was followed by a

more or less table. The will
statement from which consisted of
Jesus, who nine pages, with a
said: têñ.£îhqw⣠duplicate, and
triplicate was laid
'Preisamente on the round table
es por lo que and the signing
he Hamado a began, with Atty.
ustedes que Jorge S. Imperial
esten assisting each
presentes person signing by
para ser indicating the
testigos de rni proper place
ultimo where the
voluntad y signature shall be
testamento written. Don
que ha sido Jesus, as testator,
preparado signed first. After
por el signing the
abogado Sr. original and the
Gregorio two other sets, the
Imperial three sets were
segun mis then passed to Mr.
instrucciones Ramon Balana
cuyo who signed as
documento attesting witness.
tengo aqui After Mr. Balana,
conmigo y Mr. Jose
encuentro Madarieta signed
que, despues next as another
de lo he leido, attesting witness,
esta and when Mr.
satisfactoriam Madarieta finished
ente hecho signing all the
segun mis three sets, the
instrucciones, same were
Como saben passed to Mr.
ustedes Jose Gaya who
tengo cuatro also signed as the
(4) hijos third attesting
todos egos.' witness. On each
(pp. 43-44, of the three sets,
t.s.n., hearing Don Jesus signed
of December ten times, — one
7, 1967, on the margin of
Sarte. each of the nine
pages, and at the
On request of Don end of the
Jesus, all of them instrument proper.
moved to the big Each of the three
round table on attesting
another part of the witnesses
same sala for (Balana,
convenience in Madarieta and
52

signing because Gaya) signed

there were chairs eleven times on
Page

all around this each set, — one

on the margin of morning. After all
each of the nine the three sets
pages, one at the were notarized,
end of the they were all given
instrument proper back to Don Jesus
and one below the who placed them
attestation clause. inside the same
The original will folder. At that
was marked as moment, it was
Exh. A (or set A); already about
the duplicate as 12:30 P.M. and
Exh. K (or set K) Don Jesus invited
and the triplicate all of them to
of Don Jesus, Mr. lunch, which
Balana, Mr. invitation was
Madarieta, and gladly accepted by
Mr. Gaya were all of then-L (pp.
Identified by Mr. 474-480, Joint
Balana, Mr. Record on Appeal
Madarieta and in CA-G.R. No.
Atty. (now Judge) 54492-R)
imperial. It was
also clearly which findings are supported
established that by the evidence, - it is quite
when Don Jesus difficult to conclude that the
signed the will Mr. same had not complied with
Balana, Mr. the requirements of Arts. 804-
Madarieta, and 806 of the New Civil Code. ...
Mr. Gaya were (CA Decision, pp. 13-16, as
present and translated).
witnessed said
signing, and that This cited portion of the appealed decision
when each of accepts as a fact that the findings of the
these three lower court declaring the contested will as
witnesses was having been executed with all the formal
signing, Don requirements of a valid will, are supported
Jesus and the two by the evidence. This finding is conclusive
other attesting upon this Tribunal and We cannot alter,
witnesses were review or revise the same. Hence, there is
present and no further need for Us to dwell on the
Witnessing said matter as both the lower court and the
Signing. The respondent appellate court have declared
signing by the that these are the facts and such facts are
testator and the fully borne and supported by the records.
attesting We find no error in the conclusion arrived at
witnesses having that the contested will was duly executed in
been completed, accordance with law. We rule that the
Atty. Jorge S. questioned last will and testament of Don
Imperial as Notary Jesus Alsua fully complied with the formal
Public with requirements of the law.
commission for
the entire province Respondent court, however, denied
of Albay, notarized probate of the will after ,'noting certain
the wilt and sealed details which were a little bit difficult to
reconcile with the ordinary course of things
53

it with his notarial

seat which seal he and of life." First was the fact that the
Page

brought along that spouses Don Jesus and Doñ;a Tinay

together with their four children Francisco,
Pablo, Amparo and Fernando had
executed the Extrajudicial Partition of
November 25, 1949 (Exh. A) which divided
the conjugal properties of the spouses
between the spouses themselves and the
children under the terms and conditions
and dispositions herein before stated and
to implement its provisions, Don Jesus and
Doñ;a Tinay subsequently executed
separately their respective holographic
wigs both dated January 5, 1955 and
codicils dated August 14, 1956 with the
same terms and conditions as reproduced
herein earlier. Both holographic wills and
codicils having been probated thereafter
and upon the death of Doñ;a Tinay, Don
Jesus was appointed executor of the will
and in due time the partition of the
properties or estate of Doñ;a Tinay was
approved by the probate court on July 6,
1960.
The respondent court ruled that the
Extrajudicial Partition of November 25,
1949 was an enforceable contract which
was binding on Don Jesus Alsua as the
surviving spouse, barring him from violating
said partition agreement, barring him from
revoking his holographic will of January 5,
1955 and his codicil of August 14, 1956,
and further barring him from executing his
new will and testament of November 14,
1959, now the subject of the probate
proceedings elevated to this Court.
We do not agree with this ruling of the
Court of Appeals. We hold that the
Extrajudicial Partition of November 25,
1949 is null and void under Article 1056 in
relation to Article 1271 of the old Civil Code
which are applicable hereto. These Articles
provide as follows: têñ.£îhqwâ£
Art. 1056. If the testator should
make a partition of his property
by an act inter vivos, or by will,
such partition shall stand in so
far as it does not prejudice the
legitime of the forced heirs. ...
Art. 1271. All things, even
future ones, which are not
excluded from the commerce
of man, may be the subject-
matter of contracts.
Nevertheless, no contract may
be entered into with respect to
future inheritances, except
those the object of which is to
make a division inter vivos of
an estate, in accordance with
Article 1056.
All services not contrary to law
or to good morals may also be
the subject- matter of contract.
Article 1056 specifically uses the word
"testator" from which the clear intent of the
law may be deduced that the privilege of
partitioning one's estate by acts inter vivos
is restricted only to one who has made a
prior will or testament. In other words,
Article 1056 being an exception cannot be
given a wider scope as to include in the
exception any person whether he has
made a will or not.
Respondent court citing the same Article
concluded that under both the old and new
Civil Code, a person who executes a will is
permitted at the same time or a little
thereafter or even before as long as he
mentions this fact in the will, to partition his
properties pursuant to the provisions of
Article 1056 of the old Civil Code. The court
further added that jurisprudence is to the
effect that the partition presupposes the
execution of the will that it ratifies or
effectuates, citing the case of Legasto vs.
Verzosa, 54 Phil. 776. Finally, respondent
court held the opinion that the extrajudicial
partition of November 14, 1949 was ratified
in the holographic will executed by Don
Jesus on Jan. 5, 1955 and in the codicil of
August 14, 1956.
Again, We do not agree with this ruling of
the respondent court. In Legasto vs.
Verzosa, supra, the Supreme Court
categorically declared the necessity of a
prior will before the testator can partition his
properties among his heirs, and We quote
the pertinent portions of the
decision: têñ.£îhqwâ£
The first question to decide in
the instant appeal is whether
the partition made by Sabina
Almadin of her property among
54
her nieces, the defendants and
Page
appellants herein, was valid
and enforceable.
Article 1056 of the Civil Code
provides:
Art. 1056. If the testator should
make a partition of his property
by an act inter vivos, or by will,
such partition shall stand in so
far as it does not prejudice the
legitime of the forced heirs.
The Supreme Court of Spain,
in a decision rendered on June
13, 1903, laid down the
following doctrine:
Considering that the language
of article 1056 cannot be
interpreted to mean that a
person may, by acts inter
vivos, partition his property
referred to in the section
wherein said article is found,
without the authority of a
testament containing an
expression of his last will, or
the authority of law, for,
otherwise, a partition thus
made would be tantamount to
making a will in a manner not
provided for, authorized, nor
included in the chapter
referring to testaments, and
especially, to the forms
thereof, which is entirely
different from the legal
consequences of a free
disposition made by parents
during their lifetime, whereby
they give to their children the
whole or a part of their
property;
Considering that, inasmuch as
the second paragraph of article
1271 makes reference to the
aforesaid article, in providing
that no contracts may be
entered into with respect to
future inheritances except
those the object of which is to
make a division inter vivos of
the estate in accordance with
article 1056, it is evident that
said difference likewise leads
to the conclusion that a
partition thus made should be
on the basis of a testamentary
or legal succession and should
be made in conformity with the
fundamental rules thereof and
the order of the heirs entitled to
the estate, because neither of
the two provisions could be
given a wider meaning or
scope than that they simply
provide for the division of the
estate during the lifetime of the
owner, which, otherwise, would
have to be done upon the
death of the testator in order to
carry into effect the partition of
the estate among the persons
interested.
Manresa comments on the
same article as follows:
A distinction must be made
between the disposition of
property and its division; and
the provision of article 1056
authorizing the testator to
dispose of his property by acts
inter vivos or by last will, must
be understood in accordance
with this distinction. The Idea is
to divide the estate among the
heirs designated by the
testator. This designation
constitutes the disposition of
the properties to take effect
after his death, and said act
must necessarily appear in the
testament because it is the
expression of the testator's last
will and must be surrounded by
appropriate formalities. Then
comes the second part, to wit,
the division in conformity with
that disposition, and the
testator may make this division
in the same will or in another
will, or by an act inter vivos.
With these words, the law, in
article 1056 as well as in article
1057, which we shall hereafter
examine, makes allusion to the
forms or manner of making the
55
partition and not to the effects
thereof, which means that, for
Page
purposes of partition the formal
 solemnities which must
accompany every testament or
last will are not necessary.
Neither is it necessary to
observe the special for.
realities required in case of
donations, because it is not a
matter of disposing gratuitously
of properties, but of dividing
those which already have been
legally disposed of.
It is thus seen that both the
Spanish Supreme Court and
the learned and authoritative
commentator, Manresa, are of
opinion that a testator may, by
an act inter vivos, partition his
property, but he must first
make a will with all the
formalities provided for by law.
And it could not be otherwise,
for without a will there can be
no testator; when the law,
therefore, speaks of the
partition inter vivos made by a
testator of his property, it
necessarily refers to that
property which he has devised
to his heirs. A person who
disposes of his property gratis
inter vivos is not called a
testator, but a donor. In
employing the word "testator,"
the law evidently desired to
distinguish between one who
freely donates his property in
life and one who disposes of it
by will to take effect after his
death.
We are not in conformity with the holding of
the respondent court that the extrajudicial
partition of November 25, 1949 which
under the old Civil Code was expressly
prohibited as against public policy had
been validly ratified by the holographic will
of Don Jesus executed on January 5, 1955
and his codicil of August 14, 1956. Such a
holding of the appellate court that a person
who executes a will is permitted to partition
his properties pursuant to the provisions of
Article 1056 of the old Civil Code even
before executing his will as long as he
mentions this fact in the will, is not
warranted under the ruling of Legasto vs.
Verzosa, supra and the commentary of
Manresa as quoted above. We rule,
therefore, that the respondent court erred in
denying probate to the will of Don Jesus
dated November 14, 1959; it erred in
holding that Don Jesus being a party to the
extrajudicial partition of 1949 was
contractually bound by the provisions
thereof and hence could not revoke his
participation therein by the simple
expedience of making a new will with
contrary provisions or dispositions. It is an
error because the so-called extrajudicial
partition of 1949 is void and inoperative as
a partition; neither is it a valid or
enforceable contract because it involved
future inheritance; it may only be given
effect as a donation inter vivos of specific
properties to the heirs made by the parents.
Considering that the document, the
extrajudicial partition of November 25,
1949, contained specific designation of
properties allotted to each child, We rule
that there was substantial compliance with
the rules on donations inter vivos under the
old Civil Code (Article 633). On the other
hand, there could have been no valid
donation to the children of the other half
reserved as the free portion of Don Jesus
and Doñ;a Tinay which, as stated in the
deed, was to be divided equally among the
children for the simple reason that the
property or properties were not specifically
described in the public instrument, an
essential requirement under Article 633
which provides as follows: têñ.£îhqwâ£
Art. 633. In order that a
donation or real property be
valid it must be made by public
instrument in which the
property donated must be
specifically described and in
the amount of the
encumbrances to be assumed
by the donee expressed.
The acceptance must be made
in the deed of gift or in a
separate public writing; but it
shall produce no effect if not
made during the lifetime of the
donor.
If the acceptance is made by
56
separate public instrument,
Page
authentic notice thereof shall
 be given the donor, and this
proceeding shall be noted in
both instruments.
This other half, therefore, remained as the
disposable free portion of the spouses
which may be disposed of in such manner
that either of the spouses would like in
regards to his or her share in such portion,
unencumbered by the provision enjoining
the last surviving spouse to give equally to
the children what belongs or-would pertain
to him or her. The end result, therefore, is
that Don Jesus and Doñ;a Tinay, in the
Deed of 1949, made to their children valid
donations of only one-half of their
combined properties which must be
charged against their legitime and cannot
anymore be revoked unless inofficious; the
other half remained entirely at the free
disposal of the spouses with regards to
their respective shares.
Upon the death of Doñ;a Tinay on October
2, 1959, her share in the free portion was
distributed in accordance with her
holographic will dated January 25, 1955
and her codicil dated August 14, 1956. It
must be stressed here that the distribution
of her properties was subject to her
holographic win and codicil, independently
of the holographic will and codicil of Don
Jesus executed by him on the same date.
This is fundamental because otherwise, to
consider both wills and codicils jointly
would be to circumvent the prohibition of
the Civil Code on joint wills (Art. 818) and
secondly because upon the death of Doñ;a
Tinay, only her estate was being settled,
and not that of Don Jesus.
We have carefully examined the provisions
of the holographic will and codicil of Doñ;a
Tinay and We find no indication whatsoever
that Doñ;a Tinay expressly or impliedly
instituted both the husband and her
children as heirs to her free portion of her
share in the conjugal assets. In her
holographic will, mention of her children as
heirs was made in the fourth clause but it
only provided that, to wit: têñ.£îhqwâ£
Cuatro. Que si yo adquieriese
nuevase propiedades despues
de otorgado este mi
testamento seran las mismas
repartados entre mi esposo o
hijos arriba mencionada en el
parrafo tercero su la misma
proporcion o sea: la mitad (1/2)
para is esposa; y la otra mitad
(1/2) para mis hijos en partes
iguales.
For purposes of clarity and convenience,
this fourth clause provided that "Should I
acquire new properties after the execution
of this testament, the same shall be
partitioned among my spouse and above
named children or the children mentioned
in above par. 3 in the same proportion, that
is, one- half (1/2) to my spouse; and the
other half to my children in equal parts."
From the above-quoted provision, the
children would only inherit together with
Don Jesus whatever new properties Doñ;a
Tinay would acquire after the execution of
her will.
Likewise, the codicil of Doñ;a Tinay
instituted her husband as sole heir to her
share in the free portion of the conjugal
assets, and We quote that part of the
codicil: têñ.£îhqwâ£
Dejo a mi esposo Jesus Alsua
como su legitima y como
herencia que se sacara de ni
cuenta de libre disposicion
todos aquellos bienes de los
que no he dispuesto aun en
favor de mis hijos en la
escritura de reparticion
precitada y que excedieran de
la mitad de gananciales que le
corresponds tal como arriba
declare, incluyendo todos
aquenos bienes que se
adquiriesen por nosotros
despues de otorgado por mi
este testamento.
Para el caso de que Dios
dispusiera que yo sobreviviera
a mi esposo declaro que es mi
voluntad que todas las
propiedades de todo genero
que me pertenecen y me
pudieran pertenecer, no
dispuestas aun en la
reparticion, se dividan por igual
entre mis herederos
57
mencionados despues de mi
Page
muerte.
Again for purposes of clarity and
convenience, the above portion
states: têñ.£îhqwâ£
I leave to my spouse Don
Jesus Alsua as his legitime
and as his inheritance the part
of the free portion of my
property which have not been
allocated in favor of my
children in the Document of
Partition aforecited and that
which should exceed 1/2 of the
conjugal property of gains that
pertains to him as above
stated, including all those
properties which we shall
acquire after the execution of
this document.
In case it should be God's will
that I survive my spouse, I
hereby declare that it is my will
that any and all kinds of
property that pertains to me or
would pertain to me, which
have not been disposed of
pursuant to the partition,
should be divided equally
among my above-mentioned
heirs after my death.
The children, therefore, would only receive
equal shares in the remaining estate of
Doñ;a Tinay in the event that she should be
the surviving spouse. To stress the point,
Doñ;a Tinay did not oblige her husband to
give equally to the children, upon his death,
all such properties she was bequeathing
him.
Considering now the efficacy of Don Jesus'
last will and testament executed on
November 14, 1959 in view of Our holding
that Doñ;a Tinay's wig and codicil did not
stipulate that Don Jesus will bestow the
properties equally to the children, it follows
that all the properties of Doñ;a Tinay
bequeathed to Don Jesus under her
holographic win and codicil became part of
Don Jesus' estate unburdened by any
condition obligation or proviso.
Respondents insist that Don Jesus was
bound by the extrajudicial partition of
November 25, 1949 and had in fact
conformed to said Partition by making a
holographic will and codicil with exactly the
same provisions as those of Doñ;a Tinay,
which respondent court sustained. We rule,
however, that Don Jesus was not forever
bound thereby for his previous holographic
will and codicil as such, would remain
revokable at his discretion. Art. 828 of the
new Civil Code is clear: "A win may be
revoked by the testator at any time before
his death. Any waiver or restriction of this
right is void." There can be no restriction
that may be made on his absolute freedom
to revoke his holographic will and codicil
previously made. This would still hold true
even if such previous will had as in the
case at bar already been
probated (Palacios v. Palacios, 106 Phil.
739). For in the first place, probate only
authenticates the will and does not pass
upon the efficacy of the dispositions
therein. And secondly, the rights to the
succession are transmitted only from the
moment of the death of the decedent
(Article 777, New Civil Code). In fine, Don
Jesus retained the liberty of disposing of
his property before his death to
whomsoever he chose, provided the
legitime of the forced heirs are not
prejudiced, which is not herein claimed for
it is undisputed that only the free portion of
the whole Alsua estate is being contested.
After clearly establishing that only Don
Jesus was named as sole heir instituted to
the remaining estate of Doñ;a Tinay in her
holographic will and codicil resulting in all
such properties becoming the properties of
Don Jesus alone, and after clearly pointing
out that Don Jesus can, in law, revoke his
previous holographic will and codicil, by
making another win expressly cancelling
and revoking the former, the next issue for
the Court's resolution is the validity of the
provisions of the contested will. Though the
law and jurisprudence are clear that only
questions about the extrinsic validity of the
will may be entertained by the probate
court, the Court had, on more than one
occasion, passed upon the intrinsic validity
of a will even before it had been
authenticated. Thus We declared in Nuguid
v. Nuguid, 17 SCRA 499: têñ.£îhqwâ£
The parties shunted aside the
58
question of whether or not the
will should be allowed to
Page
probate. For them, the meat of
 the case is the intrinsic validity
of the wilt Normally this comes
only after the court has
declared that the will has been
duly authenticated. ...
... If the case were to be
remanded for probate of the
wilt nothing will be gained. On
the contrary, this litigation win
be protracted and for ought
that appears in the record, in
the event of probate or if the
court rejects the will probability
exists that the case win come
up once again before us on the
issue of the intrinsic validity or
nullity of the wilt Result: waste
of time, effort, expense, plus
added anxiety. These are the
practical considerations that
induce us to a behalf that we
might as well meet head-on
the time of the validity of the
provisions of the will in
question. ...
The last Will and Testament of Don Jesus
executed on November 14, 1959 contained
an express revocation of his holographic
wig of January 5, 1955 and the codicil of
August 14, 1956; a statement requiring that
all of his properties donated to his children
in the Deed of 1949 be collated and taken
into account in the partition of his estate;
the institution of all his children as devisees
and legatees to certain specific properties;
a statement bequeathing the rest of his
properties and all that may be acquired in
the future, before his death, to Pablo and
Francesca; and a statement naming
Francesca as executrix without bond.
Considering these testamentary provisions,
a close scrutiny of the properties distributed
to the children under the Deed of 1949 and
those distributed under the contested will of
Don Jesus does not show that the former
had in fact been included in the latter. This
being so, it must be presumed that the
intention of Don Jesus in his last win was
not to revoke the donations already made
in the Deed of 1949 but only to redistribute
his remaining estate, or that portion of the
conjugal assets totally left to his free
disposal and that which he received as his
inheritance from Doñ;a Tinay. The legitimes
of the forced heirs were left unimpaired, as
in fact, not one of said forced heirs claimed
or intimated otherwise. The properties that
were disposed of in the contested will
belonged wholly to Don Jesus Alsua's free
portion and may be diamond of by him to
whomsoever he may choose.
If he now favored Francesca more, as
claimed by private respondents, or Pablo
as in fact he was, We cannot and may not
sit in judgment upon the motives and
sentiments of Don Jesus in doing so. We
have clearly laid down this rule
in Bustamante v. Arevalo, 73 Phil. 635, to
wit: têñ.£îhqwâ£
... nevertheless it would be
venturesome for the court to
advance its own Idea of a just
distribution of the property in
the face of a different mode of
disposition so clearly
expressed by the testatrix in
the latter will. ...
It would be a dangerous
precedent to strain the
interpretation of a will in order
to effect what the court
believes to be an equitable
division of the estate of a
deceased person. The only
functions of the courts in these
cases is to carry out the
intention of the deceased as
manifested in the wig. Once
that intention has been
determined through a careful
reading of the will or wills, and
provided the law on legitimes
has not been violated, it is
beyond the place of judicial
cognizance to inquire into the
fairness or unfairness of any
devise or bequeast. The court
should not sit in judgment upon
the motives and sentiments of
the testatrix, first, because as
already stated, nothing in the
law restrained her from
disposing of her property in
any manner she desired, and
secondly, because there are
no adequate means of
59
ascertaining the inward
Page
process of her conscience.
 She was the sole judge of her
own attitude toward those who
expected her bounty. ...
Respondent court, in trying to rationalize
the will of Don Jesus which allegedly
benefited and favored the petitioner to the
prejudice of the other heirs who would have
been entitled to an equal share under the
extrajudicial partition of 1949, faced two
alternatives-one, to consider Don Jesus as
a man of culture and honor and would not
snow himself to violate the previous
agreement, and the other as one whose
mental faculties or his possession of the
same had been diminished considering that
when the will was executed, he was
already 84 years of age and in view of his
weakness and advanced age, the actual
administration of his properties had been
left to his assistant Madarieta who, for his
part received instructions from Francisco
and her husband, Joseph Betts. According
to the court, the better explanation is the
latter, which is not legally tenable. Under
Article 799 of the New Civil Code which
provides as follows: têñ.£îhqwâ£
Art. 799. To be of sound mind,
it is not necessary that the
testator be in full possession of
all his reasoning faculties, or
that his mind be wholly
unbroken, unimpaired, or
unshattered by disease, injury
or other cause.
It shall be sufficient if the
testator was able at the time of
making the will to know the
nature of the estate to be
disposed of, the proper objects
of his bounty, and the
character of the testamentary
act,
The test of testamentary capacity is at the
time of the making of the win. Mere
weakness of mind or partial imbecility from
disease of body or from age-does not
render a person incapable of making a
will. têñ.£îhqwâ£
Between the highest degree of
soundness of mind and
memory which unquestionably
carries with it full testamentary
capacity, and that degrees of
mental aberration generally
known as insanity or Idiocy,
there are numberless degrees
of mental capacity or
incapacity and while on one
hand it has been held that
mere weakness of mind, or
partial imbecility from disease
of body, or from age, will not
render a person incapable of
making a will; a weak or
feebleminded person may
make a valid will, provided he
has understanding and
memory sufficient to enable
him to know what he is about
to do and how or to whom he
is disposing of his property. To
constitute a sound and
disposing mind, it is not
necessary that the mind be
unbroken or unimpaired or
unshattered by disease or
otherwise. It has been held
that testamentary incapacity
does not necessarily require
that a person shall actually be
insane or of unsound mind.
(Bugnao vs. Ubag, 14 Phil.
163).
The Civil Code itself provides under Article
798 that in order to make a will, it is
essential that the testator be of sound mind
at the time of its execution, and under
Article 800, the law presumes that every
person is of sound mind in the absence of
proof to the contrary. In the case at bar, the
acceptance by the respondent court of the
findings of fact of the trial court on the due
execution of the last win and testament of
Don Jesus has foreclosed any and all claim
to the contrary that the will was not
executed in accordance with the
requirements of the law. But more than
that, gleaned from the quoted portions of
the appealed decision, the described
behavior of Don Jesus is not that of a
mentally incapacitated person nor one
suffering from "senile dementia" as claimed
by private respondents. From these
accepted facts, We find that: (a) it was Don
Jesus himself who gave detailed
60
instructions to his lawyer as to how he
wanted to divide his properties among his
Page
children by means of a list of his properties
should pertain; (b) the semi-final draft of the
contested will prepared by his lawyer w-as
even corrected by Don Jesus; (c) on the
day of the signing of the will at his house in
Ligao, "Don Jesus was in bright and lively
spirits ..., leading in the conversation which
ran from problems of farming and the
merits of French-made wines"; (d) the
signing of the will by Don Jesus and his
attesting witnesses was made after a
statement from Don Jesus of the purpose
of their meeting or gathering, to
wit: têñ.£îhqwâ£
Precisamente es por lo que he
Ilamado a ustedes que eaten
presentes para ser testigos de
mi ultima voluntad y and codicil were duly probated when he
testamento que ha sido
preparado por el abogado Sr.
Gregorio Imperial segun mis
instrucciones cuyo documents
tengo aqui con migo y
encuentro que, despues de lo
he leido, esta
satisfactoriamente hecho
segun mis ingtrucciones,
Como saben ustedes tengo
cuatro (4) hijos todos ellos.
Clearly then, Don Jesus knew exactly what
his actions were and the fun implications
thereof.
In rejecting probate of the wilt respondent
court further pointed out other details
which, in the words of the decision "are a
little bit difficult to reconcile with the
ordinary course of things and of fife" such
as the fact that Don Jesus had sought the
probate of his will of January 5, 1955 and
his codicil of August 14, 1956 during his
lifetime but insofar as the will of November
14, 1959 is concerned, he had no intention
of seeking the probate thereof during his
lifetime, the alleged redundant and
unnecessary proceedings undertaken by
Don Jesus in the properties under question
to petitioner Franciso Alsua-Betts when the
same properties had already been
bequeathed to her in the will of November
14, 1959 and that "nothing, absolutely
nothing, could be made the basis for finding
that Don Jesus Alsua had regarded his
other children with less favor, and that he
was more sympathetic to Francisca so as
to or forget the former depriving them of
benefits already given to them and
rewarding the latter with disproportionate
advantages or benefits, to such an extreme
as to violate his previous disposition
consecrated in the previous extrajudicial
partition, Exh. 8."
We agree with the petitioner that these
details which respondent court found
difficult to reconcile with the ordinary
course of things and of life are mere
conjectures, surmises or speculations
which, however, do not warrant or justify
disallowance of the probate of the win of
Don Jesus. The fact that Don Jesus did not
cause his will to be probated during his
lifetime while his previous holographic win
was still alive is a mere speculation which
depends entirely on the discretion of Don
Jesus as the testator. The law does not
require that a will be probated during the
lifetime of the testator and for not doing so
there cannot arise any favorable or
unfavorable consequence therefrom. The
parties cannot correctly guess or surmise
the motives of the testator and neither can
the courts. Such surmise, speculation or
conjecture is no valid and legal ground to
reject allowance or disallowance of the wig.
The same thing can be said as to whatever
reason Don Jesus had for selling the
properties to his daughter Francisca when
he had already assigned the same
properties to her in his will. While We can
speculate that Don Jesus desired to have
possession of the properties transferred to
Francisca after the sale instead of waiting
for his death may be a reasonable
explanation or speculation for the act of the
testator and yet there is no certainty that
such was actually the reason. This is as
good a conjecture as the respondents may
offer or as difficult to accept which
respondent court believes. A conjecture is
always a conjecture; it can never be
admitted as evidence.
Now, the annulment case. The only issue
raised anent the civil case for annulment of
the two Deeds of Sale executed by and
between Don Jesus and petitioner
Francisco is their validity or nullity. Private
respondents mainly contend that the sales
61
were fictitious or simulated, there having
been no actual consideration paid. They
Page
further insist that the issue raised is a
question of fact and, therefore, not
reviewable in a certiorari proceeding before
the Supreme Court. On the other hand,
petitioners herein maintain that it was error
for the respondent court to set aside on
appeal the factual findings of the trial court
that the two sales were valid.
It is true that the jurisprudence of this Court
in cases brought to Us from the Court of
Appeals is limited to reviewing and revising
the errors of law imputed to it, its findings of
fact being conclusive; and this same
principle applies even if the Court of
Appeals was in disagreement with the
lower court as to the weight of evidence
with a consequent reversal of its findings of
fact. But what should not be ignored by
lawyers and litigants alike is the more basic
principle that the "findings of fact" described
as "final" or "conclusive" are those borne
out by the record or those which are based
upon substantial evidence. The general
rule laid down by the Supreme Court does
not declare the absolute correctness of all
the findings of fact made by the Court of
Appeals. These are exceptions to the
general rule, where We have reviewed and
revised the findings of fact of the Court of
Appeals. Among the exceptions to the rule
that findings of fact by the Court of Appeals
cannot be reviewed on appeals by certiorari
are:
1. When the conclusion is a finding
grounded entirely on speculation, surmises
or conjectures (Joaquin vs. Navarro, 93
Phil. 257);
2. When the inference made is manifestly
mistaken, absurd or impossible (Luna vs.
Linatok, 74 Phil. 15);
3. Where there is a grave abuse of
discretion (Buyco vs. People, 51 O.G.
2927);
4. When the judgment is based on a
misapprehension of facts (Cruz vs. Sosing,
L-4875, Nov. 27, 1953);
5. When the findings of fact are conflicting
(Casica vs. Villaseca, L-9590, April 30,
1957); and
6. When the Court of Appeals, in making its
findings, went beyond the issues of the
case and the same is contrary to the
admissions of both appellant and appellee
(Evangelists vs. Alto Surety & Ins. Co., L-
11139, April 23, 1958; Ramos vs. Pepsi
Cola, L-22533, Feb. 9, 1967, 19 SCRA
289).
In the case at bar, We find and so declare
that the respondent court's conclusion as to
the nullity of the contested sales was not
supported by the evidence on record and
adduced during the trial.
Evident from the records are the following
documentary evidence: (1) Exhibit U, a
deed of sale over agricultural lands
executed on August 26, 1961 by Don Jesus
in favor of Francisca for the consideration
of Seventy Thousand Pesos (P70,000.00),
which document bears the signature of Don
Jesus, not assailed as a forgery, and the
signature of Pablo Alsua as an instrumental
witness, again not assailed as a forgery nor
alleged as done thru fraud, force or threat.
(2) Exhibit "W", a deed of sale over urban
lots executed on November 16, 1962 for
the consideration of Eighty Thousand
Pesos (P80,000.00), which document also
bears the signature of Don Jesus, also
admittedly not a forgery. (3) Exhibit "F", a
document dated August 26, 1961 and
signed by Don Jesus and Pablo Alsua as
witness, acknowledging receipt of a Bank
of Philippine Island Check No. 0252 in the
amount of Seventy Thousand Pesos
(P70,000.00) for the sale of 33 parcels of
agricultural land to Francisco under the
same date; again, Pablo did not deny the
genuineness of his signature. (4) Exhibit
"X", a Bank of the Philippine Islands Check
No. D-6979 dated November 26, 1962, in
the amount of P32,644.71, drawn and
signed by Francesca, payable to Don
Jesus. (5) Exhibit "X-1", a second Bank of
Philippine Islands Check (No. D-6980) also
dated November 26, 1962 in the amount of
?47,355.29, drawn by Francisco and
payable to Don Jesus. (6) Exhibit "X-3 "
and "X-5 ", endorsements on the back of
the last two checks by Don Jesus, again,
his signatures thereon were not assailed.
(7) Exhibit "A" (in the annulment case), a
Bureau of Internal Revenue Receipt (No.
2347260) dated November 29, 1962 with a
62
notation acknowledging the receipt of BPI
Check No. D-6980 in the amount of
Page
P47,355.29 from Don Jesus Alsua in
payment of Balance of Transfer of Tax Ass. that the sales were effected by a father to
No. EA-35415-19 plus interest. We are her daughter in which case filial love must
convinced and satisfied from this array of be taken into account.
documentary evidence that in fact, Don
Jesus sold the subject properties to his WHEREFORE, IN VIEW OF THE
daughter, Francisca for the total FOREGOING, the decision appealed from
consideration of P150,000.00. is hereby set aside. The decision of the
Court of First Instance Of Albay in Special
The claim of the private respondents that Proceedings No. 699 and Civil Case No.
the sales were fictitious and void for being 3068 is hereby reinstated, with costs
without cause or consideration is as weak against respondents.
and flimsy as the ground upon which the
respondent court upheld said claim on the SO ORDERED.
basis that there was no need for funds in
Don Jesus' old age aside from the
speculation that there was nothing in the
evidence that showed what motivated Don
Jesus to change his mind as to favor
Francesca and discriminate against the
other children. The two contracts of same
executed by Don Jesus in favor of
Francesca are evidenced by Exhibits "U"
and "W", the genuineness of which were
not at all assailed at any time during this
long drawn-out litigation of 15 years
standing. That the consideration stated in
the contracts were paid is also sufficiently
proved as the receipts thereof by Don
Jesus were even signed by one of the
private respondents, Pablo Alsua, as a
witness. The latter cannot now deny the
payment of the consideration And even of
he now allege that in fact no transfer of
money was involved, We find his allegation
belied by Exhibits "X-3 " and "X-5 ", which
show that the checks of Francisco made
payable to Don Jesus. were in fact given to
Don Jesus as he endorsed them on the
back thereof, and most specifically Exhibit
"A" in the annulment case, which proved
that Don Jesus actually used Exhibit "XI " to
complete payment on the estate and
inheritance tax on the estate of his wife to
the Bureau of Internal Revenue.

Private respondents further insist that the

sales were fraudulent because of the
inadequacy of the given price. Inadequacy
of consideration does not vitiate a contract
unless it is proven which in the case at bar
was not, that there was fraud, mistake or
undue influence. (Article 1355, New Civil
Code). We do not find the stipulated price
as so inadequate to shock the court's
63

conscience, considering that the price paid

was much higher than the assessed value
Page

of the subject properties and considering

[G.R. No. 124715. January 24, 2000] the estate of Pastor Y. Lim, then filed a
motion[6] for the lifting of lis pendens and
RUFINA LUY LIM petitioner, vs. COURT motion[7] for exclusion of certain properties
OF APPEALS, AUTO TRUCK TBA from the estate of the decedent.
CORPORATION, SPEED DISTRIBUTING,
INC., ACTIVE DISTRIBUTORS, In an order[8] dated 08 June 1995, the
ALLIANCE MARKETING Regional Trial Court of Quezon City,
CORPORATION, ACTION COMPANY, Branch 93, sitting as a probate court,
INC. respondents. granted the private respondents twin
motions, in this wise:
DECISION
"Wherefore, the Register of
BUENA, J.: Deeds of Quezon City is
hereby ordered to lift, expunge
May a corporation, in its universality, be the or delete the annotation of lis
proper subject of and be included in the pendens on Transfer
inventory of the estate of a deceased Certificates of Title Nos.
person? 116716, 116717, 116718,
116719 and 5182 and it is
Petitioner disputes before us through the hereby further ordered that the
instant petition for review on certiorari, the properties covered by the
decision[1] of the Court of Appeals same titles as well as those
promulgated on 18 April 1996, in CA-GR properties by (sic) Transfer
SP No. 38617, which nullified and set aside Certificate of Title Nos.
the orders dated 04 July 1995[2], 12 613494, 363123, 236236 and
September 1995[3] and 15 September 263236 are excluded from
1995[4] of the Regional Trial Court of these proceedings.
Quezon City, Branch 93, sitting as a
probate court. SO ORDERED."

Petitioner Rufina Luy Lim is the surviving Subsequently, Rufina Luy Lim filed a
spouse of the late Pastor Y. Lim whose verified amended petition[9] which contained
estate is the subject of probate proceedings the following averments:
in Special Proceedings Q-95-23334,
entitled, "In Re: Intestate Estate of Pastor "3. The late Pastor Y. Lim
Y. Lim Rufina Luy Lim, represented by personally owned during his
George Luy, Petitioner". lifetime the following business
entities, to wit:
Private respondents Auto Truck
Corporation, Alliance Marketing Business Entity Address:
Corporation, Speed Distributing, Inc.,
Active Distributing, Inc. and Action XXXX
Company are corporations formed,
organized and existing under Philippine Alliance Marketing ,Inc. Block
laws and which owned real properties 3, Lot 6, Dacca
covered under the Torrens system.
BF Homes,
On 11 June 1994, Pastor Y. Lim died
intestate. Herein petitioner, as surviving Paraaque,
spouse and duly represented by her
nephew George Luy, filed on 17 March Metro Manila.
1995, a joint petition[5] for the administration
of the estate of Pastor Y. Lim before the XXXX
Regional Trial Court of Quezon City.
Speed Distributing Inc. 910
64

Private respondent corporations, whose Barrio Niog,

Page

properties were included in the inventory of

Aguinaldo Highway, Intestate Bank (formerly
Producers Bank), Rizal
Bacoor, Cavite. Commercial Banking
Corporation and in other banks
XXXX whose identities are yet to be
determined.
Auto Truck TBA Corp. 2251
Roosevelt Avenue, "5. That the following real
properties, although registered
Quezon City. in the name of the above
entities, were actually acquired
XXXX by Pastor Y. Lim during his
marriage with petitioner, to wit:
Active Distributors, Inc. Block
3, Lot 6, Dacca BF Corporation Title Location
Homes, Paraaque, XXXX
Metro Manila. k. Auto Truck TCT No.
617726 Sto. Domingo
XXXX
TBA Corporation Cainta, Rizal
Action Company 100 20th
Avenue q. Alliance Marketing TCT No.
27896 Prance,
Murphy, Quezon City
Metro Manila
or
Copies of the above-
92-D Mc-Arthur Highway mentioned Transfer Certificate
of Title and/or Tax
Valenzuela Bulacan. Declarations are hereto
attached as Annexes "C" to
"3.1 Although the above
"W".
business entities dealt and
engaged in business with the XXXX
public as corporations, all their
capital, assets and equity were "7. The aforementioned
however, personally owned by properties and/or real interests
the late Pastor Y Lim. Hence left by the late Pastor Y. Lim,
the alleged stockholders and are all conjugal in nature,
officers appearing in the having been acquired by him
respective articles of during the existence of his
incorporation of the above marriage with petitioner.
business entities were mere
dummies of Pastor Y. Lim, and "8. There are other real and
they were listed therein only for personal properties owned by
purposes of registration with Pastor Y. Lim which petitioner
the Securities and Exchange could not as yet identify.
Commission. Petitioner, however will submit
to this Honorable Court the
"4. Pastor Lim, likewise, had identities thereof and the
Time, Savings and Current necessary documents covering
Deposits with the following the same as soon as possible."
banks: (a) Metrobank, Grace
65

Park, Caloocan City and

Quezon Avenue, Quezon City
Page

Branches and (b) First

On 04 July 1995, the Regional Trial Court
acting on petitioners motion issued an
order[10], 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
[11]
administrator 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 order[12] 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 SECs 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 order[13] 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 certiorari[14], 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,
66
finding in favor of herein private
Page
respondents, rendered the assailed
decision[15], 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.
The provisions of Republic Act 7691[17],
which introduced amendments to Batas
Pambansa Blg. 129, are pertinent:
"Section 1. Section 19 of
Batas Pambansa Blg. 129,
otherwise known as the
"Judiciary Reorganization Act
of 1980", is hereby amended
to read as follows:
Section 19. Jurisdiction in civil
cases. Regional Trial Courts
shall exercise exclusive
jurisdiction:
xxx xxx xxx

SO ORDERED." (4) In all matters of probate,

both testate and intestate,
Through the expediency of Rule 45 of the where the gross value of the
Rules of Court, herein petitioner Rufina Luy estate exceeds One Hundred
Lim now comes before us with a lone Thousand Pesos (P100,000)
assignment of error[16]: or, in probate matters in Metro
Manila, where such gross
"The respondent Court of value exceeds Two Hundred
Appeals erred in reversing the Thousand Pesos (P200,000);
orders of the lower court which
merely allowed the preliminary xxx xxx xxx
or provisional inclusion of the
private respondents as part of Section 3. Section 33 of the
the estate of the late deceased same law is hereby amended
(sic) Pastor Y. Lim with the to read as follows:
respondent Court of Appeals
arrogating unto itself the power Section 33.
to repeal, to disobey or to Jurisdiction of
ignore the clear and explicit Metropolitan Trial
provisions of Rules 81,83,84 Courts, Municipal
and 87 of the Rules of Court Trial Courts and
and thereby preventing the Municipal Circuit
petitioner, from performing her Trial Courts in
duty as special administrator of Civil Cases.-
the estate as expressly Metropolitan Trial
provided in the said Rules." Courts, Municipal
Trial Courts and
Petitioners contentions tread on perilous Municipal Circuit
grounds. Trial Courts shall
exercise:
In the instant petition for review, petitioner
prays that we affirm the orders issued by 1. Exclusive
the probate court which were subsequently original jurisdiction
set aside by the Court of Appeals. over civil actions
and probate
Yet, before we delve into the merits of the proceedings,
case, a review of the rules on jurisdiction testate and
67

over probate proceedings is indeed in intestate, including

Page

order. the grant of

provisional arose out of the
remedies in same or different
proper cases, transactions;
where the value of
the personal xxx xxx xxx"
property, estate or
amount of the Simply put, the determination of which
demand does not court exercises jurisdiction over matters of
exceed One probate depends upon the gross value of
Hundred the estate of the decedent.
Thousand
Pesos(P100,000) As to the power and authority of the
or, in Metro Manila probate court, petitioner relies heavily on
where such the principle that a probate court may pass
personal property, upon title to certain
estate or amount properties, albeit provisionally, for the
of the demand purpose of determining whether a certain
does not exceed property should or should not be included
Two Hundred in the inventory.
Thousand Pesos
(P200,000), In a litany of cases, We defined the
exclusive of parameters by which the court may extend
interest, damages its probing arms in the determination of the
of whatever kind, question of title in probate proceedings.
attorneys fees,
litigation expenses This Court, in PASTOR, JR. vs. COURT
and costs, the OF APPEALS,[18] held:
amount of which
must be "X X X As a rule, the question
specifically of ownership is an extraneous
alleged, Provided, matter which the probate court
that interest, cannot resolve with finality.
damages of Thus, for the purpose of
whatever kind, determining whether a certain
attorneys, property should or should not
litigation expenses be included in the inventory of
and costs shall be estate properties, the Probate
included in the Court may pass upon the title
determination of thereto, but such determination
the filing fees, is provisional, not conclusive,
Provided further, and is subject to the final
that where there decision in a separate action to
are several claims resolve title."
or causes of
We reiterated the rule in PEREIRA vs.
actions between
COURT OF APPEALS[19]:
the same or
different parties,
"X X X The function of
embodied in the
resolving whether or not a
same complaint,
certain property should be
the amount of the
included in the inventory or list
demand shall be
of properties to be
the totality of the
administered by the
claims in all the
administrator is one clearly
causes of action,
within the competence of the
68

irrespective of
probate court. However, the
whether the
Page

courts determination is only

causes of action
 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
CAVITE[20] citing CUIZON vs.
[21]
RAMOLETE , We made an exposition on
the probate courts 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. INSERTO[22], We
had occasion to elucidate, through Mr.
Justice Andres Narvasa[23]:
"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. x x x
x x x. These considerations
assume greater cogency
where, as here, the Torrens
title is not in the decedents
name but in others, a
situation on which this Court
has already had occasion to
rule x x x."(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
69
in the manner indicated in the
Page
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. x x x"
"x x x. 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. x x x"
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
Section 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:
"x x x 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. x x
x"
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
70
probate court in effect acted in utter
Page
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
decedents 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
[25]
case. Petitioner thus attached as
[26] [27]
Annexes "F" and "G" 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 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
APPEALS[29], We enunciated:
"x x x 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. x x
x"
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
71
"piercing the corporate veil".[32]
Page
Mere ownership by a single stockholder or witness stand to testify
by another corporation of all or nearly all of thereon."
the capital stock of a corporation is not of
itself a sufficient reason for disregarding the As to the order[36] of the lower court, dated
fiction of separate corporate 15 September 1995, the Court of Appeals
[33]
personalities. correctly observed that the Regional Trial
Court, Branch 93 acted without jurisdiction
Moreover, to disregard the separate in issuing said order; The probate court had
juridical personality of a corporation, the no authority to demand the production of
wrong-doing must be clearly and bank accounts in the name of the private
convincingly established. It cannot be respondent corporations.
presumed.[34]
WHEREFORE, in view of the foregoing
Granting arguendo that the Regional Trial disquisitions, the instant petition is hereby
Court in this case was not merely acting in DISMISSED for lack of merit and the
a limited capacity as a probate court, decision of the Court of Appeals which
petitioner nonetheless failed to adduce nullified and set aside the orders issued by
competent evidence that would have the Regional Trial Court, Branch 93, acting
justified the court to impale the veil of as a probate court, dated 04 July 1995 and
corporate fiction. Truly, the reliance 12 September 1995 is AFFIRMED.
reposed by petitioner on the affidavits
executed by Teresa Lim and Lani SO ORDERED.
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.
[35]
LEONIDAS 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 affiants 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
72

themselves are placed on the

Page
G.R. No. L-12767 November 16,
1918
In the matter of the estate of EMIL H.
JOHNSON. EBBA INGEBORG
JOHNSON, applicant-appellant, Hartigan &
Welch for applicant and appellant.
Hartford Beaumont for Victor Johnson and
others as appellees.
Chas. E. Tenney for Alejandra Ibañez de
Johnson, personally and as guardian,
and for Simeona Ibañez, appellees.
STREET, J.:
On February 4, 1916, Emil H. Johnson, a
native of Sweden and a naturalized citizen
of the United States, died in the city of
Manila, leaving a will, dated September 9,
1915, by which he disposed of an estate,
the value of which, as estimated by him,
was P231,800. This document is an
holographic instrument, being written in the
testator's own handwriting, and is signed by
himself and two witnesses only, instead of
three witnesses required by section 618 of
the Code of Civil Procedure. This will,
therefore, was not executed in conformity
with the provisions of law generally
applicable to wills executed by inhabitants
of these Islands, and hence could not have
been proved under section 618.
On February 9, 1916, however, a petition
was presented in the Court of First Instance
of the city of Manila for the probate of this
will, on the ground that Johnson was at the
time of his death a citizen of the State of
Illinois, United States of America; that the
will was duly executed in accordance with
the laws of that State; and hence could
properly be probated here pursuant to
section 636 of the Code of Civil Procedure.
This section reads as follows:
Will made here by alien. — A will
made within the Philippine Islands by
a citizen or subject of another state
or country, which is executed in
accordance with the law of the state
or country of which he is a citizen or
subject, and which might be proved
and allowed by the law of his own
state or country, may be proved,
allowed, and recorded in the
Philippine Islands, and shall have the
same effect as if executed according
to the laws of these Islands.
The hearing on said application was set for
March 6, 1916, and three weeks publication
of notice was ordered in the "Manila Daily
Bulletin." Due publication was made
pursuant to this order of the court. On
March 6, 1916, witnesses were examined
relative to the execution of the will; and
upon March 16th thereafter the document
was declared to be legal and was admitted
to probate. At the same time an order was
made nominating Victor Johnson and John
T. Pickett as administrators of the estate,
with the sill annexed. Shortly thereafter
Pickett signified his desire not to serve, and
Victor Johnson was appointed sole
administrator.
By the will in question the testator gives to
his brother Victor one hundred shares of
the corporate stock in the Johnson-Pickett
Rope Company; to his father and mother in
Sweden, the sum of P20,000; to his
daughter Ebba Ingeborg, the sum of
P5,000; to his wife, Alejandra Ibañez, the
sum of P75 per month, if she remains
single; to Simeona Ibañez, spinster, P65
per month, if she remains single. The rest
of the property is left to the testator's five
children — Mercedes, Encarnacion, Victor,
Eleonor and Alberto.
The biographical facts relative to the
deceased necessary to an understanding
of the case are these: Emil H. Johnson was
born in Sweden, May 25, 1877, from which
country he emigrated to the United States
and lived in Chicago, Illinois, from 1893 to
1898. On May 9, 1898, at Chicago, he was
married to Rosalie Ackeson, and
immediately thereafter embarked for the
Philippine Islands as a soldier in the Army
of the United States. As a result of relations
between Johnson and Rosalie Ackeson a
daughter, named Ebba Ingeborg, was born
a few months after their marriage. This
child was christened in Chicago by a pastor
of the Swedish Lutheran Church upon
October 16, 1898.
After Johnson was discharged as a soldier
from the service of the United States he
continued to live in the Philippine Islands,
73
and on November 20, 1902, the wife,
Page
Rosalie Johnson, was granted a decree of
divorce from him in the Circuit Court of
Cook County, Illinois, on the ground of
desertion. A little later Johnson appeared in
the United States on a visit and on January
10, 1903, procured a certificate of
naturalization at Chicago. From Chicago he
appears to have gone to Sweden, where a
photograph, exhibited in evidence in this
case, was taken in which he appeared in a
group with his father, mother, and the little
daughter, Ebba Ingeborg, who was then
living with her grandparents in Sweden.
When this visit was concluded, the
deceased returned to Manila, where he
prospered in business and continued to live
until his death.
In this city he appears to have entered into
marital relations with Alejandra Ibañez, by
whom he had three children, to wit,
Mercedes, baptized May 31, 1903;
Encarnacion, baptized April 29, 1906; and
Victor, baptized December 9, 1907. The
other two children mentioned in the will
were borne to the deceased by Simeona
Ibañez.
On June 12, 1916, or about three months
after the will had been probated, the
attorneys for Ebba Ingeborg Johnson
entered an appearance in her behalf and
noted an exception to the other admitting
the will to probate. On October 31, 1916,
the same attorneys moved the court to
vacate the order of March 16 and also
various other orders in the case. On
February 20, 1917, this motion was denied,
and from this action of the trial court the
present appeal has been perfected.
As will be discerned, the purpose of the
proceeding on behalf of the petitioner is to
annul the decree of probate and put the
estate into intestate administration, thus
preparing the way for the establishment of
the claim of the petitioner as the sole
legitimate heir of her father.
The grounds upon which the petitioner
seeks to avoid the probate are four in
number and may be stated, in the same
sequence in which they are set forth in the
petition, as follows:
(1) Emil H. Johnson was a resident of the
city of Manila and not a resident of the
State of Illinois at the time the will in
question was executed;
(2) The will is invalid and inadequate to
pass real and personal property in the
State of Illinois;
(3) The order admitting the will to probate
was made without notice to the petitioner;
and
(4) The order in question was beyond the
jurisdiction of the court.
It cannot of course be maintained that a
court of first instance lacks essential
jurisdiction over the probate of wills. The
fourth proposition above stated must,
accordingly, be interpreted in relation with
the third and must be considered as a
corollary deduced from the latter.
Moreover, both the third and fourth grounds
stated take precedence, by reason of their
more fundamental implications, over the
first two; and a logical exposition of the
contentions of the petitioner is expressed in
the two following propositions:
(I) The order admitting the will to
probate was beyond the jurisdiction
of the court and void because made
without notice to the petitioner;
(II) The judgment from which the
petitioner seeks relief should be set
aside because the testator was not a
resident of the State of Illinois and
the will was not in conformity with the
laws of that State.
In the discussion which is to follow we shall
consider the problems arising in this cae in
the order last above indicated. Upon the
question, then, of the jurisdiction of the
court, it is apparent from an inspection of
the record of the proceedings in the court
below that all the steps prescribed by law
as prerequisites to the probate of a will
were complied with in every respect and
that the probate was effected in external
conformity with all legal requirements. This
much is unquestioned. It is, however,
pointed out in the argument submitted in
behalf of the petitioner, that, at the time the
court made the order of publication, it was
74
apprised of the fact that the petitioner lived
Page
in the United States and that as daughter
and heir she was necessarily interested in
the probate of the will. It is, therefore,
insisted that the court should have
appointed a date for the probate of the will
sufficiently far in the future to permit the
petitioner to be present either in person or
by representation; and it is said that the
failure of the court thus to postpone the
probate of the will constitutes an
infringement of that provision of the
Philippine Bill which declared that property
shall not be taken without due process of
law.
On this point we are of the opinion that the
proceedings for the probate of the will were
regular and that the publication was
sufficient to give the court jurisdiction to
entertain the proceeding and to allow the
will to be probated.
As was said in the case of In re Davis (136
Cal., 590, 596), "the proceeding as to the
probate of a will is essentially one in rem,
and in the very nature of things the state is
allowed a wide latitude in determining the
character of the constructive notice to be
given to the world in a proceeding where it
has absolute possession of the res. It
would be an exceptional case where a
court would declare a statute void, as
depriving a party of his property without
due process of law, the proceeding being
strictly in rem, and the res within the state,
upon the ground that the constructive
notice prescribed by the statute was
unreasonably short."
In that case the petitioner had been
domiciled in the Hawaiian Islands at the
time of the testator's death; and it was
impossible, in view of the distance and
means of communication then existing, for
the petitioner to appear and oppose the
probate on the day set for the hearing in
California. It was nevertheless held that
publication in the manner prescribed by
statute constituted due process of law.
(See Estate of Davis, 151 Cal., 318;
Tracy vs. Muir, 151 Cal., 363.)
In the Davis case (136 Cal., 590) the court
commented upon the fact that, under the
laws of California, the petitioner had a full
year within which she might have instituted
a proceeding to contest the will; and this
was stated as one of the reasons for
holding that publication in the manner
provided by statute was sufficient. The
same circumstance was commented upon
in O'Callaghan vs. O'Brien (199 U. S., 89),
decided in the Supreme Court of the United
States. This case arose under the laws of
the State of Washington, and it was alleged
that a will had been there probated without
the notice of application for probate having
been given as required by law. It was
insisted that this was an infringement of the
Fourteenth Amendment of the Constitution
of the United States. This contention was,
however, rejected and it was held that the
statutory right to contest the will within a
year was a complete refutation of the
argument founded on the idea of a violation
of the due process provision.
The laws of these Islands, in contrast with
the laws in force in perhaps all of the States
of the American Union, contain no special
provision, other than that allowing an
appeal in the probate proceedings, under
which relief of any sort can be obtained
from an order of a court of first instance
improperly allowing or disallowing a will.
We do, however, have a provision of a
general nature authorizing a court under
certain circumstances to set aside any
judgment, order, or other proceeding
whatever. This provision is found in section
113 of the Code of Civil Procedure, which
reads as follows:
Upon such terms as may be just the
court may relieve a party or his legal
representative from a judgment,
order or other proceeding taken
against him through his mistake,
inadvertence, surprise or excusable
neglect; Provided, That application
therefor be made within a reasonable
time, but in no case exceeding six
months after such judgment, order,
or proceeding was taken.
The use of the word "judgment, order or
other proceeding" in this section indicates
an intention on the part of the Legislature to
give a wide latitude to the remedy here
provided, and in our opinion its operation is
not to be restricted to judgments or orders
entered in ordinary contentious litigation
where a plaintiff impleads a defendant and
75
brings him into court by personal service of
Page
process. In other words the utility of the
provision is not limited to actions proper but
extends to all sorts of judicial proceedings.
In the second section of the Code of Civil
Procedure it is declared that the provisions
of this Code shall be liberally construed to
promote its object and to assist the parties
in obtaining speedy justice. We think that
the intention thus exhibited should be
applied in the interpretation of section 113;
and we hold that the word "party," used in
this section, means any person having an
interest in the subject matter of the
proceeding who is in a position to be
concluded by the judgment, order, to other
proceeding taken.
The petitioner, therefore, in this case could
have applied, under the section cited, at
any time within six months for March 16,
1916, and upon showing that she had been
precluded from appearing in the probate
proceedings by conditions over which she
had no control and that the order admitting
the will to probate had been erroneously
entered upon insufficient proof or upon a
supposed state of facts contrary to the
truth, the court would have been authorized
to set the probate aside and grant a
rehearing. It is no doubt true that six
months was, under the circumstances, a
very short period of time within which to
expect the petitioner to appear and be
prepared to contest the probate with the
proof which she might have desired to
collect from remote countries.
Nevertheless, although the time allowed for
the making of such application was
inconveniently short, the remedy existed;
and the possibility of its use is proved in
this case by the circumstance that on June
12, 1916, she in fact here appeared in court
by her attorneys and excepted to the order
admitting the will to probate.
It results that, in conformity with the
doctrine announced in the Davis case,
above cited, the proceedings in the court
below were conducted in such manner as
to constitute due process of law. The law
supplied a remedy by which the petitioner
might have gotten a hearing and have
obtained relief from the order by which she
is supposed to have been injured; and
though the period within which the
application should have been made was
short, the remedy was both possible and
practicable.
From what has been said it follows that the
order of March 16, 1916, admitting the will
of Emil H. Johnson to probate cannot be
declared null and void merely because the
petitioner was unavoidably prevented from
appearing at the original hearing upon the
matter of the probate of the will in question.
Whether the result would have been the
same if our system of procedure had
contained no such provision as that
expressed in section 113 is a matter which
we need not here consider.
Intimately connected with the question of
the jurisdiction of the court, is another
matter which may be properly discussed at
this juncture. This relates to the
interpretation to be placed upon section
636 of the Code of Civil Procedure. The
position is taken by the appellant that this
section is applicable only to wills of liens;
and in this connection attention is directed
to the fact that the epigraph of this section
speaks only of the will made here by an
alien and to the further fact that the word
"state" in the body of the section is not
capitalized. From this it is argued that
section 636 is not applicable to the will of a
citizen of the United States residing in
these Islands.lawphil.net
We consider these suggestions of little
weight and are of the opinion that, by the
most reasonable interpretation of the
language used in the statute, the words
"another state or country" include the
United States and the States of the
American Union, and that the operation of
the statute is not limited to wills of aliens. It
is a rule of hermeneutics that punctuation
and capitalization are aids of low degree in
interpreting the language of a statute and
can never control against the intelligible
meaning of the written words. Furthermore,
the epigraph, or heading,, of a section,
being nothing more than a convenient
index to the contents of the provision,
cannot have the effect of limiting the
operative words contained in the body of
the text. It results that if Emil H. Johnson
was at the time of his death a citizen of the
United States and of the State of Illinois, his
76
will was provable under this section in the
Page
courts of the Philippine Islands, provided
the instrument was so executed as to be
admissible to probate under the laws of the
State of Illinois.
We are thus brought to consider the
second principal proposition stated at the
outset of this discussion, which raises the
question whether the order f probate can
be set aside in this proceeding on the other
ground stated in the petition, namely, that
the testator was not a resident of the State
of Illinois and that the will was not made in
conformity with the laws of that State.
The order of the Court of First Instance
admitting the will to probate recites, among
other things:
That upon the date when the will in
question was executed Emil H.
Johnson was a citizen of the United
States, naturalized in the State of
Illinois, County of Cook, and that the
will in question was executed in
conformity with the dispositions of the
law f the State of Illinois.
We consider this equivalent to a finding that
upon the date of the execution of the will
the testator was a citizen of the State of
Illinois and that the will was executed in
conformity with the laws of that State. Upon
the last point the finding is express; and in
our opinion the statement that the testator
was a citizen of the United States,
naturalized in the State of Illinois, should be
taken to imply that he was a citizen of the
State of Illinois, as well as of the United
States.
The naturalization laws of the United States
require, as a condition precedent to the
granting of the certificate of naturalization,
that the applicant should have resided at
least five years in the United States and for
one year within the State or territory where
the court granting the naturalization papers
is held; and in the absence of clear proof to
the contrary it should be presumed that a
person naturalized in a court of a certain
State thereby becomes a citizen of that
State as well as of the United States.
In this connection it should be remembered
that the Fourteenth Amendment to the
Constitution of the United States declares,
in its opening words, that all persons
naturalized in the United States, and
subject to the jurisdiction thereof, are
citizens of the United States and of the
State wherein they reside.
It is noteworthy that the petition by which it
is sought to annul the probate of this will
does not assert that the testator was not a
citizen of Illinois at the date when the will
was executed. The most that is said on this
point is he was "never a resident of the
State of Illinois after the year 1898, but
became and was a resident of the city of
Manila," etc. But residence in the Philippine
Islands is compatible with citizenship in
Illinois; and it must be considered that the
allegations of the petition on this point are,
considered in their bearing as an attempt to
refute citizenship in Illinois, wholly
insufficient.
As the Court of First Instance found that the
testator was a citizen of the State of Illinois
and that the will was executed in conformity
with the laws of that State, the will was
necessarily and properly admitted to
probate. And how is it possible to evade the
effect of these findings?
In Section 625 of the Code of Civil
Procedure it is declared that "the allowance
by the court of a will of real or personal
property shall be conclusive as to its due
execution."
The due execution of a will involves
conditions relating to a number of matters,
such as the age and mental capacity of the
testator, the signing of the document by the
testator, or by someone in his behalf, and
the acknowledgment of the instrument by
him in the presence of the required number
of witnesses who affix their signatures to
the will to attest the act. The proof of all
these requisites is involved in the probate;
and as to each and all of them the probate
is conclusive. (Castañeda vs. Alemany, 3
Phil. Rep., 426; Pimentel vs. Palanca, 5
Phil. Rep., 436; Chiong Joc-Soy vs. Vaño,
8 Phil. Rep., 119; Sanchez vs. Pascual, 11
Phil. Rep., 395; Montañano vs. Suesa, 14
Phil. Rep., 676.)
Our reported cases do not contain the
slightest intimation that a will which has
77
been probated according to law, and
Page
without fraud, can be annulled, in any other
proceeding whatever, on account of any
supposed irregularity or defect in the
execution of the will or on account of any
error in the action of the court upon the
proof adduced before it. This court has
never been called upon to decide whether,
in case the probate of a will should be
procured by fraud, relief could be granted in
some other proceeding; and no such
question is now presented. But it is readily
seen that if fraud were alleged, this would
introduce an entirely different factor in the
cae. In Austrua vs. Ventenilla (21 Phil.
Rep., 180, 184), it was suggested but not
decided that relief might be granted in case
the probate of a will were procured by
fraud.
The circumstance that the judgment of the
trial court recites that the will was executed
in conformity with the law of Illinois and
also, in effect, that the testator was a
citizen of that State places the judgment
upon an unassailable basis so far as any
supposed error apparent upon the fact of
the judgment is concerned. It is, however,
probable that even if the judgment had not
contained these recitals, there would have
been a presumption from the admission of
the will to probate as the will of a citizen of
Illinois that the facts were as recited in the
order of probate.
As was said by this court in the case of
Banco Español-Filipino vs. Palanca (37
Phil. Rep., 921), "There is no principle of
law better settled than that after jurisdiction
has once been acquired, every act of a
court of general jurisdiction shall be
presumed to have been rightly done. This
rule is applied to every judgment or decree
rendered in the various stages of the
proceedings from their initiation to their
completion (Voorhees vs. United States
Bank, 10 Pet., 314; 35 U. S., 449); and if
the record is silent with respect to any fact
which must have established before the
court could have rightly acted, it will be
presumed that such fact was properly
brought to its knowledge."
The Court of First Instance is a court of
original and general jurisdiction; and there
is no difference in its faculties in this
respect whether exercised in matters of
probate or exerted in ordinary contentious
litigation. The trial court therefore
necessarily had the power to determine the
facts upon which the propriety of admitting
the will to probate depended; and the
recital of those facts in the judgment was
probably not essential to its validity. No
express ruling is, however, necessary on
this point.
What has been said effectually disposes of
the petition considered in its aspect as an
attack upon the order of probate for error
apparent on the face of the record. But the
petitioner seeks to have the judgment
reviewed, it being asserted that the findings
of the trial court — especially on the
question of the citizenship of the testator —
are not supported by the evidence. It needs
but a moment's reflection, however, to
show that in such a proceeding as this it is
not possible to reverse the original order on
the ground that the findings of the trial court
are unsupported by the proof adduced
before that court. The only proceeding in
which a review of the evidence can be
secured is by appeal, and the case is not
before us upon appeal from the original
order admitting the will to probate. The
present proceedings by petition to set aside
the order of probate, and the appeal herein
is from the order denying this relief. It is
obvious that on appeal from an order
refusing to vacate a judgment it is not
possible to review the evidence upon which
the original judgment was based. To permit
this would operate unduly to protract the
right of appeal.
However, for the purpose of arriving at a
just conception of the case from the point of
view of the petitioner, we propose to
examine the evidence submitted upon the
original hearing, in connection with the
allegations of the petition, in order to see,
first, whether the evidence submitted to the
trial court was sufficient to justify its
findings, and, secondly, whether the
petition contains any matter which would
justify the court in setting the judgment,
aside. In this connection we shall for a
moment ignore the circumstance that the
petition was filed after the expiration of the
six months allowed by section 113 of the
Code of Civil Procedure.
The principal controversy is over the
78
citizenship of the testator. The evidence
Page
adduced upon this point in the trial court
consists of the certificate of naturalization
granted upon January 10, 1903, in the
Circuit Court of Cook County, Illinois, in
connection with certain biographical facts
contained in the oral evidence. The
certificate of naturalization supplies
incontrovertible proof that upon the date
stated the testator became a citizen of the
United States, and inferentially also a
citizen of said State. In the testimony
submitted to the trial court it appears that,
when Johnson first came to the United
States as a boy, he took up his abode in
the State of Illinois and there remained until
he came as a soldier in the United States
Army to the Philippine Islands. Although he
remained in these Islands for sometime
after receiving his discharge, no evidence
was adduced showing that at the time he
returned to the United States, in the
autumn of 1902, he had then abandoned
Illinois as the State of his permanent
domicile, and on the contrary the certificate
of naturalization itself recites that at that
time he claimed to be a resident of Illinois.
Now, if upon January 10, 1903, the testator
became a citizen of the United States and
of the State of Illinois, how has he lost the
character of citizen with respect to either of
these jurisdictions? There is no law in force
by virtue of which any person of foreign
nativity can become a naturalized citizen of
the Philippine Islands; and it was, therefore,
impossible for the testator, even if he had
so desired, to expatriate himself from the
United States and change his political
status from a citizen of the United States to
a citizen of these Islands. This being true, it
is to be presumed that he retained his
citizenship in the State of Illinois along with
his status as a citizen of the United States.
It would be novel doctrine to Americans
living in the Philippine Islands to be told
that by living here they lose their citizenship
in the State of their naturalization or
nativity.
We are not unmindful of the fact that when
a citizen of one State leaves it and takes up
his abode in another State with no intention
of returning, he immediately acquires
citizenship in the State of his new domicile.
This is in accordance with that provision of
the Fourteenth Amendment to the
Constitution of the United States which
says that every citizen of the United States
is a citizen of the State where in he resides.
The effect of this provision necessarily is
that a person transferring his domicile from
one State to another loses his citizenship in
the State of his original above upon
acquiring citizenship in the State of his new
abode. The acquisition of the new State
citizenship extinguishes the old. That
situation, in our opinion, has no analogy to
that which arises when a citizen of an
American State comes to reside in the
Philippine Islands. Here he cannot acquire
a new citizenship; nor by the mere change
of domicile does he lose that which he
brought with him.
The proof adduced before the trial court
must therefore be taken as showing that, at
the time the will was executed, the testator
was, as stated in the order of probate, a
citizen of the State of Illinois. This, in
connection with the circumstance that the
petition does not even so much as deny
such citizenship but only asserts that the
testator was a resident of the Philippine
Islands, demonstrates the impossibility of
setting the probate aside for lack of the
necessary citizenship on the part of the
testator. As already observed, the
allegation of the petition on this point is
wholly insufficient to justify any relief
whatever.
Upon the other point — as to whether the
will was executed in conformity with the
statutes of the State of Illinois — we note
that it does not affirmatively appear from
the transaction of the testimony adduced in
the trial court that any witness was
examined with reference to the law of
Illinois on the subject of the execution of
will. The trial judge no doubt was satisfied
that the will was properly executed by
examining section 1874 of the Revised
Statutes of Illinois, as exhibited in volume 3
of Starr & Curtis's Annotated Illinois
Statutes, 2nd ed., p. 426; and he may have
assumed that he could take judicial notice
of the laws of Illinois under section 275 of
the Code of Civil Procedure. If so, he was
in our opinion mistaken. that section
authorizes the courts here to take judicial
notice, among other things, of the acts of
the legislative department of the United
79
States. These words clearly have reference
to Acts of the Congress of the United
Page
States; and we would hesitate to hold that
our courts can, under this provision, take
judicial notice of the multifarious laws of the
various American States. Nor do we think
that any such authority can be derived from
the broader language, used in the same
action, where it is said that our courts may
take judicial notice of matters of public
knowledge "similar" to those therein
enumerated. The proper rule we think is to
require proof of the statutes of the States of
the American Union whenever their
provisions are determinative of the issues
in any action litigated in the Philippine
courts.
Nevertheless, even supposing that the trial
court may have erred in taking judicial
notice of the law of Illinois on the point in
question, such error is not now available to
the petitioner, first, because the petition
does not state any fact from which it would
appear that the law of Illinois is different
from what the court found, and, secondly,
because the assignment of error and
argument for the appellant in this court
raises no question based on such
supposed error. Though the trial court may
have acted upon pure conjecture as to the
law prevailing in the State of Illinois, its
judgment could not be set aside, even upon
application made within six months under
section 113 of the Code of Civil procedure,
unless it should be made to appear
affirmatively that the conjecture was wrong.
The petitioner, it is true, states in general
terms that the will in question is invalid and
inadequate to pass real and personal
property in the State of Illinois, but this is
merely a conclusion of law. The affidavits
by which the petition is accompanied
contain no reference to the subject, and we
are cited to no authority in the appellant's
brief which might tent to raise a doubt as to
the correctness of the conclusion of the trial
court. It is very clear, therefore, that this
point cannot be urged as of serious
moment.
But it is insisted in the brief for the appellant
that the will in question was not properly
admissible to probate because it contains
provisions which cannot be given effect
consistently with the laws of the Philippine
Islands; and it is suggested that as the
petitioner is a legitimate heir of the testator
she cannot be deprived of the legitime to
which she is entitled under the law
governing testamentary successions in
these Islands. Upon this point it is sufficient
to say that the probate of the will does not
affect the intrinsic validity of its provisions,
the decree of probate being conclusive only
as regards the due execution of the will.
(Code of Civil Procedure, secs. 625, 614;
Sahagun vs. De Gorostiza, 7 Phil. Rep.,
347, 349; Chiong Joc-Soy vs. Vaño, 8 Phil.
Rep., 119, 121; Limjuco vs. Ganara, 11
Phil. Rep., 393, 395.)
If, therefore, upon the distribution of this
estate, it should appear that any legacy
given by the will or other disposition made
therein is contrary to the law applicable in
such case, the will must necessarily yield
upon that point and the law must prevail.
Nevertheless, it should not be forgotten that
the intrinsic validity of the provisions of this
will must be determined by the law of
Illinois and not, as the appellant apparently
assumes, by the general provisions here
applicable in such matters; for in the
second paragraph of article 10 of the Civil
Code it is declared that "legal and
testamentary successions, with regard to
the order of succession, as well as to the
amount of the successional rights and to
the intrinsic validity of their provisions, shall
be regulated by the laws of the nation of
the person whose succession is in
question, whatever may be the nature of
the property and the country where it may
be situate."
From what has been said, it is, we think,
manifest that the petition submitted to the
court below on October 31, 1916, was
entirely insufficient to warrant the setting
aside of the other probating the will in
question, whether said petition be
considered as an attack on the validity of
the decree for error apparent, or whether it
be considered as an application for a
rehearing based upon the new evidence
submitted in the affidavits which
accompany the petition. And in this latter
aspect the petition is subject to the further
fatal defect that it was not presented within
the time allowed by law. It follows that the
trial court committed no error in denying the
relief sought. The order appealed from is
accordingly affirmed with costs. So
80
ordered.
Page
G.R. No. L-29184 January 30, 1989
BENEDICTO LEVISTE, petitioner,
vs.
THE COURT OF APPEALS, HON. JUDGE
LUIS B. REYES, COURT OF FIRST
INSTANCE OF MANILA, ROSA DEL
ROSARIO, RITA BANU, CARMEN DE
GUZMAN-MARQUEZ, JESUS R. DE
GUZMAN, RAMON R. DE GUZMAN,
JACINTO R. DE GUZMAN and ANTONIO
R. DE GUZMAN, respondents.
Benedicto Leviste for and in his own behalf.
Gatchalian, Ignacio & Associates for
respondents de Guzman.
GRIÑO-AQUINO, J.:
The issue in this case is whether or not an
attorney who was engaged on a contingent
fee basis may, in order to collect his fees,
prosecute an appeal despite his client's
refusal to appeal the decision of the trial
court.
On September 7, 1963, the petitioner, a
practicing attorney, entered into a written
agreement with the private respondent
Rosa del Rosario to appear as her counsel
in a petition for probate of the holographic
will of the late Maxima C. Reselva. Under
the will, a piece of real property at Sales
Street, Quiapo, Manila, was bequeathed to
Del Rosario. It was agreed that petitioner's
contigent fee would be thirty-five per cent
(35%) of the property that Rosa may
receive upon the probate of the will (Annex
"A", p. 59, Rollo).
In accordance with their agreement, Leviste
performed the following services as Del
Rosario's counsel:
(1) Thoroughly researched and
studied the law on probate and
succession;
(2) Looked for and interviewed
witnesses, and took their
affidavits;
(3) Filed the petition for.
probate is Special Proceeding
No. 58325;
(4) Made the proper
publications;
(5) Presented at the trial the
following witnesses:
a) Eleuterio de Jesus
b) Lucita de Jesus
c) Purita L. Llanes
d) Rita Banu
e) Jesus Lulod.
On August 20, 1965, Leviste received a
letter from Ms. Del Rosario, informing him
that she was terminating his services as
her counsel due to "conflicting interest."
This consisted, according to the letter, in
petitioner's moral obligation to protect the
interest of his brother-in-law, Gaudencio M.
Llanes, whom Del Rosario and the other
parties in the probate proceeding intended
to eject as lessee of the property which was
bequeathed to Del Rosario under the will
(Annex "B", p. 60, Rollo).
On September 20, 1965, petitioner filed a
"Motion to Intervene to Protect His Rights
to Fees for Professional Services." (Annex
"B", p. 60, Rollo.)
In an order dated November 12, 1965 the
trial court denied his motion on the ground
that he had "not filed a claim for attorney's
fees nor recorded his attorney's lien." (p. 3,
Rollo.)
On November 23, 1965, petitioner filed a
"Formal Statement of Claim for Attorney's
Fees and Recording of Attorney's Lien,'
which was noted in the court's order of
December 20, 1965 (Annexes "D" and "E",
pp. 63 & 64, Rollo).
Although the order denying his motion to
intervene had become final, petitioner
continued to receive copies of the court's
orders, as well the pleadings of the other
81
parties in the case. He also continued to file
Page
pleadings. The case was submitted for
decision without the respondents' evidence.
On November 23, 1966, Del Rosario and
Rita Banu, the special administratrix-
legatee, filed a "Motion To Withdraw
Petition for Probate" alleging that Del
Rosario waived her rights to the devise in
her favor and agreed that the De Guzman
brothers and sisters who opposed her
petition for probate, shall inherit all the
properties left by the decedent. (Annex "F",
p. 65, Rollo.)
In an order of April 13, 1967 the trial court
denied the motion to withdraw the petition
for being contrary to public policy (Annex
"G", pp. 66-67, Rollo).
Nonetheless, on August 28, 1967, the court
disallowed the will, holding that the legal
requirements for its validity were not
satisfied as only two witnesses testified that
the will and the testatrix's signature were in
the handwriting of Maxima Reselva.
The petitioner filed an appeal bond, notice
of appeal, and record on appeal. The
private respondents filed a motion to
dismiss the appeal on the ground that
petitioner was not a party in interest.
The petitioner opposed the motion to
dismiss his appeal, claiming that he has a
direct and material interest in the decision
sought to be reviewed. He also asked that
he be substituted as party-petitioner, in lieu
of his former client, Ms. Del Rosario.
On March 28, 1968, the trial judge
dismissed the appeal and denied
petitioner's motion for substitution.
The petitioner filed in the Court of Appeals
a petition for mandamus (CA-G.R. No.
41248) praying that the trial court be
ordered to give due course to his appeal
and to grant his motion for substitution.
On May 22, 1968, the Court of Appeals
dismissed the petition for being insufficient
in form and substance as the petitioner did
not appear to be the proper party to appeal
the decision in Special Proceeding No.
58325 (Annex 1, p. 77, Rollo).
Upon the denial of his motion for
reconsideration, petitioner appealed by
certiorari to this Court, assigning the
following errors against the Court of
Appeals' resolution:
1. The Court of Appeals erred
in finding that the petitioner
appears not to be the proper
party to appeal the decision in
Sp. Proc. No. 58325 of the
Court of First Instance of
Manila.
2. Assuming the petitioner's
right of appeal is doubtful, the
Court of Appeals erred in
dismissing his petition for
mandamus; and
3. The Court of Appeals erred
in not reversing the decision in
Sp. Proc. No. 58325 denying
the probate of the holographic
will of the late Maxima C.
Reselva, said decision being
patently erroneous.
Under his first assignment of error,
petitioner argues that by virtue of his
contract of services with Del Rosario, he is
a creditor of the latter, and that under
Article 1052 of the Civil Code which
provides:
ART. 1052. If the heir
repudiates the inheritance to
the prejudice of his own
creditors, the latter may
petition the court to authorize
them to accept it in the name
of the heir.
The acceptance shall benefit
the creditors only to an extent
sufficient to cover the amount
of their credits. The excess,
should there be any, shall in no
case pertain to the renouncer,
but shall be adjudicated to the
persons to whom, in
accordance with the rules
established in this Code, it may
belong.
82
he has a right to accept for his client Del
Page
Rosario to the extent of 35% thereof the
devise in her favor (which she in effect
repudiated) to protect his contigent
attorney's fees.
The argument is devoid of merit. Article
1052 of the Civil Code does not apply to
this case. That legal provision protects the
creditor of a repudiating heir. Petitioner is
not a creditor of Rosa del Rosario. The
payment of his fees is contingent and
dependent upon the successful probate of
the holographic will. Since the petition for
probate was dismissed by the lower court,
the contingency did not occur. Attorney
Leviste is not entitled to his fee.
Furthermore, Article 1052 presupposes that
the obligor is an heir. Rosa del Rosario is
not a legal heir of the late Maxima C.
Reselva. Upon the dismissal of her petition
for probate of the decedent's will, she lost
her right to inherit any part of the latter's
estate. There is nothing for the petitioner to
accept in her name.
This Court had ruled in the case of Recto
vs. Harden, 100 Phil. 1427, that "the
contract (for contingent attorney's fees)
neither gives, nor purports to give, to the
appellee (lawyer) any right whatsoever,
personal or real, in and to her (Mrs.
Harden's) aforesaid share in the conjugal
partnership. The amount thereof is simply
a basis for the computation of said fees."
The Court of Appeals did not err in
dismissing the petition for mandamus, for
while it is true that, as contended by the
petitioner, public policy favors the probate
of a will, it does not necessarily follow that
every will that is presented for probate,
should be allowed. The law lays down
procedures which should be observed and
requisites that should be satisfied before a
will may be probated. Those procedures
and requirements were not followed in this
case resulting in the disallowance of the
will. There being no valid will, the motion to
withdraw the probate petition was
inconsequential.
Petitioner was not a party to the probate
proceeding in the lower court. He had no
direct interest in the probate of the will. His
only interest in the estate is an indirect
interest as former counsel for a prospective
heir. In Paras vs. Narciso, 35 Phil. 244, We
had occassion to rule that one who is only
indirectly interested in a will may not
interfere in its probate. Thus:
... the reason for the rule
excluding strangers from
contesting the will, is not that
thereby the court maybe
prevented from learning facts
which would justify or
necessitate a denial of
probate, but rather that the
courts and the litigants should
not be molested by the
intervention in the proceedings
of persons with no interest in
the estate which would entitle
them to be heard with relation
thereto. (Paras vs. Narciso, 35
Phil. 244, 246.)
Similary, in Morente vs. Firmalino, 40 O.G.
21st Supp. 1, We held:
We are of the opinion that the
lower court did not err in
holding that notice of an
attorney's lien did not entitle
the attorney-appellant to
subrogate himself in lieu of his
client. It only gives him the
right to collect a certain
amount for his services in case
his client is awarded a certain
sum by the court.
WHEREFORE, the petition for certiorari is
denied for lack of merit. Costs against the
petitioner.
SO ORDERED.
83
Page
[G.R. No. 108581. December 8, 1999]
LOURDES L. DOROTHEO, petitioner, vs.
COURT OF APPEALS, NILDA D.
QUINTANA, for Herself and as
Attorney-in-Fact of VICENTE
DOROTHEO and JOSE
DOROTHEO, respondents.
DECISION
YNARES-SANTIAGO, J.:
May a last will and testament admitted
to probate but declared intrinsically void in
an order that has become final and
executory still be given effect? This is the
issue that arose from the following
antecedents:
Private respondents were the legitimate
children of Alejandro Dorotheo and Aniceta
Reyes. The latter died in 1969 without her
estate being settled. Alejandro died
thereafter. Sometime in 1977, after
Alejandros death, petitioner, who claims to
have taken care of Alejandro before he
died, filed a special proceeding for the
probate of the latters last will and
testament. In 1981, the court issued an
order admitting Alejandros will to
probate. Private respondents did not
appeal from said order. In 1983, they filed a
Motion To Declare The Will Intrinsically
Void. The trial court granted the motion and
issued an order, the dispositive portion of
which reads:
WHEREFORE, in view of the foregoing,
Order is hereby issued declaring Lourdes
Legaspi not the wife of the late Alejandro
Dorotheo, the provisions of the last will and
testament of Alejandro Dorotheo as
intrinsically void, and declaring the
oppositors Vicente Dorotheo, Jose
Dorotheo and Nilda Dorotheo Quintana as
the only heirs of the late spouses Alejandro
Dorotheo and Aniceta Reyes, whose
respective estates shall be liquidated and
distributed according to the laws on
intestacy upon payment of estate and other
taxes due to the government.[1]
Petitioner moved for reconsideration
arguing that she is entitled to some
compensation since she took care of
Alejandro prior to his death although she
admitted that they were not married to each
other.Upon denial of her motion for
reconsideration, petitioner appealed to the
Court of Appeals, but the same was
dismissed for failure to file appellants brief
within the extended period granted.[2] This
dismissal became final and executory on
February 3, 1989 and a corresponding
entry of judgment was forthwith issued by
the Court of Appeals on May 16, 1989. A
writ of execution was issued by the lower
court to implement the final and executory
Order. Consequently, private respondents
filed several motions including a motion to
compel petitioner to surrender to them the
Transfer Certificates of Titles (TCT)
covering the properties of the late
Alejandro. When petitioner refused to
surrender the TCTs, private respondents
filed a motion for cancellation of said titles
and for issuance of new titles in their
names. Petitioner opposed the motion.
An Order was issued on November 29,
1990 by Judge Zain B. Angas setting aside
the final and executory Order dated
January 30, 1986, as well as the Order
directing the issuance of the writ of
execution, on the ground that the order was
merely interlocutory, hence not final in
character. The court added that the
dispositive portion of the said Order even
directs the distribution of the estate of the
deceased spouses. Private respondents
filed a motion for reconsideration which
was denied in an Order dated February 1,
1991. Thus, private respondents filed a
petition before the Court of Appeals, which
nullified the two assailed Orders dated
November 29, 1990 and February 1, 1991.
Aggrieved, petitioner instituted a
petition for review arguing that the case
filed by private respondents before the
Court of Appeals was a petition under Rule
65 on the ground of grave abuse of
discretion or lack of jurisdiction. Petitioner
contends that in issuing the two assailed
orders, Judge Angas cannot be said to
have no jurisdiction because he was
particularly designated to hear the
case. Petitioner likewise assails the Order
of the Court of Appeals upholding the
validity of the January 30, 1986 Order
84
which declared the intrinsic invalidity of
Alejandros will that was earlier admitted to
Page
probate.
 Petitioner also filed a motion to
reinstate her as executrix of the estate of
the late Alejandro and to maintain
the status quo or lease of the premises
thereon to third parties.[3] Private
respondents opposed the motion on the
ground that petitioner has no interest in the
estate since she is not the lawful wife of the
late Alejandro.
The petition is without merit. A final and
executory decision or order can no longer
be disturbed or reopened no matter how
erroneous it may be. In setting aside the
January 30, 1986 Order that has attained
finality, the trial court in effect nullified the
entry of judgment made by the Court of
Appeals. It is well settled that a lower court
cannot reverse or set aside decisions or
orders of a superior court, for to do so
would be to negate the hierarchy of courts
and nullify the essence of review. It has
been ruled that a final judgment on
probated will, albeit erroneous, is binding
on the whole world.[4]
It has been consistently held that if no
appeal is taken in due time from a
judgment or order of the trial court, the
same attains finality by mere lapse of
time. Thus, the order allowing the will
became final and the question determined
by the court in such order can no longer be
raised anew, either in the same
proceedings or in a different motion. The
matters of due execution of the will and the
capacity of the testator acquired the
character of res judicata and cannot again
be brought into question, all juridical
questions in connection therewith being for
once and forever closed.[5] Such final order
makes the will conclusive against the whole
world as to its extrinsic validity and due
execution.[6]
It should be noted that probate
proceedings deals generally with the
extrinsic validity of the will sought to be
probated,[7] particularly on three aspects:
whether the will submitted is indeed, the
decedents last will and testament;
compliance with the prescribed formalities
for the execution of wills;
the testamentary capacity of the testator;[8]
and the due execution of the last will and
testament.[9]
Under the Civil Code, due execution
includes a determination of whether the
testator was of sound and disposing mind
at the time of its execution, that he had
freely executed the will and was not acting
under duress, fraud, menace or undue
influence and that the will is genuine and
not a forgery,[10] that he was of the proper
testamentary age and that he is a person
not expressly prohibited by law from
making a will.[11]
The intrinsic validity is another matter
and questions regarding the same may still
be raised even after the will has been
authenticated.[12] Thus, it does not
necessarily follow that an extrinsically valid
last will and testament is always intrinsically
valid. Even if the will was validly executed,
if the testator provides for dispositions that
deprives or impairs the lawful heirs of their
legitime or rightful inheritance according to
the laws on succession,[13] the unlawful
provisions/dispositions thereof cannot be
given effect. This is specially so when the
courts had already determined in a final
and executory decision that the will is
intrinsically void. Such determination
having attained that character of finality is
binding on this Court which will no longer
be disturbed. Not that this Court finds the
will to be intrinsically valid, but that a final
and executory decision of which the party
had the opportunity to challenge before the
higher tribunals must stand and should no
longer be reevaluated. Failure to avail of
the remedies provided by law constitutes
waiver. And if the party does not avail of
other remedies despite its belief that it was
aggrieved by a decision or court action,
then it is deemed to have fully agreed and
is satisfied with the decision or order. As
early as 1918, it has been declared that
public policy and sound practice demand
that, at the risk of occasional errors,
judgments of courts must at some point of
time fixed by law[14]become final otherwise
there will be no end to litigation. Interes rei
publicae ut finis sit litium - the very object of
which the courts were constituted was to
put an end to controversies.[15] To fulfill this
purpose and to do so speedily, certain time
85
limits, more or less arbitrary, have to be set
up to spur on the slothful.[16] The only
Page
instance where a party interested in a to intestacy.[20] But before there could be
probate proceeding may have a final testate distribution, the will must pass the
liquidation set aside is when he is left out scrutinizing test and safeguards provided
by reason of circumstances beyond his by law considering that the deceased
control or through mistake or inadvertence testator is no longer available to prove the
not imputable to negligence,[17] which voluntariness of his actions, aside from the
circumstances do not concur herein. fact that the transfer of the estate is usually
onerous in nature and that no one is
Petitioner was privy to the suit calling
presumed to give - Nemo praesumitur
for the declaration of the intrinsic invalidity
donare.[21] No intestate distribution of the
of the will, as she precisely appealed from
estate can be done until and unless the will
an unfavorable order therefrom. Although
had failed to pass both its extrinsic and
the final and executory Order of January
intrinsic validity. If the will is extrinsically
30, 1986 wherein private respondents were
void, the rules of intestacy apply regardless
declared as the only heirs do not bind those
of the intrinsic validity thereof. If it is
who are not parties thereto such as the
extrinsically valid, the next test is to
alleged illegitimate son of the testator, the
determine its intrinsic validity that is
same constitutes res judicatawith respect to
whether the provisions of the will are valid
those who were parties to the probate
according to the laws of succession. In this
proceedings. Petitioner cannot again raise
case, the court had ruled that the will of
those matters anew for relitigation
Alejandro was extrinsically valid but the
otherwise that would amount to forum-
intrinsic provisions thereof were void. Thus,
shopping. It should be remembered that
the rules of intestacy apply as correctly
forum shopping also occurs when the same
held by the trial court.
issue had already been resolved adversely
by some other court.[18] It is clear from the Furthermore, Alejandros disposition in
executory order that the estates of his will of the alleged share in the conjugal
Alejandro and his spouse should be properties of his late spouse, whom he
distributed according to the laws of described as his only beloved wife, is not a
intestate succession. valid reason to reverse a final and
executory order. Testamentary dispositions
Petitioner posits that the January 30,
of properties not belonging exclusively to
1986 Order is merely interlocutory, hence it
the testator or properties which are part of
can still be set aside by the trial court. In
the conjugal regime cannot be given
support thereof, petitioner argues that an
effect. Matters with respect to who owns
order merely declaring who are heirs and
the properties that were disposed of by
the shares to which set of heirs is entitled
Alejandro in the void will may still be
cannot be the basis of execution to require
properly ventilated and determined in the
delivery of shares from one person to
intestate proceedings for the settlement of
another particularly when no project of
his and that of his late spouses estate.
partition has been filed.[19] The trial court
declared in the January 30, 1986 Order that Petitioners motion for appointment as
petitioner is not the legal wife of Alejandro, administratrix is rendered moot considering
whose only heirs are his three legitimate that she was not married to the late
children (petitioners herein), and at the Alejandro and, therefore, is not an heir.
same time it nullified the will.But it should
WHEREFORE, the petition is DENIED
be noted that in the same Order, the trial
and the decision appealed from is
court also said that the estate of the late
AFFIRMED.
spouses be distributed according to the
laws of intestacy. Accordingly, it has no SO ORDERED.
option but to implement that order of
intestate distribution and not to reopen and
again re-examine the intrinsic provisions of
the same will.
It can be clearly inferred from Article
86

960 of the Civil Code, on the law of

Page

successional rights that testacy is preferred

[G.R. No. 129505. January 31, 2000]
OCTAVIO S. MALOLES II, petitioner, vs.
PACITA DE LOS REYES
PHILLIPS, respondent.
[G.R. No. 133359. January 31, 2000]
OCTAVIO S. MALOLES II, petitioner, vs.
COURT OF APPEALS, HON. FERNANDO
V. GOROSPE, JR., in his Official
Capacity as Presiding Judge of RTC-
Makati, Branch 61, and PACITA
PHILLIPS as the alleged executrix of the
alleged will of the late Dr. Arturo de
Santos, respondents.
DECISION
MENDOZA, J.:
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 will[1] 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 will[2] 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
oclock in the morning, copies
of which were served to Arturo
de Santos Foundation, Inc.
and Ms. Pacita de los Reyes
Phillips (Officers 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
87
wit: Dr. Elpidio Valencia (Exhs.
"A-6", "A-7", "A-8", "A-16", "A-
Page
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
petitioners 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.
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 (testators 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 respondents motion, Judge
Salvador Abad Santos of Branch 65 issued
88
an order, dated June 28, 1996, appointing
Page
her as special administrator of Dr. De SANTOS pending before this
Santoss estate. Branch.

On July 29, 1996, petitioner sought to There is, however, a case filed
intervene in Sp. Proc. No. M-4343 and to by ARTURO DE SANTOS, as
set aside the appointment of private petitioner under Rule 76 of the
respondent as special administrator. He Rules of Court for the
reiterated that he was the sole and full Allowance of his will during his
blooded nephew and nearest of kin of the lifetime docketed as SP.
testator; that he came to know of the PROC. NO. M-4223 which was
existence of Sp. Proc. No. M-4343 only by already decided on 16
accident; that the probate proceedings in February 1996 and has
Sp. Proc. No. M-4223 before Branch 61 of become final.
the same court was still pending; that
private respondent misdeclared the true It is noted on records of Case
worth of the testators estate; that private No. M-4223 that after it
respondent was not fit to be the special became final, herein Petitioner
administrator of the estate; and that Pacita de los Reyes Phillips
petitioner should be given letters of filed a MOTION FOR THE
administration for the estate of Dr. De ISSUANCE OF LETTERS
Santos. TESTAMENTARY, which was
subsequently withdrawn after
On August 28, 1996, Judge Abad Santos this Court, during the hearing,
ordered the transfer of Sp. Proc. No. M- already ruled that the motion
4343 to Branch 61, on the ground that "[it] could not be admitted as the
is related to the case before Judge subject matter involves a
Gorospe of RTC Branch 61 . . ." separate case under Rule 78
of the Rules of Court, and
It appears, however, that in Sp. Proc. No. movant withdrew her motion
M-4223, Judge Gorospe had denied on and filed this case (No. 4343).
August 26, 1996 petitioners motion for
intervention. Petitioner brought this matter Octavio de Santos Maloles [II]
to the Court of Appeals which, in a filed a MOTION FOR
decision[4] promulgated on February 13, INTERVENTION before Case
1998, upheld the denial of petitioners No. M-4223 and this motion
motion for intervention. was already DENIED in the
order (Branch 61) of 26 August
Meanwhile, Judge Gorospe issued an 1996 likewise for the same
order, dated September 4, 1996, returning grounds that the matter is for a
the records of Sp. Proc. No. M-4343 to separate case to be filed under
Branch 65 on the ground that there was a Rule 78 of the Rules of Court
pending case involving the Estate of and cannot be included in this
Decedent Arturo de Santos pending before case filed under Rule 76 of the
said court. The order reads: Rules of Court.

Acting on the ORDER dated It is further noted that it is a

28 August 1996 of Branch 65, matter of policy that
this Court, transferring this consolidation of cases must be
case to this Branch 61 on the approved by the Presiding
ground that this case is related Judges of the affected
with a case before this Court, Branches.
let this case be returned to
Branch 65 with the information Initially, in his decision dated September
that there is no related case 23, 1996,[5] Judge Abad Santos appeared
involving the ESTATE OF firm in his position that " . . . it would be
89

DECEDENT ARTURO DE improper for (Branch 65) to hear and

Page

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 petitioners motion for intervention.
Private respondent moved for a Santiesteban[7] and Tagle v. Manalo,[8] he
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
decision[6] setting aside the trial courts
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 testate 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.
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 respondents petition for issuance of
letters testamentary.
The contention has no merit.
90
Page
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
testators 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 testators
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 testators 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.
91
Page
 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 testators
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 latters
death. In other words, the
petitioner, instead of filing a
new petition for the issuance of
letters testamentary, should
have simply filed a could not have been intended
manifestation for the same
purpose in the probate
[12]
court.
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
to define the jurisdiction over
the subject matter, because
such legal provision is
contained in a law of
92
procedure dealing merely with
procedural matters. Procedure
Page
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
[14]
incompatible with each other.
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
93
the will of the decedent Arturo
Page
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
decedents 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
respondents 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
testators -
(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
94
children, and natural children
Page
by legal fiction;
 (5) Other illegitimate children On the other hand, the petition for issuance
referred to in Article 287 of the of letters testamentary was filed by private
Civil Code.[18] respondent, as executor of the estate of Dr.
De Santos, for the purpose of securing
Petitioner, as nephew of the testator, is not authority from the Court to administer the
a compulsory heir who may have been estate and put into effect the will of the
preterited in the testators will. testator. The estate settlement proceedings
commenced by the filing of the petition
Nor does he have any right to intervene in terminates upon the distribution and
the settlement proceedings based on his delivery of the legacies and devises to the
allegation that he is a creditor of the persons named in the will. Clearly, there is
deceased. Since the testator instituted or no identity between the two petitions, nor
named an executor in his will, it is was the latter filed during the pendency of
incumbent upon the Court to respect the the former. There was, consequently, no
desires of the testator. As we stated forum shopping.
in Ozaeta v. Pecson:[19]
WHEREFORE, the petition is DENIED and
The choice of his executor is a the decisions of the Court of Appeals are
precious prerogative of a hereby AFFIRMED.
testator, a necessary
concomitant of his right to SO ORDERED.
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
95

allowance of his will, the proceedings were

Page

terminated.
G.R. No. L-23445 June 23, 1966
REMEDIOS NUGUID, petitioner and
appellant,
vs.
FELIX NUGUID and PAZ SALONGA
NUGUID, oppositors and appellees.
Custodio O. Partade for petitioner and
appellant.
Beltran, Beltran and Beltran for oppositors
and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City,
died on December 30, 1962, single, without
descendants, legitimate or illegitimate.
Surviving her were her legitimate parents,
Felix Nuguid and Paz Salonga Nuguid, and
six (6) brothers and sisters, namely:
Alfredo, Federico, Remedios, Conrado,
Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios
Nuguid filed in the Court of First Instance of
Rizal a holographic will allegedly executed
by Rosario Nuguid on November 17, 1951,
some 11 years before her demise.
Petitioner prayed that said will be admitted
to probate and that letters of administration
with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz
Salonga Nuguid, concededly the legitimate
father and mother of the deceased Rosario
Nuguid, entered their opposition to the
probate of her will. Ground therefor, inter
alia, is that by the institution of petitioner
Remedios Nuguid as universal heir of the
deceased, oppositors — who are
compulsory heirs of the deceased in the
direct ascending line — were illegally
preterited and that in consequence the
institution is void.
On August 29, 1963, before a hearing was
had on the petition for probate and
objection thereto, oppositors moved to
dismiss on the ground of absolute
preterition.
On September 6, 1963, petitioner
registered her opposition to the motion to
dismiss.1äwphï1.ñët
The court's order of November 8, 1963,
held that "the will in question is a complete
nullity and will perforce create intestacy of
the estate of the deceased Rosario Nuguid"
and dismissed the petition without costs.
A motion to reconsider having been
thwarted below, petitioner came to this
Court on appeal.
1. Right at the outset, a procedural aspect
has engaged our attention. The case is for
the probate of a will. The court's area of
inquiry is limited — to an examination of,
and resolution on, the extrinsic validity of
the will. The due execution thereof, the
testatrix's testamentary capacity, and the
compliance with the requisites or
solemnities by law prescribed, are the
questions solely to be presented, and to be
acted upon, by the court. Said court at this
stage of the proceedings — is not called
upon to rule on the intrinsic validity or
efficacy of the provisions of the will, the
legality of any devise or legacy therein.1
A peculiar situation is here thrust upon us.
The parties shunted aside the question of
whether or not the will should be allowed
probate. For them, the meat of the case is
the intrinsic validity of the will. Normally,
this comes only after the court has declared
that the will has been duly
2
authenticated. But petitioner and
oppositors, in the court below and here on
appeal, travelled on the issue of law, to wit:
Is the will intrinsically a nullity?
We pause to reflect. If the case were to be
remanded for probate of the will, nothing
will be gained. On the contrary, this
litigation will be protracted. And for aught
that appears in the record, in the event of
probate or if the court rejects the will,
probability exists that the case will come up
once again before us on the same issue of
the intrinsic validity or nullity of the will.
Result: waste of time, effort, expense, plus
added anxiety. These are the practical
considerations that induce us to a belief
that we might as well meet head-on the
issue of the validity of the provisions of the
will in question.3 After all, there exists a
justiciable controversy crying for solution.
96
2. Petitioner's sole assignment of error
Page
challenges the correctness of the
conclusion below that the will is a complete
nullity. This exacts from us a study of the
disputed will and the applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and
disposing mind and memory, having
amassed a certain amount of property, do
hereby give, devise, and bequeath all of the
property which I may have when I die to my
beloved sister Remedios Nuguid, age 34,
residing with me at 38-B Iriga, Q.C. In
witness whereof, I have signed my name
this seventh day of November, nineteen
hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in
Article 854 of the Civil Code which, in part,
provides:
ART. 854. The preterition or omission
of one, some, or all of the
compulsory heirs in the direct line,
whether living at the time of the
execution of the will or born after the
death of the testator, shall annul the
institution of heir; but the devises and
legacies shall be valid insofar as they
are not inofficious. ...
Except for inconsequential variation in
terms, the foregoing is a reproduction of
Article 814 of the Civil Code of Spain of
1889, which is similarly herein copied, thus
— Eq. 132.7
Art. 814. The preterition of one or all
of the forced heirs in the direct line,
whether living at the time of the
execution of the will or born after the
death of the testator, shall void the
institution of heir; but the legacies
and betterments4 shall be valid, in so
far as they are not inofficious. ...
A comprehensive understanding of the
term preterition employed in the law
becomes a necessity. On this point
Manresa comments:
La pretericion consiste en omitar al
heredero en el testamento. O no se
le nombra siquiera o aun
nombrandole como padre, hijo, etc.,
no se le instituya heredero ni se le
deshereda expresamente ni se le
asigna parte alguna de los bienes,
resultando privado de un modo tacito
de su derecho a legitima.
Para que exista pretericion, con
arreglo al articulo 814, basta que en
el testamento omita el testador a uno
cualquiera de aquellos a quienes por
su muerte corresponda la herencia
forzosa.
Se necesita, pues, a) Que la omision
se refiera a un heredero forzoso. b)
Que la omision sea completa; que el
heredero forzoso nada reciba en el
testamento.
It may now appear trite bat nonetheless
helpful in giving us a clear perspective of
the problem before us, to have on hand a
clear-cut definition of the word annul:
To "annul" means to abrogate, to
make void ... In re Morrow's Estate,
54 A. 342, 343, 204 Pa. 484.6
The word "annul" as used in statute
requiring court to annul alimony
provisions of divorce decree upon
wife's remarriage means to reduce to
nothing; to annihilate; obliterate; blot
out; to make void or of no effect; to
nullify; to abolish. N.J.S.A. 2:50 — 38
(now N.J.S. 2A:34-35). Madden vs.
Madden, 40 A. 2d 611, 614, 136 N..J
ANNUL. To reduce to nothing;
annihilate; obliterate; to make void or
of no effect; to nullify; to abolish; to
do away with. Ex parte Mitchell, 123
W. Va. 283, 14 S.E. 2d. 771, 774.8
And now, back to the facts and the law.
The deceased Rosario Nuguid left no
descendants, legitimate or illegitimate. But
she left forced heirs in the direct ascending
line her parents, now oppositors Felix
Nuguid and Paz Salonga Nuguid. And, the
97
will completely omits both of them: They
Page
thus received nothing by the testament;
tacitly, they were deprived of their legitime;
neither were they expressly disinherited.
This is a clear case of preterition. Such
preterition in the words of Manresa "anulara
siempre la institucion de heredero, dando
caracter absoluto a este ordenamiento
referring to the mandate of Article 814, now
854 of the Civil Code.9 The one-sentence
will here institutes petitioner as the sole,
universal heir — nothing more. No specific
legacies or bequests are therein provided
for. It is in this posture that we say that the
nullity is complete. Perforce, Rosario
Nuguid died intestate. Says Manresa:
En cuanto a la institucion de
heredero, se anula. Lo que se anula
deja de existir, en todo o en parte?
No se añade limitacion alguna, como
en el articulo 851, en el que se
expresa que se anulara la institucion
de heredero en cuanto prejudique a
la legitima del deseheredado Debe,
pues, entenderse que la anulacion
es completa o total, y que este
articulo como especial en el caso
que le motiva rige con preferencia al
817. 10
The same view is expressed by Sanchez
Roman: —
La consecuencia de la anulacion o
nulidad de la institucion de heredero
por pretericion de uno, varios o todos
los forzosos en linea recta, es la
apertura de la sucesion
intestada total o parcial. Sera total,
cuando el testador que comete la
pretericion, hubiese dispuesto de
todos los bienes por titulo universal
de herencia en favor de los
herederos instituidos, cuya
institucion se anula, porque asi lo
exige la generalidad del precepto
legal del art. 814, al determinar,
como efecto de la pretericion, el de
que "anulara la institucion de
heredero." ... 11
Really, as we analyze the
word annul employed in the statute, there is
no escaping the conclusion that the
universal institution of petitioner to the
entire inheritance results in totally
abrogating the will. Because, the
nullification of such institution of universal
heir — without any other testamentary
disposition in the will — amounts to a
declaration that nothing at all was written.
Carefully worded and in clear terms, Article
854 offers no leeway for inferential
interpretation. Giving it an expansive
meaning will tear up by the roots the fabric
of the statute. On this point, Sanchez
Roman cites the "Memoria annual del
Tribunal Supreme, correspondiente a
1908", which in our opinion expresses the
rule of interpretation, viz:
... El art. 814, que preceptua en tales
casos de pretericion la nulidad de la
institucion de heredero, no consiente
interpretacion alguna favorable a la
persona instituida en el sentido antes
expuesto aun cuando parezca, y en
algun caso pudiera ser, mas o
menos equitativa, porque una
nulidad no significa en Derecho sino
la suposicion de que el hecho o el
acto no se ha realizado, debiendo
por lo tanto procederse sobre tal
base o supuesto, y
consiguientemente, en un
testamento donde falte la institucion,
es obligado llamar a los herederos
forzosos en todo caso, como habria
que llamar a los de otra clase,
cuando el testador no hubiese
distribudo todos sus bienes en
legados, siendo tanto mas obligada
esta consecuencia legal cuanto que,
en materia de testamentos, sabido
es, segun tiene declarado la
jurisprudencia, con repeticion, que
no basta que sea conocida la
voluntad de quien testa si esta
voluntad no aparece en la forma y en
las condiciones que la ley ha exigido
para que sea valido y eficaz, por lo
que constituiria una interpretacion
arbitraria, dentro del derecho
positivo, reputar como legatario a un
heredero cuya institucion fuese
anulada con pretexto de que esto se
acomodaba mejor a la voluntad del
testador, pues aun cuando asi fuese,
sera esto razon para modificar la ley,
pero no autoriza a una interpretacion
contraria a sus terminos y a los
principios que informan la
98
testamentifaccion, pues no porque
parezca mejor una cosa en el terreno
Page
del Derecho constituyente, hay razon
 para convereste juicio en regla de
interpretacion, desvirtuando y in the legitime for a cause authorized by
anulando por este procedimiento lo
que el legislador quiere establecer. 12
3. We should not be led astray by the
statement in Article 854 that, annullment
notwithstanding, "the devises and legacies
shall be valid insofar as they are not
inofficious". Legacies and devises merit
consideration only when they are so
expressly given as such in a will. Nothing in
Article 854 suggests that
the mere institution of a universal heir in a
will — void because of preterition — would
give the heir so instituted a share in the
inheritance. As to him, the will is inexistent.
There must be, in addition to such
institution, a testamentary disposition
granting him bequests or legacies apart
and separate from the nullified institution of
heir. Sanchez Roman, speaking of the two
component parts of Article 814, now 854,
states that preterition annuls the institution
of the heir "totalmente por la pretericion";
but added (in reference to legacies and
bequests) "pero subsistiendo ... todas
aquellas otras disposiciones que no se
refieren a la institucion de heredero ...
. 13 As Manresa puts it, annulment throws
open to intestate succession the entire
inheritance including "la porcion libre (que)
no hubiese dispuesto en virtud de legado,
mejora o donacion. 14
As aforesaid, there is no other provision in
the will before us except the institution of
petitioner as universal heir. That institution,
by itself, is null and void. And, intestate
succession ensues.
4. Petitioner's mainstay is that the present
is "a case of ineffective disinheritance
rather than one of preterition". 15From this,
petitioner draws the conclusion that Article
854 "does not apply to the case at bar".
This argument fails to appreciate the
distinction between pretention and
disinheritance.
Preterition "consists in the omission in the
testator's will of the forced heirs or anyone
of them, either because they are not
mentioned therein, or, though mentioned,
they are neither instituted as heirs nor are
expressly disinherited." 16 Disinheritance, in
turn, "is a testamentary disposition
depriving any compulsory heir of his share
law. " 17 In Manresa's own words: "La
privacion expresa de la legitima constituye
la desheredacion. La privacion tacita de la
misma se
18
denomina pretericion." Sanchez Roman
emphasizes the distinction by stating that
disinheritance "es siempre voluntaria";
preterition, upon the other hand, is
presumed to be "involuntaria". 19 Express
as disinheritance should be, the same must
be supported by a legal cause specified in
the will itself. 20
The will here does not explicitly disinherit
the testatrix's parents, the forced heirs. It
simply omits their names altogether. Said
will rather than be labeled ineffective
disinheritance is clearly one in which the
said forced heirs suffer from preterition.
On top of this is the fact that the effects
flowing from preterition are totally different
from those of disinheritance. Preterition
under Article 854 of the Civil Code, we
repeat, "shall annul the institution of heir".
This annulment is in toto, unless in the will
there are, in addition, testamentary
dispositions in the form of devises or
legacies. In ineffective disinheritance under
Article 918 of the same Code, such
disinheritance shall also "annul the
institution of heirs", put only "insofar as it
may prejudice the person disinherited",
which last phrase was omitted in the case
of preterition. 21 Better stated yet, in
disinheritance the nullity is limited to that
portion of the estate of which the
disinherited heirs have been illegally
deprived. Manresa's expressive language,
in commenting on the rights of the
preterited heirs in the case of preterition on
the one hand and legal disinheritance on
the other, runs thus: "Preteridos, adquiren
el derecho a todo; desheredados, solo les
corresponde un tercio o dos tercios, 22 el
caso. 23
5. Petitioner insists that the compulsory
heirs ineffectively disinherited are entitled
to receive their legitimes, but that the
institution of heir "is not invalidated,"
although the inheritance of the heir so
instituted is reduced to the extent of said
99
legitimes. 24
Page
This is best answered by a reference to the The disputed order, we observe, declares
opinion of Mr. Chief Justice Moran in the will in question "a complete nullity".
the Neri case heretofore cited, viz: Article 854 of the Civil Code in turn merely
nullifies "the institution of heir".
But the theory is advanced that the Considering, however, that the will before
bequest made by universal title in us solely provides for the institution of
favor of the children by the second petitioner as universal heir, and nothing
marriage should be treated more, the result is the same. The entire will
as legado and mejora and, is null.
accordingly, it must not be entirely
annulled but merely reduced. This Upon the view we take of this case, the
theory, if adopted, will result in a order of November 8, 1963 under review is
complete abrogation of Articles 814 hereby affirmed. No costs allowed. So
and 851 of the Civil Code. If every ordered.
case of institution of heirs may be
made to fall into the concept of
legacies and betterments reducing
the bequest accordingly, then the
provisions of Articles 814 and 851
regarding total or partial nullity of the
institution, would. be absolutely
meaningless and will never have any
application at all. And the remaining
provisions contained in said article
concerning the reduction of
inofficious legacies or betterments
would be a surplusage because they
would be absorbed by Article 817.
Thus, instead of construing, we
would be destroying integral
provisions of the Civil Code.

The destructive effect of the theory

thus advanced is due mainly to a
failure to distinguish institution of
heirs from legacies and betterments,
and a general from a special
provision. With reference to article
814, which is the only provision
material to the disposition of this
case, it must be observed that the
institution of heirs is therein dealt
with as a thing separate and distinct
from legacies or betterments. And
they are separate and distinct not
only because they are distinctly and
separately treated in said article but
because they are in themselves
different. Institution of heirs is a
bequest by universal title of property
that is undetermined. Legacy refers
to specific property bequeathed by a
particular or special title. ... But again
an institution of heirs cannot be taken
100

as a legacy. 25
Page
G.R. No. L-56340 June 24, 1983
SPOUSES ALVARO PASTOR, JR. and
MA. ELENA ACHAVAL DE
PASTOR, petitioners,
vs.
THE COURT OF APPEALS, JUAN Y.
REYES, JUDGE OF BRANCH I, COURT
OF FIRST INSTANCE OF CEBU and
LEWELLYN BARLITO
QUEMADA, respondents.
Pelaez, Pelaez, & Pelaez Law Office for
petitioners.
Ceniza, Rama & Associates for private
respondents.
PLANA, J.:
I. FACTS:
This is a case of hereditary succession.
Alvaro Pastor, Sr. (PASTOR, SR.), a
Spanish subject, died in Cebu City on June
5, 1966, survived by his Spanish wife Sofia
Bossio (who also died on October 21,
1966), their two legitimate children Alvaro
Pastor, Jr. (PASTOR, JR.) and Sofia Pastor
de Midgely (SOFIA), and an illegitimate
child, not natural, by the name of Lewellyn
Barlito Quemada QUEMADA PASTOR, JR.
is a Philippine citizen, having been
naturalized in 1936. SOFIA is a Spanish
subject. QUEMADA is a Filipino by his
mother's citizenship.
On November 13, 1970, QUEMADA filed a
petition for the probate and allowance of an
alleged holographic will of PASTOR, SR.
with the Court of First Instance of Cebu,
Branch I (PROBATE COURT), docketed as
SP No. 3128-R. The will contained only one
testamentary disposition: a legacy in favor
of QUEMADA consisting of 30% of
PASTOR, SR.'s 42% share in the operation
by Atlas Consolidated Mining and
Development Corporation (ATLAS) of some
mining claims in Pina-Barot, Cebu.
On November 21, 1970, the PROBATE
COURT, upon motion of QUEMADA and
after an ex parte hearing, appointed him
special administrator of the entire estate of
PASTOR, SR., whether or not covered or
affected by the holographic will. He
assumed office as such on December 4,
1970 after filing a bond of P 5,000.00.
On December 7, 1970, QUEMADA as
special administrator, instituted against
PASTOR, JR. and his wife an action for
reconveyance of alleged properties of the
estate, which included the properties
subject of the legacy and which were in the
names of the spouses PASTOR, JR. and
his wife, Maria Elena Achaval de Pastor,
who claimed to be the owners thereof in
their own rights, and not by inheritance.
The action, docketed as Civil Case No.
274-R, was filed with the Court of First
Instance of Cebu, Branch IX.
On February 2, 1971, PASTOR, JR. and
his sister SOFIA filed their opposition to the
petition for probate and the order
appointing QUEMADA as special
administrator.
On December 5, 1972, the PROBATE
COURT issued an order allowing the will to
probate. Appealed to the Court of Appeals
in CA-G.R. No. 52961- R, the order was
affirmed in a decision dated May 9, 1977.
On petition for review, the Supreme Court
in G.R. No. L-46645 dismissed the petition
in a minute resolution dated November 1,
1977 and remanded the same to the
PROBATE COURT after denying
reconsideration on January 11, 1978.
For two years after remand of the case to
the PROBATE COURT, QUEMADA filed
pleading after pleading asking for payment
of his legacy and seizure of the properties
subject of said legacy. PASTOR, JR. and
SOFIA opposed these pleadings on the
ground of pendency of the reconveyance
suit with another branch of the Cebu Court
of First Instance. All pleadings remained
unacted upon by the PROBATE COURT.
On March 5, 1980, the PROBATE COURT
set the hearing on the intrinsic validity of
the will for March 25, 1980, but upon
objection of PASTOR, JR. and SOFIA on
the e ground of pendency of the
reconveyance suit, no hearing was held on
101
March 25. Instead, the PROBATE COURT
required the parties to submit their
Page
respective position papers as to how much
inheritance QUEMADA was entitled to
receive under the wig. Pursuant thereto,
PASTOR. JR. and SOFIA submitted their
Memorandum of authorities dated April 10,
which in effect showed that determination
of how much QUEMADA should receive
was still premature. QUEMADA submitted
his Position paper dated April 20, 1980.
ATLAS, upon order of the Court, submitted
a sworn statement of royalties paid to the
Pastor Group of tsn from June 1966 (when
Pastor, Sr. died) to February 1980. The
statement revealed that of the mining
claims being operated by ATLAS, 60%
pertained to the Pastor Group distributed
as follows:
1. A. Pastor, Jr.
...................................40.5%
2. E. Pelaez, Sr.
...................................15.0%
3. B. Quemada
.......................................4.5%
On August 20, 1980, while the
reconveyance suit was still being litigated in
Branch IX of the Court of First Instance of
Cebu, the PROBATE COURT issued the
now assailed Order of Execution and
Garnishment, resolving the question of
ownership of the royalties payable by
ATLAS and ruling in effect that the legacy
to QUEMADA was not inofficious. [There
was absolutely no statement or claim in the
Order that the Probate Order of December
5, 1972 had previously resolved the issue
of ownership of the mining rights of
royalties thereon, nor the intrinsic validity of
the holographic will.]
The order of August 20, 1980 found that as
per the holographic will and a written
acknowledgment of PASTOR, JR. dated
June 17, 1962, of the above 60% interest in
the mining claims belonging to the Pastor
Group, 42% belonged to PASTOR, SR.
and only 33% belonged to PASTOR, JR.
The remaining 25% belonged to E. Pelaez,
also of the Pastor Group. The PROBATE
COURT thus directed ATLAS to remit
directly to QUEMADA the 42% royalties
due decedent's estate, of which QUEMADA
was authorized to retain 75% for himself as
legatee and to deposit 25% with a
reputable banking institution for payment of
the estate taxes and other obligations of
the estate. The 33% share of PASTOR, JR.
and/or his assignees was ordered
garnished to answer for the accumulated
legacy of QUEMADA from the time of
PASTOR, SR.'s death, which amounted to
over two million pesos.
The order being "immediately executory",
QUEMADA succeeded in obtaining a Writ
of Execution and Garnishment on
September 4, 1980, and in serving the
same on ATLAS on the same day. Notified
of the Order on September 6, 1980, the
oppositors sought reconsideration thereof
on the same date primarily on the ground
that the PROBATE COURT gravely abused
its discretion when it resolved the question
of ownership of the royalties and ordered
the payment of QUEMADA's legacy after
prematurely passing upon the intrinsic
validity of the will. In the meantime, the
PROBATE COURT ordered suspension of
payment of all royalties due PASTOR, JR.
and/or his assignees until after resolution of
oppositors' motion for reconsideration.
Before the Motion for Reconsideration
could be resolved, however, PASTOR, JR.,
this time joined by his wife Ma. ELENA
ACHAVAL DE PASTOR, filed with the
Court of Appeals a Petition for certiorari
and Prohibition with a prayer for writ of
preliminary injunction (CA-G.R. No. SP-
11373-R). They assailed the Order dated
August 20, 1980 and the writ of execution
and garnishment issued pursuant thereto.
The petition was denied on November 18,
1980 on the grounds (1) that its filing was
premature because the Motion for
Reconsideration of the questioned Order
was still pending determination by the
PROBATE COURT; and (2) that although
"the rule that a motion for reconsideration is
prerequisite for an action for certiorari is
never an absolute rule," the Order assailed
is "legally valid. "
On December 9, 1980, PASTOR, JR. and
his wife moved for reconsideration of the
Court of Appeal's decision of November 18,
1980, calling the attention of the appellate
court to another order of the Probate Court
dated November 11, 1980 (i.e., while their
102
petition for certiorari was pending decision
in the appellate court), by which the
Page
oppositors' motion for reconsideration of
the Probate Court's Order of August 20,
1980 was denied. [The November 11 Order
declared that the questions of intrinsic
validity of the will and of ownership over the
mining claims (not the royalties alone) had
been finally adjudicated by the final and
executory Order of December 5, 1972, as
affirmed by the Court of Appeals and the
Supreme Court, thereby rendering moot
and academic the suit for reconveyance
then pending in the Court of First Instance
of Cebu, Branch IX. It clarified that only the
33% share of PASTOR, JR. in the royalties
(less than 7.5% share which he had
assigned to QUEMADA before PASTOR,
SR. died) was to be garnished and that as
regards PASTOR, SR.'s 42% share, what
was ordered was just the transfer of its
possession to the custody of the PROBATE
COURT through the special administrator.
Further, the Order granted QUEMADA 6%
interest on his unpaid legacy from August
1980 until fully paid.] Nonetheless, the
Court of Appeals denied reconsideration.
Hence, this Petition for Review by certiorari
with prayer for a writ of pre y injunction,
assailing the decision of the Court of
Appeals dated November 18, 1980 as well
as the orders of the Probate Court dated
August 20, 1980, November 11, 1980 and
December 17, 1980, Med by petitioners on
March 26, 1981, followed by a
Supplemental Petition with Urgent Prayer
for Restraining Order.
In April 1981, the Court (First Division)
issued a writ of preliminary injunction, the
lifting of which was denied in the Resolution
of the same Division dated October 18,
1982, although the bond of petitioners was
increased from P50,000.00 to P100,000.00.
Between December 21, 1981 and October
12, 1982, private respondent filed seven
successive motions for early resolution.
Five of these motions expressly prayed for
the resolution of the question as to whether
or not the petition should be given due
course.
On October 18, 1982, the Court (First
Division) adopted a resolution stating that
"the petition in fact and in effect was given
due course when this case was heard on
the merits on September 7, (should be
October 21, 1981) and concise memoranda
in amplification of their oral arguments on
the merits of the case were filed by the
parties pursuant to the resolution of
October 21, 1981 . . . " and denied in a
resolution dated December 13, 1982,
private respondent's "Omnibus motion to
set aside resolution dated October 18,
1982 and to submit the matter of due
course to the present membership of the
Division; and to reassign the case to
another ponente."
Upon Motion for Reconsideration of the
October 18, 1982 and December 13, 1982
Resolutions, the Court en banc resolved to
CONFIRM the questioned resolutions
insofar as hey resolved that the petition in
fact and in effect had been given due
course.
II. ISSUES:
Assailed by the petitioners in these
proceedings is the validity of the Order of
execution and garnishment dated August
20, 1980 as well as the Orders
subsequently issued allegedly to implement
the Probate Order of December 5, 1972, to
wit: the Order of November 11, 1980
declaring that the Probate Order of 1972
indeed resolved the issues of ownership
and intrinsic validity of the will, and
reiterating the Order of Execution dated
August 20, 1980; and the Order of
December 17, 1980 reducing to
P2,251,516.74 the amount payable to
QUEMADA representing the royalties he
should have received from the death of
PASTOR, SR. in 1966 up to February
1980.
The Probate Order itself, insofar as it
merely allowed the holographic will in
probate, is not questioned. But petitioners
denounce the Probate Court for having
acted beyond its jurisdiction or with grave
abuse of discretion when it issued the
assailed Orders. Their argument runs this
way: Before the provisions of the
holographic win can be implemented, the
questions of ownership of the mining
properties and the intrinsic validity of the
holographic will must first be resolved with
finality. Now, contrary to the position taken
103
by the Probate Court in 1980 — i.e., almost
eight years after the probate of the will in
Page
1972 — the Probate Order did not resolve
the two said issues. Therefore, the Probate
Order could not have resolved and actually
did not decide QUEMADA's entitlement to
the legacy. This being so, the Orders for
the payment of the legacy in alleged
implementation of the Probate Order of
1972 are unwarranted for lack of basis.
Closely related to the foregoing is the issue
raised by QUEMADA The Probate Order of
1972 having become final and executory,
how can its implementation (payment of
legacy) be restrained? Of course, the
question assumes that QUEMADA's
entitlement to the legacy was finally
adjudged in the Probate Order.
On the merits, therefore, the basic issue is
whether the Probate Order of December 5,
1972 resolved with finality the questions of
ownership and intrinsic validity. A negative
finding will necessarily render moot and
academic the other issues raised by the
parties, such as the jurisdiction of the
Probate Court to conclusively resolve title
to property, and the constitutionality and
repercussions of a ruling that the mining
properties in dispute, although in the name
of PASTOR, JR. and his wife, really
belonged to the decedent despite the
latter's constitutional disqualification as an
alien.
On the procedural aspect, placed in issue
is the propriety of certiorari as a means to
assail the validity of the order of execution
and the implementing writ.
III. DISCUSSION:
1. Issue of Ownership —
(a) In a special proceeding for the probate
of a will, the issue by and large is restricted
to the extrinsic validity of the will, i.e.,
whether the testator, being of sound mind,
freely executed the will in accordance with
the formalities prescribed by law. (Rules of
Court, Rule 75, Section 1; Rule 76, Section
9.) As a rule, the question of ownership is
an extraneous matter which the Probate
Court cannot resolve with finality. Thus, for
the purpose of determining whether a
certain property should or should not be
included in the inventory of estate
properties, the Probate Court may pass
upon the title thereto, but such
determination is provisional, not conclusive,
and is subject to the final decision in a
separate action to resolve title. [3 Moran,
Comments on the Rules of Court (1980
ed.), p. 458; Valero Vda. de Rodriguez vs.
Court of Appeals, 91 SCRA 540.]
(b) The rule is that execution of a judgment
must conform to that decreed in the
dispositive part of the decision. (Philippine-
American Insurance Co. vs. Honorable
Flores, 97 SCRA 811.) However, in case of
ambiguity or uncertainty, the body of the
decision may be scanned for guidance in
construing the judgment. (Heirs of Presto
vs. Galang, 78 SCRA 534; Fabular vs.
Court of Appeals, 119 SCRA 329; Robles
vs. Timario. 107 Phil. 809.)
The Order sought to be executed by the
assailed Order of execution is the Probate
Order of December 5, 1972 which allegedly
resolved the question of ownership of the
disputed mining properties. The said
Probate Order enumerated the issues
before the Probate Court, thus:
Unmistakably, there are three
aspects in these proceedings:
(1) the probate of the
holographic will (2) the
intestate estate aspect; and (3)
the administration proceedings
for the purported estate of the
decedent in the Philippines.
In its broad and total
perspective the whole
proceedings are being
impugned by the oppositors on
jurisdictional grounds, i.e., that
the fact of the decedent's
residence and existence of
properties in the Philippines
have not been established.
Specifically placed in issue
with respect to the probate
proceedings are: (a) whether
or not the holographic will
(Exhibit "J") has lost its efficacy
as the last will and testament
upon the death of Alvaro
Pastor, Sr. on June 5, 1966, in
104
Cebu City, Philippines; (b)
Whether or not the said will
Page
has been executed with all the
 formalities required by law; and Development Corporation,
(c) Did the late presentation of Goodrich Bldg., Cebu City, and
the holographic will affect the the Register of Deeds of Cebu
validity of the same? or of Toledo City, as the case
may be, for recording.
Issues In the Administration
Proceedings are as follows: (1) (b) There was a delay in the
Was the ex- parte appointment granting of the letters
of the petitioner as special testamentary or of
administrator valid and proper? administration for as a matter
(2) Is there any indispensable of fact, no regular executor
necessity for the estate of the and/or administrator has been
decedent to be placed under appointed up to this time and -
administration? (3) Whether or the appointment of a special
not petition is qualified to be a administrator was, and still is,
special administrator of the justified under the
estate; and (4) Whether or not circumstances to take
the properties listed in the possession and charge of the
inventory (submitted by the estate of the deceased in the
special administrator but not Philippines (particularly in
approved by the Probate Cebu) until the problems
Court) are to be excluded. causing the delay are decided
and the regular executor
Then came what purports to be the and/or administrator appointed.
dispositive portion:
(c) There is a
Upon the foregoing premises, necessity and
this Court rules on and propriety of a special
resolves some of the problems administrator and
and issues presented in these later on an executor
proceedings, as follows: and/or administrator
in these
(a) The Court has acquired proceedings, in spite
jurisdiction over the probate of this Court's
proceedings as it hereby declaration that the
allows and approves the so- oppositors are the
called holographic will of forced heirs and the
testator Alvaro Pastor, Sr., petitioner is merely
executed on July 31, 1961 with vested with the
respect to its extrinsic validity, character of a
the same having been duly voluntary heir to the
authenticated pursuant to the extent of the bounty
requisites or solemnities given to him (under)
prescribed by law. Let, the will insofar as the
therefore, a certificate of its same will not
allowance be prepared by the prejudice the
Branch Clerk of this Court to legitimes of the
be signed by this Presiding oppositorfor the
Judge, and attested by the following reasons:
seal of the Court, and
thereafter attached to the will, 1. To submit a
and the will and certificate filed complete inventory
and recorded by the clerk. Let of the estate of the
attested copies of the will and decedent-testator
105

of the certificate of allowance Alvaro Pastor, Sr.

thereof be sent to Atlas
Page

Consolidated Mining &

 2. To administer and
to continue to put to
prolific utilization of
the properties of the
decedent;
3. To keep and
maintain the houses
and other structures
and belonging to the
estate, since the
forced heirs are
residing in Spain,
and prepare them for
delivery to the heirs
in good order after
partition and when
directed by the
Court, but only after
the payment of
estate and
inheritance taxes;
(d) Subject to the outcome of
the suit for reconveyance of
ownership and possession of
real and personal properties in
Civil Case No. 274-T before
Branch IX of the Court of First
Instance of Cebu, the intestate
estate administration aspect
must proceed, unless,
however, it is duly proven by
the oppositors that debts of the
decedent have already been
paid, that there had been an
extrajudicial partition
summary one between the
forced heirs, that the legacy to
be given and delivered to the
petitioner does not exceed the
free portion of the estate of the
testator, that the respective
shares of the forced heirs have
been fairly apportioned,
distributed and delivered to the
two forced heirs of Alvaro
Pastor, Sr., after deducting the
property willed to the
petitioner, and the estate and
inheritance taxes have already
been paid to the Government
thru the Bureau of Internal
Revenue.
The suitability and propriety of
allowing petitioner to remain as
special administrator or
administrator of the other
properties of the estate of the
decedent, which properties are
not directly or indirectly
affected by the provisions of
the holographic will (such as
bank deposits, land in Mactan
etc.), will be resolved in
another order as separate
incident, considering that this
order should have been
properly issued solely as a
resolution on the issue of
whether or not to allow and
approve the aforestated will.
(Emphasis supplied.)
Nowhere in the dispositive portion is there
a declaration of ownership of specific
properties. On the contrary, it is manifest
therein that ownership was not resolved.
For it confined itself to the question of
extrinsic validity of the win, and the need
for and propriety of appointing a special
administrator. Thus it allowed and
approved the holographic win "with respect
to its extrinsic validity, the same having
been duly authenticated pursuant to the
requisites or solemnities prescribed by
law." It declared that the intestate estate
administration aspect must proceed "
subject to the outcome of the suit for
reconveyance of ownership and
possession of real and personal properties
in Civil Case 274-T before Branch IX of the
or CFI of Cebu." [Parenthetically, although the
statement refers only to the "intestate"
aspect, it defies understanding how
ownership by the estate of some properties
could be deemed finally resolved for
purposes of testate administration, but not
so for intestate purposes. Can the estate
be the owner of a property for testate but
not for intestate purposes?] Then again, the
Probate Order (while indeed it does not
direct the implementation of the legacy)
conditionally stated that the intestate
administration aspect must proceed "unless
. . . it is proven . . . that the legacy to be
given and delivered to the petitioner does
not exceed the free portion of the estate of
the testator," which clearly implies that the
issue of impairment of legitime (an aspect
106
of intrinsic validity) was in fact not resolved.
Finally, the Probate Order did not rule on
Page
the propriety of allowing QUEMADA to
remain as special administrator of estate
properties not covered by the holographic
will, "considering that this (Probate) Order
should have been properly issued solely as
a resolution on the issue of whether or not
to allow and approve the aforestated will. "
(c) That the Probate Order did not resolve
the question of ownership of the properties
listed in the estate inventory was
appropriate, considering that the issue of
ownership was the very subject of
controversy in the reconveyance suit that
was still pending in Branch IX of the Court
of First Instance of Cebu.
(d) What, therefore, the Court of Appeals
and, in effect, the Supreme Court
affirmed en toto when they reviewed the
Probable Order were only the matters
properly adjudged in the said Order.
(e) In an attempt to justify the issuance of
the Order of execution dated August 20,
1980, the Probate Court in its Order of
November 11, 1980 explained that the
basis for its conclusion that the question of
ownership had been formally resolved by
the Probate Order of 1972 are the findings
in the latter Order that (1) during the
lifetime of the decedent, he was receiving
royalties from ATLAS; (2) he had resided in
the Philippines since pre-war days and was
engaged in the mine prospecting business
since 1937 particularly in the City of
Toledo; and (3) PASTOR, JR. was only
acting as dummy for his father because the
latter was a Spaniard.
Based on the premises laid, the conclusion
is obviously far-fetched.
(f) It was, therefore, error for the assailed
implementing Orders to conclude that the
Probate Order adjudged with finality the
question of ownership of the mining
properties and royalties, and that, premised
on this conclusion, the dispositive portion of
the said Probate Order directed the special
administrator to pay the legacy in dispute.
2. Issue of Intrinsic Validity of the
Holographic Will -
(a) When PASTOR, SR. died in 1966, he
was survived by his wife, aside from his two
legitimate children and one illegitimate son.
There is therefore a need to liquidate the
conjugal partnership and set apart the
share of PASTOR, SR.'s wife in the
conjugal partnership preparatory to the
administration and liquidation of the estate
of PASTOR, SR. which will include, among
others, the determination of the extent of
the statutory usufructuary right of his wife
until her death. * When the disputed
Probate order was issued on December 5,
1972, there had been no liquidation of the
community properties of PASTOR, SR. and
his wife.
(b) So, also, as of the same date, there had
been no prior definitive determination of the
assets of the estate of PASTOR, SR. There
was an inventory of his properties
presumably prepared by the special
administrator, but it does not appear that it
was ever the subject of a hearing or that it
was judicially approved. The reconveyance
or recovery of properties allegedly owned
but not in the name of PASTOR, SR. was
still being litigated in another court.
(c) There was no appropriate
determination, much less payment, of the
debts of the decedent and his estate.
Indeed, it was only in the Probate Order of
December 5, 1972 where the Probate
Court ordered that-
... a notice be issued and
published pursuant to the
provisions of Rule 86 of the
Rules of Court, requiring all
persons having money claims
against the decedent to file
them in the office of the Branch
Clerk of this Court."
(d) Nor had the estate tax been determined
and paid, or at least provided for, as of
December 5, 1972.
(e) The net assets of the estate not having
been determined, the legitime of the forced
heirs in concrete figures could not be
ascertained.
(f) All the foregoing deficiencies
considered, it was not possible to
determine whether the legacy of
107
QUEMADA - a fixed share in a specific
property rather than an aliquot part of the
Page
entire net estate of the deceased - would
produce an impairment of the legitime of
the compulsory heirs.
(g) Finally, there actually was no
determination of the intrinsic validity of the
will in other respects. It was obviously for
this reason that as late as March 5, 1980 -
more than 7 years after the Probate Order
was issued the Probate Court scheduled on
March 25, 1980 a hearing on
the intrinsic validity of the will.
3. Propriety of certiorari —
Private respondent challenges the propriety
of certiorari as a means to assail the
validity of the disputed Order of execution.
He contends that the error, if any, is one of
judgment, not jurisdiction, and properly
correctible only by appeal, not certiorari.
Under the circumstances of the case at bar,
the challenge must be rejected. Grave
abuse of discretion amounting to lack of
jurisdiction is much too evident in the
actuations of the probate court to be
overlooked or condoned.
(a) Without a final, authoritative
adjudication of the issue as to what
properties compose the estate of PASTOR,
SR. in the face of conflicting claims made
by heirs and a non-heir (MA. ELENA
ACHAVAL DE PASTOR) involving
properties not in the name of the decedent,
and in the absence of a resolution on the
intrinsic validity of the will here in question,
there was no basis for the Probate Court to
hold in its Probate Order of 1972, which it
did not, that private respondent is entitled
to the payment of the questioned legacy.
Therefore, the Order of Execution of
August 20, 1980 and the subsequent
implementing orders for the payment of
QUEMADA's legacy, in alleged
implementation of the dispositive part of the
Probate Order of December 5, 1972, must
fall for lack of basis.
(b) The ordered payment of legacy would
be violative of the rule requiring prior
liquidation of the estate of the deceased,
i.e., the determination of the assets of the
estate and payment of all debts and
expenses, before apportionment and
distribution of the residue among the heirs
and legatees. (Bernardo vs. Court of
Appeals, 7 SCRA 367.)
(c) Neither has the estate tax been paid on
the estate of PASTOR, SR. Payment
therefore of the legacy to QUEMADA would
collide with the provision of the National
Internal Revenue Code requiring payment
of estate tax before delivery to any
beneficiary of his distributive share of the
estate (Section 107 [c])
(d) The assailed order of execution was
unauthorized, having been issued
purportedly under Rule 88, Section 6 of the
Rules of Court which reads:
Sec. 6. Court to fix contributive
shares where devisees,
legatees, or heirs have been in
possession. —
Where devisees, legatees,
or heirs have entered into
possession of portions of the
estate before the debts and
expenses have been settled
and paid and have become
liable to contribute for the
payment of such debts and
expenses, the court having
jurisdiction of the estate may,
by order for that purpose, after
hearing, settle the amount of
their several liabilities, and
order how much and in what
manner each person shall
contribute, and may issue
execution as circumstances
require.
The above provision clearly authorizes
execution to enforce payment of debts of
estate. A legacy is not a debt of the estate;
indeed, legatees are among those against
whom execution is authorized to be issued.
... there is merit in the
petitioners' contention that the
probate court generally cannot
issue a writ of execution. It is
not supposed to issue a writ of
execution because its orders
usually refer to the adjudication
of claims against the estate
108
which the executor or
administrator may satisfy
Page
without the necessity of
 resorting to a writ of execution.
The probate court, as such,
does not render any judgment
enforceable by execution.
The circumstances that the
Rules of Court expressly
specifies that the probate court
may issue execution (a) to
satisfy (debts of the estate out
of) the contributive shares of
devisees, legatees and heirs in
possession of the decedent's
assets (Sec. 6. Rule 88), (b) to
enforce payment of the
expenses of partition (Sec. 3,
Rule 90), and (c) to satisfy the
costs when a person is cited
for examination in probate
proceedings (Sec. 13, Rule
142) may mean, under the rule
of inclusion unius est exclusion
alterius, that those are the only
instances when it can issue a
writ of execution. (Vda. de
Valera vs. Ofilada, 59 SCRA
96, 108.)
(d) It is within a court's competence to order
the execution of a final judgment; but to
order the execution of a final order (which
is not even meant to be executed) by
reading into it terms that are not there and
in utter disregard of existing rules and law,
is manifest grave abuse of discretion
tantamount to lack of jurisdiction.
Consequently, the rule that certiorari may
not be invoked to defeat the right of a
prevailing party to the execution of a valid
and final judgment, is inapplicable. For
when an order of execution is issued with
grave abuse of discretion or is at variance
with the judgment sought to be enforced
(PVTA vs. Honorable Gonzales, 92 SCRA
172), certiorari will lie to abate the order of
execution.
(e) Aside from the propriety of resorting to
certiorari to assail an order of execution
which varies the terms of the judgment
sought to be executed or does not find
support in the dispositive part of the latter,
there are circumstances in the instant case
which justify the remedy applied for.
Petitioner MA. ELENA ACHAVAL DE
PASTOR, wife of PASTOR, JR., is the
holder in her own right of three mining
claims which are one of the objects of
conflicting claims of ownership. She is not
an heir of PASTOR, SR. and was not a
party to the probate proceedings.
Therefore, she could not appeal from the
Order of execution issued by the Probate
Court. On the other hand, after the
issuance of the execution order, the
urgency of the relief she and her co-
petitioner husband seek in the petition for
certiorari states against requiring her to go
through the cumbersome procedure of
asking for leave to intervene in the probate
proceedings to enable her, if leave is
granted, to appeal from the challenged
order of execution which has ordered
the immediate transfer and/or garnishment
of the royalties derived from mineral
properties of which she is the duly
registered owner and/or grantee together
with her husband. She could not have
intervened before the issuance of the
assailed orders because she had no valid
ground to intervene. The matter of
ownership over the properties subject of
the execution was then still being litigated
in another court in a reconveyance suit filed
by the special administrator of the estate of
PASTOR, SR.
Likewise, at the time petitioner PASTOR,
JR. Med the petition for certiorari with the
Court of Appeals, appeal was not available
to him since his motion for reconsideration
of the execution order was still pending
resolution by the Probate Court. But in the
face of actual garnishment of their major
source of income, petitioners could no
longer wait for the resolution of their motion
for reconsideration. They needed prompt
relief from the injurious effects of the
execution order. Under the circumstances,
recourse to certiorari was the feasible
remedy.
WHEREFORE, the decision of the Court of
Appeals in CA G.R. No. SP-11373-R is
reversed. The Order of execution issued by
the probate Court dated August 20, 1980,
as well as all the Orders issued subsequent
thereto in alleged implementation of the
Probate Order dated December 5, 1972,
particularly the Orders dated November 11,
109
1980 and December 17, 1980, are hereby
set aside; and this case is remanded to the
Page
appropriate Regional Trial Court for proper
proceedings, subject to the judgment to be
rendered in Civil Case No. 274-R.

SO ORDERED.

Footnotes

* Under the Civil Code, Art. 16,

intestate and testamentary
successions of an alien are
regulated by his national law
"with respect to the order of
succession and to the amount
of successional rights and to
the intrinsic validity of
testamentary provisions." The
Civil Code of Spain Art. 834,
provides for the usufructuary
right of the surviving spouse
with respect to a portion of the
decedent's estate; while Art.
1392 provides for conjugal
partnership. Under the Rules
of Court, Rule 73, Section 2:
"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.
"
110
Page
SECOND DIVISION
[G.R. No. 78778 : December 3, 1990.]
191 SCRA 814
LEONIDA CORONADO, FELIX BUENO,
MELANIA RETIZOS, BERNARDINO
BUENASEDA and JOVITA
MONTEFALCON, Petitioners, vs. THE
COURT OF APPEALS and JUANA
BUENO ALBOVIAS, Respondents.
DECISION
PARAS, J.:
This is a petition for review on certiorari
seeking to reverse the decision* of the
respondent appellate court dated March 3,
1987 CA-G.R. CV No. 06911 entitled
"Juana (Bueno) Albovias et al., v. Leonida
Coronado, et al.," affirming the decision of
the lower court, the decretal portion of
which reads:: nad
"WHEREFORE, premises
considered, judgment is hereby
rendered:
1. Declaring Leonida Coronado to
have no title or interest over the
property in question, hence, has no
authority to dispose of the same in
favor of her co-defendants;
2. Declaring the sales executed by
Coronado and subsequent
transactions involving the same
property null and void ab initio;
3. Declaring the plaintiff to be the
true and legal owner of the subject
parcel of land;
4. Ordering the defendants to vacate
the subject premises and to
surrender possession thereof unto
the plaintiff;
5. Ordering the defendants to jointly
and severally pay unto the plaintiff
the sum of P2,000.00 as attorney's
fees and P10,000.00 as moral and
exemplary damages.
Costs against the defendants."
(Rollo, p. 17)
As found by the respondent appellate court,
the property subject of this case is a parcel
of land situated in Nagcarlan, Laguna,
containing 277 square meters, more
particularly described as follows:: nad
"A parcel of land situated in the
Poblacion, Municipality of Nagcarlan,
province of Laguna. Bounded on the
North, by property of Epifania
Irlandez (formerly Bonifacio
Formentera); on the East, by that of
Julio Lopez; on the South, by that of
Dalmacio Monterola (formerly
Domingo Bueno); and on the West,
by C. Lirio Street. Containing an area
of two hundred seventy seven (277)
square meters, more or less.
Assessed at P3,320.00 under tax
declaration No. 241." (Ibid., p. 15)
Said parcel of land is being contested by
Juana Albovias, herein private respondent,
on the one hand, and Leonida-Coronado,
Felix Bueno, Melania Retizos, Bernardino
Buenseda and Jovita Montefalcon, herein
petitioners, on the other hand.
Juana Albovias (JUANA, for brevity) claims
that the property in question is a portion of
a bigger lot referred to as Parcel G in the
last will and testament executed in 1918 by
Melecio Artiaga, grandfather of JUANA.
This bigger lot was inherited under that will
by JUANA, her brother Domingo Bueno,
and two other grandchildren, namely
Bonifacio and Herminigildo, both surnamed
Formentera. Parcel G is described as
follows:
"Isang lagay na lupa na ang bahagi ay
walang tanim na halaman at ang bahagi
naman ay may tanim na saguing, tumatayo
sa gawin Canloran ng Calle Avenida Rizal
nitong Nagcarlan, at humahangan sa
Ibaba; sa ari cong Testador; sa Silangan,
sa cay Enrique Jovellano; sa Ilaya, sa
namatay na Perfecto Nanagas, at sa
Canloran, tubig na pinamamagatang San
Cido." (Ibid., p. 16)
JUANA further claims that sometime in
1925 or 1926, C. Lirio Street was created
by the Municipality of Nagcarla traversing
said Parcel G and thus dividing it into two
portions, one on the west of C. Lirio St. and
the other to the east of said street. Parcel G
was divided by the heirs in the following
manner; the land was divided into two
portions, the northern portion of which was
111
adjudicated in favor of the Formenteras and
the southern portion was given to JUANA
Page
and Doming Bueno. The southern portion
in turn was partitioned between JUANA and As adverted to above (first par.), the lower
Domingo Bueno, the former getting the court rendered judgment in favor of
northern part adjoining the lot of the JUANA.
Formenteras, and the latter the southern Not satisfied with the decision of the lower
part which adjoins the lot of Perfecto court, CORONADO elevated the case to
Nanagas (not owned by Dalmacio the Court of Appeals, which affirmed the
Monterola). The part allocated to Domingo decision appealed from (Ibid., p. 20).
was later sold by him to Dalmacio Hence, this petition.:-cralaw
Monterola, owner of the adjoining property
(Ibid.).: nad CORONADO raised the following assigned
errors:
Moreover, JUANA claims that her property
was included together with the two parcels I
of land owned by Dalmacio Monterola, THE RESPONDENT COURT OF
which were sold by Monterola's successor- APPEALS SERIOUSLY ERRED IN
in-interest Leonida Coronado (now married ARRIVING AT A CONCLUSION WHICH IS
to Felix Bueno) to Melania Retizos on April CONTRARY TO THE FACTS AND
18, 1970. Melania Retizos in turn sold the CIRCUMSTANCES OF THE CASE AND IN
lots, including that one being claimed by NOT APPLYING THE APPLICABLE
JUANA, to the spouse Bernardino PROVISION OF LAW AND
Buenaseda and Jovita Montefalcon, now JURISPRUDENCE LAID DOWN BY THIS
the present possessors thereof, sometime HONORABLE COURT. (Ibid., p. 108)
in 1974 (Ibid., pp. 16-17).
II
On the other hand, Leonida Coronado and
her co-petitioners (CORONADO, for THERE IS NO EVIDENCE PRESENTED
brevity) claim that the property in question TO SHOW THAT THE LAND IN
was bequeathed to Leonida Coronado QUESTION CLAIMED BY PRIVATE
under a Will executed by Dr. Dalmacio RESPONDENT IS THE SAME PROPERTY
Monterola, who was allegedly in ADJUDICATED TO JUANA BUENO
possession thereof even before the UNDER THE WILL OF THE DECEASED
outbreak of World War II (Ibid., p. 107). MELECIO ARTIAGA; NEITHER IS THERE
EVIDENCE TO SHOW THAT SAID WILL
Parenthetically, said will was probated HAD BEEN PROBATED. (Ibid., p. 114)
under Sp. Proc. No. SC-283, entitled
"Testate Estate of the Deceased Monterola III
Leonida F. Coronado, petitioner (Ibid., p. PRIVATE RESPONDENT IS IN
105). JUANA, together with her husband, ESTOPPEL FROM QUESTIONING THE
opposed the said probate. Despite their OWNERSHIP OF THE PETITIONER
opposition, however, the Will was allowed OVER THE LAND IN QUESTION HAVING
by the then Court of First Instance of FAILED TO RAISE THE SAME IN THE
Laguna, Sta. Cruz Branch (Ibid., p. 106). ESTATE PROCEEDING IN THE TRIAL
On appeal, said decision was affirmed by COURT AND EVEN ON APPEAL. (Ibid., p.
the Court of Appeals in CA-G.R. No. 119)
40353, entitled "Leonida F. Coronado, IV
petitioner-appellee v. Heirs of Dr. Dalmacio
Monterola, oppositors-appellants" (Ibid.). It THE RESPONDENT COURT OF
is not apparent, however, from the record APPEALS MISAPPRECIATED THE
whether or not said decision has already EVIDENCE SUBMITTED AND FACTS
become final and executory. ADMITTED ON RECORD. IT
THEREFORE COMMITTED GRAVE AND
As a result of the conflicting claims over the SERIOUS ERROR. (Ibid., p. 121)
property in question, JUANA filed an action
for quieting of title, declaratory relief and As required by this Court, CORONADO
damages against CORONADO in the filed their memorandum on May 8, 1989
Regional Trial Court of the Fourth Judicial (Ibid., p. 105); while that of JUANA was
112

Region, Branch XXVI, Sta. Cruz, Laguna, filed on October 13, 1989 (Ibid., p. 139).
docketed as Civil Case No. 7345 (Ibid., p. The petition is devoid of merit.
Page

4).
Under the first assigned error,
CORONADO assails the respondent
appellate court's finding that Dr. Dalmacio
Monterola could not have acquired the
subject land by acquisitive prescription.
Citing Art. 1116 of the New Civil Code in
relation to Section 41 of the Code of Civil
Procedure, CORONADO claims that
JUANA had already foreclosed whatever
right or legal title she had over the property
in question, the reason being that
Monterola's continued possession of the
said property for over ten years since 1934
ripened into full and absolute ownership
(Ibid., p. 112).
The argument has no factual basis.
Time and again, it has been ruled that the
jurisdiction of the Supreme Court in cases
brought to it from the Court of Appeals is
limited to reviewing and revising the errors
of law imputed to it, its findings of fact being
conclusive. It is not the function of the
Supreme Court to analyze or weigh such
evidence all over again, its jurisdiction
being limited to reviewing errors of law that
might have been committed. Absent,
therefore, a showing that the findings
complained of are totally devoid of support
in the record, so that they are so glaringly
erroneous as to constitute serious abuse of
discretion, such findings must stand, for the
Supreme Court is not expected or required
to examine or contrast the oral and
documentary evidence submitted by the
parties (Andres v. Manufacturers Hanover
& Trust Corporation, G.R. 82670,
September 15, 1989). There are no
convincing reasons in the instant case to
depart from this rule.
As found by the respondent appellate court,
Monterola never claimed ownership over
the property in question. As a matter of
fact, one of the deeds of donation executed
by Monterola in favor of Leonida Coronado
acknowledged that the boundary owner on
the property conveyed to her is JUANA.
This is precisely the reason why during the
lifetime of the late Dalmacio Monterola,
JUANA had always been allowed to enter
and reap the benefits or produce of the said
property. It was only after the death of said
Monterola in 1970 that Leonida Coronado
prohibited JUANA from entering it (Ibid., p.
18).:- nad
Even assuming arguendo that Monterola
was indeed in continued possession of the
said property for over ten years since 1934,
said possession is insufficient to constitute
the fundamental basis of the prescription.
Possession, under the Civil Code, to
constitute the foundation of a prescriptive
right, must be possession under claim of
title (en concepto de dueno), or to use the
common law equivalent of the term, it must
be adverse. Acts of possessory character
performed by one who holds by mere
tolerance of the owner are clearly not en
concepto de dueno, and such possessory
acts, no matter how long so continued, do
not start the running of the period of
prescription (Manila Electric Company v.
Intermediate Appellate Court, G.R. 71393,
June 28, 1989).
In this case, Monterola, as found by the
respondent appellate court and the lower
court, never categorically claimed
ownership over the property in question,
much less his possession thereof en
concepto de dueno. Accordingly, he could
not have acquired said property by
acquisitive prescription.
Anent the contention of CORONADO that
Leonida Coronado could tack her
possession to that of Monterola, so that
claim of legal title or ownership over the
subject property, even against the
petitioners, the Buenasesas, who are
purchasers for value and in good faith, is a
foregone or settled issue, the respondent
appellate court aptly answered the same in
this wise:
"It follows that Leonida Coronado could not
have derived ownership of the land in
question from her predecessor-in-interest
Dalmacio Monterola, whether by
prescription or by some other title. Neither
can she claim acquisitive prescription in her
own name. It was only in 1970 after the
death of Dalmacio Monterola that she
asserted her claim of ownership adverse to
that of plaintiff-appellee. Having knowledge
that she had no title over the land in
question, she must be deemed to have
claimed it in bad faith. Under Article 1137 of
the Civil Code, ownership and other real
rights over immovables prescribe through
113
uninterrupted adverse possession thereof
for thirty years, without need of title or good
faith. And even granting that she had no
Page
notice or defect in her title and was,
therefore, in good faith, a period of ten
years of possession is necessary for her to
acquire the land by ordinary prescription.
(Article 1134, Civil Code). But she can
claim to have possessed the land only in
1968, the year the Monterola lots were
donated to her. The period, however, was
interrupted in 1975, or 7 years after, when
the complaint below was filed." (Rollo, pp.
18-19)
Under the second assigned error,
CORONADO claims that the will under
which JUANA inherited the property in
question from her grandfather, Melecio
Artiaga, was never probated; hence, said
transfer for ownership was ineffectual
considering that under Rule 75, Sec. 1 of
the Rules of Court (formerly Sec. 125 of Act
No. 190, no will shall pass either real or
personal property unless it is proved and
allowed in the proper court (Ibid., p. 115).
The contention is without merit.chanrobles
virtual law library
While it is true that no will shall pass either
real or personal property unless it is proved
and allowed in the proper court (Art. 838,
Civil Code), the questioned will, however,
may be sustained on the basis of Article
1056 of the Civil Code of 1899, which was
in force at the time said document was
executed by Melecio Artiaga in 1918. The
said article read as follows:
"Article 1056. If the testator should make a
partition of his properties by an act inter
vivos, or by will, such partition shall stand in
so far as it does not prejudice the legitime
of the forced heir." (Mang-Oy v. Court of
Appeals, 144 SCRA 33 [1986])
In this case, nowhere was it alleged nor
shown that Leonida Coronado is entitled to
legitime from Melecio Artiaga. The truth of
the matter is that the record is bereft of any
showing that Leonida Coronado and the
late Melecio Artiaga were related to each
other.
Under the third assigned error,
CORONADO claims that JUANA is
estopped from questioning the ownership
of Leonida Coronado over the land in
question having failed to raise the same in
the estate proceedings in the trial court and
even on appeal (Rollo, p. 119).
The contention is likewise without merit.
Normally, the probate of a will does not
look into its intrinsic validity. The
authentication of a will decides no other
questions than such as touch upon the
capacity of the testator and the compliance
with those requisites or solemnities which
the law prescribes for the validity of the
wills. It does not determine nor even by
implication prejudge the validity or
efficiency of the provisions of the will, thus
may be impugned as being vicious or null,
notwithstanding its authentication. The
question relating to these points remain
entirely unaffected, and may be raised
even after the will has been authenticated
(Maninang, et al., v. Court of Appeals, 114
SCRA 473 [1982]). Consequently, JUANA
is not estopped from questioning the
ownership of the property in question,
notwithstanding her having objected to the
probate of the will executed by Monterola
under which Leonida Coronado is claiming
title to the said property.:-cralaw
Under the fourth assigned error, it is
alleged by CORONADO that JUANA's
petition is weak for want of factual and legal
support; the weakness of JUANA's position
lies in the fact that she did not only fail to
identify the subject land, but also failed to
explain the discrepancy in the boundary of
the property she is claiming to be hers
(Rollo, p. 125).
The contention is unavailing.
The fact that JUANA failed to identify the
property in question and to explain the
discrepancy in the boundary of said
property, assuming they are true, is
immaterial, in view of the findings of the
lower court as to the identity of the property
in question. Moreover, the lower court
found sufficient evidence to support the
conclusion that the property in question is
the same property adjudicated to JUANA
under the will of Melecio Artiaga, and that
CORONADO has no right whatsoever to
said property (Ibid., p. 20). Such findings
are conclusive upon this Court (Reynolds
Philippine Corporation v. Court of Appeals,
169 SCRA 220 [1989]).
PREMISES CONSIDERED, the decision
appealed from is hereby AFFIRMED.
SO ORDERED.
114
Page
G.R. No. L-54919 May 30, 1984
POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his
capacity as the Presiding Judge of
Branch XXXVIII, Court of First Instance
of Manila and NENITA CAMPOS
PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private
respondent.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari,
seeking to annul the order of the
respondent judge of the Court of First
Instance of Manila, Branch XXXVIII, which
admitted to and allowed the probate of the
last will and testament of Adoracion C.
Campos, after an ex-parte presentation of
evidence by herein private respondent.
On January 31, 1977, Adoracion C.
Campos died, leaving her father, petitioner
Hermogenes Campos and her sisters,
private respondent Nenita C. Paguia,
Remedios C. Lopez and Marieta C. Medina
as the surviving heirs. As Hermogenes
Campos was the only compulsory heir, he
executed an Affidavit of Adjudication under
Rule 74, Section I of the Rules of Court
whereby he adjudicated unto himself the
ownership of the entire estate of the
deceased Adoracion Campos.
Eleven months after, on November 25,
1977, Nenita C. Paguia filed a petition for
the reprobate of a will of the deceased,
Adoracion Campos, which was allegedly
executed in the United States and for her
appointment as administratrix of the estate
of the deceased testatrix.
In her petition, Nenita alleged that the
testatrix was an American citizen at the
time of her death and was a permanent
resident of 4633 Ditman Street,
Philadelphia, Pennsylvania, U.S.A.; that the
testatrix died in Manila on January 31, 1977
while temporarily residing with her sister at
2167 Leveriza, Malate, Manila; that during
her lifetime, the testatrix made her last wig
and testament on July 10, 1975, according
to the laws of Pennsylvania, U.S.A.,
nominating Wilfredo Barzaga of New
Jersey as executor; that after the testatrix
death, her last will and testament was
presented, probated, allowed, and
registered with the Registry of Wins at the
County of Philadelphia, U.S.A., that
Clement L. McLaughlin, the administrator
who was appointed after Dr. Barzaga had
declined and waived his appointment as
executor in favor of the former, is also a
resident of Philadelphia, U.S.A., and that
therefore, there is an urgent need for the
appointment of an administratrix to
administer and eventually distribute the
properties of the estate located in the
Philippines.
On January 11, 1978, an opposition to the
reprobate of the will was filed by herein
petitioner alleging among other things, that
he has every reason to believe that the will
in question is a forgery; that the intrinsic
provisions of the will are null and void; and
that even if pertinent American laws on
intrinsic provisions are invoked, the same
could not apply inasmuch as they would
work injustice and injury to him.
On December 1, 1978, however, the
petitioner through his counsel, Atty. Franco
Loyola, filed a Motion to Dismiss
Opposition (With Waiver of Rights or
Interests) stating that he "has been able to
verify the veracity thereof (of the will) and
now confirms the same to be truly the
probated will of his daughter Adoracion."
Hence, an ex-partepresentation of
evidence for the reprobate of the
questioned will was made.
On January 10, 1979, the respondent judge
issued an order, to wit:
At the hearing, it has been
satisfactorily established that
Adoracion C. Campos, in her
lifetime, was a citizen of the
United States of America with
a permanent residence at 4633
Ditman Street, Philadelphia,
PA 19124, (Exhibit D) that
115
when alive, Adoracion C.
Campos executed a Last Will
Page
and Testament in the county of
 Philadelphia, Pennsylvania,
U.S.A., according to the laws
thereat (Exhibits E-3 to E-3-b)
that while in temporary sojourn
in the Philippines, Adoracion
C. Campos died in the City of
Manila (Exhibit C) leaving
property both in the Philippines
and in the United States of
America; that the Last Will and
Testament of the late
Adoracion C. Campos was
admitted and granted probate
by the Orphan's Court Division
of the Court of Common Pleas,
the probate court of the
Commonwealth of
Pennsylvania, County of
Philadelphia, U.S.A., and
letters of administration were
issued in favor of Clement J.
McLaughlin all in accordance
with the laws of the said
foreign country on procedure
and allowance of wills (Exhibits
E to E-10); and that the
petitioner is not suffering from
any disqualification which
would render her unfit as
administratrix of the estate in
the Philippines of the late
Adoracion C. Campos.
WHEREFORE, the Last Will
and Testament of the late
Adoracion C. Campos is
hereby admitted to and
allowed probate in the
Philippines, and Nenita
Campos Paguia is hereby
appointed Administratrix of the
estate of said decedent; let
Letters of Administration with
the Will annexed issue in favor
of said Administratrix upon her
filing of a bond in the amount
of P5,000.00 conditioned
under the provisions of Section
I, Rule 81 of the Rules of
Court.
Another manifestation was filed by the
petitioner on April 14, 1979, confirming the
withdrawal of his opposition,
acknowledging the same to be his
voluntary act and deed.
On May 25, 1979, Hermogenes Campos
filed a petition for relief, praying that the
order allowing the will be set aside on the
ground that the withdrawal of his opposition
to the same was secured through
fraudulent means. According to him, the
"Motion to Dismiss Opposition" was
inserted among the papers which he signed
in connection with two Deeds of Conditional
Sales which he executed with the
Construction and Development Corporation
of the Philippines (CDCP). He also alleged
that the lawyer who filed the withdrawal of
the opposition was not his counsel-of-
record in the special proceedings case.
The petition for relief was set for hearing
but the petitioner failed to appear. He made
several motions for postponement until the
hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another
motion entitled "Motion to Vacate and/or
Set Aside the Order of January 10, 1979,
and/or dismiss the case for lack of
jurisdiction. In this motion, the notice of
hearing provided:
Please include this motion in
your calendar for hearing on
May 29, 1980 at 8:30 in the
morning for submission for
reconsideration and resolution
of the Honorable Court. Until
this Motion is resolved, may I
also request for the future
setting of the case for hearing
on the Oppositor's motion to
set aside previously filed.
The hearing of May 29, 1980 was re-set by
the court for June 19, 1980. When the case
was called for hearing on this date, the
counsel for petitioner tried to argue his
motion to vacate instead of adducing
evidence in support of the petition for relief.
Thus, the respondent judge issued an order
dismissing the petition for relief for failure to
present evidence in support thereof.
Petitioner filed a motion for reconsideration
but the same was denied. In the same
order, respondent judge also denied the
motion to vacate for lack of merit. Hence,
this petition.
116
Meanwhile, on June 6,1982, petitioner
Page
Hermogenes Campos died and left a will,
which, incidentally has been questioned by
the respondent, his children and forced
heirs as, on its face, patently null and void,
and a fabrication, appointing Polly
Cayetano as the executrix of his last will
and testament. Cayetano, therefore, filed a
motion to substitute herself as petitioner in
the instant case which was granted by the
court on September 13, 1982.
A motion to dismiss the petition on the
ground that the rights of the petitioner
Hermogenes Campos merged upon his
death with the rights of the respondent and
her sisters, only remaining children and
forced heirs was denied on September 12,
1983.
Petitioner Cayetano persists with the
allegations that the respondent judge acted
without or in excess of his jurisdiction
when:
1) He ruled the petitioner lost
his standing in court deprived
the Right to Notice (sic) upon
the filing of the Motion to
Dismiss opposition with waiver
of rights or interests against
the estate of deceased
Adoracion C. Campos, thus,
paving the way for the
hearing ex-parte of the petition
for the probate of decedent
will.
2) He ruled that petitioner can
waive, renounce or repudiate
(not made in a public or
authenticated instrument), or
by way of a petition presented
to the court but by way of a
motion presented prior to an
order for the distribution of the
estate-the law especially
providing that repudiation of an
inheritance must be presented,
within 30 days after it has
issued an order for the
distribution of the estate in
accordance with the rules of
Court.
3) He ruled that the right of a
forced heir to his legitime can
be divested by a decree
admitting a will to probate in
which no provision is made for
the forced heir in complete
disregard of Law of
Succession
4) He denied petitioner's
petition for Relief on the
ground that no evidence was
adduced to support the Petition
for Relief when no Notice nor
hearing was set to afford
petitioner to prove the merit of
his petition — a denial of the
due process and a grave
abuse of discretion amounting
to lack of jurisdiction.
5) He acquired no jurisdiction
over the testate case, the fact
that the Testator at the time of
death was a usual resident of
Dasmariñas, Cavite,
consequently Cavite Court of
First Instance has exclusive
jurisdiction over the case (De
Borja vs. Tan, G.R. No. L-
7792, July 1955).
The first two issues raised by the petitioner
are anchored on the allegation that the
respondent judge acted with grave abuse
of discretion when he allowed the
withdrawal of the petitioner's opposition to
the reprobate of the will.
We find no grave abuse of discretion on the
part of the respondent judge. No proof was
adduced to support petitioner's contention
that the motion to withdraw was secured
through fraudulent means and that Atty.
Franco Loyola was not his counsel of
record. The records show that after the
firing of the contested motion, the petitioner
at a later date, filed a manifestation wherein
he confirmed that the Motion to Dismiss
Opposition was his voluntary act and deed.
Moreover, at the time the motion was filed,
the petitioner's former counsel, Atty. Jose
P. Lagrosa had long withdrawn from the
case and had been substituted by Atty.
Franco Loyola who in turn filed the motion.
The present petitioner cannot, therefore,
maintain that the old man's attorney of
record was Atty. Lagrosa at the time of
117
filing the motion. Since the withdrawal was
in order, the respondent judge acted
Page
correctly in hearing the probate of the
will ex-parte, there being no other
opposition to the same.
The third issue raised deals with the validity
of the provisions of the will. As a general
rule, the probate court's authority is limited
only to the extrinsic validity of the will, the
due execution thereof, the testatrix's
testamentary capacity and the compliance
with the requisites or solemnities
prescribed by law. The intrinsic validity of
the will normally comes only after the court
has declared that the will has been duly
authenticated. However, where practical
considerations demand that the intrinsic
validity of the will be passed upon, even
before it is probated, the court should meet
the issue. (Maninang vs. Court of Appeals,
114 SCRA 478).
In the case at bar, the petitioner maintains
that since the respondent judge allowed the
reprobate of Adoracion's will, Hermogenes
C. Campos was divested of his legitime
which was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to
have preterited the petitioner and thus, the
respondent judge should have denied its
reprobate outright, the private respondents
have sufficiently established that Adoracion
was, at the time of her death, an American
citizen and a permanent resident of
Philadelphia, Pennsylvania, U.S.A.
Therefore, under Article 16 par. (2) and
1039 of the Civil Code which respectively
provide:
Art. 16 par. (2).
xxx xxx xxx
However, intestate and
testamentary successions,
both with respect to the order
of succession and to the
amount of successional rights
and to the intrinsic validity of
testamentary provisions, shall
be regulated by the national
law of the person whose
succession is under
consideration, whatever may
be the nature of the property
and regardless of the country
wherein said property may be
found.
Art. 1039.
Capacity to succeed is
governed by the law of the
nation of the decedent.
the law which governs Adoracion Campo's
will is the law of Pennsylvania, U.S.A.,
which is the national law of the decedent.
Although the parties admit that the
Pennsylvania law does not provide for
legitimes and that all the estate may be
given away by the testatrix to a complete
stranger, the petitioner argues that such
law should not apply because it would be
contrary to the sound and established
public policy and would run counter to the
specific provisions of Philippine Law.
It is a settled rule that as regards the
intrinsic validity of the provisions of the will,
as provided for by Article 16(2) and 1039 of
the Civil Code, the national law of the
decedent must apply. This was squarely
applied in the case of Bellis v. Bellis (20
SCRA 358) wherein we ruled:
It is therefore evident that
whatever public policy or good
customs may be involved in
our system of legitimes,
Congress has not intended to
extend the same to the
succession of foreign
nationals. For it has specifically
chosen to leave, inter alia, the
amount of successional rights,
to the decedent's national law.
Specific provisions must
prevail over general ones.
xxx xxx xxx
The parties admit that the
decedent, Amos G. Bellis, was
a citizen of the State of Texas,
U.S.A., and under the law of
Texas, there are no forced
heirs or legitimes. Accordingly,
since the intrinsic validity of the
provision of the will and the
118
amount of successional rights
are to be determined under
Page
Texas law, the Philippine Law
 on legitimes cannot be applied
to the testacy of Amos G.
Bellis.
As regards the alleged absence of notice of
hearing for the petition for relief, the
records wig bear the fact that what was
repeatedly scheduled for hearing on
separate dates until June 19, 1980 was the
petitioner's petition for relief and not his
motion to vacate the order of January 10,
1979. There is no reason why the petitioner
should have been led to believe otherwise.
The court even admonished the petitioner's
failing to adduce evidence when his petition
for relief was repeatedly set for hearing.
There was no denial of due process. The
fact that he requested "for the future setting
of the case for hearing . . ." did not mean
that at the next hearing, the motion to
vacate would be heard and given
preference in lieu of the petition for relief.
Furthermore, such request should be
embodied in a motion and not in a mere
notice of hearing.
proceeding, except in an
appeal from that court, in the
original case, or when the want
of jurisdiction appears on the
record.
Therefore, the settlement of the estate of
Adoracion Campos was correctly filed with
the Court of First Instance of Manila where
she had an estate since it was alleged and
proven that Adoracion at the time of her
death was a citizen and permanent resident
of Pennsylvania, United States of America
and not a "usual resident of Cavite" as
alleged by the petitioner. Moreover,
petitioner is now estopped from questioning
the jurisdiction of the probate court in the
petition for relief. It is a settled rule that a
party cannot invoke the jurisdiction of a
court to secure affirmative relief, against his
opponent and after failing to obtain such
relief, repudiate or question that same
jurisdiction. (See Saulog Transit, Inc. vs.
Hon. Manuel Lazaro, et al., G. R. No. 63
284, April 4, 1984).

Finally, we find the contention of the WHEREFORE, the petition for certiorari
petition as to the issue of jurisdiction utterly and prohibition is hereby dismissed for lack
devoid of merit. Under Rule 73, Section 1, of merit.
of the Rules of Court, it is provided that:
SO ORDERED.
SECTION 1. Where estate of
deceased persons settled. — If
the decedent is an inhabitant
of the Philippines at the time of
his death, whether a citizen or
an alien, his will shall be
proved, or letters of
administration granted, and his
estate settled, in the Court of
First Instance in the province in
which he resided at the time of
his death, and if he is an
inhabitant of a foreign country,
the Court of First Instance of
any province in which he had
estate. The court first taking
cognizance of the settlement of
the estate of a decedent, shall
exercise jurisdiction to the
exclusion of all other courts.
The jurisdiction assumed by a
court, so far as it depends on
the place of residence of the
119

decedent, or of the location of

his estate, shall not be
Page

contested in a suit or
G.R. No. 83484 February 12, 1990
CELEDONIA SOLIVIO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS
and CONCORDIA JAVELLANA
VILLANUEVA, respondents.
Rex Suiza Castillon for petitioner.
Salas & Villareal for private respondent.
MEDIALDEA, J.:
This is a petition for review of the decision
dated January 26, 1988 of the Court of
Appeals in CA GR CV No. 09010
(Concordia Villanueva v. Celedonia Solivio)
affirming the decision of the trial court in
Civil Case No. 13207 for partition,
reconveyance of ownership and
possession and damages, the dispositive
portion of which reads as follows:
WHEREFORE, judgment is hereby
rendered for the plaintiff and
against defendant:
a) Ordering that the estate of the
late Esteban Javellana, Jr. be
divided into two (2) shares: one-half
for the plaintiff and one-half for
defendant. From both shares shall
be equally deducted the expenses
for the burial, mausoleum and
related expenditures. Against the
share of defendants shall be
charged the expenses for
scholarship, awards, donations and
the 'Salustia Solivio Vda. de
Javellana Memorial Foundation;'
b) Directing the defendant to submit
an inventory of the entire estate
property, including but not limited
to, specific items already mentioned
in this decision and to render an
accounting of the property of the
estate, within thirty (30) days from
receipt of this judgment; one-half
(1/2) of this produce shall belong to
plaintiff;
c) Ordering defendant to pay
plaintiff P5,000.00 as expenses of
litigation; P10,000.00 for and as
attorney's fees plus costs.
SO ORDERED. (pp. 42-43, Rollo)
This case involves the estate of the late
novelist, Esteban Javellana, Jr., author of
the first post-war Filipino novel "Without
Seeing the Dawn," who died a bachelor,
without descendants, ascendants, brothers,
sisters, nephews or nieces. His only
surviving relatives are: (1) his maternal
aunt, petitioner Celedonia Solivio, the
spinster half-sister of his mother, Salustia
Solivio; and (2) the private respondent,
Concordia Javellana-Villanueva, sister of
his deceased father, Esteban Javellana, Sr.
He was a posthumous child. His father died
barely ten (10) months after his marriage in
December, 1916 to Salustia Solivio and
four months before Esteban, Jr. was born.
Salustia and her sister, Celedonia
(daughter of Engracio Solivio and his
second wife Josefa Fernandez), a teacher
in the Iloilo Provincial High School, brought
up Esteban, Jr.
Salustia brought to her marriage
paraphernal properties (various parcels of
land in Calinog, Iloilo covered by 24 titles)
which she had inherited from her mother,
Gregoria Celo, Engracio Solivio's first wife
(p. 325, Record), but no conjugal property
was acquired during her short-lived
marriage to Esteban, Sr.
On October 11, 1959, Salustia died, leaving
all her properties to her only child, Esteban,
Jr., including a house and lot in La Paz,
Iloilo City, where she, her son, and her
sister lived. In due time, the titles of all
these properties were transferred in the
name of Esteban, Jr.
During his lifetime, Esteban, Jr. had, more
than once, expressed to his aunt Celedonia
and some close friends his plan to place his
estate in a foundation to honor his mother
and to help poor but deserving students
obtain a college education. Unfortunately,
he died of a heart attack on February
26,1977 without having set up the
foundation.
Two weeks after his funeral, Concordia and
120
Celedonia talked about what to do with
Esteban's properties. Celedonia told
Page
Concordia about Esteban's desire to place
his estate in a foundation to be named after
his mother, from whom his properties
came, for the purpose of helping indigent
students in their schooling. Concordia
agreed to carry out the plan of the
deceased. This fact was admitted by her in
her "Motion to Reopen and/or Reconsider
the Order dated April 3, 1978" which she
filed on July 27, 1978 in Special
Proceeding No. 2540, where she stated:
4. That petitioner knew all
along the narrated facts in the
immediately preceding
paragraph [that herein movant
is also the relative of the
deceased within the third
degree, she being the younger
sister of the late Esteban
Javellana, father of the
decedent herein],
because prior to the filing of
the petition they (petitioner
Celedonia Solivio and movant
Concordia Javellana) have
agreed to make the estate of
the decedent a motion was denied by the court for
foundation, besides they have
closely known each other due
to their filiation to the decedent
and they have been visiting
each other's house which are
not far away for (sic) each
other. (p. 234, Record;
Emphasis supplied.)
Pursuant to their agreement that Celedonia
would take care of the proceedings leading
to the formation of the foundation,
Celedonia in good faith and upon the
advice of her counsel, filed on March 8,
1977 Spl. Proceeding No. 2540 for her
appointment as special administratrix of the
estate of Esteban Javellana, Jr. (Exh. 2).
Later, she filed an amended petition (Exh.
5) praying that letters of administration be
issued to her; that she be declared sole
heir of the deceased; and that after
payment of all claims and rendition of
inventory and accounting, the estate be
adjudicated to her (p. 115, Rollo).
After due publication and hearing of her
petition, as well as her amended petition,
she was declared sole heir of the estate of
Esteban Javellana, Jr. She explained that
this was done for three reasons: (1)
because the properties of the estate had
come from her sister, Salustia Solivio; (2)
that she is the decedent's nearest relative
on his mother's side; and (3) with her as
sole heir, the disposition of the properties of
the estate to fund the foundation would be
facilitated.
On April 3, 1978, the court (Branch II, CFI,
now Branch 23, RTC) declared her the sole
heir of Esteban, Jr. Thereafter, she sold
properties of the estate to pay the taxes
and other obligations of the deceased and
proceeded to set up the "SALUSTIA
SOLIVIO VDA. DE JAVELLANA
FOUNDATION" which she caused to be
registered in the Securities and Exchange
Commission on July 17,1981 under Reg.
No. 0100027 (p. 98, Rollo).
Four months later, or on August 7, 1978,
Concordia Javellana Villanueva filed a
motion for reconsideration of the court's
order declaring Celedonia as "sole heir" of
Esteban, Jr., because she too was an heir
of the deceased. On October 27, 1978, her
tardiness (pp. 80-81, Record). Instead of
appealing the denial, Concordia filed on
January 7, 1980 (or one year and two
months later), Civil Case No. 13207 in the
Regional Trial Court of Iloilo, Branch 26,
entitled "Concordia Javellana- Villanueva v.
Celedonia Solivio" for partition, recovery of
possession, ownership and damages.
On September 3, 1984, the said trial court
rendered judgment in Civil Case No.
13207, in favor of Concordia Javellana-
Villanueva.
On Concordia's motion, the trial court
ordered the execution of its judgment
pending appeal and required Celedonia to
submit an inventory and accounting of the
estate. In her motions for reconsideration of
those orders, Celedonia averred that the
properties of the deceased had already
been transferred to, and were in the
possession of, the 'Salustia Solivio Vda. de
Javellana Foundation." The trial court
denied her motions for reconsideration.
In the meantime, Celedonia perfected an
121
appeal to the Court of Appeals (CA GR CV
No. 09010). On January 26, 1988, the
Page
Court of Appeals, Eleventh Division,
rendered judgment affirming the decision of
the trial court in toto.Hence, this petition for
review wherein she raised the following
legal issues:
1. whether Branch 26 of the
RTC of Iloilo had jurisdiction to
entertain Civil Case No. 13207
for partition and recovery of
Concordia Villanueva's share
of the estate of Esteban
Javellana, Jr. even while the
probate proceedings (Spl.
Proc. No. 2540) were still
pending in Branch 23 of the
same court;
2. whether Concordia
Villanueva was prevented from
intervening in Spl. Proc. No.
2540 through extrinsic fraud;
3. whether the decedent's
properties were subject
to reserva troncal in favor of
Celedonia, his relative within
the third degree on his
mother's side from whom he
had inherited them; and
4. whether Concordia may
recover her share of the estate
after she had agreed to place
the same in the Salustia
Solivio Vda. de Javellana
Foundation, and
notwithstanding the fact that
conformably with said
agreement, the Foundation
has been formed and
properties of the estate have
already been transferred to it.
I. The question of jurisdiction—
After a careful review of the records, we
find merit in the petitioner's contention that
the Regional Trial Court, Branch 26, lacked
jurisdiction to entertain Concordia
Villanueva's action for partition and
recovery of her share of the estate of
Esteban Javellana, Jr. while the probate
proceedings (Spl, Proc. No. 2540) for the
settlement of said estate are still pending in
Branch 23 of the same court, there being
as yet no orders for the submission and
approval of the administratix's inventory
and accounting, distributing the residue of
the estate to the heir, and terminating the
proceedings (p. 31, Record).
It is the order of distribution directing the
delivery of the residue of the estate to the
persons entitled thereto that brings to a
close the intestate proceedings, puts an
end to the administration and thus far
relieves the administrator from his duties
(Santiesteban v. Santiesteban, 68 Phil.
367, Philippine Commercial and Industrial
Bank v. Escolin, et al., L-27860, March 29,
1974, 56 SCRA 266).
The assailed order of Judge Adil in Spl.
Proc. No. 2540 declaring Celedonia as the
sole heir of the estate of Esteban
Javellana, Jr. did not toll the end of the
proceedings. As a matter of fact, the last
paragraph of the order directed the
administratrix to "hurry up the settlement of
the estate." The pertinent portions of the
order are quoted below:
2. As regards the second
incident [Motion for Declaration
of Miss Celedonia Solivio as
Sole Heir, dated March 7,
1978], it appears from the
record that despite the notices
posted and the publication of
these proceedings as required
by law, no other heirs came
out to interpose any opposition
to the instant proceeding. It
further appears that herein
Administratrix is the only
claimant-heir to the estate of
the late Esteban Javellana who
died on February 26, 1977.
During the hearing of the
motion for declaration as heir
on March 17, 1978, it was
established that the late
Esteban Javellana died single,
without any known issue, and
without any surviving parents.
His nearest relative is the
herein Administratrix, an elder
[sic] sister of his late mother
who reared him and with whom
he had always been living with
122
[sic] during his lifetime.
Page
xxxxxxxxx
 2. Miss Celedonia Solivio,
Administratrix of this estate, is
hereby declared as the sole
and legal heir of the late
Esteban S. Javellana, who
died intestate on February 26,
1977 at La Paz, Iloilo City.
The Administratrix is hereby
instructed to hurry up with the
settlement of this estate so that
it can be terminated. (pp, 14-
16, Record)
In view of the pendency of the probate
proceedings in Branch 11 of the Court of
First Instance (now RTC, Branch 23),
Concordia's motion to set aside the order
declaring Celedonia as sole heir of
Esteban, and to have herself (Concordia)
declared as co-heir and recover her share
of the properties of the deceased, was
properly filed by her in Spl. Proc. No. 2540.
Her remedy when the court denied her
motion, was to elevate the denial to the
Court of Appeals for review on certiorari.
However, instead of availing of that
remedy, she filed more than one year later,
a separate action for the same purpose in
Branch 26 of the court. We hold that the
separate action was improperly filed for it is
the probate court that
has exclusive jurisdiction to make a just
and legal distribution of the estate.
In the interest of orderly procedure and to
avoid confusing and conflicting dispositions
of a decedent's estate, a court should not
interfere with probate proceedings pending
in a co-equal court. Thus, did we rule
in Guilas v. Judge of the Court of First
Instance of Pampanga, L-26695, January
31, 1972, 43 SCRA 111, 117, where a
daughter filed a separate action to annul a
project of partition executed between her
and her father in the proceedings for the
settlement of the estate of her mother:
The probate court loses
jurisdiction of an estate under
administration only after the
payment of all the debts and
the remaining estate delivered
to the heirs entitled to receive
the same. The finality of the
approval of the project of The
probate court, in the exercise
of its jurisdiction to make
distribution, has power to
determine the proportion or
parts to which each distributed
is entitled. ... The power to
determine the legality or
illegality of the testamentary
provision is inherent in the
jurisdiction of the court making
a just and legal distribution of
the inheritance. ... To hold that
a separate and independent
action is necessary to that
effect, would be contrary to the
general tendency of the
jurisprudence of avoiding
multiplicity of suits; and is
further, expensive, dilatory,
and impractical. (Marcelino v.
Antonio, 70 Phil. 388)
A judicial declaration that a
certain person is the only heir
of the decedent is exclusively
within the range of the
administratrix proceedings and
can not properly be made an
independent action. (Litam v.
Espiritu, 100 Phil. 364)
A separate action for the
declaration of heirs is not
proper. (Pimentel v. Palanca, 5
Phil. 436)
partition by itself alone does
not terminate the probate
proceeding (Timbol v. Cano, 1
SCRA 1271, 1276, L-15445,
April 29, 1961; Siguiong v.
Tecson, 89 Phil. pp. 28, 30).
As long as the order of the
distribution of the estate has
not been complied with, the
probate proceedings cannot be
deemed closed and terminated
Siguiong v. Tecson, supra);
because a judicial partition is
not final and conclusive and
does not prevent the heirs from
bringing an action to obtain his
share, provided the
prescriptive period therefore
has not elapsed (Mari v.
123
Bonilia, 83 Phil. 137). The
better practice, however, for
Page
the heir who has not received
 his share, is to demand his
share through a proper motion
in the same probate or
administration proceedings, or
for reopening of the probate or
administrative proceedings if it
had already been closed, and
not through an independent
action, which would be tried by
another court or Judge which
may thus reverse a decision or
order of the probate or
intestate court already final
and executed and re-shuffle
properties long ago distributed
and disposed of. (Ramos v.
Ortuzar, 89 Phil. 730, 741-742;
Timbol v. Cano, supra; Jingco
v. Daluz, L-5107, April 24,
1953, 92 Phil. 1082; Roman
Catholic v. Agustines, L-14710,
March 29, 1960, 107 Phil. 455,
460-461; Emphasis supplied)
In Litam et al., v. Rivera, 100 Phil. 364,
where despite the pendency of the special
proceedings for the settlement of the
intestate estate of the deceased Rafael
Litam the plaintiffs-appellants filed a civil
action in which they claimed that they were
the children by a previous marriage of the
deceased to a Chinese woman, hence,
entitled to inherit his one-half share of the
conjugal properties acquired during his
marriage to Marcosa Rivera, the trial court
in the civil case declared that the plaintiffs-
appellants were not children of the
deceased, that the properties in question
were paraphernal properties of his wife,
Marcosa Rivera, and that the latter was his
only heir. On appeal to this Court, we ruled
that "such declarations (that Marcosa
Rivera was the only heir of the decedent) is
improper, in Civil Case No. 2071, it being
within the exclusive competence of the
court in Special Proceedings No. 1537, in
which it is not as yet, in issue, and, will not
be, ordinarily, in issue until the presentation
of the project of partition. (p. 378).
However, in the Guilas case, supra, since
the estate proceedings had been closed
and terminated for over three years, the
action for annulment of the project of
partition was allowed to continue.
Considering that in the instant case, the
estate proceedings are still pending, but
nonetheless, Concordia had lost her right to
have herself declared as co-heir in said
proceedings, We have opted likewise to
proceed to discuss the merits of her claim
in the interest of justice.
The orders of the Regional Trial Court,
Branch 26, in Civil Case No. 13207 setting
aside the probate proceedings in Branch 23
(formerly Branch 11) on the ground of
extrinsic fraud, and declaring Concordia
Villanueva to be a co-heir of Celedonia to
the estate of Esteban, Jr., ordering the
partition of the estate, and requiring the
administratrix, Celedonia, to submit an
inventory and accounting of the estate,
were improper and officious, to say the
least, for these matters he within the
exclusive competence of the probate court.
II. The question of extrinsic fraud—
Was Concordia prevented from intervening
in the intestate proceedings by extrinsic
fraud employed by Celedonia? It is
noteworthy that extrinsic fraud was not
alleged in Concordia's original complaint in
Civil Case No. 13207. It was only in her
amended complaint of March 6, 1980, that
extrinsic fraud was alleged for the first time.
Extrinsic fraud, as a ground for
annulment of judgment, is any
act or conduct of the prevailing
party which prevented a fair
submission of the controversy
(Francisco v. David, 38 O.G.
714). A fraud 'which prevents a
party from having a trial or
presenting all of his case to the
court, or one which operates
upon matters pertaining, not to
the judgment itself, but to the
manner by which such
judgment was procured so
much so that there was no fair
submission of the controversy.
For instance, if through
fraudulent machination by one
[his adversary], a litigant was
induced to withdraw his
defense or was prevented from
presenting an available
defense or cause of action in
124
the case wherein the judgment
was obtained, such that the
Page
aggrieved party was deprived
 of his day in court through no
fault of his own, the equitable
relief against such judgment
may be availed of. (Yatco v.
Sumagui, 44623-R, July 31,
1971). (cited in Philippine Law
Dictionary, 1972 Ed. by
Moreno; Varela v. Villanueva,
et al., 96 Phil. 248)
A judgment may be annulled
on the ground of extrinsic or
collateral fraud, as
distinguished from intrinsic
fraud, which connotes any
fraudulent scheme executed
by a prevailing litigant 'outside
the trial of a case against the
defeated party, or his agents,
attorneys or witnesses,
whereby said defeated party is
prevented from presenting fully
and fairly his side of the case.
... The overriding consideration
is that the fraudulent scheme
of the prevailing litigant
prevented a party from having
his day in court or from
presenting his case. The fraud,
therefore, is one that affects
and goes into the jurisdiction of
the court. (Libudan v. Gil, L-
21163, May 17, 1972, 45
SCRA 17, 27-29; Sterling
Investment Corp. v. Ruiz, L-
30694, October 31, 1969, 30
SCRA 318, 323)
The charge of extrinsic fraud is, however,
unwarranted for the following reasons:
1. Concordia was not unaware
of the special proceeding
intended to be filed by
Celedonia. She admitted in her
complaint that she and
Celedonia had agreed that the
latter would "initiate the
necessary proceeding" and
pay the taxes and obligations
of the estate. Thus paragraph
6 of her complaint alleged:
6. ... for the purpose of
facilitating the settlement of the
estate of the late Esteban
Javellana, Jr. at the lowest
possible cost and the least
effort, the plaintiff and the
defendant agreed that the
defendant shall initiate the
necessary proceeding, cause
the payment of taxes and other
obligations, and to do
everything else required by
law, and thereafter, secure the
partition of the estate between
her and the plaintiff, [although
Celedonia denied that they
agreed to partition the estate,
for their agreement was to
place the estate in a
foundation.] (p. 2, Record;
emphasis supplied)
Evidently, Concordia was not
prevented from intervening in the
proceedings. She stayed away by
choice. Besides, she knew that the estate
came exclusively from Esteban's mother,
Salustia Solivio, and she had agreed with
Celedonia to place it in a foundation as the
deceased had planned to do.
2. The probate proceedings
are proceedings in rem. Notice
of the time and place of
hearing of the petition is
required to be published (Sec.
3, Rule 76 in relation to Sec. 3,
Rule 79, Rules of Court).
Notice of the hearing of
Celedonia's original petition
was published in the "Visayan
Tribune" on April 25, May 2
and 9, 1977 (Exh 4, p. 197,
Record). Similarly, notice of
the hearing of her amended
petition of May 26, 1977 for the
settlement of the estate was,
by order of the court, published
in "Bagong Kasanag" (New
Light) issues of May 27, June 3
and 10, 1977 (pp. 182-305,
Record). The publication of the
notice of the proceedings was
constructive notice to the
whole world. Concordia was
not deprived of her right to
intervene in the proceedings
for she had actual, as well as
125
constructive notice of the
same. As pointed out by the
Page
 probate court in its order of
October 27, 1978:
... . The move of Concordia
Javellana, however, was filed
about five months after
Celedonia Solivio was
declared as the sole heir. ... .
Considering that this
proceeding is one in rem and
had been duly published as
required by law, despite which
the present movant only came
to court now, then she is guilty
of laches for sleeping on her
alleged right. (p. 22, Record)
The court noted that Concordia's motion did
not comply with the requisites of a petition
for relief from judgment nor a motion for
new trial.
The rule is stated in 49 Corpus Juris
Secundum 8030 as follows:
Where petition was sufficient to
invoke statutory jurisdiction of
probate court and proceeding
was in rem no subsequent
errors or irregularities are
available on collateral attack.
(Bedwell v. Dean 132 So. 20)
Celedonia's allegation in her petition that
she was the sole heir of Esteban within the
third degree on his mother's side was not
false. Moreover, it was made in good faith
and in the honest belief that because the
properties of Esteban had come from his
mother, not his father, she, as Esteban's
nearest surviving relative on his mother's
side, is the rightful heir to them. It would
have been self-defeating and inconsistent
with her claim of sole heirship if she stated
in her petition that Concordia was her co-
heir. Her omission to so state did not
constitute extrinsic fraud.
Failure to disclose to the
adversary, or to the court,
matters which would defeat
one's own claim or defense is
not such extrinsic fraud as will
justify or require vacation of
the judgment. (49 C.J.S. 489,
citing Young v. Young, 2 SE 2d
622; First National Bank &
Trust Co. of King City v.
Bowman, 15 SW 2d 842; Price
v. Smith, 109 SW 2d 1144,
1149)
It should be remembered that a petition for
administration of a decedent's estate may
be filed by any "interested person" (Sec. 2,
Rule 79, Rules of Court). The filing of
Celedonia's petition did not preclude
Concordia from filing her own.
III. On the question of reserva troncal—
We find no merit in the petitioner's
argument that the estate of the deceased
was subject to reserva troncal and that it
pertains to her as his only relative within
the third degree on his mother's side.
The reserva troncal provision of the Civil
Code is found in Article 891 which reads as
follows:
ART. 891. The ascendant who
inherits from his descendant
any property which the latter
may have acquired by
gratuitous title from another
ascendant, or a brother or
sister, is obliged to reserve
such property as he may have
acquired by operation of law
for the benefit of relatives who
are within the third degree and
who belong to the line from
which said property came.
The persons involved in reserva
troncal are:
1. The person obliged to
reserve is the
reservor (reservista)—the
ascendant who inherits by
operation of law property from
his descendants.
2. The persons for whom the
property is reserved are the
reservees (reservatarios)—
relatives within the third degree
counted from the
descendant (propositus), and
126
belonging to the line from
which the property came.
Page
 3. The propositus—the
descendant who received by
gratuitous title and died without
issue, making his other
ascendant inherit by operation
of law. (p. 692, Civil Law by
Padilla, Vol. II, 1956 Ed.)
Clearly, the property of the deceased,
Esteban Javellana, Jr., is not reservable
property, for Esteban, Jr. was not an
ascendant, but the descendant of his
mother, Salustia Solivio, from whom he
inherited the properties in question.
Therefore, he did not hold his inheritance
subject to a reservation in favor of his aunt,
Celedonia Solivio, who is his relative within
the third degree on his mother's side.
The reserva troncal applies to properties
inherited by an ascendant from a
descendant who inherited it from another
ascendant or 9 brother or sister. It does not
apply to property inherited by a descendant
from his ascendant, the reverse of the
situation covered by Article 891.
Since the deceased, Esteban Javellana,
Jr., died without descendants, ascendants,
illegitimate children, surviving spouse,
brothers, sisters, nephews or nieces, what
should apply in the distribution of his estate
are Articles 1003 and 1009 of the Civil
Code which provide:
ART. 1003. If there are no
descendants, ascendants,
illegitimate children, or a
surviving spouse, the collateral
relatives shall succeed to the
entire estate of the deceased
in accordance with the
following articles.
ART. 1009. Should there be
neither brothers nor sisters,
nor children of brothers or
sisters, the other collateral
relatives shall succeed to the
estate.
The latter shall succeed
without distinction of lines or
preference among them by
reason of relationship by the
whole blood.
Therefore, the Court of Appeals correctly
held that:
Both plaintiff-appellee and
defendant-appellant being
relatives of the decedent within
the third degree in the
collateral line, each, therefore,
shall succeed to the subject
estate 'without distinction of
line or preference among them
by reason of relationship by
the whole blood,' and is
entitled one-half (1/2) share
and share alike of the estate.
(p. 57, Rollo)
IV. The question of Concordia's one-half
share—
However, inasmuch as Concordia had
agreed to deliver the estate of the
deceased to the foundation in honor of his
mother, Salustia Solivio Vda. de Javellana
(from whom the estate came), an
agreement which she ratified and
confirmed in her "Motion to Reopen and/or
Reconsider Order dated April 3, 1978"
which she filed in Spl. Proceeding No.
2540:
4. That ... prior to the filing of
the petition they (petitioner
Celedonia Solivio and movant
Concordia Javellana) have
agreed to make the estate of
the decedent a
foundation, besides they have
closely known each other due
to their filiation to the decedent
and they have been visiting
each other's house which are
not far away for (sic) each
other. (p. 234, Record;
Emphasis supplied)
she is bound by that agreement. It is true
that by that agreement, she did not waive
her inheritance in favor of Celedonia, but
she did agree to place all of Esteban's
estate in the "Salustia Solivio Vda. de
Javellana Foundation" which Esteban, Jr.,
during his lifetime, planned to set up to
honor his mother and to finance the
127
education of indigent but deserving
students as well.
Page
Her admission may not be taken lightly as
the lower court did. Being a judicial
admission, it is conclusive and no evidence
need be presented to prove the agreement
(Cunanan v. Amparo, 80 Phil. 227;
Granada v. Philippine National Bank, L-
20745, Sept. 2, 1966, 18 SCRA 1; Sta. Ana
v. Maliwat, L-23023, Aug. 31, 1968, 24
SCRA 1018; People v. Encipido,
G.R.70091, Dec. 29, 1986, 146 SCRA 478;
and Rodillas v. Sandiganbayan, G.R.
58652, May 20, 1988, 161 SCRA 347).
The admission was never withdrawn or
impugned by Concordia who, significantly,
did not even testify in the case, although
she could have done so by deposition if
she were supposedly indisposed to attend
the trial. Only her husband, Narciso, and
son-in-law, Juanito Domin, actively
participated in the trial. Her husband
confirmed the agreement between his wife
and Celedonia, but he endeavored to dilute
it by alleging that his wife did not intend to
give all, but only one-half, of her share to
the foundation (p. 323, Record).
The records show that the "Salustia Solivio
Vda. de Javellana Foundation" was
established and duly registered in the
Securities and Exchange Commission
under Reg. No. 0100027 for the following
principal purposes:
1. To provide for the
establishment and/or setting
up of scholarships for such
deserving students as the
Board of Trustees of the
Foundation may decide of at
least one scholar each to study
at West Visayas State College,
and the University of the
Philippines in the Visayas both
located in Iloilo City.
2. To provide a scholarship for
at least one scholar for St.
Clements Redemptorist
Community for a deserving
student who has the religious
vocation to become a priest.
3. To foster, develop, and
encourage activities that will
promote the advancement and
enrichment of the various fields
of educational endeavors,
especially in literary arts.
Scholarships provided for by
this foundation may be named
after its benevolent
benefactors as a token of
gratitude for their contributions.
4. To direct or undertake
surveys and studies in the
community to determine
community needs and be able
to alleviate partially or totally
said needs.
5. To maintain and provide the
necessary activities for the
proper care of the Solivio-
Javellana mausoleum at Christ
the King Memorial Park, Jaro,
Iloilo City, and the Javellana
Memorial at the West Visayas
State College, as a token of
appreciation for the
contribution of the estate of the
late Esteban S. Javellana
which has made this
foundation possible. Also, in
perpetuation of his Roman
Catholic beliefs and those of
his mother, Gregorian masses
or their equivalents will be
offered every February and
October, and Requiem masses
every February 25th and
October llth, their death
anniversaries, as part of this
provision.
6. To receive gifts, legacies,
donations, contributions,
endowments and financial aids
or loans from whatever source,
to invest and reinvest the
funds, collect the income
thereof and pay or apply only
the income or such part thereof
as shall be determined by the
Trustees for such endeavors
as may be necessary to carry
out the objectives of the
Foundation.
7. To acquire, purchase, own,
128
hold, operate, develop, lease,
mortgage, pledge, exchange,
Page
sell, transfer, or otherwise,
 invest, trade, or deal, in any
manner permitted by law, in
real and personal property of
every kind and description or
any interest herein.
8. To do and perform all acts
and things necessary, suitable
or proper for the
accomplishments of any of the
purposes herein enumerated
or which shall at any time
appear conducive to the
protection or benefit of the
corporation, including the
exercise of the powers,
authorities and attributes
concerned upon the
corporation organized under
the laws of the Philippines in
general, and upon domestic
corporation of like nature in
particular. (pp. 9-10, Rollo)
As alleged without contradiction in the
petition' for review:
The Foundation began to
function in June, 1982, and
three (3) of its eight Esteban
Javellana scholars graduated
in 1986, one (1) from UPV
graduated Cum Laude and two
(2) from WVSU graduated with
honors; one was a Cum Laude
and the other was a recipient
of Lagos Lopez award for
teaching for being the most
outstanding student teacher.
The Foundation has four (4)
high school scholars in Guiso
Barangay High School, the site
of which was donated by the
Foundation. The School has
been selected as the Pilot
Barangay High School for
Region VI.
The Foundation has a special
scholar, Fr. Elbert Vasquez,
who would be ordained this
year. He studied at St. Francis
Xavier Major Regional
Seminary at Davao City. The
Foundation likewise is a
member of the Redemptorist
Association that gives yearly
donations to help poor
students who want to become
Redemptorist priests or
brothers. It gives yearly awards
for Creative writing known as
the Esteban Javellana Award.
Further, the Foundation had
constructed the Esteban S.
Javellana Multi-purpose Center
at the West Visayas State
University for teachers' and
students' use, and has likewise
contributed to religious civic
and cultural fund-raising
drives, amongst other's. (p. 10,
Rollo)
Having agreed to contribute her share of
the decedent's estate to the Foundation,
Concordia is obligated to honor her
commitment as Celedonia has honored
hers.
WHEREFORE, the petition for review is
granted. The decision of the trial court and
the Court of Appeals are hereby SET
ASIDE. Concordia J. Villanueva is declared
an heir of the late Esteban Javellana, Jr.
entitled to one-half of his estate. However,
comformably with the agreement between
her and her co-heir, Celedonia Solivio, the
entire estate of the deceased should be
conveyed to the "Salustia Solivio Vda. de
Javallana Foundation," of which both the
petitioner and the private respondent shall
be trustees, and each shall be entitled to
nominate an equal number of trustees to
constitute the Board of Trustees of the
Foundation which shall administer the
same for the purposes set forth in its
charter. The petitioner, as administratrix of
the estate, shall submit to the probate court
an inventory and accounting of the estate
of the deceased preparatory to terminating
the proceedings therein.
SO ORDERED.
129
Page
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA
AJERO, petitioners,
vs.
THE COURT OF APPEALS AND
CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
PUNO, J.:
This is an appeal by certiorari from the
Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated
March 30, 1992, the dispositive portion of
which reads;
PREMISES CONSIDERED,
the questioned decision of
November 19, 1988 of the trial
court is hereby REVERSED
and SET ASIDE, and the
petition for probate is hereby
DISMISSED. No costs.
The earlier Decision was rendered by
the RTC of Quezon City, Branch
94, 2 in Sp. Proc. No. Q-37171, and
the instrument submitted for probate
is the holographic will of the late
Annie Sand, who died on November
25, 1982.
In the will, decedent named as devisees,
the following: petitioners Roberto and
Thelma Ajero, private respondent Clemente
Sand, Meriam S. Arong, Leah Sand, Lilia
Sand, Edgar Sand, Fe Sand, Lisa S. Sand,
and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted
Sp. Proc. No. Q-37171, for allowance of
decedent's holographic will. They alleged
that at the time of its execution, she was of
sound and disposing mind, not acting under
duress, fraud or undue influence, and was
in every respect capacitated to dispose of
her estate by will.
Private respondent opposed the petition on
the grounds that: neither the testament's
body nor the signature therein was in
decedent's handwriting; it contained
alterations and corrections which were not
duly signed by decedent; and, the will was
procured by petitioners through improper
pressure and undue influence. The petition
was likewise opposed by Dr. Jose Ajero.
He contested the disposition in the will of a
house and lot located in Cabadbaran,
Agusan Del Norte. He claimed that said
property could not be conveyed by
decedent in its entirety, as she was not its
sole owner.
Notwithstanding the oppositions, the trial
court admitted the decedent's holographic
will to probate. It found, inter alia:
Considering then that the
probate proceedings herein
must decide only the question
of identity of the will, its due
execution and the
testamentary capacity of the
testatrix, this probate court
finds no reason at all for the
disallowance of the will for its
failure to comply with the
formalities prescribed by law
nor for lack of testamentary
capacity of the testatrix.
For one, no evidence was
presented to show that the will
in question is different from the
will actually executed by the
testatrix. The only objections
raised by the oppositors . . .
are that the will was not written
in the handwriting of the
testatrix which properly refers
to the question of its due
execution, and not to the
question of identity of will. No
other will was alleged to have
been executed by the testatrix
other than the will herein
presented. Hence, in the light
of the evidence adduced, the
identity of the will presented for
probate must be accepted, i.e.,
the will submitted in Court
must be deemed to be the will
actually executed by the
testatrix.
130
xxx xxx xxx
Page
While the fact that it was
entirely written, dated and
signed in the handwriting of the
testatrix has been disputed,
the petitioners, however, have
satisfactorily shown in Court
that the holographic will in
question was indeed written
entirely, dated and signed in
the handwriting of the testatrix.
Three (3) witnesses who have
convincingly shown knowledge
of the handwriting of the
testatrix have been presented
and have explicitly and
categorically identified the
handwriting with which the
holographic will in question
was written to be the genuine
handwriting and signature of
the testatrix. Given then the
aforesaid evidence, the
requirement of the law that the
holographic will be entirely
written, dated and signed in
the handwriting of the testatrix
has been complied with.
xxx xxx xxx
As to the question of the
testamentary capacity of the
testratix, (private respondent)
Clemente Sand himself has
testified in Court that the
testatrix was completely in her
sound mind when he visited
her during her birthday
celebration in 1981, at or
around which time the
holographic will in question
was executed by the testatrix.
To be of sound mind, it is
sufficient that the testatrix, at
the time of making the will,
knew the value of the estate to
be disposed of, the
proper object of her bounty,
and the characterof the
testamentary act . . . The will
itself shows that the testatrix
even had detailed knowledge
of the nature of her estate. She
even identified the lot number
and square meters of the lots
she had conveyed by will. The
objects of her bounty were
likewise identified explicitly.
And considering that she had
even written a nursing book
which contained the law and
jurisprudence on will and
succession, there is more than
sufficient showing that she
knows the character of the
testamentary act.
In this wise, the question of
identity of the will, its due
execution and the
testamentary capacity of the
testatrix has to be resolved in
favor of the allowance of
probate of the will submitted
herein.
Likewise, no evidence was
presented to show sufficient
reason for the disallowance of
herein holographic will. While it
was alleged that the said will
was procured by undue and
improper pressure and
influence on the part of the
beneficiary or of some other
person, the evidence adduced
have not shown any instance
where improper pressure or
influence was exerted on the
testatrix. (Private respondent)
Clemente Sand has testified
that the testatrix was still alert
at the time of the execution of
the will, i.e., at or around the
time of her birth anniversary
celebration in 1981. It was also
established that she is a very
intelligent person and has a
mind of her own. Her
independence of character and
to some extent, her sense of
superiority, which has been
testified to in Court, all show
the unlikelihood of her being
unduly influenced or
improperly pressured to make
the aforesaid will. It must be
noted that the undue influence
or improper pressure in
question herein only refer to
the making of a will and not as
131
to the specific testamentary
provisions therein which is the
Page
proper subject of another
 proceeding. Hence, under the
circumstances, this Court
cannot find convincing reason
for the disallowance of the will
herein.
Considering then that it is a
well-established doctrine in the
law on succession that in case
of doubt, testate succession
should be preferred over
intestate succession, and the
fact that no convincing grounds
were presented and proven for
the disallowance of the
holographic will of the late
Annie Sand, the aforesaid will
submitted herein must be
admitted to
3 beneficiary, or of some other
probate. (Citations omitted.)
On appeal, said Decision was reversed,
and the petition for probate of decedent's
will was dismissed. The Court of Appeals
found that, "the holographic will fails to
meet the requirements for its validity." 4 It
held that the decedent did not comply with
Articles 813 and 814 of the New Civil Code,
which read, as follows:
Art. 813: When a number of
dispositions appearing in a
holographic will are signed
without being dated, and the
last disposition has a signature
and date, such date validates
the dispositions preceding it,
whatever be the time of prior
dispositions.
Art. 814: In case of insertion,
cancellation, erasure or
alteration in a holographic will,
the testator must authenticate
the same by his full signature.
It alluded to certain dispositions in the will
which were either unsigned and undated,
or signed but not dated. It also found that
the erasures, alterations and cancellations
made thereon had not been authenticated
by decedent.
Thus, this appeal which is impressed with
merit.
Section 9, Rule 76 of the Rules of Court
provides that will shall be disallowed in any
of the following cases:
(a) If not executed and attested
as required by law;
(b) If the testator was insane,
or otherwise mentally
incapable to make a will, at the
time of its execution;
(c) If it was executed under
duress, or the influence of fear,
or threats;
(d) If it was procured by undue
and improper pressure and
influence, on the part of the
person for his benefit;
(e) If the signature of the
testator was procured by fraud
or trick, and he did not intend
that the instrument should be
his will at the time of fixing his
signature thereto.
In the same vein, Article 839 of the
New Civil Code reads:
Art. 839: The will shall be
disallowed in any of the
following cases;
(1) If the
formalities
required by law
have not been
complied with;
(2) If the testator
was insane, or
otherwise mentally
incapable of
making a will, at
the time of its
execution;
(3) If it was
executed through
force or under
duress, or the
132
influence of fear,
or threats;
Page
 (4) If it was
procured by
undue and
improper pressure
and influence, on
the part of the
beneficiary or of
some other
person;
(5) If the signature
of the testator was
procured by fraud;
(6) If the testator
acted by mistake
or did not intend
that the instrument
he signed should
be his will at the
time of affixing his
signature thereto.
These lists are exclusive; no other grounds
can serve to disallow a will. 5 Thus, in a
petition to admit a holographic will to
probate, the only issues to be resolved are:
(1) whether the instrument submitted is,
indeed, the decedent's last will and
testament; (2) whether said will was
executed in accordance with the formalities
prescribed by law; (3) whether the
decedent had the necessary testamentary
capacity at the time the will was executed;
and, (4) whether the execution of the will
and its signing were the voluntary acts of
the decedent. 6
In the case at bench, respondent court held
that the holographic will of Anne Sand was
not executed in accordance with the
formalities prescribed by law. It held that
Articles 813 and 814 of the New Civil
Code, ante, were not complied with, hence,
it disallowed the probate of said will. This is
erroneous.
We reiterate what we held in Abangan
vs. Abangan, 40 Phil. 476, 479 (1919), that:
The object of the solemnities
surrounding the execution of
wills is to close the door
against bad faith and fraud, to
avoid substitution of wills and
testaments and to guaranty
their truth and authenticity.
Therefore, the laws on this
subject should be interpreted
in such a way as to attain
these primordial ends. But, on
the other hand, also one must
not lose sight of the fact that it
is not the object of the law to
restrain and curtail the
exercise of the right to make a
will. So when an interpretation
already given assures such
ends, any other interpretation
whatsoever, that adds nothing
but demands more requisites
entirely unnecessary, useless
and frustrative of the testator's
last will, must be disregarded.
For purposes of probating non-holographic
wills, these formal solemnities include the
subscription, attestation, and
acknowledgment requirements under
Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the
other hand, what assures authenticity is the
requirement that they be totally autographic
or handwritten by the testator himself, 7 as
provided under Article 810 of the New Civil
Code, thus:
A person may execute a
holographic will which must be
entirely written, dated, and
signed by the hand of the
testator himself. It is subject to
no other form, and may be
made in or out of the
Philippines, and need not be
witnessed. (Emphasis
supplied.)
Failure to strictly observe other
formalities will not result in the
disallowance of a holographic will
that is unquestionably handwritten by
the testator.
A reading of Article 813 of the New Civil
Code shows that its requirement affects the
validity of the dispositions contained in the
holographic will, but not its probate. If the
testator fails to sign and date some of the
dispositions, the result is that these
133
dispositions cannot be effectuated. Such
failure, however, does not render the whole
Page
testament void.
Likewise, a holographic will can still be
admitted to probate, notwithstanding non-
compliance with the provisions of Article
814. In the case of Kalaw vs. Relova 132
SCRA 237 242 (1984), this Court held:
Ordinarily, when a number of
erasures, corrections, and
interlineations made by the
testator in a holographic Will
have not been noted under his
signature, . . . the Will is not
thereby invalidated as a whole,
but at most only as respects
the particular words erased,
corrected or interlined.
Manresa gave an identical
commentary when he said "la
omission de la salvedad no
anula el testamento, segun la
regla de jurisprudencia
establecida en la sentencia de
4 de Abril de
8
1985." (Citations omitted.)
Thus, unless the unauthenticated
alterations, cancellations or insertions were
made on the date of the holographic will or
on testator's signature, 9 their presence
does not invalidate the will itself. 10 The lack
of authentication will only result in
disallowance of such changes.
It is also proper to note that the
requirements of authentication of changes
and signing and dating of dispositions
appear in provisions (Articles 813 and 814)
separate from that which provides for the
necessary conditions for the validity of the
holographic will (Article 810). The
distinction can be traced to Articles 678 and
688 of the Spanish Civil Code, from which
the present provisions covering holographic
wills are taken. They read as follows:
Art. 678: A will is called
holographic when the testator
writes it himself in the form and
with the requisites required in
Article 688.
Art. 688: Holographic wills may
be executed only by persons of
full age.
In order that the will be valid it
must be drawn on stamped
paper corresponding to the
year of its execution, written in
its entirety by the testator and
signed by him, and must
contain a statement of the
year, month and day of its
execution.
If it should contain any erased,
corrected, or interlined words,
the testator must identify them
over his signature.
Foreigners may execute
holographic wills in their own
language.
This separation and distinction adds
support to the interpretation that only the
requirements of Article 810 of the New Civil
Code — and not those found in Articles 813
and 814 of the same Code — are essential
to the probate of a holographic will.
The Court of Appeals further held that
decedent Annie Sand could not validly
dispose of the house and lot located in
Cabadbaran, Agusan del Norte, in its
entirety. This is correct and must be
affirmed.
As a general rule, courts in probate
proceedings are limited to pass only upon
the extrinsic validity of the will sought to be
probated. However, in exceptional
instances, courts are not powerless to do
what the situation constrains them to do,
and pass upon certain provisions of the
will. 11 In the case at bench, decedent
herself indubitably stated in her holographic
will that the Cabadbaran property is in the
name of her late father, John H. Sand
(which led oppositor Dr. Jose Ajero to
question her conveyance of the same in its
entirety). Thus, as correctly held by
respondent court, she cannot validly
dispose of the whole property, which she
shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is
GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 22840, dated
March 30, 1992, is REVERSED and SET
ASIDE, except with respect to the invalidity
134
of the disposition of the entire house and lot
in Cabadbaran, Agusan del Norte. The
Page
Decision of the Regional Trial Court of
Quezon City, Branch 94 in Sp. Proc. No. Q-
37171, dated November 19, 1988,
admitting to probate the holographic will of
decedent Annie Sand, is hereby
REINSTATED, with the above qualification
as regards the Cabadbaran property. No
costs.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and

Mendoza, JJ., concur.

#Footnotes

It must be noted, however, that

in Kalaw, this Court laid down
an exception to the general
rule, when it invalidated the
entire will because of an
unauthenticated erasure made
by the testator. In that case,
the will had only one
substantial provision. This was
altered by substituting the
original heir with another , with
such alteration being
unauthenticated. This was
altered by substituting the
original heir with another, with
such alteration being
unauthenticated. This Court
held that the whole will was
void "for the simple reason that
nothing remains in the Will
after (the provision is
invalidated) which could
remain valid. To state that the
Will as first written should be
given efficacy is to disregard
the seeming change of mind of
the testatrix. But, that change
of mind can neither be given
effect because she failed to
authenticate it in the manner
required by law by affixing her
full signature."
135
Page
G.R. No. L-31048 January 20, 1976
LUCENA MAGALLANES, petitioner,
vs.
HON. UNION KAYANAN, Presiding
Judge of Branch IV, CFI, Quezon and the
HEIRS OF ELIGIO
MAGALLANES, respondents.
Abelio M. Marte and Clemente T. Alcala for
petitioner.
Eufemio E. de Mesa for private
respondents.
MARTIN. J.:
The validity of a summary judgment
rendered in the Court of First Instance of
Quezon, in Special Proceedings No. 3913,
entitled Re: Summary Settlement of
the Estate of Filomena Magallanes, Lucena
Magallanes, petitioner, versus Heirs of
Eligio Magallanes, oppositors, is the main
issue in this petition for review.
On August 4, 1960, petitioner Lucena
Magallanes filed a "Solicitud" praying that
Lot No. 2657 covered by Original
Certificate of Title No. 1091 and one-half
(½) of Lot No. 3465 covered by Original
Certificate of Title No. 6447, both of the
Register of Deeds of Tayabas (Quezon) be
partitioned and distributed among the heirs
of the deceased Filomena Magallanes.
On October 31, 1961, private respondents,
the Heirs of Eligio Magallanes, namely:
Maria San Buenaventura, Godofredo
Magallanes and Carmen Magallanes de
Ingente filed their opposition and motion to
dismiss the "Solicitud" claiming title and
ownership over the parcels of land in
question and raising the issue that the trial
court is devoid of jurisdiction to resolve the
issues raised in the pleadings.
On July 12, 1968, the private respondents
filed a petition for summary judgment on
the pleadings praying that their absolute
right of ownership over the properties in
question be recognized and confirmed.
Petitioner files her opposition to the petition
for summary judgment on the ground that
in a summary settlement of an estate, the
Court has no jurisdiction to pass finally and
definitely upon the title or ownership over
the properties involved therein; and that
summary judgment is not proper, there
being a genuine issue or material
controversy raised by the pleadings of the
parties.
On March 21, 1969, the lower court,
rendered a summary judgment on the
pleadings submitted by the parties
confirming the private respondents' (Heirs
of Eligio Magallanes) absolute and
exclusive right of ownership and
possession over the whole of Lot No. 2657
and the one-half undivided portion of Lot
No. 3465 and ordering the Register of
Deeds of Quezon Province to cancel the
Notice of Lis Pendens on Original
Certificate of Title No. 1091 covering Lot
No. 2657.
On April 22, 1969, the petitioner moved for
reconsideration of the aforesaid summary
judgment and/or new trial but the lower
court on June 19, 1969 denied the motion
for reconsideration for being pro forma and
declared its decision dated March 21, 1969
to be final and executory. Accordingly, a
writ of execution was issued and served
upon the petitioner on July 14, 1969.
However, even before said date, petitioner
was able to perfect her appeal on June 30,
1969, with the filing of the notice of appeal,
appeal bond and record on appeal.
In her brief, petitioner presses upon the
lower court the following errors:
I
THE TRIAL COURT ERRED
IN PASSING UPON FINALLY
AND DEFINITELY THE TITLE
TO OR OWNERSHIP OF LOT
2657 OF THE LUCENA
CADASTRE, COVERED BY
ORIGINAL CERTIFICATE OF
TITLE NO. 1091 OF THE
REGISTER OF DEEDS OF
TAYABAS AND ONE-HALF
(½) OF LOT NO. 3465 OF
THE LUCENA CADASTRE,
COVERED BY CERTIFICATE
136
OF TITLE NO. 6447 OF THE
REGISTER OF DEEDS OF
Page
TAYABAS, WHEN IT HAS NO
JURISDICTION TO SO ACT, FORMA AND DID NOT
THE PETITIONER HAVING SUSPEND THE RUNNING OF
CONSISTENTLY REFUSED THE PERIOD TO APPEAL.
TO SUBMIT THAT ISSUE TO
THE JURISDICTION OF THE V
TRIAL COURT.
THE TRIAL COURT ERRED
II IN HOLDING THE DECISION
DATED MARCH 21, 1969
THE TRIAL COURT ERRED FINAL AND EXECUTORY.
IN NOT MERELY
DETERMINING IN THE VI
DECISION DATED MARCH
21, 1969 WHETHER OR NOT THE TRIAL COURT ERRED
THE PROPERTIES IN IN ORDERING THE
QUESTION SHOULD BE ISSUANCE OF A WRIT OF
INCLUDED IN THE EXECUTION IN THE SAME
INVENTORY ASSUMING THE ORDER OF JUNE 19, 1969.
AFORESAID DECISION
RENDERED THROUGH VII
SUMMARY JUDGMENT WAS
PROPER AND REGULAR. THE TRIAL COURT ERRED
IN ISSUING THE WRIT OF
III EXECUTION DATED JUNE
19, 1969 WHICH IS VOID
THE TRIAL COURT ERRED AND OF NO EFFECT.
IN RENDERING THE
DECISION DATED MARCH We find merit in the petitioner's argument
21, 1969 THROUGH that the lower court has no jurisdiction to
SUMMARY JUDGMENT, pass finally and definitely upon the title or
WITHOUT TRIAL, WHERE ownership of the properties involved in the
THERE ARE GENUINE summary settlement of the estate of the
ISSUES AND MATERIAL deceased Filomena Magallanes instituted
CONTROVERSY, THE by the petitioner. Well established is the
PETITIONER CLAIMING IN doctrine that the property, whether real or
HER PLEADINGS THAT SHE personal, which are alleged to form part of
AND HER CO-HEIRS OWN the estate of a deceased person but
THE REALTIES IN QUEZON claimed by another to be his property by
BY INHERITANCE FROM adverse title to that of the deceased and his
THE DECEASED FILOMENA estate and not by virtue of any right of
MAGALLANES WHILE THE inheritance from ' the deceased, cannot be
RESPONDENTS CLAIM determined by the probate court. Such
OWNERSHIP OVER THE questions must be submitted to the Court of
AFORESAID REALTIES BY First Instance in the exercise of its general
PURCHASE FROM THE jurisdiction to try and determine ordinary
DECEASED FILOMENA actions. 1 The probate court may do so only
MAGALLANES DURING HER for the purpose of determining whether or
LIFETIME. not a given property should be included in
the inventory of the estate of the deceased,
IV but such determination is not conclusive
and is still subject to a final decision in a
THE TRIAL COURT ERRED separate action to be instituted between the
WHEN IT HELD IN ITS parties. 2 Likewise, the probate court may
ORDER OF JUNE 19, 1969 also determine questions of title to property
137

THAT THE MOTION FOR if the parties voluntarily submitted to its

RECONSIDERATION DATED jurisdiction and introduced evidence to
Page

APRIL 21, 1969 IS PRO prove ownership.3

In the case at bar, the action instituted by
the petitioner was not for the purpose of
determining whether or not a given property
should be included in the inventory of the
estate of the deceased. The action was for
partition and distribution of the properties
left by the deceased. Neither have all of the
parties voluntarily submitted the issue of
ownership for resolution by the court. As a
matter of fact the petitioner opposed the
petition of private respondents to have the
issue of ownership or title decided in the
proceeding for the settlement of the estate
of the deceased. It was therefore erroneous
for the lower court to resolve the question
of title or ownership over the properties in
said proceeding. It could only pass upon
such a question in the exercise of its
general jurisdiction in an ordinary action.
Petitioner faulted the lower court for
rendering summary judgment on the case.
Summary judgment can be availed of
where no genuine issue as to any material
fact is raised in the pleadings. 4 Where
there is an issue or issues of fact joined by
the parties or where the facts pleaded by
the parties are disputed or contested,
neither one of them can pray for a
summary judgment to take the place of a
trial. 5 Summary judgment can be rendered
only where there are no questions of fact in
issue or where the material allegations of
the pleadings are not disputed.
An examination of the pleadings in this
case clearly shows that there is a genuine
issue or material controversy raised
therein. Thus, petitioner claims that she
and her co-heirs have the right to inherit the
properties in question as they form part of
the estate of Filomena Magallanes. On the
other hand, herein private respondents
contend that they acquired the ownership
over the said properties by purchase from
Filomena Magallanes during her lifetime. In
the face of the conflicting claims of both
petitioner and respondents a factual
dispute certainly arises which can only be
properly settled by means of a trial on the
merits. Summary judgment was, therefore,
uncalled for in the premises.
Petitioner also assailed the order of the
lower court denying her motion for
reconsideration of the summary judgment
in question as pro forma. A motion for new
trial or reconsideration on the ground that
the judgment is contrary to law, which does
not point out the supposed defects in the
judgment is pro forma Section 2, Rule 37 of
the Rules of Court requires the movant for
the new trial to point out the findings of fact
or conclusions of law supposed to be
insufficiently borne out by the evidence or
contrary to law. 6 A reading of the motion
for reconsideration of the aforesaid
summary judgment show's specifically the
conclusions reached by the lower court
which are contrary to law, the lack of
jurisdiction on the part of the lower court to
resolve the issue of ownership and
possession of properties left by a deceased
person in the settlement of his estate
proceeding and the propriety of the
rendition of the summary judgment on the
pleadings submitted by the parties.
Although the former pleadings of the
petitioner already contained allegations on
the question of jurisdiction and the propriety
of the summary judgment, this fact does
not make the motion for reconsideration pro
forma because it expressly made reference
to what portion of the lower court's
conclusion are contrary to law and to
established jurisprudence. In a case7 the
Supreme Court held that the motion for
new trial or reconsideration cannot be
considered as simply pro forma where t not
only states that the decision is contrary to
law but also explains in detail relevant facts
for seeking its revocation. Since the motion
for reconsideration is not pro forma the
filing of the same on time stopped the
running of the period within which to appeal
the decision. It was therefore an error on
the part of the lower court to issue a writ of
execution of the decision in question before
it has become final and executory.
Finally, private respondents claim that the
trial court erred in approving petitioner's
record on appeal after it had lost jurisdiction
over the case. There is no need to resolve
the assigned error. It is elementary that in a
petition for certiorari like the case before
Us, the submission of a record on appeal is
not necessary.
WHEREFORE, in view of all the foregoing
judgment is hereby rendered:
138
1. Declaring the decision of the lower court
Page
dated March 21, 1968 and the writ of
execution dated June 19, 1969 null and
void; and

2. Remanding the case to the lower court

as a court of general jurisdiction to settle
the title and ownership over the parcels of
land in question between Lucena
Magallanes who claims to have inherited
the same from Filomena Magallanes and-
the heirs of Eligio Magallanes who claim to
have purchased them.

Costs against the private respondents.

SO ORDERED.

139
Page
[G.R. No. 55509. April 27, 1984.]
ETHEL GRIMM ROBERTS, Petitioner, v.
JUDGE TOMAS R. LEONIDAS, Branch
38, Court of First Instance of Manila;
MAXINE TATE-GRIMM, EDWARD
MILLER GRIMM II and LINDA
GRIMM, Respondents.
N . J . Quisumbing and Associates
for Petitioner.
Angara, Abello, Concepcion, Regala,
and Cruz for Private Respondents.
SYLLABUS
1. CIVIL LAW; SUCCESSION; WILLS;
PROBATE THEREOF, MANDATORY;
INTESTATE PROCEEDINGS FILED
PRIOR TO TESTATE PROCEEDINGS
SHOULD BE CONSOLIDATED WITH
LATTER. — We hold that respondent
Judge did not commit any grave abuse of
discretion, amounting to lack of jurisdiction,
in denying Ethel’s motion to dismiss the
petition for probate of Grimm’s two wills. A
testate proceeding is proper in this case
because Grimm died with two wills and "no
will shall pass either real or personal
property unless it is proved add allowed"
(Art. 838, Civil Code, Sec. 1, Rule 75,
Rules of Court). The probate of the will is
mandatory (Guevara v. Guevara, 74 Phil.
479 and 98 Phil. 249; Baluyot v. Paño, L-
42088, May 7, 1976, 71 SCRA 86). It is
anomalous that the estate of a person who
died testate should be settled in an
intestate proceeding. Therefore, the
intestate case should be consolidated with
the testate proceeding and the judge
assigned to the testate proceeding should
continue hearing the two cases.
DECISION
AQUINO, J.:
The question in this case is whether a
petition for allowance of wills and to annul a
partition, approved in an intestate
proceeding by Branch 20 of the Manila
Court of First Instance, can be entertained
by its Branch 38 (after a probate in the
Utah district court).chanrobles virtual
lawlibrary
Antecedents. — Edward M. Grimm, an
American resident of Manila, died at 78 in
the Makati Medical Center on November
27, 1977. He was survived by his second
wife, Maxine Tate Grimm, and their two
children, named Edward Miller Grimm II
(Pete) and Linda Grimm, and by Juanita
Grimm Morris and Ethel Grimm Roberts
(McFadden), his two children by a first
marriage which ended in divorce (Sub-
Annexes A and B, pp. 36-47, Rollo).
He executed on January 23, 1959 two wills
in San Francisco, California. One will
disposed of his Philippine estate which he
described as conjugal property of himself
and his second wife. The second will
disposed of his estate outside the
Philippines.
In both wills, the second wife and two
children were favored. The two children of
the first marriage were given their legitimes
in the will disposing of the estate situated in
this country. In the will dealing with his
property outside this country, the testator
said:jgc:chanrobles.com.ph
"I purposely have made no provision in this
will for my daughter, Juanita Grimm Morris,
or my daughter, Elsa Grimm McFadden
(Ethel Grimm Roberts), because I have
provided for each of them in a separate will
disposing of my Philippine property." (First
clause, pp. 43-47, Rollo).
The two wills and a codicil were presented
for probate by Maxine Tate Grimm and E.
La Var Tate on March 7, 1978 in Probate
No. 3720 of the Third Judicial District Court
of Tooele County, Utah. Juanita Grimm
Morris of Cupertino, California and Mrs.
Roberts of 15 C. Benitez Street, Horseshoe
Village, Quezon City were notified of the
probate proceeding (Sub-Annex C, pp. 48-
55, Rollo).
Maxine admitted that she received notice of
the intestate petition filed in Manila by Ethel
140
in January, 1978 (p. 53, Rollo). In its order
dated April 10, 1978, the Third Judicial
Page
District Court admitted to probate the two
wills and the codicil. It was issued upon
consideration of the stipulation dated April
4, 1978 "by and between the attorneys for
Maxine Tate Grimm, Linda Grimm, Edward
Miller Grimm II, E. La Var Tate, Juanita
Kegley Grimm (first wife), Juanita Grimm
Morris and Ethel Grimm Roberts" (Annex
C, pp. 48-51, Rollo).
Two weeks later, or on April 25, 1978,
Maxine and her two children Linda and
Pete, as the first parties, and Ethel, Juanita
Grimm Morris and their mother Juanita
Kegley Grimm, as the second parties, with
knowledge of the intestate proceeding in
Manila, entered into a compromise
agreement in Utah regarding the estate. It
was signed by David E. Salisbury and
Donald B. Holbrook, as lawyers of the
parties, by Pete and Linda and the
attorney-in-fact of Maxine and by the
attorney-in-fact of Ethel, Juanita Grimm
Morris and Juanita Kegley
Grimm.chanrobles law library
In that agreement, it was stipulated that
Maxine, Pete and Ethel would be
designated as personal representatives
(administrators) of Grimm’s Philippine
estate (par. 2). It was also stipulated that
Maxine’s one-half conjugal share in the
estate should be reserved for her and that
would not be less than $1,500,000 plus the
homes in Utah and Santa Mesa, Manila
(par. 4). The agreement indicated the
computation of the "net distributable
estate." It recognized that the estate was
liable to pay the fees of the Angara law firm
(par. 5).
It was stipulated in paragraph 6 that the
decedent’s four children "shall share
equally in the Net Distributable Estate" and
that Ethel and Juanita Morris should each
receive at least 12-1/2% of the total of the
net distributable estate and marital share. A
supplemental memorandum also dated
April 25, 1978 was executed by the parties
(Sub-Annex F, pp. 49-61, Annex, F-1, pp.
75-76, Testate case).
Intestate proceeding No. 113024. — At this
juncture, it should be stated that forty-three
days after Grimm’s death, or January 9,
1978, his daughter of the first marriage,
Ethel, 49, through lawyers Deogracias T.
Reyes and Gerardo B. Macaraeg, filed with
Branch 20 of the Manila Court of First
Instance intestate proceeding No. 113024
for the settlement of his estate. She was
named special administratrix.
On March 11, the second wife, Maxine,
through the Angara law office, filed an
opposition and motion to dismiss the
intestate proceeding on the ground of the
pendency of Utah of a proceeding for the
probate of Grimm’s will. She also moved
that she be appointed special
administratrix. She submitted to the court a
copy of Grimm’s will disposing of his
Philippine estate. It is found in pages 58 to
64 of the record.
The intestate court in its orders of May 23
and June 2 noted that Maxine, through a
new lawyer, William C. Limqueco (partner
of Gerardo B. Macaraeg, p. 78, testate
case), withdrew that opposition and motion
to dismiss and, at the behest of Maxine,
Ethel and Pete, appointed them joint
administrators. Apparently, this was done
pursuant to the aforementioned Utah
compromise agreement. The court ignored
the will already found in the record.
The three administrators submitted an
inventory. With the authority and approval
of the court, they sold for P75,000 on
March 21, 1979 the so-called Palawan
Pearl Project, a business owned by the
deceased. Linda and Juanita allegedly
conformed with the sale (pp. 120-129,
Record). It turned out that the buyer,
Makiling Management Co., Inc., was
incorporated by Ethel and her husband,
Rex Roberts, and by lawyer Limqueco
(Annex L, p. 90, testate
case).chanrobles.com.ph : virtual law
library
Also with the court’s approval and the
consent of Linda and Juanita, they sold for
P1,546,136 to Joseph Server and others
193,267 shares of RFM Corporation (p.
135, Record).
Acting on the declaration of heirs and
project of partition signed and filed by
lawyers Limqueco and Macaraeg (not
signed by Maxine and her two children),
141
Judge Conrado M. Molina in his order of
July 27, 1979 adjudicated to Maxine one-
Page
half (4/8) of the decedent’s Philippine
estate and one-eighth (1/8) each to his four
children or 12-1/2% (pp. 140-142, Record).
No mention at all was made of the will in
that order.chanrobles.com : virtual law
library
Six days later, or on August 2, Maxine and
her two children replaced Limqueco with
Octavio del Callar as their lawyer, who on
August 9, moved to defer approval of the
project of partition. The court considered
the motion moot considering that it had
already approved the declaration of heirs
and project of partition (p. 149, Record).
Lawyer Limqueco in a letter to Maxine
dated August 2, 1979 alleged that he was
no longer connected with Makiling
Management Co., Inc. when the Palawan
Pearl Project was sold: that it was Maxine’s
son Pete who negotiated the sale with Rex
Roberts and that he (Limqueco) was going
to sue Maxine for the lies she imputed to
him (Annex H, p. 78, testate case).
Ethel submitted to the court a certification
of the Assistant Commissioner of Internal
Revenue dated October 2, 1979. It was
stated therein that Maxine paid
P1,992,233.69 as estate tax and penalties
and that he interposed no objection to the
transfer of the estate to Grimm’s heirs (p.
153, Record). The court noted the
certification as in conformity with its order
of July 27, 1979.
After November, 1979 or for a period of
more than five months, there was no
movement or activity in the intestate case.
On April 18, 1980 Juanita Grimm Morris,
through Ethel’s lawyers, filed a motion for
accounting "so that the Estate properties
can be partitioned among the heirs and the
present intestate estate be closed." Del
Callar, Maxine’s lawyer was notified of that
motion.
Before that motion could be heard, or on
June 10, 1980, the Angara law firm filed
again its appearance in collaboration with
Del Callar as counsel for Maxine and her
two children, Linda and Pete. It should be
recalled that the firm had previously
appeared in the case as Maxine’s counsel
on March 11, 1978, when it filed a motion
to dismiss the intestate proceeding and
furnished the court with a copy of Grimm’s
will. As already noted, the firm was then
superseded by lawyer Limqueco.
Petition to annul partition and testate
proceeding No. 134559. — On September
8, 1980, Rogelio A. Vinluan of the Angara
law firm, in behalf of Maxine, Pete and
Linda, filed in Branch 38 of the lower court
a petition praying for the probate of
Grimm’s two wills (already probated in
Utah), that the 1979 partition approved by
the intestate court be set aside and the
letters of administration revoked, that
Maxine be appointed executrix and that
Ethel and Juanita Morris be ordered to
account for the properties received by them
and to return the same to Maxine (pp. 25-
35, Rollo).
Grimm’s second wife and two children
alleged that they were defraud due to the
machinations of the Roberts spouses, that
the 1978 Utah compromise agreement was
illegal, that the intestate proceeding is void
because Grimm died testate and that the
partition was contrary to the decedent’s
wills.
Ethel filed a motion to dismiss the petition.
Judge Leonidas denied it for lack of merit in
his order of October 27, 1980. Ethel then
filed a petition for certiorari and prohibition
in this Court, praying that the testate
proceeding be dismissed, or, alternatively
that the two proceedings be consolidated
and heard in Branch 20 and that the matter
of the annulment of the Utah compromise
agreement be heard prior to the petition for
probate (pp. 22-23, Rollo).chanrobles law
library
Ruling. — We hold that respondent judge
did not commit any grave abuse of
discretion, amounting to lack of jurisdiction,
in denying Ethel’s motion to dismiss.
A testate proceeding is proper in this case
because Grimm died with two wills and "no
will shall pass either real or personal
property unless it is proved and allowed"
(Art. 838, Civil Code; sec. 1, Rule 75, Rules
of Court).
The probate of the will is mandatory
142
(Guevara v. Guevara, 74 Phil. 479 and 98
Phil. 249; Baluyot v. Paño, L-42088, May 7,
Page
1976, 71 SCRA 86). It is anomalous that
the estate of a person who died testate
should be settled in an intestate
proceeding. Therefore, the intestate case
should be consolidated with the testate
proceeding and the judge assigned to the
testate proceeding should continue hearing
the two cases.

Ethel may file within twenty days from

notice of the finality of this judgment an
opposition and answer to the petition
unless she considers her motion to dismiss
and other pleadings sufficient for the
purpose. Juanita G. Morris, who appeared
in the intestate case, should be served with
copies of orders, notices and other papers
in the testate case.

WHEREFORE, the petition is dismissed.

The temporary restraining order is
dissolved. No costs.

SO ORDERED.

143
Page
G.R. No. 45425 March 27, 1992 una tercera parte (1/3) de una
catorce (1/14) avas partes
CELSA L. VDA. DE KILAYKO, proindivisas de la Hda.
ENCARNACION L. VDA. DE PANLILIO Minuluan, que he adquirido
and REMEDIOS L. VDA. DE mediante permuta de mi
GUINTO, petitioners, hermano Dr. Antonio A.
vs. Lizares, se adjudique, como
HON. JUDGE ERNESTO TENGCO of the por el presente se adjudica, a
Court of First Instance of Negros mi sobrina Eustaquia Lizares;
Occidental, Bacolod City, Branch IV and ENTENDIENDOSE, sin
RODOLFO LIZARES and AMELO embargo, que en el caso de
LIZARES, as Judicial Administrators of que mi citada sobrina
the Estate of the late EUSTAQUIA Eustaquia Lizares muera
LIZARES, respondents. soltera o sin descendientes
legitimos, mi referida
G.R. No. 45965 March 27, 1992 participacion en la Hda.
Minuluan se adjudicara a mi
ROLDOFO LIZARES and AMELO hermano Antonio A. Lizares
LIZARES, as Judicial Administrators of que me sobrevivan.
the ESTATE OF EUSTAQUIA
LIZARES, petitioners, UNDECIMA — Tambien
vs. ordeno y dispongo que el resto
HON. JUDGE ERNESTO TENGCO, de todas mis propiendades,
CELSA L. VDA. DE KILAYKO, incluyendo mis participaciones,
ENCARNACION L. VDA. DE PANLILIO derechos e intereses (no
and REMEDIOS VDA. DE dispuestos mas arriba) an las
GUINTO, respondents. Haciendas "Minuluan" (Lotes
Nos. 439, 403, 1273, 1274,
1278, 1279 y 1280 del
Catastro de Talisay, Negros
ROMERO, J.: Occidental), y "Matab-ang"
(Lotes Nos. 514, 550, 552, 553
These consolidated cases seek to annul y 1287-C del Catastrado de
the orders 1 dated September 20, 1976, Talisay, Negros Occidental),
January 7, 1977 and January 31, 1977 of situadas en el Municipio de
the then Court of First Instance of Negros Talisay, Provincia de Negros
Occidental, Branch, IV respectively, Occidental, I.F., el resto de mis
cancelling the notice of lis pendens filed by acciones en la Central Talisay-
Celsa L. Vda. de Kilayko, et al. with the Silay Milling Co., Inc. (unas
Register of Deeds of Negros Occidental, 2,860 acciones) y de la
denying the motion for reconsideration of Financing Corporation of the
the order dated September 20, 1976 filed Philippines (unas 53,636
by Celsa L. Vda. de Kilayko, et al., and acciones), registradas a mi
holding in abeyance the resolution of nombre y no heredadas de mi
defendants' motion to dismiss. difunta madre Dña. Enrica A.
Vda. de Lizares, mis acciones
The undisputed facts of the case are as en la Central Bacolod-Murcia
follows: Milling Co., Inc., Negros
Navigation Co. y otras
On November 20, 1962, the late Maria
Compañas Mineras, y todos
Lizares y Alunan executed a
2 los demas bienes no
"Testamento" which contains among its
mencionados en este
provisions, the following:
testamento y que me
pertenezcan en la fecha de mi
144

DECIMA — Asimismo, ordeno

muerte, se adjudiquen, como
y dispongo que mi
por el presente adjudico, a mi
Page

participacion consistente en
sobrina Srta. Eusaquia
 Lizares, hija de mi difunto
hermano Don Simplicio Lizares
cuidados que mi citada sobrina
me ha prestado y signe
prestandome hasta ahora.
Ordeno, sin embargo, a mi
referida sobrina, Srta.
Eustaquia Lizares, que ella se
haga cargo de pagar todas las
obligaciones que tengo y que
gravan sobre las propriedades
adjudicadas a la misma.
Asimismo ordeno a mi citada
sobrina que ella mande
celebrar una Misa Gregoriana
cada año en sufragio de mi
alma, y misas ordinarias en
sufragio de las almas de mi
difunto Padre y de mi difunta
Madre, el 6 de Marzo y 17 de
Deciembre de cada año,
respectivamente, y mande
celebrar todos los años la
fiesta de San Jose en Talisay
como lo hago hasta ahora. En
el caso de que mi citada
sobrina, Srta. Eustaquia
Lizares, falleciere sin dejar
descendientes legitimos,
ordeno y dispongo que mi
participacion consistente en
una sexta parte (1/6) de la
Hda. Matab-ang, con su
correspondiente cuota de
azucar y otros mejoras, se
adjudique a mis hermanas y
hermano antes mencionados y
que me sobrevivan (Emphasis
supplied)
On January 28, 1968, Maria Lizares y
Alunan died without any issue leaving said
"testamento" in the possession and custody
of her niece, Eustquia Lizares.3 On
February 6, 1968, Eustaquia filed a petition
for the settlement of the testate estate of
Maria Lizares y Alunan, before the Court of
First Instance of Negros Occidental, Branch
IV, docketed as Special Proceedings No.
8452. 4
The required publication of the notice of
hearing of the petition having been made,
in due course, the probate court issued an
order declaring the will probated and
appointing Eustaquia as the executrix of
the estate of Maria Lizares. 5
On July 10, 1968, Eustaquia filed a project
of partition 6 which was granted by the
probate court in an order dated January 8,
1971. Simultaneously, said court declared
the heirs, devisees, legatees and
usufructuaries mentioned in the project of
partition as the only heirs, devisees,
legatees and usufructuaries of the estate;
adjudicated to them the properties
repectively assigned to each and every one
of them, and ordered the Register of Deeds
of Negros Occidental and Bacolod City to
effect the corresponding transfer of the real
properties to said heirs as well as the
transfer of shares, stocks, and dividends in
different corporations, companies and
partnerships in the name of Maria Lizares
to the heirs and legatees, and the closure
of the testate proceedings of Maria
Lizares. 7
Thereafter, Eustaquia filed an urgent
motion to reopen the testate proceedings in
order that some properties of Maria Lizares
which had been omitted in the partition be
adjudicated to her. 8 The Court granted the
motion and correspondingly reopened the
testate proceedings. It adjudicated to
Eustaquia certain shares of stocks, a
revolving fund certificate, plantation credits
and sugar quota allocations, and real or
personal properties of Maria Lizares which
were not given by her to any other person
in her last will and testament. 9
On November 28, 1972, the heirs of Maria
Lizares, namely: Encarnacion L. Vda. de
Panlilio, Remedios L. Vda. de Guinto,
Felicidad Paredes Llopez, Rosario Paredes
Mendoza and Eustaquia Lizares executed
an agreement of partition and subdivision,
thereby terminating their co-ownership over
Lots Nos. 550, 514, 553, 1287-C of plan
SWO-7446, and 552, all of the Cadastral
Survey of Talisay covered by Transfer
Certificates of Title Nos. T-65004, T-65005;
T-65006, T-65007, and T-65008. 10
A year later or on November 23, 1973,
Eustquia Lizares died single without any
descendant. 11 In due time, Rodolfo Lizares
and Amelo Lizares were appointed joint
administrators of Eustquia's intestate
estate.
145
On the strength of the testamentary
Page
provisions contained in paragraphs 10 and
11 of the will of Maria Lizares, which were
allegedly in the nature of a simple
substitution, Celsa Vda. de Kilayko,
Encarnacion Vda. de Panlilio, and
Remedios Vda. de Guinto (hereinafter
collectively referred to as Celsa L. Vda. de
Kilayko, et al.) filed a motion in Special
Proceedings No. 8452 to reopen once
again the testate estate proceedings of
Maria Lizares. They prayed among others
that a substitute administrator be
appointed; that the order dated January 8,
1971 be reconsidered and amended by
declaring them as heirs to 1/3 of 1/14 of
Hda. Minuluan and to 1/6 of Hda. Matab-
ang, both of which form an aggregate area
of 33 hectares; that the Register of Deeds
of Negros Occidental, after such
amendment, be ordered to register at the
back of their respective certificates of title,
the order of probate and a "declaration"
that movants are the heirs of said
properties, and correspondingly issue new
certificates of title in their names. 12
Two (2) sets of intestate heirs of the
deceased Eustaquia Lizares namely:
Socorro L. Vda. de Escario, Rodolfo
Lizares, Mario Lizares, Lucrecia Gustilo,
and Aurora Lizares Wagner opposed the
aforesaid motion. They alleged that the
court had no more jurisdiction to reopen the
testate estate proceedings of Maria Lizares
as the order of closure had long become
final and that the testamentary provisions
sought to be enforced are null and void.13
On April 6, 1974, the Court issued an order
denying the motion to reopen the testate
proceedings and holding that inasmuch as
the settlement of an estate is a
proceeding in rem, the judgment therein is
binding against the whole world. It
observed that inspite of the fact that the
movants knew that the court had
jurisdiction over them, they did not take part
in the proceedings nor did they appeal the
order of January 8, 1971. Thus, the court
concluded, even if the said order was
erroneous, and since the error was not
jurisdictional, the same could have been
corrected only by a regular appeal. The
period for filing a motion for reconsideration
having expired, the court opined that the
movants could have sought relief from
judgment under Rule 38 of the Rules of
Court, but unfortunately for the movants,
the period for filing such remedy had also
elapsed. 14
Celsa L. Vda. de Kilayko, et al. then filed a
motion for reconsideration of said order. It
was denied on June 17, 1974. 15 Hence, on
October 14, 1974, the said movants filed a
complaint for recovery of ownership and
possession of real property against the
joining administrators of the estate of
Eustaquia Lizares, Rodolfo and Amelo
Lizares. It was docketed as Civil Case No.
11639 with the then Court of First Instance
of Negros Occidental, Branch IV. 16 On the
same date, they availed of their rights
under Rule 14, Section 24 of Rules of
Court
by filing a notice of lis pendens with the
Register of Deeds of Negros Occidental. 17
As duly appointed judicial joint
administrators of the estate of the late
Eustaquia Lizares, Rodolfo Lizares and
Amelo Lizares (the joint administrators for
brevity), filed a motion to dismiss alleging
that the court had no jurisdiction over the
subject matter or nature of the case; the
cause of action was barred by prior
judgment, and the complaint stated no
cause of action. 18 This motion was
opposed by the plaintiffs.
On January 23, 1975, the joint
administrators filed a motion for the
cancellation of the notice of lis pendens on
the contentions that there existed
exceptional circumstances which justified
the cancellation of the notice of lis
pendensand that no prejudice would be
caused to the plaintiffs. 19 The latter
opposed said motion. The defendants
having filed a reply thereto, the plaintiffs
filed a rejoinder reiterating their arguments
in their opposition to the motion for
cancellation of notice of lis pendens. 20
On September 20, 1976, respondent judge
issued an order granting the motion for
cancellation of notice of lis pendens. 21 The
court simultaneously held in abeyance the
resolution of the motion to dismiss the
complaint.
The joint administrators filed the answer to
146
the complaint in Civil Case No.
11639. 22 Thereafter, they filed a motion for
Page
preliminary hearing on affirmative
defenses. 23 Celsa L. Vda. de Kilayko, et al.
vigorously opposed said motion. 24
On November 3, 1976, Celsa L. Vda. de
Kilayko, et al. filed a motion praying for the
reconsideration of the order dated
September 20, 1976. 25 The joint
administrators having filed an opposition
thereto, 26 on January 7, 1977 the lower
court denied the aforesaid motion for
reconsideration. 27 It held that while a
notice of lis pendens would serve as notice
to strangers that a particular property was
under litigation, its annotation upon the
certificates of title to the properties involved
was not necessary because such
properties, being in custodia legis, could
not just be alienated without the approval of
the court. Moreover, the court added, a
notice of lis pendens would prejudice any
effort of the estate to secure crop loans
which were necessary for the viable
cultivation and production of sugar to which
the properties were planted.
Upon receipt of a copy of said order, Celsa
L. Vda. de Kilayko, et al. filed in this Court a
motion for extension of time to file a petition
for review on certiorari. Docketed as G.R
No. L-45425, the petition contends that the
grounds of lis pendens, namely, that the
properties are in custodia legis and the
lending institutions would not grant crop
loans to the estate, are not the legal
grounds provided for under Sec. 24, Rule
14 of the Rules of Court for the cancellation
of a notice of lis pendens.
Meanwhile, on January 31, 1977, the lower
court issued an order stating that since on
September 21, 1976 it had held in
abeyance the resolution of the motion to
dismiss, it was also proper to suspend the
resolution of the affirmative defenses
interposed by the defendants until after trial
on the merits of the case. Accordingly, the
court set the date of pre-trial for March 24,
1977. 28
On April 13, 1977, the joint administrators
filed before this Court a petition
for certiorari, prohibition
and/or mandamus with prayer for a writ of
preliminary injunction. It was docketed as
G.R. No. L-45965. Petitioners contend that
the lower court had no jurisdiction over Civil
Case No. 11639 as it involves the
interpretation of the will of Maria Lizares, its
implementation and/or the adjudication of
her properties. They assert that the matter
had been settled in Special Proceedings
No. become final and unappealable long
before the complaint in Civil Case No. 8452
which had become final and unappealable
long before the complaint in Civil Case No.
11639 was filed, and therefore, the cause
of action in the latter case was barred by
the principle of res judicata. They aver that
the claim of Celsa, Encarnacion and
Remedios, sisters of Maria Lizares, over
the properties left by their niece Eustaquia
and which the latter had inherited by will
from Maria Lizares, was groundless
because paragraphs 10 and 11 of Maria's
will on which Celsa L. Vda. de Kilayko, et
al. base their claim, conceived of a
fideicommissary substitution of heirs.
Petitioners contend that said provisions of
the will are not valid because under Article
863 of the Civil code, they constitute an
invalid fideicommissary substitution of
heirs.
On April 26, 1977, this Court issued a
temporary restraining order enjoining the
lower court from further proceeding with the
trial of Civil Case No. 11639. 29 After both
G.R. Nos. L-45425 and L-45965 had been
given due course and submitted for
decision, on January 20, 1986, the two
cases were consolidated.
The petition in G.R. No. L-45965 is
impressed with merit.
In testate succession, there can be no valid
partition among the heirs until after the will
has been probated. 30 The law enjoins the
probate of a will and the public requires it,
because unless a will is probated and
notice thereof given to the whole world, the
right of a person to dispose of his property
by will may be rendered nugatory. 31 The
authentication of a will decides no other
question than such as touch upon the
capacity of the testator and the compliance
with those requirements or solemnities
which the law prescribes for the validity of a
will. 32
Pertinent to the issue interposed by the
147
petitioners in G.R. No. L-45965 is Section
1, Rule 90 of the Rules of Court which
Page
reads:
 Sec. 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
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 shares 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.
Applying this rule, in the cases of De Jesus
v. Daza, 33 and Torres v.
34
Encarnacion, the Court said:
. . . (T)he probate court, having
the custody and control of the
entire estate, is the most
logical authority to effectuate
this provision, within the estate
proceeding, said proceeding
being the most convenient one
in which this power and
function of the court can be
exercised and performed
without the necessity of
requiring the parties to
undergo the incovenience and
litigate an entirely different
action.
Some decisions of the Court pertinent to
the issue that the probate court has the
jurisdiction to settle the claims of an heir
and the consequent adjudication of the
properties, are worth mentioning. In the
cases of Arroyo v. Gerona, 35and Benedicto
v. Javellana, 36 this Court said:
. . . any challenge to the
validity of a will, any objection
to the authentication thereof,
and every demand or claim
which any heir, legatee or
party interested in a testate or
intestate succession may
make, must be acted upon and
decided within the same
special proceedings, not in a
separate action, and the same
judge having jurisdiction in the
administration of the estate
shall take cognizance of the
question raised, inasmuch as
when the day comes he will be
called upon to make
distribution and adjudication of
the property to the interested
parties. . . . (Emphasis
supplied)
The probate court, in the exercise of its
jurisdiction to distribute the estate, has the
power to determine the proportion or parts
to which each distributee is entitled . .
.. 37 A project of partition is merely a
proposal for the distribution of the heredity
estate which the court may accept or reject.
It is the court that makes that distribution of
the estate and determines the persons
entitled thereto. 38
In the instant case, the records will show
that in the settlement of the testate estate
of Maria Lizares, the executrix, Eustaquia
Lizares submitted on January 8, 1971, a
project of partition in which the parcels of
148
land, subject matters of the complaint for
reconveyance, were included as property of
Page
the estate and assigned exclusively to
Eustaquia as a devisee of Maria Lizares. In
accordance with said project of partition
which was approved by the probate court,
Encarnacion Lizares Vda. de Panlilio,
Remedios Lizares Vda. de Guinto,
Felicidad Paredes Llopez, Rosario Paredes
Mendoza and Eustaquia Lizares executed
an Agreement of Partition and Subdivision
on November 28, 1972, whereby they
agreed to terminate their co-ownership over
Lots Nos. 550, 514, 553, 1287-C of SWO-
7446 and 552 covered by Transfer
Certificates of Title Nos. T-65004, T-65005,
T-65006, T-65007 and T-65008. These
facts taken altogether show that the Lizares
sisters recognized the decree of partition
sanctioned by the probate court and in fact
reaped the fruits thereof.
Hence, they are now precluded from
attacking the validity of the partition or any
part of it in the guise of a complaint for
reconveyance. A party cannot, in law and in
good conscience be allowed to reap the
fruits of a partition, agreement or judgment
and repudiate what does not suit
him. 39 Thus, where a piece of land has
been included in a partition and there is no
allegation that the inclusion was affected
through improper means or without
petitioner's knowledge, the partition barred
any further litigation on said title and
operated to bring the property under the
control and jurisdiction of the court for its
proper disposition according to the tenor of
the partition. 40 The question of private
respondents title over the lots in question
has been concluded by the partition and
became a closed matter.
The admission made by Celsa L. Vda. de
Kilayko, et al. in their complaint, Civil Case
No. 11639, that Eustaquia had been in
possession of the questioned lots since
March 2, 1971 up to the time of her death
indicates that the distribution pursuant to
the decree of partition has already been
carried out. Moreover, it cannot be denied
that when Celsa L. Vda. de Kilayko, et al.
moved for the reopening of the testate
estate proceedings of Maria Lizares, the
judicial decree of partition and order of
closure of such proceedings was already
final and executory, then reglementary
period of thirty (30) days having elapsed
from the time of its issuance, with no timely
appeal having been filed by them.
Therefore, they cannot now be permitted to
question the adjudication of the properties
left by will of Maria Lizares, by filing an
independent action for the reconveyance of
the very same properties subject of such
partition.
A final decree of distribution of the estate of
a deceased person vests the title to the
land of the estate in the distributees. If the
decree is erroneous, it should be corrected
by opportune appeal, for once it becomes
final, its binding effect is like any other
judgment in rem, unless properly set aside
for lack of jurisdiction or fraud. Where the
court has validly issued a decree of
distribution and the same has become final,
the validity or invalidity of the project of
partition becomes irrelevant. 41
It is a fundamental concept in the origin of
every jural system, a principle of public
policy, that at the risk of occasional errors,
judgments of courts should become final at
some definite time fixed by law, interest rei
publicae ut finis sit litum. "The very object
of which the courts were constituted was to
put an end to controversies." 42 The only
instance where a party interested in a
probate proceeding may have a final
liquidation set aside is when he is left out
by reason of circumstances beyond his
control or through mistake or inadvertence
not imputable to negligence. Even then, the
better practice to secure relief is the
opening of the same by proper motion
within the reglementary period, instead of
an independent action, the effect of which if
successful, would be for another court or
judge to throw out a decision or order
already final and executed and reshuffle
properties long ago distributed and
disposed of. 43
The fundamental principle upon which the
doctrine of res judicata rests is that parties
ought not to be permitted to litigate the
same issue more than once, that, when a
right or fact has been judicially tried and
determined by a court of competent
jurisdiction, or an opportunity for such trial
has been given, the judgment of the court,
so long as it remains unreversed, should be
conclusive upon the parties and those in
149
privity with them in law or estate. 44
Page
All the requisites for the existence of res
judicata are present. Thus, the order
approving the distribution of the estate of
Maria Lizares to the heirs instituted in said
will has become final and unappealable;
the probate court that rendered judgment
had jurisdiction over the subject matter and
over the parties; the judgment or orders
had been rendered on the merits; the
special proceedings for the settlement of
the estate of Maria Lizares was a
proceeding in rem that was directed against
the whole world including Celsa L. Vda. de
Kilayko, et al., so that it can be said that
there is a similarity of parties in Special
Proceedings No. 8452 and Civil Case No.
11639, the judicial administrators of
Eustaquia being privy to Celsa L. Vda. de
Kilayko, et al.; there is identity of subject
matter involved in both actions, namely, the
properties left by Maria Lizares; there is
identity of causes of action because in the
first action there was a declaration of the
probate court in its order dated April 6,
1974 that although the testatrix intended a
fideicommissary substitution in paragraphs
10 and 11 of her will, the substitution can
have no effect because the requisites for it
to be valid, had not been satisfied. 45
Granting that res judicata has not barred
the institution of Civil Case No. 11639, the
contention of Celsa L. Vda. de Kilayko, et
al. that they are conditional substitute heirs
of Eustaquia in the testate estate of Maria
Lizares 46 is not meritorious. While the
allegation of the joint administrators that
paragraphs 10 and 11 of Maria Lizares' last
will and testament conceives of a
fideicommissary substitution under Article
863 of the Civil Code is also baseless as
said paragraphs do not impose upon
Eustaquia a clear obligation to preserve the
estate in favor of Celsa L. Vda. de Kilayko,
et al., neither may said paragraphs be
considered as providing for a vulgar or
simple substitution.
It should be remembered that when a
testator merely names an heir and provides
that if such heir should die a second heir
also designated shall succeed, there is no
fideicommissary substitution. The
substitution should then be construed as a
vulgar or simple substitution under Art. 859
of the Civil Code but it shall be effective
only if the first heir dies before the
testator. 47 In this case, the instituted heir,
Eustaquia, survived the testatrix, Maria
Lizares. Hence, there can be no
substitution of heirs for, upon Maria Lizares'
death, the properties involved
unconditionally devolved upon Eustaquia.
Under the circumstances, the sisters of
Maria Lizares could only inherit the estate
of Eustaquia by operation of the law of
intestacy.
With respect to the cancellation of the
notice of lis pendens on the properties
involved, there is no merit in the contention
of Celsa L. Vda. de Kilayko, et al., that the
lower court acted contrary to law and/or
gravely abused its discretion in cancelling
the notice of lis pendens. The cancellation
of such a precautionary notice, being a
mere incident in an action, may be ordered
by the court having jurisdiction over it at
any given time. 48 Under Sec. 24, Rule 14
of the Rules of Court, a notice of lis
pendens may be cancelled "after proper
showing that the notice is for the purpose of
molesting the adverse party, or that it is not
necessary to protect the rights of the party
who caused it to be recorded." 49 In this
case, the lower court ordered the
cancellation of said notice on the principal
reason that the administrators of the
properties involved are subject to the
supervision of the court and the said
properties are under custodia
legis. Therefore, such notice was not
necessary to protect the rights of Celsa L.
Vda. de Kilayko, et al. More so in this case
where it turned out that their claim to the
properties left by Eustaquia is without any
legal basis.
WHEREFORE, the petition for review
on certiorari in L-45425 is hereby DENIED
but the petition for certiorari and prohibition
and/or mandamus in L-45965 is
GRANTED. The temporary restraining
order of April 26, 1977 which was issued by
the Court in L-45965 is made
PERMANENT. Costs against the
petitioners in L-45425.
SO ORDERED.
150
Page
G.R. No. L-4602 August 31, 1951
JOSEFA PEÑAFLORIDA VDA. DE
ARANCILLO and VICENTE
ARANCILLO, movants and appellants,
vs.
REHABILITATION FINANCE
CORPORATION, oppositor-appellee.
Fulgencio Vega and Emilio Eligio for
appellants.
Rizal R. Ortiz for appellee.
FERIA, J.:
The facts in this case as stated in
appellants' brief and accepted as correct by
the appellee are the following:
On February 19, 1947, Carmen
Ubalde executed a deed of
donation inter vivos in favor of
Asuncion Arancillo, predecessor-in-
interest of Josefa Peñaflorida Vda.
de Arancillo and Vicente Arancillo
(herein movants- appellants),
involving a certain parcel of land
identified as Lot No. 7669 of the
Cadastral Survey of Pototan, Iloilo,
and covered by Original Certificate of
Title No. 41448 of the land records of
the province of Iloilo. Dr. Asuncion
Arancillo the donee, died on June 18,
1948, in the city of Manila was
succeeded in all his property rights
by herein movants-appellants. Lot
No. 7679 was mortgaged to the to
the Agricultural and Industrial Bank,
predecessor-in-interest of appellee,
prior to the execution of the
aforementioned donation. On July
29, 1948, Carmen Ubalde, the
registered owner, liquidated her
mortgage indebtedness to the
Agricultural and Industrial Bank and
executed a new mortgage in favor of
the Agricultural and Industrial Bank,
now Rehabilitation Finance
Corporation, the owner's copy of
Torrens Title No. 41448 covering Lot
No, 7679 has been in the possession
of the mortgage. On October 13,
1948, movants-appellants requested
the oppositor-appellee to lend them
the owner's copy of Torrens Title No.
41448 covering Lot No. 7679 in order
that they could register the
aforementioned deed of donation
without prejudice to the right of the
Rehabilitation Finance Corporation
as mortgagee of the property in
question. The oppositor-appellee
refused; and, hence, on November
19, 1948, appellants filed a motion in
court, praying that the said
Rehabilitation Finance Corporation
be compelled to deliver the owners
copy of the Torrens title
aforementioned to the Register of
Deeds of Iloilo in order that the deed
of donation could be registered
(Record Appeal, pp. 1-5). Said
motion, which was opposed by
appellee (Record Appeal, pp. 6-7
was denied by the Court of first
Instance of Iloilo in its order dated
November 29, 1948 (Record Appeal,
pp. 8-9). Movants-appellants filed a
motion for reconsideration which was
denied by the lower in its order dated
December 20, 1948 (Record Appeal,
pp. 22 27.)
The appellants in their first and second
assignments of errors, submit the following
arguments:
(a) In the light of the decision of the
Supreme Court in the case of Bank
of the Philippine Islands vs. Ty
Camco Sobrino et al., the refusal of
the Rehabilitation Finance
Corporation to surrender the owner's
copy of the Torrens title to the
Register of Deeds or its opposition to
the registration of the deed of
donation in question is equivalent to
questioning the validity of said
donation which can only be done in
an ordinary action.
(b) The validity of the prohibition
contained in the mortgage contract in
the case at bar to the effect that the
mortgagor shall not sell, dispose of,
or encumber the mortgaged property
without the consent of the mortgagee
is not in issue.
(c) The prohibition mentioned in the
preceding paragraph must be
151
interpreted and construed in relation
to the other stipulation of the same
Page
contract which state that in cast the
 property mortgaged is sold or
conveyed in spite of the prohibition,
the vendee shall assume the
mortgage together with the vendor.
(d) In view of the principles
interpretation of contracts laid down
in Articles 1284 and 1285 of the Civil
Code and sec. 59 of Rules 123 of the
Rules of the Court, the
aforementioned stipulation qualifying
the prohibition must be made
applicable to the instant case.
(Appellants Brief, pp. 12, 13.)
The mortgage contract executed by the
appellants' predecessor in interest in favor
of the defunct Agricultural and Industrial
Bank and now the appellee, contains the
following proviso:
The Mortgagor shall not sell, dispose
of nor in any manner encumber to
the mortgage property, without the
written consent of the mortgagee. If
in spite of this stipulation the property
is sold, the Vendee shall assume the
mortgage in the terms and conditions
under which it is constituted, it being
understood that the assumption by
the Vendee shall not release the
Vendor of his obligation to the
Agricultural & Industrial Bank; on the
contrary, both Vendor and Vendee
shall be jointly and severally liable for
said mortgage obligation. (Record on
Appeal, pp. 22-23.)
The question involved in the present case
is not the validity of the donation but
whether or not the appellee may be
compelled against its will to give its consent
to the registration of said donation, in view
of the above quoted stipulation. The
appellees does not and can not question
the validity of the transfer by donation to
the appellants or their predecessor in
interest of the property mortgage, because
said property, being registered in
accordance with the Torrens System or Act
No. 496, can not be considered as
transferred until and unless said transfer
has been registered.
In the case of Philippine Industrial Co. vs.
El Hogar Filipino and Vallejo, (45 Phil. 336,
339, 341), this court held that the
prohibition in a mortgage contract against
the encumbrances sale or disposal of the
property mortgaged not contrary to law,
morals or public interest (sec. 1255 of the
Civil Code). Such prohibition being valid, it
follows that the appellee cannot be
compelled by the courts to give its consent
to the registration of the deed of donation of
the property mortgage by delivering for that
purpose the transfer certificate of title in its
possession. Otherwise the mortgagor may
circumvent the prohibition by compelling
the mortgagee to do what the latter has to
the sale or disposal or encumbrances of
the mortgaged property.
The decision in the case of Bank of the
Philippines Islands vs. Ty Mamco, et al. (57
Phil., 803) is not applicable to the present
case. In said case the second mortgage
had already been registered in the office of
the Register of Deeds when the motion to
cancel such registration was filed. And this
Court held that the Court of First Instance
of Pangasinan was correct in holding that
the cancellation of the registration of said
second mortgage involves the question of
validity thereof; and the said court had no
jurisdiction to pass upon that question.
However, in deciding said question upon
the request of the parties, this Court held
that the second mortgage in said case was
valid because the mortgage the right to
treat the second mortgage as null and void,
but only to immediately foreclosure the
mortgage as penalty for such violation. This
Court did not pass upon the validity of an
agreement made expressly in a contract,
giving the mortgage the right to treat such
second mortgage the right to treat such
second mortgage or disposal without the
mortgagee's consent as null and void, as a
penalty for such violation. While, in the
present case the donation has not been yet
registered and therefore the question of
validity of the transfer by donation of the
property mortgaged to the appellants is not
and can not be the question in issue.
The decision in the case of Ty Camco has
not reversed or modified the ruling laid in
the case of Philippine Industrial Co. vs. El
Hogar Filipino (45 Phil., 336), which held
valid the prohibition to sell, dispose of, or
152
any manner encumber the mortgage
property such as the one contained in the
Page
above quoted paragraph of the mortgage
contract under consideration.

Although the owner's certificate of title has

been delivered by the mortgagor to the
mortgagee and is in the possession of the
latter, it is still possible that the mortgagor
may sell, dispose of or in any manner
encumbrances the mortgaged property,
and register the sale, transfer or
encumbrance in the owner's certificate of
title, without the written consent of the
mortgagee; for as the attorney for the
appellee says, the certificate of title may be
borrowed by the mortgagor from the
mortgagee for a purpose other than the
registration of document of transfer or
second encumbrance, or it may be
accidentally lost and found by another
person, or it may be stolen and delivered to
the mortgagor, in which cases the transfer
or second mortgage may have the
opportunity of effecting the registration of
subsequent instrument of transfer or
second encumbrances, without the consent
of the mortgagee.

As to the appellant's third assignment of

error, the lower court was right in holding
that "It is neither for this Court nor for the
movants to inquire into the reasons why the
mortgagee does not welcome nay change
in the position of the mortgage debtor. It is
enough that the agreement prohibiting the
disposition of the mortgaged property by
the mortgagor without the consent of the
mortgagee is valid and binding." Besides,
as the appellee's attorney says in
connection with this particular case: "On
this point, we wish to state that in the
matter of granting loans the Rehabilitation
Finance Corporation does not consider the
sufficiency of securities alone. As
government institution, it is guided by
certain policies designed to accomplish a
government program. It is in pursuance of
those policies that it has seen fit to include
certain conditions in the mortgagee
contract which if violated might hamper
such program."

In view of the foregoing, the order appealed

from is affirmed with costs against the
appellants.
153
Page
[G.R. No. 110427. February 24, 1997]
The Incompetent, CARMEN CAIZA,
represented by her legal guardian,
AMPARO
EVANGELISTA, petitioner,
vs. COURT OF APPEALS
(SPECIAL FIRST DIVISION),
PEDRO ESTRADA and his wife,
LEONORA
ESTRADA, respondents.
DECISION
NARVASA, C.J.:
On November 20, 1989, being then
ninety-four (94) years of age, Carmen
Caiza, a spinster, a retired pharmacist, and
former professor of the College of
Chemistry and Pharmacy of the University
of the Philippines, was declared
[1]
incompetent by judgment of the Regional
Trial Court of Quezon City, Branch 107,[2] in
a guardianship proceeding instituted by her
niece, Amparo A. Evangelista.[3] She was
so adjudged because of her advanced age
and physical infirmities which included
cataracts in both eyes and senile dementia.
Amparo A. Evangelista was appointed legal
guardian of her person and estate.
Caiza was the owner of a house and lot
at No. 61 Tobias St., Quezon City. On
September 17, 1990, her guardian Amparo
Evangelista commenced a suit in the
Metropolitan Trial Court (MetroTC) of
Quezon City (Branch 35) to eject the
spouses Pedro and Leonora Estrada from
said premises.[4] The complaint was later
amended to identify the incompetent Caiza
as plaintiff, suing through her legal
guardian, Amparo Evangelista.
The amended Complaint[5] pertinently
alleged that plaintiff Caiza was the absolute
owner of the property in question, covered
by TCT No. 27147; that out of kindness,
she had allowed the Estrada Spouses, their
children, grandchildren and sons-in-law to
temporarily reside in her house, rent-free;
that Caiza already had urgent need of the
house on account of her advanced age and
failing health, "so funds could be raised to
meet her expenses for support,
maintenance and medical treatment;" that
through her guardian, Caiza had asked the
Estradas verbally and in writing to vacate
the house but they had refused to do so;
and that "by the defendants' act of
unlawfully depriving plaintiff of the
possession of the house in question, they
** (were) enriching themselves at the
expense of the incompetent, because,
while they ** (were) saving money by not
paying any rent for the house, the
incompetent ** (was) losing much money
as her house could not be rented by
others." Also alleged was that the complaint
was "filed within one (1) year from the date
of first letter of demand dated February 3,
1990."
In their Answer with Counterclaim, the
defendants declared that they had been
living in Caiza's house since the 1960's;
that in consideration of their faithful service
they had been considered by Caiza as her
own family, and the latter had in fact
executed a holographic will on September
4, 1988 by which she "bequeathed" to the
Estradas the house and lot in question.
Judgment was rendered by the
MetroTC on April 13, 1992 in Caiza's
favor,[6] the Estradas being ordered to
vacate the premises and pay
Caiza P5,000.00 by way of attorney's fees.
But on appeal,[7] the decision was
reversed by the Quezon City Regional Trial
Court, Branch 96.[8] By judgment rendered
on October 21, 1992,[9] the RTC held that
the "action by which the issue of
defendants' possession should be resolved
is accion publiciana, the obtaining factual
and legal situation ** demanding
adjudication by such plenary action for
recovery of possession cognizable in the
first instance by the Regional Trial Court."
Caiza sought to have the Court of
Appeals reverse the decision of October
21, 1992, but failed in that attempt. In a
decision[10] promulgated on June 2, 1993,
the Appellate Court[11]affirmed the RTC's
judgment in toto. It ruled that (a) the proper
remedy for Caiza was indeed an accion
publiciana in the RTC, not an accion
interdictal in the MetroTC, since the
"defendants have not been in the subject
premises as mere tenants or occupants by
tolerance, they have been there as a sort of
154
adopted family of Carmen Caiza," as
evidenced by what purports to be the
Page
holographic will of the plaintiff; and (b) while
"said will, unless and until it has passed
probate by the proper court, could not be
the basis of defendants' claim to the
property, ** it is indicative of intent and
desire on the part of Carmen Caiza that
defendants are to remain and are to
continue in their occupancy and
possession, so much so that Caiza's
supervening incompetency can not be said
to have vested in her guardian the right or
authority to drive the defendants out."[12]
Through her guardian, Caiza came to
this Court praying for reversal of the
Appellate Court's judgment. She contends
in the main that the latter erred in (a)
holding that she should have pursued
an accion publiciana, and not an accion
interdictal; and in (b) giving much weight to
"a xerox copy of an alleged holographic
will, which is irrelevant to this case."[13]
In the responsive pleading filed by them
on this Court's requirement,[14] the Estradas
insist that the case against them was really
not one of unlawful detainer; they argue
that since possession of the house had not
been obtained by them by any "contract,
express or implied," as contemplated by
Section 1, Rule 70 of the Rules of Court,
their occupancy of the premises could not
be deemed one "terminable upon mere
demand (and hence never became
unlawful) within the context of the law."
Neither could the suit against them be
deemed one of forcible entry, they add,
because they had been occupying the
property with the prior consent of the "real
owner," Carmen Caiza, which "occupancy
can even ripen into full ownership once the
holographic will of petitioner Carmen Caiza
is admitted to probate." They conclude, on
those postulates, that it is beyond the
power of Caiza's legal guardian to oust
them from the disputed premises.
Carmen Caiza died on March 19,
1994,[15] and her heirs -- the
aforementioned guardian, Amparo
Evangelista, and Ramon C. Nevado, her
niece and nephew, respectively -- were by
this Court's leave, substituted for her.[16]
Three issues have to be resolved: (a)
whether or not an ejectment action is the
appropriate judicial remedy for recovery of
possession of the property in dispute; (b)
assuming desahucioto be proper, whether
or not Evangelista, as Caiza's legal
guardian had authority to bring said action;
and (c) assuming an affirmative answer to
both questions, whether or not Evangelista
may continue to represent Caiza after the
latter's death.
I
It is axiomatic that what determines the
nature of an action as well as which court
has jurisdiction over it, are the allegations
of the complaint and the character of the
relief sought.[17] An inquiry into the
averments of the amended complaint in the
Court of origin is thus in order.[18]
The amended Complaint alleges:[19]
"6. That the plaintiff, Carmen Caiza, is the
sole and absolute owner of a house and lot
at No. 61 Scout Tobias, Quezon City, which
property is now the subject of this
complaint;
** ** **
9. That the defendants, their children,
grandchildren and sons-in-law, were
allowed to live temporarily in the house
of plaintiff, Carmen Caiza, for free, out of
her kindness;
10. That the plaintiff, through her legal
guardian, has duly notified the defendants,
for them to vacate the said house, but the
two (2) letters of demand were ignored and
the defendants refused to vacate the
same. **
11. That the plaintiff, represented by her
legal guardian, Amparo Evangelista, made
another demand on the defendants for
them to vacate the premises, before
Barangay Captain Angelina A. Diaz of
Barangay Laging Handa, Quezon City, but
after two (2) conferences, the result was
negative and no settlement was reached. A
photocopy of the Certification to File Action
dated July 4, 1990; issued by said
Barangay Captain is attached, marked
Annex "D" and made an integral part
hereof;
12. That the plaintiff has given the
defendants more than thirty (30) days to
vacate the house, but they still refused to
155
vacate the premises, and they are up to
this time residing in the said place;
Page
13. That this complaint is filed within one
(1) year from the date of first letter of
demand dated February 3, 1990 (Annex
"B") sent by the plaintiff to the
defendants, by her legal guardian --
Amparo Evangelista;
14. By the defendants' act of unlawfully
depriving the plaintiff of the possession of
the house in question, they are enriching
themselves at the expense of the
incompetent plaintiff, because, while they
are saving money by not paying any rent
for the house, the plaintiff is losing much
money as her house could not be rented by
others;
15. That the plaintiff's health is failing and
she needs the house urgently, so that
funds could be raised to meet her
expenses for her support, maintenance and
medical treatment;
16. That because of defendants' refusal to
vacate the house at No. 61 Scout Tobias,
Quezon City, the plaintiff, through her legal
guardian, was compelled to go to court for
justice, and she has to spend P10,000.00
as attorney's fees."
Its prayer[20] is quoted below:
"WHEREFORE, in the interest of justice
and the rule of law, plaintiff, Carmen Caiza,
represented by her legal guardian. Amparo
Evangelista, respectfully prays to this
Honorable Court, to render judgment in
favor of plaintiff and against the defendants
as follows:
1. To order the defendants, their children,
grandchildren, sons-in-law and other
persons claiming under them, to vacate the
house and premises at No. 61 Scout
Tobias, Quezon City, so that its possession
can be restored to the plaintiff, Carmen
Caiza: and
2. To pay attorney's fees in the amount
of P10,000.00;
3. To pay the costs of the suit."
In essence, the amended complaint
states:
1) that the Estradas were occupying
Caiza's house by tolerance -- having been
"allowed to live temporarily ** (therein) for
free, out of ** (Caiza's) kindness;"
2) that Caiza needed the house "urgently"
because her "health ** (was) failing and she
** (needed) funds ** to meet her expenses
for her support, maintenance and medical
treatment;"
3) that through her general guardian, Caiza
requested the Estradas several times,
orally and in writing, to give back
possession of the house;
4) that the Estradas refused and continue
to refuse to give back the house to Caiza,
to her continuing prejudice; and
5) that the action was filed within one (1)
year from the last demand to vacate.
Undoubtedly, a cause of action
for desahucio has been adequately set out.
It is settled that in an action for unlawful
detainer, it suffices to allege that the
defendant is unlawfully withholding
possession from the plaintiff is deemed
sufficient,[21] and a complaint for unlawful
detainer is sufficient if it alleges that the
withholding of possession or the refusal to
vacate is unlawful without necessarily
employing the terminology of the law.[22]
The Estradas' first proffered defense
derives from a literal construction of
Section 1, Rule 70 of the Rules of Court
which inter alia authorizes the institution of
an unlawful detainer suit when "the
possession of any land or building is
unlawfully withheld after the expiration or
termination of the right to hold possession,
by virtue of any contract, express or
implied." They contend that since they did
not acquire possession of the property in
question "by virtue of any contract, express
or implied" -- they having been, to repeat,
"allowed to live temporarily ** (therein) for
free, out of ** (Caiza's) kindness" -- in no
sense could there be an "expiration or
termination of ** (their) right to hold
possession, by virtue of any contract,
express or implied." Nor would an action for
156
forcible entry lie against them, since there
is no claim that they had "deprived (Caiza)
of the possession of ** (her property) by
Page
force, intimidation, threat, strategy, or
stealth."
The argument is arrant sophistry.
Caiza's act of allowing the Estradas to
occupy her house, rent-free, did not create
a permanent and indefeasible right of
possession in the latter's favor. Common
sense, and the most rudimentary sense of
fairness clearly require that act of liberality
be implicitly, but no less certainly,
accompanied by the necessary burden on
the Estradas of returning the house to
Caiza upon her demand. More than once
has this Court adjudged that a person who
occupies the land of another at the latter's
tolerance or permission without any
contract between them is necessarily
bound by an implied promise that he will
vacate upon demand, failing which a
summary action for ejectment is the proper
remedy against him.[23] The situation is not
much different from that of a tenant whose
lease expires but who continues in
occupancy by tolerance of the owner, in
which case there is deemed to be an
unlawful deprivation or withholding of
possession as of the date of the demand to
vacate.[24] In other words, one whose stay
is merely tolerated becomes a deforciant
illegally occupying the land or property the
moment he is required to leave.[25] Thus, in
Asset Privatization Trust vs. Court of
Appeals,[26] where a company, having
lawfully obtained possession of a plant
upon its undertaking to buy the same,
refused to return it after failing to fulfill its
promise of payment despite demands, this
Court held that "(a)fter demand and its
repudiation, ** (its) continuing possession
** became illegal and the complaint for
unlawful detainer filed by the ** (plant's
owner) was its proper remedy."
It may not be amiss to point out in this
connection that where there had been more
than one demand to vacate, the one-year
period for filing the complaint for unlawful
detainer must be reckoned from the date of
the last demand,[27] the reason being that
the lessor has the option to waive his right
of action based on previous demands and
let the lessee remain meanwhile in the
premises.[28] Now, the complaint filed by
Caiza's guardian alleges that the same was
"filed within one (1) year from the date of
the first letter of demand dated February 3,
1990." Although this averment is not in
accord with law because there is in fact a
second letter of demand to vacate, dated
February 27, 1990, the mistake is
inconsequential, since the complaint was
actually filed on September 17, 1990, well
within one year from the second (last)
written demand to vacate.
The Estradas' possession of the house
stemmed from the owner's express
permission. That permission was
subsequently withdrawn by the owner, as
was her right; and it is immaterial that the
withdrawal was made through her judicial
guardian, the latter being indisputably
clothed with authority to do so. Nor is it of
any consequence that Carmen Caiza had
executed a will bequeathing the disputed
property to the Estradas; that circumstance
did not give them the right to stay in the
premises after demand to vacate on the
theory that they might in future become
owners thereof, that right of ownership
being at best inchoate, no transfer of
ownership being possible unless and until
the will is duly probated.
Thus, at the time of the institution of the
action of desahucio, the Estradas had no
legal right to the property, whether as
possessors by tolerance or sufferance, or
as owners. They could not claim the right of
possession by sufferance, that had been
legally ended. They could not assert any
right of possession flowing from their
ownership of the house; their status as
owners is dependent on the probate of the
holographic will by which the property had
allegedly been bequeathed to them -- an
event which still has to take place; in other
words; prior to the probate of the will, any
assertion of possession by them would be
premature and inefficacious.
In any case, the only issue that could
legitimately be raised under the
circumstances was that involving the
Estradas' possession by tolerance, i.e.,
possession de facto, not de jure. It is
therefore incorrect to postulate that the
proper remedy for Caiza is not ejectment
but accion publiciana, a plenary action in
the RTC or an action that is one for
recovery of the right to possession de jure.
II
157
The Estradas insist that the devise of
Page
the house to them by Caiza clearly denotes
her intention that they remain in possession
thereof, and legally incapacitated her
judicial guardian, Amparo Evangelista, from
evicting them therefrom, since their ouster
would be inconsistent with the ward's will.
A will is essentially ambulatory; at any
time prior to the testator's death, it may be
changed or revoked;[29] and until admitted
to probate, it has no effect whatever and no
right can be claimed thereunder, the law
being quite explicit: "No will shall pass
either real or personal property unless it is
proved and allowed in accordance with the
Rules of Court" (ART. 838, id.).[30]An
owner's intention to confer title in the future
to persons possessing property by his
tolerance, is not inconsistent with the
former's taking back possession in the
meantime for any reason deemed
sufficient. And that in this case there was
sufficient cause for the owner's resumption
of possession is apparent: she needed to
generate income from the house on
account of the physical infirmities afflicting
her, arising from her extreme age.
Amparo Evangelista was appointed by
a competent court the general guardian of
both the person and the estate of her aunt,
Carmen Caiza. Her Letters of
Guardianship[31] dated December 19, 1989
clearly installed her as the "guardian over
the person and properties of the
incompetent CARMEN CAIZA with full
authority to take possession of the property
of said incompetent in any province or
provinces in which it may be situated and to
perform all other acts necessary for the
management of her properties ** "[32] By
that appointment, it became Evangelista's
duty to care for her aunt's person, to attend
to her physical and spiritual needs, to
assure her well-being, with right to custody
of her person in preference to relatives and
friends.[33] It also became her right and duty
to get possession of, and exercise control
over, Caiza's property, both real and
personal, it being recognized principle that
the ward has no right to possession or
control of his property during her
incompetency.[34] That right to manage the
ward's estate carries with it the right to take
possession thereof and recover it from
anyone who retains it,[35] and bring and
defend such actions as may be needful for
this purpose. [36]
Actually, in bringing the action
of desahucio, Evangelista was merely
discharging the duty to attend to "the
comfortable and suitable maintenance of
the ward" explicitly imposed on her by
Section 4, Rule 96 of the Rules of
Court, viz.:
"SEC. 4. Estate to be managed frugally,
and proceeds applied to maintenance of
ward. A guardian must manage the estate
of his ward frugally and without waste, and
apply the income and profits thereof, so far
as maybe necessary, to the comfortable
and suitable maintenance of the ward and
his family, if there be any; and if such
income and profits be insufficient for that
purpose, the guardian may sell or
encumber the real estate, upon being
authorized by order to do so, and apply to
such of the proceeds as may be necessary
to such maintenance."
Finally, it may be pointed out in relation
to the Estradas's defenses in the ejectment
action, that as the law now stands, even
when, in forcible entry and unlawful
detainer cases, the defendant raises the
question of ownership in his pleadings and
the question of possession cannot be
resolved without deciding the issue of
ownership, the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal
Circuit Trial Courts nevertheless have the
undoubted competence to resolve. "the
issue of ownership ** only to determine the
issue of possession."[37]
III
As already stated, Carmen Caiza
passed away during the pendency of this
appeal. The Estradas thereupon moved to
dismiss the petition, arguing that Caiza's
death automatically terminated the
guardianship, Amaparo Evangelista lost all
authority as her judicial guardian, and
ceased to have legal personality to
represent her in the present appeal. The
motion is without merit.
While it is indeed well-established rule
that the relationship of guardian and ward
is necessarily terminated by the death of
either the guardian or the ward,[38] the rule
158
affords no advantage to the Estradas.
Amparo Evangelista, as niece of Carmen
Caiza, is one of the latter's only two (2)
Page
surviving heirs, the other being Caiza's
nephew, Ramon C. Nevado. On their
motion and by Resolution of this Court[39] of
June 20, 1994, they were in fact substituted
as parties in the appeal at bar in place of
the deceased, in accordance with Section
17, Rule 3 of the Rules of Court, viz.:[40]

"SEC. 18. Death of a party. After a party

dies and the claim is not thereby
extinguished, the court shall order, upon
proper notice, the legal representative of
the deceased to appear and be substituted
for the deceased within a period of thirty
(30) days, or within such time as may be
granted. If the legal representative fails to
appear within said time, the court may
order the opposing party to procure the
appointment of a legal representative of the
deceased within a time to be specified by
the court, and the representative shall
immediately appear for and on behalf of the
interest of the deceased. The court charges
involved in procuring such appointment, if
defrayed by the opposing party, may be
recovered as costs. The heirs of the
deceased may be allowed to be substituted
for the deceased, without requiring the
appointment of an executor or
administrator and the court may appoint
guardian ad litem for the minor heirs.

To be sure, an ejectment case survives

the death of a party. Caiza's demise did not
extinguish the desahucio suit instituted by
her through her guardian.[41] That action,
not being a purely personal one, survived
her death; her heirs have taken her place
and now represent her interests in the
appeal at bar.
WHEREFORE, the petition is
GRANTED. The Decision of the Court of
Appeals promulgated on June 2, 1993 --
affirming the Regional Trial Court's
judgment and dismissing petitioner's
petition for certiorari -- is REVERSED and
SET ASIDE, and the Decision dated April
13, 1992 of the Metropolitan Trial Court of
Quezon City, Branch 35, in Civil Case No.
3410 is REINSTATED and AFFIRMED.
Costs against private respondents.
SO ORDERED.
159
Page
G.R. No. L-39247 June 27, 1975
In the Matter of the Petition to Approve
the Will of Leodegaria Julian. FELIX
BALANAY, JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of
the Court of First Instance of Davao,
Branch VI; AVELINA B. ANTONIO and
DELIA B. LANABAN, respondents.
AQUINO, J.:
Felix Balanay, Jr. appealed
by certiorari from the order of the Court of
First Instance of Davao dated February 28,
1974, declaring illegal and void the will of
his mother, Leodegaria Julian, converting
the testate proceeding into an intestate
proceeding and ordering the issuance of
the corresponding notice to creditors
(Special Case No. 1808). The antecedents
of the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria,
Ilocos Sur, died on February 12, 1973 in
Davao City at the age of sixty-seven. She
was survived by her husband, Felix
Balanay, Sr., and by their six legitimate
children named Felix Balanay, Jr., Avelina
B. Antonio, Beatriz B. Solamo, Carolina B.
Manguiob, Delia B. Lanaban and Emilia B.
Pabaonon.
Felix J. Balanay, Jr. filed in the lower court
a petition dated February 27, 1973 for the
probate of his mother's notarial will dated
September 5, 1970 which is written in
English. In that will Leodegaria Julian
declared (a) that she was the owner of the
"southern half of nine conjugal lots (par. II);
(b) that she was the absolute owner of two
parcels of land which she inherited from her
father (par. III), and (c) that it was her
desire that her properties should not be
divided among her heirs during her
husband's lifetime and that their legitimes
should be satisfied out of the fruits of her
properties (Par. IV).
Then, in paragraph V of the will she stated
that after her husband's death (he was
eighty-two years old in 1973) her
paraphernal lands and all the conjugal
lands (which she described as "my
properties") should be divided and
distributed in the manner set forth in that
part of her will. She devised and partitioned
the conjugal lands as if they were all owned
by her. She disposed of in the will her
husband's one half share of the conjugal
assets. *
Felix Balanay, Sr. and Avelina B. Antonio
opposed the probate of the will on the
grounds of lack of testamentary capacity,
undue influence, preterition of the husband
and alleged improper partition of the
conjugal estate. The oppositors claimed
that Felix Balanay, Jr. should collate certain
properties which he had received from the
testatrix.
Felix Balanay, Jr., in his reply to the
opposition, attached thereto an affidavit of
Felix Balanay, Sr. dated April 18, 1973
wherein he withdrew his opposition to the
probate of the will and affirmed that he was
interested in its probate. On the same date
Felix Balanay, Sr. signed an instrument
captioned "Conformation (sic) of Division
and Renunciation of Hereditary Rights"
wherein he manifested that out of respect
for his wife's will he "waived and
renounced' his hereditary rights in her
estate in favor of their six children. In that
same instrument he confirmed the
agreement, which he and his wife had
perfected before her death, that their
conjugal properties would be partitioned in
the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her
rejoinder contended that the affidavit and
"conformation" of Felix Balanay, Sr. were
void. The lower court in its order of June
18, 1973 "denied" the opposition and reset
for hearing the probate of the will. It gave
effect to the affidavit and conformity of Felix
Balanay, Sr. In an order dated August 28,
1973 it appointed its branch clerk of court
as special administrator of the decedent's
estate.
Mrs. Antonio moved for the reconsideration
of the lower court's order of June 18, 1973
on the grounds (a) that the testatrix illegally
claimed that she was the owner of the
southern half of the conjugal lots and (b)
that she could not partition the conjugal
estate by allocating portions of the nine lots
160
to her children. Felix Balanay, Jr., through
his counsel, Hermenegildo Cabreros,
Page
opposed that motion. The lower court
denied it in its order of October 15, 1973.
In the meanwhile, another lawyer appeared
in the case. David O. Montaña, Sr.,
claiming to be the lawyer of petitioner Felix
Balanay, Jr. (his counsel of record was
Atty. Cabreros), filed a motion dated
September 25, 1973 for "leave of court to
withdraw probate of alleged will of
Leodegaria Julian and requesting authority
to proceed by intestate estate proceeding."
In that motion Montaña claimed to be the
lawyer not only of the petitioner but also of
Felix Balanay, Sr., Beatriz B. Solamo,
Carolina B. Manguiob and Emilia B.
Pabaonon.
Montaña in his motion assailed the
provision of the will which partitioned the
conjugal assets or allegedly effected a
compromise of future legitimes. He prayed
that the probate of the will be withdrawn
and that the proceeding be converted into
an intestate proceeding. In another motion
of the same date he asked that the
corresponding notice to creditors be issued.
Avelina B. Antonio and Delia B. Lanaban,
through Atty. Jose B. Guyo, in their
comments dated October 15, 1973
manifested their conformity with the motion
for the issuance of a notice to creditors.
They prayed that the will be declared void
for being contrary to law and that an
intestacy be declared.
The lower court, acting on the motions of
Atty. Montaña, assumed that the issuance
of a notice to creditors was in order since
the parties had agreed on that point. It
adopted the view of Attys. Montaña and
Guyo that the will was void. So, in its order
of February 28, 1974 it dismissed the
petition for the probate, converted the
testate proceeding into an intestate
proceeding, ordered the issuance of a
notice to creditors and set the intestate
proceeding for hearing on April 1 and 2,
1974. The lower court did not abrogate its
prior orders of June 18 and October 15,
1973. The notice to creditors was issued on
April 1, 1974 and published on May 2, 9
and 16 in the Davao Star in spite of
petitioner's motion of April 17, 1974 that its
publication be held in abeyance.
Felix Balanay, Jr., through a new counsel,
Roberto M. Sarenas, in a verified motion
dated April 15, 1974, asked for the
reconsideration of the lower court's order of
February 28, 1974 on the ground that Atty.
Montaña had no authority to withdraw the
petition for the allowance of the will.
Attached to the motion was a copy of a
letter dated March 27, 1974 addressed to
Atty. Montaña and signed by Felix Balanay,
Jr., Beatriz V. Solamo, Carolina B.
Manguiob and Emilia B. Pabaonon,
wherein they terminated Montaña's
services and informed him that his
withdrawal of the petition for the probate of
the will was without their consent and was
contrary to their repeated reminder to him
that their mother's will was "very sacred" to
them.
Avelina B. Antonio and Delia B. Lanaban
opposed the motion for reconsideration.
The lower court denied the motion in its
order of June 29, 1974. It clarified that it
declared the will void on the basis of its
own independent assessment of its
provisions and not because of Atty.
Montaña's arguments.
The basic issue is whether the probate
court erred in passing upon the intrinsic
validity of the will, before ruling on its
allowance or formal validity, and in
declaring it void.
We are of the opinion that in view of certain
unusual provisions of the will, which are of
dubious legality, and because of the motion
to withdraw the petition for probate (which
the lower court assumed to have been filed
with the petitioner's authorization), the trial
court acted correctly in passing upon the
will's intrinsic validity even before its formal
validity had been established. The probate
of a will might become an idle ceremony if
on its face it appears to be intrinsically void.
Where practical considerations demand
that the intrinsic validity of the will be
passed upon, even before it is probated,
the court should meet the issue (Nuguid vs.
Nuguid, 64 O.G. 1527, 17 SCRA 449.
Compare with Sumilang vs. Ramagosa, L-
23135, December 26, 1967, 21 SCRA
1369; Cacho vs. Udan, L-19996, April 30,
161
1965, 13 SCRA 693).1äwphï1.ñët
Page
But the probate court erred in declaring, in
its order of February 28, 1974 that the will
was void and in converting the testate
proceeding into an intestate proceeding
notwithstanding the fact that in its order of
June 18, 1973 , it gave effect to the
surviving husband's conformity to the will
and to his renunciation of his hereditary
rights which presumably included his one-
half share of the conjugal estate.
The rule is that "the invalidity of one of
several dispositions contained in a will does
not result in the invalidity of the other
dispositions, unless it is to be presumed
that the testator would not have made such
other dispositions if the first invalid
disposition had not been made" (Art. 792,
Civil Code). "Where some of the provisions
of a will are valid and others invalid, the
valid parts will be upheld if they can be
separated from the invalid without defeating
the intention of the testator or interfering
with the general testamentary scheme, or
doing injustice to the beneficiaries" (95
C.J.S. 873).
The statement of the testatrix that she
owned the "southern half of the conjugal
lands is contrary to law because, although
she was a coowner thereof, her share was
inchoate and proindiviso (Art. 143, Civil
Code; Madrigal and Paterno vs. Rafferty
and Concepcion, 38 Phil. 414). But That
illegal declaration does not nullify the entire
will. It may be disregarded.
The provision of the will that the properties
of the testatrix should not be divided among
her heirs during her husband's lifetime but
should be kept intact and that the legitimes
should be paid in cash is contrary to article
1080 of the Civil Code which reads:
ART. 1080. Should a person
make a partition of his estate
by an act inter vivos, or by will,
such partition shall be
respected, insofar as it does
not prejudice the legitime of
the compulsory heirs.
A parent who, in the interest of
his or her family, to keep any
agricultural, industrial, or
manufacturing enterprise
intact, may avail himself of the
right granted him in this article,
by ordering that the legitime of
the other children to whom the
property is not assigned be
paid in cash. (1056a)
The testatrix in her will made a partition of
the entire conjugal estate among her six
children (her husband had renounced his
hereditary rights and his one-half conjugal
share). She did not assign the whole estate
to one or more children as envisaged in
article 1080. Hence, she had no right to
require that the legitimes be paid in cash.
On the other hand, her estate may remain
undivided only for a period of twenty years.
So, the provision that the estate should not
be divided during her husband's lifetime
would at most be effective only for twenty
years from the date of her death unless
there are compelling reasons for
terminating the coownership (Art. 1083,
Civil Code).
Felix Balanay, Sr. could validly renounce
his hereditary rights and his one-half share
of the conjugal partnership (Arts. 179[1]
and 1041, Civil Code) but insofar as said
renunciation partakes of a donation of his
hereditary rights and his one-half share in
the conjugal estate (Art. 1060[1] Civil
Code), it should be subject to the limitations
prescribed in articles 750 and 752 of the
Civil Code. A portion of the estate should
be adjudicated to the widower for his
support and maintenance. Or at least his
legitime should be respected.
Subject to the foregoing observations and
the rules on collation, the will is intrinsically
valid and the partition therein may be given
effect if it does not prejudice the creditors
and impair the legitimes. The distribution
and partition would become effective upon
the death of Felix Balanay, Sr. In the
meantime, the net income should be
equitably divided among the children and
the surviving spouse.
It should be stressed that by reason of the
surviving husband's conformity to his wife's
will and his renunciation of his hereditary
rights, his one-half conjugal share became
a part of his deceased wife's estate. His
162
conformity had the effect of validating the
partition made in paragraph V of the will
Page
without prejudice, of course, to the rights of
the creditors and the legitimes of the
compulsory heirs.
Article 793 of the Civil Code provides that
"property acquired after the making of a will
shall only pass thereby, as if the testator
had it at the time of making the will, should
it expressly appear by the will that such
was his intention". Under article 930 of the
Civil Code "the legacy or devise of a thing
belonging to another person is void, if the
testator erroneously believed that the thing
pertained to him. But if the thing
bequeathed, though not belonging to the
testator when he made the will, afterwards
becomes his, by whatever title, the
disposition shall take effect."
In the instant case there is no doubt that
the testatrix and her husband intended to
partition the conjugal estate in the manner
set forth in paragraph V of her will. It is true
that she could dispose of by will only her
half of the conjugal estate (Art. 170, Civil
Code) but since the husband, after the
dissolution of the conjugal partnership, had
assented to her testamentary partition of
the conjugal estate, such partition has
become valid, assuming that the will may
be probated.
The instant case is different from
the Nuguid case, supra, where the testatrix
instituted as heir her sister and preterited
her parents. Her will was intrinsically void
because it preterited her compulsory heirs
in the direct line. Article 854 of the Civil
Code provides that "the preterition or
omission of one, some, or all of the
compulsory heirs in the direct line, whether
living at the time of the execution of the will
or born after the death of the testator, shall
annul the institution of heir; but the devises
and legacies, shall be valid insofar as they
are not inofficious." Since the preterition of
the parents annulled the institution of the
sister of the testatrix and there were no
legacies and devises, total intestacy
resulted (.Art. 960[2], Civil
Code).1äwphï1.ñët
In the instant case, the preterited heir was
the surviving spouse. His preterition did not
produce intestacy. Moreover, he signified
his conformity to his wife's will and
renounced his hereditary rights. .
It results that the lower court erred in not
proceeding with the probate of the will as
contemplated in its uncancelled order of
June 18, 1973. Save in an extreme case
where the will on its face is intrinsically
void, it is the probate court's duty to pass
first upon the formal validity of the will.
Generally, the probate of the will is
mandatory (Art. 838, Civil Code; Guevara
vs. Guevara, 74 Phil. 479 and 98 Phil. 249;
Fernandez vs. Dimagiba, L-23638, October
12, 1967, 21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the
very existence of a purported testament is
in itself prima facie proof that the supposed
testator has willed that his estate should be
distributed in the manner therein provided,
and it is incumbent upon the state that, if
legally tenable, such desire be given effect
independent of the attitude of the parties
affected thereby" (Resolution, Vda. de
Precilla vs. Narciso, L-27200, August 18,
1972, 46 SCRA 538, 565).
To give effect to the intention and wishes of
the testatrix is the first and principal law in
the matter of testaments (Dizon-Rivera vs.
Dizon, L-24561, June 30, 1970, 33 SCRA
554, 561). Testacy is preferable to
intestacy. An interpretation that will render
a testamentary disposition operative takes
precedence over a construction that will
nullify a provision of the will (Arts. 788 and
791, Civil Code).
Testacy is favored. Doubts are resolved in
favor of testacy especially where the will
evinces an intention on the part of the
testator to dispose of practically his whole
estate. So compelling is the principle that
intestacy should be avoided and that the
wishes of the testator should prevail that
sometimes the language of the will can be
varied for the purpose of giving it effect
(Austria vs. Reyes, L-23079, February 27,
1970, 31 SCRA 754, 762).
As far as is legally possible, the expressed
desire of the testator must be followed and
the dispositions of the properties in his will
should be upheld (Estorque vs. Estorque,
L-19573, June 30, 1970, 33 SCRA 540,
546).
163
The law has a tender regard for the wishes
Page
of the testator as expressed in his will
because any disposition therein is better
than that which the law can make (Castro
vs. Bustos, L-25913, February 28, 1969, 27
SCRA 327, 341).
Two other errors of the lower court may be
noticed. It erred in issuing a notice to
creditors although no executor or regular
administrator has been appointed. The
record reveals that it appointed a special
administrator. A notice to creditors is not in
order if only a special administrator has
been appointed. Section 1, Rule 86 of the
Rules of Court, in providing that
"immediately after granting letters of
testamentary or of administration, the court
shall issue a notice requiring all persons
having money claims against the decedent
to file them in the office of the clerk of said
court" clearly contemplates the
appointment of an executor or regular
administrator and not that of a special
administrator.
It is the executor or regular administrator
who is supposed to oppose the claims
against the estate and to pay such claims
when duly allowed (See. 10, Rule 86 and
sec. 1, Rule 88, Rules of Court).
We also take this occasion to point out that
the probate court's appointment of its
branch clerk of court as special
administrator (p. 30, Rollo) is not a salutary
practice because it might engender the
suspicion that the probate Judge and his
clerk of court are in cahoots in milking the
decedent's estate. Should the branch clerk
of court commit any abuse or devastavit in
the course of his administration, the
probate Judge might find it difficult to hold
him to a strict accountability. A court
employee should devote his official time to
his official duties and should not have as a
sideline the administration of a decedent's
estate.
WHEREFORE, the lower court's orders of
February 28, and June 29, 1974 are set
aside and its order of June 18, 1973,
setting for hearing the petition for probate,
is affirmed. The lower court is directed to
conduct further proceedings in Special
Case No. 1808 in consonance with this
opinion. Costs, against the private
respondents.
SO ORDERED.
Footnotes
* The pertinent provisions of the will
are as follows:
"II. That I am the absolute owner of the
southern half of the following conjugal
properties which I acquired during my
married life with my husband, Felix
Balanay, Sr., namely: (Here follows an
enumeration of nine lots).1äwphï1.ñët
"III. I am the absolute owner of the
following paraphernal properties which
I inherited from my deceased father,
Cecilio Julian, namely: (Here follows a
description of two lots).
"IV. It is my desire and I direct that in
the interest of my family, my properties
shall not be divided among my heirs
during the lifetime of my husband,
Felix Balanay, Sr. but should be kept
intact. The respective legitimes of my
husband and my children should be
paid in cash out of the proceeds of
sale of the produce and rents derived
from said properties.
"V. After the death of my husband,
Felix Balanay, Sr., my properties shall
be divided and distributed in the
manner as follows:" (Here follows a
partition of the nine conjugal lots and
the two paraphernal lots. The testatrix
divided among her six children not only
her two paraphernal lots, one of which
she devised to Emilia Pabaonon and
the other lot to Felix Balanay, Jr., but
also the nine conjugal lots. She did not
restrict the partition to her one-half
conjugal share but included her
husband's one-half share.).
164
Page
G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR,
Presiding Judge of Branch I, Court of
First Instance of Cebu, and MANUEL B.
LUGAY, respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B.
Lugay.
ESGUERRA, J.:
Petition to review on certiorari the judgment
of the Court First Instance of Cebu allowing
the probate of the last will a testament of
the late Valente Z. Cruz. Petitioner-
appellant Agapita N. Cruz, the surviving
spouse of the said decease opposed the
allowance of the will (Exhibit "E"), alleging
the will was executed through fraud, deceit,
misrepresentation and undue influence;
that the said instrument was execute
without the testator having been fully
informed of the content thereof, particularly
as to what properties he was disposing and
that the supposed last will and testament
was not executed in accordance with law.
Notwithstanding her objection, the Court
allowed the probate of the said last will and
testament Hence this appeal by certiorari
which was given due course.
The only question presented for
determination, on which the decision of the
case hinges, is whether the supposed last
will and testament of Valente Z. Cruz
(Exhibit "E") was executed in accordance
with law, particularly Articles 805 and 806
of the new Civil Code, the first requiring at
least three credible witnesses to attest and
subscribe to the will, and the second
requiring the testator and the witnesses to
acknowledge the will before a notary public.
Of the three instrumental witnesses thereto,
namely Deogracias T. Jamaloas Jr., Dr.
Francisco Pañares and Atty. Angel H.
Teves, Jr., one of them, the last named, is
at the same time the Notary Public before
whom the will was supposed to have been
acknowledged. Reduced to simpler terms,
the question was attested and subscribed
by at least three credible witnesses in the
presence of the testator and of each other,
considering that the three attesting
witnesses must appear before the notary
public to acknowledge the same. As the
third witness is the notary public himself,
petitioner argues that the result is that only
two witnesses appeared before the notary
public to acknowledge the will. On the other
hand, private respondent-appellee, Manuel
B. Lugay, who is the supposed executor of
the will, following the reasoning of the trial
court, maintains that there is substantial
compliance with the legal requirement of
having at least three attesting witnesses
even if the notary public acted as one of
them, bolstering up his stand with 57
American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:
It is said that there are,
practical reasons for upholding
a will as against the purely
technical reason that one of
the witnesses required by law
signed as certifying to an
acknowledgment of the
testator's signature under oath
rather than as attesting the
execution of the instrument.
After weighing the merits of the conflicting
claims of the parties, We are inclined to
sustain that of the appellant that the last will
and testament in question was not
executed in accordance with law. The
notary public before whom the will was
acknowledged cannot be considered as the
third instrumental witness since he cannot
acknowledge before himself his having
signed the will. To acknowledge before
means to avow (Javellana v. Ledesma, 97
Phil. 258, 262; Castro v. Castro, 100 Phil.
239, 247); to own as genuine, to assent, to
admit; and "before" means in front or
preceding in space or ahead of. (The New
Webster Encyclopedic Dictionary of the
English Language, p. 72; Funk & Wagnalls
New Standard Dictionary of the English
Language, p. 252; Webster's New
International Dictionary 2d. p. 245.)
Consequently, if the third witness were the
notary public himself, he would have to
165
avow assent, or admit his having signed
the will in front of himself. This cannot be
Page
done because he cannot split his
personality into two so that one will appear To allow the notary public to act as third
before the other to acknowledge his witness, or one the attesting and
participation in the making of the will. To acknowledging witnesses, would have the
permit such a situation to obtain would be effect of having only two attesting
sanctioning a sheer absurdity. witnesses to the will which would be in
contravention of the provisions of Article 80
Furthermore, the function of a notary public be requiring at least three credible
is, among others, to guard against any witnesses to act as such and of Article 806
illegal or immoral arrangement Balinon v. which requires that the testator and the
De Leon, 50 0. G. 583.) That function required number of witnesses must appear
would defeated if the notary public were before the notary public to acknowledge the
one of the attesting instrumental witnesses. will. The result would be, as has been said,
For them he would be interested sustaining that only two witnesses appeared before
the validity of the will as it directly involves the notary public for or that purpose. In the
him and the validity of his own act. It would circumstances, the law would not be duly in
place him in inconsistent position and the observed.
very purpose of acknowledgment, which is
to minimize fraud (Report of Code FOR ALL THE FOREGOING, the judgment
Commission p. 106-107), would be appealed from is hereby reversed and the
thwarted. probate of the last will and testament of
Valente Z. Cruz (Exhibit "E") is declared not
Admittedly, there are American precedents valid and hereby set aside.
holding that notary public may, in addition,
act as a witness to the executive of the Cost against the appellee.
document he has notarized. (Mahilum v.
Court Appeals, 64 0. G. 4017; 17 SCRA
482; Sawyer v. Cox, 43 Ill. 130). There are
others holding that his signing merely as
notary in a will nonetheless makes him a
witness thereon (Ferguson v. Ferguson, 47
S. E. 2d. 346; In Re Douglas Will, N. Y. S.
2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911,
Tyson Utterback, 122 So. 496; In Re
Baybee's Estate 160 N. 900; W. Merill v.
Boal, 132 A. 721; See also Trenwith v.
Smallwood, 15 So. 1030). But these
authorities do not serve the purpose of the
law in this jurisdiction or are not decisive of
the issue herein because the notaries
public and witnesses referred to aforecited
cases merely acted as instrumental,
subscribing attesting witnesses, and not
as acknowledging witnesses. He the notary
public acted not only as attesting witness
but also acknowledging witness, a situation
not envisaged by Article 805 of the Civil
Code which reads:

ART. 806. Every will must

be acknowledged before a
notary public by the testator
and the witnesses. The notary
public shall not be required to
retain a copy of the will or file
166

another with the office of the

Clerk of Court. [Emphasis
Page

supplied]
[G.R. No. 144915. February 23, 2004]
CAROLINA CAMAYA, FERDINAND
CAMAYA, EDGARDO CAMAYA
and ANSELMO
MANGULABNAN, petitioners,
vs. BERNARDO
PATULANDONG, respondent.
DECISION
CARPIO-MORALES, J.:
Before this Court is a petition for review
on certiorari under Rule 45 of the 1997
Revised Rules of Court seeking the
reversal of the Court of Appeals Decision
dated June 19, 2000 in CA-G.R. CV No.
53757, In re: Petition for the Probate of the
Codicil (Will) of Rufina Reyes; Bernardo
Patulandong v. Anselmo Mangulabnan v.
Carolina G. Camaya, Ferdinand Camaya
and Edgardo Camaya.
On November 17, 1972, Rufina Reyes
(testatrix) executed a notarized will wherein
she devised, among others, Lot No. 288-A
to her grandson Anselmo Mangulabnan
(Mangulabnan). The pertinent portion of her
will reads:
IKALIMA. - Aking inihahayag at
ginagawa na tagapagmana, sa aking
kusang loob, ang pinalaki kong APO na
si ANSELMO P. MANGULABNAN, may
sapat na gulang, kasal kay Flora Umagap,
at naninirahan sa San Lorenzo, Gapan,
Nueva Ecija, at anak ng aking anak na si
SIMPLICIA, at sa aking APO na si
ANSELMO ay aking ipinagkakaloob at
ipinamamana, sa aking pagkamatay, ang
mga sumusunod kong pagaari:
LOT NO. TITLE
NO. KINALALAGYAN NABANGGIT SA
288-A NT-47089 Sta. Cruz (1) p. 2
3348-A 100629 Poblacion (2) p. 2
3349-B 100630 Poblacion (3) p. 2
xxx[1] (Underscoring in the original;
emphasis supplied)
The testatrixs son Bernardo
Patulandong (Patulandong), respondent
herein, was in the will appointed as the
executor.
During her lifetime, the testatrix herself
filed a petition for the probate of her will
before the then Court of First Instance
(CFI) of Nueva Ecija where it was docketed
as Sp. Pro. No. 128.
By Order[2] of January 11, 1973, the CFI
admitted the will to probate.
On June 27, 1973, the testatrix
executed a codicil modifying above-quoted
paragraph five of her will in this wise:
UNA. - Ang Lote No. 288-A na nakalagay
sa barrio ng Sta. Cruz, Gapan, Nueva
Ecija, magsukat 36,384 metro cuadrados,
at nagtataglay ng TCT No. NT-47089, na
aking ipinamana sa aking apong si
ANSELMO P. MANGULABNAN,
sangayon sa Pangkat IKA-LIMA, pp. 5-6,
ng aking HULING HABILIN
(Testamento), ay ipinasiya kong
ipagkaloob at ipamana sa aking mga
anak na sina BERNARDO, SIMPLICIA,
GUILLERMA at JUAN nagaapellidong
PATULANDONG, at sa aking apong si
ANSELMO P. MANGULABNAN, sa
magkakaparehong bahagi na tig-
ikalimang bahagi bawat isa sa kanila.
IKALAWA. - Na maliban sa pagbabagong
ito, ang lahat ng mga tadhana ng aking
HULING HABILIN ay aking pinagtitibay na
muli.
x x x[3] (Underscoring in the original;
emphasis supplied) On May 14, 1988, the
testatrix died.
Mangulabnan later sought the delivery
to him by executor Patulandong of the title
to Lot 288-A. Patulandong refused to heed
the request, however, in view of the codicil
which modified the testators will.
Mangulabnan thus filed an action for
partition against Patulandong with the
Regional Trial Court of Gapan, Nueva
Ecija, docketed as Civil Case No. 552 (the
partition case).
On June 8, 1989, the trial court
rendered a decision in the partition
case,[4] the dispositive portion of which
167
reads:
Page
WHEREFORE, the court orders the WHEREFORE, in view of all the foregoing,
partitioning of the properties and the judgment is hereby rendered in the
defendant to deliver the copy of the following manner:
Transfer Certificate of Title No. NT-47089.
1. Declaring Transfer Certificate of
However, in view of the case cited by the Title No. NT-215750 issued by
plaintiff himself, the court holds that the the Register of Deeds of
partition is without prejudice Nueva Ecija in the name of
[to]... the probate of the codicil in Anselmo Mangulabnan dated
accordance with the Rules of February 7, 1991 and the
Court, [P]alacios vs. Catimbang Palacios Deed of Absolute Sale
cited by the plaintiff: executed by him in favor of the
intervenors Carolina,
After a will has been probated during the Ferdinand and Edgardo, all
lifetime of the testator, it does not surnamed Camaya on
necessarily mean that he cannot alter or February 19, 1991 and
revoke the same before his death. Should Transfer Certificate of Title No.
he make a new will, it would also be NT-216446 under date March
allowable of his petition and if he should die 18, 1991 issued in the names
before he had a chance to present such of the above-named
petition, the ordinary probate proceedings intervenors as NULL and VOID
after the testators death would be in order. and of no force and effect; and,

The Court also orders that the right of the
tenants of the agricultural land in question
should be protected meaning to say that
the tenants should not be ejected.
(Emphasis and underscoring supplied)
On July 17, 1989 Patulandong filed
before the Regional Trial Court of Nueva
Ecija a petition[5] for probate of the codicil of
the testatrix, docketed as Sp. Proc. No.
218.
On December 28, 1989, the probate
court issued an Order[6] setting the petition
for hearing and ordering the publication of
said order.
On February 7, 1991, by virtue of the
decision in the partition case, Mangulabnan
caused the cancellation of the title of the
testatrix over Lot No. 288-A and TCT No.
NT-215750[7] was issued in his name.
Mangulabnan later sold to herein
petitioners Camayas Lot No. 288-A by a
Deed of Sale dated February 19,
1991.[8] TCT No. NT-215750 was thus
cancelled and TCT No. NT-216446[9]was
issued in the name of the Camayas.
On January 16, 1996, the trial rendered
a decision[10] in Sp. Proc. No. 218 admitting
the codicil to probate and disposing as
2. Ordering the Register of Deeds of
Nueva Ecija to cancel Transfer
of Certificate of Title Nos. NT-
215750 and NT-216446 and
reissue the corresponding
Certificate of Titles to Bernardo
R. Patulandong, Filipino,
married to Gorgonia Mariano
residing at San Vicente,
Gapan, Nueva Ecija, Juan R.
Patulandong, Filipino, widower
and residing at San Lorenzo,
Gapan, Nueva Ecija; Guillerma
R. Patulandong Linsangan of
legal age, Filipino, widow and
residing at San Vicente,
Gapan, Nueva Ecija, Simplicia
R. Patulandong Mangulabnan,
of legal age, widow, and
residing at San Lorenzo,
Gapan, Nueva Ecija and her
grandson, Anselmo
Mangulabnan with full personal
circumstances stated herein to
the extent of one fifth (1/5)
each pursuant to the approved
codicil (will) of Rufina Reyes
dated June 27, 1973.[11]
The Camayas who had been allowed to
intervene in Sp. Proc. No. 218, and
168

follows: Mangulabnan, filed a Motion for

Reconsideration of the above-said decision
Page
but it was denied by Order[12] of February As to the first issue, petitioners contend
28,1996. that the under the law, the probate court
has no power, authority, and jurisdiction to
On appeal to the Court of Appeals, the
declare null and void the sale and titles of
Camayas and Mangulabnan (hereinafter
petitioners;[15] and that the probate court
referred to as petitioners) raised the
can only resolve the following issues:
following errors:
1. Whether or not the instrument
1. THERE WERE SERIOUS
which is offered for probate is the
SUBSTANTIAL DEPARTURES
last will and testament of the
FROM THE FORMALITIES
decedent; in other words, the
REQUIRED BY THE RULES,
question is one of identity[;]
THE LAW, AND THE
AUTHORITY OF THE 2. Whether or not the will has been
REGIONAL TRIAL COURT executed in accordance with the
SETTING AS A PROBATE formalities prescribed by law; in
COURT. other words, the question is one
of due execution[; and]
2. THE OPPOSITOR DID NOT
ONLY ACQUIRE LOT NO. 288-A 3. Whether the testator had
BY WILL BUT HE ALSO testamentary capacity at the time
ACQUIRED THE SAME BY of the execution of the will; in
PARTITION IN A CIVIL CASE other words, the question is one
WHERE THE DECISION HAS of capacity.[16]
ALREADY REACHED ITS
In Cuizon v. Ramolete, [17] this Court
FINALITY AND THEREFORE
elucidated on the limited jurisdiction of a
CAN NO LONGER BE
probate court, to wit:
NEGATED BY A
QUESTIONABLE CODICIL. It is well-settled rule that a probate court
3. THAT THE SUBJECT LOT 288-A or one in charge of proceedings whether
IS NO LONGER WITHIN THE testate or intestate cannot adjudicate or
REACHED (sic) OF THE determine title to properties claimed to
PETITIONER CONSIDERING be a part of the estate and which are
THAT THE OPPOSITOR equally claimed to belong to outside
VENDOR HAD A CLEAN TITLE parties. All that said court could do as
AND THAT THE regards said properties is to determine
INTERVENORS-VENDEED HAD whether they should or should not be
ACQUIRED THE SAME BY WAY included in the inventory or list of
OF SALE AS INNOCENT properties to be administered by the
PURCHASER IN GOOD FAITH administrator. If there is no dispute, well
AND FOR VALUE.[13] and good; but if there is, then the
parties, the administrator, and the
By Decision[14] of June 19, 2000, the opposing parties have to resort to an
Court of Appeals affirmed that of the trial ordinary action for a final determination
court. of the conflicting claims of title because
Hence, the present petition for Review the probate court cannot do so.
on Certiorari proffering the following issues:
xxx
1. Whether the probate court
exceeded its jurisdiction when it Having been apprised of the fact that the
declared null and void and property in question was in the possession
ordered the cancellation of the of third parties and more important,
TCTs of petitioners and the deed covered by a transfer certificate of title
of sale; and issued in the name of such third parties, the
2. Whether the final judgment in respondent court should have denied the
169

Civil Case No. 552 bars the motion of the respondent administrator and
allowance of the codicil. excluded the property in question from the
Page

inventory of the property of the estate. It

had no authority to deprive such third
persons of their possession
and ownership of the property. x x x
(Emphasis and underscoring supplied)
Following Cuizon, the probate court
exceeded its jurisdiction when it further
declared the deed of sale and the titles of
petitioners null and void, it having had the
effect of depriving them possession and
ownership of the property.
Moreover, following Section 48 of the
Property Registry Decree which reads:
SECTION 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,
petitioners titles cannot, under probate
proceedings, be declared null and void.
As to the second issue, petitioners
argue that by allowing the codicil to
probate, it in effect amended the final
judgment in the partition case which is not
allowed by law;[18] and that petitioner
Camayas are innocent purchasers for value
and enjoy the legal presumption that the
transfer was lawful.[19]
53757 affirming the January 16, 1996
Decision of Regional Trial Court, Branch
35, of Gapan, Nueva Ecija, is
hereby AFFIRMED with MODIFICATION.
The decision allowing the codicil
is AFFIRMED, but the 1) declaration as null
and void of Transfer Certificate of Title No.
NT-215750 issued on February 7, 1991 by
the Register of Deeds of Nueva Ecija in the
name of Anselmo Mangulabnan, the
February 19, 1991 Deed of Absolute Sale
executed by him in favor of the intervenors
- herein petitioners Carolina, Ferdinand and
Edgardo Camaya, and Transfer Certificate
of Title No. NT-216446 issued on March
18, 1991 in favor of the petitioners
Camayas, and 2) the order for the Register
of Deeds of Nueva Ecija to cancel Transfer
of Certificate of Title Nos. NT-215750 and
NT-216446 and reissue the corresponding
Certificate of Titles to Bernardo R.
Patulandong, Juan R. Patulandong,
Guillerma R. Patulandong Linsangan,
Simplicia R. Patulandong Mangulabnan,
and Anselmo Mangulabnan to the extent of
one-fifth (1/5) each pursuant to the
approved codicil are SET ASIDE, without
prejudice to respondent and his co-heirs
ventilation of their right in an appropriate
action.

Petitioners first argument does not SO ORDERED.

persuade.
Though the judgment in the partition
case had become final and executory as it
was not appealed, it specifically provided in
its dispositive portion that the decision
was without prejudice [to] ... the
probate of the codicil. The rights of the
prevailing parties in said case were thus
subject to the outcome of the probate of the
codicil.
The probate court being bereft of
authority to rule upon the validity of
petitioners titles, there is no longer any
necessity to dwell on the merits of
petitioners Camayas claim that they are
innocent purchasers for value and enjoy
the legal presumption that the transfer was
lawful.
WHEREFORE, the petition is
GRANTED IN PART.
170

The Decision of the Court of Appeals

dated June 19, 2000 in CA-G.R. CV No.
Page
[G.R. No. 133000. October 2, 2001]
PATRICIA
NATCHER, petitioner, vs. HON.
COURT OF APPEALS AND THE
HEIRS OF GRACIANO DEL
ROSARIO LETICIA DEL ROSARIO,
EMILIA DEL ROSARIO-
MANANGAN, ROSALINDA
FUENTES LLANA, RODOLFO
FUENTES, ALBERTO FUENTES,
EVELYN DEL ROSARIO, and
EDUARDO DEL
ROSARIO, respondents.
DECISION
BUENA, J.:
May a Regional Trial Court, acting as a
court of general jurisdiction in an action for
reconveyance and annulment of title with
damages, adjudicate matters relating to the
settlement of the estate of a deceased
person particularly in questions as to
advancement of property made by the
decedent to any of the heirs?
Sought to be reversed in this petition for
review on certiorari under Rule 45 is the
decision[1] of public respondent Court of
Appeals, the decretal portion of which
declares:
Wherefore in view of the foregoing
considerations, judgment appealed from is
reversed and set aside and another one
entered annulling the Deed of Sale
executed by Graciano Del Rosario in favor
of defendant-appellee Patricia Natcher, and
ordering the Register of Deeds to Cancel
TCT No. 186059 and reinstate TCT No.
107443 without prejudice to the filing of a
special proceeding for the settlement of the
estate of Graciano Del Rosario in a proper
court. No costs.
So ordered.
Spouses Graciano del Rosario and
Graciana Esguerra were registered owners
of a parcel of land with an area of 9,322
square meters located in Manila and
covered by Transfer Certificate of Title No.
11889. Upon the death of Graciana in
1951, Graciano, together with his six
children, namely: Bayani, Ricardo, Rafael,
Leticia, Emiliana and Nieves, entered into
an extrajudicial settlement of Gracianas
estate on 09 February 1954 adjudicating
and dividing among themselves the real
property subject of TCT No. 11889. Under
the agreement, Graciano received 8/14
share while each of the six children
received 1/14 share of the said
property. Accordingly, TCT No. 11889 was
cancelled, and in lieu thereof, TCT No.
35980 was issued in the name of Graciano
and the six children.
Further, on 09 February 1954, said
heirs executed and forged an Agreement of
Consolidation-Subdivision of Real Property
with Waiver of Rights where they
subdivided among themselves the parcel of
land covered by TCT No. 35980 into
several lots. Graciano then donated to his
children, share and share alike, a portion of
his interest in the land amounting to
4,849.38 square meters leaving only
447.60 square meters registered under
Gracianos name, as covered by TCT No.
35988. Subsequently, the land subject of
TCT No. 35988 was further subdivided into
two separate lots where the first lot with a
land area of 80.90 square meters was
registered under TCT No. 107442 and the
second lot with a land area of 396.70
square meters was registered under TCT
No. 107443. Eventually, Graciano sold the
first lot[2]to a third person but retained
ownership over the second lot.[3]
On 20 March 1980, Graciano married
herein petitioner Patricia Natcher. During
their marriage, Graciano sold the land
covered by TCT No. 107443 to his wife
Patricia as a result of which TCT No.
186059[4] was issued in the latters
name. On 07 October 1985, Graciano died
leaving his second wife Patricia and his six
children by his first marriage, as heirs.
In a complaint[5] filed in Civil Case No.
71075 before the Regional Trial Court of
Manila, Branch 55, herein private
respondents alleged that upon Gracianos
death, petitioner Natcher, through the
employment of fraud, misrepresentation
and forgery, acquired TCT No. 107443, by
making it appear that Graciano executed a
171
Deed of Sale dated 25 June 1987[6] in favor
of herein petitioner resulting in the
Page
cancellation of TCT No. 107443 and the
issuance of TCT No. 186059 in the name of
Patricia Natcher. Similarly, herein private
respondents alleged in said complaint that
as a consequence of such fraudulent sale,
their legitimes have been impaired.
In her answer[7] dated 19 August 1994,
herein petitioner Natcher averred that she
was legally married to Graciano on 20
March 1980 and thus, under the law, she
was likewise considered a compulsory heir
of the latter. Petitioner further alleged that
during Gracianos lifetime, Graciano already
distributed, in advance, properties to his
children, hence, herein private respondents
may not anymore claim against Gracianos
estate or against herein petitioners
property.
After trial, the Regional Trial Court of
Manila, Branch 55, rendered a decision
dated 26 January 1996 holding:[8]
1) The deed of sale executed by the
late Graciano del Rosario in favor
of Patricia Natcher is prohibited
by law and thus a complete
nullity. There being no evidence
that a separation of property was
agreed upon in the marriage
settlements or that there has
been decreed a judicial
separation of property between
them, the spouses are prohibited
from entering (into) a contract of
sale;
2) The deed of sale cannot be
likewise regarded as a valid
donation as it was equally
prohibited by law under Article
133 of the New Civil Code;
3) Although the deed of sale cannot
be regarded as such or as a
donation, it may however be
regarded as an extension of
advance inheritance of Patricia
Natcher being a compulsory heir
of the deceased.
On appeal, the Court of Appeals
reversed and set aside the lower courts
decision ratiocinating, inter alia:
It is the probate court that has exclusive
jurisdiction to make a just and legal
distribution of the estate. The court a quo,
trying an ordinary action for
reconveyance/annulment of title, went
beyond its jurisdiction when it performed
the acts proper only in a special proceeding
for the settlement of estate of a deceased
person. XXX
X X X Thus the court a quo erred in
regarding the subject property as an
advance inheritance. What the court should
have done was merely to rule on the
validity of (the) sale and leave the issue on
advancement to be resolved in a separate
proceeding instituted for that purpose. X X
X
Aggrieved, herein petitioner seeks
refuge under our protective mantle through
the expediency of Rule 45 of the Rules of
Court and assails the appellate courts
decision for being contrary to law and the
facts of the case.
We concur with the Court of Appeals
and find no merit in the instant petition.
Section 3, Rule 1 of the 1997 Rules of
Civil Procedure defines civil action and
special proceedings, in this wise:
X X X a) A civil action is one by which a
party sues another for the enforcement or
protection of a right, or the prevention or
redress of a wrong.
A civil action may either be ordinary or
special. Both are governed by the rules for
ordinary civil actions, subject to specific
rules prescribed for a special civil action.
XXX
c) A special proceeding is a remedy by
which a party seeks to establish a status, a
right or a particular fact.
As could be gleaned from the
foregoing, there lies a marked distinction
between an action and a special
proceeding. An action is a formal demand
of ones right in a court of justice in the
manner prescribed by the court or by the
law. It is the method of applying legal
remedies according to definite established
rules. The term special proceeding may be
defined as an application or proceeding to
establish the status or right of a party, or a
172
particular fact. Usually, in special
proceedings, no formal pleadings are
Page
required unless the statute expressly so
provides. In special proceedings, the
remedy is granted generally upon an
application or motion.[9]
Citing American Jurisprudence, a noted
authority in Remedial Law expounds
further:
It may accordingly be stated generally that
actions include those proceedings which
are instituted and prosecuted according to
the ordinary rules and provisions relating to
actions at law or suits in equity, and that
special proceedings include those
proceedings which are not ordinary in this
sense, but is instituted and prosecuted
according to some special mode as in the
case of proceedings commenced without
summons and prosecuted without regular
pleadings, which are characteristics of
ordinary actions. X X X A special
proceeding must therefore be in the nature
of a distinct and independent proceeding
for particular relief, such as may be
instituted independently of a pending
action, by petition or motion upon notice.[10]
Applying these principles, an action for
reconveyance and annulment of title with
damages is a civil action, whereas matters
relating to settlement of the estate of a
deceased person such as advancement of
property made by the decedent, partake of
the nature of a special proceeding, which
concomitantly requires the application of
specific rules as provided for in the Rules of
Court.
Clearly, matters which involve
settlement and distribution of the estate of
the decedent fall within the exclusive
province of the probate court in the
exercise of its limited jurisdiction.
Thus, under Section 2, Rule 90 of the
Rules of Court, questions as to
advancement made or alleged to have
been made by the deceased to any heir
may be heard and determined by the court
having jurisdiction of the estate
proceedings; and the final order of the
court thereon shall be binding on the
person raising the questions and on the
heir.
While it may be true that the Rules
used the word may, it is nevertheless clear
that the same provision[11] contemplates a
probate court when it speaks of the court
having jurisdiction of the estate
proceedings.
Corollarily, the Regional Trial Court in
the instant case, acting in its general
jurisdiction, is devoid of authority to render
an adjudication and resolve the issue of
advancement of the real property in favor of
herein petitioner Natcher, inasmuch as Civil
Case No. 71075 for reconveyance and
annulment of title with damages is not, to
our mind, the proper vehicle to thresh out
said question. Moreover, under the present
circumstances, the RTC of Manila, Branch
55 was not properly constituted as a
probate court so as to validly pass upon the
question of advancement made by the
decedent Graciano Del Rosario to his wife,
herein petitioner Natcher.
At this point, the appellate courts
disquisition is elucidating:
Before a court can make a partition and
distribution of the estate of a deceased, it
must first settle the estate in a special
proceeding instituted for the purpose. In the
case at hand, the court a quo determined
the respective legitimes of the plaintiffs-
appellants and assigned the subject
property owned by the estate of the
deceased to defendant-appellee without
observing the proper proceedings provided
(for) by the Rules of Court. From the
aforecited discussions, it is clear that trial
courts trying an ordinary action cannot
resolve to perform acts pertaining to a
special proceeding because it is subject to
specific prescribed rules. Thus, the court a
quo erred in regarding the subject property
as an advance inheritance.[12]
In resolving the case at bench, this
Court is not unaware of our pronouncement
in Coca vs. Borromeo[13] and Mendoza
vs. Teh[14] that whether a particular matter
should be resolved by the Regional Trial
Court (then Court of First Instance) in the
exercise of its general jurisdiction or its
limited probate jurisdiction is not a
jurisdictional issue but a mere question of
procedure. In essence, it is a procedural
question involving a mode of practice which
may be waived.[15]
173
Notwithstanding, we do not see any
waiver on the part of herein private
respondents inasmuch as the six children
Page
of the decedent even assailed the authority the best forum to ventilate and adjudge the
of the trial court, acting in its general issue of advancement as well as other
jurisdiction, to rule on this specific issue of related matters involving the settlement of
advancement made by the decedent to Graciano Del Rosarios estate.
petitioner.
WHEREFORE, premises considered,
Analogously, in a train of decisions, this the assailed decision of the Court of
Court has consistently enunciated the long Appeals is hereby AFFIRMED and the
standing principle that although generally, a instant petition is DISMISSED for lack of
probate court may not decide a question of merit.
title or ownership, yet if the interested
SO ORDERED.
parties are all heirs, or the question is
one of collation or advancement, or the
parties consent to the assumption of
jurisdiction by the probate court and the
rights of third parties are not impaired, then
the probate court is competent to decide
the question of ownership.[16]
Similarly in Mendoza vs. Teh, we had
occasion to hold:

In the present suit, no settlement of estate

is involved, but merely an allegation
seeking appointment as estate
administratrix which does not
necessarily involve settlement of estate
that would have invited the exercise of
the limited jurisdiction of a probate
court.[17] (emphasis supplied)

Of equal importance is that before any

conclusion about the legal share due to a
compulsory heir may be reached, it is
necessary that certain steps be taken
first.[18] The net estate of the decedent must
be ascertained, by deducting all payable
obligations and charges from the value of
the property owned by the deceased at the
time of his death; then, all donations
subject to collation would be added to
it. With the partible estate thus determined,
the legitime of the compulsory heir or heirs
can be established; and only thereafter can
it be ascertained whether or not a donation
had prejudiced the legitimes.[19]
A perusal of the records, specifically the
antecedents and proceedings in the
present case, reveals that the trial court
failed to observe established rules of
procedure governing the settlement of the
estate of Graciano Del Rosario. This Court
sees no cogent reason to sanction the non-
observance of these well-entrenched rules
174

and hereby holds that under the prevailing

circumstances, a probate court, in the
exercise of its limited jurisdiction, is indeed
Page
G.R. No. 168156
HEIRS OF ROSENDO LASAM,
Represented by Rogelio Lasam
and Atty. Edward P. Llonillo,
Petitioners,
- versus -
VICENTA UMENGAN, Respondent.
Promulgated: December 6, 2006
x--------------------------------------------------------
---------------------------------x
DECISION
CALLEJO, SR., J.:
Before the Court is the petition for review
on certiorari filed by the Heirs of Rosendo
Lasam, represented by Rogelio M. Lasam
and Atty. Edward P. Llonillo, seeking the
reversal of the Decision[1] dated February
16, 2005 of the Court of Appeals (CA) in
CA-G.R. SP No. 80032. The assailed
decision reversed and set aside the
decision of the Regional Trial Court (RTC)
of Tuguegarao City, Cagayan and
dismissed, for lack of merit, the complaint
for unlawful detainer file by the said heirs
against respondent Vicenta Umengan.
The RTC decision affirmed that of the
Municipal Trial Court in Cities (MTCC) of
the same city, Branch III, which had
rendered judgment in favor of the heirs of
Rosendo Lasam and directed the ejectment
of respondent Vicenta Umengan from the
lot subject of litigation.
The present petition likewise seeks
the reversal of the CA Resolution
dated May 17, 2005 denying the motion for
reconsideration filed by the heirs of
Rosendo Lasam.
As culled from the records, the backdrop of
the present case is as follows
The lot subject of the unlawful detainer
case is situated in Tuguegarao City,
Cagayan. It is the eastern half portion of
Lot No. 5427 and Lot No. 990. The first
lot, Lot No. 5427 containing an area of
1,037 square meters, is covered by
Original Certificate of Title (OCT) No.
196. The second lot, Lot No. 990
containing an area of 118 sq m, is
covered by OCT No. 1032. These lots are
registered in the names of the original
owners, spouses Pedro Cuntapay and
Leona Bunagan.
In an instrument denominated as Deed of
Confirmation and acknowledged before a
notary public on June 14, 1979, the heirs of
the said spouses conveyed the ownership
of Lots Nos. 990 and 5427 in favor of their
two children, Irene Cuntapay and Isabel
Cuntapay. In another instrument entitled
Partition Agreement and acknowledged
before a notary public on December 28,
1979, it was agreed that the eastern half
portion (subject lot) of Lots Nos. 990 and
5427 shall belong to the heirs of Isabel
Cuntapay. On the other hand, the
remaining portion thereof (the west portion)
shall belong to the heirs of Irene
Cuntapay. The subject lot (eastern half
portion) has an area of 554 sq m.
Isabel Cuntapay had four children by her
first husband, Domingo Turingan, namely:
Abdon, Sado (deceased), Rufo and
Maria. When Domingo Turingan passed
away, Isabel Cuntapay remarried Mariano
Lasam. She had two other children by him,
namely: Trinidad and Rosendo.
Sometime in January 2001, the heirs of
Rosendo Lasam (son of Isabel Cuntapay
by her second husband) filed with the
MTCC a complaint for unlawful detainer
against Vicenta Umengan, who was then
occupying the subject lot. Vicenta
Umengan is the daughter of Abdon
Turingan (son of Isabel Cuntapay by her
first husband).
In their complaint, the heirs of
Rosendo Lasam alleged that they are the
owners of the subject lot, having inherited it
from their father. Rosendo Lasam was
allegedly the sole heir of the deceased
Pedro Cuntapay through Isabel
Cuntapay. During his lifetime, Rosendo
Lasam allegedly temporarily allowed
Vicenta Umengan to occupy the subject lot
sometime in 1955. The latter and her
husband allegedly promised that they
175
would vacate the subject lot upon
demand. However, despite written notice
and demand by the heirs of Rosendo
Page
Lasam, Vicenta Umengan allegedly
unlawfully refused to vacate the subject lot
and continued to possess the
same. Accordingly, the heirs of Rosendo
Lasam were constrained to institute the
action for ejectment.
In her Answer with Counterclaim,
Vicenta Umengan specifically denied the
material allegations in the complaint. She
countered that when Isabel Cuntapay
passed away, the subject lot was inherited
by her six children by her first and second
marriages through intestate
succession. Each of the six children
allegedly had a pro indiviso share of 1/6 of
the subject lot.
It was further alleged by Vicenta
Umengan that her father, Abdon Turingan,
purchased the respective 1/6 shares in the
subject lot of his siblings Maria and
Sado. These conveyances were allegedly
evidenced by the Deed of Sale
dated March 3, 1975, appearing as Doc.
No. 88, Page No. 36, Book No. XIV, series
of 1975 of the notarial book of Atty. Pedro
Lagui.
Prior thereto, Rufo already sold his
1/6 share in the subject lot to Vicenta
Umengan and her husband as evidenced
by the Deed of Sale dated June 14, 1961,
appearing as Doc. No. 539, Page No. 41,
Book No. V, series of 1961 of the notarial
book of Atty. Pedro Lagui. Also on June 14,
1961, Abdon donated his 1/6 share in the
subject lot to her daughter Vicenta
Umengan as evidenced by the Deed of
Donation appearing as Doc. No. 538, Page
No. 41, Book No. V, series of 1961 of the
notarial book of the same notary public.
According to Vicenta Umengan, the
children of Isabel Cuntapay by her second
husband (Rosendo and Trinidad Lasam)
own only 2/6 portion of the subject lot. She
thus prayed that the complaint for
ejectment be dismissed and that the heirs
of Rosendo Lasam be ordered to pay her
damages.
The MTCC rendered judgment in
favor of the heirs of Rosendo Lasam and
directed the ejectment of Vicenta
Umengan. In so ruling, the MTCC gave
credence to the newly discovered last will
and testament (entitled Testamento
Abierto) purportedly executed by Isabel
Cuntapay where she bequeathed the
subject lot to her son, Rosendo Lasam,
thus:
x x x my share 1/5th (one-fifth)
of the Cuntapay heirs,
bordered on the North by Sr.
Elia Canapi; to the South, by
Calle Aguinaldo; to the East,
by Calle P. Burgos and the
West, by the late Don Luis
Alonso; on the property which
is my share stands a house of
light materials where I
presently reside; this
th
1/5 (one-fifth) share of my
inheritance from the
Cuntapays I leave to my son
Rosendo Lasam and also the
aforementioned house of light
material x x x[2]
The MTCC reasoned that the heirs of
Rosendo Lasam anchored their claim over
the subject lot on the last will and testament
of Isabel Cuntapay while Vicenta Umengan
hinged hers on intestate succession and
legal conveyances. Citing
jurisprudence[3] and Article 1080[4] of the
Civil Code, the MTCC opined that testacy
was favored and that intestacy should be
avoided and the wishes of the testator
should prevail. It observed that the last will
and testament of Isabel Cuntapay was not
yet probated as required by law;
nonetheless, the institution of a probate
proceeding was not barred by prescription.
With the finding that the subject lot
was already bequeathed by Isabel
Cuntapay to Rosendo Lasam, the MTCC
held that the siblings Abdon, Sado, Rufo
and Maria Turingan no longer had any
share therein. Consequently, they could not
convey to Vicenta Umengan what they did
not own. On the issue then of who was
entitled to possession of the subject lot, the
MTCC ruled in favor of the heirs of
Rosendo Lasam as it found that Vicenta
Umengans possession thereof was by
176
mere tolerance. The dispositive portion of
the MTCC decision reads:
Page
 WHEREFORE, in the light of
the foregoing considerations,
this Court Resolve[d] to order
the EJECTMENT of VICENTA
T. UMENGAN and in her place
INSTITUTE THE HEIRS OF
ROSENDO LASAM.
It is further ordered the
defendant shall pay the Heirs
of Rosendo Lasam the sum of
P500.00 pesos representing
the monthly rental of the land
from August 2000 to the time
this case shall have been
terminated.
Ordering the defendant to pay
the plaintiffs the amount
of P20,000.00 attorneys fees
plus cost of this litigation.
So Ordered.[5]
On appeal, the RTC affirmed in
toto the decision of the MTCC. The RTC
echoed the reasoning of the MTCC that the
testamentary disposition of the property of
Isabel Cuntapay should be respected, and
that the heirs of Rosendo Lasam have a
better right to possess the subject lot.
Undaunted, Vicenta Umengan filed
an appeal with the CA. She argued that the
MTCC had no jurisdiction over the case as
it involved the recovery of ownership of the
subject lot, not merely recovery
of possession or unlawful detainer. She
also assailed the RTCs and the MTCCs
holding that the purported Testamento
Abierto of Isabel Cuntapay prevails
over Vicenta Umengans muniments of title
and, consequently, the heirs of Rosendo
Lasam have a better right to the subject lot
than Vicenta Umengan.
In the assailed Decision dated February 16,
2005, the CA reversed and set aside the
decision of the RTC. The appellate court
preliminarily upheld the jurisdiction of the
MTCC over the subject matter as it found
that the allegations in the complaint made
out a case for unlawful detainer. The heirs
of Rosendo Lasam in their complaint,
according to the CA, only sought for
Vicenta Umengan to vacate and surrender
possession of the subject lot. The CA also
rejected the contention of the heirs of
Rosendo Lasam that the issue of
ownership of the subject lot had already
been settled in another case, Civil Case
No. 4917, before RTC (Branch 3)
of Tuguegarao City. The CA stated that the
trial courts order dismissing the said case
was not a judgment on the merits as to
constitute res judicata.
However, the CA declared that the RTC, as
well as the MTCC, erred in ruling that, by
virtue of the purported last will and
testament of Isabel Cuntapay, the heirs of
Rosendo Lasam have a better right to the
subject lot over Vicenta Umengan. The CA
explained that the said last will and
testament did not comply with the formal
requirements of the law on wills.[6]
Specifically, the CA found that the
pages of the purported last will and
testament were not numbered in
accordance with the law. Neither did it
contain the requisite attestation
clause. Isabel Cuntapay as testator and the
witnesses to the will did not affix their
respective signatures on the second page
thereof. The said instrument was likewise
not acknowledged before a notary public by
the testator and the witnesses. The CA
even raised doubts as to its authenticity,
noting that while Isabel Cuntapay died in
1947 and the heirs of Rosendo Lasam
claimed that they discovered the same only
in 1997, a date May 19, 1956 appears on
the last page of the purported will. The CA
opined that if this was the date of
execution, then the will was obviously
spurious. On the other hand, if this was the
date of its discovery, then the CA
expressed bafflement as to why the heirs of
Rosendo Lasam, through their mother,
declared in the Partition Agreement
dated December 28, 1979 that Isabel
Cuntapay died intestate.
It was observed by the CA that as against
these infirmities in the claim of the heirs of
Rosendo Lasam, Vicenta Umengan
presented a Deed of Sale and a Deed of
Donation to justify her possession of the
subject lot. The CA noted that she has also
177
possessed the subject property since
1955. Such prior possession, the CA held,
gave Vicente Umengan the right to remain
Page
in the subject lot until a person with a better
right lawfully ejects her. The heirs of
Rosendo Lasam do not have such a better
right. The CA stressed that the ruling on the
issue of physical possession does not
affect the title to the subject lot nor
constitute a binding and conclusive
adjudication on the merits on the issue of
ownership. The parties are not precluded
from filing the appropriate action to directly
contest the ownership of or the title to the
subject lot.
The decretal portion of the assailed
decision of the CA reads:
WHEREFORE, premises
considered, the appeal is
GRANTED. The August 29,
2003 decision of the RTC,
Branch 1, Tuguegarao City,
Cagayan in Civil Case No.
5924 is hereby REVERSED
and SET ASIDE. Private
respondents complaint for
unlawful detainer against
petitioner is dismissed for lack
of merit.
SO ORDERED.[7]
The heirs of Rosendo Lasam sought the
reconsideration thereof but their motion
was denied by the CA in its Resolution
dated May 17, 2005.
The heirs of Rosendo Lasam (petitioners)
now come to the Court alleging that the CA
committed reversible error in setting aside
the decision of the RTC, which had
affirmed that of the MTCC, and dismissing
their complaint for unlawful detainer against
respondent Vicenta Umengan.
Petitioners argue that the CA erred when it
held, on one hand, that the MTCC had
jurisdiction over the subject matter of the
complaint as the allegations therein make
out a case for unlawful detainer but, on the
other hand, proceeded to discuss the
validity of the last will and testament of
Isabel Cuntapay.
Petitioners insist that respondent is holding
the subject lot by mere tolerance and that
they, as the heirs of Rosendo Lasam who
was the rightful owner of the subject lot,
have a better right thereto. It was allegedly
error for the CA to declare the last will and
testament of Isabel Cuntapay as null and
void for its non-compliance with the formal
requisites of the law on wills. The said
matter cannot be resolved in an unlawful
detainer case, which only involves the
issue of material or physical possession of
the disputed property. In any case, they
maintain that the said will complied with the
formal requirements of the law.
It was allegedly also erroneous for
the CA to consider in respondents favor the
deed of sale and deed of donation covering
portions of the subject lot, when these
documents had already been passed upon
by the RTC (Branch 3)
of Tuguegarao City in Civil Case No. 4917
when it dismissed the respondents
complaint for partition of the subject
lot. The said order allegedly constituted res
judicata and may no longer be reviewed by
the CA.
Petitioners emphasize that in an unlawful
detainer case, the only issue to be resolved
is who among the parties is entitled to the
physical or material possession of the
property in dispute. On this point, the
MTCC held (and the same was affirmed by
the RTC) that petitioners have a better right
since the merely tolerated possession of
the respondent had already expired upon
the petitioners formal demand on her to
vacate. In support of this claim, they point
to the affidavit of Heliodoro Turingan, full
brother of the respondent, attesting that the
latters possession of the subject lot was by
mere tolerance of Rosendo Lasam who
inherited the same from Isabel Cuntapay.
According to petitioners, respondents
predecessors-in-interest from whom she
derived her claim over the subject lot by
donation and sale could not have conveyed
portions thereof to her, as she had claimed,
because until the present, it is still covered
by OCT Nos. 196 and 1032 under the
names of Pedro and Leona
178
Cuntapay. Their respective estates have
not been settled up to now.
Page
 In the present case, petitioners base their
It is also the contention of petitioners that claim of right to possession on the theory
the CA should have dismissed outright that their father, Rosendo Lasam, was the
respondents petition filed therewith for sole owner of the subject lot by virtue of the
failure to comply with the technical newly discovered last will and testament of
requirements of the Rules of Isabel Cuntapay bequeathing the same to
Court. Specifically, the petition was not him. Respondent is allegedly holding the
allegedly properly verified, lacked subject lot by mere tolerance of Rosendo
statement of material dates and written Lasam and, upon the petitioners formal
explanation on why personal service was demand on her to vacate the same,
not made. respondents right to possess it has expired.
This last contention of petitioners
deserves scant consideration. The On the other hand, respondent
technical requirements for filing an appeal hinges her claim of possession on the legal
are not sacrosanct. It has been held that conveyances made to her by the children of
while the requirements for perfecting an Isabel Cuntapay by her first husband,
appeal must be strictly followed as they are namely, Maria, Rufo, Sado and
considered indispensable interdictions Abdon. These conveyances were made
against needless delays and for orderly through the sale and donation by the said
discharge of judicial business, the law does siblings of their respective portions in the
admit of exceptions when warranted by subject lot to respondent as evidenced by
circumstances.[8] In the present case, the the pertinent deeds.
CA cannot be faulted in choosing to
overlook the technical defects The CA correctly held that, as

ofrespondents appeal. After all, technicality between the respective claims

should not be allowed to stand in the way of petitioners and respondent, the latter has

of equitably and completely resolving the a better right to possess the subject lot.

rights and obligations of the parties.[9] As earlier stated, petitioners rely on

the last will and testament of Isabel
The Court shall now resolve the Cuntapay that they had allegedly newly
substantive issues raised by petitioners. discovered. On the basis of this instrument,
the MTCC and RTC ruled that petitioners
It is well settled that in ejectment suits, the have a better right to the possession of the
only issue for resolution is the physical or subject lot because, following the law on
material possession of the property succession, it should be respected and
involved, independent of any claim of should prevail over intestate succession.
ownership by any of the party
litigants. However, the issue of ownership However, contrary to the ruling of the
may be provisionally ruled upon for the sole MTCC and RTC, the purported last will and
179

purpose of determining who is entitled to testament of Isabel Cuntapay could not

possession de facto.[10]
Page

properly be relied upon to establish

petitioners right to possess the subject lot
because, without having been probated,
the said last will and testament could not be
the source of any right.
Article 838 of the Civil Code is
instructive:
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
testators 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.
In Caiza v. Court of Appeals,[11] the Court
ruled that: [a] will is essentially ambulatory;
at any time prior to the testators death, it
may be changed or revoked; and until
admitted to probate, it has no effect
whatever and no right can be claimed
thereunder, the law being quite explicit: No
will shall pass either real or personal
property unless it is proved and allowed in
accordance with the Rules of Court.[12]
Dr. Tolentino, an eminent authority on civil
law, also explained that [b]efore any will
can have force or validity it must be
probated. To probate a will means to prove
before some officer or tribunal, vested by
law with authority for that purpose, that the
instrument offered to be proved is the last
will and testament of the deceased person
whose testamentary act it is alleged to be,
and that it has been executed, attested and
published as required by law, and that the
testator was of sound and disposing
mind. It is a proceeding to establish the
validity of the will.[13] Moreover, the
presentation of the will for probate is
mandatory and is a matter of public
policy.[14]
Following the above truisms, the MTCC
and RTC, therefore, erroneously ruled that
petitioners have a better right to possess
the subject lot on the basis of the purported
last will and testament of Isabel Cuntapay,
which, to date, has not been
probated. Stated in another manner, Isabel
Cuntapays last will and testament, which
has not been probated, has no effect
whatever and petitioners cannot claim any
right thereunder.
Hence, the CA correctly held that, as
against petitioners claim, respondent has
shown a better right of possession over the
subject lot as evidenced by the deeds of
conveyances executed in her favor by the
children of Isabel Cuntapay by her first
marriage.
Contrary to the claim of petitioners,
the dismissal of respondents action for
partition in Civil Case No. 4917 before the
RTC (Branch 3) of Tuguegarao City does
not constitute res judicata on the matter of
the validity of the said conveyances or even
as to the issue of the ownership of the
subject lot. The order dismissing
respondents action for partition in Civil
Case No. 4917 stated thus:
For resolution is a motion to
dismiss based on defendants
[referring to the petitioners
180
herein] affirmative defenses
consisting inter alia in the
Page
discovery of a last will and
 testament of Isabel Cuntapay,
the original owner of the land
in dispute.
xxx
It appears, however, that the
last will and testament of the
late Isabel Cuntapay has not
yet been allowed in probate,
hence, there is an imperative
need to petition the court for
the allowance of said will to
determine once and for all the
proper legitimes of legatees
and devisees before any
partition of the property may be
judicially adjudicated.
It is an elementary rule in law
that testate proceedings take
precedence over any other
action especially where the will
evinces the intent of the
testator to dispose of his whole
estate.
With the discovery of the will of
the late Isabel Cuntapay in
favor of the defendants, the
Court can order the filing of a
petition for the probate of the
same by the interested party.
WHEREFORE, in light of the
foregoing considerations, let
the above-entitled case be as it
is hereby DISMISSED.
SO ORDERED.[15]
For there to be res judicata, the following
elements must be present: (1) finality of the
former judgment; (2) the court which
rendered it had jurisdiction over the subject
matter and the parties; (3) it must be a
judgment on the merits; and (4) there must
be, between the first and second actions,
identity of parties, subject matter and
causes of action.[16]The third requisite, i.e.,
that the former judgment must be a
judgment on the merits, is not present
between the action for partition and the
complaint a quo for unlawful detainer.As
aptly observed by the CA:
Our reading of the Orders
(dated June 16,
1997 and October 13, 1997) in
Civil Case No. 4917 reveals
that the RTC, Branch 3,
Tuguegarao, Cagayan,
dismissed the complaint for
partition because of the
discovery of the alleged last
will and testament of Isabel
Cuntapay. The court did not
declare respondents [referring
to the petitioners herein] the
owners of the disputed
property.It simply ordered them
to petition the court for the
allowance of the will to
determine the proper legitimes
of the heirs prior to any
partition. Instead of filing the
appropriate petition for the
probate of Isabel Cuntapays
will, the respondents filed the
present complaint for unlawful
detainer. Viewed from this
perspective, we have no doubt
that the courts Orders cited by
the respondents are not
judgments on the merits that
would result in the application
of the principle of res
judicata. Where the trial court
merely refrained from
proceeding with the case and
granted the motion to dismiss
with some clarification without
conducting a trial on the
merits, there is no res
judicata.[17]
Further, it is not quite correct for petitioners
to contend that the children of Isabel
Cuntapay by her first marriage could not
have conveyed portions of the subject lot to
respondent, as she had claimed, because
until the present, it is still covered by OCT
Nos. 196 and 1032 under the names of
Pedro and Leona Cuntapay. To recall, it
181
was already agreed by the heirs of the said
spouses in a Partition Agreement
Page
dated December 28, 1979 that the subject
lot would belong to Isabel Cuntapay. The
latter died leaving her six children by both
marriages as heirs. Considering that her
purported last will and testament has, as
yet, no force and effect for not having been
probated, her six children are deemed to be
co-owners of the subject lot having their
respective pro indiviso shares. The
conveyances made by the children of
Isabel Cuntapay by her first marriage of
their respective pro indiviso shares in the
subject lot to respondent are valid because
the law recognizes the substantive right of
heirs to dispose of their ideal share in the
co-heirship
and/co-ownership among the heirs. The
Court had expounded the principle in this
wise:
This Court had the occasion to
rule that there is no doubt that
an heir can sell whatever right,
interest, or participation he
may have in the property under
administration. This is a matter
which comes under the
jurisdiction of the probate
court.
The right of an heir to dispose
of the decedents property,
even if the same is under
administration, is based on the
Civil Code provision stating
that the possession of
hereditary property is deemed
transmitted to the heir without
interruption and from the
moment of the death of the
decedent, in case the
inheritance is accepted. Where
there are however, two or
more heirs, the whole estate of
the decedent is, before its
partition, owned in common by
such heirs.
The Civil Code, under the
provisions of co-ownership,
further qualifies this
right. Although it is mandated
that each co-owner shall have
the full ownership of his part
and of the fruits and benefits
pertaining thereto, and thus
may alienate, assign or
mortgage it, and even
substitute another person in its
enjoyment, the effect of the
alienation or the mortgage,
with respect to the co-owners,
shall be limited to the portion
which may be allotted to him in
the division upon the
termination of the co-
ownership. In other words, the
law does not prohibit a co-
owner from selling, alienating
or mortgaging his ideal share
in the property held in
common.
As early as 1942, this Court
has recognized said right of an
heir to dispose of property
under administration. In the
case of Teves de Jakosalem
vs. Rafols, et al., it was said
that the sale made by an heir
of his share in an inheritance,
subject to the result of the
pending administration, in no
wise, stands in the way of such
administration. The Court then
relied on the provision of the
old Civil Code, Article 440 and
Article 399 which are still in
force as Article 533 and Article
493, respectively, in the new
Civil Code. The Court also
cited the words of a noted
civilist, Manresa: Upon the
death of a person, each of his
heirs becomes the undivided
owner of the whole estate left
with respect to the part or
portion which might be
adjudicated to him, a
community of ownership being
thus formed among the co-
owners of the estate which
remains undivided.[18]
Contrary to the assertion of
petitioners, therefore, the conveyances
182
made by the children of Isabel Cuntapay by
her first marriage to respondent are valid
Page
insofar as their pro indiviso shares are
concerned. Moreover, the CA justifiably of Appeals in CA-G.R. SP No. 80032
held that these conveyances, as evidenced are AFFIRMED.
by the deed of donation and deed of sale
SO ORDERED.
presented by respondent, coupled with the
fact that she has been in possession of the
subject lot since 1955, establish that
respondent has a better right to possess
the same as against petitioners whose
claim is largely based on Isabel Cuntapays
last will and testament which, to date, has
not been probated; hence, has no force
and effect and under which no right can be
claimed by petitioners. Significantly, the
probative value of the other evidence relied
upon by petitioners to support their claim,
which was the affidavit of Heliodoro
Turingan, was not passed upon by the
MTCC and the RTC. Their respective
decisions did not even mention the same.

In conclusion, it is well to stress the

CAs admonition that

x x x our ruling on the issue of

physical possession does not
affect title to the property nor
constitute a binding and
conclusive adjudication on the
merits on the issue of
ownership. The parties are not
precluded from filing the
appropriate action directly
contesting the ownership of or
the title to the property.[19]

Likewise, it is therefore in this context

that the CAs finding on the validity of Isabel
Cuntapays last will and testament must be
considered. Such is merely a provisional
ruling thereon for the sole purpose of
determining who is entitled to
possession de facto.

WHEREFORE, premises considered,

the petition is DENIED. The assailed
183

Decision dated February 16, 2005 and the

Resolution dated May 17, 2005 of the Court
Page
G.R. No. 156407, January 15, 2014
On June 3, 1991, Thelma filed in the
THELMA M. Regional Trial Court (RTC) in Cebu City a
ARANAS, Petitioner, v. TERESITA V. petition for the appointment of Teresita as
MERCADO, FELIMON V. MERCADO, the administrator of Emigdio�s estate
CARMENCITA M. SUTHERLAND, (Special Proceedings No.
RICHARD V. MERCADO, MA. TERESITA 1
3094�CEB). The RTC granted the
M. ANDERSON, AND FRANKLIN L. petition considering that there was no
MERCADO, Respondents. opposition. The letters of administration in
favor of Teresita were issued on
DECISION September 7, 1992.
BERSAMIN, J.: As the administrator, Teresita submitted an
inventory of the estate of Emigdio on
The probate court is authorized to December 14, 1992 for the consideration
determine the issue of ownership of and approval by the RTC. She indicated in
properties for purposes of their inclusion or the inventory that at the time of his death,
exclusion from the inventory to be Emigdio had �left no real properties but
submitted by the administrator, but its
only personal properties� worth
determination shall only be provisional
P6,675,435.25 in all, consisting of cash of
unless the interested parties are all heirs of
P32,141.20; furniture and fixtures worth
the decedent, or the question is one of
P20,000.00; pieces of jewelry valued at
collation or advancement, or the parties
P15,000.00; 44,806 shares of stock of
consent to the assumption of jurisdiction by
Mervir Realty worth P6,585,585.80; and 30
the probate court and the rights of third
shares of stock of Cebu Emerson worth
parties are not impaired. Its jurisdiction
P22,708.25.2
extends to matters incidental or collateral to
the settlement and distribution of the
Claiming that Emigdio had owned other
estate, such as the determination of the
properties that were excluded from the
status of each heir and whether property
inventory, Thelma moved that the RTC
included in the inventory is the conjugal or
direct Teresita to amend the inventory, and
exclusive property of the deceased spouse.
to be examined regarding it. The RTC
granted Thelma�s motion through the
Antecedents
order of January 8, 1993.
Emigdio S. Mercado (Emigdio) died
On January 21, 1993, Teresita filed a
intestate on January 12, 1991, survived by
compliance with the order of January 8,
his second wife, Teresita V. Mercado
1993,3 supporting her inventory with copies
(Teresita), and their five children, namely:
of three certificates of stocks covering the
Allan V. Mercado, Felimon V. Mercado,
44,806 Mervir Realty shares of stock;4the
Carmencita M. Sutherland, Richard V.
deed of assignment executed by Emigdio
Mercado, and Maria Teresita M. Anderson;
on January 10, 1991 involving real
and his two children by his first marriage,
properties with the market value of
namely: respondent Franklin L. Mercado
P4,440,651.10 in exchange for 44,407
and petitioner Thelma M. Aranas (Thelma).
Mervir Realty shares of stock with total par
value of P4,440,700.00;5 and the certificate
Emigdio inherited and acquired real
of stock issued on January 30, 1979 for
properties during his lifetime. He owned
300 shares of stock of Cebu Emerson
corporate shares in Mervir Realty
worth P30,000.00.6
Corporation (Mervir Realty) and Cebu
Emerson Transportation Corporation (Cebu
On January 26, 1993, Thelma again moved
Emerson). He assigned his real properties
to require Teresita to be examined under
in exchange for corporate stocks of Mervir
oath on the inventory, and that she
Realty, and sold his real property in Badian,
184

(Thelma) be allowed 30 days within which

Cebu (Lot 3353 covered by Transfer
to file a formal opposition to or comment on
Certificate of Title No. 3252) to Mervir
the inventory and the supporting
Page

Realty.
documents Teresita had submitted.
On February 4, 1993, the RTC issued an
order expressing the need for the parties to
present evidence and for Teresita to be
examined to enable the court to resolve the
motion for approval of the
7
inventory. cralawred
On April 19, 1993, Thelma opposed the
approval of the inventory, and asked leave
of court to examine Teresita on the
inventory.
With the parties agreeing to submit
themselves to the jurisdiction of the court
on the issue of what properties should be
included in or excluded from the inventory,
the RTC set dates for the hearing on that
issue.8cralawlawlibrary
Ruling of the RTC
After a series of hearings that ran for
almost eight years, the RTC issued on
March 14, 2001 an order finding and
holding that the inventory submitted by
Teresita had excluded properties that
should be included, and accordingly ruled:
WHEREFORE, in view of all the foregoing
premises and considerations, the Court
hereby denies the administratrix�s motion
for approval of inventory. The Court hereby
orders the said administratrix to re�do the
inventory of properties which are supposed
to constitute as the estate of the late
Emigdio S. Mercado by including therein
the properties mentioned in the last five
immediately preceding paragraphs hereof
and then submit the revised inventory
within sixty (60) days from notice of this
order.
The Court also directs the said
administratrix to render an account of her
administration of the estate of the late
Emigdio S. Mercado which had come to her
possession. She must render such
accounting within sixty (60) days from
notice hereof.
SO
ORDERED.9ChanRoblesVirtualawlibrary
On March 29, 2001, Teresita, joined by
other heirs of Emigdio, timely sought the
reconsideration of the order of March 14,
2001 on the ground that one of the real
properties affected, Lot No. 3353 located in
Badian, Cebu, had already been sold to
Mervir Realty, and that the parcels of land
covered by the deed of assignment had
already come into the possession of and
registered in the name of Mervir
Realty.10Thelma opposed the motion.
On May 18, 2001, the RTC denied the
motion for reconsideration,11 stating that
there was no cogent reason for the
reconsideration, and that the movants�
agreement as heirs to submit to the RTC
the issue of what properties should be
included or excluded from the inventory
already estopped them from questioning its
jurisdiction to pass upon the issue.
Decision of the CA
Alleging that the RTC thereby acted with
grave abuse of discretion in refusing to
approve the inventory, and in ordering her
as administrator to include real properties
that had been transferred to Mervir Realty,
Teresita, joined by her four children and her
stepson Franklin, assailed the adverse
orders of the RTC promulgated on March
14, 2001 and May 18, 2001 by petition
for certiorari, stating:
I
THE HONORABLE RESPONDENT
JUDGE HAS COMMITTED GRAVE
ABUSE OF JURISDICTION (sic)
AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN HOLDING THAT THE
REAL PROPERTY WHICH WAS SOLD BY
THE LATE EMIGDIO S. MERCADO
DURING HIS LIFETIME TO A PRIVATE
CORPORATION (MERVIR REALTY
CORPORATION) BE INCLUDED IN THE
INVENTORY OF THE ESTATE OF THE
LATE EMIGDIO S. MERCADO.
II
THE HONORABLE RESPONDENT
JUDGE HAS COMMITTED GRAVE
ABUSE OF JURISDICTION (sic)
AMOUNTING TO LACK OR EXCESS OF
185
JURISDICTION IN HOLDING THAT REAL
PROPERTIES WHICH ARE IN THE
Page
POSSESSION OF AND ALREADY
REGISTERED IN THE NAME (OF)
PRIVATE CORPORATION (MERVIR
REALTY CORPORATION) BE INCLUDED
IN THE INVENTORY OF THE ESTATE OF
THE LATE EMIGDIO S. MERCADO.
III
THE HONORABLE RESPONDENT
JUDGE HAS COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION
IN HOLDING THAT PETITIONERS ARE
NOW ESTOPPED FROM QUESTIONING
ITS JURISDICTION IN PASSING UPON
THE ISSUE OF WHAT PROPERTIES
SHOULD BE INCLUDED IN THE
INVENTORY OF THE ESTATE OF THE
LATE EMIGDIO MERCADO.12
On May 15, 2002, the CA partly granted the
petition for certiorari, disposing as follows:13
WHEREFORE, FOREGOING PREMISES
CONSIDERED, this petition is GRANTED
partially. The assailed Orders dated March
14, 2001 and May 18, 2001 are hereby
reversed and set aside insofar as the
inclusion of parcels of land known as Lot
No. 3353 located at Badian, Cebu with an
area of 53,301 square meters subject
matter of the Deed of Absolute Sale dated
November 9, 1989 and the various parcels
of land subject matter of the Deeds of
Assignment dated February 17, 1989 and
January 10, 1991 in the revised inventory
to be submitted by the administratrix is
concerned and affirmed in all other
respects.
SO ORDERED.
The CA opined that Teresita, et al. had
properly filed the petition
for certiorari because the order of the RTC
directing a new inventory of properties was
interlocutory; that pursuant to Article 1477
of the Civil Code, to the effect that the
ownership of the thing sold �shall be
transferred to the vendee� upon its
�actual and constructive delivery,� and to
Article 1498 of the Civil Code, to the effect
that the sale made through a public
instrument was equivalent to the delivery of
the object of the sale, the sale by Emigdio
and Teresita had transferred the ownership
of Lot No. 3353 to Mervir Realty because
the deed of absolute sale executed on
November 9, 1989 had been notarized; that
Emigdio had thereby ceased to have any
more interest in Lot 3353; that Emigdio had
assigned the parcels of land to Mervir
Realty as early as February 17, 1989 �for
the purpose of saving, as in avoiding taxes
with the difference that in the Deed of
Assignment dated January 10, 1991,
additional seven (7) parcels of land were
included�; that as to the January 10, 1991
deed of assignment, Mervir Realty had
been �even at the losing end considering
that such parcels of land, subject matter(s)
of the Deed of Assignment dated February
12, 1989, were again given monetary
consideration through shares of stock�;
that even if the assignment had been
based on the deed of assignment dated
January 10, 1991, the parcels of land could
not be included in the inventory
�considering that there is nothing wrong or
objectionable about the estate planning
scheme�; that the RTC, as an intestate
court, also had no power to take
cognizance of and determine the issue of
title to property registered in the name of
third persons or corporation; that a property
covered by the Torrens system should be
afforded the presumptive conclusiveness of
title; that the RTC, by disregarding the
presumption, had transgressed the clear
provisions of law and infringed settled
jurisprudence on the matter; and that the
RTC also gravely abused its discretion in
holding that Teresita, et al. were estopped
from questioning its jurisdiction because of
their agreement to submit to the RTC the
issue of which properties should be
included in the inventory.
The CA further opined as follows:
In the instant case, public respondent court
erred when it ruled that petitioners are
estopped from questioning its jurisdiction
considering that they have already agreed
to submit themselves to its jurisdiction of
determining what properties are to be
included in or excluded from the inventory
to be submitted by the administratrix,
because actually, a reading of petitioners�
Motion for Reconsideration dated March
186
26, 2001 filed before public respondent
court clearly shows that petitioners are not
questioning its jurisdiction but the manner
Page
in which it was exercised for which they are
not estopped, since that is their right,
considering that there is grave abuse of
discretion amounting to lack or in excess of
limited jurisdiction when it issued the
assailed Order dated March 14, 2001
denying the administratrix�s motion for
approval of the inventory of properties
which were already titled and in possession
of a third person that is, Mervir Realty
Corporation, a private corporation, which
under the law possessed a personality
distinct and separate from its 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 Mervir Realty Corporation should
stand undisturbed.
Besides, public respondent court acting as
a probate court had no authority to
determine the applicability of the doctrine of
piercing the veil of corporate fiction and
even if public respondent court was not
merely acting in a limited capacity as a
probate court, private respondent
nonetheless failed to adjudge competent
evidence that would have justified the court
to impale the veil of corporate fiction
because to disregard the separate
jurisdictional personality of a corporation,
the wrongdoing must be clearly and
convincingly established since it cannot be
presumed.14
On November 15, 2002, the CA denied the
motion for reconsideration of Teresita, et
al.15
Issue
Did the CA properly determine that the
RTC committed grave abuse of discretion
amounting to lack or excess of jurisdiction
in directing the inclusion of certain
properties in the inventory notwithstanding
that such properties had been either
transferred by sale or exchanged for
corporate shares in Mervir Realty by the
decedent during his lifetime?
Ruling of the Court
The appeal is meritorious.
I
Was certiorari the proper recourse
to assail the questioned orders of the
RTC?
The first issue to be resolved is procedural.
Thelma contends that the resort to the
special civil action for certiorari to assail the
orders of the RTC by Teresita and her
co�respondents was not proper.
Thelma�s contention cannot be sustained.
The propriety of the special civil action
for certiorari as a remedy depended on
whether the assailed orders of the RTC
were final or interlocutory in nature.
In Pahila�Garrido v. Tortogo,16 the Court
distinguished
between final and interlocutory orders as
follows:
The distinction between a final order and
an interlocutory order is well known. The
first disposes of the subject matter in its
entirety or terminates a particular
proceeding or action, leaving nothing more
to be done except to enforce by execution
what the court has determined, but the
latter does not completely dispose of the
case but leaves something else to be
decided upon.� An interlocutory order
deals with preliminary matters and the trial
on the merits is yet to be held and the
judgment rendered. The test to ascertain
whether or not an order or a judgment is
interlocutory or final is: does the order or
judgment leave something to be done in
the trial court with respect to the merits of
the case? If it does, the order or judgment
is interlocutory; otherwise, it is final.
The order dated November 12, 2002, which
granted the application for the writ of
preliminary injunction, was an interlocutory,
not a final, order, and should not be the
subject of an appeal. The reason for
disallowing an appeal from an interlocutory
order is to avoid multiplicity of appeals in a
single action, which necessarily suspends
the hearing and decision on the merits of
the action during the pendency of the
appeals. Permitting multiple appeals will
necessarily delay the trial on the merits of
187
the case for a considerable length of time,
and will compel the adverse party to incur
Page
unnecessary expenses, for one of the
parties may interpose as many appeals as
there are incidental questions raised by him
and as there are interlocutory orders
rendered or issued by the lower court. An
interlocutory order may be the subject of an
appeal, but only after a judgment has been
rendered, with the ground for appealing the
order being included in the appeal of the
judgment itself.
The remedy against an interlocutory order
not subject of an appeal is an appropriate
special civil action under Rule 65, provided
that the interlocutory order is rendered
without or in excess of jurisdiction or with
grave abuse of discretion. Then
is certiorari under Rule 65 allowed to be
resorted to.
The assailed order of March 14, 2001
denying Teresita�s motion for the approval
of the inventory and the order dated May
18, 2001 denying her motion for
reconsideration were interlocutory. This is
because the inclusion of the properties in
the inventory was not yet a final
determination of their ownership.� Hence,
the approval of the inventory and the
concomitant determination of the ownership
as basis for inclusion or exclusion from the
inventory were provisional and subject to
revision at anytime during the course of the
administration proceedings.
In Valero Vda. De Rodriguez v. Court of
Appeals,17 the Court, in affirming the
decision of the CA to the effect that the
order of the intestate court excluding
certain real properties from the inventory
was interlocutory and could be changed or
modified at anytime during the course of
the administration proceedings, held that
the order of exclusion was not a final but an
interlocutory order �in the sense that it did
not settle once and for all the title to the
San Lorenzo Village lots.� The Court
observed there that:
The prevailing rule is that for the purpose of
determining whether a certain property
should or should not be included in the
inventory, the probate court may pass
upon the title thereto but such
determination is not conclusive and is
subject to the final decision in a
separate action regarding ownership
which may be instituted by the parties (3
Moran�s Comments on the Rules of
Court, 1970 Edition, pages 448�9 and
473; Lachenal vs. Salas, L�42257, June
14, 1976, 71 SCRA 262, 266).18 (Bold
emphasis supplied)
To the same effect was De Leon v. Court of
Appeals,19 where the Court declared that a
�probate court, whether in a testate or
intestate proceeding, can only pass upon
questions of title provisionally,� and
reminded, citing Jimenez v. Court of
Appeals, that the �patent reason is the
probate court�s limited jurisdiction and the
principle that questions of title or
ownership, which result in inclusion or
exclusion from the inventory of the
property, can only be settled in a separate
action.� Indeed, in the cited case
of Jimenez v. Court of Appeals,20 the Court
pointed out:
All that the said court could do as regards
the said properties is 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 a dispute as to the ownership, then
the opposing parties and the
administrator have to resort to an
ordinary action for a final determination
of the conflicting claims of title because
the probate court cannot do so. (Bold
emphasis supplied)
On the other hand, an appeal would not be
the correct recourse for Teresita, et al. to
take against the assailed orders. The final
judgment rule embodied in the first
paragraph of Section 1, Rule 41, Rules of
Court,21 which also governs appeals in
special proceedings, stipulates that only the
judgments, final orders (and resolutions) of
a court of law �that completely disposes of
the case, or of a particular matter therein
when declared by these Rules to be
appealable� may be the subject of an
appeal in due course. The same rule states
that an interlocutory order or resolution
(interlocutory because it deals with
preliminary matters, or that the trial on the
merits is yet to be held and the judgment
rendered) is expressly made
188
non�appealable.
Page
Multiple appeals are permitted in special
proceedings as a practical recognition of
the possibility that material issues may be
finally determined at various stages of the
special proceedings. Section 1, Rule 109 of
the Rules of Court enumerates the specific
instances in which multiple appeals may be
resorted to in special proceedings, viz:
Section 1. Orders or judgments from which
appeals may be taken. � An interested
person may appeal in special proceedings
from an order or judgment rendered by a
Court of First Instance or a Juvenile and
Domestic Relations Court, where such
order or judgment:
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a
deceased person, or the distributive share
of the estate to which such person is
entitled;
(c) Allows or disallows, in whole or in part,
any claim against the estate of a deceased
person, or any claim presented on behalf of
the estate in offset to a claim against it;
(d) Settles the account of an executor,
administrator, trustee or guardian;
(e) Constitutes, in proceedings relating to
the settlement of the estate of a deceased
person, or the administration of a trustee or
guardian, a final determination in the lower
court of the rights of the party appealing,
except that no appeal shall be allowed from
the appointment of a special administrator;
and
(f) Is the final order or judgment rendered in
the case, and affects the substantial rights
of the person appealing, unless it be an
order granting or denying a motion for a
new trial or for reconsideration.
Clearly, the assailed orders of the RTC,
being interlocutory, did not come under any
of the instances in which multiple appeals
are permitted.
II
Did the RTC commit grave abuse of
discretion
in directing the inclusion of the
properties
in the estate of the decedent?
In its assailed decision, the CA concluded
that the RTC committed grave abuse of
discretion for including properties in the
inventory notwithstanding their having been
transferred to Mervir Realty by Emigdio
during his lifetime, and for disregarding the
registration of the properties in the name of
Mervir Realty, a third party, by applying the
doctrine of piercing the veil of corporate
fiction.
Was the CA correct in its conclusion?
The answer is in the negative. It is
unavoidable to find that the CA, in reaching
its conclusion, ignored the law and the facts
that had fully warranted the assailed orders
of the RTC.
Under Section 6(a), Rule 78 of the Rules of
Court, the letters of administration may be
granted at the discretion of the court to the
surviving spouse, who is competent and
willing to serve when the person dies
intestate. Upon issuing the letters of
administration to the surviving spouse, the
RTC becomes duty�bound to direct the
preparation and submission of the
inventory of the properties of the estate,
and the surviving spouse, as the
administrator, has the duty and
responsibility to submit the inventory within
three months from the issuance of letters of
administration pursuant to Rule 83 of
the Rules of Court, viz:
Section 1. Inventory and appraisal to be
returned within three months. � Within
three (3) months after his appointment
every executor or administrator shall return
to the court a true inventory and
appraisal of all the real and personal
estate of the deceased which has come
into his possession or knowledge. In the
appraisement of such estate, the court may
order one or more of the inheritance tax
appraisers to give his or their assistance.
The usage of the word all in Section
1, supra, demands the inclusion of all the
189
real and personal properties of the
decedent in the inventory.22 However, the
Page
word all is qualified by the phrase which
has come into his possession or
knowledge, which signifies that the
properties must be known to the
administrator to belong to the decedent or
are in her possession as the administrator.
Section 1 allows no exception, for the
phrase true inventory implies that no
properties appearing to belong to the
decedent can be excluded from the
inventory, regardless of their being in the
possession of another person or entity.
The objective of the Rules of Court in
requiring the inventory and appraisal of the
estate of the decedent is �to aid the court
in revising the accounts and determining
the liabilities of the executor or the
administrator, and in making a final and
equitable distribution (partition) of the
estate and otherwise to facilitate the
administration of the estate.�23 Hence, the
RTC that presides over the administration
of an estate is vested with wide discretion
on the question of what properties should
be included in the inventory. According
to Peralta v. Peralta,24 the CA cannot
impose its judgment in order to supplant
that of the RTC on the issue of which
properties are to be included or excluded
from the inventory in the absence of
�positive abuse of discretion,� for in the
administration of the estates of deceased
persons, �the judges enjoy ample
discretionary powers and the appellate
courts should not interfere with or attempt
to replace the action taken by them, unless
it be shown that there has been a positive
abuse of discretion.�25 As long as the RTC
commits no patently grave abuse of
discretion, its orders must be respected as
part of the regular performance of its
judicial duty.
There is no dispute that the jurisdiction of
the trial court as an intestate court is
special and limited. The trial court cannot
adjudicate title to properties claimed to be a
part of the estate but are claimed to belong
to third parties by title adverse to that of the
decedent and the estate, not by virtue of
any right of inheritance from the decedent.
All that the trial court can do regarding said
properties is to determine whether or not
they should be included in the inventory of
properties to be administered by the
administrator. Such determination is
provisional and may be still revised. As the
Court said in Agtarap v. Agtarap:26
The general rule is that the jurisdiction of
the trial court, either as a probate court 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. The
patent rationale for this rule is that such
court merely exercises special and limited
jurisdiction. As held in several cases, 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
final determination of ownership in a
separate action. 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. Verily, its
190
jurisdiction extends to matters incidental or
collateral to the settlement and distribution
Page
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.27 (Italics in the original; bold
emphasis supplied)
It is clear to us that the RTC took pains to
explain the factual bases for its directive for
the inclusion of the properties in question in
its assailed order of March 14, 2001, viz:
In the first place, the administratrix of the
estate admitted that Emigdio Mercado was
one of the heirs of Severina Mercado who,
upon her death, left several properties as
listed in the inventory of properties
submitted in Court in Special Proceedings
No. 306�R which are supposed to be
divided among her heirs. The administratrix
admitted, while being examined in Court by
the counsel for the petitioner, that she did
not include in the inventory submitted by
her in this case the shares of Emigdio
Mercado in the said estate of Severina
Mercado. Certainly, said properties
constituting Emigdio Mercado�s share in
the estate of Severina Mercado should be
included in the inventory of properties
required to be submitted to the Court in this
particular case.
In the second place, the administratrix of
the estate of Emigdio Mercado also
admitted in Court that she did not include in
the inventory shares of stock of Mervir
Realty Corporation which are in her name
and which were paid by her from money
derived from the taxicab business which
she and her husband had since 1955 as a
conjugal undertaking. As these shares of
stock partake of being conjugal in
character, one�half thereof or of the value
thereof should be included in the inventory
of the estate of her husband.
In the third place, the administratrix of the
estate of Emigdio Mercado admitted, too, in
Court that she had a bank account in her
name at Union Bank which she opened
when her husband was still alive. Again,
the money in said bank account partakes of
being conjugal in character, and so,
one�half thereof should be included in the
inventory of the properties constituting as
estate of her husband.
In the fourth place, it has been established
during the hearing in this case that Lot No.
3353 of Pls�657�D located in Badian,
Cebu containing an area of 53,301 square
meters as described in and covered by
Transfer Certificate of Title No. 3252 of the
Registry of Deeds for the Province of Cebu
is still registered in the name of Emigdio S.
Mercado until now. When it was the subject
of Civil Case No. CEB�12690 which was
decided on October 19, 1995, it was the
estate of the late Emigdio Mercado which
claimed to be the owner thereof. Mervir
Realty Corporation never intervened in the
said case in order to be the owner thereof.
This fact was admitted by Richard Mercado
himself when he testified in Court. x x x So
the said property located in Badian, Cebu
should be included in the inventory in this
case.
Fifthly and lastly, it appears that the
assignment of several parcels of land by
the late Emigdio S. Mercado to Mervir
Realty Corporation on January 10, 1991 by
virtue of the Deed of Assignment signed by
him on the said day (Exhibit N for the
petitioner and Exhibit 5 for the
administratrix) was a transfer in
contemplation of death. It was made two
days before he died on January 12, 1991.
A transfer made in contemplation of death
is one prompted by the thought that the
transferor has not long to live and made in
place of a testamentary disposition (1959
Prentice Hall, p. 3909). Section 78 of the
National Internal Revenue Code of 1977
provides that the gross estate of the
decedent shall be determined by including
the value at the time of his death of all
property to the extent of any interest therein
of which the decedent has at any time
made a transfer in contemplation of death.
So, the inventory to be approved in this
case should still include the said properties
of Emigdio Mercado which were transferred
by him in contemplation of death. Besides,
the said properties actually appeared to be
still registered in the name of Emigdio S.
Mercado at least ten (10) months after his
death, as shown by the certification issued
by the Cebu City Assessor�s Office on
October 31, 1991 (Exhibit O).28
191
Thereby, the RTC strictly followed the
directives of the Rules of Court and the
jurisprudence relevant to the procedure for
Page
preparing the inventory by the
administrator. The aforequoted
explanations indicated that the directive to
include the properties in question in the
inventory rested on good and valid
reasons, and thus was far from whimsical,
or arbitrary, or capricious.
Firstly, the shares in the properties
inherited by Emigdio from Severina
Mercado should be included in the
inventory because Teresita, et al. did not
dispute the fact about the shares being
inherited by Emigdio.
Secondly, with Emigdio and Teresita
having been married prior to the effectivity
of the Family Code in August 3, 1988, their
property regime was the conjugal
partnership of gains.29 For purposes of the
settlement of Emigdio�s estate, it was
unavoidable for Teresita to include his
shares in the conjugal partnership of gains.
The party asserting that specific property
acquired during that property regime did
not pertain to the conjugal partnership of
gains carried the burden of proof, and that
party must prove the exclusive ownership
by one of them by clear, categorical, and
convincing evidence.30 In the absence of or
pending the presentation of such proof, the
conjugal partnership of Emigdio and
Teresita must be provisionally liquidated to
establish who the real owners of the
affected properties were,31 and which of the
properties should form part of the estate of
Emigdio. The portions that pertained to the
estate of Emigdio must be included in the
inventory.
Moreover, although the title over Lot 3353
was already registered in the name of
Mervir Realty, the RTC made findings that
put that title in dispute. Civil Case No.
CEB�12692, a dispute that had involved
the ownership of Lot 3353, was resolved in
favor of the estate of Emigdio, and Transfer
Certificate of Title No. 3252 covering Lot
3353 was still in Emigdio�s name. Indeed,
the RTC noted in the order of March 14,
2001, or ten years after his death, that Lot
3353 had remained registered in the name
of Emigdio.
Interestingly, Mervir Realty did not
intervene at all in Civil Case No.
CEB�12692. Such lack of interest in Civil
Case No. CEB�12692 was susceptible of
various interpretations, including one to the
effect that the heirs of Emigdio could have
already threshed out their differences with
the assistance of the trial court. This
interpretation was probable considering
that Mervir Realty, whose business was
managed by respondent Richard, was
headed by Teresita herself as its President.
In other words, Mervir Realty appeared to
be a family corporation.
Also, the fact that the deed of absolute sale
executed by Emigdio in favor of Mervir
Realty was a notarized instrument did not
sufficiently justify the exclusion from the
inventory of the properties involved. A
notarized deed of sale only enjoyed the
presumption of regularity in favor of its
execution, but its notarization did not per
se guarantee the legal efficacy of the
transaction under the deed, and what the
contents purported to be. The presumption
of regularity could be rebutted by clear and
convincing evidence to the contrary.32 As
the Court has observed in Suntay v. Court
of Appeals:33
x x x. Though the notarization of the deed
of sale in question vests in its favor the
presumption of regularity, it is not the
intention nor the function of the notary
public to validate and make binding an
instrument never, in the first place,
intended to have any binding legal effect
upon the parties thereto. The intention of
the parties still and always is the
primary consideration in determining
the true nature of a contract.(Bold
emphasis supplied)
It should likewise be pointed out that the
exchange of shares of stock of Mervir
Realty with the real properties owned by
Emigdio would still have to be inquired into.
That Emigdio executed the deed of
assignment two days prior to his death was
a circumstance that should put any
interested party on his guard regarding the
exchange, considering that there was a
finding about Emigdio having been sick of
cancer of the pancreas at the time.34 In this
regard, whether the CA correctly
192
characterized the exchange as a form of an
estate planning scheme remained to be
Page
validated by the facts to be established in
court.
The fact that the properties were already
covered by Torrens titles in the name of
Mervir Realty could not be a valid basis for
immediately excluding them from the
inventory in view of the circumstances
admittedly surrounding the execution of the
deed of assignment. This is because:
The Torrens system is not a mode of
acquiring titles to lands; it is merely a
system of registration of titles to lands.
However, justice and equity demand that
the titleholder should not be made to bear
the unfavorable effect of the mistake or
negligence of the State�s agents, in the
absence of proof of his complicity in a fraud
or of manifest damage to third persons.
The real purpose of the Torrens system is
to quiet title to land and put a stop forever
to any question as to the legality of the title,
except claims that were noted in the
certificate at the time of registration or that
may arise subsequent thereto. Otherwise,
the integrity of the Torrens system shall
forever be sullied by the ineptitude and
inefficiency of land registration officials,
who are ordinarily presumed to have
regularly performed their duties.35
Assuming that only seven titled lots were
the subject of the deed of assignment of
January 10, 1991, such lots should still be
included in the inventory to enable the
parties, by themselves, and with the
assistance of the RTC itself, to test and
resolve the issue on the validity of the
assignment. The limited jurisdiction of the
RTC as an intestate court might have
constricted the determination of the rights
to the properties arising from that
deed,36 but it does not prevent the RTC as
intestate court from ordering the inclusion
in the inventory of the properties subject of
that deed. This is because the RTC as
intestate court, albeit vested only with
special and limited jurisdiction, was still
�deemed to have all the necessary
powers to exercise such jurisdiction to
make it effective.�37
Lastly, the inventory of the estate of
Emigdio must be prepared and submitted
for the important purpose of resolving the
difficult issues of collation and
advancement to the heirs. Article 1061 of
the Civil Coderequired every compulsory
heir and the surviving spouse, herein
Teresita herself, to �bring into the mass of
the estate any property or right which he (or
she) may have received from the decedent,
during the lifetime of the latter, by way of
donation, or any other gratuitous title, in
order that it may be computed in the
determination of the legitime of each heir,
and in the account of the partition.�
Section 2, Rule 90 of the Rules of
Court also provided that any advancement
by the decedent on the legitime of an heir
�may be heard and determined by the
court having jurisdiction of the estate
proceedings, and the final order of the court
thereon shall be binding on the person
raising the questions and on the heir.�
Rule 90 thereby expanded the special and
limited jurisdiction of the RTC as an
intestate court about the matters relating to
the inventory of the estate of the decedent
by authorizing it to direct the inclusion of
properties donated or bestowed by
gratuitous title to any compulsory heir by
the decedent.38
The determination of which properties
should be excluded from or included in the
inventory of estate properties was well
within the authority and discretion of the
RTC as an intestate court. In making its
determination, the RTC acted with
circumspection, and proceeded under the
guiding policy that it was best to include all
properties in the possession of the
administrator or were known to the
administrator to belong to Emigdio rather
than to exclude properties that could turn
out in the end to be actually part of the
estate. As long as the RTC commits no
patent grave abuse of discretion, its orders
must be respected as part of the regular
performance of its judicial duty. Grave
abuse of discretion means either that the
judicial or quasi�judicial power was
exercised in an arbitrary or despotic
manner by reason of passion or personal
hostility, or that the respondent judge,
tribunal or board evaded a positive duty, or
virtually refused to perform the duty
enjoined or to act in contemplation of law,
such as when such judge, tribunal or board
193
exercising judicial or quasi�judicial powers
acted in a capricious or whimsical manner
as to be equivalent to lack of jurisdiction.39
Page
In light of the foregoing, the CA�s
conclusion of grave abuse of discretion on
the part of the RTC was unwarranted and
erroneous.

WHEREFORE, the Court GRANTS the

petition for review
on certiorari; REVERSES and SETS
ASIDE the decision promulgated on May
15, 2002; REINSTATES the orders issued
on March 14, 2001 and May 18, 2001 by
the Regional Trial Court in
Cebu; DIRECTS the Regional Trial Court in
Cebu to proceed with dispatch in Special
Proceedings No. 3094�CEB
entitled Intestate Estate of the late Emigdio
Mercado, Thelma Aranas, petitioner, and to
resolve the case; and ORDERS the
respondents to pay the costs of
suit.ChanRoblesVirtualawlibrary

SO ORDERED.

194
Page
G.R. No. 198994
IRIS MORALES, Petitioner,
vs.
ANA MARIA OLONDRIZ, ALFONSO
JUAN OLONDRIZ, JR., ALEJANDRO
MORENO OLONDRIZ, ISABEL ROSA
OLONDRIZ and FRANCISCO JAVIER
MARIA OLONDRIZ, Respondents.
DECISION
BRION, J.:
This is a petition for review
on certiorari filed by Iris Morales from the
May 27, 2011 decision and October 12,
2011 resolution of the Court of
Appeals (CA) in CA-G.R. SP No.
102358.1 The CA denied Morales' petition
for certiorarifrom the Regional Trial
Court's (RTC) July 12, 2007 and October
30, 2007 orders in SP. Proc. No. 03-0060
and SP. Proc. No. 03-0069.2
Antecedents
Alfonso Juan P. Olondriz, Sr. (the
decedent) died on June 9, 2003. He was
survived by his widow, Ana Maria Ortigas
de Olondriz, and his children: Alfonso Juan
O. Olondriz, Jr., Alejandro Marino O.
Olondriz, Isabel Rosa O. Olondriz, Angelo
Jose O. Olondriz, and Francisco Javier
Maria Bautista Olondriz. His widow and
children are collectively referred to as the
respondent heirs.
Believing that the decedent died intestate,
the respondent heirs filed a petition with the
Las Piñas RTC for the partition of the
decedent’s estate and the appointment of a
special administrator on July 4, 2003. The
case was raffled to Branch 254 and
docketed as Sp. Proc. Case No. SP-03-
0060.
On July 11, 2003, the RTC appointed
Alfonso Juan O. Olondriz, Jr. as special
administrator.
However, on July 28, 2003, Iris Morales
filed a separate petition with the RTC
alleging that the decedent left a will dated
July 23, 1991. Morales prayed for the
probate of the will and for her appointment
as special administratrix. Her petition was
also raffled to Branch 254 and docketed
as Sp. Proc. Case No. SP-03-0069.
The pertinent portions of the decedent’s will
reads:
1. Upon my death, IRIS MORALES
OLONDRIZ shall be the executor hereof
and administrator of my estate until its
distribution in accordance herewith. x x x
2. My entire estate shall be divided into six
(6) parts to be distributed equally among
and between (1) IRIS MORALES
OLONDRIZ, my children (2) ALFONSO
JUAN OLONDRIZ, JR., (3) ALEJANDRO
OLONDRIZ, (4) ISABEL OLONDRIZ, (5)
ANGELO OLONDRIZ, and their mother (6)
MARIA ORTEGAS OLONDRIZ, SR.3
Notably, the will omitted Francisco Javier
Maria Bautista Olondriz, an illegitimate son
of the decedent.
On September 1, 2003, Morales filed a
manifestation in Sp. Proc. Case No. SP-
03-0060 and moved to suspend the
intestate proceedings in order to give way
to the probate proceedings in Sp. Proc.
Case No. SP-03-0069. The respondent
heirs opposed Morales’ motion for
suspension and her petition for allowance
of the will.
On November 27, 2003, the RTC
consolidated Sp. Proc. Case No. SP-03-
0060 with Sp. Proc. Case No. SP-03-0069.
On January 6, 2004, the respondent heirs
moved to dismiss the probate proceedings
because Francisco was preterited from the
will.
On January 10, 2006, Morales agreed to
the holding of an evidentiary hearing to
resolve the issue of preterition. Thus, the
RTC ordered the parties to submit their
factual allegations to support or negate the
existence of preterition. Only the
respondent heirs complied with this order.
After several postponements at the
instance of Morales, the reception of
evidence for the evidentiary hearing was
195
scheduled on May 29, 2006. However,
Morales failed to appear, effectively waiving
Page
her right to present evidence on the issue
of preterition.
On June 23, 2006, the RTC, through Judge
Gloria Butay Aglugub, suspended the
intestate proceedings in Sp. Proc. Case
No. SP-03-0060 and set the case for
probate. The RTC reasoned that probate
proceedings take precedence over
intestate proceedings.
The respondent heirs moved for
reconsideration of the suspension order but
the RTC denied the motion on September
1, 2006. The RTC also summarily revoked
the Letters of Administration previously
issued to Alfonso Jr.
The respondent heirs moved for
reconsideration of the summary revocation
of the Letters of Administration. They also
moved for the inhibition of Judge Aglugub
of Branch 254.
On November 16, 2006, the RTC granted
the motion for inhibition. The case was
transferred to Branch 253 presided by
Judge Salvador V. Timbang, Jr.
On July 12, 2007, the RTC resolved (1) the
respondent heirs’ motion for
reconsideration of the revocation of the
Letters of Administration and (2) Morales’
motion to be appointed Special
Administratrix of the estate. The RTC noted
that while testacy is preferred over
intestacy, courts will not hesitate to set
aside probate proceedings if it appears that
the probate of the will might become an idle
ceremony because the will is intrinsically
void.
The RTC observed: (1) that Morales
expressly admitted that Francisco Javier
Maria Bautista Olondriz is an heir of the
decedent; (2) that Francisco was clearly
omitted from the will; and (3) that based on
the evidentiary hearings, Francisco was
clearly preterited. Thus, the RTC reinstated
Alfonso Jr. as administrator of the estate
and ordered the case to proceed in
intestacy.
Morales moved for reconsideration which
the RTC denied on October 30, 2007, for
lack of merit.
On February 7, 2008, Morales filed a
petition for certiorari against the orders of
the RTC. Morales alleged that the RTC
acted with grave abuse of discretion in
proceeding intestate despite the existence
of the will. The petition was docketed
as CA-G.R. SP No. 102358.
On May 27, 2011, the CA dismissed
Morales’ petition for certiorari. The CA
reasoned that while probate proceedings
take precedence over intestate
proceedings, the preterition of a
compulsory heir in the direct line annuls the
institution of heirs in the will and opens the
entire inheritance into intestate
4
succession. Thus, the continuation of the
probate proceedings would be superfluous
and impractical because the inheritance will
be adjudicated intestate. The CA concluded
that the RTC did not act with grave abuse
of discretion.
Morales moved for reconsideration which
the CA denied on October 12, 2011.
Hence, she filed the present petition for
review on certiorari on December 5, 2011.
The Petition
Morales maintains that the RTC committed
grave abuse of discretion when it ordered
the case to proceed intestate because: (1)
the probate of a decedent’s will is
mandatory; (2) the RTC Branch 254
already ordered the case to proceed into
probate; (3) the order setting the case for
probate already attained finality; (3) the
probate court cannot touch on the intrinsic
validity of the will; and (4) there was no
preterition because Francisco received a
house and lot inter vivos as an advance on
his legitime.
The respondent heirs counter: (1) that it is
within the RTC’s jurisdiction to reverse or
modify an interlocutory order setting the
case for probate; (2) that the petitioner
failed to mention that she did not appear in
any of the evidentiary hearings to disprove
their allegation of preterition; (3) that the
RTC and the CA both found that Francisco
was preterited from the will; and (4) that
Francisco’s preterition annulled the
196
institution of heirs and opened the case into
intestacy. They conclude that the RTC did
Page
not exceed its jurisdiction or act with grave
abuse of discretion when it reinstated
Alfonso Jr. as the administrator of the
estate and ordered the case to proceed
intestate.
Our Ruling
We join the ruling of the CA.
Preterition consists in the omission of a
compulsory heir from the will, either
because he is not named or, although he is
named as a father, son, etc., he is neither
instituted as an heir nor assigned any part
of the estate without expressly being
disinherited – tacitly depriving the heir of
his legitime.5 Preterition requires that the
omission is total, meaning the heir did not
also receive any legacies, devises, or
advances on his legitime.6
In other words, preterition is the complete
and total omission of a compulsory
heir from the testator’s inheritance without
the heir’s express disinheritance.
Article 854 of the Civil Code states the legal
effects of preterition:
Art. 854. The preterition or omission of one,
some, or all of the compulsory heirs in
the direct line, whether living at the time of
the execution of the will or born after the
death of the testator, shall annul the
institution of heir; but the devises and
legacies shall be valid insofar as they are
not inofficious.
If the omitted compulsory heirs should die
before the testator, the institution shall be
effectual, without prejudice to the right of
representation. (emphasis supplied)
Under the Civil Code, the preterition of a
compulsory heir in the direct line shall
annul the institution of heirs, but the
devises and legacies shall remain valid
insofar as the legitimes are not impaired.
Consequently, if a will does not institute
any devisees or legatees, the preterition of
a compulsory heir in the direct line will
result in total intestacy.7
In the present case, the decedent’s will
evidently omitted Francisco Olondriz as an
heir, legatee, or devisee. As the decedent’s
illegitimate son, Francisco is a compulsory
heir in the direct line. Unless Morales could
show otherwise, Francisco’s omission from
the will leads to the conclusion of his
preterition.
During the proceedings in the RTC,
Morales had the opportunity to present
evidence that Francisco received
donations inter vivos and advances on his
legitime from the decedent. However,
Morales did not appear during the hearing
dates, effectively waiving her right to
present evidence on the issue. We cannot
fault the RTC for reaching the reasonable
conclusion that there was preterition.
We will not entertain the petitioner’s factual
allegation that Francisco was not preterited
because this Court is not a trier of
facts.1âwphi1 Furthermore, the CA
concurred with the RTC’s conclusion. We
see no cogent reason to deviate from the
factual findings of the lower courts.
The remaining question is whether it was
proper for the RTC to (1) pass upon the
intrinsic validity of the will during probate
proceedings and (2) order the case to
proceed intestate because of preterition.
The general rule is that in probate
proceedings, the scope of the court’s
inquiry is limited to questions on the
extrinsic validity of the will; the probate
court will only determine the will’s formal
validity and due execution.8However, this
rule is not inflexible and absolute.9 It is not
beyond the probate court’s jurisdiction to
pass upon the intrinsic validity of the will
when so warranted by exceptional
circumstances.10 When practical
considerations demand that the intrinsic
validity of the will be passed upon even
before it is probated, the probate court
should meet the issue.11
The decedent’s will does not contain
specific legacies or devices and
Francisco’s preterition annulled the
institution of heirs.1avvphi1 The annulment
effectively caused the total abrogation of
the will, resulting in total intestacy of the
inheritance.12 The decedent’s will, no
matter how valid it may appear extrinsically,
197
is null and void. The conduct of separate
proceedings to determine the intrinsic
Page
validity of its testamentary provisions would
be superfluous. Thus, we cannot attribute
error – much less grave abuse of discretion
– on the RTC for ordering the case to
proceed intestate.

Finally, there is no merit in the petitioner’s

argument that the previous order setting
the case for probate barred the RTC from
ordering the case to proceed intestate. The
disputed order is merely interlocutory and
can never become final and executory in
the same manner that a final judgment
does.13 An interlocutory order does not
result in res judicata.14 It remains under the
control of the court and can be modified or
rescinded at any time before final
judgment.15

Certiorari is a limited form of review

confined to errors of jurisdiction. An error of
jurisdiction is one where the officer or
tribunal acted without or in excess of its
jurisdiction, or with grave abuse of
discretion amounting to lack or excess of
jurisdiction.16 As discussed, it is well within
the jurisdiction of the probate court to pass
upon the intrinsic validity of the will if
probate proceedings might become an idle
ceremony due to the nullity of the will.

On the other hand, grave abuse of

discretion is the capricious and whimsical
exercise of judgment equivalent to an
evasion of positive duty, or a virtual refusal
to act at all in contemplation of the law.17 It
is present when power is exercised in a
despotic manner by reason, for instance, of
passion and hostility. Morales failed to
show that the R TC acted in such a
capricious and despotic manner that would
have warranted the CA's grant of her
petition for certiorari. On the contrary, the
RTC acted appropriately in accordance
with the law and jurisprudence.

WHEREFORE, the petition

is DISMISSED. Costs against the
petitioner.

SO ORDERED.
198
Page
RAMON S. CHING AND G.R. No.
PO WING PROPERTIES, 192828 The assailed Resolution denied the
INC., petitioners' Motion for Reconsideration.
Petitioners, Present:

CARPIO, J., The Factual Antecedents

- versus - Chairperson,
BRION, Sometime between November 25,
PEREZ, 2002 and December 3, 2002,[5] the
HON. JANSEN R. ARANAL-
respondents filed a Complaint[6] against the
RODRIGUEZ, in his SERENO, and
capacity as Presiding REYES, JJ. petitioners and Stronghold Insurance
Judge of the Regional Company, Global Business Bank, Inc.
Trial Court of Manila, (formerly PhilBank), Elena Tiu Del Pilar,
Branch 6, JOSEPH Asia Atlantic Resources Ventures, Inc.,
CHENG, JAIME CHENG, Promulgated:
Registers of Deeds of Manila and Malabon,
MERCEDES IGNE AND
LUCINA SANTOS, November 28, and all persons claiming rights or titles from
substituted by her son, 2011 Ramon Ching (Ramon) and his
EDUARDO S. successors-in-interest.
BALAJADIA,
Respondents.
The Complaint, captioned as one for
"Disinheritance, Declaration of Nullity of
x------------------------------------------------------------
Agreement and Waiver, Affidavit of Extra-
------------------------x
Judicial Settlement, Deed of Absolute Sale,
Transfer Certificates of Title with Prayer for
RESOLUTION
[the] Issuance of [a] Temporary Restraining
Order and [a] Writ of Preliminary
REYES, J.:
Injunction," was docketed as Civil Case No.
02-105251 and raffled to Branch 8 of the
The Case
Regional Trial Court of Manila (RTC).

Before us is a Petition for Review on

In the Complaint, the respondents
Certiorari[1] under Rule 45 of the Rules of
alleged the following as causes of action:
Court assailing the December 14, 2009
Decision[2] and July 8, 2010 Resolution[3] of
First Cause of Action. They are the
the Court of Appeals (CA) in CA-G.R. SP
heirs of Lim San, also known as Antonio
No. 99856. The dispositive portion of the
Ching / Tiong Cheng / Ching Cheng Suy
assailed Decision reads:
(Antonio). Respondents Joseph Cheng
WHEREFORE, in view of all (Joseph) and Jaime Cheng (Jaime) are
the foregoing premises, allegedly the children of Antonio with his
judgment is hereby rendered common-law wife, respondent Mercedes
by us DENYING the petition Igne (Mercedes). Respondent Lucina
filed in this case
Santos (Lucina) claimed that she was also
and AFFIRMING the assailed
Orders dated March 15, 2007 a common-law wife of Antonio. The
and May 16, 2007 issued by respondents averred that Ramon
the respondent Judge of the misrepresented himself as Antonio's and
199

Regional Trial Court (RTC), Lucina's son when in truth and in fact, he
Branch 6, in Manila in Civil
was adopted and his birth certificate was
Page

Case No. 02-105251.[4]

merely simulated. On July 18, 1996,
Antonio died of a stab wound. Police
investigators identified Ramon as the prime
suspect and he now stands as the lone
accused in a criminal case for murder filed
against him. Warrants of arrest issued
against him have remained unserved as he
is at large. From the foregoing
circumstances and upon the authority of
Article 919[7] of the New Civil Code (NCC),
the respondents concluded that Ramon can
be legally disinherited, hence, prohibited
from receiving any share from the estate of
Antonio.
Second Cause of Action. On
August 26, 1996, prior to the conclusion of
the police investigations tagging Ramon as
the prime suspect in the murder of Antonio,
the former made an inventory of the latter's
estate. Ramon misrepresented that there
were only six real estate properties left by
Antonio. The respondents alleged that
Ramon had illegally transferred to his name
the titles to the said properties. Further,
there are two other parcels of land, cash
and jewelries, plus properties in Hongkong,
which were in Ramon's possession.
Third Cause of Action. Mercedes,
being of low educational attainment, was
sweet-talked by Ramon into surrendering to
him a Global Business Bank, Inc. (Global
Bank) Certificate of Time Deposit
of P4,000,000.00 in the name of Antonio,
and the certificates of title covering two
condominium units in Binondo which were
purchased by Antonio using his own money
but which were registered in Ramon's
name. Ramon also fraudulently
misrepresented to Joseph, Jaime and
Mercedes that they will promptly receive
their complete shares, exclusive of the
stocks in Po Wing Properties, Inc. (Po
Wing), from the estate of Antonio. Exerting
undue influence, Ramon had convinced
them to execute an Agreement[8] and a
Waiver[9] on August 20, 1996. The terms
and conditions stipulated in the Agreement
and Waiver, specifically, on the payment by
Ramon to Joseph, Jaime and Mercedes of
the amount of P22,000,000.00, were not
complied with. Further, Lucina was not
informed of the execution of the said
instruments and had not received any
amount from Ramon. Hence, the
instruments are null and void.
Fourth Cause of Action. Antonio's
40,000 shares in Po Wing, which constitute
60% of the latter's total capital stock, were
illegally transferred by Ramon to his own
name through a forged document of sale
executed after Antonio died. Po Wing owns
a ten-storey building in Binondo. Ramon's
claim that he bought the stocks from
Antonio before the latter died is baseless.
Further, Lucina's shares in Po Wing had
also banished into thin air through Ramon's
machinations.
Fifth Cause of Action. On October
29, 1996, Ramon executed an Affidavit of
Extra-Judicial Settlement of
[10]
Estate adjudicating solely to himself
Antonio's entire estate to the prejudice of
the respondents. By virtue of the said
instrument, new Transfer Certificates of
Title (TCTs) covering eight real properties
owned by Antonio were issued in Ramon's
name. Relative to the Po Wing shares, the
Register of Deeds of Manila had required
Ramon to post a Surety Bond conditioned
to answer for whatever claims which may
eventually surface in connection with the
said stocks. Co-defendant Stronghold
Insurance Company issued the bond in
Ramon's behalf.
Sixth Cause of Action. Ramon sold
Antonio's two parcels of land in Navotas to
200
co-defendant Asia Atlantic Business
Ventures, Inc. Another parcel of land, which
Page
was part of Antonio's estate, was sold by
Ramon to co-defendant Elena Tiu Del Pilar c.) Declaring the
at an unreasonably low price. By reason of nullity of the
AGREEMENT and
Ramon's lack of authority to dispose of any WAIVER executed
part of Antonio's estate, the conveyances by plaintiffs x x x
are null and void ab initio. in favor of x x x
RAMON CHING
Since Ramon is at large, his wife, for being patently
immoral, invalid,
Belen Dy Tan Ching, now manages illegal, simulated
Antonio's estate. She has no intent to and (sic) sham;
convey to the respondents their shares in
the estate of Antonio. d.) Declaring the
nullity of the
transfer of the
The respondents thus prayed for the shares of stocks
following in their Complaint: at (sic) PO WING
from the names of
1. x x x a temporary restraining ANTONIO CHING
order be issued restraining the and LUCINA
defendant RAMON CHING SANTOS to the
and/or his attorney-in-fact defendant
Belen Dy Tan Ching from ANTONIOCHING'
disposing, selling or alienating s name for having
any property that belongs to been illegally
the estate of the deceased procured through
ANTONIO CHING; the falsification of
their signatures in
xxx the document
purporting the
4. x x x transfer thereof;

a.) Declaring that e.) Declaring the

the defendant nullity and to have
RAMON CHING no force and effect
who murdered his the AFFIDAVIT
father ANTONIO OF SETTLEMENT
CHING OF ESTATE
disqualified as heir executed by x x x
and from inheriting RAMON CHING
to (sic) the estate for being contrary
of his father; to law and existing
jurisprudence;
b.) Declaring the
nullity of the f.) Declaring the
defendant nullity of the
RAMON CHING DEED OF SALES
transfer (sic) of (sic) executed by
the six [6] parcels x x x RAMON
of land from the CHING (i) over
name of his father two (2) parcels of
ANTONIO CHING land x x x to
to his name defendant ASIA
covered by TCT ATLANTIC
201

No. x x x; BUSINESS
VENTURES, Inc.;
Page

and (ii) one (1)

 parcel of land x x
x sold to x x x
ELENA TIU DEL
PILAR for having
illegally procured
the ownership and
titles of the above
properties;
x x x.[11]
The petitioners filed with the RTC a
Motion to Dismiss[12] alleging forum
shopping, litis pendentia, res judicata and
the respondents as not being the real
parties in interest.
On July 30, 2004, the RTC issued an
Omnibus Order[13] denying the petitioners'
Motion to Dismiss.
The respondents filed an Amended
Complaint[14] dated April 7, 2005 impleading
Metrobank as the successor-in-interest of
co-defendant Global Bank. The Amended
Complaint also added a seventh cause of
action relative to the existence of a
Certificate of Premium Plus Acquisition
(CPPA) in the amount of P4,000,000.00
originally issued by PhilBank to Antonio.
The respondents prayed that they be
declared as the rightful owners of the
CPPA and that it be immediately released
to them. Alternatively, the respondents
prayed for the issuance of a hold order
relative to the CPPA to preserve it during
the pendency of the case.
On April 22, 2005, the petitioners
filed their Consolidated Answer with
Counterclaim.[15]
On October 28, 2005, the RTC
issued an Order[16] admitting the
respondents' Amended Complaint. The
RTC stressed that Metrobank had already
filed Manifestations admitting that as
successor-in-interest of Global Bank, it now
possesses custody of Antonio's deposits.
Metrobank expressed willingness to abide
by any court order as regards the
disposition of Antonio's deposits. The
petitioners' Motion for Reconsideration filed
to assail the aforecited Order was denied
by the RTC on May 3, 2006.
On May 29, 2006, the petitioners
filed their Consolidated Answer with
Counterclaim to the respondents' Amended
Complaint.
On August 11, 2006, the RTC issued
a pre-trial order.[17]
On January 18, 2007, the petitioners filed a
Motion to Dismiss[18] the respondents'
Amended Complaint on the alleged ground
of the RTC's lack of jurisdiction over the
subject matter of the Complaint. The
petitioners argued that since the
Amended Complaint sought the release of
the CPPA to the respondents, the latter's
declaration as heirs of Antonio, and the
propriety of Ramon's disinheritance, the
suit partakes of the nature of a special
proceeding and not an ordinary action for
declaration of nullity. Hence, jurisdiction
pertains to a probate or intestate court and
not to the RTC acting as an ordinary court.
On March 15, 2007, the RTC issued an
Order[19] denying the petitioners' Motion to
Dismiss on grounds:
In the case at bar, an
examination of the
Complaint would disclose
that the action delves mainly
on the question of
ownership of the properties
described in the Complaint
which can be properly
settled in an ordinary civil
action. And as pointed out by
202
the defendants, the action
seeks to declare the nullity of
Page
the Agreement, Waiver,
 Affidavit of Extra-Judicial for certiorari filed with the CA. The petition,
Settlement, Deed of Absolute docketed as CA-G.R. SP No. 99856, raised
Sale, Transfer Certificates of
Title, which were all allegedly the issue of whether or not the RTC gravely
executed by defendant Ramon abused its discretion when it denied the
Ching to defraud the petitioners' Motion to Dismiss despite the
plaintiffs. The relief of fact that the Amended Complaint sought to
establishing the status of the
establish the status or rights of the
plaintiffs which could have
translated this action into a respondents which subjects are within the
special proceeding was ambit of a special proceeding.
nowhere stated in the
Amended Complaint. With On December 14, 2009, the CA
regard [to] the prayer to
rendered the now assailed
declare the plaintiffs as the [21]
rightful owner[s] of the Decision denying the petition
CPPA and that the same be for certiorari on grounds:
immediately released to
them, in itself poses an Our in-depth assessment of
issue of ownership which the condensed allegations
must be proved by plaintiffs supporting the causes of action
by substantial evidence. And of the amended complaint
as emphasized by the induced us to infer
plaintiffs, the Amended that nothing in the said
Complaint was intended to complaint shows that the
implead Metrobank as a co- action of the private
defendant. respondents should be
threshed out in a special
As regards the issue of proceeding, it appearing that
disinheritance, the court notes their allegations were
that during the Pre-trial of this substantially for the
case, one of the issues raised enforcement of their rights
by the defendants Ramon against the alleged
Ching and Po Wing Properties fraudulent acts committed
is: Whether or not there can be by the petitioner Ramon
disinheritance in intestate Ching. The private
succession? Whether or not respondents also instituted
defendant Ramon Ching can the said amended complaint
be legally disinherited from the in order to protect them from
estate of his father? To the the consequence of the
mind of the Court, the issue of fraudulent acts of Ramon
disinheritance, which is one Ching by seeking to
of the causes of action in the disqualify Ramon Ching
Complaint, can be fully from inheriting from Antonio
settled after a trial on the Ching as well as to enjoin
merits. And at this stage, it him from disposing or
has not been sufficiently alienating the subject
established whether or not properties, including the P4
there is a will.[20] (Emphasis Million deposit with
supplied.) Metrobank. The intestate or
probate court has no
jurisdiction to adjudicate such
The above Order, and a subsequent issues, which must be
submitted to the court in the
203

Order dated May 16, 2007 denying the

exercise of its general
petitioners' Motion for Reconsideration,
jurisdiction as a regional trial
Page

became the subjects of a petition

 court. Furthermore, we agree
with the trial court that the
probate court could not take
cognizance of the prayer to
disinherit Ramon Ching,
given the undisputed fact
that there was no will to be
contested in a probate court.
The petition at bench
apparently cavils the subject
amended complaint and
complicates the issue of
jurisdiction by reiterating the
grounds or defenses set up in
the petitioners' earlier
pleadings.
Notwithstanding, the jurisdicti
on of the court over the
subject matter is determined
by the allegations of the
complaint without regard to
whether or not the private
respondents (plaintiffs) are
entitled to recover upon all
or some of the causes of
action asserted therein. In
this regard, the jurisdiction
of the court does not depend
upon the defenses pleaded
in the answer or in the
motion to dismiss, lest the
question of jurisdiction
would almost entirely
depend upon the petitioners
(defendants).[22] Hence, we
focus our resolution on the
issue of jurisdiction on the
allegations in the amended
complaint and not on the
defenses pleaded in the
motion to dismiss or in the
subsequent pleadings of the
petitioners.
In fine, under the circumstances of
the present case, there
being no compelling reason
to still subject the action of
the petitioners in a special
proceeding since the
nullification of the subject
documents could be
achieved in the civil
case, the lower court should
proceed to evaluate the
evidence of the parties and
render a decision thereon upon
the issues that it defined during
the pre-trial in Civil Case No.
02-105251.[23] (emphasis
supplied)
The petitioners' Motion for
Reconsideration was denied by the CA
through a Resolution[24] issued on July 8,
2010.
The Issue
The instant Petition for Review
[25]
on Certiorari is anchored on the issue of:
WHETHER OR NOT THE RTC
SHOULD HAVE GRANTED
THE MOTION TO DISMISS
FILED BY THE PETITIONERS
ON THE ALLEGED GROUND
OF THE RTC'S LACK OF
JURISDICTION OVER THE
SUBJECT MATTER OF THE
AMENDED COMPLAINT, TO
WIT, (A) FILIATIONS WITH
ANTONIO OF RAMON, JAIME
AND JOSEPH; (B) RIGHTS
OF COMMON-LAW WIVES,
LUCINA AND MERCEDES,
TO BE CONSIDERED AS
HEIRS OF ANTONIO; (C)
DETERMINATION OF THE
EXTENT OF ANTONIO'S
ESTATE; AND (D) OTHER
MATTERS WHICH CAN ONLY
BE RESOLVED IN A SPECIAL
PROCEEDING AND NOT IN
AN ORDINARY CIVIL
ACTION.
The petitioners argue that only a
probate court has the authority to
determine (a) who are the heirs of a
decedent; (b) the validity of a waiver
204
of hereditary rights; (c) the status of each
Page
heir; and (d) whether the property in the
inventory is conjugal or the exclusive
property of the deceased
[26]
spouse. Further, the extent of Antonio's
estate, the status of the contending parties
and the respondents' alleged entitlement as
heirs to receive the proceeds of Antonio's
CPPA now in Metrobank's custody are
matters which are more appropriately the
subjects of a special proceeding and not of
an ordinary civil action.
The respondents opposed[27] the
instant petition claiming that the petitioners
are engaged in forum shopping.
Specifically, G.R. Nos. 175507[28] and
183840,[29] both involving the contending
parties in the instant petition were filed by
the petitioners and are currently pending
before this Court. Further, in Mendoza v.
Hon. Teh,[30] the SC declared that whether
a particular matter should be resolved by
the RTC in the exercise of its general
jurisdiction or its limited probate jurisdiction,
is not a jurisdictional issue but a mere
question of procedure. Besides, the
petitioners, having validly submitted
themselves to the jurisdiction of the RTC
and having actively participated in the trial
of the case, are already estopped from
challenging the RTC's jurisdiction over the
respondents' Complaint and Amended
Complaint.[31]
The Court's Ruling
We resolve to deny the instant
petition.
The petitioners failed to comply with
a lawful order of this Court directing them to
file their reply to the respondents'
Comment/Opposition to the instant Petition.
While the prescribed period to comply
expired on March 15, 2011, the petitioners
filed their Manifestation that they will no
longer file a reply only on October 10, 2011
or after the lapse of almost seven months.
Further, no reversible errors were
committed by the RTC and the CA when
they both ruled that the denial of the
petitioners' second motion to dismiss Civil
Case No. 02-105251 was proper.
Even without delving into the
procedural allegations of the respondents
that the petitioners engaged in forum
shopping and are already estopped from
questioning the RTC's jurisdiction after
having validly submitted to it when the latter
participated in the proceedings, the denial
of the instant Petition is still in
order. Although the respondents' Complaint
and Amended Complaint sought, among
others, the disinheritance of Ramon and
the release in favor of the respondents of
the CPPA now under Metrobank's custody,
Civil Case No. 02-105251 remains to be an
ordinary civil action, and not a special
proceeding pertaining to a settlement court.
An action for reconveyance and
annulment of title with damages is a civil
action, whereas matters relating to
settlement of the estate of a deceased
person such as advancement of property
made by the decedent, partake of the
nature of a special proceeding, which
concomitantly requires the application of
specific rules as provided for in the Rules of
Court.[32] A special proceeding is a remedy
by which a party seeks to establish a
status, a right, or a particular fact.[33] It is
distinguished from an ordinary civil action
where a party sues another for the
enforcement or protection of a right, or the
prevention or redress of a wrong.[34] To
initiate a special proceeding, a petition and
not a complaint should be filed.
Under Article 916 of the NCC,
205
disinheritance can be effected only through
a will wherein the legal cause therefor shall
Page
be specified. This Court agrees with the
RTC and the CA that while the respondents
in their Complaint and Amended Complaint
sought the disinheritance of Ramon, no will
or any instrument supposedly effecting the
disposition of Antonio's estate was ever
mentioned. Hence, despite the prayer for
Ramon's disinheritance, Civil Case No. 02-
105251 does not partake of the nature of a
special proceeding and does not call for the
probate court's exercise of its limited
jurisdiction.
The petitioners also argue that the
prayers in the Amended Complaint,
seeking the release in favor of the
respondents of the CPPA under
Metrobank's custody and the nullification of
the instruments subject of the complaint,
necessarily require the determination of the
respondents' status as Antonio's heirs.
It bears stressing that what the
respondents prayed for was that they be
declared as the rightful owners of the
CPPA which was in Mercedes' possession
prior to the execution of the Agreement and
Waiver. The respondents also prayed for
the alternative relief of securing the
issuance by the RTC of a hold order
relative to the CPPA to preserve Antonio's
deposits with Metrobank during the
pendency of the case. It can thus be said
that the respondents' prayer relative to the
CPPA was premised on Mercedes' prior
possession of and their alleged collective
ownership of the same, and not on the
declaration of their status as Antonio's
heirs. Further, it also has to be emphasized
that the respondents were parties to the
execution of the Agreement[35] and
Waiver[36] prayed to be nullified. Hence,
even without the necessity of being
declared as heirs of Antonio, the
respondents have the standing to seek for
the nullification of the instruments in the
light of their claims that there was no
consideration for their execution, and that
Ramon exercised undue influence and
committed fraud against them.
Consequently, the respondents then
claimed that the Affidavit of Extra-Judicial
Settlement of Antonios estate executed by
Ramon, and the TCTs issued upon the
authority of the said affidavit, are null and
void as well. Ramon's averment that a
resolution of the issues raised shall first
require a declaration of the respondents'
status as heirs is a mere defense which is
not determinative of which court shall
properly exercise jurisdiction.
In Marjorie Cadimas v. Marites
Carrion and Gemma Hugo,[37] the Court
declared:
It is an elementary rule of
procedural law that jurisdiction
of the court over the subject
matter is determined by the
allegations of the complaint
irrespective of whether or not
the plaintiff is entitled to
recover upon all or some of the
claims asserted therein. As a
necessary consequence, the
jurisdiction of the court cannot
be made to depend upon the
defenses set up in the answer
or upon the motion to dismiss,
for otherwise, the question of
jurisdiction would almost
entirely depend upon the
defendant. What determines
the jurisdiction of the court is
the nature of the action
pleaded as appearing from the
allegations in the complaint.
The averments in the
complaint and the character of
the relief sought are the
matters to be consulted.
In sum, this Court agrees with the CA
that the nullification of the documents
subject of Civil Case No. 02-105251 could
206
be achieved in an ordinary civil action,
which in this specific case was instituted to
Page
protect the respondents from the
supposedly fraudulent acts of Ramon. In
the event that the RTC will find grounds to
grant the reliefs prayed for by the
respondents, the only consequence will be
the reversion of the properties subject of
the dispute to the estate of Antonio. Civil
Case No. 02-105251 was not instituted to
conclusively resolve the issues relating to
the administration, liquidation and
distribution of Antonio's estate, hence, not
the proper subject of a special proceeding
for the settlement of the estate of a
deceased person under Rules 73-91 of the
Rules of Court.

The respondents' resort to an

ordinary civil action before the RTC may
not be strategically sound, because a
settlement proceeding should thereafter still
follow, if their intent is to recover from
Ramon the properties alleged to have been
illegally transferred in his name. Be that as
it may, the RTC, in the exercise of its
general jurisdiction, cannot be restrained
from taking cognizance of respondents'
Complaint and Amended Complaint as the
issues raised and the prayers indicated
therein are matters which need not be
threshed out in a special proceeding.

WHEREFORE, the instant petition

is DENIED. The petitioners' (a) Opposition
to the respondents' Motion to Admit
Substitution of Party;[38] and (b)
[39]
Manifestation through counsel that they
will no longer file a reply to the
respondents' Comment/Opposition to the
instant petition are NOTED.

SO ORDERED.
207
Page
G.R. No. 169144
estate.[1] On October 15, 2003, however,
IN RE: IN THE MATTER OF THE petitioners Manuel Miguel Palaganas
PETITION TO APPROVE THE WILL (Manuel) and Benjamin Gregorio
OF RUPERTA PALAGANAS WITH
PRAYER FOR THE APPOINTMENT Palaganas (Benjamin), nephews of
OF SPECIAL ADMINISTRATOR, Ruperta, opposed the petition on the
MANUEL MIGUEL PALAGANAS and
ground that Rupertas will should not be
BENJAMIN GREGORIO PALAGANAS,
Petitioners, probated in the Philippines but in
- versus - the U.S.where she executed it. Manuel and
ERNESTO PALAGANAS,
Respondent. Promulgated: Benjamin added that, assuming Rupertas
will could be probated in the Philippines, it
January 26, 2011
is invalid nonetheless for having been
x -------------------------------------------------------
-------------------------------- x executed under duress and without the
testators full understanding of the
DECISION
consequences of such act. Ernesto, they
ABAD, J.: claimed, is also not qualified to act as
administrator of the estate.

This case is about the probate before

Meantime, since Rupertas foreign-based
Philippine court of a will executed abroad
siblings, Gloria Villaluz and Sergio, were on
by a foreigner although it has not been
separate occasions in the Philippines for a
probated in its place of execution.
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
The Facts and the Case
their memorandum on the issue of whether
On November 8, 2001 Ruperta C.
or not Rupertas U.S. will may be probated
Palaganas (Ruperta), a Filipino who
in and allowed by a court in the Philippines.
became a naturalized United States (U.S.)
citizen, died single and childless. In the last
On June 17, 2004 the RTC issued an
will and testament she executed
order:[2] (a) admitting to probate Rupertas
in California, she designated her brother,
last will; (b) appointing respondent Ernesto
Sergio C. Palaganas (Sergio), as the
as special administrator at the request of
executor of her will for she had left
Sergio, the U.S.-based executor
properties in the Philippines and in the U.S.
designated in the will; and (c) issuing the
Letters of Special Administration to
On May 19, 2003 respondent Ernesto C.
Ernesto.
Palaganas (Ernesto), another brother of
Ruperta, filed with the Regional Trial Court
Aggrieved by the RTCs order, petitioner
(RTC) of Malolos, Bulacan, a petition for
208

nephews Manuel and Benjamin appealed

the probate of Rupertas will and for his
to the Court of Appeals (CA),[3] arguing that
Page

appointment as special administrator of her

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 Ernestos 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 Courts 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,
209
whether the same be in his possession or
not, or is lost or destroyed.
Page

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.[7] The rules do not require proof
that the foreign will has already been
allowed and probated in the country of its
execution.
In insisting that Rupertas 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. 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 Rupertas 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 testators 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 courts
directive for Ernesto to submit the duly
authenticated copy of Rupertas 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.
210
Page